The Issue Petitioner has requested an exemption from her disqualification from certain employment on account of her prior criminal record. The issue for disposition here is whether the Department of Children and Family Services (DCFS) should grant that exemption.
Findings Of Fact Jackie Cameron is 36 years old and lives in Orlando with her two daughters. Another child, a son, is living with his father, to whom Ms. Cameron is no longer married. In 1995, when she was living in New York, Ms. Cameron pled guilty and was convicted of a misdemeanor: endangering the welfare of a minor. She was sentenced to 3 years' probation and has successfully served that probation. Ms. Cameron had a difficult childhood and early adulthood. She was abused as a child and spent time in foster and group homes. She pled guilty to the offense as charged because she did not want to take the chance of being sent to jail and having her children placed in foster homes. The incident for which Ms. Cameron was convicted occurred on a day when she had several children visiting and playing with her children. She noticed that her 5 year old daughter and a boy, also 5 years old, were missing. She went upstairs and found the two children in the bedroom pulling up their underpants. The boy had a reputation for improper sexual activity. Ms. Cameron spanked both children on their hands with a cloth belt that had a leather tip and she instructed her older daughter to take the boy back to his home up the street. Concerned about the boy's behavior, Ms. Cameron called Child Protective Services to report him. Although Ms. Cameron and the boy's family had been close friends and neighbors, the relationship turned ugly. The boy's family insisted that Ms. Cameron had abused the boy and left bruises on his back. In fact, according to Ms. Cameron, the child had been spanked that morning by someone else. Still, she pled guilty, as described above, to avoid the chance that her own children would be jeopardized. In her early youth and up until 1993, Ms. Cameron had several other criminal charges, including petit larceny, criminal possession of a forged instrument, and grand larceny and forgery. She has paid the penalties for those offenses by serving probation and making restitution. Ms. Cameron moved to Florida with her daughters to get away from the negative influences in her life. While in Florida, Ms. Cameron worked as a volunteer for DCFS for approximately 14 months as a WAGES (welfare-to-work program) clerk. She filed, copied documents, and handed out paperwork. According to her supervisor, Nancy Nightingale, she was a good, dependable worker. She was hired as a regular employee in January 1999, and was terminated in March 1999, when her background screening revealed the 1995 misdemeanor offense from New York. Since her termination from DCFS Ms. Cameron has worked steadily in the children's department at Burdines Department Store. She is proud of her daughters and they are doing well; the oldest has a 3.0 grade average in school. Ms. Cameron acknowledges her wrongdoing in the past and credits good people like Nancy Nightingale with helping her learn from her mistakes and to "grow up." She understands what she needs to do to stay out of trouble; she has learned to be independent and works hard. She wants to be a positive example for her children and, foremost, she wants to maintain a home for her children and to remain a good and loving mother to them. By her uncontroverted and credible evidence, Ms. Cameron has demonstrated that she will not present a danger if continued employment is allowed.
Recommendation Based on the foregoing, it is RECOMMENDED: That the agency issue its final order granting Petitioner's request for exemption. DONE AND ENTERED this 8th day of November, 1999, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 1999. COPIES FURNISHED: Jackie Cameron 4615-8 Nikki Court, Apartment 8 Orlando, Florida 32822 Carmen M. Sierra, Esquire Department of Children and Family Services 400 West Robinson Street Orlando, Florida 32801 Samuel C. Chavers, Acting Agency Clerk Department of Children and Family Services Building 2, Room 204B 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 The issue in the case is whether Petitioner's application for licensure should be approved.
Findings Of Fact On July 12, 2004, Petitioner filed an application for licensure as a Resident Life including Variable Annuity and Health Insurance Agent with Respondent. Included among the questions on the application was the following: Have you ever been convicted, found guilty, or pled guilty or nolo contendere (no contest) to a felony or crime punishable by imprisonment of one (1) year or more under the laws of any municipality, county, state, territory or country, whether or not adjudication was withheld or a judgment of conviction was entered? Petitioner answered "no" in response to the question. The application requires the applicant to consent to the following statement: Under penalties of perjury, I declare that I have read the foregoing application for license and that the facts stated in it are true. I understand that misrepresentation of any fact required to be disclosed through this application is a violation of the Florida Insurance and Administrative Codes and may result in denial of my application and/or the revocation of my insurance license(s). By affixing his electronic signature to the application, Petitioner affirmed that the information set forth therein was true. The evidence establishes that on April 7, 1978, Petitioner was sentenced to the Nassau County Correctional Center for a term of one year after entering a guilty plea to a felony count of Attempted Grand Larceny (Grand Jury Indictment No. 46323, June 24, 1977, Nassau County, New York.) Petitioner entered the Correctional Center to begin serving his sentence on December 15, 1978, and was released on February 28, 1979. Petitioner did not disclose the 1978 conviction on the application for licensure as an insurance agent. After completing a criminal history check, Respondent issued two deficiency letters, dated July 26, 2004, and August 5, 2004, seeking additional information related to Petitioner's background. In response to the deficiency letters, Petitioner submitted additional information and a letter. In the letter and in his testimony at the hearing, Petitioner stated that he misinterpreted the question, and believed that because he was incarcerated for less than one year, the 1978 conviction was responsive to the question. He stated that he did not intend to mislead or deceive Respondent. Respondent issued a Notice of Denial on August 25, 2004. The grounds for the denial was Petitioner's failure to disclose the 1978 conviction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order denying the application for licensure filed by Anthony A. Sagnelli and imposing a waiting period to expire on August 26, 2005. DONE AND ENTERED this 28th day of February, 2005, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 2005.
The Issue At issue in this proceeding is whether Respondent committed the offense set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Department), is a state government licensing and regulatory agency charged with the duty and responsibility to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent, Terrell Laverne Solomon, is now, and was at all times material hereto, a licensed real estate salesperson in the State of Florida, having been issued license number SL- 0653405. On or about June 16, 1997, Respondent filed an application (dated June 10, 1997) with the Department for licensure as a real estate salesperson. Pertinent to this case, item 9 on the application required that Respondent answer "Yes" or "No" (by checking the appropriate box) to the following question: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? This question applies to any violation of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. If you intend to answer "NO" because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, or applicable law of another state, you are responsible for verifying the expungement or sealing prior to answering "NO." If you answered "Yes," attach the details including dates and outcome, including any sentence and conditions imposed, in full on a separate sheet of paper. Your answer to this question will be checked against local, state and federal records. Failure to answer this question accurately could cause denial of licensure. If you do not fully understand this question, consult with an attorney or the Division of Real Estate. Respondent answered the question by checking the box marked "Yes," and attached a handwritten note which revealed the following details: I pleaded guilty for drug possession and carrying a concealed weapon. However, I don't know the exact date, but it been [sic] 10 to 15 years ago. I also have a conviction for driving under the influence in [19]84. The application concluded with Respondent's acknowledgement before a Notary Public of the State of Florida as follows: The above named, and undersigned, applicant for licensure as a real estate salesperson under the provisions of Chapter 475, Florida Statutes, as amended, upon being duly sworn, deposes and says that (s)(he) is the person so applying, that (s)(he) has carefully read the application, answers, and the attached statements, if any, and that all such answers and statements are true and correct, and are as complete as his/her knowledge, information and records permit, without any evasions or mental reservations whatsoever; that (s)(he) knows of no reason why this application should be denied; and (s)(he) further extends this affidavit to cover all amendments to this application or further statements to the Division or its representatives, by him/her in response to inquiries concerning his/her qualifications. On July 28, 1997, Respondent passed the salesperson examination and was issued license number SL-0653405 as an inactive salesperson. From September 17, 1997, through the date of hearing, Respondent has been licensed as an active salesperson associated with Anita Berger Realty, Inc., a broker corporation located at 21414 West Dixie Highway, North Miami Beach, Florida. Following approval of Respondent's application, and his licensure as a real estate salesperson, the Department received the results of a state and federal records search which revealed a criminal history that included charges not disclosed on Respondent's application. That records search revealed the following criminal history in the Circuit and County Courts, Eleventh Judicial Circuit, Dade County, Florida (where Respondent was "convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld"): 2/ On April 8, 1978, Respondent was arrested and charged in Case No. M78-56023 with misdemeanor Battery, Resisting an Officer Without Violence, and Disorderly Conduct; and on August 19, 1981, was convicted of each charge and sentenced to a term of probation with special conditions. On September 17, 1979, Case No. 79- 12245, Respondent, upon entry of a plea of guilty, was found guilty of Shooting into an Occupied Dwelling; however, the court withheld an adjudication of guilt. (c) On June 17, 1985, Case No. 85-8549, Respondent, upon entry of a plea of guilty, was adjudicated guilty of Leaving the Scene of an Accident Involving Personal Injury (Count I), a third degree felony proscribed by Section 316.027, Florida Statutes, and Possession of a Controlled Substance, to- wit: Heroin (Count 2), a third degree felony proscribed by Section 893.13, Florida Statutes; however, the court stayed and withheld the imposition of sentence as to each count and placed Respondent on probation for a period of 4 years under the supervision of the Department of Corrections. Respondent's probation was subsequently revoked and on April 18, 1989, and he was committed to the custody of the Sheriff of Dade County, Florida, to be imprisoned for a term of 24 days, with credit for time served. On December 30, 1989, Case No. 89- 50035, Respondent was arrested and charged with carrying a concealed firearm, and on December 31, 1989, was convicted and sentenced (the specifics of which are not of record). As heretofore noted, Respondent's application did reveal that he had entered a plea of "guilty for drug possession" (ostensibly the June 17, 1985, conviction) and "carrying a concealed weapon" (ostensibly the December 30, 1989, conviction). The remaining criminal history was not disclosed. Upon discovery of such information, the Department apprised Respondent of its discovery and requested an explanation. Respondent addressed the Department's concerns as follows: In regard with Section 455.225(1), Florida Statutes. I answer [sic] Question 9 on my application truthfully and to best of my ability. It was never my intention to violate Section 455.225 and 475.21, Florida Statutes. I enclose[d] a letter from Metro- Dade Police Department [with my application which] stated that I have felony arrest and misdemeanor arrest. At the time I was being finger printed for DBPR, I ask [sic] the finger printing officer can I have a copy of my convictions and was denied. I also enclosed a hand written letter statement, all the conviction I can remember, and that's why I check [sic] Question 9 Yes. I'm not proud of my past life, but I work hard to obtain my real estate license and wouldn't do anything to jeodarize [sic] my license. I just didn't remember my past convictions, that's why I answer [sic] question nine Yes. (Emphasis in original.) Thereafter, on October 26, 1999, the Department issued the Administrative Complaint at issue in this proceeding which, based on Respondent's failure to disclose the aforesaid incidents on his application, charged that Respondent has "obtained a license by means of fraud, misrepresentation, or concealment" in violation of Section 475.25(1)(m), Florida Statutes (Count I), and that Respondent has "failed to disclose in his application for a real estate salesperson [license] information that Rule 61J2-2.027(2), Florida Administrative Code, requires" and therefore, violated Section 475.25(1)(e), Florida Statutes (Count II). According to the complaint, the disciplinary action sought for such violations was stated to be as follows: . . . [T]he penalty for each count or separate offense may range from a reprimand; an administrative fine not to exceed $5,000.00 per violation; probation; suspension of license, registration or permit for a period not to exceed ten (10) years; revocation of the license, registration or permit; and any one or all of the above penalties. 3/ Consistent with the explanation he offered the Department for his failure to fully disclose his criminal history, Respondent explained, at hearing, that his response to item 9 on the application was, at the time, an accurate reflection of his recollection, and that it was not his intention to mislead the Department by failing to disclose the matters he overlooked. Specifically, the Respondent offered the following explanation at hearing: THE COURT: Why didn't you disclose your 1978 and 1979 problems with the disorderly conduct and battery and the discharging the firearm? THE WITNESS: There's no reason. When I went to get the fingerprint card done, I asked the officer, can I get a print out of my convictions and my felony record, and he told me that he didn't do that and I didn't know that I had to take it a step further. I only checked Question 9, yes, to show that I did have criminal past and I didn't know that I had to take it a step further than that. If I would have known that, I would have took the opportunity to go do that. But I didn't know that I had to check the question and to present that for the application. THE COURT: What the question asked you, if you answered, yes, then attach the details, the dates and the outcome. THE WITNESS: Yes, that's true and I know I should have done it. But I asked them to give me -- I couldn't put it on nobody but myself. I should have taken it a step further. To get the convictions. I wasn't trying to hide anything from the Department. * * * CROSS-EXAMINATION BY MS. MARSH: Q Mr. Solomon, looking at your 1978 charge with the battery, resisting the officer and disorderly conduct and the 1979 charge with the shooting in the occupied dwelling . . . were you considering that if you disclosed those to the commission, that they would deny you a licensure? A No, that's why I checked the question, yes. I don't know how you look at it, but if I wanted to tell the truth about it, I would have checked, no, to the felony arrest. * * * Q Did you believe the Department would find all of your prior criminal cases? A Yes. I knew that they would find it but I didn't know that it would lead to this here, because I did check the question, yes. I didn't know it would lead to this, I would have taken that extra day and not taken the test and gotten the background check. (Transcript, pages 24-27). Here, Respondent's explanation for his failure to disclose the full scope of his criminal history is credited, and it is resolved that, at the time he submitted his application, Respondent did not intend to mislead or deceive the Department. In so concluding, it is observed that Respondent's testimony was candid, the nature of the incidents he disclosed were serious, as opposed to trivial, and his assumption that the complete details of his criminal history would be revealed when the Department (as it stated it would do on the application) checked his response against local, state, and federal records was well founded. Consequently, while his response to item 9 on the application was incomplete, Respondent's failure to more fully detail his criminal history is more appropriately characterized as a careless, thoughtless, or heedless act as opposed to a willful or intentional effort to mislead the Department as to the true character of his history.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered adopting the foregoing Findings of Fact and Conclusions of Law, and which, for the violation found, imposes a 30-day suspension and an administrative fine of $250. DONE AND ENTERED this 2nd day of May, 2000, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 2nd day of May, 2000.
The Issue The issue for consideration in this case is whether Respondent’s license as a real estate broker in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Department’s Division of Real Estate was the state agency in Florida responsible for the licensing of real estate salespersons and brokers in Florida and for the presentation of disciplinary cases regarding those individuals on behalf of and before the Florida Real Estate Commission. The Respondent was a licensed Florida real estate broker having been issued license number 0453845. Respondent was a broker at Quality Home Realty Inc., located at 8319 North 40th Street in Tampa. On or about June 10, 1996, Respondent, who was then licensed as a real estate salesperson in Florida, submitted an application for licensure as a real estate broker in this state. Respondent answered “no” to question 9 of the application, which reads, in pertinent part: 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? . . . If you intend to answer “NO” because you believe those records have been expunged or sealed by court, . . . 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 could cause denial of licensure. If you do not fully understand this question, consult with an attorney or the Division of Real Estate. As a result of this application and her passing the brokers’ examination, Respondent was licensed as a real estate broker in Florida. In fact, however, on January 13, 1992, Respondent had pleaded nolo contendere in County Court in Hillsborough County to a charge of obtaining property by worthless check. Respondent was licensed as a salesperson at the time. Adjudication was withheld and Respondent was ordered to make restitution and pay a fine and costs of $87.00, which she did. Respondent does not deny that she entered the plea as alleged. She contends, however, that at the time the check was issued, she was in the hospital receiving treatment for chemical damage to her lungs. She alleges that she had given several personal checks on her account, signed in blank, to her niece, Ms. Palmer, who was supposed to pay her bills with them after first depositing sufficient funds, which Respondent had also given her, to the bank to cover the checks. Respondent contends that her niece did not make the deposits on time and the check in issue, written to pay for automobile repairs, was dishonored. The repair man did not contact her to obtain reimbursement, but the check was, nonetheless, subsequently redeemed. Respondent’s factual allegations in this regard were confirmed by Ms. Palmer, and they are so found. Respondent also contends that several years later, by the time she filled out the application form for licensure as a broker, she had forgotten about the incident because, she claims, the judge had advised her the charge against her would be dismissed upon her making restitution and her payment of the fine and costs. She claims she did not believe she had a criminal conviction which had to be listed. She also contends that since the incident was a matter of public record, she had no reason to hide it, and that her failure to list it on the application was the result of a simple mistake. Her claim of mistake is rejected. Respondent has been a licensed real estate professional since being licensed as a salesperson in January 1995. To her knowledge, no complaints have ever been lodged against her, nor has any other disciplinary action ever been taken against her. The records of the Division reflect no complaints or any prior disciplinary action. However, Respondent admits that several years prior to her licensure as a salesperson, she was arrested for assault. That charge was dismissed. Respondent is presently active as a real estate broker and derives all her support from her practice. She claims to love the real estate business and contends she has a good reputation in the business community. In that regard, four individuals, including two real estate brokers, a deputy sheriff, and a long-standing friend and associate, submitted letters in support of Respondent’s continued licensure. The two brokers attest to her honesty, integrity, and professionalism, as did the deputy, who also works in the profession. The friend, an associate in community activities, attests to Respondent’s extensive involvement in youth reclamation activities and her church, and describes Respondent as a role model for the youth of the community. All support her maintaining her license and her continued participation in the profession.
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 finding Eulauia S. Harris guilty of a violation of Section 475.25(1)(m), Florida Statutes, and placing her license on probation for a period of two years. DONE AND ENTERED this 8th day of January, 1999, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1999. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Frederick H. Wilsen, Esquire Gillis & Wilsen 1999 West Colonial Drive Suite 211 Orlando, Florida 32804 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0700 James Kimbler Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
The Issue Whether Respondent, Lamar S. Green's, conduct evidenced lack of "good moral character" as alleged in the Administrative Complaint in this matter.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Respondent was certified by Petitioner on November 18, 1998. He holds law enforcement Certificate No. 197843. At the times relevant to the allegations of impropriety in the Administrative Complaint, Respondent was a bailiff with the Polk County Sheriff's Office. On October 15, 2006, Deputy Jeff Blair of the Polk County Sheriff's Office responded to a residence in Lakeland regarding a child custody dispute. Upon arrival at the residence, Deputy Blair met with Tracy Fields. Ms. Fields wanted Deputy Blair to get her children back from her ex-husband, Mr. Fields. Based on the initial information he obtained, Deputy Blair told Ms. Fields that in the absence of a court order, he was not authorized to intervene in the matter. (Apparently, it was later determined that a restraining order as a result of domestic violence had been issued against Mr. Fields. It appeared that the restraining order had been issued prior to October 15, 2006. It is also similarly unclear as to whether the restraining order awarded custodial responsibility and visitation and would have provided the "court order" Deputy Blair required.) Subsequently, Respondent, Ms. Fields' boyfriend, arrived on the scene. Deputy Blair did not know Respondent and Respondent was not in uniform. Deputy Blair repeated his statement to Respondent and Ms. Fields that in the absence of a court order, he was not authorized to intervene in the matter. Respondent reacted angrily to Deputy Blair, became confrontational, and questioned Deputy Blair as to his time in service as a law enforcement officer by telling him that given his identification number, he had not been a deputy very long. Respondent subsequently apologized to Deputy Blair and identified himself as a deputy sheriff, serving as a bailiff. While Deputy Blair was discussing the matter with Ms. Fields and Respondent, Deputy Blair received a report that a "911" call had been made reporting Ms. Fields at Mr. Fields' house, which was obviously untrue since she was with him. In addition, Mr. Fields agreed to meet Deputy Blair and his watch commander at a gas station to return the Fields' children. He failed to meet them. Neither of these incidents resulted in an incident report; however, Deputy Blair was directed to author an Incident Report regarding Respondent's conduct. In June 2006, Respondent was re-assigned from his post as a court bailiff to the court holding section based on a memorandum from a judge to Respondent's supervisor regarding Respondent's work performance. The stated reason for Respondent's reassignment was his reported absenteeism from his courtroom duties. Respondent was told this by his Captain, and he acknowledged that he understood. Respondent explained to his Captain that he had been having difficulties with his bowels that made it necessary to be absent from the courtroom from time to time. On September 15, 2006, Respondent testified as a witness before Polk County Circuit Court Judge Carpanini in a domestic violence injunction hearing in Fields v. Fields, Polk County Circuit Court Case No. 2006DR-6613. During direct examination, Respondent was questioned about his removal from his job assignment as a bailiff with the Polk County Sheriff's Office. The following is the relevant portion of the testimony: T. Fields: Has there been any other type of harassment that you feel Mr. Fields has employed upon you? Respondent: He's contacted the Polk County Sheriff's Office and filed a complaint with the internal affairs against me, which is not true. I have documentation and we'll have testimony from the deputy that was at the Kroger's Dance Studio that what he alleges in the complaint is not factual, also he alleged a, tried to put an injunction of protection against me, stating I threatened his secretary that I didn't (inaudible) him. It was denied. He then entered a voluntary dismissal up of [sic] that injunction, but there still is an investigation at the sheriff's office that's going to be followed up on where he filed a bogus complaint against me there. T. Fields: And because of this harassment Mr. Green, you've had to hire an attorney haven't you? Respondent: That's correct. T. Fields: And you've been removed from your current position as a bailiff here at the courthouse? Respondent: That's correct. T. Fields: And was that on or before- Judge Carpanini: Mrs. Fields is this; this case doesn't involve Mr. Green. It involves you so please move on. During cross-examination, Respondent was questioned further about his removal from his job assignment as a bailiff with the Polk County Sheriff's Office. The following is the relevant portion of that testimony: ML: You know, you mentioned with Mrs. Fields earlier that you've been removed from your job, your current job here at the courthouse because of Mr. Fields. Respondent: Believe so. That investigation isn't complete. Respondent's testimony set forth hereinabove is ancillary to the matter at issue before the Circuit Court and not dispositive of any issue in the domestic violence case involving Mr. and Mrs. Fields, and, as pointed out by the presiding Circuit Court Judge, this testimony is not germane to the issue being considered by the Court. In addition, it clearly expresses Respondent's opinion or belief on why his job was changed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Lamar S. Green, be found not guilty of failure to maintain good moral character as required by Subsection 943.13(7), Florida Statutes; and that no disciplinary action be taken against Respondent's law enforcement certification. This matter should be dismissed. DONE AND ENTERED this 22nd day of May, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 2008. COPIES FURNISHED: Michael Crews, Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue for determination in this proceeding is whether Petitioner's application for licensure as a real estate salesman should be granted.
Findings Of Fact Respondent determined that Petitioner is not qualified for licensure as a real estate salesman due to Petitioner's criminal record. Petitioner voluntarily disclosed his criminal record in response to Question 7 on the application for licensure. On June 30, 1990, Petitioner was charged with resisting arrest without violence. On July 2, 1991, Petitioner was charged with attempted robbery. Both charges were processed in Circuit Court in Dade County, Florida. Case No. 90-26052 involved the charge of resisting arrest. Case No. 90-26276 involved the charge of attempted robbery. Petitioner entered a plea of nolo contendere to the charge of attempted robbery on October 15, 1990. Adjudication of guilt was withheld and Petitioner was placed on probation for 12 months. Petitioner's probation was terminated successfully after three months by an Order Successfully Terminating Probation entered on February 11, 1991. On July 10, 1991, an order was entered expunging and sealing the record with respect to the charge of resisting arrest. Respondent was ". . . restored in the contemplation of the law to the status the Defendant occupied before such arrest." Petitioner's voluntary disclosure of his prior criminal charges complied with the express terms of his application for licensure. His prior criminal involvement was caused by substance addiction. He has been successfully rehabilitated from that addiction and is able to carry out his responsibilities if he becomes licensed as a real estate salesman. Petitioner began working with a landscape contractor approximately 10 months ago. Petitioner began as a field worker and is now carrying out management functions, including: placing laborers at job sites; depositing money in his employer's bank account; handling the business payroll; and making payments for materials at the job sites.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order granting Petitioner's application for licensure as a real estate salesman. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 22nd day of January 1992. DANIEL MANRY 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 23rd day of January 1992.
The Issue At issue in this proceeding is whether Petitioner's request for an exemption from employment disqualification should be approved.
Findings Of Fact Pertinent to this case, Petitioner, Harold Freeman, was employed by Troy Community Academy (Troy Academy) in April 1995.1 At the time, Troy Academy was not a contract provider of programs for youths for the Department of Juvenile Justice (DJJ) and, therefore, an employment screening pursuant to Chapter 435, Florida Statutes, was unnecessary.2 In early 1996, Troy Academy entered into a contractual arrangement with DJJ for the provision of programs for youths. Consequently, to be eligible for continued employment, Petitioner was required to submit information adequate to conduct a screening under Chapter 435, Florida Statutes. Apparently, at or about the same time, Troy Academy acquired a new fiscal agent, and Petitioner was required to submit a new employment application to be eligible for continued employment. That application was submitted on February 22, 1996.3 Among the information requested by the application was a response to the question "[h]ave you ever been convicted of any criminal offense other than traffic violations?" Petitioner responded by checking the box labeled "NO." Immediately above Petitioner's signature on the application was the statement "I certify that all statements made in this application are true and complete to the best of my knowledge. " To initiate DJJ's background screening process, Petitioner completed and submitted three documents: a Request for Preliminary FCIC/NCIC and HSMV Screening Check form; a Consent to Background Screening form; and an Affidavit of Good Moral Character form. Pertinent to this case, the Affidavit of Good Moral Character provided: As an applicant for employment as a caretaker with Troy Community Academy, I affirm that I meet the moral character requirements for employment as caretaker, as required by the Florida Statutes and rules, in that: * * * I have not been found guilty, regardless of whether adjudication was imposed or withheld, of any of the offenses listed below, or of any similar offense in another jurisdiction regardless of whether record is sealed or expunged; I have not entered a plea of guilty or nolo contendere (no contest), or had the court enter such a plea, to any of the offenses listed below, or to any similar offense in another jurisdiction regardless of whether the record is sealed or expunged. . . The offenses referenced above are the following sections and chapters of the Florida Statutes: * * * 25. 893 relating to drug abuse prevention and control if the offense was a felony or if any other person involved in the offense was a minor (this includes convictions for possession of controlled substances, the sale of controlled substances, intent to sell controlled substances, trafficking in controlled substances, and possession of drug paraphernalia, etc.) Under the penalty of perjury, I attest that I have read the foregoing carefully and state that my attestation here is true and correct. (signed by Harold Freeman) SIGNATURE OF AFFIANT (Emphasis in original.) The affidavit was sworn to and subscribed before a Notary Public, State of Florida, on July 11, 1996.4 On August 14, 1996, DJJ completed its background screening and concluded that Petitioner was disqualified from working in a position of trust because he had, on May 30, 1990, pled guilty to, and was adjudicated guilty of, possession of cocaine, a third degree felony proscribed by Section 893.13(1)(f), Florida Statutes. As to the circumstances surrounding the criminal incident, the proof demonstrated that on June 13, 1987, Petitioner was observed by a Town of Palm Beach police officer seated in the driver's seat of a car with an expired tag. The officer approached the vehicle and requested Petitioner's driver's license. Petitioner initially denied having his license with him, and identified himself as Harold Foreman.5 He did so at the time because there were several warrants outstanding for driving while his license was suspended, and he did not want to be arrested. Eventually, Petitioner produced a paycheck stub with his name on it, and the police officer requested the desk to run both names in the computer. The officer was subsequently advised that a Palm Beach County warrant for a Harold Freeman was outstanding for violation of parole. While the party named in the warrant would subsequently prove not to be Petitioner, he was placed under arrest. Search of the vehicle incident to the arrest revealed a small plastic baggie containing a white powder residue in the console of the vehicle. Upon analysis at the station, the trace powder tested positive for cocaine. Petitioner remained in jail until July 4, 1987, when he made his first appearance in the County Court, Palm Beach County, Florida. At the time, the presiding judge advised Petitioner that formal charges had not been filed, and he was discharged. Petitioner was, however, advised that the State Attorney's Office might file charges at a later date. The State Attorney's Office did subsequently elect to file charges, and they were docketed in the Circuit Court, Palm Beach County, Florida, under Case No. 87-6302. Notice was mailed to Petitioner at his last known address, but returned undelivered. Indeed, Petitioner no longer resided at the address, and he did not learn that the charges had been filed until May 22, 1990. On May 22, 1990, during a "directive patrol" in Marathon, Florida, a Monroe County Sheriff's deputy ran a computer check on the Petitioner which revealed an outstanding warrant for his arrest based on the charges pending under Case No. 87-6302. Petitioner was arrested, returned to Palm Beach County, and jailed. Petitioner remained in jail until May 30, 1990, when he entered a plea of guilty to violating Section 893.13(1)(f), Florida Statutes, possession of cocaine, a third degree felony. Petitioner was adjudicated guilty, sentenced to a term of 26 days, accorded 26 days' credit for the period he had been incarcerated prior to imposition of sentence, and discharged. Following disqualification, Petitioner filed a request for exemption pursuant to Section 435.07, Florida Statutes, and was accorded an opportunity to submit information relevant to that request to an Exemption Committee of the Department of Juvenile Justice, Office of the Inspector General, on March 28, 1997. Among the information Petitioner chose to submit was a copy of his resume. (Respondent's Exhibit 6.) That resume purported to reflect Petitioner's professional experience and dates of employment; his education, which, according to the resume, included an Associate Degree in Business Administration from Miami Dade Community College; and, his military service in the United States Navy, which, according to the resume, spanned the period from July 1964 to July 1968, and culminated in an honorable discharge with the rank of Radioman First Class (E-6). Following review, the committee recommended to the Inspector General that DJJ approve Petitioner's request for exemption. The Inspector General, Perry Turner, was suspicious of Petitioner's claim to have attained the rank of Radioman First Class within four years of military service and requested a copy of Petitioner's DD214. Petitioner's DD214 confirmed the Inspector General's suspicions, and revealed that upon discharge Petitioner had not attained the rank of Radioman Fist Class (E-6). Rather, Petitioner had only attained the rank of Seaman Second Class (E-2). The DD214 further revealed that Petitioner's military service had only extended from July 7, 1964, to December 4, 1964, a period of less than five months, as opposed to the four years he claimed on his resume. Upon consideration of the matter, and most particularly the false representation regarding criminal convictions on Petitioner's employment application, the false representations on Petitioner's Affidavit of Good Moral Character, and the false representation on Petitioner's resume, the Inspector General was of the opinion that Petitioner had failed to convincingly demonstrate his entitlement to the requested exemption. Consequently, by May 1, 1997, the DJJ notified Petitioner that his request for exemption from employment disqualification had been denied. The notice further advised Petitioner that if he desired to challenge the denial he could request an administrative hearing pursuant to Section 120.57, Florida Statutes. Petitioner requested such a hearing, and these proceedings duly ensued. Consistent with the Inspector General's conclusion, the proof at hearing demonstrated that Petitioner had falsely represented his criminal history on his employment application of February 22, 1996 (Respondent's Exhibit 4), that Petitioner had falsely represented his criminal history on his Affidavit of Good Moral Character (Respondent's Exhibit 5), and that Petitioner had falsely represented his military service on the resume he submitted to DJJ. (Respondent's Exhibit 6.) Additionally, the proof further demonstrated that Petitioner had not completed the coursework required for an Associate Degree in Business Administration, as represented on his resume. Finally, the proof demonstrated that the dates of employment reflected for Petitioner's professional experience are false, having been adjusted by Petitioner to eliminate large and unexplained gaps between employment. Contrasted with the negative impression to be gleaned from the foregoing facts, the proof also provided some positive information. In this regard, the proof demonstrated that following his conviction in 1990, Petitioner completed a drug rehabilitation program, including aftercare, at Camillus House (a homeless shelter), and has been continuously employed since that time at either Camillus House or Troy Academy. Petitioner has also been remarried for 4 years, and his wife is also involved in counseling as an employee of the Switchboard of Miami crisis line. While there are certain accomplishments in Petitioner's life since his conviction which weigh favorably, it must be concluded that the evidence of record demonstrating his recent deception of, and false representations to, his employer and DJJ provide a clearer insight into his character, and provide the more reliable evidence of whether rehabilitation has been shown. Given such proof, it must be concluded that Petitioner has failed to demonstrate, by clear and convincing evidence, that he should not be disqualified from employment or, stated differently, that he is currently rehabilitated and will not pose a danger or risk to the social, emotional, and intellectual development of the juveniles in his charge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner's request for exemption from employment disqualification. DONE AND ENTERED this 5th day of November, 1997, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 5th day of November, 1997.
The Issue The issue is whether Petitioner's request for an exemption from disqualification from employment in a position of special trust should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This case involves a request by Petitioner, Quaralend R. Hudson, for an exemption from disqualification from employment in a position of special trust. If the request is approved, Petitioner would be allowed to return to work as a child care worker. Respondent, Department of Children and Family Services (DCFS), is the state agency charged with the responsibility of approving or denying such requests. In an earlier preliminary decision, a DCFS committee denied the request. Petitioner is now barred from working in a position of special trust because of a disqualifying offense which occurred in North Carolina in 1992. On December 15, 1991, she was arrested for false imprisonment in Sampson County, North Carolina. Upon advice of her court-appointed counsel, on June 2, 1992, she pled guilty to that charge and was sentenced to two years' supervised probation and ordered to pay $445.00 in costs and attorney's fees. Petitioner successfully completed all terms of probation. In explaining the circumstances surrounding her arrest, Petitioner noted that she was a passenger in her boyfriend's automobile when he became involved in an altercation with another person who owed him money. During the altercation, her boyfriend forced the other person into his car. Both Petitioner and her boyfriend were subsequently arrested for false imprisonment. Since her conviction, Petitioner has an unblemished record and a history of steady employment. From 1993 to 1996, she was an assistant manager at a store in North Carolina. She then moved to Tallahassee, Florida, where she worked for approximately 18 months as an assistant manager at a fast food restaurant. In January 1999, Petitioner was employed as a worker at Kids R' It, a child care center in Tallahassee. Although an initial background screening failed to reveal her criminal record, a second check revealed the disqualifying offense, and Petitioner was forced to resign her position in May 1999. Since that time, she has worked with a local telemarketing firm. Petitioner has been married for five years, lives in a stable environment, regularly attends church, and has turned her life around. She enjoys working with children, and there is no evidence that she would pose a danger to children. According to her former employer, Petitioner was an asset to the day care center, a loving, caring employee, dedicated and dependable, and an "exceptional" person. If the request is approved, Petitioner will return to her former job. On March 9, 1999, or after the first background screening had been performed, Petitioner signed an Affidavit of Good Moral Character for her employer. In the affidavit, she swore that she had never been found guilty or entered a plea of guilty or no contest to any of an enumerated list of crimes, including false imprisonment, regardless of whether the records had been sealed or expunged. As noted above, Petitioner had pled guilty to that charge in North Carolina in 1992. At hearing, Petitioner explained that when she signed the affidavit, she was under the mistaken impression that she had pled no contest (rather than guilty), and that this had the effect of expunging the 1992 conviction from her record. Even so, the instructions on the affidavit made clear that her conviction, even if the result of a no contest plea, and later sealed or expunged, must still be disclosed. Therefore, it is assumed that when she executed the affidavit, Petitioner was attempting to conceal the North Carolina conviction. To her credit, however, Petitioner voluntarily disclosed the matter to her employer a short time later. Given the foregoing considerations, it is found that Petitioner poses no threat to children through continued employment at a day care center. However, because she executed a false affidavit less than six months ago, there is less than clear and convincing evidence of rehabilitation since Petitioner's plea of guilty in 1992.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Children and Family Services enter a final order denying Petitioner's request for an exemption from disqualification for employment in a position of special trust. DONE AND ENTERED this 7th day of September, 1999, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 7th day of September, 1999. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 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 Quaralend R. Hudson 7504 Messer Court Tallahassee, Florida 32304 Steven Wallace, Esquire Department of Children and Family Services 2639 North Monroe Street, No. 252-A Tallahassee, Florida 32399-2949
The Issue The issue in this proceeding is whether Petitioner should be granted an exemption from employment disqualification.
Findings Of Fact The Agency for Persons with Disabilities provides services to disabled clients. As part of its responsibilities, the Agency oversees the background screening process of caregivers, as well as any exemptions should a caregiver be disqualified by his or her background. Towards that end, the Agency’s primary concern in considering requests for exemption is the health and safety of the clients served by the Agency. Petitioner applied for an exemption from disqualification pursuant to section 435.07, Florida Statutes (2015). The application included two letters of recommendation regarding Petitioner’s character. Those letters were from people who knew Petitioner in the community or around town, but were neither detailed nor informative about the extent of their knowledge, the length of time the writers had known Petitioner, or any rehabilitation efforts by Petitioner. Additionally, the application for exemption included Petitioner's explanation of the events surrounding her multiple criminal convictions. In her explanation and at hearing, Petitioner admitted her criminal history but attempted to blame the other parties involved in the events that led to the police being summoned. Although she claimed remorse in her application, Petitioner did not appear particularly remorseful about her criminal past. Ms. Lynne Daw received and reviewed Petitioner’s exemption application packet prepared by the Department of Children and Families. The exemption packet contained the application; the requestor’s criminal history; information and questionnaires from the applicant; educational background and references; any documents that the applicant wished to submit on his or her behalf, as well as information that the background screening office had obtained, such as Florida Department of Law Enforcement reports; and other law enforcement documents. Ms. Daw testified to the steps followed and individuals who reviewed Petitioner’s request for an exemption. The evidence showed that the Department complied with its review process and ultimately determined to deny Petitioner’s request for an exemption from disqualification. Petitioner began her criminal activity on January 11, 2009, when at a local bar in Gretna, she engaged in a verbal altercation with her “live-in” boyfriend who was also the father of her son. The altercation caused both to be escorted from the bar, where the affray continued in the parking lot with the police eventually being summoned. During the altercation, Petitioner attempted to pepper spray the boyfriend by reaching around the police officer who was between them with a can of pepper spray in her hand. Petitioner was arrested and entered a plea of nolo contendere to domestic assault, a second-degree misdemeanor, on January 28, 2009. The plea was accepted by the court. Adjudication was withheld and a fine of $200.00 was imposed. From the court records, Petitioner completed the terms of her sentence in 2009 when she paid the fine. Petitioner attributed the altercation to the bad break-up she and her boyfriend were going through at the time or had just gone through. The conviction for domestic violence was the only disqualifying offense in regards to Level 2 background screening. However, around February 15, 2013, Petitioner was intoxicated at a local bar “screaming at the top of her lungs” and threatening to discharge a weapon. The police were again summoned to the bar. Petitioner continued to engage in a verbal altercation with another woman over some past love interest and threw her keys at her. She was arrested, placed in handcuffs, slipped out of them and continued to yell. Ultimately, she was charged with disorderly conduct and resisting an officer without violence. Petitioner entered a plea of nolo contendere to the charge of disorderly conduct. The court accepted the plea, withheld adjudication and imposed a fine. From the court records, Petitioner has made payments on the imposed fine, but has not paid the fine in full and has not completed her sentence. At hearing, Petitioner blamed the incident on the other women and indicated that somehow such behavior was less serious because the people involved all knew each other. More troubling is that Petitioner denied using and/or misusing alcohol in her application for exemption when her record clearly demonstrates that she does use alcohol to the point that it has led to at least one criminal conviction. The evidence showed that Petitioner, who was 35 at the time of hearing, was 32 years of age at the time of her last conviction, three years ago, and 28 at the time of her disqualifying domestic violence conviction, seven years ago. She currently works as a security officer and holds a certificate as a certified nursing assistant. Evidence showed that she has not received any exemptions from disqualification for these professions. Although Petitioner claims that she now only goes home to take care of her three children, the evidence did not demonstrate that she has removed herself from the rowdy drinking and bar life she has lived in the past. In this case, the good character of Petitioner was not attested to by character witnesses, who knew the Petitioner on both a personal and professional level. As indicated, the two reference letters were not helpful on the issue of character or rehabilitation. As noted, the evidence showed that Petitioner’s disqualifying crime occurred seven years ago. However, the evidence was insufficient to demonstrate that, since her conviction, she has rehabilitated herself to the extent she has either controlled her use of alcohol or her anger. To her credit, Petitioner is taking care of her young disabled daughter. But, such evidence covering only a short period of time does not on these facts constitute clear and convincing evidence of rehabilitation. Given these facts, the denial of the exemption is consistent with and supported by the evidence adduced at the hearing. The Department did not abuse its discretion in denying an exemption to Petitioner. As such, the Petitioner’s request for an exemption from disqualification should be denied.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order denying Petitioner an exemption from employment disqualification. DONE AND ENTERED this 31st day of May, 2016, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 31st day of May, 2016. COPIES FURNISHED: Shamika Williams 91 Henry Drive Gretna, Florida 32332 Tracie Hardin, Esquire Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) David De La Paz, Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Richard D. Tritschler, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Barbara Palmer, Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
Findings Of Fact In or about April 1999, Petitioner, Darlene Renfroe, submitted a State of Florida Employment Application to Respondent, Department of Juvenile Justice (Department), for employment as a group treatment leader, a caretaker/direct contact position. Among the information sought on the application was a response to the question "[h]ave you ever been convicted of a felony or a first degree misdemeanor?" Petitioner respondent "yes" to the question and elaborated that she had been convicted of "Possession of Control[led] Substance" in Miami, Florida, on April 1, 1986. Accompanying the application was a copy of the Indictment filed in the United States District Court, Southern District of Florida (Case No. 85-937CR-Scott) which charged that on or about November 23, 1985, at Miami International Airport, Dade County, Florida, Petitioner knowingly and intentionally imported into the United States (Count I), and knowingly and intentionally possessed with intent to distribute (Count II), at least one kilogram of cocaine, a Schedule II narcotic controlled substance, in violation of Title 21, United States Code, Sections 952(a) and 960(a)(1), as to Count I, and Title 21, United State Code, Section 841(a)(1), as to Count II. The application was also accompanied by a three-page handwritten letter signed by Petitioner which offered her explanation of the events leading to her conviction. The position for which Petitioner applied, group treatment leader, is a position of special trust which requires, as a condition of employment, a successful background screening process to exclude the possibility that Petitioner was ever found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to certain enumerated disqualifying offenses under Florida law or similar offenses in another jurisdiction. If the screening process reveals a disqualifying offense, the applicant is not qualified for employment unless a request for exemption (pursuant to Section 435.07, Florida Statutes) is approved. Notably, among the disqualifying offenses is a violation of "Chapter 893 relating to drug abuse prevention and control if the offense was a felony . . . (. . . includ[ing] charges of possession of controlled substances, the sale of controlled substances, intent to sell controlled substances, trafficking in controlled substances, and possession of drug paraphernalia, etc.)," an offense for which Petitioner (as disclosed by her application) had been convicted. To complete the Department's background screening, Petitioner also completed and submitted three additional documents: a Request for Preliminary FCIC/NCIC and DHSMV Screening Check form; a Consent to Background Screening form; and an Affidavit of Good Moral Character.1 On May 27, 1999, the Department completed its background screening process. That process revealed (consistent with Petitioner's disclosure) that on April 1, 1986, Petitioner pled guilty to and was adjudicated guilty of the offense of "knowingly and intentionally import[ing] into the United States from a place outside thereof, a Schedule II controlled narcotic substance, that is a quantity of cocaine, at least one kilogram, in violation of Title 21, United States Code, Sections 952(a) and 960(a)(1), as charged in Count I of the Indictment. Count II of the Indictment was dismissed upon motion of the United States attorney. As a penalty for such offense, Petitioner was committed to the custody of the Attorney General or his authorized representative for imprisonment for a period of three years and six months. Petitioner served a two-year term of confinement at Women's Federal Correctional Institute, Lexington, Kentucky (released April 1, 1988), followed by a six- month term at a half-way house and then was discharged. Upon completion of its background screening, the Department concluded that (based on her conviction for importation of cocaine) Petitioner was disqualified from working in a position of trust; however, by letter of June 7, 1999, the Department accorded Petitioner an opportunity to request an exemption pursuant to Section 435.07, Florida Statutes. That letter reasonably advised Petitioner of her obligation to demonstrate by clear and convincing evidence that she had been rehabilitated and that she would not present a danger if accorded employment in a position of special trust. Among the items requested for Department review (in passing on a request for exemption) were the following:2 A detailed, written and notarized description of the circumstances leading up to and surrounding the disqualifying criminal offense. The time period which has elapsed since the offense. Whether there was any harm caused to victims and the nature of that harm. Your personal history since the offense (work, education, civic, religious history, etc.). And, such other circumstances as shall be sufficient to indicate that you will not present a danger to the safety or well-being of juveniles. A statement as to whether you have been involved in any other criminal offenses either prior or subsequent to the commission of the disqualifying offense. * * * Letters of support/recommendation from others indicating that you are of good moral character. If you were placed on probation/community control, certified documentation of successful completion of probation/community control. A statement as to what you believe you have to offer to juveniles and why you want to work with the Department of Juvenile Justice or a Provider Facility. Petitioner duly requested an exemption from disqualification and submitted the requested documentation to the Department. Upon review, Petitioner's request for exemption was denied. The Department's expressed rationale was stated in its Inspector General's letter of August 1, 1999, as follows: In order to reach a decision on your request, I have reviewed your criminal history and the supporting documentation you submitted. Based upon a careful review of all documentation, compelling evidence does not exist which would lead me to grant you an exemption. Therefore, your request is denied. As a criminal justice agency, this department has to exercise great care and caution in selecting those persons who are allowed to work with the juveniles entrusted to our care and custody. The letter further advised Petitioner of her right to request an administrative hearing pursuant to Section 120.57, Florida Statutes, to challenge the denial of her request for exemption. Petitioner filed a timely request for such a hearing and these proceedings duly-followed. Consistent with the Inspector General's conclusion that Petitioner had failed to convincingly demonstrate her entitlement to the requested exemption, the proof at hearing demonstrated that the crime to which Petitioner pled guilty and for which she was convicted ("knowingly and intentionally importing . . . a Schedule II controlled substance, that is a quantity of cocaine, at least one kilogram") gravely violated moral sentiment or accepted moral standards of the community, such that it could reasonably be said that Petitioner committed a crime of gravity involving moral turpitude.3 It may also be said, consistent with the Inspector General's observation, that Petitioner's explanation of the circumstances surrounding the criminal incident (as set forth in her letter of May 25, 1999, contained in Respondent's Exhibit number 1) appears, at best, fanciful. Finally, given the nature of the offense and Petitioner's age at the time (28 years), her conduct can hardly be characterized as youthful intemperance. Contrasted with the negative impression to be gleaned from the foregoing facts, the proof also provided some positive information. In this regard, the proof demonstrated that Petitioner successfully completed (with apparent good behavior) her term of incarceration; that she committed no other transgression; and that she has been continuously employed since her release (most recently by the State of Florida, Landmark Learning Center, as a behavior program associate, assisting and training mentally retarded children). Moreover, since January 1997, Petitioner has been licensed by the State of Florida, Department of Children and Family Services, to operate a foster home and currently has four children (two boys and two girls) under her care. Finally, among those who know her, Petitioner is considered truly remorseful for her misconduct, is believed to present a good role model for the youths she services, and is considered a reliable and trustworthy member of her community. While there are certainly accomplishments in Petitioner's life since her conviction which weigh favorably, it must be concluded (as urged by the Department) that the gravity of her offense, as well as her lack of candor regarding the circumstances surrounding the criminal incident, do not permit a conclusion to be drawn, with the requisite degree of certainty, that Petitioner stands rehabilitated. Stated differently, it must be concluded that Petitioner has failed to demonstrate, by clear and convincing evidence, that she is currently rehabilitated and will not pose a danger or risk (if allowed employment) to the social, emotional, and intellectual development of the juveniles in her charge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner's request for exemption from employment disqualification. DONE AND ENTERED this 14th day of January, 2000, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 14th day of January, 2000.
