The Issue The issue is whether Petitioner is entitled to an exemption from disqualification for employment with Respondent due to Petitioner's plea of guilty to three felony counts of credit card fraud, one felony count of theft, and one misdemeanor count of theft.
Findings Of Fact Petitioner was born on July 21, 1967. He was raised in Miami, where he earned his high school diploma in 1985. Petitioner's first employment after high school was as a child care worker. He was initially employed at the Elaine Gordon Treatment Center, for four years, and then the Southeast Florida State Hospital, for a year and a half. For the next three years, Petitioner worked as a senior patient clinical assistant at a facility operated by the University of Miami; in this job, Petitioner worked with adolescent sex offenders. His last job in the Miami area was as a supervisor at the Village for Behavioral Change, where Petitioner worked as a supervisor at a halfway house for delinquent youth; after a short time at this job, Petitioner decided to move to Tampa. Petitioner's first job in Tampa was as a counselor of adolescents at Tampa Crossroads, which provides alcohol and drug treatment. After a year at Tampa Crossroads, Petitioner became employed by the Pinellas Regional Juvenile Detention Center as a Detention Care Worker I. While working for Tampa Crossroads, Petitioner lived with his cousin and her brother. His cousin was employed by a company that distributed and collected credit cards. A few months after arriving in Tampa, Petitioner and his cousin developed a scheme to make fraudulent use of credit cards with which the cousin came into possession through her employment. For example, Petitioner and his cousin used the credit card of a recently deceased person, whose survivors had returned the card to the cousin's company. This seems to have been the full extent of the scheme; evidently, neither Petitioner nor his cousin gave much thought to escaping detection. Through the fraudulent use of credit cards supplied by his cousin, Petitioner bought furniture, car repairs and accessories, gasoline, meals, and home electronic equipment. Fraudulently charging as much as $17,000, Petitioner and his cousin were arrested after a couple of months. Petitioner expresses remorse for his actions. Without trying to avoid responsibility for his criminal behavior, Petitioner suggests that he was in a difficult period of his life because his first marriage had just failed and this was his first time away from Miami. But basically he admits he engaged in the fraud because he wanted things. In September 1995, a law enforcement officer employed by the Tampa Police Department filed an affidavit charging Petitioner as follows: two felony counts of "forgery," in violation of Section 831.01, Florida Statutes; two felony counts of "fraudulent use of credit card," in violation of Section 817.61(1), Florida Statutes; one felony count of "possession of two or more/dealing in credit cards," in violation of Section 817.60(6B)[sic], Florida Statutes; one felony count of "grand theft," in violation of Section 812.014, Florida Statutes; and one misdemeanor count of "petit theft," in violation of Section 812.014, Florida Statutes. Following his arrest on October 3, 1995, Petitioner pleaded guilty to two felony counts of "fraudulent use of a credit card," one felony count of "dealing credit cards of another," one felony count of "grand theft third degree," and one misdemeanor count of "petit theft." By Order of Probation entered February 29, 1996, the court withheld adjudication of guilt and placed Petitioner on probation for eight years: five years for the first three counts and three years, to run consecutively, for the fourth count. (The probation for the fifth count ran concurrently with the probation for the other counts.) The Order of Probation also ordered Petitioner to pay restitution in the total amount of $17,896.32 and court costs of $200, as well as perform 200 hours of community service. Evidently by separate order, the court required Petitioner to pay the restitution monthly in payments of $200. Thus, assuming no interest, Petitioner must pay restitution over 90 months, which means that he would complete restitution prior to the termination of probation, which is due to terminate February 28, 2004. Petitioner earns $25,000 annually from a janitorial service that he operates. Out of takehome pay of $661 every two weeks, Petitioner pays monthly child support of $260, monthly rent of $400, and monthly debt payments of $100. Petitioner owns no assets, except for a unliened 1996 Kia Sophia, which he bought, in damaged condition, for $1000. Petitioner has paid $162.50 every two weeks, so as to shorten the period required to pay the restitution. He also returned to the stores the stolen merchandise still in his possession. On October 2, 1996, Petitioner completed a State of Florida employment application and submitted it to Respondent for possible employment at Respondent's Pinellas Regional Juvenile Detention Center (JDC). In response to a written question asking if the applicant has ever pleaded no contest or guilty to a crime that is a felony or first-degree misdemeanor, Petitioner checked the box marked yes and explained: "I used a credit card belonging to another" in Tampa. In response to a written question asking if the applicant has ever had adjudication withheld to a crime that is a felony or first-degree misdemeanor, Petitioner checked the box marked yes and noted: "same as above." Respondent conducted the standard criminal screenings of job applicants, and nothing was uncovered, perhaps due to the fact that the offenses were relatively recent. Respondent offered Petitioner an Other Personnel Services (OPS) position, essentially as a detention care worker responsible for maintaining order in the JDC. Petitioner began working in November 1996. When a career service Detention Care Worker I position became available, Petitioner decided to seek the position, which imposed the same requirements as the job he was performing, but offered better benefits. Petitioner completed another State of Florida employment application, dated November 2, 1997, and submitted it to Respondent. He answered the above-cited questions in the identical way as he did 13 months earlier. This time, Petitioner also submitted a signed affidavit of good moral character. He indicated that he was not guilty of any of 30 cited statutory offenses, including "812 relating to theft, robbery and related crimes, if the offense was a felony." Performing another criminal screening, Respondent received information concerning the above-described arrests and probation. By letter dated February 18, 1999, Respondent informed Petitioner that he was no longer eligible for employment in a position of special trust or responsibility, such as his current position with Respondent. He was therefore to be terminated from his position immediately. Petitioner sought an exemption from disqualification. A committee of Respondent's employees at the JDC conducted a hearing and entered a recommendation on April 26, 1999, that Respondent grant an exemption. In part, the recommendation reasoned: [Petitioner] has been honest and forthright about his record since his first point of contact with our agency. . . . His record with us is unblemished and is highly recommended by his peers and his supervisors. [Respondent] has complied with his probation order up to this point. He has completed 200 service hours and has not missed a restitution payment. He is working two jobs in order to pay back the restitution sooner. . . . The delay between the adverse criminal screening and the letter terminating Petitioner's employment is partly attributed to a series of disqualification waivers that Petitioner received from Respondent's JDC employees. These waivers appear to have been for nonwaivable offenses and, except for their small value as evidence of Petitioner's value as an employee of Respondent at the JDC, they are not relevant and, in particular, do not establish an exemption by estoppel. In any event, Respondent's Inspector General overturned the recommendation and denied the request for an exemption. Any delay in the issuance of his ruling was immaterial and, again, does not provide the basis for some form of exemption by estoppel or default. However, the fact remains that Petitioner was a model employee at the JDC. He worked effectively with the juveniles incarcerated at the JDC and with his coworkers and supervisors. He was conscientious, dependable, loyal, competent, and professional in all of his dealings and even voluntarily assisted a coworker with her troubled son. When dealing with the juveniles, he always insisted upon compliance with the rules, but, whenever possible, exhibited kind-heartedness. While working at the JDC, Petitioner earned the trust and respect of all of those around him and never displayed bad moral character. The evidence provided by Petitioner's coworkers, supervisors, and friends also tend to establish his rehabilitation. Petitioner's probation officer testified that Petitioner is very compliant and cooperative. At the time of the hearing, he had completed all of his community service except for 1.5 hours, which may have arisen due to an accounting error. Petitioner has maintained fulltime employment and passed all drug screens, as required by the conditions of his probation. He has renewed his religious practices and is now active at his church. At the time of the hearing, Petitioner still owed $13,005.15 in restitution. Except for the fact that restitution is not complete, the probation officer testified that she would recommend termination of probation; she explained that she cannot recommend termination of probation as long as any conditions remain outstanding. Respondent's primary contention in support of denying the request for probation is that Petitioner has not completed his probation. Respondent argues that the completion of probation is a necessary precondition to rehabilitation. In determining whether a person seeking an exemption has completed rehabilitation, it is important to assess the extent of his compliance with the conditions of his probation. Obviously, the successful completion of probation is evidence of rehabilitation, and, if supported by the other evidence, the successful completion of probation may be an important factor in determining that a person has rehabilitated himself. On the other hand, the failure to complete probation does not necessarily preclude a determination of rehabilitation. All of the circumstances must be considered in determining whether a person has rehabilitated himself. The failing in predicating the rehabilitation determination on the successful completion of probation is revealed in comparing Petitioner's case with a hypothetical case of another detention care worker, who, but for three facts, is identically situated with Petitioner. The first distinguishing fact is that, after reducing the restitution to $13,000, the hypothetical detention care worker wins the lottery or receives a large inheritance. The second distinguishing fact is that, after receiving the proceeds, the hypothetical detention care worker pays off the remainder of his restitution. The third distinguishing fact is that his probation is then terminated. In the absent of statutory or regulatory authority, the rehabilitation determination cannot be governed by the continuation of probation, when probation likely has not been terminated due merely to the ongoing liability for restitution, without introducing an arbitrary element into the rehabilitation determination. In the present case, Petitioner is working two jobs and is shortening the period of repayment as much as he can; this is exactly what would be expected of the hypothetical detention care worker who enjoys a windfall, and this is all that we can expect, given other evidence of rehabilitation, of Petitioner. More generally, the record does not offer much detail as to the identity of the victims or the extent of the injury caused, except that it was obviously about $17,000. The circumstances surrounding the crimes are not particularly telling. Charging a camcorder and auto accessories does not conjure images of Jean Valjean stealing a loaf of bread to eat. On the other hand, five years have passed since the crimes, and, during that time, Petitioner has conducted himself in an exemplary fashion. Unusual in exemption cases is the fact that Petitioner has had an opportunity to demonstrate, following disqualifying crimes, his good moral character while performing the work for which he now seeks the exemption. Candidly disclosing his crimes, Petitioner, due to the failure of Respondent's personnel to follow up on the disclosures in the application and the failure of the criminal screening process, was able to obtain employment as a detention care worker. Later, seeking to gain the benefits of a career service position, Petitioner again disclosed his criminal background. Although it is true that he should have disclosed the grand theft on the affidavit filed at this time, his failure to do so is not indicative of an attempt to conceal. He had, again, revealed the credit card crimes on the application that he was filing for this career service position, as he had revealed the credit card crimes on his first application. It is illogical that he would try to conceal one count of grand theft while disclosing three counts of credit card fraud. More likely, as revealed by the two applications, he had reduced in his mind the various crimes to their most salient characteristic: credit card theft. His failure to detect the specific language in the affidavit requiring disclosure of the felony theft offense is reflective of Petitioner's linguistic skill, not his honesty. Petitioner has proved by clear and convincing evidence that he has rehabilitated himself and is of good moral character to justify the issuance of the exemption.
Recommendation It is RECOMMENDED that the Department of Juvenile Justice enter a final order granting Petitioner an exemption from disqualification in employment. DONE AND ENTERED this 25th day of August, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 2000. COPIES FURNISHED: William G. Bankhead, Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Manny Anon, Jr., Deputy General Counsel AFSCME Florida Council 79 99 Northwest 183rd Street, Suite 224 North Miami, Florida 33169 Lynne T. Winston, Attorney Chief of Investigations Office of Inspector General 2737 Centerview Drive, Suite 300 Tallahassee, Florida 32399-3100
The Issue Whether the Agency for Persons with Disabilities’ (Agency’s) intended action to deny Petitioner’s application for exemption from disqualification from employment is an abuse of the Agency’s discretion.
Findings Of Fact Background Petitioner is a 29-year-old male who lives in Leesburg, Florida, with his wife, Jasmine Hall. Petitioner has four daughters whom he is actively engaged in parenting.2/ Petitioner is employed by a bail bond agency owned by his father-in-law. Petitioner is pursuing his bachelor’s degree in organizational management at Lake Sumter State College and anticipates graduating Spring 2017. Petitioner is the second oldest of five children raised by their mother, not knowing their fathers. Petitioner described his childhood as difficult, being raised without a male role model and in a rough area of town where violent crime was prevalent. Petitioner explained that he was studious, made good grades, and worked odd jobs throughout his childhood and young adulthood to help support the family. Despite his work ethic and good grades, he did make some poor decisions and fell in with the wrong crowd. Petitioner was exposed to violent acts in his community. In one incident, Petitioner witnessed his best friend being shot in the head at a nightclub. Petitioner has overcome many of the hardships he encountered in his childhood and desires to improve the future for himself and his children, provide for his family with a steady full-time job, and be financially secure, rather than living paycheck-to-paycheck as his mother did. The Disqualifying Offense On April 24, 2011, following a visitation with his two children at the time, Petitioner returned the children to their mother’s home. The details of the disqualifying offense are in dispute, but the record supports the following findings. Petitioner and the children’s mother became involved in a verbal altercation, during which Petitioner threw a can of soda at her. The record did not clearly establish that the soda can struck the children’s mother, but did establish that soda was splashed on her. After throwing the soda, Petitioner entered his vehicle with the intention to leave. The children’s mother followed him and hit the driver’s side window of Petitioner’s vehicle, causing the driver’s door to close before Petitioner’s hand was completely inside the vehicle. This angered Petitioner, who then exited the vehicle. The victim ran away from Petitioner, who proceeded to the victim’s vehicle and kicked the side of her vehicle leaving a dent in the vehicle. Petitioner then left the scene. Petitioner’s children, who were inside their mother’s home, did not witness the incident. According to the police report of the incident, the victim had no physical marking on her body, but her shirt was wet at the shoulder consistent with being hit with a soda can. On May 11, 2011, Petitioner pled nolo contendere to one count of domestic battery and one count of criminal mischief in an amount of $200 or less. Adjudication was withheld and Petitioner was ordered to serve 12 months’ probation, which terms required him to make restitution for the property damage, attend a batterer’s intervention course, maintain no contact with the victim, and incur no new law violations. Petitioner was granted early termination of probation on November 7, 2011, having complied with all terms of the probation. Subsequent Criminal History Petitioner has had no criminal history subsequent to the disqualifying offense. Petitioner has been cited for a number of traffic infractions since the incident: three for speeding, one for running a stop sign, and one for driving without a seatbelt.3/ Petitioner was also cited for driving without a license in May 2014. Petitioner’s license was in effect, but he failed to have it on his person at the time of the traffic stop. Petitioner has disposed of all his traffic infractions. Subsequent Employment History Petitioner has been continuously employed since the disqualifying offense, mostly as a laborer. He has unloaded trucks and tracked inventory for Target, cleaned the plant and maintained machines for American Cement Company, and worked as a day laborer for Labor Ready. Petitioner began working for Angle Truss in June 2015 in truss fabrication. Angle Truss is owned by Petitioner’s father-in-law, Pernell Mitchell. Mr. Mitchell testified on Petitioner’s behalf. Mr. Mitchell was, until recently, a law enforcement officer with the Leesburg Police Department, and served as school resource officer and D.A.R.E. instructor at Petitioner’s elementary school.4/ Mr. Mitchell has known Petitioner since Petitioner was in the fifth grade. Mr. Mitchell has chosen to personally mentor Petitioner, and has had significant interactions with him over the past seven or more years. Mr. Mitchell owns a bail bonding agency. As of the date of the hearing, Petitioner was employed at Mr. Mitchell’s bail bond agency. Mr. Mitchell finds Petitioner trustworthy enough to leave him in charge of the agency when Mr. Mitchell is out of town. Mr. Mitchell also owns Wings of Love, a group home and Medicaid Waiver provider in Leesburg, Florida. Mr. Mitchell hosts his group home clients at his personal residence for a family dinner once each week. Petitioner and his family attend the dinners, along with the clients’ families. Petitioner interacts with the clients during dinner, and often plays basketball or other games with them following dinner. Mr. Mitchell describes Petitioner as caring, patient, and compassionate with the clients. He has observed that the clients gravitate toward him because he treats them with respect. Subsequent Education and Personal History Petitioner has attained significant educational goals and taken on many new responsibilities since the 2011 incident. In 2012, Petitioner joined Citadel of Hope, a church in Leesburg. The following year, Petitioner joined the church’s security team, volunteering to guard doorways and patrol the parking lot during services. In 2014, Petitioner joined the church’s outreach ministry, which raises funds to support missionaries abroad and to provide food and toiletries for the local community in need. Petitioner completed an Associate in Arts degree from Lake Sumter State College in May 2014, and an Associate in Science degree (Criminal Justice Technology) from the college in August 2015. Petitioner continues to pursue his education, and anticipates completing his Bachelor’s degree in organizational management in the spring of 2017. Petitioner has continuously maintained his employment while in school. James Cason, a librarian at the college, submitted a character reference letter for Petitioner’s exemption application. Mr. Cason became familiar with Petitioner through Petitioner’s use of the library during 2014 and 2015. In the letter, Mr. Cason described Petitioner as determined and having a positive attitude. Mr. Cason was impressed with Petitioner’s character, his dependability, and his ability to manage his school and work schedules. In 2014, Petitioner voluntarily took a parenting class. After pursuing premarital counseling, Petitioner married his wife, Jasmine Hall, in June 2015. Together, Petitioner and his wife, along with the birth mother, are raising his four children. Petitioner’s Exemption Request On his exemption questionnaire, Petitioner described the events of the disqualifying offense as follows: On 4/24/11, the mother of my kids and I had a verbal disagreement as I attempted to return my children home after my weekend visitation. She became irate [and] slammed the car door on my wrist. At that point, I threw the remainder of my soda on her. Although it was wrong at the time I thought it was better than physically retaliating and striking her. I also put a small dent in her vehicle before I left. I was subsequently arrested 15 minutes later. Petitioner indicated that there were no stressors in his life at the time of the incident, but that he “was just a little upset about having [his] wrist shut in [his] car door.” Michael Sauvé is the Agency’s deputy regional operations manager for the central region. Mr. Sauvé reviewed Petitioner’s exemption request and made the recommendation to the director to deny the request. According to Mr. Sauvé, he recommended denial of Petitioner’s exemption request because, in his application, Petitioner was not forthcoming with the details of the offense, minimized the offense, shifted blame to the victim, and did not genuinely express remorse. Further, due to the number of moving violations for which Petitioner has been cited since the disqualifying offense, Mr. Sauvé doubts Petitioner’s ability to safely transport clients. Mr. Sauvé questioned the veracity of Petitioner’s account of the disqualifying offense, particularly with Petitioner’s claim that he sustained an injury to his wrist during the altercation. He speculated that Petitioner fabricated the injury “after the fact” to justify his actions on the day in question. In support of this opinion, Mr. Sauvé twice pointed to the fact that the police report contains no documentation of Petitioner’s injury. He testified that “[i]f there was something in the police report that talked about the wrist, if there was something in any of the other documents that we saw that mentioned this injury to his wrist, I would feel a lot differently than I do today.”5/ Petitioner testified that he did report his injury to the arresting officer, who did not include it in the report. Petitioner also credibly described, in some detail, how the injury to his wrist occurred during the altercation with the victim. The evidence does not support a finding that Petitioner fabricated the injury. Next, in Mr. Sauvé’s opinion, Petitioner’s response that he “put a small dent in her vehicle” was an attempt to minimize the damage he caused to the victim’s vehicle. Mr. Sauvé explained, “The criminal records show that it--the criminal mischief charge was $500 in property damage. I don’t know very much about cars, but that seems like it might be more than a small dent.” While the arresting officer estimated the damage to the vehicle at $500, Petitioner was actually charged with criminal mischief in the amount of $200 or less. No automobile repair expert is needed to establish that a small dent may very well cost at least $200 to repair. Mr. Sauvé’s conclusion, that Petitioner’s response was an attempt to minimize the damage, is inconsistent with Petitioner’s response to question four, in which he acknowledged causing approximately $500 in property damage to the victim’s car. It is illogical to conclude that Petitioner was attempting to minimize damage to the vehicle in his answer to question one, when three questions later, Petitioner disclosed the exact amount of vehicle damage reported on the arrest affidavit. Mr. Sauvé was particularly troubled by Petitioner’s answer to question number four, which required the applicant to explain the “[d]egree of harm to victim or property (permanent or temporary), damage or injuries[.]” In response to that question, Petitioner wrote, “There was no harm to the victim. There was approximately $500 worth of property damage to the victims [sic] car that I made restitution for.” Mr. Sauvé questioned Petitioner’s conclusion that there was no harm to the victim. He explained, as follows: If I give him the benefit of the doubt by his statements and I go back to his account that’s set forth on page 27, question 1, it-- it doesn’t sound to me like there was no harm that the [mother of his children] encountered. She--he took a soda and threw it at her. When you throw something at someone and physically injure them, whether or not it’s something that just leaves a bruise or anything, that’s scary.6/ Apparently, Mr. Sauvé would have liked Petitioner to state, in answer to this question, that Petitioner scared the victim. The victim may have indeed been fearful, but the question does not ask the applicant to speculate as to the victim’s state of mind at the time of the incident. The question is phrased to elicit factual information from the applicant. Petitioner’s statement that the victim suffered no physical harm is both factual and supported by the police officer’s observation at the scene that the victim had no physical markings on her.7/ Mr. Sauvé’s recommendation to deny the exemption request was further influenced by his belief that the children witnessed the altercation between their parents. He testified as follows: It’s especially scary when the children that he just finished his visitation with were potentially within earshot. The statements in the police report indicate that the children were--they had just went [sic] inside the house. So if they’re outside--in my mind, was trying to envision the circumstances. And in my mind, I saw them outside, the children inside. I don’t know if they heard. I don’t know what happened.8/ The only evidence on this issue is the arresting officer’s statement, as advised by the children’s mother, that the children went inside the house before the altercation took place. There is no evidence to support a finding that the children either witnessed or overheard the altercation between their parents. Mr. Sauvé’s speculation, or his “envision[ing of] the circumstances,” is irrelevant. The factual circumstances surrounding the incident are relevant, not what Mr. Sauvé saw in his mind. Finally, in Mr. Sauvé’s opinion, Petitioner’s answers on the questionnaire do not express remorse for the disqualifying offense. In particular, Mr. Sauvé pointed to the following two statements made by Petitioner on the questionnaire: (1) “Although it was wrong at the time I thought it was better than physically retaliating and striking her”; and (2) “I regret that I reacted during the situation as opposed to calling the police and filing a report for the physical pain that I endured.” In Mr. Sauvé’s opinion, the first statement was “peculiar and off putting” and he was concerned that five years after the incident, Petitioner would remark (in Mr. Sauvé’s words), “well, I didn’t hit her.” On the one hand, Petitioner’s statement does appear to minimize the offense. However, it cannot be overlooked that, on the continuum of battery offenses, throwing soda at a person (with a force such that it leaves absolutely no physical mark) is on the lower, or minimal, end of the scale. On the other hand, the first statement documents Petitioner’s awareness that he had other choices available to him during the incident, and that, even during the heat of the moment, Petitioner exercised some degree of restraint. Throwing the soda was indeed a better choice than hitting the mother of his children. The second statement is indeed concerning. It is flippant and may be interpreted to shift blame to the victim. It is understandable how Mr. Sauvé could have been persuaded, based solely on these two statements, that Petitioner was not sincerely remorseful for his offense. Fortunately, the undersigned had an advantage not afforded the Agency--live testimony from the Petitioner in connection with his application. Final Hearing At the final hearing, Petitioner exhibited none of the flippant attitude that might be gleaned from the two statements discussed above. Petitioner took responsibility for his actions and admitted that he knew it was wrong to throw the soda on the victim. In fact, Petitioner testified that he never should have let the incident escalate and he should have avoided reacting at all. Petitioner presented as a soft-spoken, intelligent, and earnest individual, whose concern for both his family and the developmentally-disabled community was profound and genuine. His testimony underlined his motivation to improve his circumstances, attain meaningful employment, and provide a better quality of life for his family. Petitioner was justifiably proud of the educational achievements he has attained since the offense. His dedication to school was equaled by his dedication to the church and the ministries with which he has chosen to volunteer. While the Agency did consider a character reference letter from Mr. Mitchell, which was included in Petitioner’s application, the Agency did not have the benefit of Mr. Mitchell’s live testimony. The letter did not cover the extent of the relationship between Mr. Mitchell and the Petitioner, nor Mr. Mitchell’s dedication to mentoring Petitioner over the last several years. Mr. Mitchell’s testimony was both credible and compelling. He exhibited a deep understanding of the negative social circumstances Petitioner has overcome, and wisdom regarding the excellent role model Petitioner could serve for young black men and boys. The fact that Mr. Mitchell has been, since June 2015, Petitioner’s father-in-law, does not diminish the credibility of his testimony. To the contrary, the fact that Petitioner has so recently married into Mr. Mitchell’s family is strong evidence of the trust and confidence that has been earned by Petitioner. Moreover, Mr. Mitchell is Petitioner’s current employer, a fact not evident from his character reference letter. As an employer, Mr. Mitchell has been in a position to observe Petitioner’s ability to cope with stressful situations in a business setting. Mr. Mitchell’s account of Petitioner’s interaction with current clients at Wings of Love was also unavailable to the Agency during formulation of its intended decision to deny. This testimony was compelling as it underscores Petitioner’s compassion toward persons with developmental disabilities, and his demonstrated ability to deal with them respectfully. In addition, Petitioner introduced in evidence three letters of reference which were not included with his application. The most significant of the letters was submitted by Tanya Harris-Rocker. Ms. Harris-Rocker was one of Petitioner’s college instructors with whom he remains in contact. She described Petitioner as both diligent and personable. Ms. Harris-Rocker observed that Petitioner meets deadlines, submits quality work, and puts in many hours toward his studies. She highlighted Petitioner as an independent thinker and praised him for his ability to separate himself from his peers who have chosen less productive paths. Ms. Harris-Rocker attested to Petitioner’s goals of attaining educational achievements and providing an exemplary role model for his children. Despite the isolated incident occurring more than five years ago, Petitioner has a cordial relationship with the mother of his children and they work cooperatively to raise their children in a positive environment. Petitioner is determined to give his children the stability and support of two loving, devoted parents, an advantage he was denied. The record is devoid of evidence that Petitioner would pose a threat to residents of a group home for the developmentally disabled.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order by the Agency for Persons with Disabilities be entered granting Petitioner’s request for an exemption from disqualification. DONE AND ENTERED this 20th day of September, 2016, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 20th day of September, 2016.
The Issue The issue for determination is whether Petitioner's application for licensure as a real estate sales associate should be granted.
Findings Of Fact On or about February 9, 2005, Ms. Gonzalez made application (Application) to the Division of Real Estate for a real estate sales associate license. At the time of the application, she was 50 years of age and was 51 years of age at the time of hearing. The Application contains a "Background Information" section, which poses several questions. Question 1 provides in pertinent part: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest) to, even if you received a withhold of adjudication? This question applies to any violation of the laws of any municipality, county, state or nation, including felony, misdemeanor and traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, were paroled, or pardoned. . . . Ms. Gonzalez responded yes to Question 1. She disclosed that, in 1992, she was charged with credit card fraud in another state and the disposition was a fine; that on January 22, 1993, she was charged with conspiracy to distribute cocaine and failure to appear, and the disposition was 108 months in prison for the conspiracy and 21 months for the failure to appear to run consecutively with the 108-month sentence; and that on July 20, 1994, she was charged with conspiracy to distribute cocaine and the disposition was 121 months in prison, with this charge and the former charge running concurrently. Ms. Gonzalez does not know if the credit card fraud was a felony but admits that the other two crimes were felonies. Ms. Gonzalez admits that she pled guilty to her crimes and accepts full responsibility for her actions. At hearing, Ms. Gonzalez testified that her troubles began in 1993 when her husband was involved in a tragic car accident, which left him in a vegetative state. She experienced financial difficulty and suffered emotionally, resulting in her making poor decisions. Furthermore, Ms. Gonzalez disclosed that she served a total of eight years and two months in prison for the conspiracy charge of July 20, 1994. No disciplinary actions were taken against her during her time in prison, and she took courses to improve herself. Ms. Gonzalez was released from federal prison in April 2004. She is currently on supervised released for the conspiracy charge of January 22, 1993, and has three years remaining on her supervised probation. Her probation officer is aware of her application for licensure as a real estate sales associate and supports her licensure. As a term of her probation, Ms. Gonzalez is required to perform community service hours, which she does by working with handicapped children. She finds working with the children rewarding and intends to continue working with them when her community service hours have been completed. Ms. Gonzalez is currently working in the mortgage business as a mortgage loan processor and has been for the past two years. She is in a position of trust and interacts with the public on a daily basis.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional, Division of Real Estate enter a final order denying the application of Lilia A. Gonzalez for licensure as a real estate sales associate. DONE AND ENTERED this 6th day of July, 2006, in Tallahassee, Leon County, Florida. S ERROL H. POWELL 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 6th day of July, 2006. COPIES FURNISHED: Daniel Villazon, Esquire Daniel Villazon, P.A. 1020 Verona Street Kissimmee, Florida 34741 Thomas Barnhart, Esquire Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 Monroe Street Tallahassee, Florida 32399-0792 Michael E. Murphy, Director Division of Real Estate 400 West Robinson Street Suite 802, North Orlando, Florida 32801
The Issue The issue is whether Respondent committed the offenses alleged by the Administrative Complaint, and, if she did, the penalty that should be imposed.
Findings Of Fact Petitioner is a regulatory agency of the State of Florida charged with the responsibility of investigating and prosecuting complaints against real estate professionals, including licensed real estate salesmen. At all times pertinent to this case, Respondent, America Canizales, was licensed by Petitioner as a real estate salesman. At the time of the hearing, however, Respondent's license was on inactive status. Respondent was the real estate salesman who represented Elvira Martinez when Ms. Martinez bought her apartment in the middle of 1987. As a result of her professional dealings with Ms. Martinez, Respondent learned that Ms. Martinez was interested in investing in real estate. On December 4, 1987, Respondent persuaded Ms. Martinez to enter into a real estate transaction with her. Respondent intended to purchase a house for the sum of $34,000, but she did not have the funds necessary to close the transaction. Respondent needed an additional $5,000 to apply toward the purchase price and to pay the costs of closing. The house was to be purchased by Respondent in her individual capacity in a transaction that was independent of her status as a real estate salesman. The agreement executed by Respondent and Ms. Martinez on December 4, 1987, provided for Ms. Martinez to give to Respondent the sum of $5,000. In exchange for this money, Respondent agreed that she would convey to Ms. Martinez one-half interest in the $34,000 house after she had acquired title to the property. In the event the transaction did net close and Respondent did not obtain title to the house, Respondent was to return to Ms. Martinez the sum of $5,000 without the payment of interest. Between December 4, 1987, and December 8, 1987, Ms. Martinez gave to Respondent a check made payable to America Canizales in the amount of $5,000. This check, dated December 9, 1987, was to be held in trust by Respondent until the closing on the purchase of the $34,000 house. At no time did Respondent deposit the check in a bank account. There was no evidence that Respondent took any action to safeguard Ms. Martinez's check or the funds represented by the check. Although the check was dated December 9, 1987, the check was cashed on December 8, 1987, at the bank used by Ms. Martinez. The person who cashed the check endorsed it in the name of America Canizales. On or about December 10, 1987, Respondent told Ms. Martinez that Respondent's husband had stolen all of Respondent's money and that he had also stolen Ms. Martinez's check. Respondent also told Ms. Martinez that because of the theft, she would be unable to close their contemplated transaction and promised to repay the $5,000. Respondent offered no further explanation or accounting for the funds. Respondent made repeated promises to repay Ms. Martinez the sum of $5,000 on the occasions Ms. Martinez was able to contact her. Thereafter, Respondent moved from the State of Florida without letting Ms. Martinez know where she could be reached. When Ms. Martinez located Respondent in Chicago, Illinois, Respondent again promised to repay Ms. Martinez. As of the time of the formal hearing, Respondent had returned to Dade County, Florida, but she had made no effort to repay Ms. Martinez the sum of $5,000. Respondent repeatedly misled Ms. Martinez as to her intentions to repay her. The factual allegations of the Administrative Complaint filed by Petitioner to "initiate this case were denied by Respondent. The request for a formal hearing was timely filed by Respondent.
Recommendation Based on the foregoing Findings of `Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Professional Regulation, Florida Real Estate Commission, enter a final order which finds that Respondent violated Section 475.25(1)(b), Florida Statutes, as alleged in Count I of the Administrative Complaint. It is further recommended that the final order revoke the real estate salesman's license issued to Respondent, America Canizales. DONE and ORDERED this 30th day of January, 1990, in Tallahassee, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 1990. COPIES FURNISHED: John R. Alexander, Esquire Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 America Canizales 158 West 10th Street Hialeah, Florida 33010 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Darlene Keller, Division Director Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact The Petitioner, Todd T. Catlette, applied for full registration as a general securities representative. Mr. Catlette is not licensed to call or offer to sell securities in the State of Florida. The Department of Banking and Finance denied the application by letter dated January 22, 1988. Ex. 3 The application was denied based upon the following facts: On May 3, 1988, the Petitioner pleaded nolo contendere to a third degree felony, filing a false and fraudulent insurance claim, in violation of Section 817.234(1)(a), Fla. Stat., and pleaded nolo contendere to a second degree felony, second degree grand theft, in violation of Section 812.014(2)(b), Fla. Stat. He was placed on probation for one year and ordered to make restitution to the insurance company in the amount of $2,148.00. Upon failing to make restitution, his probation was extended three years. He was discharged from probation on April 28, 1987. On August 3, 1979, the Petitioner pleaded nolo contendere to sale and delivery of cocaine and possession of cocaine with the intent to sell and deliver, both second degree felonies, in violation of Section 893.03(2)(a)4, Fla. Stat. He was sentenced to two years in state prison. On November 22, 1976, the Petitioner pleaded nolo contendere to possession of less then five grams of marijuana and possession of drug paraphernalia, a first degree misdemeanor; and was placed on three months probation. After serving his sentences in state prison, the Petitioner obtained a college education. The Petitioner testified that he was innocent of the possession of marijuana offense in 1976 and innocent of the fraudulent insurance claim and theft offenses in 1985. He presented a deposition of a detective involved in the fraudulent insurance claim case which was admitted as hearsay evidence to support his assertion of innocence. It appears from the deposition and the testimony of Mr. Cutlette that the detective relied solely upon the testimony of one witness as support for the charges of false insurance claim and theft. The foregoing evidence is not sufficiently credible to prove by the preponderance of the evidence that the Petitioner was innocent of the fraudulent insurance claim and grand theft offense. When presented with an opportunity for a trail, the Petitioner pleaded nolo contendere.
Recommendation For these reasons, it is recommended that the Respondent issue its final order denying the application of Todd T. Catlette for full registration as a general securities representative. DONE AND ENTERED this 24th day of June, 1988. 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 24th day of June, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1161 The following are rulings upon proposed findings of fact which have either been rejected or which have been adopted by reference. The numbers used are the numbers used by parties. Findings of Fact proposed by the Petitioner: None Findings of fact proposed by the Respondent: 1. These are matters of law, and thus not appropriate as proposed findings of fact. 3.-4., 10. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference. COPIES FURNISHED: Todd T. Catlette 3450 Palencia Drive, No. 1317 Tampa, Florida 22618 Reginald R. Garcia, Esquire Assistant General Counsel Office of the Comptroller Department of Banking and Finance The Capitol Tallahassee, Florida 32388-0350 Honorable Gerald Lewis Comptroller, State of Florida The Capitol Tallahassee, Florida 32399-0350 Charles L. Stutts, Esquire General Counsel Office of the Comptroller Department of Banking and Finance The Capitol Tallahassee, Florida 32399-0350
Findings Of Fact Petitioner is Peter Thomas Roman. By application dated April 28, 1988, he sought licensure as a real estate salesman. By letter dated October 24, 1988, counsel for Respondent informed Petitioner of Respondent's intent to deny licensure to Petitioner on the basis of Petitioner's 1985 arrest and subsequent plea in 1986 to a charge of grand theft, as well as Petitioner's suspension from membership in the Florida Bar. Question number six of the application completed by Petitioner requires a "yes" or "no" answer to the 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? Petitioner responded to question number six by disclosing his entry of a plea of nolo contendere in the circuit court for Pinellas County, Florida, on December 29, 1986, to a charge of grand theft. Petitioner related that the incident alleged had taken place in November of 1979. Petitioner further stated that the sentencing court had withheld formal adjudication of guilt and had placed Petitioner on probation. Petitioner, a licensed attorney at the time of the alleged incident, was disbarred from the practice of law by the Supreme Court of the State of Florida in an opinion issued on June 2, 1988. The Fla. Bar v. Peter T. Roman, 526 So.2d 60 (Fla. 1988). Petitioner's disbarment was based on the same acts which resulted in the grand theft charge. In addition, the Supreme Court found that "[t]his case involves not only theft, but fraud on the court which strikes at the very heart of a lawyer's ethical responsibility." Fla. Bar v. Roman, p. 62. The essential facts of the grand theft charges against Petitioner were that Petitioner falsified the name of an heir in an estate where Petitioner was serving as the personal representative. Funds paid from the estate to the falsified heir were converted by Petitioner to his own use. These matters occurred between January 1978 and January 1980. Petitioner was charged with grand theft in June of 1985. He pled no contest to that charge in 1986. Thereafter adjudication of guilt was withheld and he was sentenced to five years probation a $220 fine and nine months in the Pinellas County Jail. Since the incident which is the basis for the grand theft charges filed against Petitioner, he has not been involved in any incidents or episodes of misconduct. Petitioner has been offered a job as a sales person with a local real estate firm if he is permitted to hold a real estate license. Testimony of character witnesses offered by Petitioner establishes their belief that his reputation in the community is good, despite the one criminal incident in his past, and that they believe neither the public or investors would be endangered by the granting of licensure to the Petitioner.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying Petitioner's application for licensure. DONE AND ENTERED this 15th day of February, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2900 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5432 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. RESPONDENT'S PROPOSED FINDINGS 1.-9. Adopted in substance. Unnecessary to result. Adopted in substance. Unnecessary to result. PETITIONER'S PROPOSED FINDINGS 1.-8. Adopted in substance. Addressed in part, remainder unnecessary to result. Addressed in part, remainder unnecessary. Rejected as cumulative. Addressed in part, remainder unnecessary to result. COPIES FURNISHED: Thomas A. Roman, Esquire 2340 Main Street, Suite L Dunedin, Florida 34698 Lawrence Gendzier, Esquire 400 West Robinson Street Room 212 Orlando, Florida 32801 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Darlene F. Keller, Division Director Real Estate Legal Services 400 West Robinson Street Orlando, Florida 32801
The Issue The issue is whether Respondent's license as a real estate salesperson should be disciplined for the reasons given in the Administrative Complaint filed on May 20, 1998.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this disciplinary action, Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Division), seeks to impose penal sanctions on the license of Respondent, Howard Sarven Williams, a licensed real estate salesperson, on the ground that he failed to disclose that he had pled guilty to a crime when he filed his application for licensure in September 1994. In his Election of Rights Form filed with the Division, Respondent disputed this allegation, contended that his incorrect response "was done with the mistaken belief that it could be answered that way," and requested a formal hearing. Respondent is subject to the regulatory jurisdiction of the Division, having been issued license no. SL 0617682 by the Division in late 1994. The license remained inactive from January 1, 1995, until February 8, 1995; on that date, Respondent became an active salesperson with J.A.S. Coastal Realty, Inc. in Destin, Florida, until June 20, 1998. Between then and December 1998, he had no employing broker. Whether he is currently employed as a realtor is not of record. It is undisputed that on November 9, 1994, Respondent pled no contest to 12 counts of keeping a gambling house, a felony of the third degree. The offenses related to the illicit placement by Respondent (and two other individuals now deceased) of video gambling machines in approximately 10 VFW clubs and American Legion posts in Northwest Florida. On November 10, 1994, the court withheld adjudication of guilt; it placed Respondent on 10 years' supervised probation; and it ordered him to pay a fine and investigative costs totaling in excess of $25,000.00. Respondent was arrested in late 1993. On September 23, 1994, or before he entered his plea of no contest, Respondent completed and filed with the Division an application for licensure as a real estate salesperson. Question 9 on the application asks in part the following: 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? At the time the application was filled out, Respondent had not yet entered his plea of no contest. Therefore, he properly answered the foregoing question in the negative. Although Respondent was statutorily required to notify the Commission in writing of this matter within 30 days after entering his plea, he has not been charged with violating that statute. The record does not reveal how the Division learned that Respondent had pled no contest to the charges. In any event, in March 1998, or more than three years later, a Division investigator interviewed Respondent who readily admitted that he had pled no contest to the charges, that he was still on probation, and that he was making monthly payments on the substantial fine imposed in 1994. The issuance of the Administrative Complaint followed. Although the evidence does not support the charge, as narrowly drawn in the Administrative Complaint, it should be noted that Respondent says he mistakenly assumed (without the advice of counsel) that because he had pled no contest and adjudication of guilt was withheld, he had not been convicted of a crime. Thus, he believed that his record was clean. At the same time, the plea is a matter of public record, and Respondent did not intend to make a fraudulent statement in order to secure his license.
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 dismissing the Administrative Complaint, with prejudice. DONE AND ENTERED this 23rd day of November, 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 23rd day of November, 1999. COPIES FURNISHED: Herbert S. Fecker, Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Laura McCarthy, Esquire Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Drew S. Pinkerton, Esquire Post Office Box 2379 Fort Walton Beach, Florida 32549-2379 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The Respondent, Randy Lee Pomerantz, is currently eligible for licensure and is licensed in the State of Florida as a general lines, property, casualty, surety, and miscellaneous lines insurance agent. On or about May 30, 1989, the Respondent, along with one of his former employees, was charged by Information in the Circuit Court of the Eleventh Judicial Circuit, in and for Dade County, Florida, in Case No. 89-20405, with fifteen felony counts and three misdemeanor counts. The fifteen felony counts included one count of a RICO violation, one count of scheme to defraud, three counts of grand theft in the second degree, and ten counts of grand theft in the third degree. On or about July 13, 1990, the Respondent entered a plead of nolo contendere to Count VIII of the information, which was one of the counts charging grand theft in the third degree in violation of Section 812.014, Florida Statutes. The prosecutor entered a nolle prosequi as to all other counts insofar as they related to the Respondent. Adjudication of guilt was withheld on Count VIII. The Respondent was placed on probation for three years and ordered to pay restitution in the amount of $2,325.03. The Respondent's plea of nolo contendere to Count VIII of the Information was a plea of convenience. The Respondent did not commit the acts alleged in Count VIII of the Information. As the Respondent explained at the hearing, at the time of his plea his wife was about to give birth and he did not feel he could take a chance on a "roll of the dice" with a jury trial.
Recommendation For all of the foregoing reasons, it is RECOMMENDED that the Department of Insurance and Treasurer issue a Final Order in this case dismissing the Amended Administrative Complaint in its entirety. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of February 1991. MICHAEL PARRISH 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 February 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-4430 The following are the specific rulings on all proposed findings of fact submitted by all parties. Findings proposed by Petitioner: Paragraphs 1, 2, and 4: Accepted. Paragraph 3: Rejected as contrary to the greater weight of the evidence. Although it is likely that the facts alleged in Count VIII of the Information related to the transaction of insurance business in this state, such is not established by clear and convincing evidence. And, in any event, the matter is irrelevant in light of the findings that the Respondent's plea was a plea of convenience and that the Respondent was not guilty of the crime charged. Findings proposed by Respondent: COPIES FURNISHED: James A. Bossart, Esquire Department of Insurance 412 Larson Building Tallahassee, Florida 32399-0300 Ted Crespi, Esquire 110 Tower, Suite 815 110 S.E. 6th Street Fort Lauderdale, Florida 33301 Tom Gallagher Bill O'Neil State Treasurer and General Counsel Insurance Commissioner Department of Insurance The Capitol, Plaza Level and Treasurer Tallahassee, Florida 32399-0300 The Capitol, Plaza Level Tallahassee, Florida 32399-0300
The Issue Whether Respondent violated Section 648.30(1), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact On June 3, 1999, pursuant to Section 626.9581, Florida Statutes, the Department filed a Notice of Intent to Issue Cease and Desist Order and Assess Penalty against Respondent, alleging that he was not currently nor was he at all times relevant to the notice, licensed to transact bail bond business in the State of Florida. Respondent requested a hearing in the matter but failed to appear at the appointed time and place duly noticed for the administrative hearing in this matter. Respondent is not and was not at all times relevant to the subject matter of Petitioner's Notice of Intent to Issue Cease and Desist Order and Assess Penalty, licensed to transact bail bond business in the State of Florida. On February 6, 1998, Respondent, in the Circuit Court of Pasco County, Florida, in Case No. 9603891CFAWS, entered a plea of nolo contendere and was adjudicated guilty attempting to perform the responsibilities of a bail bondsman without a license, a first-degree misdemeanor, in violation of Section 648.30, Florida Statutes. It is a violation of Chapter 648, Florida Statutes, for an unlicensed person to act in the capacity or attempt to act in the capacity of a bail bond agent, temporary bail bond agent, or runner or perform or attempt to perform any of the functions, duties, or powers prescribed therefor.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Insurance and Treasurer: Enter a final order finding that Respondent engaged in a deceptive act by acting or attempting to act in the capacity of a bail bond agency. Issue a Cease and Desist Order directing Respondent to immediately cease and desist from acting or attempting to act in the capacity of a bail bond agent until or unless he is properly licensed pursuant to the provisions of Chapter 648, Florida Statutes. DONE AND ENTERED this 23rd day of November, 1999, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 23rd day of November, 1999. COPIES FURNISHED: Bill Nelson Commissioner of Insurance and Treasurer Department of Insurance The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Y. Sumner, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300 Ray Henry Anderson 13933 Muriez Avenue Hudson, Florida 34667 Dickson E. Kesler, Esquire Department of Insurance 401 Northwest Second Avenue, Suite N-321 Miami, Florida 33128
Findings Of Fact At all times relevant hereto Frank LaRocca, Respondent, was the holder of Real Estate Broker License Nos. 0050488, 0236407 and 0170796 issued by the Florida Real Estate Commission. On or about July 12, 1989, the Respondent, in the United States District Court, Middle District of Florida, upon a verdict of guilty rendered by a jury, was found guilty of five counts of conspiracy to commit bank fraud, a felony. On or about July 12, 1989, Respondent was sentenced to imprisonment for four years. On or about August 1, 1989, the United States District Court Judge ordered a stay of the judgment against Respondent pending completion of Respondent's appeal. Frank LaRocca was a vice-president of the Central Bank in Tampa, Florida, when he retired in May 1984 after working at this bank for 31 years. During this period, he enjoyed a good reputation in the community. Upon his retirement from the bank, he became an active real estate broker principally investing in real estate. The transactions which formed the bases for his conviction in federal court involved bank loans on condominiums he and three other partners purchased. These bank loans had all been repaid at the time of Respondent's trial but one, which had been refinanced by the bank.
Recommendation Taking all these factors into consideration, it is recommended that the licenses of Frank LaRocca as a real estate broker be revoked, but the revocation be stayed pending completion of his appeal to the court of appeals or two years whichever first occurs. At that time, depending upon the action of the court of appeals, his license be revoked or these proceedings dismissed. ENTERED this 7th day of February, 1990, in Tallahassee, Florida. K. N. AYERS 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 7th day of February, 1990. COPIES FURNISHED: Steven W. Johnson, Esquire Kenneth E. Easley Division of Real Estate General Counsel 400 W. Robinson Street Department of Professional Orlando, FL 32801-1772 Regulation 1940 N. Monroe Street Frank LaRocca Suite 60 Tallahassee, Florida 32399-0792 4814 River Boulevard Tampa, FL 33603 Darlene F. Keller Division Director Division of Real Estate 400 W. Robinson Street Post Office Box 1900 Orlando, FL 32801
