The Issue The issue presented is whether Petitioner's application for licensure as a real estate sales associate should be granted.
Findings Of Fact Petitioner Martha L. Socarras is a Hispanic female born in 1970. In March 2006 Petitioner filed with the Department of Business and Professional Regulation, Division of Real Estate, an application for licensure as a real estate sales associate. On that application, she answered in the affirmative question numbered 1 in the Background Information portion of the application. That question asked if she had ever been convicted of a crime, found guilty, or entered a plea of guilty. In support of her application she submitted a certified copy of the Judgment in a Criminal Case entered by the United States District Court for the Southern District of Florida on December 8, 1999. That Judgment recites that Petitioner pled guilty to one count of conspiracy to file false claims against Health and Human Services, mail fraud, and paying kickbacks. Counts 2 through 27 were dismissed by the prosecution. Petitioner was sentenced to two years in prison followed by three years of supervised probation. The Judgment also recites that the actual monetary loss was $700,000 and assessed the total amount of restitution to be paid by Petitioner as $1,114,676.04. The Judgment then provides that the amount of restitution was reduced to partial restitution in the amount of $500,000 due to Petitioner's inability to pay the full amount. The Judgment further provides that restitution to the Palmetto Government Benefits Administration was to be paid through the federal court. Petitioner was released from the Federal Correctional Institution in Danbury, Connecticut, on January 4, 2002, but was detained by the United States Immigration & Naturalization Service. At the time of her release, she still owed $499,500 in restitution. In March 2002 an Immigration Judge granted Petitioner permanent resident status at the conclusion of the immigration removal proceeding. On January 3, 2005, Petitioner completed her probation and was discharged from supervision. Petitioner filed her application for licensure only a year later. Petitioner also provided to the Department of Business and Professional Regulation an unexecuted consent agreement between herself and the federal government providing that she would pay the $500,000 in restitution at the rate of $200 per month commencing February 1, 2005. Petitioner attributes her criminal conduct to ignorance of the Medicare laws. She was employed for three years by her brother's medical equipment business. Although Medicare performed several audits of that business during Petitioner's employment there, the last audit revealed that Petitioner and her brother were paying "commissions" to persons for referring patients to her brother's business. Petitioner asserts that she did not know that what they were doing was illegal. At the final hearing Petitioner testified that she had offered to the federal government property she owns which is sufficient in value to pay the required restitution but did not know if the federal government would accept her offer. The several letters of recommendation which Petitioner submitted to the Department are from persons who have known her as long as 18 years. None appear to know about her criminal conviction or to have noticed that she was missing for two years. One alleges the author has known Petitioner for five years, which must mean she met Petitioner while Petitioner was in prison. Similarly, the persons who testified on her behalf at the final hearing did not appear to know that she had a conviction or that she was in prison for two years. One witness testified she has known Petitioner for ten years and that she saw Petitioner three or four times a week. Another witness testified both that he has had no business dealings with Petitioner and that he transacts business with her. As evidence of rehabilitation, Petitioner offered evidence that she is a very religious person and active in ministry. However, that aspect of her life appears to have pre- existed her criminal conduct, existed during her criminal conduct, and continues to exist. It, therefore, fails to prove rehabilitation. Petitioner offered no evidence concerning her employment since her release from prison. Her witnesses offered vague testimony indicating she works in the title insurance industry, but no evidence was offered as to her role therein.
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 as a real estate sales associate. DONE AND ENTERED this 13th day of November, 2006, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 13th of November, 2006. COPIES FURNISHED: Thomas Barnhart, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 Daniel Villazon, Esquire Daniel Villazon, P.A. 1020 Verona Street Kissimmee, Florida 34741 Michael E. Murphy, Director Division of Real Estate 400 West Robinson Street Suite 802, North Orlando, Florida 32801 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent was a probationary employee, and if so, whether the Division of Administrative Hearings has jurisdiction to enter a recommended order on his dismissal from employment with Petitioner. If Respondent is entitled to an administrative hearing, whether Petitioner had just cause to terminate Respondent's employment.
Findings Of Fact In January 1993, Respondent, Carlos Velasquez (Velasquez), became employed with Petitioner, Broward County School Board (Board), as a temporary teacher's aide in the after- school care program. In February 1994, Velasquez began working as a substitute teacher for the Board while continuing to work in the after-school care program. Velasquez was working toward a college degree while working for the Board. In April 1996, Velasquez received a bachelor's degree from Florida Atlantic University. In July 1996, Velasquez applied for a full-time teaching position with the Board. On February 26, 1997, Velasquez began working for the Board as a third grade teacher at Oriole Elementary School. On that date he began working as a full-time teacher, Velasquez completed a number of employment forms, including a Security Background Check.1 The Security Background Check form states that the form must be turned in with the applicant's application for employment. The form requires the applicant to answer certain questions by checking boxes marked "yes" or "no." The form advises the applicant as follows: At the time of employment your fingerprints will be researched by local, state and federal law enforcement agencies. Sealed or expunged records must be revealed to the School Board of Broward County pursuant to F.S. 943.058. Your employment with the Broward County School District is temporary and probationary pending successful processing of your fingerprints. The following questions must be answered truthfully. A 'Yes' answer to any of the following questions does not automatically keep your from being hired. Your omission or falsification of any criminal history (misdemeanor or felony, see reverse for examples of criminal offenses) information will result in your immediate termination. * * * NOTE: Pursuant to Florida Statute 943.058 Criminal History Record Expunction or Sealing, persons to be employed in a position having direct contact with children must answer questions 4, 5, and 6. The School Board of Broward County will receive information on all records that have been sealed, expunged, or where adjudication was withheld. To omit a response or to be untruthful in your response, regardless of any information received from your attorney or the Court will be considered falsification of your application and will result in your being terminated. If you wish to seek counsel prior to completing this section, you may take this application with you. The Security Background Check form also contains the following language: By signing this document I certify that I have carefully read and fully understand each question and that all information contained herein is true and accurate. My signature further certifies that there is no falsification of any information, omission of any information requested or any misrepresentation of information requested. I also understand that my fingerprints will be submitted to the Federal Bureau of Investigation for a complete criminal history background check. * * * By my signature, I certify that I know, understand, and agree that any false statement or omission of information requested will result in my immediate termination. The following two questions on the Security Background Check form are at issue in this case: 4. Have you ever had a criminal record sealed? * * * 6. Have you ever had adjudication withheld in a criminal offense? Velasquez answered no to questions four and six on the Security Background Check form and signed the form. Velasquez filled out the Security Background Check form at the Board's personnel office. He did not ask anyone how to fill out the form. At the time that he filled out the form, he did not understand the term "adjudication withheld." In 1981, Velasquez was arrested for shoplifting, and the charge was dismissed. In 1991, Velasquez personally petitioned the court to seal the arrest record, which petition was granted. In 1991, Velasquez was charged with disorderly conduct. He pled not guilty and went to trial. The court withheld adjudication and required Velasquez to attend a six- week advocate program. At the conclusion of his trial in 1991, Velaquez did not understand that adjudication had been withheld. By letter dated March 24, 1997, the Board advised Velasquez that it had received a report of criminal activity from the Department of Law Enforcement. The Board requested that Velasquez submit a full personal description of each incident. The letter further advised Velasquez that he could continue to work but that he would be suspended within ten working days if the Board had not received the requested documents. Velasquez wrote to Dr. Roger Beaumont, the Director of Instructional Staffing for the Board, and advised him of the circumstances surrounding the charge for disorderly conduct. Velasquez's case was presented to the Board's Security Clearance Committee, which determined on April 16, 1997, that Velasquez was not employable with the Board. Velasquez was notified of the committee's decision by letter dated April 18, 1997. When Velasquez applied to the Department of Education for a teaching certificate, he did not advise the Department of Education that he had had adjudication withheld in a criminal proceeding. In May 1997, Velasquez wrote the Department of Education and stated: Recently I filled out an application for a teaching position with both Dade and Broward Counties. While filling out these applications, it was explained the thoroughness of the information requested. The background information necessary for employment was also explained. It is therefore the purpose of this amended information to be added to my file to possibly clarify any misunderstood information and/or misinterpretations. I was unclear of the legal terminologies, such as, withheld adjudication. It is for that reason why I would like the following information officially added to my file for teacher certification. When Velasquez applied for the temporary teacher's aide position in January 1993, he completed a security check form and provided his fingerprints to the Board. The questions on the form did not include a question concerning sealed records. The form did include a question concerning adjudication being withheld in a criminal proceeding. Velasquez answered "no" to the question concerning the withholding of adjudication. By memorandum dated August 29, 1995, the Board informed him that based on the results of the federal criminal history check as of January 11, 1993, he had met the criteria for employment/licensing with the Broward County School System. In July 1996, Velasquez filled out an application form for employment as a full-time teacher. He also completed a Security Background Check form, which was the same form that he completed in February 1997. He answered "no" to question numbers four and six. His fingerprints were not processed in connection with the July 1996 application.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Carlos Velasquez's request for an administrative hearing be dismissed. DONE AND ENTERED this 26th day of February, 1998, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1998.
The Issue The issue in this case is whether Petitioner’s application for licensure as a resident all-lines adjuster should be approved or denied.
Findings Of Fact DFS is the state agency responsible for licensing and regulating insurance adjusters and agents pursuant to chapters 624 and 626, Florida Statutes. On April 20, 2016, Petitioner filed with DFS his application to become licensed as an all-lines adjuster in the state of Florida. On the second page of the application form, Petitioner answered “yes” to the question asking whether he has ever pled nolo contendere, no contest, or guilty to, or ever had adjudication withheld for, or ever been convicted of or found guilty of, any felony crime under the laws of any state. Despite answering yes to that question, on the third and fourth pages of the application, Petitioner answered “no” to the following three questions: First, Petitioner was asked whether his felony crime(s) fell within the following categories: any first-degree felony; a capital felony; a felony involving money laundering, fraud of any kind, or embezzlement; or a felony directly related to the financial services business. Second, Petitioner was asked whether his felony crime(s), if not falling in one of the above categories, were crimes involving moral turpitude. Lastly, Petitioner was asked whether his felony crime(s) were within the category of “all other felonies.” The questions asking how to categorize the felony crime(s) that Petitioner acknowledged on page two of the application correlate to the statute prescribing a range of consequences depending on the type of felony criminal background an applicant has. According to the statute, an applicant with felony criminal history falling in the first group above (first degree felony, etc.) is permanently barred from applying for licensure in Florida as an insurance agent or adjuster. For an applicant whose felony criminal history does not fall in the first group, but is categorized as a felony (or felonies) involving moral turpitude, the statute provides for a long period of disqualification. If an applicant’s felony criminal history does not fall in either of the first two categories, then a shorter period of disqualification is provided by the statute. See § 206.207, Fla. Stat., adopted in its current form in 2011 (with one immaterial amendment in 2014 to change a statutory cross-reference). Petitioner’s admitted felony history must, of necessity, fall within one of the three groups: the felony history must have involved one or more felonies identified for permanent bar, other felonies involving moral turpitude, and/or all other felonies. The application answers were internally inconsistent and at least one of the answers on pages three and four was wrong. At hearing, Petitioner did not offer any explanation for his incorrect answer(s).1/ Petitioner did not file with his April 2016 application submitted to DFS, and did not offer into evidence at hearing any proof of the felony criminal history to which he admitted in his application. Petitioner gave little information at all about his criminal background at hearing. He testified that he identified his prior criminal history on page two of the application (by answering “yes” to the question asking whether he had ever been convicted, etc. of any felony crimes). The only detail he was asked by his counsel to address was as follows: Q: Now the criminal history that you identified, is that something that occurred a while ago? A: Yes, sir. Q: And can you give me the approximate time period? A: The offense? It was in 1994, I believe. Q: Okay. And do you recall when you finished all your restitution and probation concerning any of these prior convictions? A: 1999. (Tr. 32). Petitioner later acknowledged on cross-examination, as suggested by his attorney’s attempted correction in his follow-up question, that there was not just one (“the”) offense--there was more than one offense and more than one conviction. Other than correcting that error, Petitioner volunteered no information regarding his prior convictions. He did, however, offer into evidence documentation generally corroborating his testimony regarding when he completed probation for his prior convictions. Two letters from New Jersey Superior Court personnel state that court records reflect that Mr. Bivona completed three different probationary terms associated with three different indictment numbers, as follows: for indictment number 96-03-0031-I, probation was completed as of August 9, 1999; for indictment number 95-10-0453-I, probation was completed as of May 2, 1999; and for indictment number 95-05-0206-I, probation was completed as of September 27, 1998. Although Petitioner offered no details or documentation for his prior felony convictions, either with his application or at hearing (other than the letters documenting when he completed probation), Petitioner said that he had previously provided documentation to Respondent regarding his felony convictions, a fact confirmed by Respondent. Respondent had in its files certified copies of court records for Petitioner’s felony convictions in New Jersey, obtained by Respondent in 2010 in connection with a prior license application by Petitioner.2/ Respondent offered into evidence at hearing certified copies of court records regarding Petitioner’s felony criminal history, including indictments issued by grand juries setting forth the original charges, and the subsequent judgments of conviction issued by New Jersey Superior Court judges. Because Respondent was willing to use the criminal history documentation previously provided by Petitioner that was already in Respondent’s files, Respondent did not require Petitioner to obtain or submit the same documentation again in connection with his new license application.3/ The indictment numbers identified in the three judgments of conviction match the three indictment numbers contained in Petitioner’s exhibit offered to prove when he completed his probationary terms for his prior convictions. Thus, although Petitioner was evasive at hearing, unwilling to identify the court records of his prior convictions, the records themselves establish the missing information about Petitioner’s felony criminal history that Petitioner only alluded to at hearing. In a September 28, 1995, judgment of conviction issued by Judge Leonard N. Arnold, New Jersey Superior Court for Somerset County, Mr. Bivona pled guilty to, and was convicted of, the charges set forth in indictment 95-05-0206-I. As enumerated in the judgment of conviction, these were: four counts of fraudulent use of a credit card, a third-degree felony; one count of unlawful theft or receipt of a credit card, a fourth-degree felony; four counts of forgery, a fourth-degree felony; and one count of theft by deception, a fourth-degree felony. For sentencing purposes, the court merged nine of the counts into count two (one of the charges for fraudulent use of a credit card), and imposed the following sentence: three years of probation, restitution of $271.60, a $500.00 fine, and other monetary assessments. On May 3, 1996, another judgment of conviction was issued by Judge Leonard N. Arnold. The judgment of conviction shows that Mr. Bivona pled guilty to, and was convicted of, the charges set forth in indictment 95-10-0453-I. As enumerated in the judgment of conviction, these were: three counts of fraudulent use of a credit card, a third-degree felony; and one count of theft, a fourth-degree felony. The sentence imposed by the judgment of conviction was incarceration for 180 days in the county jail, a three-year probationary term, restitution of $380.02, and monetary assessments. On August 9, 1996, a judgment of conviction was issued by Judge Marilyn Hess, New Jersey Superior Court for Hunterdon County. As shown on the judgment of conviction, Mr. Bivona pled guilty to, and was convicted of, the charges set forth in indictment 96-03-00031-I. As enumerated in the judgment of conviction, these were: one count of theft by deception, a third-degree felony; one count of forgery, a fourth-degree felony; and one count of credit card theft, a fourth-degree felony. The sentence imposed by the judgment of conviction was a three-year probationary term, restitution of $2,488.30, and monetary assessments. As noted, Mr. Bivona testified that he completed the probationary terms for his prior convictions in 1999. He provided documentation corroborating that he served the three probationary terms and completed them on three different dates in 1998 and 1999, the last of which was August 9, 1999. No evidence was presented to prove that Mr. Bivona has paid all restitution, fines, and other monetary assessments imposed in the three judgments of conviction, and, if so, when all payments were completed. Petitioner’s application was initially denied by DFS because of Petitioner’s felony criminal history. DFS determined that at least two of the judgments of conviction, and possibly all three, were for felony crimes involving fraud. DFS did not undertake a review of Petitioner’s rehabilitation from his past crimes or his present trustworthiness and fitness to serve as an insurance adjuster, because in DFS’s view, Petitioner was subject to the statutory permanent bar from applying for licensure. DFS did not determine that Petitioner did not otherwise meet the requirements for licensure as a resident all-lines adjuster. At hearing, neither party went into any detail regarding the requirements for licensure as an all-lines adjuster. Instead, the focus of both Petitioner and Respondent was on whether Petitioner’s criminal history renders him disqualified from applying for licensure as an adjuster, either permanently or for a period of time, and, if the latter, whether mitigating circumstances reduce the disqualifying period. No evidence was offered of aggravating circumstances. Respondent has not disputed whether, aside from the implications of Petitioner’s criminal history, Petitioner otherwise qualifies for licensure. Therefore, it is inferred that Respondent was and is satisfied that, aside from the implications of Petitioner’s criminal background (including questions about rehabilitation, trustworthiness, and fitness), Petitioner otherwise meets the requirements for licensure as an all-lines adjuster. Petitioner presented evidence addressed to the mitigating factors in Respondent’s rule to shorten the period of disqualification in certain circumstances, where there is no permanent bar. Petitioner testified that he moved to Florida with his wife in 1998 (apparently before he had completed his probationary terms for at least two of his convictions). He and his wife started a business in the Sarasota area, a corporation that has operated under two different names, but has remained essentially the same since 1998. The business has always been small; although it has gone up and down in size over the years, Petitioner said that the business has had at least five employees for over three years. Since 1998, the nature of his business has been to provide technical support and assistance to insurance adjusters. The business has not been engaged in the actual adjuster work; instead, his clients are licensed adjusters who perform the actual adjuster work. Petitioner testified that he has been employed by the corporation he owns, working at least 40 hours per week for a continuous two-year period within the five years preceding the filing of his application. This parrots one of the mitigation factors in Respondent’s rule, and although no documentation of his employment hours was provided for any period of time, the undersigned accepts Petitioner’s testimony as sufficient under the mitigation rule. If Petitioner is determined to be disqualified for a period of years and subject to the mitigation rule, this mitigation factor would reduce the disqualification period by one year. To meet another mitigation factor, Petitioner submitted five letters of recommendation in evidence. Three of those letters appear to be from someone who has known Petitioner for at least five years (one undated letter states that the author has known Petitioner for three years; another letter, more of a business reference from an insurance company representative in Maryland, does not state how long the author has known Petitioner). Those letters that are dated bear dates after the license application was submitted and initially denied, but there is no impediment to receiving and considering them in this de novo hearing. The letters meet the requirement in Respondent’s rule for mitigation. If Petitioner is determined to be disqualified for a period of years and subject to the mitigation rule, this mitigation factor would reduce the disqualification period by one year. Although the letters satisfy one of the mitigation factors in Respondent’s rule, the contents of the letters are hearsay, as none of the authors testified. The matters stated in the letters, for the most part, do not corroborate any non- hearsay evidence, except in a few immaterial respects (such as that Petitioner runs his own business and has daughters who play volleyball). Petitioner did not present any testimony from witnesses at hearing who could attest to his character, his business reputation, or his trustworthiness. Petitioner testified that he does volunteer work on a “sporadic” basis. He is active as a volunteer for his three daughters’ schools and travel volleyball activities, and he also works with youth groups in his church. Although Petitioner testified that he believes he has volunteered at least 180 hours over the three years preceding the filing of his application, Petitioner did not present any documentation from one or more charitable organizations confirming the number of his volunteer hours. It is undisputed that Petitioner held an insurance adjuster license in Florida for some period of time, until, according to DFS, the license expired by operation of law. Although Petitioner admitted that since 1998, his business has not been engaged in insurance adjuster work, merely holding a license appears to at least superficially satisfy a mitigation factor in Respondent’s rule. No evidence was presented to show that Petitioner has been arrested or charged with any criminal violations since he completed his third probation in August 1999, more than 17 years ago. The length of time without any additional criminal incidents is a positive consideration. Notably lacking from Petitioner were: an explanation for the circumstances underlying the multiple crimes he committed that involved fraud, theft, forgery, and deception, through use of other people’s credit cards and checks; express acceptance of responsibility for his criminal past; the expression of genuine remorse for his wrongdoing; and an explanation as to why his criminal history should not present concerns if Petitioner becomes authorized to engage in insurance adjusting. As Petitioner acknowledged, a licensed adjuster “would negotiate settlement [of claims under insurance policies], would offer payment, [and] would have authority to write payment and receive payments” (Tr. 35), placing the adjuster in a position of trust and responsibility in dealing with other people’s money. Simply noting that it has been a good number of years since Petitioner completed his probations, that he is running his own business (that does not engage in insurance adjusting), that he has a family, that he is involved with church, and that he does volunteer work is not enough, when Petitioner’s past crimes and the concerns they present go unexplained, to support a finding of rehabilitation, moral fitness, and trustworthiness today. It may well be that Petitioner could prove these things if he had addressed them; it may have been an unfortunate strategic choice to avoid any mention of Petitioner’s past crimes in anything but the most general and vague terms. Perhaps in light of decisional law discussed in the Conclusions of Law below, Respondent’s licensure application form asks applicants who disclose criminal history whether they have had their civil rights restored. Petitioner answered yes. He was asked to explain, and his response was: “Rights were restored and I have the ability to vote and act as a standard US Citizen.” (Pet. Exh. 11 at 4). In the initial review of Petitioner’s application, DFS staff apparently accepted Petitioner’s representation that his civil rights had, in fact, been restored.4/ However, in a “deficiencies” listing at the end of the application, DFS noted that Petitioner failed to provide a certificate of civil rights restoration, or other proof of restoration of his civil rights. Petitioner’s application was not denied because of these omissions, and Petitioner’s failure to provide such evidence in his application would not have been an impediment to receiving and considering proof of restoration of Petitioner’s civil rights at hearing, had such evidence been offered. At hearing, Petitioner attempted to prove that his civil rights were restored. However, Petitioner presented no evidence that he ever applied for restoration of his civil rights, or that his civil rights have been restored by order of the governor in the exercise of clemency power. Instead, the only evidence offered by Petitioner was a Florida voter status printout showing that he is an active registered voter. The exhibit was admitted for the limited purpose of showing that Petitioner was registered to vote in Florida. However, this fact is insufficient to support an inference that Petitioner’s civil rights must have been restored or he would not have been allowed to register to vote. If Petitioner has actually had his civil rights restored, there would be direct evidence of that, and Petitioner had no such evidence. It is equally or more plausible that Petitioner was allowed to register to vote in Florida by mistake; Petitioner acknowledged that he represented in his voter registration application that his civil rights were restored (just as he represented to DFS in his license application). Petitioner’s counsel argued that Petitioner was allowed to register to vote in Florida because Florida gave full faith and credit to what New Jersey had done. This argument was unsupported by evidence of how Petitioner became registered to vote in Florida. Regarding what was done in New Jersey, the only evidence offered by Petitioner was a “voter restoration handbook” from the state of New Jersey, which indicates as follows: “In New Jersey, any person who is no longer in prison or on parole or probation, can register to vote. . . . In New Jersey, unlike some other states, those who have been convicted of felony offenses in the past are not forever barred from voting. . . . Any ex-felon who has satisfactorily completed the term of his or her sentence can register to vote.” (Pet. Exh. 7, admitted for a limited purpose, at 1 - 2). The rest of the handbook simply describes how one goes about registering to vote in New Jersey. Under New Jersey law, then, one particular civil right--the right to vote--is taken away from convicted felons only until they complete their sentence, parole, and probation. This is confirmed by a New Jersey statute that has been officially recognized, providing that the right of suffrage--the right to vote--is taken away from any person “[w]ho is serving a sentence or is on parole or probation as the result of a conviction of any indictable offense under the laws of this or another state or of the United States.” § 29:4-1(8), N.J. Stat.5/ The right to vote is only one of the civil rights that may be lost by reason of being convicted of a crime. For example, under another New Jersey law officially recognized in this proceeding, persons convicted of a crime are disqualified from serving on a jury. See § 2C:51-3b., N.J. Stat. Petitioner presented no evidence to prove that he ever sought or received a restoration of his civil rights by executive order of the governor pursuant to an exercise of executive branch clemency power, either in the state of New Jersey or in Florida. In New Jersey, restoration of civil rights and privileges (one of which may be the right to vote) is accomplished pursuant to section 2A:167-5, New Jersey Statutes, officially recognized in this proceeding and providing in pertinent part: Any person who has been convicted of a crime and by reason thereof has been deprived of the right of suffrage or of any other of his civil rights or privileges . . . may make application for the restoration of the right of suffrage or of such other rights or privileges . . . which application the governor may grant by order signed by him. (emphasis added). Similarly, the Florida Constitution vests in the executive branch the following clemency powers: [T]he governor may, by executive order filed with the custodian of state records, suspend collection of fines and forfeitures, grant reprieves not exceeding sixty days and, with the approval of two members of the cabinet, grant full or conditional pardons, restore civil rights, commute punishment, and remit fines and forfeitures for offenses. (emphasis added). Art. IV, § 8(a), Fla. Const. Petitioner admitted that he did not apply to the governor for a restoration of civil rights in New Jersey, and he has no order from the governor restoring his civil rights. Similarly, Petitioner did not apply for and receive an order from the governor restoring his civil rights in Florida. Instead, he admitted that he is relying on whatever happened in New Jersey. The following testimony reveals Petitioner’s misconception of the process in New Jersey for restoration of civil rights: Q: Okay. Mr. Bivona, what’s your understanding of how your civil rights were restored in New Jersey? A: My understanding is that once probation and restitution and everything is completed, that civil rights are restored in the State of New Jersey. Q: And did that happen, to your knowledge? A: The completion? Q: Yes. A: Yes, sir. I also verified that with the State of New Jersey. I called them. The Court: I can’t consider that.[6/] A: I understand. I’m sorry. The Court: Do you have any exhibits that show that civil rights have been restored? Mr. Terrell: There’s a handbook from New Jersey that’s also how the rights are restored. [Pet. Exh. 8, in evidence for limited purpose] (Tr. 44).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services issue a final order denying Petitioner’s application for licensure as a resident all-lines insurance adjuster. DONE AND ENTERED this 14th day of April, 2017, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 14th day of April, 2017.
The Issue The issue is whether Petitioner’s request for exemption from disqualification should be granted.
Findings Of Fact Respondent is the state agency responsible for regulating the employment of persons in positions of special trust as direct service providers. Petitioner is seeking employment with Always Promoting Independence, LLC, and Supporting Independence/Honor Health Care Management, both service providers are regulated by Respondent. Petitioner wants to work as a direct service provider, which requires background screening. The results of Petitioner’s background screening revealed a history of criminal offenses. Respondent relies on the Department of Children and Families Background Screening Unit (“Department”) to initially receive exemption from disqualification requests and to compile documents related to such requests. On February 8, 2016, Petitioner submitted a Request for Exemption, Exemption Questionnaire (“Questionnaire”), various criminal records, character references, and other various documents (the “Exemption Packet”), to the Department seeking to demonstrate support for the granting of an exemption from employment disqualification. The Department subsequently forwarded the Exemption Packet to the Agency for review. To begin its exemption review, Respondent considered Petitioner’s disqualifying offense. In May 1991, Petitioner committed the disqualifying offense of “Fraudulent Use of Credit Card” (six counts). Petitioner pled nolo contendere to the disqualifying offense and adjudication was withheld. She was sentenced to 24 months’ probation and payment of fines and court costs. She completed her term of probation early. In its continued exemption review, Respondent considered the following non-disqualifying offenses, which Petitioner obtained subsequent to her May 1991 disqualifying offense: an arrest for “Aggravated Assault with a Firearm” in August 1997 (a violation of section 784.021, Florida Statutes); an arrest for “Driving While License Suspended with Knowledge” in October 2007 (a violation of section 322.34(2), Florida Statutes); an arrest for “Driving While License Suspended with Knowledge” in September 2008 (another violation of section 322.34(2)); an arrest for “Possession of Cannabis” in March 2012 (a violation of section 893.13(6)(b), Florida Statutes); and a conviction for “Possession of Drug Paraphernalia” in March 2012 (a violation of section 893.147(1)). Petitioner received notification by letters dated September 22, 2015, and January 12, 2016, from the Department, Respondent’s background screening entity, of her disqualification from employment due to criminal history. The specific disqualifying offense listed in both letters was “Fraud-Illegal Use of Credit Cards,” a violation of section 817.61, Florida Statutes. Petitioner provided details of the circumstances surrounding the disqualifying offense. In short, Petitioner indicated she gave three “associates” a ride to the mall in exchange for their promise to buy her a new pair of shoes. She left the Champs sports store with her shoes, expecting one of her companions to pay for them. She was in her car when her companions ran from the store with a security guard in pursuit. They told her to start the car which she refused because she believed she had not done anything wrong. Unfortunately for her, one of her companions had attempted to pay for her new shoes with a stolen credit card. She and her companions were arrested and charged with credit card fraud. Petitioner provided documentation of the charge, the disposition after her no contest plea, and the fact that her probation was terminated early. Petitioner provided explanations for all but one of the non-disqualifying offenses that ranged from the gun charge being at the end of a “bad relationship” (her then-girlfriend falsely accused her); to she was pulled over for a broken taillight, then charged with driving with a suspended license (she claimed she paid her tickets and the license was reinstated, although no records were provided on this point); to she was pulled over for having too dark a window tint in her car and cannabis was found (she testified it was not hers), but, since no one confessed to ownership, all were cited for possession; and finally to no explanation at all for the 2007 driving with a suspended license charge. Petitioner accepted little responsibility for her criminal offenses and concluded with the statement that she has no current involvement with any court system; she stated she is in “good standing.” Petitioner indicated on her Questionnaire that there was no harm to any victim or property, including damage or injury, in her past. Petitioner indicated on her Questionnaire that there were no stressors in her life at the time of the disqualifying offense. Regarding current stressors in her life, Petitioner testified she is unable to provide for her family and she is eager to obtain and keep steady employment. Petitioner listed her educational achievements as a diploma from Clearwater High School (1988), an Associate in Arts degree from Tampa Tech in computer engineering (1991), and an Associate in Science (“A.S.”) degree from St. Petersburg College in human services (2014). Petitioner indicated on her Questionnaire that she has received no counseling for any reason. Petitioner indicated on her Questionnaire that she has no history of alcohol and drug abuse. Petitioner indicated on her Questionnaire that she is involved with a community organization known as “Parents that Care.” As to expressing remorse or accepting responsibility for her actions, Petitioner testified she completed her probation early and that she no longer surrounds herself with negative influences and people. Petitioner’s recent work history has been stable. Her work history since 2009 indicates she has worked for two groups providing direct support/in-home support staff: Supporting Independence/Honor Health Care Management (2012-present) and Peaceful Dreams, Inc. (2009-2012). In addition to the criminal records submitted, Petitioner also offered affidavits of good moral character, written personal statements, IRS W-2 Forms, a copy of her A.S. degree from St. Petersburg College, and three letters of reference attesting to her character. The letters were written by people who have known Petitioner for many years and who believe her to be hard-working, reliable, and caring. Petitioner also submitted a copy of an exemption from disqualification she had received from the Agency for Health Care Administration (“AHCA”) dated May 27, 2014. Jeffrey Smith, regional operations manager for the Suncoast Region, testified that the Agency reviewed all the provided documentation provided by Petitioner, the information provided on the Exemption Questionnaire, the various records documenting Petitioner’s criminal history, her educational record, her character references, and her exemption from AHCA. Following a review of all the documentation included in the Exemption Packet, Agency Director Barbara Palmer advised Petitioner by a letter dated May 27, 2016, that her request for an exemption from her disqualifying offense was denied. The basis for the denial was that Petitioner failed to provide clear and convincing evidence of her rehabilitation. Mr. Smith testified the Agency considered all the documentation submitted by Petitioner in her Exemption Packet, as well as the additional documents provided prior to and at the hearing. He did not find that the documentation negated or refuted the official records of the disqualifying and non- disqualifying offenses. Further, the fact that the non-disqualifying offenses related to Petitioner’s driving is relevant to the position for which she seeks an exemption from disqualification. A direct service provider is often called upon to transport individuals entrusted to her care. Petitioner’s statement that her license was reinstated and that she received no more driving citations after the offenses described above was refuted by Mr. Smith, based upon subsequent driving records regarding Petitioner. Mr. Smith also noted two additional reports from the Department in which Petitioner was named the alleged perpetrator. One report showed some indicators of child abuse (cuts/punctures/bites/excessive corporal punishment), and the other report involved allegations of exploitation of a vulnerable adult, specifically, one with a developmental disability, but resulted in no official findings of exploitation. The Agency’s clients are a vulnerable population, consisting of individuals whose developmental disabilities are defined as intellectual disability, autism, spina bifida, Prader-Willi syndrome, cerebral palsy, Down syndrome, and/or Phelan-McDermid syndrome. Without the Agency’s services, these clients would require institutionalization. Petitioner testified passionately that she enjoys working with individuals with disabilities. Working in this field inspired her to return to school to earn a degree in human services. She testified that working with persons with disabilities is her long-term goal. She admitted she made some “foolish mistakes” when she was younger, but that she now accepts responsibility for her actions. She also testified that she believed her exemption should be granted because another agency, AHCA, had granted her an exemption from disqualification. Respondent countered with the fact that this vulnerable population requires being able to rely on the direct care provider’s good character and trustworthiness. Individuals entrusted with the care of the disabled are often called upon to make decisions of a financial, medical, and social nature. The Agency must weigh the benefit against the risk when considering granting an exemption. Petitioner’s history shows poor judgment on her part, and she provided testimony that was inconsistent with the documentation of her criminal history and the report and allegations of abuse or neglect from the Department. Petitioner admitted to use of a credit card of a vulnerable adult, which showed poor judgment on her part. Additionally, the close proximity of Petitioner’s most recent arrest (2012) to her request for exemption demonstrates her issues with the law are not limited to the distant past. Finally, Respondent, pursuant to section 435.07(5), Florida Statutes, considered the exemption given Petitioner by AHCA. The exemption from AHCA, however, is neither binding on the Agency nor does such exemption follow the same criteria or involve the same service population as the exemption sought from Respondent. The granting of an exemption from employment disqualification would allow Petitioner to be employed as a direct service provider to Agency clients. The undersigned appreciates Mr. Smith’s thoughtful and comprehensive assessment of Petitioner’s criminal history and fitness to hold a position of trust, and finds his testimony at hearing and reasons for recommending the denial to be credible and reasonable.
Recommendation Based on 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’s request for an exemption from disqualification. DONE AND ENTERED this 19th day of October, 2016, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 19th day of October, 2016. COPIES FURNISHED: Rosemary Brinson 1010 Eldridge Street Clearwater, Florida 33755 Jeannette L. Estes, Esquire Agency for Persons with Disabilities 200 North Kentucky Avenue, Suite 422 Lakeland, Florida 33801 (eServed) Lori Oakley, Acting 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)
The Issue The issues in the case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulation of pari-mutuel wagering pursuant to Chapter 550, Florida Statutes (2003), and is responsible for licensing employees of pari-mutuel facilities. Respondent is a card dealer holding Florida occupational license number 6927724-1012 for employment as a card dealer at the Tampa Bay Downs racetrack. By application filed at the racetrack on December 3, 2003, Respondent applied for the referenced license. Persons unknown apparently conducted the application process for all employees of the facility. Employees completed the applications and submitted them at the racetrack, again to persons unknown. The application includes a section titled "Background Information." Question 1 asks in relevant part the following question: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contender (no contest) to, even if you received a withhold of adjudication? Question 1 further provides as follows: YOUR ANSWER TO THIS QUESTION WILL BE CHECKED AGAINST LOCAL, STATE AND FEDERAL RECORDS. FAILURE TO ANSWER THIS QUESTION ACCURATELY MAY RESULT IN DENIAL OR REVOCATION OF YOUR LICENSE. IF YOU DO NOT FULLY UNDERSTAND THIS QUESTION, CONSULT WITH AN ATTORNEY OR CONTACT THE DEPARTMENT. Respondent answered the question in the affirmative. The question provides that if the applicant responds in the affirmative to the question, "form 0050-1" should be completed to disclose additional information about the convictions. Form 0050-1 includes space to list three criminal convictions. The application instructions related to the form state: "[i]f you have more than seven offenses to document on form 0050-1, attach additional copies . . . as necessary." Respondent completed a form 0050-1. On the form, he stated that he had been convicted of a misdemeanor in 1987. The Respondent identified the offenses as "trespassing," "suspended license," and "cashed check." Respondent stated that the penalty had been probation, which was violated, and that he was required to finish the sentence. Respondent initially identified the location of the conviction as Pasco County, but crossed through the writing and changed it to Hillsborough County. Above Respondent's signature on the application is a statement that in material part provides as follows: I hereby certify that every statement contained herein is true and correct and that I understand that any misstatement or omission in this application may result in denial or revocation of my pari-mutuel license. Other than the information on the application, there was no evidence offered at the hearing that Petitioner was convicted of a misdemeanor in 1987 in Hillsborough County. Petitioner asserts that at the time he filed the application, he completed a second form 0050-1 on which he disclosed additional information related to felony convictions. At the hearing, he testified that an unidentified person allegedly involved in the application process instructed him to make the felony disclosures on a second form. Although there is no evidence contradicting Respondent's account of the events, the application submitted through the racetrack to Petitioner did not include a second form 0050-1. In 1983, Respondent was adjudicated guilty of felony charges, including Forgery and Uttering a Forged Check in Pasco County, Florida (Circuit Court, Sixth Judicial Circuit, Case No. 8101927CFAWS). In 1990, Respondent was adjudicated guilty of a felony charge of Grand Theft, Third Degree in Hillsborough County, Florida (Circuit Court, Thirteenth Judicial Circuit, Case No. 90-279). In 1991, Respondent was adjudicated guilty of a felony charge of Grand Theft in Pasco County, Florida (Circuit Court, Sixth Judicial Circuit, Case No. 8701762CFAWS). A few days after the application was completed, Respondent met with an employee of Petitioner (identified as "Nick") to discuss the felony convictions. "Nick" did not testify at the hearing. As filed with Petitioner, Respondent's application failed to include a second form 0050-1 and did not disclose the felony convictions identified herein. There is no evidence that Respondent has had any involvement in criminal activity since 1991.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order suspending Respondent's occupational license for a period of three months. DONE AND ENTERED this 17th day of December, 2004, 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 17th day of December, 2004. COPIES FURNISHED: Ralf E. Michels, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Stefan Thomas Hoffer Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Jerry M. Bonett 7801 Willowbrook Court Hudson, Florida 34667 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 David J. Roberts, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Petitioner’s application for an exemption from disqualification from employment in a position of trust, pursuant to sections 408.809 and 435.07, Florida Statutes,1/ should be granted.
Findings Of Fact Respondent is authorized to conduct certain background screenings for employees providing specific types of services within health care facilities licensed under chapters 400, 408, and 429, Florida Statutes. § 408.809, Fla. Stat. Petitioner seeks employment in a position providing direct services to residents of a health care facility licensed under chapter 429 and, as such, is required to participate in Respondent’s background screening process pursuant to section 408.809. Petitioner submitted to the required background screening, which revealed that in 1999, Petitioner pleaded guilty to Felony Grand Theft/Bank Fraud in the United States District Court for the Northern District of Florida, Panama City Division, Case No. 5:99CR165PM. This conviction is akin to a felony grand theft conviction under chapter 812, Florida Statutes. The above-referenced criminal conviction makes Petitioner ineligible to provide a service in a health care facility licensed by Respondent unless Petitioner receives an exemption from Respondent, pursuant to section 435.07. Petitioner was also arrested in 2001 for Felony Aggravated Assault with a Deadly Weapon. On that charge, Petitioner pled guilty to a lesser included charge of simple assault, in Leon County Circuit Court, Case No. 01-1020AM. In addition, Petitioner was arrested in 2009 for felony charges of larceny/grand theft and exploitation of the elderly, charges which were ultimately dismissed due to the alleged victim’s death. Petitioner submitted an application for exemption to Respondent in accordance with sections 408.809 and 435.07 on or about April 30, 2014, and attended a telephonic hearing conducted by Respondent on June 17, 2014. The results of the June 17, 2014, teleconference are not at issue in this proceeding. Petitioner submitted another application for exemption to Respondent in accordance with section 435.07 on or about September 29, 2014. A telephonic hearing was conducted by Respondent on that second application for exemption on December 9, 2014, during which Respondent and Petitioner agreed to utilize the information obtained in the June 17, 2014, hearing regarding the 1999 Grand Theft/Bank Fraud and the 2001 Assault convictions, and to only discuss the circumstances surrounding the 2009 allegations of Grand Theft and Exploitation of the Elderly. A panel consisting of Respondent’s Operations and Consulting Manager for the Background Screening Unit, Sherry Ledbetter, and Respondent’s Health and Facilities Consultants, Kelley Goff and Zack Masters, also attended the telephonic hearing. Exhibit A-1, Respondent’s file for Petitioner’s exemption request, contains the exemption denial letter; internal Agency notes; panel hearing notes from both the June 17, 2014, and the December 9, 2014, teleconferences; Petitioner’s criminal history; Petitioner’s exemption application; arrest affidavits; conviction records; probation records; court records; and several letters in support of Petitioner’s requested exemption. Exhibits A-2 and A-3 are audio recordings of Petitioner’s teleconferences from her exemption hearings from June 17, 2014, and December 9, 2014. After the telephonic hearing, Respondent denied Petitioner’s request for an exemption, and Petitioner requested an administrative hearing. At the administrative hearing, Sherry Ledbetter testified that Respondent considered Petitioner’s entire case file, including all submissions received from Petitioner, and her explanations during the teleconferences when it determined that Petitioner’s request for an exemption should be denied. Respondent is legally authorized to consider all subsequent arrests or convictions, even if those arrests or convictions are not disqualifying offenses. Respondent considered Petitioner’s subsequent arrests and convictions during the review of Petitioner’s application for exemption. Respondent also considered the circumstances surrounding Petitioner’s most recent arrest, 2009 Grand Theft and Exploitation of the Elderly, even though the charges were dismissed. Petitioner admitted during the December 9, 2014, teleconference that the alleged victim made payments toward Petitioner’s bills while Petitioner was employed as her caregiver. Petitioner did not see any ethical issues with taking payments from a patient for whom she is caring, when she was already being paid by her employer for the services she rendered. Respondent explained, and it is found, that Petitioner did not appear to be totally candid and honest in her responses to the panel’s questions during the teleconferences and did not take responsibility for any of the criminal offenses. Although Respondent allows exemption applicants to have people speak on the applicants’ behalf at the teleconferences, Petitioner did not choose to have anyone speak on her behalf. Respondent considers any training, education, or certificates that an exemption applicant submits, but Petitioner did not have any such submissions, aside from Petitioner’s statement that she attended a budget class after her 1999 conviction. Based on Petitioner’s entire file and her responses during the teleconferences, Respondent determined that Petitioner did not satisfy her burden of proof by clear and convincing evidence of demonstrating rehabilitation from her disqualifying offense. Respondent maintains that Petitioner still poses a risk to the vulnerable population she would serve if employed at another health care facility. At the final hearing, Petitioner presented the testimony of Mutaqee Akbar, her criminal defense attorney for her 2009 charges of Grand Theft and Exploitation of the Elderly, who testified that the 2009 charges against Petitioner were dismissed by the prosecutor. On cross examination, Mr. Akbar admitted that the prosecutor cited the death of the alleged victim as the reason for the case’s dismissal. Mr. Akbar also admitted that law enforcement records reflect that the alleged victim made a statement to law enforcement prior to her death that she did not give her consent for the payments made toward Petitioner’s bills. In her testimony at the final hearing, Petitioner discussed how she is a changed person and has overcome a great deal of adversity to get to where she is now. Petitioner is presently involved in her community, specifically with her church and children’s schools, and takes care of her goddaughter and four children. Petitioner has a daughter who attends community college and Petitioner has been striving to set a good example for her daughter. Petitioner’s daughter, Sierra Thomas, who is in community college, gave credible testimony that she always favored her mother and did not believe the 2009 allegations against her mother. One of Petitioner’s good friends, Sheria Hackett, testified that Petitioner is a good person and deserves to be granted the exemption. Petitioner’s Exhibit P-1 is a composite exhibit consisting of additional information relating to Petitioner’s criminal cases and a letter from her probation officer. Petitioner’s Exhibit P-2 consists of a letter from Respondent dated May 22, 2014, requesting additional information from Petitioner during the exemption application process. Petitioner’s Exhibit P-3 consists of Petitioner’s petition for formal hearing. Although Petitioner appeared remorseful for her criminal convictions, considering all of the facts, circumstances, and evidence presented to AHCA and at the final hearing, it cannot be said that she proved by clear and convincing evidence that she is rehabilitated and should not be disqualified from employment. Moreover, AHCA’s intended action of denying Petitioner’s request for exemption was not an abuse of discretion. Therefore, Petitioner failed to meet her burden of showing that she is entitled to the exemption she seeks from Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent enter a final order denying Petitioner’s request for an exemption from disqualification for employment. DONE AND ENTERED this 8th day of July, 2015, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida32399-3060 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 2015.
Findings Of Fact The Respondent, Benny R. Hardy, is a licensed law enforcement officer in the State of Florida, holding License No. GF-7656. The Petitioner is an agency of the State of Florida charged with the licensing of and the regulation and enforcing of licensure, practice and conduct standards for law enforcement officers. The Respondent was hired on the police force of the City of Umatilla, Florida, on September 16, 1975, rising to the position of Chief of Police. He served in that capacity until his termination of employment by his resignation on March 23, 1983. The Respondent resigned from his employment due to his having been charged with a felony, involving obtaining drugs with a forged prescription. He entered a plea of nolo contendere to that charge and an order was entered on March 25, 1983, placing the Respondent on probation for three years and withholding adjudication of guilt, it appearing to the satisfaction of the court that the Respondent was "not likely again to engage in a criminal course of conduct . . . ." Certain conditions were imposed upon Respondent's probationary status and the court reserved jurisdiction to adjudge the Respondent guilty and impose any legally appropriate sentence if the conditions of that probation are violated. There is no evidence that Respondent has ever been the subject of any disciplinary proceeding such as this in the past. His licensure status is presently "inactive." The Respondent, however, after due and proper notice of hearing, failed to appear at the hearing at the appointed date and time and had still not appeared at 10:40 a.m., when the hearing was adjourned.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, and the evidence and testimony of record, it is, therefore RECOMMENDED: That a final order be entered by the Criminal Justice Standards and Training Commission revoking Law Enforcement Certificate No. GF-7656 presently held by Respondent. DONE and ENTERED this 12th day of December, 1983, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 13th day of December, 1983. COPIES FURNISHED: Dennis S. Valente, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Mr. Benny R. Hardy Post Office Box 1014 Umatilla, Florida 32784 James W. York, Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 G. Patrick Gallagher, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether the 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 37-year-old female residing in Jacksonville, Florida. She desires to work as a Medicaid waiver provider, an independent solo provider of community-based services to the Agency’s clients with developmental disabilities. On October 12, 2009, the Agency granted Petitioner an exemption from disqualification from employment for an offense of grand theft committed on December 28, 2001. Between 2004 and 2009, Petitioner was a service provider for Agency clients both in a group home setting and as a solo provider of community-based services. On July 14, 2011, the Florida Department of Children and Families issued Petitioner a notice that she was ineligible for continued employment in a position of special trust working with children or the developmentally disabled based on a felony offense of aggravated assault committed on December 30, 2010. The Disqualifying Offense On December 30, 2010, Petitioner was driving by her boyfriend’s home and noticed a vehicle backing out of his driveway. Petitioner knew the vehicle belonged to another woman, Ms. Stevens. Petitioner called her boyfriend on his cellular phone, confirmed he was in the car, and began conversing with him. Petitioner and her boyfriend engaged in a series of calls with each other over the next few minutes while she followed Ms. Stevens’ vehicle. Petitioner wanted the driver of the car to pull off the road so she could talk to her boyfriend in person. Petitioner pulled her vehicle alongside Ms. Stevens’ vehicle. The situation escalated. The vehicles were traveling on a parallel path on a two-lane road in a residential subdivision. In her anger, Petitioner threw an open soda can through the rear window of Ms. Stevens’ vehicle. Finally, Petitioner’s vehicle struck Ms. Stevens’ vehicle. Shortly thereafter, both vehicles pulled off the road. Petitioner’s boyfriend exited the vehicle, but Ms. Stevens took off and returned with a law enforcement officer. The police report notes approximately $700 in damage to the two vehicles. During the entire incident, Petitioner’s two minor children were back seat passengers in Petitioner’s vehicle. Following an investigation, the police determined Petitioner was the primary aggressor. Petitioner was charged with one count of aggravated battery with a deadly weapon, and one count of criminal mischief and reckless driving. Petitioner served two days in jail. Petitioner pled nolo contendere to both charges, adjudication was withheld, and Petitioner was placed on 12 months’ probation, ordered to complete 75 hours of community service, attend anger management training, and pay fines and fees amounting to $1,068. Petitioner attended a one-day anger management class through the Salvation Army in 2011. Petitioner was released from probation on May 3, 2012. Employment Following the Disqualifying Offense Petitioner worked as an executive housekeeper for a Hilton Garden Inn in Jacksonville from June 2012 to November 2013. Petitioner worked briefly as a manager at a Subway restaurant between March and October 2014. In November 2014, Petitioner began employment as a manager at a Burger King restaurant in Jacksonville, where she remained employed on the date of hearing. Subsequent Criminal History Petitioner has had no disqualifying offense since the 2011 aggravated battery offense. Petitioner was cited for three traffic infractions between 2011 and 2013. One of the infractions was a criminal charge of driving without a valid driver’s license. The other two citations were for speeding and failing to yield the right- of-way. Petitioner’s Exemption Request Petitioner’s exemption package was slim. In addition to the exemption questionnaire, in which she provided little information regarding herself, Petitioner submitted a one-page narrative letter and two very brief character reference letters. On the questionnaire, Petitioner reported no damage to any persons or property from the disqualifying offense. Further, Petitioner reported no stressors in her life at the time of the offense. As to her current stressors, Petitioner reported none, and listed her family, church, and herself as her current support system. Petitioner reported no counseling other than the one- day anger management class completed in 2011. Petitioner listed no educational achievements or training. As for accepting responsibility for her actions, Petitioner wrote, “I feel very remorse [sic] for my actions and I take full responsibility for them.” One of the character reference letters was from a co- worker (perhaps even someone under her supervision) and did not identify the name of the employer or dates she worked with Petitioner. The letter described Petitioner as “dependable and committed to do her best” as well as “proficient in all cores of her profession.” The author further described Petitioner as a Christian who is very involved with her church and youth ministry, and who is considered a good and loving mother. The author of the second character reference letter did not identify her relationship to Petitioner, but indicated that she had known Petitioner for six years. She described Petitioner as “dependable and committed to the community as a youth leader and big sister to the children of her church.” Further, she wrote, “[Petitioner] is a compassionate and loving person, but above all she is a Christian who loves her children and her church.” In her personal statement, Petitioner described the events surrounding the disqualifying offense as follows: I was involved with a young man at the time of this incidence [sic]. What happen [sic] on that day was this young man had been calling my phone all day and we passed each other on the street in the same neighborhood and I followed him. We both at this time kept calling each others [sic] phone back to back. After a few blocks both cars came to a stop. Neither of us got out of the car. Each of us pulled off the same time and our cars bumped each other. After a few more blocks we stopped again. He got out of the car from the passenger side. I then realize [sic] that he was not the driver. A few minutes later the car came back. An off duty police officer with JSO wrote me a ticket for reckless driving, operating a vehicle with no insurance and criminal mischief. Mean while [sic] two more officers with JSO arrived on the scene and one of the officers decided to arrest me and charged me with aggravated assault with a deadly weapon (with no intent to kill). Petitioner offered nothing else related to the disqualifying offense. Petitioner’s narrative does not reveal an understanding of the seriousness of her offense or offer any explanation for her behavior. Nor does the narrative back up her statements on the questionnaire that she feels remorse and has accepted responsibility for her actions. In formulating its decision to deny Petitioner’s request for exemption, the Agency considered the following factors to be significant: Petitioner’s disqualifying offense occurred just a year after having been granted an exemption from a prior disqualifying offense of grand theft. The offense demonstrated a lack of good judgement and decisionmaking. Petitioner was the primary aggressor. Petitioner’s children were in the car at the time of the incident. Petitioner was 32 years old at the time of the incident. Petitioner reported no life stressors at the time of the disqualifying offense and no significant changes in her life subsequently. Petitioner was not forthcoming in her application about the damage to the vehicles incurred during the incident. Petitioner’s driving record raises a concern with her ability to safely transport Agency clients. The Agency also considered that Petitioner’s character references were not from past or current employers, that they revealed very little about the relationship between the author and Petitioner, and that they did not acknowledge the disqualifying offense or offer any indication of changes in Petitioner’s life. Final Hearing Petitioner’s attitude at hearing was defensive. Petitioner took issue with the description of events surrounding the disqualifying offense noted in the police report. Petitioner particularly stressed that the vehicles were stopped, rather than traveling down the one-lane road side by side, when she threw the soda can into Ms. Stevens’ vehicle. Petitioner denied that she intentionally struck Ms. Stevens’ vehicle, but rather insisted that the vehicles “bumped” as they were both pulling off the road at the same time. Petitioner offered no witnesses on her behalf. Petitioner introduced one additional character reference letter from Reverend Charles G. Skinner, Pastor, Twin Springs Missionary Baptist Church. Pastor Skinner stated that he had pastored Petitioner for 10 years and had witnessed “spiritual maturity” in her life. In the letter, Pastor Skinner described Petitioner as an active member of the church, a devout Christian and mother “with an humbling nature exhibiting a thirst for erudition.” Petitioner did not demonstrate her humble nature at the hearing. Petitioner was defensive, argumentative, and spent her time pointing out “inaccuracies” in the police report. Petitioner has no understanding of the seriousness of her offense, and was “baffled” that the charge included a reference to a deadly weapon when she had no weapon at the time. Petitioner downplayed the event, testifying that the whole incident took maybe 8 to 10 minutes, and that the vehicles were traveling slowly, perhaps 15 to 20 miles per hour. Petitioner acknowledged that her children were in the vehicle at the time of the incident, but insisted they were not in danger and that she would never do anything to put her children in danger. Throughout the hearing, Petitioner emphasized she had no idea Ms. Stevens was driving the vehicle in which her boyfriend was riding, until the vehicles pulled off the roadway. Apparently Petitioner believed that the facts were more favorable to her if it was only her boyfriend she was trying to run off the road, rather than her boyfriend and “the other woman.” Petitioner failed to appreciate that no matter who was driving the vehicle, Petitioner’s actions put them at risk.
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 an exemption from disqualification. DONE AND ENTERED this 24th day of March, 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 24th day of March, 2016.
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)
