Findings Of Fact Respondent holds a certificate as a law enforcement officer, Certificate Number 02-22949. That certificate is currently inactive. Respondent was employed as a deputy sheriff with the Polk County Sheriff's Department in January of 1978. Respondent resigned this position on or about October 22, 1982. On or about September 9, 1982, Respondent was involved in the apprehension and arrest of an individual named James Pitts. A Winter Haven police officer, Dennis Warren, actually effected the arrest of the above suspect on or about September 9, 1982. During the arrest, Pitts resisted Officer Warren and in so doing, Officer Warren sustained injuries to his right hand. The area in which the struggle occurred consisted of loose dirt and gravel. Immediately after the arrest, Officer Warren's uniform was disheveled, dirty and ripped. The knuckles on his right hand were bleeding. Immediately after the arrest, Respondent's uniform was clean, not disheveled and no dirt was present. The dirt and gravel at the scene of the arrest were the type that would adhere to a uniform. After Officer Warren arrested the suspect, Respondent was unable or unwilling to walk the suspect to the police car. Another officer (Bill Stone), walked the suspect to the police car and placed the suspect in the vehicle. Respondent was present during the arrest of James Pitts and observed Officer Warren struggling with said individual. Officer Warren requested Respondent's assistance in the arrest but Respondent failed to provide such assistance. During Respondent's tenure as a deputy sheriff, he failed to assist other officers on several occasions during violent confrontations.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order dismissing the Administrative Complaint. DONE and ORDERED this 18th day of January, 1984, in Tallahassee, Florida. R. T. CARPENTER 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 18th day of January, 1984.
The Issue Whether the Petitioner has presented clear and convincing evidence that she is of good moral character so as to receive an exemption from disqualification from employment transporting adults who are developmentally disabled, under Section 435.07, Florida Statutes (1995).
Findings Of Fact Petitioner was found guilty of prostitution under Section 796.07, Florida Statutes (1973), on December 21, 1973, in Dade County, Florida. Adjudication of guilt was withheld and Petitioner was placed on probation for a period of six (6) months. Petitioner successfully completed probation. Petitioner was found guilty of driving under the influence, and two companion civil traffic infractions, in Dade County, Florida on or about June, 1974. Adjudication of guilt was withheld and Petitioner was placed on probation for a period of three (3) months. Petitioner successfully completed probation. Petitioner was convicted of a misdemeanor charge of possession of marijuana on April 2, 1982 in Pinellas County, Florida and was sentenced to time served in the county jail. Petitioner has not been arrested or convicted for any criminal offense since 1982. Petitioner is currently employed by Brevard County, Florida as a Vehicle Operator I, para-transport, assigned to the Space Coast Area Transit (SCAT) section. As a condition to Petitioner’s employment she is required to have a commercial driver’s license (CDL) with a P endorsement, Class B. Her duties with SCAT require that Petitioner pick-up and return people needing home transportation, including developmentally disabled individuals. When Petitioner is assigned to pick up handicapped persons, she does not operate a bus along a scheduled route, but picks up individuals at their home or other locations as indicated on a manifest provided at the beginning of each work day. Petitioner did not disclose her criminal record on her employment application for her position with SCAT. Employment screening under Florida law was not being required by Petitioner’s employer at the time that Petitioner applied for her position with SCAT. No evidence was introduced to show Petitioner was required to make such a disclosure at the time she was hired. At the time that she completed her employment application Petitioner was under the impression that she did not have to disclose the prostitution charge. Petitioner believed that this charge would be removed from her record after she successfully completed probation. As to the remaining charges, assuming Petitioner was required to disclose her prior criminal record, Petitioner believed that disclosure of those charges were appropriate but chose not to disclose them on the application for fear that if she did she would not be hired. At the time that Petitioner filled out and signed her application for employment, she knew that she was not disclosing this information. At the time that Petitioner applied for the position with SCAT she was separated from her husband and not receiving any financial assistance from him. Petitioner was under financial pressure as she was the sole support for herself and her teenage son who lived with her. Petitioner did not disclose her prior criminal record to her Department Director, Don Lusk, prior to the July 11, 1996 exemption hearing. She did discuss her history with Mr. Lusk after the hearing. Petitioner’s reasons for not disclosing this information was that she was embarrassed by these facts and wanted to put them behind her. She did not believe that the prostitution charge had to be disclosed. Lusk felt that Petitioner’s explanations to him were candid and would not effect her employment status. In regard to the 1973 prostitution charge, Petitioner, who was then 22 years old, was unemployed and in need of money. A casual acquaintance of hers suggested that she could make some money by offering sex for money and that the acquaintance could make all of the arrangements. Petitioner agreed, let her acquaintance make the arrangements, and went with her to meet some men. The men turned out to be undercover police officers who arrested Petitioner. No sex acts took place and no evidence was presented that any would have taken place but for Petitioner’s arrest. This was Petitioner’s first and only act of solicitation. There is no evidence which indicates that Petitioner has again been involved in any act of prostitution since the 1973 incident. Leona McKinney, Petitioner’s immediate supervisor during the entire time of her employment with SCAT; Don Lusk, SCAT’s Director; and Jeffrey Herndon, Petitioner’s supervisor at her previous employment as a tour bus driver escort at Spaceport USA, Kennedy Space Center, Cape Canaveral, Florida, all indicated that there have never been any problems with the Petitioner’s job performance or related duties as a bus driver. Her employment history has been good. No complaints had ever been made or filed against her in connection with the performance of her job duties. Lusk indicated that he was satisfied with Petitioner’s performance of her duties. In his opinion, Petitioner did not pose any danger to SCAT’s clientele. Both Lusk and Herndon indicated that, based on Petitioner’s employment history with them, and notwithstanding her failure to have disclosed the prior criminal charges, that her employment would be continued and that she would be eligible for rehire. The failure of Petitioner to obtain an exemption will affect her employability with SCAT. Without an exemption, the Petitioner would not be able to perform the duties required of SCAT vehicle operator to transport developmentally handicapped individuals. This would pose scheduling problems for SCAT. Petitioner drinks socially and responsibly. Petitioner appears to handle stress in her life adequately without recourse to alcohol or drug use. Although SCAT performs random drug testing of all its employees, including Petitioner, there is no record of any adverse drug test results on Petitioner. There is no evidence that Petitioner has ever endangered any of the people whom she transports while driving for SCAT or while she drove for Spaceport USA. Petitioner testified with candor and credibility, and is worthy of belief. Petitioner has demonstrated that she is rehabilitated and will not present a danger to disabled adults if continued employment is allowed.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Petitioner’s request for exemption from disqualification for employment in transporting developmentally disabled adults be GRANTED.RECOMMENDED this 6th day of February, 1997, at Tallahassee, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1997. COPIES FURNISHED: Burton J. Green, Esquire 43 South Atlantic Avenue Cocoa Beach, Florida 32931 Carmen Sierra, Esquire District 7 Legal Office Department of Children & Families 400 West Robinson Street Orlando, Florida 32801-1782 Gregory D. Venz, Agency Clerk Department of Children & Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard Doran, Esquire Department of Children & Families 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The central issue in this case is whether Respondent should be terminated from employment with the school district.
Findings Of Fact On January 4, 1994, Respondent completed an applicant security check form for employment with the Petitioner. The form specified a series of questions related to past or pending criminal charges to which Respondent was to check either a "yes" box or a "no" box. On each occasion, Respondent checked the "no" box. At the conclusion of the form is a certification as follows: I certify that the above responses are true, complete, and correct to the best of my knowledge and are made in good faith. I understand that any incompleteness or false information on this form may be just cause for a rejection of my application for employment or dismissal in the event I am employed by the School Board of Palm Beach County. Respondent did not disclose that in 1987 she was charged with aggravated assault and possession of a weapon. As a result of the charges, Respondent was sentenced to one year probation, required to pay a fine and court costs, and fifty hours of community service. When Mr. Lachance learned of the results of the background search (which differed from Respondent's application), he met with Respondent who admitted the criminal charges but who alleged that she had believed them to be resolved. The recommendation was then made to the Board to terminate Respondent's employment as a bus driver.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That School Board of Palm Beach County, Florida enter a final order dismissing the Respondent from her employment with the school district in accordance with the Board action of April 7, 1995. DONE AND ENTERED this 12th day of January, 1996, in Tallahassee, Leon County, Florida. JOYOUS D. 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 12th day of January, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2884 Rulings on the proposed findings of fact submitted by the Petitioner: 1. Paragraphs 1 through 5 are accepted. Rulings on the proposed findings of fact submitted by the Respondent: 1. None submitted. COPIES FURNISHED: Lee M. Rosenberg, Esq. School District of Palm Beach County Office of the General Counsel 3318 Forest Hill Boulevard Suite C-302 West Palm Beach, Florida 33406 Ms. Tina King 5030 Elcharo North West Palm Beach, Florida 33415 Dr. Bernard Shulman Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard West Palm Beach, Florida 33406-5869 Frank T. Brogan Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400
The Issue The issues are whether Petitioner has shown, by clear and convincing evidence, that she is rehabilitated from her disqualifying offense, and if so, whether Respondent's intended action to deny Petitioner's request for an exemption from disqualification from employment would constitute an abuse of discretion.
Findings Of Fact The Agency is the state agency responsible for regulating the employment of persons in positions of trust for which Petitioner seeks to qualify. Petitioner is a 38-year-old female who seeks to qualify for employment in a position of special trust with Success for All of Florida, Inc., a service provider regulated by the Agency. Because she wishes to work as a direct service provider, Petitioner was required to undergo a background screening. The results of that screening identified a history of criminal offenses, including a disqualifying offense in 2003. Accordingly, Petitioner filed a request for exemption from disqualification, which triggered the instant proceeding. In a letter dated July 27, 2015, the Agency's Director, Barbara Palmer, notified Petitioner that after reviewing all information that led to her disqualification, her exemption request was denied. The letter advised Petitioner that this decision was based upon Petitioner's failure to "submit clear and convincing evidence of [her] rehabilitation." Resp. Ex. C. Before Director Palmer made her decision, Petitioner's request for an exemption was reviewed by a Department of Children and Families screener who compiled a 34-page report entitled "Exemption Review" dated June 10, 2015. See Resp. Ex. B. The packet of information contains Petitioner’s Request for Exemption, Exemption Questionnaire, various criminal records, and two character references. The Exemption Review did not make a recommendation one way or the other, but simply compiled all relevant information that would assist the Director in making her decision. The report was first given to the Agency Regional Operations Manager in Orlando, who reviewed it and then made a preliminary recommendation to the Director. In 2003, Petitioner had a disqualifying offense, Grand Theft, a third-degree felony, which automatically disqualified her from employment in a position of special trust. Around the same time, she committed a second-degree misdemeanor, Trespassing in a Structure or Conveyance, a non-disqualifying offense. Both offenses occurred at a JC Penney store in Lakeland. Petitioner pled guilty to both offenses and was adjudicated guilty. For the felony conviction, she was placed on probation for 25 months, given credit for time served in jail, and ordered to pay various fines and costs. Petitioner was then 26 years old. Petitioner's account of her disqualifying offense differs in several respects from the account memorialized in the Lakeland Police Department reports and is inconsistent with her plea of guilty. In her Exemption Questionnaire, she stated that the criminal offense was actually committed by her younger sister and not her. She wrote that "I didn't tell on my sister because she was only 16 at the time so I took the charge for her." Resp. Ex. A, p. 3. This version of events was never presented to the court. At hearing, she also stated that she pled no contest to the crime, but court records indicate she pled guilty. In January 2004, while on probation for the Grand Theft charge, Petitioner violated her probation by committing a non- disqualifying offense and was sentenced to 60 days in jail. In November 2005, Petitioner violated her probation a second time by testing positive for cocaine during a probationary drug screening. The record is unclear if Petitioner served any jail time for this violation. In September 2012, or approximately three years ago, Petitioner committed the non-disqualifying offense of Use or Possession of Drug Paraphernalia, a first-degree misdemeanor. She pled nolo contendere, was adjudicated guilty, placed on probation for 12 months, and ordered to pay various fines and costs. At hearing, Petitioner blamed her cousin for the arrest and stated that she was unaware her purse contained drug paraphernalia (a straw and cocaine residue), as she had not used cocaine since 2005. In any event, she stated that her drug of choice was previously ecstasy and not cocaine, and admitted that she had used that drug while working at Success for All in Florida, Inc., from 2001 until around 2005. Between 2006 and 2014, Petitioner was employed as a warehouse worker by Publix. Along with five other workers, she was terminated by Publix in 2014 for improperly accepting damaged merchandise from a co-worker. There is no record of any employment since that time. Petitioner blamed her criminal arrests on stress in her life, mainly due to a lack of family support and raising two children as a single parent, and being just "plain stupid" while she was young. She expressed remorse for her mistakes and now wishes to help others as a direct service provider. Three witnesses testified on Petitioner's behalf. They described her as being a good worker, a caring individual, dependable, and very determined to improve her life. The Agency's rationale for denying the application is Petitioner's failure to take responsibility for her actions, that is, blaming her arrests on others, and a failure to provide a truthful and full account of the circumstances surrounding her disqualifying offense. The Agency also expressed concerns over Petitioner's lack of specificity regarding her criminal background, and the short period of time (three years) since her latest arrest, albeit for a non-disqualifying offense. Finally, the Agency noted that Petitioner has never had counseling, she lacks any specialized training, and there is no record of employment since being terminated by Publix more than a year ago.
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 application for an exemption from disqualification. DONE AND ENTERED this 7th day of December, 2015, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 7th day of December, 2015. COPIES FURNISHED: David M. De La Paz, Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) LaShae Thomas 3217 Julia Court Lakeland, Florida 33810-5510 Michael Sauve, Esquire Agency for Persons with Disabilities 400 West Robinson Street, Suite 430 Orlando, Florida 32801-1764 (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 issue in the case is whether Petitioner's application for licensure should be approved.
Findings Of Fact On July 12, 2004, Petitioner filed an application for licensure as a Resident Life including Variable Annuity and Health Insurance Agent with Respondent. Included among the questions on the application was the following: Have you ever been convicted, found guilty, or pled guilty or nolo contendere (no contest) to a felony or crime punishable by imprisonment of one (1) year or more under the laws of any municipality, county, state, territory or country, whether or not adjudication was withheld or a judgment of conviction was entered? Petitioner answered "no" in response to the question. The application requires the applicant to consent to the following statement: Under penalties of perjury, I declare that I have read the foregoing application for license and that the facts stated in it are true. I understand that misrepresentation of any fact required to be disclosed through this application is a violation of the Florida Insurance and Administrative Codes and may result in denial of my application and/or the revocation of my insurance license(s). By affixing his electronic signature to the application, Petitioner affirmed that the information set forth therein was true. The evidence establishes that on April 7, 1978, Petitioner was sentenced to the Nassau County Correctional Center for a term of one year after entering a guilty plea to a felony count of Attempted Grand Larceny (Grand Jury Indictment No. 46323, June 24, 1977, Nassau County, New York.) Petitioner entered the Correctional Center to begin serving his sentence on December 15, 1978, and was released on February 28, 1979. Petitioner did not disclose the 1978 conviction on the application for licensure as an insurance agent. After completing a criminal history check, Respondent issued two deficiency letters, dated July 26, 2004, and August 5, 2004, seeking additional information related to Petitioner's background. In response to the deficiency letters, Petitioner submitted additional information and a letter. In the letter and in his testimony at the hearing, Petitioner stated that he misinterpreted the question, and believed that because he was incarcerated for less than one year, the 1978 conviction was responsive to the question. He stated that he did not intend to mislead or deceive Respondent. Respondent issued a Notice of Denial on August 25, 2004. The grounds for the denial was Petitioner's failure to disclose the 1978 conviction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order denying the application for licensure filed by Anthony A. Sagnelli and imposing a waiting period to expire on August 26, 2005. DONE AND ENTERED this 28th day of February, 2005, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 2005.
The Issue Whether pursuant to section 120.595, Florida Statutes (2015),1/ Petitioner, Randall B. Johnson (Johnson), should be awarded reasonable costs and attorney’s fees incurred in defense of an administrative proceeding initiated by Respondent.
Findings Of Fact The procedural history of the underlying action is set forth in the PERC Order, and includes a majority of the relevant facts, which are not in dispute. Findings of Fact 2 through 9 below are taken directly from the PERC Order. On September 19, 2014, the Department of Corrections (Agency) dismissed Randall B. Johnson pursuant to the extraordinary dismissal procedure in section 110.227(5)(b), Florida Statutes. The final action letter (September 19 Letter) alleged that, four years earlier, on or about September 19, 2010, Johnson inappropriately participated in a use of force incident that resulted in the death of an inmate. Johnson was also informed that a copy of the investigation upon which the charge was based would be available when it was completed. On September 24, 2014, Franklin Correctional Institution Warden, Christopher G. Atkins, contacted Johnson and informed him that the September 19 Letter was inaccurate and the Agency needed to send him a corrected final action letter (September 24 Letter). Atkins did not read the letter to Johnson or tell him the substance of the allegations against him. The amended final action letter was sent to Johnson by certified mail. On September 29, 2014, Johnson filed an appeal with the Commission challenging his dismissal, based on the September 19 Letter. Johnson stated in his appeal: "I was not involved in a use of force incident that resulted in the death of an inmate, as I was not working on September 19, 2010." A hearing officer was appointed and a hearing was scheduled. On October 1, 2014, the Agency filed a Notice of Corrected Final Action Letter with the Commission asserting "that due to a clerical error, certain information contained in the letter issued to the Employee on September 19, 2014, was incorrect . . . ." The amended final action letter, dated September 24, 2014, deleted the factual allegations from the September 19 Letter and substituted the following: Specifically, on or about June 6, 2013, the Office of the Inspector General received information alleging improper conduct of some of its officers. Further investigation into the allegation revealed that you submitted an inaccurate or untruthful report, introduced contraband into Franklin Correctional Institution, and engaged in an unprofessional relationship with former inmate and current supervised offender, Luke Gruver/U01117. The basis for these charges is contained in an on-going investigation by the Inspector General's Office, Case Number 13-7092; copy available upon completion. On October 6, 2014, Johnson filed a motion for summary judgment and/or judgment on the pleadings and a motion for attorney's fees and costs. On October 22, 2014, the hearing officer issued an order which, among other things, denied the motions filed by Johnson on October 6, 2014. On October 28, 2014, Johnson filed a motion to dismiss and motion for attorney's fees. This pleading was followed on November 4, 2014, by an amended motion to dismiss and motion for attorney's fees. A hearing on Johnson's motions was held on February 2, 2015. On February 4, 2015, the hearing officer issued an order concluding that the September 24 Letter was vague and that Johnson was prejudiced in his ability to defend himself by its vagueness. Therefore, he denied the Agency's attempt to amend the September 19 Letter with the September 24 Letter. The hearing officer also determined that the September 19 Letter was sufficiently detailed to provide Johnson with notice of the charges against him. The Agency was directed to respond and state whether it intended to proceed to a hearing on the allegations in the September 19 Letter. Finally, the hearing officer deferred ruling on whether the Agency violated section 112.532(6), Florida Statutes, the Law Enforcement Officers' and Correctional Officers' Bill of Rights, and whether Johnson was entitled to an award of attorney's fees pursuant to section 120.595. On February 11, 2015, the Agency filed a notice with the Commission that it was rescinding the September 19 Letter, marking it void, and reinstating Johnson on February 13, 2015, to the position of correctional officer at Franklin Correctional Institution. The Agency also requested that the Commission schedule a back-pay hearing. On February 13, 2015, Johnson filed an objection to the Agency's request for a back-pay hearing and renewed his request for an award of attorney's fees and costs. On February 17, 2015, the hearing officer issued his recommended order concluding that Johnson was entitled to reinstatement, back pay, and other benefits, as well as interest at the lawful rate, commencing on September 19, 2014. He also determined that the Commission did not have jurisdiction to consider the issue of attorney's fees pursuant to section 120.595, because that statute only authorizes fee awards to be made by an Administrative Law Judge (ALJ). However, he recommended two alternative methods for the attorney's fees issue to be referred to an ALJ at DOAH. On February 25, 2015, Johnson filed five exceptions to the recommended order. A transcript of the February 2, 2015, motion hearing was filed. In one of his exceptions to the recommended order, Johnson challenged the hearing officer’s conclusion that PERC does not have jurisdiction to award attorney’s fees and costs pursuant to section 120.595, because such a determination can only be made by an ALJ. The PERC Order sustained the hearing officer’s conclusion that PERC does not have the authority to consider an attorney’s fees request made pursuant to section 120.595. It also adopted the hearing officer’s recommendation that the request for attorney’s fees and costs be referred to DOAH for consideration by an ALJ. Accordingly, the PERC Order “shall serve as the Commission’s referral to DOAH of Johnson’s request for attorney’s fees and costs from the Agency pursuant to Section 120.595, Florida Statutes.” The Notice of Corrected Final Action Letter filed by DOC with PERC dated October 1, 2014, sought to replace the September 19 Letter with the September 24 Letter. The Corrected Final Action Letter stated DOC was filing a “corrected final action” necessitated by a “clerical error.” In fact, the September 24 Letter does not correct clerical errors but rather makes completely different factual allegations and charges against Johnson and references the date of the incident (or incidents) as 2013. The extensive procedural history of this case, which includes a recitation of all the pleadings filed by the parties and the arguments therein, is set forth in the Commission’s Order Vacating Agency Action and Referring Attorney’s Fees Petition to DOAH. As noted, the PERC Order refers this case to DOAH for consideration of the issue of attorney’s fees and costs. All pleadings filed by Johnson in both the disciplinary case and the back-pay case before PERC were prepared and filed on his behalf by the law firm of Flury & Atkins. The billing statements admitted into evidence during the DOAH proceeding reflect the time spent by counsel researching and drafting motions and proposed orders in the discipline and back-pay cases, as well as the time spent reviewing the pleadings of the Agency, and the orders of the PERC hearing officer. Attorney Elizabeth Willis, a former PERC hearing officer, testified that the issues presented in Johnson’s cases before PERC were unique and difficult. Ms. Willis testified she reviewed the pleadings and orders of the underlying cases before PERC, as well as the Billing Statement of Flury & Atkins, LLC. Based upon her review and her knowledge of PERC proceedings and the law in this area, she concluded the hours expended by counsel and the hourly rates charged were reasonable. While DOC asserted in its Proposed Recommended Order that the amount of attorney’s fees and costs being sought by Johnson is excessive, it presented no evidence to support its contention. Rather, the unrebutted evidence of record established that the reasonable attorney’s fees and costs incurred by Johnson in the proceedings before PERC was $12,431.00.
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 Petitioner, Eugenia Mays, has demonstrated by clear and convincing evidence that she should not be disqualified from employment in a position involving direct contact with developmentally disabled persons; and, thus, whether Respondent’s intended action to deny Petitioner’s request for an exemption from employment disqualification is an abuse of discretion.
Findings Of Fact APD is the state agency responsible for licensing and regulating the employment of persons in positions of trust, and is charged with serving and protecting adults or children with developmental disabilities, sometimes referred to as vulnerable individuals.2/ Vulnerable populations served by APD may include individuals with developmental and intellectual disabilities, autism, cerebral palsy, spina bifida, Prader-Willi syndrome, and Down syndrome. Some of APD’s clients are incapable of expressing their needs or unable to express whether something is wrong. APD also has administrative jurisdiction to enforce the laws governing such licensees. Petitioner is a 55-year-old female seeking licensure from APD to serve as a direct care provider for Respondent’s clients. As part of the application process for employment as a direct service provider, Petitioner was subject to a routine pre- employment background screening pursuant to section 435.04, Florida Statutes. The screening revealed the existence of several disqualifying criminal incidents in Petitioner’s past. In 1987, 1990 and 1994, Petitioner was convicted of possession of cocaine, possession of cocaine with the intent to sell, and the sale of cocaine. Additionally, there were several non- disqualifying events in Petitioner’s background. On January 9, 2017, Petitioner executed her Request for Exemption, which was filed with the Department of Children and Families (DCF).3/ DCF conducts the initial screening of all applicants by making sure all the required documents are present and then it conducts the initial background investigation for APD. Background screening and local criminal records revealed a history of involvement with law enforcement. Petitioner admitted and took full responsibility for the offenses in both the paperwork she filed with APD and in her testimony at hearing. DCF then issued a “high level summary” to APD. Among the items submitted by Petitioner in support of her Request for Exemption were her employment history record, information regarding the final court dispositions of the arrest reports and/or charging affidavit; information regarding the completion of sanctions; her proof of rehabilitation; letters of recommendation; her personal history; an executed affidavit of good moral character; the non-disqualifying issues; and an updated local law result. Several letters were sent to Petitioner seeking additional information, and Petitioner responded to the best of her ability to each request for information. Once Ms. Jones received the DCF summary, she reviewed Petitioner’s documentation. She then checked the court and other systems for any additional charges that may not have been included by the Florida Department of Law Enforcement or the Federal Bureau of Investigation. Ms. Jones also verified that any court-ordered sanctions were completed. Ms. Jones had access to state and federal government databases, including a comprehensive case information system to ensure that all fines and fees were paid, and she checked the applicant’s “driving record through the DMV.” Additionally, she checked Petitioner’s “eligibilities through AHCA and Medicaid.” Ms. Jones then prepared a summary packet, which was provided to the ROM. The ROM must review the packet within a certain time frame and provide a recommendation to the State Office Committee (SOC). ROM Smith identified the factors that he considered when making his recommendation: the disqualifying offense(s); the circumstances surrounding the offense; any proof or some evidence of rehabilitation or counseling; any show of “some remorse and/or ownership of the charges that have been filed”; the possible consequences to “the health and safety of the individuals that” APD serves; and “any non-disqualifying offenses that may have been charged against the individual.” ROM Smith recommended denial of Petitioner’s exemption request. Upon receipt of the ROM’s recommendation, Ms. Jones then prepared a recommendation summary and presented that to the SOC. The SOC consists of APD’s chief of staff and a program administrator from the regional support unit. An APD attorney was present for legal advice. Ms. Jones identified the factors that APD’s SOC considers in making the recommendation for the denial of an exemption request as: “any arrests or criminal convictions after the original disqualifying offense; the employment history; training and education; professional references”; driving record; other agency exemptions or involvement with other agencies; and any inspections or exemptions of the other agencies. Ms. Jones averred that APD takes “into account those inspections or those exemptions.” Once the SOC made its recommendation, Ms. Jones took the two recommendations (the ROM’s and the SOC’s) to APD’s director who reviewed the material to make the final decision. Ms. Jones averred that “most of the time common sense is used” when APD approached the question of rehabilitation standards. That if the issue involved a drug-related offense, one would look for drug rehabilitation, and if that were missing, “that is a lack of responsibility on the applicant’s part.” A review of Petitioner’s application, and her uncontroverted testimony confirmed that she has been employed in several successful occupations since 1990. Petitioner’s first business, started in 1990, was Precise Nail and Beauty Salon (Salon). When the economy went down, Petitioner determined she needed a second job and that is when she started working for a home companion company in Bradenton. The Salon continues in operation today. Petitioner did research to begin her own home companion company and started Precise Home Companions (PHC). PHC is a non- medical operation, which is certified through the state to go into private homes and provide non-medical home care. This care includes preparing meals, doing laundry, making their beds, helping persons with their bills, taking them to and from doctors’ appointments, and whatever other activities they need. Petitioner successfully completed a Level 2 background screening and took the classes and/or training necessary for the license. Petitioner obtained the requisite insurance and continues to hold the appropriate bond for PHC. In setting up PHC, Petitioner was given access to conduct background screenings to hire more staff. Once the staff was on board, Petitioner had to ensure they had training and were tested for “TB.” Petitioner was responsible for making sure the six employees recorded their work hours in order for the payroll service to issue their pay. Petitioner recognized another area of need when a PHC client needed more attention than PHC could provide. Petitioner researched and opened an adult family care home. Petitioner’s adult family care home (AFCH) is licensed by the Agency for Health Care Administration (AHCA). AFCH is Petitioner’s responsibility and she maintains the requisite insurance and bond. AFCH is a home which provides room and board for up to five elderly clients, although only four were in residence on the hearing date. The clients may need assistance with their activities of daily living. AFCH also keeps the residents busy with various activities, outings and events. Disqualifying Offenses Petitioner testified that her “downfall,” as she refers to it, occurred in and before 1994. Between 1987 and 1994, Petitioner (when she was between 25 and 31 years of age) was convicted of possession of cocaine with intent to sell, sale of cocaine, and possession of cocaine, all disqualifying offenses. Petitioner steadfastly maintained that she has never used drugs, but possessed and sold them in order to support her children. No evidence was presented to establish that Petitioner ever used drugs. Petitioner admitted that it was her “decision to do wrong,” and she took full responsibility for those actions. However, Petitioner was clear that it was also her determination to change when she realized she had been wrong. Petitioner did change and for the past 23 years has not had a disqualifying offense. Petitioner changed her environment. She joined a church and became very active in it. She divorced her then- husband who she found to be using drugs. Petitioner recently married a man with a bachelor’s degree in rehabilitation counseling. Petitioner completed the sanctions imposed by the courts, and all fees and costs related to the disqualifying offenses were paid. For the past 23 years, Petitioner has not had any disqualifying offenses. Marvin Smith has known Petitioner for approximately ten years, having married Petitioner’s mother. Smith visits in Petitioner’s home once or twice a month, and does not think her residence is a “destructive environment.” Smith has attended church with Petitioner, and sees her lifestyle as “moving in the right direction.” Further, in the ten years Smith has known Petitioner, he has never seen her act in a violent manner.4/ Marvina Johnson-Allen has known Petitioner for over 20 years, and has witnessed Petitioner caring for people in her church and home. Additionally, Johnson-Allen provided insight into the various successful businesses that Petitioner has started, and Petitioner’s volunteer work in the community. Kathy Barnes has known Petitioner for over ten years, having met her at Petitioner’s beauty salon. Barnes was not Petitioner’s employee, but as a customer, Barnes watched Petitioner work hard. In over ten years, Barnes has never seen Petitioner use drugs or alcohol. At one point Barnes had major surgery, and without being asked by Barnes, Petitioner supplied housekeepers to enable Barnes to recover from the surgery. Edward Gresham has known Petitioner for approximately three years, and is now Petitioner’s husband. Gresham works as a rehabilitation counselor in the health care field, and also works in the home that Petitioner operates. Gresham has successfully cleared a Level 2 background check. Further, he has observed Petitioner ensuring that residents are clothed in their own clothes, are fed, and receive their allowances. In the three years he has known Petitioner, Gresham has not seen Petitioner use alcohol or illegal drugs. Non-Disqualifying Offense APD focused on (in addition to the drug rehabilitation issue) Petitioner’s driving record, and her designation as a habitual driving offender. The basis for this focus was a concern that Petitioner might drive a client to an appointment. Petitioner recently completed a driver’s education course, from which she learned a great deal about her responsibilities as a driver. She paid the fines associated with the offender status, and she has a current, valid work driver’s license. Petitioner anticipates obtaining a completely clear driver’s license in June 2018. In denying the request for exemption, APD “considered all available information that led to [Petitioner’s] disqualification, as well as all information provided by” Petitioner regarding the disqualification. APD denied Petitioner’s request because she had “not submitted clear and convincing evidence of [her] rehabilitation.” Other Attributes of Significance Petitioner has worked consistently over a sustained period in a position in which she cares for multiple persons. By all accounts, Petitioner is a reliable, kind, caring and diligent worker, and her current continuous employment demonstrates that she can be trusted to work appropriately in situations involving vulnerable adults. Petitioner is licensed by AHCA. She holds an exemption from AHCA which has been appropriately renewed since its issuance. Petitioner is allowed to participate in the Medicaid program as a provider. Petitioner completed courses necessary to obtain the requisite licenses. Section 435.07, Florida Statutes, the controlling statute regarding the exemptions from disqualification, provides the following, in pertinent part: Exemptions from disqualification.—Unless otherwise provided by law, the provisions of this section apply to exemptions from disqualification for disqualifying offenses revealed pursuant to background screenings required under this chapter, regardless of whether those disqualifying offenses are listed in this chapter or other laws. (1)(a) The head of the appropriate agency may grant to any employee otherwise disqualified from employment an exemption from disqualification for: Felonies for which at least 3 years have elapsed since the applicant for the exemption has completed or been lawfully released from confinement, supervision, or nonmonetary condition imposed by the court for the disqualifying felony; * * * (b) A person applying for an exemption who was ordered to pay any amount for any fee, fine, fund, lien, civil judgment, application, costs of prosecution, trust, or restitution as part of the judgment and sentence for any disqualifying felony or misdemeanor must pay the court-ordered amount in full before he or she is eligible for the exemption. For the purposes of this subsection, the term “felonies” means both felonies prohibited under any of the statutes cited in this chapter or under similar statutes of other jurisdictions. * * * (3)(a) In order for the head of an agency to grant an exemption to any employee, the employee must demonstrate by clear and convincing evidence that the employee should not be disqualified from employment. Employees seeking an exemption have the burden of setting forth clear and convincing evidence of rehabilitation, including, but not limited to, the circumstances surrounding the criminal incident for which an exemption is sought, the time period that has elapsed since the incident, the nature of the harm caused to the victim, and the history of the employee since the incident, or any other evidence or circumstances indicating that the employee will not present a danger if employment or continued employment is allowed. The agency may consider as part of its deliberations of the employee’s rehabilitation the fact that the employee has, subsequent to the conviction for the disqualifying offense for which the exemption is being sought, been arrested for or convicted of another crime, even if that crime is not a disqualifying offense. The decision of the head of an agency regarding an exemption may be contested through the hearing procedures set forth in chapter 120. The standard of review by the administrative law judge is whether the agency’s intended action is an abuse of discretion. * * * (5) Exemptions granted by one agency shall be considered by subsequent agencies, but are not binding on the subsequent agency. Rehabilitation is not defined in statute or rule. Petitioner’s last disqualifying offenses occurred in 1994, approximately 23 years ago. At some point, the passage of time itself, without any disqualifying offenses, must be evidence of rehabilitation. While by no means dispositive, the passage of 23 years since the last disqualifying offense is substantial evidence of Petitioner’s rehabilitation. Petitioner’s forthright demeanor and her willingness to discuss her “downfall” and her determination to turn her life around are significant. Petitioner testified convincingly that she has turned her life around, and is not the same person that she was 23 plus years ago. Petitioner has successfully worked with elderly persons in a positive and helpful manner, and currently presents no danger to the vulnerable population served by Respondent. The concerns outlined by Respondent in its decision letter, without the benefit of the hearing testimony, were refuted by the credible testimony adduced at hearing. Common sense tells a huge story of Petitioner’s rehabilitated life. Petitioner meets the objective criteria for an exemption from disqualification as established by section 435.07(1).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Agency for Persons with Disabilities granting Petitioner’s request for an exemption from disqualification. DONE AND ENTERED this 12th day of January, 2018, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 12th day of January, 2018.
The Issue The issue in this case is whether Petitioner is eligible for licensure as a real estate sales associate.
Findings Of Fact Petitioner was born on October 2, 1969. On or about November 30, 2005, Petitioner applied to the Commission for a real estate sales associate license. Question No. 1 was one of four questions on the application that asked the applicant to provide background information about himself/herself. Question No. 1 provided in pertinent part the following: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendre (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. . . . The application directed applicants, who responded "yes" to Question No. 1, to provide details regarding "any criminal conviction, . . . including the nature of the charges, dates, outcomes, sentences, and/or conditions imposed." Petitioner answered Question No. 1 in the affirmative. In accordance with the directions on the application, Petitioner provided the details related to all the criminal matters with which she had been charged and/or convicted and the ultimate disposition or action taken as a result thereof. Petitioner was forthright and honest in disclosing the background information that was requested. In all, Petitioner listed ten separate offenses on a form that was submitted as part of her application packet. For each offense, Petitioner was required to and did provide the type and description of the offense; the date and place (county and state) the offense occurred; and the penalty imposed and/or the disposition of the matter. Finally, in accordance with the directions on the application, Petitioner indicated whether all sanctions had been satisfied, with respect to each offense. Petitioner listed a "disorderly conduct" offense which occurred on November 26, 1988, in Hillsborough County, Florida. This incident involved an altercation with a family member (her mother) and resulted in the police being called. As a result of this incident, Petitioner received counseling and adjudication was withheld. At the time of this incident, Petitioner was 19 years old. Petitioner listed an offense related to passing six worthless checks. At the time of this offense, Petitioner was 24 years old. This offense occurred in Hillsborough County, Florida, on October 22, 1993. As a result of this offense, Petitioner was put on six months' probation. Petitioner paid the checks and the required fines and also successfully completed probation. Adjudication was withheld in the case. According to Petitioner, the worthless check charge was the result of her allowing her brother to rent a car, using Petitioner's debit/checking card. When Petitioner's brother kept the rental car longer than he had agreed to, the rental company assigned the additional charges to her debit card. At the time this occurred, Petitioner was unaware that her brother had kept the rental car for an extended time and that the additional rental car charges were debited from her checking account, thereby reducing her checking account balance. As a result, there was no money in her account to pay for several (presumably six) checks that Petitioner had written on that debit/checking account. Between June 1994 and April 1996, Petitioner was involved in four offenses involving theft. Three of the four offenses involved petty theft and one involved grand theft. Petitioner described these four "theft" offenses on her application as set forth in paragraphs 11 through 14. On December 9, 1994, Petitioner was charged with grand theft and resisting a merchant. The incident which led to this charge occurred in Marion County, Florida. In describing the incident which resulted in the grand theft charge, Petitioner stated that she was with two people who were shoplifting and one of those people gave her the merchandise (clothes) to take to the vehicle. As to the incident which led to the resisting merchant charge, Petitioner stated that as she was "exiting the door, a man came behind me and grabbed me by the neck without [identifying] himself." In response to this action, Petitioner stated that she "snatched away" from the man. As a result of the foregoing offenses, Petitioner was placed on three (3) years probation. Adjudication was withheld upon Petitioner's successful completing probation. On March 29, 1995, Petitioner was charged with petty theft as a result of her "shoplifting a watch that was $12.99." Petitioner was convicted of this offense and placed on six months' probation. Petitioner completed her probation and paid all applicable fines. On May 19, 1995, in Hillsborough County, Petitioner was charged with petty theft. According to Petitioner, she was pulled over for a traffic violation and after the law enforcement officer(s) ran a check of the tag, it was determined that the tag had been reported as stolen. Petitioner indicated that she was unaware that the tag was stolen. Petitioner was found guilty of petty theft for this incident and was put on probation for one year. Petitioner satisfied all sanctions imposed for this conviction. On April 26, 1996, Petitioner was charged with and convicted of petty theft, in Hillsborough County, Florida. This offense was the result of Petitioner's "shoplifting [a] tool [worth] less than $10.00." As a result of her conviction of this petty theft charge, Petitioner was put on probation for one year. Petitioner completed the probationary period. Petitioner was charged on two separate occasions with violation of probation. Both of these charges relate to Petitioner's probation as a result of the grand theft and resisting merchant conviction discussed in paragraph 11 above. The first charge of violating probation occurred on June 6, 1995, in Alachua County, Florida, when Petitioner went to court on the petty theft charge, based on the March 1995 shoplifting incident in that county. When Petitioner appeared in court for that petty theft charge, a warrant was issued for a probation violation in connection with the grand theft conviction in Marion County. As a result of the probation violation, Petitioner's probation in Marion County was reinstated and Petitioner attended counseling for six weeks. Adjudication was withheld in this probation violation case. On December 5, 1997, Petitioner was, for the second time, charged with violating her probation. Based on Petitioner's explanation, this violation of parole was related to Petitioner's changing her address and about "new [criminal] charges."6 As a result of this probation violation, her probation was reinstated until the required fee was paid. Apparently, the fee was paid, and thereafter, Petitioner's probation was terminated in June 1998. During the period of time between 1994 and 1996, Petitioner was charged, on two separate occasions, with driving with a suspended license. Petitioner was first charged with driving with a suspended license on June 6, 1994, in Alachua County, Florida, after she was pulled over for a traffic violation. For this offense, Petitioner was placed on six-month non-reporting court probation. All sanctions were satisfied and adjudication was withheld. On August 31, 1996, in Hillsborough County, Florida, Petitioner was, again, charged with driving with driving with a suspended license. In this case, Petitioner paid outstanding tickets and adjudication was withheld. Petitioner appears remorseful about the criminal activities in which she engaged. She testified that the time period in which most of the criminal activities occurred was a difficult time in her life, having recently experienced the death of two close relatives (her father and grandmother) and a close friend. According to Petitioner, this was a traumatic time in her life and the events (the deaths of three people with whom she had close relationships) that occurred near that time affected her behavior. Petitioner explained that soon thereafter, she moved to Gainesville, where she had previously attended college, and got involved with the "wrong" crowd. It is undisputed that Petitioner has not been charged with a criminal offense for over nine years. Furthermore, there is no evidence that Petitioner has been involved in any criminal activity since completing her probation in June 1998. Since 1996, Petitioner has worked on a regular basis and held positions of responsibility. From 1996 through 1998, Petitioner worked in a six-doctor office as an office clerk. In that position, she posted payments and assisted in collections. In 1998 through 1999, Petitioner worked for a cars sales company and was the lead collection person for the dealership. In 2000, Petitioner returned to the six-doctor office, where she had previously been employed. This time, Petitioner worked in the collections area and was also the internal computer person for the office. After leaving the six-doctor office, Petitioner went to work for a collection agency as a free agent. In addition to the foregoing positions, Petitioner has worked in marketing, where she increased her client base from six (6) to seventy-one (71). At the time of the hearing, Petitioner was self-employed in business aimed at assisting customers with "credit repair." In about 1998, Petitioner joined a church in Tampa. Petitioner is still an active member of that church and is involved in several church activities. Currently, Petitioner is in the church choir and is secretary of the young adult women mission circle. Petitioner is a volunteer in various community service activities. Currently, Petitioner is a volunteer coach for a youth basketball team at the Boys and Girls Club. Petitioner also serves as a mentor to children. Hector Cordero, a member of the same church as Petitioner, and a personal friend of Petitioner7 testified on Petitioner's behalf and vouched for her honesty and integrity. Petitioner's testimony regarding her past criminal offenses, her employment history, and her community service activities is found to be credible. Notwithstanding the credible testimony of Petitioner, she has failed to comply with a directive of the Commission. In a letter advising Petitioner of the meeting at which her application would be considered, the Commission directed Petitioner to furnish at least three letters from persons who know of her honesty, truthfulness, trustworthiness, good character and good reputation, two of which must be from individuals not related to her. The letter explicitly stated the letters of recommendation would assist the Commission in determining her eligibility for licensure. As of the date of this hearing, there is no evidence that Petitioner ever provided the requested letters of recommendation. At this proceeding, Petitioner was given the opportunity to provide letters of recommendation. Such letters could have been from previous employers, community organizations and others with whom she had worked, who know of and could vouch for Petitioner's honesty, truthfulness, trustworthiness, good character and good reputation. Also, these letters of recommendations could verify and support Petitioner's employment history and community service activities for the past nine or ten years and thereby show rehabilitation. Although the record in this case was left open to provide Petitioner an opportunity to late-file letters of recommendation for consideration, she failed to provide any such letters or documentation. In view of the fact that Petitioner's criminal history spanned nine years, it was important that she provide evidence that established that she met the eligibility requirements for the licensure as noted in Subsection 475.17(1), Florida Statutes. Also, in light of her criminal background, Petitioner should have provided evidence to demonstrate that she is now rehabilitated and will pose no threat to the public and investors. The evidence presented by Petitioner in this case is insufficient to demonstrate that she meets the eligibility requirements for licensure as a real estate sales associate and that she is rehabilitated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Real Estate Commission enter a final order denying Petitioner's application for licensure as a real estate salesperson. DONE AND ENTERED this 9th day of January, 2007, in Tallahassee, Leon County, Florida. S 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 9th day of January, 2007.
