The Issue Whether or not Charles D. Reynolds, on January 7th, 1976, was arrested and charged with DWI, Aggravated Assault, and Resisting Arrest without Violence; the charge of DWI was reduced to driving with an unauthorized blood alcohol level; Charles D. Reynolds plead guilty, was adjudicated guilty and paid a fine of $200 plus court costs; the aggravated assault charge was nol prossed; he plead guilty and was adjudicated guilty of Resisting Arrest without Violence and paid a fine of $250 plus court costs, his license was revoked, and he was sentenced to DWI School; and due to the above misconduct has failed to perform his duties as an educator as described in Section 231.09, Florida Statutes, thereby subjecting himself to the penalties found in Section 231.28, Florida Statutes. Whether or not Charles D. Reynolds, on December 25th, 1976, was arrested and charged with DWI, and resisting arrest with violence; he plead guilty to the lesser including Offense of Assault on a Law Officer, was put on one year's probation, sentenced to spend weekends in Jail for a period of three months beginning June 11th, 1977; he was allowed to vacate the guilty plea and plead nolo contendere to the charge of Assault on a Law Enforcement Officer with the same conditions as the guilty plea; and due to the above misconduct has failed to perform his duties as an educator as described in Section 231.09, Florida Statutes, thereby subjecting himself to the penalties found in Section 231.28, Florida Statutes.
Findings Of Fact The Respondent, Charles D. Reynolds, is presently the holder of Florida Teacher's Certificate Number 316529, Graduate Rank III and is employed in the public schools of Duval County, Florida. This cause has been brought for consideration based upon a recommendation by the State of Florida, Department of Education, Professional Practices Council, Executive Committee, dated May 17th, 1977. Upon examination of the recommendation, the Commissioner of Education found probable cause for filing a petition for the suspension of the Respondent's Florida Teacher's Certificate within the meaning of Section 231.28, Florida Statutes, and in accordance with Rule 6A-4.37, F.A.C. This determination was made on May 17th, 1977. On May 23rd, 1977, a petition for the suspension of the Respondent's Florida Teacher's Certificate was filed. The Respondent has filed his answer to the petition and has opposed the entry of an order of suspension. The case has been forwarded to the Division of Administrative Hearings for consideration by correspondence from the Petitioner dated July 14th, 1977. On January 7th, 1976, Respondent, Charles D. Reynolds a/k/a Chuck Daniel Reynolds was involved in an automobile accident in the parking lot of his residence at the Arrowhead Apartments located in Jacksonville, Florida. Officers of the Jacksonville Sheriff's Office investigated the case and in the course of the investigation asked to enter Respondent's apartment to obtain his driver's license. Reynolds was opposed to them entering his apartment, but they did go in. Reynolds went to the bedroom and obtained the license and came back into the living room area. At that point he became angry with the officers and took a swing in the general direction of a Sergeant Branch. The other officers subdued Reynolds and handcuffed him. He was subsequently taken to the hospital for treatment of wounds received in the scuffle. In addition to the events described, Reynolds also made verbal threats against the witnesses to the accident, to the effect that he would get even with them. During the course of this entire exchange, Reynolds appeared intoxicated as evidenced in slurred speech, erratic actions, excitability and a strong odor of the substance alcohol. He continued to be belligerent and kicked the side of the police car while being transported. It should be indicated that the Respondent did not carry out any of the verbal threats that he made. As a result of the incident, the Respondent was charged with DWI, aggravated assault, and resisting arrest without violence. The charge of DWI was reduced to driving with an unauthorized blood alcohol level and a guilty plea was entered for which he was fined in the amount of $200.00. The aggravated assault charge was nol prossed. The further provision of his sentence was that he attend the DWI school. The particulars of this case may be found in the Petitioner's composite exhibit 1 admitted into evidence, which describes the pleas and the judgment and sentence. The Respondent was fined in the amount of $250.00 for his plea of guilty to resisting arrest without violence. The second incident for which Respondent is charged in the Petition for Suspension, pertains to events on December 25th, 1976. On that date officers of the Jacksonville Sheriff's Office were traveling east on 103rd Street, in Jacksonville, Florida. Reynolds was going west, driving with his bright lights on and straying into the oncoming lane in which the officers were driving. The time was approximately 1:30-2:00 a.m. The officers turned around and pursued Reynolds, who at one point in the pursuit pulled off the road to avoid the officers. The officers finally caught Reynolds on Interstate 295 in Duval County, Florida. After making the stop, they removed Reynolds from the car and noted that he had a strong odor of alcohol about his person, and was staggering around. One officer administered so-called field sobriety tests , specifically the finger to nose and balance test. In the finger to nose test the individual tries to place an index finger on his nose while standing in a certain posture. Reynolds was unable to do this and was also unable to stand on one foot in attempting the balance test. The officers felt that Reynolds was driving while under the influence of alcohol; however, being Christmas Day they intended to give Reynolds the opportunity to have someone come and pick him up and drive his car home, and waive charges. When this was explained to Reynolds, Reynolds replied that he wanted to get back in his car, for purposes of driving away. The officers prohibited him from getting in the car, at which point a struggle ensued between the officers and Reynolds for a period of minutes. Most of the struggle was in the traffic lanes of Interstate 295. In the end, Reynolds was charged with DWI, a couple of traffic violations and resisting arrest with violence. After the struggle Reynolds indicated that the officers were going to be sorry for, "screwing with me." He was taken to the Duval County, Florida Jail and booked for the offenses and given a breathalizer examination which showed his reading to be .27 percent blood alcohol level. This reading nay be found in Petitioner's Exhibit 3 admitted into evidence. He entered a plea of guilty to the lesser included offense under resisting arrest with violence, to wit assault on a law enforcement officer. The Court withheld the adjudication of guilt and placed the Respondent on probation for a period of one year on the condition that he spend weekends in jail for a period of three (3) months, beginning on June 11th, 1977, and pay $10.00 per month for cost of supervision. This plea was subsequently withdrawn and the Court allowed a plea of nolo contendere to be entered in lieu of the guilty plea. The Court also allowed a motion to mitigate the sentence, which motion was filed prior to the imposition of the petition for suspension made by the Petitioner in this cause. The Court's Order Granting the Motion to Mitigate was entered subsequent to the Petition for Suspension made by the Petitioner. The probation terms were modified by memorandum of June 9th, 1977, from the Court, deleting the provision to spend weekends in jail. Subsequently, the Respondent was required to spend time working in a program known as the Jacksonville Probation and Restitution Center, working with young offenders. (The Director of that program testified in the hearing and indicated that Mr. Reynolds did an admirable job of assisting in the program.) For the violations alleged on January 6th, 1976 and December 25th, 1976, the Petitioner has charged Respondent with violations of Section 231.09 and .28, F.S. The two incidents will be discussed chronologically in considering whether the Petitioner has proven the violations or not. The first factual incident discussed pertains to the events of January 7th, 1976. In reviewing the events that led to the arrest and charges previously discussed and the subsequent disposition of those charges in terms of a possible substitute violation of Section 231.09, F.S., the only provision of that section which would seen to have any application would be Section 231.09(2) F.S. No other sub-paragraphs of Section 231.09, F.S. seem to have application under the evidential facts established. The subsection that does have application, i.e., Section 231.09(2), F.S. reads as follows: "EXAMPLES FOR PUPILS -- Labor faithfully and earnestly for the advancement of the pupils in their studies, deportment and morals, and embrace every opportunity to inculcate, by precept and example, the principles of truth, honesty and pat- riotism and the practice of every Christian virtue." This provision of the chapter has been considered in the case of Meltzer vs. Board of Public Instruction of Orange County, Florida, etc., et al., 548 F.2d 559 (5th Circuit Court of Appeals), in that opinion the Court held Section 231.09(2), F.S., to be unconstitutional. However, on petition for rehearing and petition for rehearing en banc, reported at 553 F.2d 1008, The United States Fifth Circuit Court of Appeals, granted rehearing with the right for oral agreement and the opportunity to submit supplemental briefs, with the date of the oral agreement to be announced in the future. The rehearing has not been held at the time of this recommended order, to the knowledge of the undersigned. Consequently, the undersigned will report whether the evidential facts as demonstrated established a violation under the language of Section 231.09(2), F.S., with a caveat that this section may not withstand the final order of the Court in Meltzer, supra. Should Section 231.09(2), F.S. be upheld, the acts of being arrested and pleading guilty to driving with an unlawful blood alcohol level and resisting or opposing a police officer without violence constitute violations of Section 231.09(2), F.S., both in terms of the entry of the plea in those two counts and in terms of the underlying evidential facts which led to the plea of guilty. These facts establish that the Respondent failed to labor faithfully and honestly for the advancement of the pupils in their department and morals, in accordance with Section 231.09(2), F.S., assuming this latter section of the law to be constitutional. Again, the evidential facts spoken of are those established in the events reported in the hearing pertaining to the incident of January 7th, 1976, in which Respondent was driving with an unlawful blood alcohol level and resisted the police without violence. In connection with the events of January 7th, 1976, there is a further allegation of a violation of Section 231.28, F.S. In pertinent part, Section 231.28(1), F.S., states that the license can be suspended in accordance with the following language: * * * "(1) It can be shown that such person obtained the teaching certificate by fraudulent means, or has proved to be incompetent to teach or to perform his duties as an employee of the public school system, or to teach in or to operate a private school, or has been guilty of gross immorality or an act involving moral turpitude, or has had his certificate revoked in another state, or has been convicted of a mis- demeanor, felony, or any other criminal charge, other than a minor traffic vio- lation , or upon investigation has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board, or has otherwise violated the provisions of the law, the penalty for which is the revocation of the teaching certificate, or has refused to comply with the re- gulations of the State Board of Education or the school board in the district in which he is employed." In reviewing the language of that section in comparison to the facts established in the events of January 7th, 1976, it is established that Respondent is guilty of a violation of that section because he has plead guilty to driving with an unauthorized blood alcohol level and resisting arrest without violence, which are misdemeanors or other criminal charges, other than minor traffic violations. This activity was also an act involving moral turpitude. No other violations of this section were shown as a result of the matters of January 7th, 1976. Turning to a consideration of the factual matters established in this hearing as it pertains to December 25th, 1976, and in view of the discussion of Section 231.09(2), F.S., pertaining to January 7th, 1976, a violation has been shown. The events of December 25th, 1976, are likewise subject to the caveat pertaining to the case of Meltzer, supra. The events of the arrest and subsequent pleas in Court after the factual events of December 25th, 1976, have shown the Respondent has failed to labor faithfully and honestly to the advancement of pupils and their deportment and morals, by his condition while driving and by his resistance to the authorities who were trying to enforce the laws of the State of Florida. No other violations of Section 231.09, F.S., were shown for the December 25th, 1976 incident. The events of December 25th, 1976, show a violation of Section 231.28(1), F.S., in that the act of the Respondent's driving and resistance to the authorities who were enforcing the laws of the State of Florida were acts involving moral turpitude. Also by the entry of the plea of nolo contendere which the Court accepted in lieu of the guilty plea, the Respondent has been convicted of a misdemeanor other than a minor traffic violation. No other violations of Section 231.28, F.S. were shown for the events of December 25th, 1976. By the guilty plea entered to the offenses of driving with an unlawful blood alcohol level and resistance without violence in the charges of January 7th, 1976, and the nolo contendere plea to the offense of assault on a law enforcement for the events of December 25th, 1976, the Petitioner has made a prima facie proof of grounds for revocation of the Respondent's teaching certificate, as set forth in Section 231.28(3), F.S. These prima facie grounds have not been refuted by the Respondent.
Recommendation In the course of the hearing, certain witnesses testified as to the Respondent's good character and teaching proficiency. These witnesses were various members of the community and members of the staff of the school in which the Respondent teaches and pupils of the Respondent. Although these witnesses were not aware of the events involved in the incidents of January 7th, 1976, and December 25th, 1976, they were nonetheless impressed with Respondent's abilities as a teacher. In considering their testimony and the testimony offered which established the alleged violations, it is
The Issue Whether Respondent should take final action to deny Petitioner's application for a real estate sales associate license on the ground that Petitioner was found guilty, in the State of Georgia, of the crime of theft by taking.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: On June 12, 2006, Petitioner was working as a clerk at a UPS store in Cherokee County, Georgia, when he "gave in to temptation" (as he described it at hearing) and stole $500.00 in cash from an envelope given to him by a customer for shipment to the customer's former wife in Kansas. When the customer's former wife received an empty envelope, she notified the customer, who, in turn, called the police. On June 16, 2006, the police went to the UPS store to investigate the matter. When questioned by the police during their visit to the store, Respondent admitted to stealing the $500.00. He was thereupon placed under arrest and, thereafter, criminally charged. On October 16, 2007, in Cherokee County, Georgia, State Court, Petitioner was found guilty of the misdemeanor crime of theft by taking and sentenced to 12 months' probation. Among the conditions of his probation was that he provide "proof of repay[ment]" of the $500.00 he had stolen. Petitioner has not been arrested again, and he has returned to its rightful owner the $500.00 he had stolen and has otherwise completed his probation. The record evidence, however, does not reveal how long ago Petitioner's probation was completed; nor, more importantly, does it shed any light on what Respondent has done with his life (other than completing his probation and not getting arrested) since the theft which led to his being placed on probation, or what his present reputation is for honesty, trustworthiness, and fair dealing. The record evidence, therefore, is insufficient to establish that there is reason to believe that, notwithstanding his commission of the aforementioned theft, it is not likely he would act dishonestly or in any other manner endangering the public were he to be granted the real estate sales associate license he seeks.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Real Estate Commission issue a Final Order denying Petitioner's application for licensure as a real estate sales associate. DONE AND ENTERED this 5th day of December, 2011, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 2011. COPIES FURNISHED: Kevin Vaughn, Jr. 931 Village Boulevard, Apartment 905-203 West Palm Beach, Florida 33409 Tom Barnhart, Esquire Special Counsel Office of the Attorney General Plaza Level 01, The Capitol Tallahassee, Florida 32399-1050 Roger P. Enzor, Chair, Florida Real Estate Commission 400 West Robinson Street, N801 Orlando, Florida 32801 Layne Smith, General Counsel, Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether an administrative fine should be imposed on Respondent for unlawfully selling "spirituous beverages" on its licensed premises, as alleged in the Administrative Action served by Petitioner on March 17, 1999.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this disciplinary action, Petitioner, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (Division), seeks to impose penal sanctions on the license of Respondent, Polpo Mario, Inc., doing business as Polpo Mario Ristorante, on the ground that on February 24, 1999, an employee of the establishment served a Division special agent a shot of vodka and a shot glass containing a mixture of vodka and amaretto, none of which could be lawfully sold under Respondent's license. After this proceeding began, the restaurant was voluntarily closed by the owner. Respondent has denied the charge and requested a formal hearing to contest this allegation. In his request for a hearing, Respondent contended that the employee who served the drinks was actually a bus boy and had no authority to wait on customers; that the bus boy was pressured into making the sale; that the employee was "slightly retarded"; and that the chef occasionally used amaretto in preparing a special dessert. Except for the latter assertion, none of these defenses was established at the final hearing. Respondent is subject to the regulatory jurisdiction of the Division, having been issued license no. 68-01763, Series 2COP. That license allows Respondent to make sales of beer and wine for consumption on the premises of its restaurant located at 3131 Clark Road, Sarasota, Florida. The license does not, however, authorize the sale of "spirituous beverages," such as vodka, whiskey, and liquors, which contain more than six percent of alcohol by volume. Besides the above license, Respondent also holds licenses from the Division for three other restaurants, including a Series 4COP, SRX license, which authorizes the sale of all types of alcoholic beverages in conjunction with food sales. This type of license has an annual fee of $1,820.00. On November 6, 1998, a Division auditor, Eileen O'Shea (O'Shea), performed a routine audit of Respondent's corporate offices. Such audits are required to be performed at least once every three years. During the course of the audit, O'Shea examined various invoices from liquor dealers, including one which suggested that liquor may have been transferred from one of the restaurants holding a Series 4COP, SRX license to Polpo Mario Ristorante. O'Shea cautioned Respondent's president, Joseph Casadio (Casadio), and his wife, that under a Series 2COP license, they were not authorized to sell or have alcoholic beverages on the licensed premises. She also gave them a copy of the state statutes which contained this restriction, and O'Shea suggested that if any liquor was kept in the kitchen for food prepration purposes, that the bottle be marked with a "K." She further advised them that if they intended to use alcoholic beverages for preparing certain special dishes, they must obtain written approval from the Division to do so. There is, however, no statutory or rule authority for this requirement. Finally, she referred her findings to a Division special agent. Both Casadio and his wife acknowledged to O'Shea that they now understood the requirements and that no laws were being violated. Casadio also told her that he had once served customers an after dinner expresso with Sambuca (a liquor) without charge, but he no longer did so. Around 6:15 p.m. on February 24, 1999, and presumably in response to O'Shea's referral, Division special agent Samuel J. Funaro (Funaro) visited the licensed premises of Respondent for the purpose of attempting to purchase spirituous beverages. Funaro was greeted by Gerard Woel (Woel), an employee who seated Funaro at a table near the bar and handed him a menu. Besides Woel, there were two other female waitresses on duty that evening, including Kim Mitchell (Mitchell). None of these former employees, or any others, testified at the final hearing; however, their out-of-court statements have been treated as admissions by employees of a party and therefore an exception to the hearsay rule. Although there were several special entrees shown on a display board at the entrance to the restaurant, none were desserts. Funaro ordered an Eggplant Parmigiana as his entree and a bottle of Budweiser beer to drink. He also asked Woel for a whiskey chaser to go with his beer. Woel departed and returned from the kitchen a few minutes later with a shot glass containing a clear liquid. The parties have stipulated that the liquid was vodka. Woel remarked that the vodka came from a bottle kept by the chef in the kitchen. By serving that drink, Respondent exceeded the authority under its license. At a later point in his meal, Funaro ordered a second bottle of beer and another whiskey chaser. A few minutes later, Woel returned with a shot glass containing a brownish colored liquid and explained that it represented the last vodka in the chef's bottle along with a small amount of amaretto, which was the only other alcoholic beverage in the kitchen. Although Funaro did not retain a sample of the drink, based on his experience, he concluded that the shot glass did in fact contain vodka and amaretto. By serving the drink, Respondent exceeded the authority under its license. Shortly before 8:00 p.m., Funaro completed his meal. Woel was busy with other customers, so the bill was presented by Mitchell, another waitress on duty. The bill totaled $17.91, including tax, and besides the food charge, contained a charge for one beer (even though two had been ordered) and an item for $5.50 entitled "2-Open Food Lunch." As to the latter item, Mitchell explained that this was the way liquor sales were rung up on the cash register because the cash register did not have a specific key for liquor sales. On March 10, 1999, O'Shea and Funaro returned to Respondent's restaurant for the purpose of conducting an inspection of the premises. They found a bottle of Bols Amaretto in the kitchen used for preparing desserts. At that time, the chef on duty told them that after dinner drinks were served at one time but the practice was discontinued. He also stated that the previous chef had kept a bottle of vodka on the premises for preparing a pasta sauce. On March 16, 1999, Funaro met with Casadio and explained the violations he had noted during his previous visit and inspection. Casadio explained again that he had once given a complimentary after dinner drink to patrons but discontinued that practice after O'Shea had given him a verbal warning during her audit. He also explained that the amaretto found in the kitchen on the March 10 inspection was used to prepare desserts for patrons. In mitigation, Casadio established that he had been in the restaurant business for some 20 years, and there is no evidence that he has ever been charged with, or convicted of, violating any Division regulations or state law. He pointed out that he would never risk his license for the price of two drinks ($5.50), that he has always attempted to comply with all relevant requirements, and that he immediately fired Woel after learning of his actions. Given the extremely small amount of liquor involved, the minimal amounts kept on hand in the kitchen for cooking purposes, and the fact that Respondent was obviously not engaged in this conduct on a widespread, continuing basis, a reduction in the fine is appropriate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Alcoholic Beverages and Tobacco enter a final order determining that Respondent has violated Section 562.12(1), Florida Statutes, as charged in the Administrative Action, and that an administrative fine in the amount of $750.00 be imposed. DONE AND ENTERED this 30th day of December, 1999, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1999. COPIES FURNISHED: Joseph Martelli, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Charles D. Peters, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Joseph Casadio 3131 Clark Road, Suite 103 Sarasota, Florida 34231 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Paul Allen Cohen moved to Florida from New York City five years ago. Since he was 13 years old, he was held various jobs in the retail grocery business. At the time of the hearing, he was the principal stockholder in the corporate petitioner that is seeking a license for package sales in these proceedings. The corporation owns a grocery store on North Miami Beach in which Mr. Cohen and his parents were working at the time of the hearing. Mr. Cohen has never been fired from a job. He has had several bank accounts and had three at the time of the hearing, but has never written bad checks. He follows the food stamp rules meticulously and enjoys a good reputation for moral character among his business acquaintances. Aside from traffic arrests, Mr. Cohen has been arrested on a single occasion. Detective Mark Allen Wood, a Hollywood policeman, made the arrest on the night of December 26, 1979, outside Richard's Department Store in Hollywood. As a result of conversations the arresting officer had with Mr. Cohen in the store men's room earlier in the evening, Detective Wood charged Mr. Cohen with "offering to commit a lewd and indecent act." This charge became "lewd and lascivious act," Petitioner's Exhibit No. 3, and Mr. Cohen pleaded nolo contendere on June 25, 1980, at which time adjudication of guilt was withheld, a fine of $240 was levied and court costs of $10 were assessed. Neither the presiding judge nor Mr. Cohen's counsel at the time told Mr. Cohen what effect this disposition would have on his arrest record. His then counsel did advise him that none of his "rights" would be "infringed". Mr. Cohen did, in fact, solicit sexual favors from Detective Wood on the night of December 26, 1979, but declined Detective Wood's invitation to go to a parking lot with him for that purpose. There was no physical contact between the two men until the arrest. Mr. Cohen testified that he did not consider himself a homosexual and that this was an isolated incident. According to Detective Wood, the men's room at Richard's Department Store was a notorious meeting place for homosexuals. In connection with petitioner's application for a beverage license, Mr. Cohen completed a personal data form on which he indicated that he had never been arrested for any offense other than minor traffic offenses. Even though he knew this was false, he swore that the form had been filled out truthfully. At the hearing, Mr. Cohen testified that he did not want his parents to learn of his arrest.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent deny petitioner's application. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 9th day of January, 1981. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1981. COPIES FURNISHED: Maurice Rosen, Esq. Suite 112 16666 Northeast 19 Avenue North Miami Beach, Florida 33162 Dennis E. LaRosa, Esq. 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether Petitioner's application for licensure as a Class "D" Security Officer should be denied on the grounds set forth in the Department of State, Division of Licensing's (Department's) March 26, 1992, letter to Petitioner?
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Petitioner is 56 years of age. He has had numerous brushes with the law, many of them alcohol-related, dating back to 1956, but he has never been convicted of a felony. In June of 1956, Petitioner attempted to purchase a beer in Sacramento, California. He was 19 years old at the time and, although in the military, under the legal drinking age. Petitioner was arrested and charged with a misdemeanor violation of California's alcoholic beverage control law. He received a ten-day suspended sentence. In November of 1956, when Petitioner was stationed on a military base in Amarillo, Texas, he and friend, without authorization, went into a room on the base where weapons were stored. They took possession of a .38 calibre firearm and started "playing with it." Petitioner was arrested and charged with the misdemeanor offenses of unlawful entry and wrongful appropriation. He received a bad conduct discharge, which was suspended. After attending a rehabilitation training program, he returned to active military service. In May of 1962, Petitioner was arrested for operating a motor vehicle under the influence of alcohol, a misdemeanor. He was subsequently convicted of the offense. His license was suspended for ten days and he was ordered to pay $25 in court costs. In the early part of 1964, Petitioner, along with several others, charged $700 worth of merchandise in a department store in Indianapolis, Indiana using credit card slips they had forged. Petitioner was arrested and charged with the felony offense of uttering a forged instrument. Adjudication of guilt on this charge was withheld and Petitioner was placed on three years probation. In October of 1968, while in Anderson Indiana, Petitioner was arrested and charged with theft by deception for having written checks in amounts that exceeded the balance of his checking account. The checks were actually written by Petitioner's estranged wife without his knowledge. The charge against Petitioner was dropped after restitution was made. In January of 1969, Petitioner was again arrested in Anderson, Indiana and charged with theft by deception for having written bad checks. These checks were written by Petitioner, but he did not realize at the time he wrote them that, because of his wife's check writing, he had insufficient funds in his account. Adjudication of guilt on this charge was withheld and Petitioner was placed on probation for a year. In February of 1970, Petitioner stayed in a Naples, Florida hotel for approximately three or four days. When he checked out, he did not have enough money to pay his bill. Petitioner was arrested and charged with the misdemeanor offense of defrauding an innkeeper. Less than a week later, Petitioner made restitution and the charge against him was dropped. The following month, while in Miami Beach, Florida, Petitioner was again unable to pay a hotel bill and, as a result, arrested and charged with defrauding an innkeeper. This charge was also dropped after Petitioner made restitution. In May of 1970, Petitioner was arrested and charged with breaking and entering a Naples, Florida restaurant with intent to commit grand larceny. The charge was unfounded and it was subsequently dropped. In January of 1971, Petitioner was driving a motor vehicle in Fort Myers, Florida that had an expired inspection sticker affixed to it. He was stopped by the police and a firearm belonging to a passenger was discovered in the vehicle. Petitioner was arrested and charged with unlawful possession of a firearm and driving a vehicle with an expired inspection sticker. The former charge was dropped. With respect to the latter charge, Petitioner was fined $30 or $35. In October of 1971, Petitioner was arrested in Naples, Florida and charged with writing a worthless check. The check was in the amount of $20 or $25. At the time he wrote the check, Petitioner was unaware that he did not have enough money in his account to cover the check. Petitioner subsequently made restitution and the charge was dropped. In February of 1976, in Lauderhill, Florida, Petitioner was arrested and again charged with writing a worthless check. The amount of this check was less than $50. Petitioner pled guilty to this misdemeanor offense and was fined $10. In addition to paying the fine, Petitioner made restitution. That same month, Petitioner was arrested in Sunrise, Florida and charged with battery on his wife. The charge was unfounded and it was subsequently dropped. In July of 1976, in Fort Lauderdale, Florida, Petitioner was arrested and charged with aggravated assault, assault and battery and petty larceny. All of these charges were unfounded; however, as a matter of convenience and pursuant to a plea agreement, Petitioner pled no contest to the assault and battery charge. Adjudication of guilt on this charge was withheld. Petitioner received a 90-day suspended sentence and a $352 fine, which was also suspended. The remaining charges against Petitioner were dropped. In December of 1977, Petitioner was again arrested in Fort Lauderdale, Florida. On this occasion, he was charged with two counts of writing worthless checks under $50. Petitioner subsequently made restitution and the charges were dropped. In February of 1980, in Jasper, Florida, Petitioner was arrested and charged with driving while intoxicated, speeding, driving without a valid drivers license and refusing to sign a summons. The latter charge was dropped. Petitioner pled guilty to the remaining charges and was adjudicated guilty on these charges by the trial court. For speeding and driving without a valid drivers license, he was fined. For driving while intoxicated, he was also fined and, in addition, his drivers license was suspended and he was ordered to attend DWI school. In May of 1985, in West Palm Beach, Florida, Petitioner was arrested on a Dade County, Florida warrant that had been issued in 1980, when he had been charged with two felony counts of writing worthless checks. The checks had actually been written by Petitioner's daughter. After his arrest, Petitioner made restitution and the charges against him were dropped. In November of 1985, Petitioner was arrested in West Palm Beach, Florida and charged with driving while intoxicated. He pled guilty to this misdemeanor charge. The trial court adjudicated Petitioner guilty and suspended his license for six months and ordered him to attend DWI school. Petitioner has not been in trouble with the law since. He is now a law-abiding citizen, who is better able to control is intake of alcohol. In filling out Section 5 of his application for licensure, which addressed the subject of criminal history, Petitioner did not intentionally make any misrepresentations or omit any required information. It was his understanding that he was required to disclose information relating only to felony convictions in this section of the application.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order finding that Petitioner should not be denied licensure as a Class "D" Security Officer on the grounds cited in the Department's March 26, 1992, denial letter. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of August, 1992. STUART M. LERNER 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 18th day of August, 1992.
The Issue The Administrative complaint dated September 19, 1994, alleges that Respondent, a licensed class "D" security officer, violated section 493.6118(1)(j), F.S. by committing a battery on or about January 28, 1994. The issue is whether that violation occurred and, if so, what discipline is appropriate.
Findings Of Fact At all times relevant to this action, Respondent, Ivan Machiz, was licensed as a class "D" security officer, license number D91-19035, by the Department of State, Division of Licensing, pursuant to chapter 493, F.S. The proceeding at issue is the only disciplinary action in evidence against Mr. Machiz' license. On January 28, 1994, Mr. Machiz visited Jameryl Curley at her apartment in Tampa, Florida. Mr. Machiz and Ms. Curley had been roommates. Mr. Machiz sought to recover his claimed possessions, including some chairs and a French racing bicycle. Ms. Curley told Mr. Machiz she had sold the items as payment for some delinquent bills and that he was not entitled to take them. He moved to take the bicycle and she hung on to it. The couple argued and struggled over the bicycle. In the struggle Mr. Machiz grabbed Ms. Curley and pinned her left arm behind her back, twisting it and causing her to cry for help. Benjamin Dobrin, who lived with his brother in the next door apartment and shared a back porch with Ms. Curley, answered the call and found Mr. Machiz on top of Ms. Curley, forcing her face-first into a couch or futon, and twisting her arm behind her back. Mr. Dobrin immediately returned to his apartment and called "911" for help. He then went back to Ms. Curley's apartment. By then, she was up and was holding on to the bicycle and Mr. Machiz was dragging it with her. She was crying and yelling, "Help, you're hurting me. Stop!" Mr. Dobrin and his brother stopped the bicycle and Mr. Machiz left. Deputy Chris Williams arrived shortly thereafter and found Ms. Curley upset and hyperventilating. After interviewing the Dobrins, Ms. Curley, and then Mr. Machiz (at his apartment in the next building), Deputy Williams arrested Mr. Machiz. He admitted that he put Ms. Curley in a wristlock because she was struggling against his attempts to recover what he claimed was his. He was not protecting himself or another from physical harm. At the criminal trial on one count of a battery charge, on March 24, 2994, County Judge Cynthia A. Holloway heard the testimony of the Deputy, Mr. Dobrin, Ms. Curley, and Mr. Machiz, and admonished that Mr. Machiz had no right to "self-help" recovery of his property, to go to someone's apartment to remove property over objection, and to "pulverize anybody to get that property back". (Respondent's exhibit #1, p. 20) The court withheld adjudication of guilt, and placed Mr. Machiz on six months probation, with the provision for termination after four months on the condition that he perform 25 hours of community service, pay court costs and write a letter of apology to Ms. Curley.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the agency enter its Final Order finding that Ivan Drew Machiz violated section 493.6118(1)(j), F.S., and imposing a penalty of $500 fine. DONE AND RECOMMENDED this 13th day of March, 1995, in Tallahassee, Leon County, Florida. MARY CLARK 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 13th day of March, 1995. COPIES FURNISHED: Honorable Sandra B. Mortham Secretary of State The Capitol Tallahassee, Florida 32399-0250 Don Bell, Esquire General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250 Richard R. Whidden, Jr., Esquire Dept. of State/Division of Licensing The Capitol MS-4 Tallahassee, Florida 32399-0250 Ivan Drew Machiz 481 Hardendorf Avenue Atlanta, Georgia 30307
The Issue Whether Respondent's license as a veterinarian in the State of Florida, should be suspended, revoked, or otherwise disciplined for alleged violation of Chapter 474, Florida Statutes, as set forth in the Administrative Complaint, to wit: Section 474.214(1)(f), Florida Statutes, by violating a lawful order of probation of the Board.
Findings Of Fact The Respondent is a licensed veterinarian in the State of Florida, license number VM 2404. Respondent's license is currently under suspension. On March 23, 1988, the Board of Veterinary Medicine filed a Final Order in settlement of ten (10) different cases involving the Respondent. The Final Order adopted a Stipulation of the parties. The Stipulation resulted in the suspension of Respondent's license to practice veterinary medicine and imposed an administrative fine. The stipulation also provided in pertinent part,: Prior to reinstatement of Respondent's license, he shall have the burden of demonstrating to the Board that he is able to practice veterinary medicine safely and in accordance with the laws of the State of Florida. This demonstration shall consist of the following: proof of continuing education as directed by the Board; a comprehensive psychological evaluation from a psychiatrist or psychologist, who is familiar with the charges against the Respondent, and has provided counseling to the Respondent; and a recommendation by that counselor that the Respondent is safe to practice veterinary medicine. A six thousand dollar ($6,000) fine, payable to the Executive Director of the Board, by certified funds, within sixty (60) days after the filing of a Final Order accepting this stipulation. The Final Order amended the stipulation as follows: Paragraph 2(b) of the proposed disposition shall be amended to specify that the psychiatrist or psychologist referred to in that provision shall be a person approved by the Board. For purposes of carrying out this provision, the Board delegates to the Chairman the authority to approve the individual psychiatrist or psychologist. The Board specified that the approved psychiatrist or psychologist must submit the first evaluation within thirty (30) days of the date of this Order and submit a second evaluation toward the end of the period of suspension, but prior to reinstatement. In addition, the Board specified that the approved psychiatrist or psychologist shall make a recommendation with regard to the frequency and duration of the counseling sessions for the Respondent and Respondent shall comply with that recommendation. Finally, the Board specified that the approved psychiatrist or psychologist must submit quarterly reports to the Board with regard to Respondent's progress in counseling and attendance at counseling sessions. It was undisputed that Respondent had not paid the six thousand dollar ($6,000) administrative fine within the sixty (60) days following the filing of the Final Order. No part of the fine was paid by the date of the final hearing in this matter and no attempts to pay or extend the time for payment were made by Respondent. There was no credible evidence presented which indicates that the Respondent's obligation to pay the Administrative Fine was in any way excused or discharged. The fact that Respondent was discharged in bankruptcy does not relieve him of his obligation to pay the administrative fine. Such fines are not dischargeable in bankruptcy. The evidence submitted by Respondent on the above point was not credible. The evidence did show that Respondent was employed at a salary which was sufficient for him to at least make an attempt at payment of the fine, especially since his other debts were discharged in bankruptcy. The order of discharge attached to Respondent's Proposed Recommended Order is the standard form order issued by a bankruptcy court. It was impossible to determine whether the attached creditor list was part of that order. The creditor list is not incorporated or referenced in the order. The list itself appears to be a copy of the mailing list required to be filed with the bankruptcy petition. There was no evidence presented that a petition or other request for reinstatement of the Respondent's license to practice veterinary medicine has been filed. Therefore, Respondent's failure to otherwise comply with the reinstatement requirements of the Final Order are not ripe for hearing before this Hearing Officer.
Recommendation Based upon the foregoing findings of fact and conclusion of law, it is: RECOMMENDED that the Florida Board of Veterinary Medicine enter a Final Order revoking the Respondent's license to practice veterinary medicine. DONE AND ENTERED this 9th day of October, 1989, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 9th day of October, 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. 88-5811 The facts contained in paragraphs 1, 2, 3, 4, 5 & 6 of Petitioner's Proposed Findings of Fact are adopted, in substance, in so far as material. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, & 13 of Respondent's Proposed Findings of Fact are adopted, in substance, in so far as material. The facts contained in paragraphs 9, 12 & 14 of Respondent's Proposed Findings of Fact were not shown by the evidence. The facts contained in paragraph 10 are subordinate. The facts contained in paragraph 8 of Respondent's Proposed Findings of Fact were subordinate except those continued in the last sentence which were not shown by the evidence. The facts continued in paragraph 11 of Respondent's Proposed Findings of Fact were not shown by the evidence except those continued in the last sentence which are subordinate. COPIES FURNISHED: Laura P. Gaffney, Senior Attorney Department of Professional Regulation Northwood Centre Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Neil F. Garfield, Esquire Envirwood Executive Plaza Suite 200 5950 West Oakland Park Blvd. Lauderhill, Florida 33313 Lawrence A. Gonzalez Secretary Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Linda Biedermann Executive Director Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether Respondent violated Section 475.25(1)(f), Florida Statutes (1997), by pleading or having been found guilty of a crime which involves moral turpitude or fraudulent or dishonest dealing. (All Chapter and Section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for the regulation and discipline of real estate licensees in the state. Respondent is licensed in the state as a real estate broker pursuant to license no. 0414405. The last license issued is inactive. On December 15, 1997, Respondent entered into a plea of guilty to aggravated assault and leaving the scene of an accident with injuries. Both crimes are third-degree felonies under Sections 784.02(1) and 316.027(1)(a), respectively. The court adjudicated Respondent guilty and sentenced Respondent to two years of community control to be followed by two years probation. Both sentences ran concurrently. The court also imposed miscellaneous fines in the cumulative amount of $255 and ordered Respondent to pay probation costs. On January 13, 1998, Respondent sent a letter to Petitioner voluntarily disclosing his plea and conviction. Respondent has no prior disciplinary history. Both convictions involve a single incident which occurred on November 23, 1996, at the Draft House, 1615 Lee Road, Orlando, Florida, a bar in Orange County, Florida. Respondent touched the female owner of the bar on her buttocks. The owner's son took offense to the incident. When Respondent left the bar, the owner's son followed Respondent to Respondent's car in the parking lot. The owner's son hit Respondent in the nose with his fist. Respondent got into his car. The owner's son smashed the windshield of Respondent's car with a steel bar. Respondent left the scene to call for help. When Respondent drove away, Respondent's car struck the owner's son. Respondent did not remain at the scene because he feared for his own safety. Respondent stopped a few blocks away and called 911. The extent of injuries of the person struck by Respondent's car was not established at the hearing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding Respondent guilty of violating Section 475.25(1)(f), and imposing an administrative fine of $1,000. DONE AND ENTERED this 16th day of November, 1998, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 16th day of November, 1998. COPIES FURNISHED: Laura McCarthy, Esquire Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Richard F. Ronnick 4271 Biltmore Road Orlando, Florida 32804-2201 Henry M. Solares, Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the Petitioner, Macia Poole, was subject to an unlawful employment practice by Respondent, Westminster Village of Pensacola, on account of her sex or due to retaliation for her opposition to an unlawful employment practice in violation of section 760.10, Florida Statutes.
Findings Of Fact On April 3, 2015, Petitioner’s Employment Complaint of Discrimination and Petition for Relief were transmitted to the Division of Administrative Hearings by the Florida Commission on Human Relations for a formal administrative hearing to be held in accordance with section 120.57, Florida Statutes. On April 10, 2015, a Notice of Hearing by Video Teleconference was entered which set the final hearing for June 1, 2015, at 9:00 a.m., Central Time, (10:00 a.m., Eastern Time), at video teleconference sites in Pensacola, at the Office of the Judges of Compensation Claims, Video Teleconferencing Room, 700 South Palafox Street, Suite 305, Pensacola, Florida, and in Tallahassee, at the Division of Administrative Hearings, the DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida. On May 4, 2015, one Subpoena Duces Tecum and four Subpoenas Ad Testificandum were issued at the request of Petitioner. On May 14, 2015, Petitioner electronically filed her Notice of Appearance in this proceeding. On May 26, 2015, Petitioner filed a Request to Reschedule Video Hearing. The Request made no allegation of an inability to attend the hearing, only that her attendance would be an “inconvenience.” The Request was denied. The filing of the Request is convincing evidence that Petitioner knew that the final hearing was scheduled to be heard in accordance with the Notice of Hearing by Video Teleconference. On June 1, 2015, at the scheduled date, time, and place, the final hearing was convened. Mr. Moran, representing Respondent, Westminster Village of Pensacola, made his appearance. Petitioner did not appear. The final hearing was recessed for twenty minutes to allow Petitioner to appear. During the recess, the undersigned confirmed that the Division had not received any communication from Petitioner of exigent circumstances that may have interfered with her appearance at the final hearing. After twenty minutes had passed, the final hearing was re-convened. Petitioner was not in attendance. Respondent was prepared to proceed, and had its witnesses in attendance at the Pensacola video location. Mr. Moran confirmed that he had received no emails from Petitioner, that being their normal form of communication. At 9:25 a.m., Central Time, (10:25 a.m., Eastern Time), the final hearing was adjourned. There was no evidence presented at the final hearing in support of Petitioner’s Employment Complaint of Discrimination and Petition for Relief.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondent, Westminster Village of Pensacola, did not commit an unlawful employment practice as to Petitioner, Macia Poole, and dismissing the Petition for Relief filed in FCHR No. 2014-01235. DONE AND ENTERED this 3rd day of June, 2015, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 3rd day of June, 2015. COPIES FURNISHED: Tammy Scott Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 Brian J. Moran, Esquire Moran Kidd Lyons Johnson, P.A. 111 North Orange Avenue, Suite 900 Orlando, Florida 32801 (eServed) Macia Deanne Poole Apartment 176 6901A North 9th Avenue Pensacola, Florida 32504 (eServed) Christopher R. Parkinson, Esquire Moran, Kidd, Lyons, and Johnson, P.A. 111 North Orange Avenue Orlando, Florida 32801 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
