The Issue The issue to be determined is whether Petitioner's application for licensure should be granted.
Findings Of Fact Respondent, Department of Financial Services, is the state agency responsible for the licensure of insurance agents in the State of Florida, pursuant to Chapter 626, Florida Statutes. On January 6, 2004, Respondent received an application from Petitioner for temporary licensure as a life and health insurance agent. Petitioner answered "no" to the following question on that application: Have you ever been convicted, found guilty, or pled guilty or nolo contendere (no contest) to a crime under the laws of any municipality, county, state, territory [or] country, whether or not adjudication was withheld or a judgment of conviction was entered? At the end of the application, immediately above a space for the applicant's signature and in a section of the application titled "Applicant Affirmation Statement," appears the following language: I do solemnly swear that all answers to the foregoing questions and statements are true and correct to the best of my knowledge and belief. . . . * * * 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 the denial of my application and/or the revocation of my insurance license(s). Pursuant to the instructions on the form, Petitioner signed the application, dated it December 12, 2003, and mailed it to Respondent. As documented by General Court Martial Order No. 17-01 of Sea Control Squadron Three Two at the Naval Air Station, Jacksonville, Florida, obtained by Respondent during the application process, Petitioner, on January 18, 2001, entered a plea of guilty to the charge of Distribution of Ecstasy, a Felony, and was found guilty of the offense. Petitioner was sentenced to confinement for a period of 40 months, and reduction to pay grade E-1, and subjected to dishonorable discharge. A portion of the sentence was suspended upon the issuance of the dishonorable discharge, following an order of Rear Admiral Jan C. Gaudio on May 30, 2002. By correspondence to Respondent, received on June 29, 2004, and through his testimony at the final hearing, Petitioner asserted that his attorney at the time informed him that his criminal record would never be seen outside the military. Notwithstanding his attorney’s assurance, Petitioner informed two subsequent employers that he thought he had a felony record. When those employers checked and discovered no convictions, he assumed the records were sealed as his previous attorney had assured him would be the case. Accordingly, he did not disclose the matter on his application. By Notice of Denial dated June 7, 2004, Respondent informed Petitioner that his application was denied for violations of Sections 626.611, 626.621(8), 626.785(1), and 626.831(1), Florida Statutes. Additionally, the denial informed Petitioner of required waiting periods set forth in Florida Administrative Code Rule 69B-211.042. In Petitioner’s case, he was also informed that a 16-year waiting period would be required before reapplication could be considered by Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Respondent acted properly in denying Petitioner’s application. DONE AND ENTERED this 4th day of January, 2005, in Tallahassee, Leon County, Florida. S DON W. DAVIS 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 4th day of January, 2005. COPIES FURNISHED: Gregg Allen Brewer 9342 Cumberland Station Drive Jacksonville, Florida 32257 Dana M. Wiehle, Esquire Department of Financial Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Peter Dunbar, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue Whether Respondent, a certified law enforcement officer, committed the various acts of misconduct described in the Amended Administrative Complaint, as Petitioner alleges; if so, whether and what discipline should be imposed against Respondent's certificate.
Findings Of Fact Petitioner, Criminal Justice Standards Training Commission, is the state agency charged with the responsibility of certifying law enforcement officers and taking disciplinary action against them for failing to maintain good moral character as required by section 943.13(7). § 943.1395, Fla. Stat. Respondent was certified by Petitioner as a law enforcement officer on March 12, 2003, and issued certificate number 229917. Respondent resided in Riviera Beach, Florida, for a portion of his childhood. During this time, he developed a friendship with Frederick Maurice Dean ("Dean"). He was also acquainted with Hasani Thomas ("Thomas"), although not as closely as with Dean. Respondent and Dean spent time together on a daily basis and their relationship continued as their lives took divergent routes. After graduating from high school, Respondent attended college out of state and then returned to Riviera Beach and earned his A.S. degree at the local community college. Respondent continued with his studies at Florida Atlantic University. While working for the City of Riviera Beach in a civilian capacity, Respondent remained personally close with Dean and attempted to help Dean obtain employment. While enrolled at the local policy academy, on September 3, 2001, Respondent was hired by the Riviera Beach Police Department ("RBPD"). Respondent's initial assignment with RBPD was to the road patrol. The intersection of 33rd Street and Old Dixie Highway, the location of the Worldwide Grocery Store ("Worldwide"), was within his area of patrol. In 2003, the Drug Enforcement Administration ("DEA"), the Federal Bureau of Investigation ("FBI"), and the Bureau of Alcohol, Tobacco, and Firearms ("ATF"), began an operation entitled "Operation Worldwide." The purpose of Operation Worldwide was to eradicate a gang or group of individuals involved in various crimes including murder, drug trafficking, and robbery. The targets were believed to be congregating around, and conducting their activities, in part, from, Worldwide. As part of the plan, the FBI utilized confidential informants to purchase drugs from the targeted group. Additionally, Operation Worldwide sought to conduct surveillance by placing video cameras in covert positions. Initially, one camera, which was not visibly apparent, was installed on a pole in a position to observe the activities at Worldwide. This installation proved ineffective, as it was vandalized with spray paint after the second day of operation. In response, a second video camera was installed in the same capacity at a greater distance from the Worldwide; however, that camera similarly proved ineffective as the location was apparently disclosed or discovered by the criminal subjects. Operation Worldwide concluded in 2005 when a grand jury issued federal indictments and arrest warrants for multiple targets of the operation. Three particular targets and their respective post-arrest statements are pertinent to the instant action, and are addressed seriatim. On May 12, 2005, Hasani Thomas, a previously convicted felon, was federally indicated on distributing a Schedule II controlled substance, and having previously been convicted of a crime punishable by imprisonment for a term exceeding one year, knowingly possessing a firearm in and affecting commerce. A warrant was issued and he was arrested by U.S. Marshals on August 11, 2005. Post-arrest, Thomas, cooperating with law enforcement, made several allegations concerning Respondent. He provided that Respondent and Dean were close friends. Dean had advised Thomas that he was wanted based on information obtained from Respondent. Thomas also alleged that Respondent had disclosed the location of the surveillance cameras at Worldwide to Thomas. Dean, Respondent's friend and a previously convicted felon, was federally indicted on two counts of distribution of crack cocaine and a warrant was issued for his arrest on May 12, 2005. Dean was arrested by U.S. Marshals on August 14, 2005. The day following his arrest, Dean was interviewed by FBI Special Agent Steven Burdelski. Prior to the interview, Dean was informed of why he was being interviewed and the federal charges he was facing. Post-Miranda, Dean admitted to being a seller of drugs, including cocaine, and that he made his living by selling drugs. He further admitted to selling crack cocaine at Worldwide and gave the name of the individual who supplied him with his drugs. Dean was then told by his interviewer that agents were aware he was friends with Respondent and that they wanted to learn what Dean knew about Respondent and specifically what Dean knew about any criminal activity in which Respondent may be involved. Dean subsequently provided numerous allegations concerning Respondent. Specifically, Dean contended that Respondent had encountered Dean at the Palm Beach Mall approximately three months earlier and advised Dean that federal law enforcement officers were looking for him, that they were going to give him "a lot of time," and that he needed to lay low. Dean further advised that Respondent would advise Dean and other drug dealers at Worldwide if law enforcement was planning an operation, the type of vehicles being utilized by law enforcement, and that a camera was observing their activity at Worldwide. Additionally, Dean advised that on several occasions Respondent had provided drugs to Dean in return for cash. Based upon the information received, on August 15 and 16, 2005, several controlled recorded phone calls were attempted and completed by and between Dean and Respondent. During the course of one of the recorded calls, Dean inquired as to whether "his picture" was up at the police station. Respondent advised Dean that he had not seen his picture and that he had not heard anything specifically about Dean. Dean and Respondent further discussed that law enforcement had "busted" Thomas and that law enforcement was serious. Dean stated that Respondent had warned Dean and that he was laying low. The conversation turned to the topic of cameras at Worldwide. Dean asked Respondent whether there was a camera installed at Worldwide. Respondent initially responded that he did not know and that the owner of the store, Mike, was doing some rebuilding at the store. Dean then asked again if the camera was still up at the store. Respondent stated, "You know those mother fuckers got everything over there boy." To which Dean replied, "I know bitch people got to be careful over there." Respondent further stated that, "They got everything, they got everything and your momma over there boy." When asked by Dean if law enforcement had taken down the big camera, Respondent advised that he did not know, but they were "cleaning up the neighborhood." Finally, Dean requested Respondent to use his connections and determine whether there were pending charges against Dean. Respondent unequivocally advised Dean that he could not do so as he was not President Bush. Adrian Henderson, a convicted felon, was arrested in 2006 on felony narcotics charges. Henderson, in a federal proffer statement, alleged that Respondent advised individuals at Worldwide concerning the location of the cameras and, upon request, would run Henderson and Dean's name through "the system" to determine if there were outstanding warrants. Thomas, Dean, and Henderson in subsequent statements made numerous allegations concerning Respondent's assistance, participation, and acquiescence to the drug activities being conducted at Worldwide.3/ Those allegations included, but are not limited to, the following: allowing Thomas to conduct cocaine transactions in Respondent's presence; advising the details of surveillance camera placement; Respondent's encountering Thomas and advising him that U.S. Marshalls had a picture (warrant) concerning Thomas and Dean, but failing to arrest; Respondent's providing Dean crack cocaine and marijuana for cash; failing to arrest individuals close to Worldwide; Respondent's advising when the drug task force was operating in the area; Respondent's advising of the make and model of surveillance vehicles; Respondent's checking for warrants and advising if a warrant existed, but not arresting the individual. After obtaining the initial 2005 post-arrest statements from Thomas and Dean, FBI Agent Steven Burdelski provided the information concerning Respondent's alleged involvement to RBPD for an internal investigation. Additionally, the information was reviewed with the United States Attorney's Office. The United States Attorney's Office determined that it would not proceed with criminal prosecution of Respondent. Captain John Mammino was involved with the internal affairs investigation of Respondent. In addition to reviewing the initial statements, in 2006, he conducted interviews of Dean, Thomas, Henderson. In 2009, the Palm Beach County State Attorney's Office formed a public integrity unit. Captain Mammino desired that State Attorney's Office review the case concerning Respondent, and, therefore, conducted another round of interviews with Thomas, Dean, and Henderson. The entirety of the information was provided to the State Attorney's Office, and they also declined to prosecute Respondent. Thereafter, an investigation was conducted in an effort to corroborate the allegations that Respondent provided warrant information to Dean. The Florida Crime Information Center ("FCIC") and the National Crime Information Center ("NCIC") databases are used for obtaining criminal history information. FCIC is the central repository for all criminal histories within Florida. Users in Florida must become trained and certified through the Florida Department of Law Enforcement ("FLDE") instructors. Respondent was certified to access FCIC/NCIC on July 1, 2003. Warrant information is placed into the FCIC/NCIC database by law enforcement agencies, and such information is not available to the public. The FCIC/NCIC database is not to be used for any non law-enforcement related purpose. A certified user may access FCIC by logging in with an individual password and user name. A computer database, the Transaction Archive Reporting ("TAR") database, keeps a record of all queries within the FCIC system. FDLE maintains the TAR system, and same may be searched to produce records of an individual's queries or transactions. The reports generated from such a search are called TAR reports. A search was conducted of the TAR database for any FCIC queries concerning Dean. A review of the TAR reports generated from the search revealed that Respondent accessed FCIC and manually inputted the first name, middle name, last name, date of birth, sex, and Florida Driver's License number of Dean on three occasions: October 7, 2003, October 17, 2003, and November 30, 2003. These searches would have revealed whether Dean had any outstanding warrants. Dean had no warrants outstanding on the above-referenced dates. On June 30, 2010, over five years subsequent to the above-referenced arrests, Respondent participated in a sworn interview with RBPD Internal Affairs. During this interview, Respondent was asked whether he ever ran Dean's name through the system. Respondent initially replied, "No. I never ran Freddie (Dean) through." After being advised, for the first time, of the results of the TAR reports, he stated that he did not remember running Dean's name: Officer Lewis: We pulled records from the FDLE database. It showed records showing on October 7th, 2003 at 4:03 p.m., that you ran Freddie Dean for warrants through FDLE's database. Respondent: I ran them or Tina Hall ran them? Officer Lewis: It actually listed your name. Respondent: I must have made an arrest on him for possession of marijuana. Officer Lewis: There was another one ten days later at 9:53 for the same person, Frederick Dean. Do you recall that? Respondent: No, sir. Officer Lewis: On November 30th, 2003 at 1:15 p.m. the same ran through the system, Frederick Dean for warrants. Do you remember that? Respondent: No, sir. Additionally, during the internal affairs interview, Respondent advised that he used certain "scare tactics" to prevent or disperse criminal activity. He would advise individuals that the "jump-out boys" (narcotics tactical unit) were coming or advise that cameras were everywhere to clear the area. RBPD Officers Derrick Jackson, Gary Wilson, and John Toombs confirmed the use of such tactics. These officers credibly testified that, due to a shortage of manpower, at times they would implement certain techniques to encourage known narcotics dealers to leave an area of the street. These techniques varied from simply sitting in the patrol car in close proximity, advising subjects to leave, advising subjects they would be arrested, approaching the subjects, and suggesting the tactical unit was out. During the June 30, 2010, internal affairs interview, Respondent was also asked about the allegation that Respondent encountered Dean at the mall after the federal warrant had been issued for his arrest. The pertinent dialogue is set forth as follows: Officer Lewis: That is when you were at the mall, when you saw him when he was wanted? You knew that he was wanted, but you didn't call. And you stated that was because you didn't know the right thing to do at the time? Officer Gordon: Yes. Plus the safety of my son too. And the way he was acting, really, really bothered me. Officer Lewis: How was he acting? Officer Gordon: He smelled of--he reeked of marijuana and alcohol. You could smell it coming from him. His eyes were bloodshot and he was just, "I ain't trying to go back to jail--I ain't going back to jail." Is pretty much what he said. . . . Officer Gordon: . . . He (Dean) was looking to see if I was going to pick up my phone and call-- Freddie Dean--the guy you are looking for-- is in the mall right now, blah blah blah. . . . Officer Lewis: He wanted to see if you would dime him out? Officer Gordon: Exactly. Officer Lewis: But you didn't? Officer Gordon: Unh-uh (indicating negative). At the final hearing, Respondent initially testified that he did not know a warrant was active for Dean when he encountered Dean at the mall. Respondent conceded, however, after listening to the recorded internal affairs interview, that he was aware of a warrant for Dean during the mall incident. The undersigned finds that the post-arrest statements of convicted felons Dean, Thomas, and Henderson, given the totality of circumstances, lack sufficient credibility to support a finding of fact that Respondent directly participated in or condoned illegal drug activity. Similarly, the undersigned finds the post-arrest statements of convicted felons Dean, Thomas, and Henderson, given the totality of circumstances, lack sufficient credibility to support a finding of fact that Respondent advised said individuals or other potential criminal targets of the placement of the Operation Worldwide surveillance cameras. The undersigned further finds that the post-arrest statements of convicted felons Dean, Thomas, and Henderson, given the totality of circumstances, lack sufficient credibility to support a finding of fact that Respondent advised the criminal targets of when and where narcotics operations were to occur. Petitioner established, by clear and convincing evidence, that Respondent queried Dean's name through FCIC and or NCIC on October 7, 2003, October 17, 2003, and November 30, 2003. Petitioner established, by clear and convincing evidence, that Respondent encountered Dean after the federal warrant was issued for Dean. At the time of the meeting, Respondent was aware of the warrant, and took no action to notify any members of the law enforcement community of Dean's recent location.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order dismissing the Amended Administrative Complaint. DONE AND ENTERED this 27th day of November, 2012, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE 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 27th day of November, 2012.
The Issue Whether Petitioner, Kendal Pierre Cobb, should be issued a license by Respondent, Department of Financial Services, as a resident customer representative insurance agent.
Findings Of Fact In May 2015, Petitioner applied to the Department for a license as a resident customer representative insurance agent. A customer representative is an individual appointed by a general lines insurance agent or agency to assist in transacting the business of insurance. In his capacity as a customer representative, Petitioner would directly interact with customers in the agency or agent’s office who have been solicited as part of the agent’s insurance business. See §§ 626.015(4) and 626.7354(2), Fla. Stat. A customer representative routinely handles customer payments and is only allowed to work in an office setting under the general agent’s supervision. The Department has jurisdiction over licensing procedures for customer representatives. See § 626.016(1), Fla. Stat. Pursuant to this statutory responsibility, after receiving Petitioner’s application for licensure, the Department issued a Notice of Denial on September 25, 2015, notifying Petitioner of its intent to deny his application. The Department denied Petitioner’s application based on its determination that he lacked the fitness or trustworthiness to engage in the business of insurance. The specific basis for the Department’s denial was information the Department received that Petitioner had allegedly committed inappropriate sexual contact with a child. In July 2012, Petitioner was arrested for lewd or lascivious conduct involving his (then) five-year-old daughter. In October 2013, Petitioner was tried for the crime in Orange County Circuit Court in Case No. 2012-CF-010041-A-O. Petitioner was charged with three crimes including Lewd or Lascivious Molestation in violation of section 800.04(5)(b) and section 775.082(3)(a)(4), Florida Statutes (2012) (Count I); Lewd Act Upon a Child in violation of section 800.04(1) (Count II); and Lewd or Lascivious Conduct in violation of section 800.04(6)(b) (Count III). A jury found Petitioner not guilty on Count I--Lewd or Lascivious Molestation. (Petitioner’s defense counsel successfully moved for judgment of acquittal on Count III during the criminal trial.) But, the jury did find Petitioner guilty of Count II--Lewd Act Upon a Child.3/ Count II, according to the Information, specifically alleged that Petitioner: Between June 1st 2012 and June 3rd 2012, . . . did, in violation of Florida Statute 800.04(1), with his penis make contact with the body of a child under the age of sixteen (16) years in a lewd, luscious or indecent manner, and in furtherance thereof [PETITIONER] did rub his erect penis on [A.C.][4/] Petitioner was sentenced to 51.15 months in prison followed by ten years’ sex offender probation. Petitioner appealed his conviction. In January 2015, the Fifth District Court of Appeal overturned the conviction in Cobb v. State, 156 So. 3d 581 (Fla. 5th DCA 2015). The court ruled that the criminal charging document contained a fundamental error in that “the information neither referenced a statute that establishes a criminal offense nor set forth the essential elements of any substantive crime.” Id. In other words, Petitioner’s conviction under section 800.04(1) was “based on a non-existent crime.” Id. Since Petitioner’s criminal conviction was overturned, Petitioner has not been found guilty of or convicted of any crime based on the alleged lewd act upon a child.5/ At the time of the final hearing, Petitioner was facing no further criminal charges in this matter. No information or testimony was provided at the final hearing identifying an alternate or more appropriate crime that Petitioner allegedly committed involving the incident with his daughter. The Department, in its Notice to Petitioner, states that the factual basis for its denial of Petitioner’s application was his “inappropriate sexual contact with a child.” To support its determination, the Department cites to Petitioner’s criminal case stating: [Y]ou were criminally charged in Orange County Circuit Court Case No. 2012-CF- 010041-A-O with committing a lewd act upon a child. You were found guilty of the charge in a jury trial. The Department is aware your criminal conviction was reversed by Cobb v. State, 156 So. 3d 581 (Fla. 5th DCA 2015), because of a technical deficiency in the criminal charging document. While the Department acknowledged that Petitioner’s conviction was reversed, the Department maintains that the circumstances surrounding the incident demonstrate that Petitioner lacks the required fitness or trustworthiness to be issued a customer representative license.6/ Consequently, the Department denied Petitioner’s application for licensure. This administrative proceeding followed. The Incident Involving Petitioner’s Daughter Certain facts regarding the incident are undisputed. The child involved is Petitioner’s daughter, A.C.7/ A.C. was five years old at the time of the encounter. Petitioner is married to, but estranged from, A.C.’s mother, H.L. Over the weekend of June 1, 2012, A.C. was visiting Petitioner at his residence. On Saturday evening, June 2, 2012, Petitioner and A.C. were watching television in the room where A.C. slept during her visits. A.C. was wearing pajamas, and Petitioner was wearing short pants. Petitioner and A.C. were sitting or lying on the bed. At some point, the two were engaged in some sort of (non- violent) physical activity, e.g., hugging or light horseplay. The activity ended when Petitioner ejaculated, and A.C. felt the “wet” on the bed, her clothes, and her thighs. A little over a week later, on June 11 or 12, 2012, A.C. told her mother, H.L., that Petitioner had “peed” on her during her visit. On June 14, 2012, H.L. contacted the Florida Department of Children and Families (“DCF”) to report A.C.’s complaints about her encounter with her father. Both DCF and the Orlando Police Department investigated the matter. This investigation eventually led to the criminal charges levied against Petitioner. The principal factual dispute in this matter is how and what caused Petitioner to ejaculate in the presence of and on A.C. A.C.’s Version of the Incident A.C. did not testify at the final hearing. Her story was conveyed through a videotaped interview with a Child Protective Team (“CPT”) interviewer, as well as a transcript of her sworn testimony at Petitioner’s criminal trial.8/ After receiving H.L.’s report of suspected abuse, on or about June 14, 2012, A.C. was interviewed by investigators for DCF and the Orlando Police Department. During these interviews, A.C. stated that Petitioner had “peed” on her and had “humped” her. A.C. also used a teddy bear to physically demonstrate what happened between her and her father. She placed the teddy bear (in place of herself) on her lap between her legs and rocking her legs up and down. On or about June 26, 2012, the Orlando police coordinated with Arnold Palmer Hospital to have A.C. participate in a forensic interview with the CPT. CPT provides assessments to DCF and the police department regarding suspected child abuse or neglect. Brandi Silvia, a senior case coordinator with CPT, interviewed A.C. A video recording of Ms. Silvia’s interview with A.C. was played at the final hearing. Ms. Silvia described her interview with A.C. at the final hearing. Ms. Silvia is experienced in conducting child interviews. Ms. Silvia was trained to act as an unbiased interviewer. To accomplish this goal, she asks open-ended questions to obtain information that the child freely provides to her. Ms. Silvia began her interview by asking A.C. a series of questions to ascertain whether A.C. could differentiate between a true statement and a lie. Ms. Silvia testified that, in her opinion, A.C. knew to tell the truth. Ms. Silvia then questioned A.C. to determine whether she could effectively identify all of her body parts. A.C called her genitals her “pee pee.” During the interview, A.C. described the incident as “my Dad just peed on my bed.” A.C. explained that her father was sitting on the bed with his legs crossed. At some point, he took hold of A.C. and placed her in his lap. He then wrapped his arms around her and rocked his pelvis up and down against her. After a brief moment, A.C. felt something wet on her thighs. A.C. believed that Petitioner had “peed” on her. A.C. expressed to Ms. Silvia that Petitioner “was humping on me. Then, he peed on me and on my bed. And, I said [for Petitioner] to go to the bathroom!” At some point during the “humping” activity, A.C. cried out for Petitioner to “stop!” A.C. further recounted that she told her father that she “didn’t want him to, to do that again, never.” A.C. reenacted for Ms. Silvia how her father had placed her on his lap and “humped” her. During the interview, A.C. commented to Ms. Sylvia that she knew that people were not supposed to touch her “pee pee.” A.C. explained that Petitioner had not touched her “pee pee.” Neither did she see or touch Petitioner’s “pee pee.” A.C. also appeared at Petitioner’s criminal trial on October 7, 2013. A.C. testified that Petitioner touched the front of her body with the front of his body. A.C. stated that Petitioner “humped” her. A.C. described that Petitioner was laying down on the bed with his legs crossed at his ankles, and he moved them up and down. She then felt the bed, and it was wet with “pee.” Petitioner’s Version of the Incident During the course of this matter, from the initial investigation in June 2012, through his criminal trial in October 2013, and ultimately to the final hearing in January 2016, Petitioner offered an evolving explanation of what happened between him and his daughter on the night of June 2, 2012. As detailed below, Petitioner readily admitted the undisputed facts listed above. Petitioner also expressed that his understanding of how he ejaculated on his daughter develops as he continues to reflect upon the event. On June 19, 2012, Petitioner voluntarily provided a videotaped statement, under oath, to Detective Rick Salcedo of the Orlando Police Department as part of its investigation. During the interview, Petitioner refuted much of his daughter’s statement. Petitioner explicitly denied “humping” A.C. He also specifically denied ejaculating or “peeing” on his daughter. Petitioner confided to Detective Salcedo that he believed that his daughter had developed a fascination with peeing. He also intimated that A.C. had a habit of humping objects and even people. Petitioner further disclosed that during A.C.’s last visit to Petitioner’s house, the two “had a whole conversation about pee.” Petitioner, however, had no explanation for why A.C. would accuse him of “humping” her that night. On July 16, 2012, in reaction to A.C.’s interview with Ms. Silvia, Petitioner provided a sworn, written statement to the Orlando Police Department. Petitioner admitted that he was not “trueful [sic] about the situation” during his first interview. In reference to the situation, Petitioner wrote that, “I’ve had no sexual intent toward her, but her sexual actions in this case did cause me to ejaculate. I tried my best to stop her movements and action but I lost control of my ejaculation. After pushing her off my leg repeatedly, she jumped on my legs and her knee or leg caused me to ejaculate.” After providing his written statement, Petitioner sat for a second audio-taped, sworn interview with Detective Salcedo. During this interview, Petitioner presented an expanded, and revised, description of what occurred between A.C. and him while they were lying on the bed. Petitioner revealed that A.C. started straddling him and trying to hump his leg. Petitioner was wearing short pants. However, her skin rubbed his skin around his crotch. During this physical contact, A.C. “hit him the wrong way,” and he became aroused. He “lost control” of the situation and ejaculated. Petitioner surmised that A.C. “was straddling my leg so she probably felt something.” Petitioner told his story for a fourth time at his criminal trial in October 2013. During his testimony, Petitioner denied any lewd contact with his daughter. Instead, Petitioner expressed to the court that he was lying down on the bed, and A.C. was being playful and jumping around. He dozed off and woke up with an erection. Without warning, A.C. jumped on him. Petitioner testified that then he “sat her to the side, and she had calmed down, I believe, at that moment. And, right after that - that’s when I believe she had jumped on me again. And, I was sleeping, and ejaculated.” During cross-examination, Petitioner explained that he was asleep experiencing a wet dream. A.C. jumped on top of him, and he ejaculated when he woke up. At the final hearing, Petitioner admitted to ejaculating in the presence of and on his daughter. Petitioner repeated that he was asleep on the bed. He remembers that he was experiencing a wet dream. He awoke to find his daughter “humping” him. Petitioner described the incident as an “accident” and that he had no criminal or sexual intent. Petitioner denied that he physically touched A.C. in a sexual manner. Petitioner’s position is aptly summarized in his Petition for an Administrative Hearing in which he states that: As I was trying to put her to sleep, I accidentally fell asleep a couple of times without realizing . . . I believe I had a wet dream and was awoken by my daughter jumping on me and saying that I peed on her leg. I am not sure exactly how or when the wet dream or reaction occurred because I was disoriented from waking up. Petitioner conceded that he did not give the whole truth to Detective Salcedo during his first interview on June 19, 2012. Petitioner explained that, at the time of his initial interviews, he did not have a clear understanding of what had happened that night. At the final hearing, Petitioner conceded that he still remains confused by the exact turn of events. Petitioner expounded that: When I looked back and I tried to say well what happened . . . it wasn’t conclusive for me . . . I didn’t really find out to give a clear understanding for myself or anybody else at the time. I just have remembered some things happened. I remembered I was awake at this point. I don’t remember when I went to sleep . . . it was very, very foggy when I remember her actually saying that I had peed on her and I had – I remembered pushing her to remove her. I remember turning over. All of these things that I’ve mentioned. Those are the things I remembered. I think the real issue is the timeframe, and when these things happened is where I was really not sure myself. I was not sure. So, I just explained what I could. At both his criminal trial and the final hearing, Petitioner explained that the incident was exacerbated by several medical conditions from which he suffers. Petitioner represented that nerve pain from a 2010 surgery for a herniated disk causes him to experience increased sensitivity in his groin area. He also has increased sensitivity in his genital region due to a skin condition called folliculitis.9/ Petitioner stated that he has suffered from folliculitis outbreaks since December 2011. As a result, Petitioner experiences increased sensitivity in his groin, more frequent wet dreams, and an inability to control erections. Petitioner further testified that he was just getting over a folliculitis outbreak during the weekend of June 1, 2012. At the final hearing, Petitioner did not present any medical records or a medical professional diagnosis or opinion supporting his claim that his medical conditions cause him to experience increased sensitivity to wet dreams or uncontrollable erections or ejaculation. Following his victory in the Fifth District Court of Appeal, Petitioner was released from prison in November 2014. Shortly thereafter, he began working at an Allstate insurance agency as a telemarketer. He has worked at the agency without incident or consumer complaint. Based on the evidence and testimony presented at the final hearing, Petitioner has not met his ultimate burden of proving, by a preponderance of the evidence, that he is entitled to a license as a resident customer representative. Based primarily on Petitioner’s misrepresentations to law enforcement officials, Petitioner’s actions show that he is untrustworthy. Accordingly, Petitioner lacks the requisite fitness and trustworthiness to engage in business of insurance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, the Department of Financial Services, enter a final order denying Petitioner’s application for licensure as a customer representative in Florida. DONE AND ENTERED this 29th day of April, 2016, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 29th day of April, 2016.
The Issue Whether Respondent's license as a limited surety agent should be revoked or otherwise disciplined for the reasons alleged in the Amended Administrative Complaint.
Findings Of Fact Petitioner, Department of Insurance and Treasurer, is the agency of the State of Florida which, pursuant to Chapter 648, Florida Statutes, is vested with jurisdiction to regulate licensure of limited surety (bail bond) agents. Respondent, Edward Leon Bolding, Jr., is a licensed limited surety agent, which license is currently under suspension by emergency order issued by Petitioner on June 23, 1997. Petitioner's official licensing data reflect that Respondent, Edward Leon Bolding, Jr., is a white male, born June 26, 1953, Social Security number 265-08-1197, whose address is 13803 Lake Village Place, Tampa, Florida 33624-4414. On April 21, 1997, Edward Leon Bolding II, was charged with two counts of aggravated assault in violation of Section 784.021, Florida Statutes, a third degree felony, in Case No. 97-00004536, Criminal Division, Circuit Court of the Thirteenth Judicial Circuit in and for Hillsborough County, Florida. The criminal information describes Edward Leon Bolding II as a white male, born June 6, 1953, Social Security number 265-08-1197. The criminal report affidavit filed in criminal Case No. 97-4536 further lists Edward Leon Bolding II with an address of 13803 Lake Village Pl. 33624. The Hillsborough County Sheriff's Office, Detention Department's arrest records for Edward Leon Bolding II describe the defendant as a white male, born June 26, 1953, Social Security number 265-08-1197, and whose address is listed as 13803 Lake VL PL, TAMPA 33624. The arrest records further list next of kin as Edward Bolding, Sr., whose relationship to Edward Leon Bolding II is father. On June 23, 1997, Petitioner filed an Emergency Order of Suspension and an Administrative Complaint against Respondent Edward Leon Bolding, Jr., alleging that Respondent was charged in Case No. 97-00004536 with two counts of aggravated assault, each a felony, in violation of Section 764.021, Florida Statutes. On July 3, 1997, Respondent Edward Leon Bolding, Jr., filed an Answer to the Administrative Complaint which admitted that Respondent was a licensed limited surety agent, born June 6, 1953, Social Security number 265-08-1197, whose address was 13803 Lake Village Place, Tampa, Florida 33624. On July 14, 1997, Edward Leon Bolding II pled guilty to two counts of aggravated assault, each count a felony in violation of Section 784.021, Florida Statutes, in the above- described Case No. 97-00004536, Criminal Division, in the Circuit Court of the Thirteenth Judicial Circuit, in and for Hillsborough County, Florida. On August 28, 1997, Petitioner filed an Amended Administrative Complaint alleging that Respondent Edward Leon Bolding, Jr., pled guilty to two felony counts of aggravated assault. On October 3, 1997, Respondent filed an Answer to the Amended Administrative Complaint which, as set forth above, denied all allegations except that Petitioner has jurisdiction over limited surety licenses. The Hillsborough County Sheriff's Office's arrest records, the criminal court records in Case No. 97-00004536 of the Thirteenth Judicial Circuit, and the Petitioner's licensure records, all identify Edward Leon Bolding II, defendant, who pled guilty in Case No. 97-00004536, and Edward Leon Bolding, Jr., Respondent in this administrative proceeding, as one and the same person.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner, Department of Insurance and Treasurer, enter a Final Order denying the licenses and eligibility for licensure of Respondent, Edward Leon Bolding, Jr. DONE AND ENTERED this 6th day of May, 1998, in Tallahassee, Leon County, Florida. RICHARD A. HIXSON 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 6th day of May, 1998. COPIES FURNISHED: Dickson E. Kesler, Esquire Division of Legal Services 401 Northwest Second Avenue Suite N-321 Miami, Florida 33128 Joseph R. Fritz, Esquire 4204 North Nebraska Avenue Tampa, Florida 33603 Honorable Bill Nelson State Treasurer and Insurance Commissioner The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Y. Sumner, General Counsel Department of Insurance and Treasurer The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300
The Issue Whether Petitioner's application for licensure as a customer representative should be granted.
Findings Of Fact Based on the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Petitioner, Marie Ostrowski, submitted an application for licensure as a customer representative. The application was completed and executed by Petitioner on or about February 28, 2003. Chapter 626, Florida Statutes (2003), creates jurisdiction for Respondent, Department of Financial Services, to issue the license and regulate Petitioner in its use. was: One of the questions to be answered in the application Have you ever been charged, convicted, found guilty, or pled guilty or nolo contendere (no contest) to a crime under the laws of any municipality, county, state, territory or country, whether or not adjudication was withheld or a judgment of conviction was entered? Yes/No Petitioner typed or entered "N" in the space next to the question indicating "no" as the answer. Above the signature Petitioner placed on the application is language, which states in pertinent part: I do solemnly swear that all answers to the foregoing questions and statements are true and correct to the best of my knowledge and belief . . . * * * Whoever knowingly makes a false statement in writing with the intent to mislead a public servant in the performance of his/her official duty shall be guilty of a misdemeanor of the second degree. 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 the 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 the denial of my application and/or the revocation of my insurance license. In reviewing and considering Petitioner's application, the Department conducted a background check of Petitioner. Based on its criminal background check, the Department determined that, contrary to the representations in the application in response to the question concerning Petitioner's criminal history, Petitioner had a criminal history. On July 15, 1992, in State of Florida vs. Marie Pallante [Petitioner], Circuit Court of Pinellas County, Florida, Criminal Division, Case No. CRC91-21372CFANO-C, Petitioner entered a plea of nolo contendere to "Issuing a Worthless Check." At the time of the criminal matter referenced herein, Petitioner's name was Marie Pallante. On July 15, 1992, the Court accepted the plea, and withheld adjudication, and ordered Petitioner to pay court costs of $100.00 within 60 days and to pay restitution in the amount of $100.00 within 60 days to Michael Pallante, who, at that time, was her estranged or former husband. The Clerk of the Circuit Court issued a Satisfaction of Judgment/Fine giving notice that the costs in the amount of $100.00 levied against Petitioner in Case No. CRC91-21372CFANO-C on July 15, 1992, was paid and satisfied in full on September 14, 1992. Petitioner also paid the restitution to her former or estranged husband as required by the Court in Case No. CRC91-21372CFANO-C. The underlying incident which led to the criminal charge being brought against Petitioner and resulted in her entering the nolo contendere plea, occurred on or about November 11, 1991, and involved a check written to a Publix Supermarket. At or near the time of the incident, Petitioner's estranged husband had her name removed from their previously joint checking account without her knowledge. This action was taken by Mr. Pallante soon after Petitioner filed for, and obtained, a restraining order against him. Prior to Petitioner's applying for the application, which is the subject of this proceeding, she mistakenly believed that based on her attorney's representations in the above- referenced 1992 criminal matter, the record in the matter was sealed and/or expunged. At all times relevant to this proceeding, Petitioner was employed by Mercury Insurance Company (Mercury). At the time Petitioner was employed by Mercury, she advised the appropriate personnel of the 1991 incident and the 1992 plea of nolo contendere. However, neither the criminal charge nor Petitioner's subsequent plea of nolo contendere was reflected in the background check done or procured by Mercury. Apparently, Petitioner answered the subject question on the application inappropriately based on her mistaken belief that her criminal record had been sealed and/or expunged. Petitioner's belief also seemed to be supported by the fact that no criminal record appeared in a previous criminal background check conducted by her employer, Mercury. The subject question, quoted in paragraph 3 above, was not ambiguous and contemplated that an applicant answer the question regarding any crime with which the applicant had been "charged, convicted, found guilty, or pled nolo contendere (no contest) . . . whether or not adjudication was withheld." In light of the clarity of the question, it is unreasonable to believe that Petitioner did not understand the question and appreciate that the answer to the question in the application was untruthful. By signing the application according to the instructions for the oath and by her signature, Petitioner acknowledged the consequences of her choice to provide the wrong answer about her criminal history as constituting a violation of the Florida Insurance Code. Prior to and subsequent to the 1992 criminal matter discussed above, Petitioner has not been involved in any other criminal activity or incident.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that the Department of Financial Services enter a final order denying Petitioner's application for a customer representative license. DONE AND ENTERED this 31st day of March, 2004, 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 31st day of March, 2004. COPIES FURNISHED: Ladasiah Jackson, Esquire Department of Financial Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Marie M. Ostrowski 8649 Hawbuck Street Trinity, Florida 34655 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue The issues are whether Respondent is guilty of pleading nolo contendere to three counts of uttering a forged instrument, three counts of forgery, and three counts of grand theft so as to constitute a demonstrated lack of fitness or trustworthiness to engage in the business of insurance, in violation of Section 626.611(7), Florida Statutes; willful failure to comply with any provision of this Code, in violation of Section 626.611(13), Florida Statutes; a finding of guilty or pleading of guilty or nolo contendere to a felony involving a crime of moral turpitude, in violation of Section 626.611(14), Florida Statutes, any cause for which issuance of the license or permit could have been refused or denied by Petitioner, pursuant to Section 626.621(1), Florida Statutes; and a finding of guilty of pleading of guilty or nolo contendere to a felony, in violation of Section 626.621(8), Florida Statutes. An additional issue is whether Respondent failed to notify Petitioner of her plea of nolo contendere within 30 days, as required by Section 626.621(11), Florida Statutes. If Petitioner prevails on any of these issues, another issue is the penalty that should be imposed.
Findings Of Fact At all material times, Respondent has been licensed as a Customer Representative. On February 23, 2001, Respondent pleaded no contest to three counts of uttering a forged instrument--i.e., a bank check--on August 10, 2000, in violation of Section 831.02, Florida Statutes; three counts of forgery of a public record on August 10, 2000, in violation of Section 831.01, Florida Statutes; and three counts of third-degree grand theft on August 10, 2000, in violation of Section 812.014, Florida Statutes. She also agreed to pay restitution of $1892.87 and court costs. By Community Supervision Order entered February 27, 2001, the court accepted the plea, withheld adjudication, placed Respondent on two years' probation, required Respondent to pay restitution of $1892.87, and required Respondent to pay court costs. Respondent entered the plea of no contest to avoid the expense of a trial. She relied on the advice of her criminal attorney that this disposition of the criminal case would have no effect on her insurance license. She was unaware of her obligation to inform Petitioner of her entry of a no contest plea to these nine charges. Respondent finished paying restitution in March 2003 and has successfully completed her probation. One of her witnesses testified that he has worked with Respondent in the past and is aware of the conduct described above. He testified that he is establishing a new insurance agency in January 2004 and, if her licensing situation permits, he intends to employ her in that office.
Recommendation It is RECOMMENDED that the Department of Financial Services enter a final order finding Respondent guilty of violating Sections 626.611(14) and 626.621(11) and suspending her Customer Representative license for five months. DONE AND ENTERED this 27th day of August, 2003, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 2003. COPIES FURNISHED: Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 R. Terry Butler, Senior Attorney Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Karen Marie Maldonado 701 Southwest Ravenswood West Port St. Lucie, Florida 34983
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: At all times pertinent to this proceeding, the Respondent, Robert R. Sylvester, was certified as a law enforcement officer by the Florida Criminal Justice Standards and Training Commission. Respondent was issued certificate number 02-14567 on August 29, 1975. At the time of the hearing in this matter, Respondent was forty-six years old. Prior to becoming a police officer, Respondent was honorably discharged from the Marine Corps after three years of service and after achieving the rank of sergeant. Respondent's unblemished record of service in the Marine Corps included twenty-three months of active duty in Viet Nam and assignment to the security forces responsible for guarding the Presidents of the United States and South Viet Nam. Respondent began working with the Delray Beach Police Department ("DBPD") in 1975. At some point in 1979, the Delray Beach Police Department hired a new police chief. As discussed in more detail below, Respondent had a long feud with the new police chief beginning in approximately mid-1980 There is no evidence of any problems with Respondent's job performance at the DBPD or any dissatisfaction with his work until April or May of 1980, when Respondent and another officer were accused of using excessive force in the arrest of a shoplifter. Respondent was in line for a promotion prior to the complaint being lodged against him. The allegations against Respondent received wide publicity and, apparently as a result, Respondent was not promoted. After an investigation, the Chief of Police recommended that Respondent receive a thirty-day suspension without pay for the use of excessive force. Respondent contested the results of the investigation and was exonerated by the police department's five-man review board and by a grand jury. A federal civil rights investigation also found no basis for the charges against Respondent. Despite these findings, the City Manager imposed a 5-day suspension on Respondent. Under the existing Civil Service Rules, Respondent could not appeal that ruling. Respondent brought a civil action against the City Manager and the Chief of Police alleging that their actions in disciplining him violated his statutory, contractual and constitutional rights. A jury returned a verdict in favor of Respondent and awarded him $75,000 in compensatory damages and $25,000 in punitive damages. Respondent's lawsuit was appealed all the way to the Florida Supreme Court and was tied up in the courts for more than ten years. The suit was still not completely resolved at the time of the hearing in this case. During this entire time, Respondent continued to work for the DBPD. At the time of the hearing in this matter, Respondent was still a patrolman. Respondent has been passed over for promotion several times while his lawsuit has been pending against the Police Chief. He contends that throughout this period he has received unfavorable assignments and has been harassed by his supervisors. During this same time period, Respondent also became active in the police union serving as a bargaining agent and later as the president of the local organization. As a result of these matters, Respondent claims that his actions were very closely scrutinized by the DBPD and, consequently, he scrupulously tried to avoid even the appearance of impropriety in all of his actions. On November 13, 1989, the DBPD sought to terminate Respondent from employment alleging that he had improperly disseminated criminal history records and phone rosters of Delray Beach police officers to a private investigator named Virginia Snyder and/or her associate, Donald Pierce. Virginia Snyder was a former newspaper reporter in Delray Beach who subsequently started a business as a private investigator. She was a long-time and very vocal public critic of the DBPD and its chief. Donald Pierce was a former Delray Beach police officer who resigned from the police department and became a private investigator. He was associated on a part-time basis with Virginia Snyder's investigative agency. Respondent and Pierce served together as officers of the local police union. After he quit the DBPD, Pierce remained active in union affairs. Respondent successfully challenged his dismissal in a labor arbitration proceeding. He similarly prevailed in two separate unemployment compensation hearings. The only witness who claimed direct knowledge that Respondent provided confidential documents to Virginia Snyder and/or Donald Pierce was Nancy Adams. No other witness testified in this proceeding or in Respondent's labor arbitration or unemployment hearings that Respondent improperly delivered confidential documents. Respondent, Virginia Snyder and Donald Price have all disputed Ms. Adams testimony. Thus, this case boils down to whether Nancy Adams' testimony should be accepted. Nancy Adams began working for Virginia Snyder as a volunteer in Ms. Snyder's office beginning in approximately mid-May 1989. The circumstances under which Ms. Adams began working at Ms. Snyder's office are somewhat curious. Ms. Adams called Ms. Snyder inquiring about bodyguard or protective services which Ms. Snyder told her were not the types of services offered by the company. Ms. Adams then indicated that she was interested in learning the private investigation business. After much prodding by Ms. Adams, Ms. Snyder agreed to help her learn about the business by letting her observe what was done in the office. Ms. Adams demonstrated great eagerness and curiosity and volunteered to assist on various matters. In fact, she repeatedly offered to testify in proceedings of which she had no direct knowledge. Ms. Adams was not paid for her services. Within a week or so after she started working with Ms. Snyder, Ms. Adams began meeting with DBPD officers regarding alleged confidential information that she observed in Ms. Snyder's office. During June and July of 1989, Ms. Adams met with Sgt. Musco of the DBPD numerous times, usually a couple times a week. She provided him with documents that she claimed to have been obtained from Virginia Snyder, Donald Pierce and/or Respondent. Other than Ms. Snyder's public allegations, no evidence was presented to establish that the DBPD solicited or planted Ms. Adams in Ms. Snyder's office. Lieutenant Lunsford, who assumed responsibility for the investigation approximately two months after the meetings began between Ms. Adams and other DBPD officers and around the time the entire incident became public with a great deal of fan-fare, was very credible and forthwright. He accepted Ms. Adams statements regarding the Respondent based upon what he felt was corroborative circumstantial evidence, but candidly admitted that "I would say I'd question things that she said in general conversation, yes . . . it sometimes would take a lot to convince me about some of the things she said, yes." At the hearing in this matter Ms. Adams' testimony was often vague and sometimes contradictory and inconsistent. While some of her memory lapses can be attributed to the passage of time, the vagaries, inconsistencies and contradictions in her testimony make it difficult to decipher fact from fiction. NCIC/FCIC Records The National Crime Information Center (NCIC) and the Florida Crime Information Center (FCIC) maintain criminal history records that can be accessed by computer. The computer records also contain automobile registration information. Law enforcement agencies can obtain access to the NCIC/FCIC System by obtaining an appropriate computer terminal. Law enforcement personnel who utilize the computer are supposed to obtain a certification. As part of his duties with the Police Department, Respondent was trained to access NCIC/FCIC information through the NCIC/FCIC computer terminal. In order to obtain this certification, Respondent had to become familiar with the operation of the terminal and the restrictions on access to the information contained in the system. Section 943.053(2), Florida Statutes, provides that "criminal justice information derived from federal criminal justice information systems or criminal justice information systems of other states shall not be dessiminated in a manner inconsistent with the laws, regulations, or rules of the originating agency." 28 CFR Section 20.21(f)(4)(b) provides that "law enforcement agencies are required to provide that direct access to criminal history record information shall be availble only to authorized officers or employees of criminal justice agencies and, as necessary, other authorized personnel essential to proper operation of the criminal justice history record information system." As a result of his training, Respondent knew that sanctions could be imposed against a law enforcement agency for misuse of the criminal history records obtained through the computer access to the NCIC/FCIC System. Respondent also knew that use of the limited access information obtained over the terminal for personal gain could result in criminal prosecution. The general public can obtain access to certain information in the NCIC/FCIC System through the Public Records Act, Chapter 119, Florida Statutes. The information available under the Florida Public Records Law regarding criminal history records is different from the information available to law enforcement officers accessing those records for a criminal justice purpose. The public records access is limited to in-state criminal history records and does not include sealed criminal history records. Law enforcement officers accessing the records for a criminal justice purpose have access to both non- Florida criminal history records and sealed criminal history records. Since 1974, the Florida Department of Law Enforcement has maintained an automated data base, identified as the centralized criminal history dissemination file. This data base is comprised of records of the dissemination of Florida criminal history records from the NCIC/FCIC System as a result of both law enforcement requests and public sector requests. At the Delray Beach Police Department, the NCIC/FCIC computer terminal was located on the second floor near the police and fire dispatchers. The evidence presented in this case established that, while the door to the room was supposed to be locked, there was relatively free access to the room and computer terminal. During the spring and summer of 1989, Respondent was the only Delray Beach patrolman certified to use the NCIC/FCIC computer, but all of the dispatchers for the DBPD were certified. In addition, some officers utilized the computer even though they had not been certified. The evidence indicates that there was very little control over the dissemination of NCIC/FCIC information obtained via the computer. Some reports were distributed with little or no concern paid to protecting the security of the information. Ms. Adams contends that, during the time she was volunteering at Ms. Snyder's office, she observed that Ms. Snyder and Donald Pierce had NCIC/FCIC criminal history records on certain individuals. The evidence established that Respondent was the computer operator at the time that certain NCIC/FCIC criminal history records which later were turned over by Nancy Adams to the Delray Beach Police Department were generated. However, the evidence did not clearly establish that Respondent turned any such records over to Virginia Snyder, Donald Pierce, Nancy Adams, or any other unauthorized person. At the hearing in this case, Ms. Adams could not specifically tie Respondent to the delivery of any NCIC/FCIC records to Virginia Snyder or anyone else except in one case. She testified that the criminal records of Manuel Garcia were delivered by Respondent to Donald Pierce at a restaurant in Boca Raton. Previously, she had told Sgt. Musco of the DBPD that Manual Garcia's record was taken from Virginia Snyder's office. Ms. Adams also testified that she was told by Virginia Snyder and Donald Pierce that they regularly received NCIC/FCIC criminal history records from Respondent and that she heard Donald Pierce call Respondent and request certain NCIC/FCIC records. This testimony has been disputed by Respondent, Virginia Snyder and Donald Pierce. In her various statements, Ms. Adams has given different versions for the source of many of the documents that she turned over to the DBPD. At different times, the documents were alleged to have been handed to her by Respondent, given to her by Donald Pierce, removed from Virginia Snyder's office and/or Donald Pierce's truck. It is impossible to reconcile the sometimes conflicting stories on the source(s) of the documents. These inconsistencies and the questions raised regarding Ms. Adams' credibility lead to the conclusion that Petitioner has not met its burden of proof in this case. While it is conceivable that Virginia Snyder and/or Donald Pierce had some NCIC/FCIC records in their possession at certain times, it can not be concluded from the evidence produced in this case that Respondent was the source of any of those documents. There are a number of possible ways that Ms. Adams, Ms. Snyder and/or Donald Pierce could have obtained copies of NCIC/FCIC printouts. In fact, in earlier testimony Ms. Adams alluded to another alleged source that Ms. Snyder and Mr. Pierce had at the DBPD and/or the sheriff's office. While the explanations offered by Respondent as to why he requested certain criminal history records were not totally satisfactory, the evidence was not clear and convincing that Respondent turned such documents over to any unauthorized individual. Phone lists Ms. Adams also testified that Respondent provided Virginia Snyder with confidential phone lists of the Delray Beach police officers. The evidence established that those phone lists were widely disseminated and that Virginia Snyder had access to those lists from several sources. In fact, Ms. Snyder had copies of such lists dating back more than ten years, even though there is no evidence that Ms. Snyder had any dealings with Respondent until 1989 when Donald Pierce began doing some work for her. Thus, it appears that Ms. Snyder had a source for obtaining the phone lists long before she ever met Respondent. The evidence was not convincing that Respondent directly provided any such lists to Virginia Snyder. Respondent admits providing some phone lists to Donald Pierce in connection with Mr. Pierce's continuing involvement with the police union. Petitioner has not established that the dissemination of the phone lists to Donald Pierce was improper. Conclusion Respondent admits "running license tags" for Donald Pierce on the computer and verbally providing Mr. Pierce with the resulting non-confidential information. However, he denies ever providing any NCIC/FCIC criminal record printouts to Donald Pierce, Virginia Snyder or Nancy Adams. Respondent's close association with Donald Pierce and his willingness to provide him with phone lists and verbal information obtained from "running license tags" certainly raises some questions as to his judgment. In addition, Respondent did not carefully guard the confidentially of the criminal history records that he admittedly obtained. However, the evidence indicates that such information was not closely protected throughout the Department. In sum, the evidence did not clearly and convincingly establish that Respondent was lacking of good moral character.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order finding the evidence insufficient to prove that Respondent is guilty, as charged, of having failed to maintain "good moral character" in violation of Section 943.1395, Florida Statutes, and dismissing the Administrative Complaint issued against him. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 8th day of March 1994. J. STEPHEN MENTON 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 8th day of March 1994. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 92-6175 As noted in the Preliminary Statement, only Petitioner submitted separately identified and numbered proposed findings of fact. The following rulings are made on the proposed findings of fact submitted by Petitioner. Adopted in substance in findings of fact 1. Adopted insubstance in findings of fact 21. Rejected as unnecessary. The subject matter is addressed in findings of fact 30. Adopted in pertinent part in findings of fact 31. Adopted in pertinent part in findings of fact 24 and 30. Rejected as unnecessary. The subject matter is addressed in findings of fact 30. Adopted in substance in findings of fact 22. Adopted in substance in findings of fact 22. Adopted in substance in findings of fact 23. Rejected as unnecessary. The subject matter is addressed in findings of fact 30. Addressed in the Preliminary Statement. Rejected as unnecessary. Rejected as unnecessary. Subordinate to findings of fact 16 and 27-30. 15-21. Subordinate to findings of fact 16 and 27-30. COPIES FURNISHED: John P. Booth, Esquire Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jack Scarola, Esquire Searcy, Denney, Scarola, et al. 2139 Palm Beach Lakes Boulevard Post Office Drawer 3626 West Palm Beach, Florida 33402-3626 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether the Petitioner, Alejandro S. Contreras, (Petitioner or applicant) is entitled to have his application for licensure as a general lines agent be granted.
Findings Of Fact The Petitioner is an applicant for licensure as a general lines agent. He is employed by the Twin Peaks Insurance Agency and is considered a valued employee. The Respondent is the state agency charged with the responsibility of regulating the insurance industry in Florida and must make determinations regarding the licensure of general lines agents. In January of 1988, when he was approximately 21 years old, the Petitioner purchased an automobile from “a friend.” Subsequently, the Petitioner was charged with possession of forged/fictitious registration or indicia of ownership of a motor vehicle. The Petitioner quickly discovered why the vehicle had been a good buy: it had been stolen. Regardless, after being charged, the Petitioner entered a plea of nolo contendere to the matter and the judge withheld adjudication, placed the Petitioner on a one-year probation, and imposed community service. The Petitioner successfully completed the terms of his probation. The crime, as charged, was a third-degree felony. Such felonies may be punishable with up to five years of imprisonment. Clearly, by acknowledging the wrong doing and taking responsibility for his actions, the Petitioner saved himself from a potentially harsher penalty. Since the incident described, the Petitioner has not been charged with any criminal conduct. The Petitioner is now 38 years of age, has worked at the insurance agency for the past year, and has successfully completed classes and training to become licensed. To that end, the Petitioner completed an application for licensure at the Department’s online website. According to Petitioner the form was completed at an early hour and he scanned the questions quickly. One of the application questions asked the following: Have you ever been convicted, found guilty, or pled guilty or nolo contendere (no contest) to a 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? The Petitioner’s response was “no.” According to the Petitioner, he believed the question meant “had he been punished with a year in prison for anything.” In fact, the Petitioner has not been in prison for anything. He was, however, charged with a crime that could have been punished with one year in prison. He did, in fact, plead nolo contendere to that crime. His correct answer should have been “yes.” When the Department ran the background checks for licensure the incorrect answer was discovered and the Petitioner’s application was denied for giving a false response. Prior to his employment the Petitioner disclosed his past to his employer. He did not attempt to hide any information from the employer and was helpful in providing all requested information to the Department when the issue of the answer first arose. It took an exchange of several letters before the Petitioner comprehended the information and findings relied upon by the Department. In denying the licensure, the Department has deemed the Petitioner’s incorrect response a material misstatement, misrepresentation, or fraud in attempting to obtain the license. The Petitioner did not, however, understand the question on the application form and did not understand that he had incorrectly answered it. It is entirely possible that the Petitioner’s comprehension of English (or lack thereof) compounded the problem. Regardless, the Petitioner did not intend to misstate his criminal past. Further, such an effort would have been inconsistent with having disclosed the past to his employer. The Petitioner is hard-working and trusted by his employer and will be considered a loss if the license is not approved.
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 approving the application of the Petitioner. S DONE AND ENTERED this 28th day of January, 2005, in Tallahassee, Leon County, Florida. ___________________________________ J. D. PARRISH 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 January, 2005. COPIES FURNISHED: Dana M. Wiehle, Esquire Department of Financial Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399 Alejandro S. Contreras 300 Northeast 12th Avenue, No. 405 Hallandale, Florida 33009 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Pete Dunbar, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
