The Issue The issue for consideration in this hearing is whether Respondent's license as a real estate salesperson in Florida should be disciplined because of the matters alleged in the Administrative complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Division of Real Estate was the state agency responsible for the licensing of real estate salespersons and the regulation of the real estate sales profession in Florida. Respondent, Mark T. West, was licensed by the Division as a real estate salesperson on March 3, 1997, upon passage of the salesperson examination, and held license number SL-0647923. Notwithstanding Respondent's testimony that he has not been actively engaged in the practice of real estate, licensure records maintained by the Division reflect that from March 11, 1997 through the present, he has been active as a salesperson with two broker corporations, TRI W Group, Inc., from March 11, 1997 through September 17, 2000, and TRI-W Brokerage Inc., from September 18, 2000 to the date of certification, February 22, 2001. On December 15, 1995, Respondent submitted an application for licensure to the Department of Business and Professional Regulation, Division of Real Estate. His application reflected he was born in St. Petersburg, Florida, on September 20, 1961. Question 9 on the application asks whether the applicant has ever been convicted of a crime, found guilty, or entered a plea of nolo contendere, even if adjudication was withheld. The question indicates it's applicability to any violation of the law of any municipality, county, state, or nation, including traffic offenses other than minor traffic offenses, and requires the applicant to provide details, including dates and outcomes, in full, on a separate sheet of paper. The time period of applicability is not limited. On his application, Respondent, in answer to question 9, indicated "Yes" and listed a violation of failure to yield to a fire engine. No other offenses were reflected on the form, nor was any separate sheet listing other offenses found in the records of the Division. After the application was filed, consistent with its usual practice, the Division conducted a criminal records background check on Respondent which revealed other offenses had been charged against him. On January 17, 1980, Respondent was charged with DWI in Pinellas County. His driver's license was suspended for 90 days, and he was fined. On September 11, 1982, Respondent was charged with a misdemeanor charge of obstructing a police officer in the performance of his duties. Though Respondent claims he did nothing wrong and the police officer was reprimanded for charging him, the fact remains that Respondent pleaded guilty to the charge on December 2, 1982, and adjudication was withheld. On January 13, 1986, Respondent was charged, in two separate cases, with obtaining property by worthless check. Both checks were for $81.90 and, according to Respondent, were given in payment for paint which he purchased to paint someone's home. He claims he was not paid for the job and, therefore, had no funds with which to satisfy the checks he wrote. Respondent pleaded guilty in both cases and was placed on probation in each case along with a requirement to make restitution and pay costs. He was discharged from probation after nine months. Respondent claims that as to all offenses to which he pleaded guilty, he did so upon advice of counsel. Respondent was interviewed regarding his application on January 13, 2000, by an investigator with the Division to whom he indicated at the time that he did not believe he was required to list any offense over ten years in the past. At hearing, however, Respondent modified that answer by indicating his belief the ten-year limitation related only to traffic offenses. Once the Administrative Complaint was served upon Respondent, in his election of rights, he claimed he had listed all the prior disciplinary actions on a separate sheet of paper which he enclosed with the application when it was submitted. He reiterated that claim in a letter to the Division on November 15, 2000, and he persists in that claim as of the date of this hearing. Review of the application in question reveals that Respondent had previously submitted application for licensure in September, 1994, and had failed the examination for licensure on November 11, 1994, and on January 1, April 3, and June 12, 1995. A review of Respondent's investigative file failed to disclose the prior application or whether Respondent had listed his other offenses on that application. He claims he did so, however. Respondent attended real estate school in preparation for taking the licensure exam. He cannot recall, however, whether, at the school, he was taught how to fill out the application and what was required to be on it. However, he admits to having read the application and realizes it had to be accurate and complete. He contends he believed he had complied with the disclosure requirements and signed the affidavit of completeness which appears on the application. Respondent admits that all his difficulties with the law are not listed on the application form itself. He also admits that there is no time limit listed on the application and that the application form, as he submitted it, does not reflect there is an attachment or continuation in any form. No explanation was given by the counsel for the Commission for the almost five-year delay between the filing of the application for examination by Respondent and the filing of the Administrative Complaint by the state.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Real Estate Commission enter a Final Order finding Respondent guilty of a violation of Subsections 475.25(1)(e) and (m), Florida Statutes, placing his license as a real estate sales person on probation for one year under such terms and conditions as the Commission may prescribe, and imposing an administrative fine of $1,000. DONE AND ENTERED this 24th day of May, 2001, in Tallahassee, Leon County, Florida. ___________________________________ ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 2001. COPIES FURNISHED: Juana C. Watkins, Esquire Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Mark T. West 222 145th Avenue, East Madeira Beach, Florida 33708 Herbert S. Fecker, Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether Petitioner is eligible for an exemption from disqualification from working with children.
Findings Of Fact The evidence presented at hearing established the facts that follow. In 2000, Petitioner Sonia Leggs-Stewart (“Leggs- Stewart”) sought employment with at least two entities that provide services under contract to Respondent Department of Juvenile Justice (“DJJ”). These two providers are the Dade Marine Institute, Inc. (the “Institute”) and Youth Services International/Everglades Academy (the “Academy”). The positions that Leggs-Stewart sought entailed contact with children. As a condition of applying for such employment, she was required to consent to a background investigation. Further, the employment applications that Leggs- Stewart completed and submitted to these two providers included queries pertaining to the applicant’s criminal record. Finally, Leggs-Stewart, as required for employment, executed and delivered to each prospective employer an Affidavit of Good Moral Character (the “Affidavit”). The Affidavit is a DJJ form. In it are listed 45 consecutively numbered criminal offenses, each identified by a citation to the applicable section of the Florida Statutes and a brief description of the crime. The affiant must either (a) attest that she has not been convicted of any of these disqualifying offenses “or of any similar offense in another jurisdiction” or (b) disclose any such convictions.1 Above the notary’s signature line on the Affidavit are two separate statements. The affiant is supposed to certify the accuracy of one or the other by signing below the applicable statement. These are the options: I attest that I have read the above carefully and state that my attestation here is true and correct that neither my adult nor juvenile record contains any of the listed offenses. I understand, under penalty of perjury, all employees in such positions of trust and responsibility shall attest to meeting the requirements for qualifying for employment and agreeing to inform the employer immediately if arrested of any of the disqualifying offenses. I also understand that it is my responsibility to obtain clarification on anything contained in this affidavit which I do not understand prior to signing. I am aware that any omissions, falsifications, misstatements or misrepresentations may disqualify me from employment consideration and, if I am hired, may be grounds for termination at a later date. SIGNATURE OF AFFIANT OR To the best of my knowledge and belief, my record contains one or more of the disqualifying acts or offenses listed above. (If you have previously been granted an exemption for this disqualifying offense, please attach a copy of the letter granting exemption.) (Please circle the offense(s) contained in your record.) SIGNATURE OF AFFIANT (emphasis added). Leggs-Stewart applied for employment with the Academy in March 2000. On the employment application, she answered “yes” to the question: “Have you ever been convicted of a felony or a first degree misdemeanor?” Leggs-Stewart explained that she had been convicted in February 1991 of “possession with intent to distribute cocaine.” On the corresponding Affidavit, however, which she executed on March 13, 2000, Leggs-Stewart incongruously signed below the first certificate (meaning no convictions) and failed to circle any of the listed offenses, including this one: [Chapter 893, Florida Statutes,] relating to drug abuse possession and control if the offense was a felony or if any other person involved in the offense was a minor (this includes charges of possession of controlled substances, the sale of controlled substances, intent to sell controlled substances, trafficking in controlled substances, and possession of drug paraphernalia, etc.) The record is silent as to whether the Academy offered Leggs-Stewart a job; there is no evidence that she worked for the Academy. In December 2000, Leggs-Stewart applied for a job with the Institute. The employment application asked: “Have you ever been committed [sic] or convicted of a crime, pled guilty or nolo contendere, had a pretrial intervention or withheld adjudication? Yes NO If yes, give dates and type of action: .” Leggs-Stewart left these lines blank. Also, as before in connection with her application to the Academy, Leggs-Stewart signed the Affidavit below the first certificate and circled none of the listed offenses. The Institute hired Leggs-Stewart to work in a program for youth called W.I.N.G.S. for Life South Florida. Some months later, in June 2001, DJJ notified Leggs- Stewart that an investigation of her background had uncovered arrests for, on one occasion in 1990, federal charges involving the importation and possession of cocaine with intent to distribute and, on another in 1989, an unrelated state aggravated assault charge.2 She was asked to furnish DJJ with a detailed description of the circumstances surrounding the disqualifying offenses, to complete a new Affidavit, and to explain why the previous Affidavit failed to indicate any disqualifying offenses. On July 3, 2001, Leggs-Stewart executed a new Affidavit on which she circled the disqualifying offenses of aggravated battery and drug trafficking. In a letter of that same date, Leggs-Stewart wrote to DJJ: In regards to the Affidavit of Good Moral Character and providing a detailed explanation as to why the original affidavit was not truthful, to be honest I completed the affidavit in accordance to what my supervisor, at that time instructed me to do. I diligent [sic] explained the incidents to him and I personally did not identify which offense to circle for the Arrest #2 [aggravated assault] due to nothing never happen [sic] in court to my knowledge. In regards to Arrest #1 [drug trafficking], I believe that we, (both my supervisor and I) focused on the second part of the offense description that mentioned involving a minor which was his primary concern. I did not intentionally mean to mislead anyone regarding these offenses. The basic material facts concerning Leggs-Stewart’s arrest and conviction on drug-related criminal charges were not disputed. Leggs-Stewart was arrested in late 1990 by federal authorities for bringing cocaine into the United States from Panama. She was charged with two counts relating to this criminal activity. In February 1991, Leggs-Stewart pleaded guilty before the United States District Court for the Southern District of Florida to one count of possession with intent to distribute cocaine. (The second count relating to importation was dismissed.) The court sentenced Leggs-Stewart to four years in prison followed by five years of supervised release. Leggs- Stewart served her time and successfully completed probation. She has not been in trouble with the law since her arrest for the federal drug crime. Leggs-Stewart requested an exemption from disqualification from employment. As a result, an informal hearing on the matter was conducted on August 8, 2001, by a committee of three individuals whose responsibility was to make a recommendation to the ultimate decision maker, DJJ’s Inspector General. In a report dated August 9, 2000, the committee unanimously recommended that Leggs-Stewart be granted an exemption from disqualification, citing factors showing her rehabilitation. DJJ’s Inspector General disagreed with the committee, however, and decided that the exemption should be denied. Ultimate Factual Determinations The undisputed circumstances surrounding Leggs- Stewart’s conviction for drug possession demonstrate that the offense was more than a mere youthful indiscretion. Smuggling cocaine into the United States from a foreign country with intent to distribute is a serious crime. While there are no identifiable victims of Leggs-Stewart’s criminal misconduct, trafficking in cocaine is an offense that both the federal and state governments have deemed, as a matter of public policy, to be harmful to society as a whole. The gravity of Leggs- Stewart’s offense clearly “raises the bar” in terms of establishing rehabilitation. To her credit, Leggs-Stewart by all appearances has turned her life around. She is married and raising a family, owns a home, has attended community college, and has been gainfully employed since being released from prison. In short, she is now leading a stable and responsible life. These factors demonstrate that Leggs-Stewart has been largely, if not completely, restored to the capacity of law-abiding citizen. In addition, more than 11 years have passed since Leggs-Stewart’s arrest and conviction, and she has not been arrested during that time. This consideration also favors a finding of rehabilitation. Leggs-Stewart does not presently pose a danger to the safety or well being of children. However, the Affidavits that Leggs-Stewart signed—— wherein she attested, incorrectly, that her criminal record was clean——are a problem. Even if Leggs-Stewart’s explanations for nondisclosure are accepted3, the inescapable fact is that the Affidavits were not truthful, and she reasonably should have known that.4 Leggs-Stewart knew when she executed the Affidavits that she had served time in a federal prison on a serious drug charge. She knew (or reasonably should have known) that the list of disqualifying offenses in the Affidavit specifically included “possession of controlled substances” and “intent to sell controlled substances”——plainly apposite descriptions of the crime to which she had pleaded guilty. And she knew that any omissions or misstatement might be grounds for disqualification or termination. Yet, she attested under oath that her criminal record contained none of the listed disqualifying offenses. Thus, it is determined that while Leggs-Stewart did not intend to defraud her prospective employers, she nevertheless culpably misrepresented her past. In failing to disclose her criminal record, Leggs-Stewart committed acts tinged with dishonesty.5 Considered in light of all the relevant facts and circumstances, Leggs-Stewart’s willingness to be untruthful in applying for a position of trust and responsibility in a program for youth or children, regardless of her motivation, causes the trier of fact some hesitancy about the completeness of her rehabilitation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order denying Leggs-Stewart an exemption from disqualification from working with children. DONE AND ENTERED this 20th day of March, 2002, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 20th day of March, 2002.
The Issue Whether the Petitioner should be granted an exemption from disqualification for failure to meet minimum screening requirements for good moral character as specified by Section 409.175(2)(h), Florida Statutes (1995).
Findings Of Fact On May 11, 1986, an officer from the Office of Sheriff, Jacksonville, Duval County, Florida, arrested and charged Petitioner with battery on a spouse, a violation of Section 784.03, Florida Statutes, a first degree misdemeanor. The incident arose when Petitioner's wife, Keturah Latimer, took the family car to arrange a visit between Petitioner's stepson and the stepson's father. Angered by his wife's actions, Petitioner struck her with his fists causing considerable bruising to her forehead and head. He was twenty-eight years old at that time. Petitioner spent thirteen days in jail and was released on bond. The record does not indicate the exact disposition of the case. However, Petitioner admits that he struck his wife. He also expressed remorse for his behavior. Petitioner has a clean record subsequent to this incident in May of 1986. He is now thirty-eight years old. Petitioner is raising his stepson, Demetrius, as his own son. Petitioner and his wife are attempting to adopt Lashon, the daughter of a family friend. Respondent's protective services staff placed Lashon in the Latimer's home when Lashon was three weeks old. Lashon is now three years old. The Respondent's protective supervision staff conducted a home study which found the Petitioner's home to be an appropriate placement for Lashon. Petitioner has been employed for the past nine (9) years with Premier Plastering doing stucco work. Petitioner attends church occasionally at Macedonia Baptist Church and his wife and children attend We're for Jesus Church. The Latimer's have been married for seventeen (17) years and have three (3) sons of their own; they have had no involvement with Respondent's protective investigations staff. Petitioner and his family attended and completed Respondent's training for prospective foster parents.
Recommendation Based upon the findings of fact and the conclusions of law, it is, recommended that Respondent enter a Final Order granting Petitioner an exemption from disqualification from employment as a family foster home parent. DONE and ENTERED this 19th day of July, 1996, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 1996. APPENDIX The following constitutes the undersigned's rulings on the parties' proposed findings of fact. Petitioner's Proposed Findings of Fact Petitioner did not file proposed findings of fact. Respondent's Proposed Findings of Fact. 1-10. Accepted in substance and as restated in Findings of Fact 1-12 of this Recommended Order. The undersigned agrees with Respondent's findings of fact but not with the proposed conclusions of law. The testimony presented by the Latimers was very persuasive. COPIES FURNISHED: Roger L. D. Williams, Esquire Department of Health and Rehabilitative Services Post Office Box 2417 Jacksonville, Florida 32231-0083 Lawrence D. Latimer 1608 Golf Forest Drive Jacksonville, Florida 32205 Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services Building 7, Suite 728 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard Doran, Esquire Department of Health and Rehabilitative Services 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Petitioner certified Respondent as a law enforcement officer and issued him certificate number 02-31445 on March 26, 1982. At all times material to this proceeding, the Virginia Gardens Police Department, Virginia Gardens, Florida, employed Respondent as a reserve or part- time police officer. During the ten years that he had been employed in that capacity, Respondent's certification had never been disciplined. Respondent also was part owner of the "Gun Doc", a gunsmith business in Dade County. On January 14, 1992, Respondent was working in his private capacity collecting weapons for repair and restoration from his customers. About 2:00 p.m., Respondent was enroute to his part-time business, traveling south on the Palmetto Expressway. He was driving his personal vehicle, a black convertible Mustang. The weather was clear, sunny, and dry. The Palmetto Expressway is a divided asphalt and concrete road which runs north and south with four (4) lanes in each direction in most places. On January 14, 1995, at approximately 2:00 p.m., Metro-Dade Police Department (MDPD) Sergeant John Petri was driving an unmarked undercover vehicle, a grey and white Chevolet Blazer, south on the Palmetto Expressway. Around the 102nd Street and the Palmetto Expressway intersection, the Respondent's vehicle approached Sergeant Petri from the rear at a high rate of speed that was substantially over the posted speed limit of 55 miles per hour. The traffic in the area was heavy at the time. Sergeant Petri braced himself for impact because he felt he would be hit by Respondent's vehicle. At the last moment, in a sudden move, Respondent's vehicle swerved around Sergeant Petri to the left. Sergeant Petri maintained visual contact with the Respondent's vehicle as it continued south on the Palmetto Expressway and through the intersection of South River Road. Respondent's vehicle was weaving in and out of traffic, cutting off cars, pulling behind others at a high rate of speed and slamming on his brakes. Respondent used the right shoulder of the road as a passing lane even though the traffic was flowing smoothly and there were no obstacles blocking the roadway. MDPD rules and regulations prohibit officers in unmarked cars from making traffic stops. Consequently, Sergeant Petri dispatched Respondent's vehicle tag number to the MDPD communication center and requested that a uniform unit or a trooper stop Respondent. Meanwhile, Respondent's vehicle came up behind Drug Enforcement Administration (DEA) Special Agent Pierre Charette at a high rate of speed. Special Agent Charette saw that Respondent's vehicle was being trailed by a Bronco/Blazer type vehicle. Special Agent Charette, driving an undercover DEA vehicle, thought he was going to be struck by the Respondent's vehicle but Respondent's vehicle suddenly swerved avoiding a collision. Next, Respondent's vehicle came over into Special Agent Charette's lane almost causing a collision with other cars. Respondent's vehicle and Sergeant Petri passed Special Agent Charette and continued southward on Palmetto Expressway. Around 74th Street, the traffic on Palmetto Expressway became more congested. At that point, Respondent's vehicle was in the right lane. A guardrail was to his right. Due to the approaching overpass, Respondent was forced to slow down. Sergeant Petri, driving in the right center lane, pulled up along the left side of the Respondent's vehicle. Both vehicles came to a rolling stop. The driver's window of Respondent's vehicle was down. Sergeant Petri put the passenger's window down on his undercover car. After showing his gold badge, Sergeant Petri identified himself as a police officer and told Respondent to slow down. Respondent made eye contact with Sergeant Petri but did not give a verbal response. Instead, Respondent made a gesture with his middle finger. Sergeant Petri did not get out of his vehicle. As Special Agent Charette drove past Respondent and Sergeant Petri, he noticed that the individual in a grey and white Chevolet Blazer was holding up what appeared to be law enforcement credentials. Believing that everything was under control, Special Agent Charette continued south on the Palmetto Expressway. When traffic in front of him began to move, Respondent began passing cars by pulling onto the right shoulder of the road. At one point, the rear end of Respondent's vehicle began to fishtail when he was on the grassy dirt area of the road's shoulder. Special Agent Charette noticed Respondent's vehicle approaching from the rear again. Respondent almost caused a collision with other cars when he cut in front of Special Agent Charette's vehicle. Between the 74th Street and 58th Street intersection, Special Agent Charette turned on his lights and siren and began to pursue Respondent. Respondent zigzagged in and out of traffic with Special Agent Charette following about two (2) car lengths behind. In response to Special Agent Charette's lights and siren, other cars moved out of the way. Respondent exited the Palmetto Expressway at the 58th Street intersection. He was aware that Special Agent Charette was behind him. Sergeant Petri lost visual contact with Respondent as he made the exit. Respondent headed west on 58th Street which is an asphalt and concrete roadway with a total of five (5) lanes; the center lane is a middle turning lane. Special Agent Charette followed Respondent at speeds of 50 to 80 miles per hour. Special Agent Charette and Sergeant Petri routinely use the 58th Street exit when traveling to their respective offices. Respondent zigzagged around traffic and ran a red traffic light at the intersection of 58th Street and 79th Avenue almost causing another accident. Special Agent Charette hesitated at that intersection to avoid colliding with other automobiles then followed Respondent at speeds of 45 to 50 miles per hour. Respondent turned south on 82nd Avenue and went into a warehouse area. He parked in the first space in front of his business, The Gun Doc. Special Agent Charette followed and blocked the entrance to The Gun Doc with his light and siren still activated. Respondent got out of his vehicle, looked at Special Agent Charette and started to go inside The Gun Doc. Special Agent Charette displayed his credentials and badge and identified himself verbally as a federal narcotics law enforcement agent. Special Agent Charette advised Respondent that Metro police were on the way. Respondent responded derogatorily and went into The Gun Doc. Special Agent Charette notified DEA dispatch of his exact location and need for backup from Metro police. He also requested a tag check on Respondent's vehicle. Meanwhile, DEA Special Agents Lewis Perry and John Fernandez were monitoring their DEA radio in close proximity to The Gun Doc. They asked Special Agent Charette whether he needed assistance and went to the scene in an unmarked government vehicle. When they arrived at the scene, the blue light on Special Agent Charette's dashboard was still on. After their arrival, Respondent came out of The Gun Doc and asked who they were. Special Agents Perry and Fernandez identified themselves as federal agents with DEA and at least one of them showed his credentials. Respondent again responded derogatorily and went back into his business. At approximately 2:00 p.m. on January 14, 1992, United States Marshal Lorenzo Menendez was traveling in his unmarked vehicle on the 836 Expressway heading toward the Palmetto area. He was returning to the High Intensity Drug Trafficking Area (HIDTA) office in the Koger Executive Center. Marshal Menendez had two (2) radios in his vehicle and was scanning the DEA and MDPD radio frequencies. He heard Sergeant Petri requesting help. Later the Marshal heard that the subject vehicle had exited Palmetto Expressway at 58th Street. He also heard Special Agent Charette asking for help and learned the address of The Gun Doc as the address of the vehicle's owner. Marshal Menendez responded to the calls for help. When he arrived at The Gun Doc, Special Agents Charette, Perry and Fernandez were already there waiting outside next to their cars. When Respondent came out of his shop and approached his vehicle, Marshal Menendez walked up to Respondent's vehicle. With his silver star badge hanging around his neck and his photo identification in his hand, Marshal Menendez verbally identified himself as a U.S. Marshal. Respondent told Marshal Menendez that he too was a police officer but refused to show his credentials. About the time that Marshal Menendez and Respondent began to converse, Sergeant Petri arrived at the scene. The MDPD dispatcher had given him the address of The Gun Doc as the address of the owner of the black convertible Mustang. Respondent objected when Marshal Menendez looked in Respondent's car. Without any threat or provocation, Respondent shoved Marshal Menendez by placing both hands on the Marshal's chest causing him to fall backwards. Marshal Menendez then advised Respondent that he was under arrest and attempted to handcuff him. Respondent reacted by refusing to obey the Marshal's commands and trying to break free. Special Agents Charette, Perry, and Fernandez assisted Marshal Menendez in subduing and handcuffing Respondent who resisted by kicking, jerking, and thrashing about. When the struggle was over, Respondent was handcuffed face down on the ground. Respondent again informed the officers that he was a policeman. One of the officers took Respondent's badge and identification from his rear pocket. Respondent's Chief of Police arrived at the scene and asked that Respondent be allowed to get up. At that time, Respondent was not bleeding. However, his face and neck was bruised in the struggle to subdue him. The federal agents intended to charge Respondent with assault on federal officers. However, an assistant United States Attorney deferred to state charges of reckless driving and battery. upon a police officer. Respondent testified that when he first encountered Sergeant Petri and Special Agent Charette on the Palmetto Expressway, they were traveling in a convoy with a third vehicle and driving recklessly. He claims he did not know they were law enforcement officers. Respondent asserts that he had to drive defensively to escape them because he feared they were attempting to hijack the weapons in his possession. Respondent's testimony in this regard is less persuasive than evidence indicating that Respondent was driving recklessly before he encountered Sergeant Petri and Special Agent Charette. After Sergeant Petri identified himself as a policeman and Special Agent Charette turned on his siren and blue light, Respondent endangered the lives of others in an attempt to avoid being stopped. Upon arrival at his place of business, Respondent called 911 seeking assistance from a uniform unit. He also called his Chief of Police to ask for advice. Respondent's brother, David Pruitt, was in the shop when these calls were made. After making these calls, Respondent testified that he was attempting to keep Marshal Menendez from entering his vehicle when Marshal Menendez suddenly lunged and grabbed Respondent by the throat. The criminal trial testimony of Respondent's brother and of another criminal trial witness, Maribel Aguirre, tend to corroborate Respondent's version of the facts leading up to the altercation with Marshal Menendez. However, the undersigned finds the testimony of Respondent, his brother and Ms. Aguirre less persuasive in this regard than the testimony of Marshal Menendez, Sergeant Petri, and Special Agents Perry and Fernandez, supported by the criminal trial testimony of Special Agent Charette. Clear and convincing record evidence indicates that Respondent was guilty of reckless driving and battery.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, recommended that Petitioner enter a Final Order suspending Respondent's certification and the privilege of employment as a law enforcement officer for a period of two (2) years. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of April 1994. SUZANNE F. HOOD, Hearing Officer 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 26th day of April 1995. APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Petitioner's Proposed Findings of Fact 1.- 3 Accepted in paragraphs 1-2. 4 - 6 Accepted in paragraphs 3-4. 7 - 16 Accepted in substance in paragraphs 5-8. 17 - 22 Accepted in substance in paragraphs 9-12. 23 - 32 Accepted in substance in paragraphs 14-17. 33 - 39 Accepted in substance in paragraphs 19-22. 40 - 48 Accepted in paragraphs 23-27. 49 - 61 Accepted in substance in paragraphs 28-32. 62 - 75 Accepted in substance in paragraphs 33-37. 76 - 87 Accepted in substance in paragraphs 38-40. 88 - 93 Accepted in substance in paragraphs 41-46. Respondent's Proposed Findings of Fact 1 - 4 Accepted as if incorporated in paragraphs 1-2. Accepted in part in paragraph 3. Reject last sentence as not supported by persuasive evidence. - 9 Rejected. No competent substantial persuasive evidence. Accept in part in paragraphs 26-27 but siren engaged before arrival at gun shop. - 12 Accept that Respondent made telephone calls in paragraph 44 but reject his reasons for doing so as not supported by competent substantial persuasive evidence. 13 - 15 Accepted in substance as modified in paragraphs 31-36. First and last sentence rejected as not supported by competent substantial persuasive evidence. The rest is accepted in substance as modified in paragraph 36. Rejected as not supported by competent substantial persuasive evidence. Accepted as modified in paragraph 39; the other officers did not "join the attack." Rejected as not supported by competent substantial persuasive evidence. Accepted in paragraphs 39-40. Rejected as not supported by competent substantial persuasive evidence. See paragraph 42 re: criminal charges. Balance rejected as not supported by competent substantial persuasive evidence. Accept that Ms. Aguirre's criminal trial testimony tends to support Respondent but reject this testimony as less persuasive than the contrary testimony of the law enforcement officers. COPIES FURNISHED: Karen D. Simmons Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 A. P. Walter, Jr., Esquire 235 Catalonia Avenue Coral Gables, Florida 33134 A. Leon Lowry, II, Director Div of Crim. Just. Stds. & Trng. P. O. Box 1489 Tallahassee, Florida 32302 Michael Ramage General Counsel P. O. Box 1489 Tallahahssee, Florida 32302
The Issue Whether Petitioner's employment should be terminated on the grounds alleged in the Administrative Complaint dated June 3, 1998.
Findings Of Fact For the past seventeen years, Respondent has been employed by the Petitioner. At the time of the formal hearing, he held the position of a fire alarm foreman. He previously held the positions of a fire alarm technician and a trades helper. Respondent has been a good employee and has a good work record. Respondent is represented by the National Conference of Firemen and Oilers, AFL-CIO, Local 1227. Gary Mitten is the president of that union. Pursuant to its rule making authority and to implement Sections 231.02 and 230.23(5), Florida Statutes, the Petitioner revised its Rule 3.12, effective September 3,1997, to provide as follows: Definitions: For the purposes of this policy: "Prospective Employee" means an applicant who has received an offer of employment. "Conviction" means a determination of guilt that is the result of a plea or a trial regardless of adjudication of guilt. A prospective or current employee who is recommended to fill a non-instructional position shall, as a condition of employment, file a complete set of fingerprints taken by an authorized law enforcement officer or a designated employee of the District trained to take fingerprints. The prints will be processed pursuant to the requirements of Section 231.02(2)(a), Florida Statutes. * * * A prospective or current employee may be disqualified or may be terminated from continued employment if the prospective or current employee has been convicted of a crime classified as a felony or first degree misdemeanor directly related to the position of employment sought or convicted of a crime involving moral turpitude or any of the offenses enumerated in Chapter 435, Florida Statutes. * * * 6. Any provision of the law notwithstanding, all personnel currently required to be certified under Section 231.17, Florida Statutes, and by January 1, 1998, for all other personnel currently employed by the District who have not been fingerprinted and screened in the same manner outlined in Section (1) shall submit a complete set of fingerprints taken by an employee of the school or district who is trained to take fingerprints. The prints shall be processed according to Section 231.02(2)(a), Florida Statutes. Employees found through fingerprint processing to have been convicted of a crime involving moral turpitude shall not be employed in any position requiring direct contact with students. Such action shall be subject to appeal. . . . Section 231.02, Florida Statutes, pertains to the qualifications of school personnel and provides, in pertinent part, as follows: To be eligible for appointment in any position in any district school system, a person shall be of good moral character . . . (2)(a) Instructional and noninstructional personnel who are hired to fill positions requiring direct contact with students in any district school system or laboratory school shall, upon employment, file a complete set of fingerprints taken by an authorized law enforcement officer or an employee of the school or district who is trained to take fingerprints. These fingerprints shall be submitted to the Department of Law Enforcement for state processing and to the Federal Bureau of Investigation for federal processing. . . . Employees found through fingerprint processing to have been convicted of a crime involving moral turpitude shall not be employed in any position requiring direct contact with students. . . . Any provision of law notwithstanding, by January 1, 1997, . . . for all other personnel currently employed by any district school system or any other public school who have not been fingerprinted and screened in the same manner outlined in paragraph (a) shall submit a complete set of fingerprints taken by an authorized law enforcement officer or an employee of the school or district who is trained to take fingerprints. The fingerprints shall be submitted to the Department of Law Enforcement for state processing and the Federal Bureau of Investigation for federal processing. . . . Employees found through fingerprint processing to have been convicted of a crime involving moral turpitude shall not be employed in any position requiring direct contact with students. . . . Personnel who have been fingerprinted or screened pursuant to this subsection and who have not been unemployed for more than 90 days shall not be required to be refingerprinted or rescreened in order to comply with the requirements of this subsection.1 Section 435.03, Florida Statutes, provides, in pertinent part, as follows: All employees required by law to be screened shall be required to undergo background screening as a condition of employment and continued employment. For the purposes of this subsection, level 1 screenings shall include, but not be limited to, employment history checks and statewide criminal correspondence checks through the Florida Department of Law Enforcement, and may include local criminal records checks through local law enforcement agencies. Any person for whom employment screening is required by statute must not have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense prohibited under any of the following provisions of the Florida Statutes or under any similar statute of another jurisdiction: * * * (n) Chapter 796, relating to prostitution. Section 435.06, Florida Statutes, provides, in pertinent part, as follows: When an employer or licensing agency has reasonable cause to believe that grounds exist for the denial or termination of employment of any employee as a result of background screening, it shall notify the employee in writing, stating the specific record which indicates noncompliance with the standards in this section. It shall be the responsibility of the affected employee to contest his or her disqualification or to request exemption from disqualification. The only basis for contesting the disqualification shall be proof of mistaken identity. The employer must either terminate the employment of any of its personnel found to be in noncompliance with the minimum standards for good moral character contained in this section or place the employee in a position for which background screening is not required unless the employee is granted an exemption from disqualification pursuant to s. 435.07. Section 435.07, Florida Statutes, provides exemptions from disqualification, in pertinent part, as follows: Unless otherwise provided by law, the provisions of this section shall apply to exemptions from disqualification. The appropriate licensing agency may grant to any employee otherwise disqualified from employment an exemption from disqualification for: * * * (b) Misdemeanors prohibited under any of the Florida Statutes cited in this chapter or under similar statutes of other jurisdictions; * * * (3) In order for a licensing department to grant an exemption to any employee, the employee must demonstrate by clear and convincing evidence that the employee should not be disqualified from employment. Employees seeking an exemption have the burden of setting forth sufficient evidence of rehabilitation, including, but not limited to, the circumstances surrounding the criminal incident for which an exemption is sought, the time period that has elapsed since the incident, the nature of the harm caused to the victim, and the history of the employee since the incident, or any other evidence or circumstances indicating that the employee will not present a danger if continued employment is allowed. The decision of the licensing department regarding an exemption may be contested through the hearing procedures set forth in chapter 120. . . . In December 1997, Respondent was fingerprinted pursuant to School Board Rule 3.12. The subsequent screening reflected that Respondent was arrested by the Riveria Beach Police Department on March 13, 1997, and charged with solicitation of prostitution, which is a misdemeanor offense pursuant to Section 796.07, Florida Statutes. This is also a disqualifying offense pursuant to Section 435.03(2)(n), Florida Statutes. Respondent subsequently entered a plea of nolo contendere; he was assessed a monetary fine, and adjudication of guilt was withheld. James P. Kelly is responsible for conducting background screenings of employees as Chief of the Petitioner's police department. Melinda Wong is the director of Petitioner's employee records and information services departments. Mr. Kelly and Ms. Wong serve as members of Petitioner's Criminal Background Check Committee, which was formed to consider the results of background screenings and to consider appeals of employees found to have a disqualifying conviction. By memorandum dated January 5, 1998, Respondent was notified as to the results of the background screening and advised, in pertinent part, as follows: This past year you were fingerprinted pursuant to Florida Statutes, Section 231.02. Based on the criminal history indicated below, the Criminal Background Check (CBC) Committee will recommend your termination from employment with the District. You have a right to appear before the CBC Committee to appeal that determination and request exemption from the requirement that you be disqualified from further employment. In order for an exemption to be granted, you must demonstrate sufficient evidence of rehabilitation, including, but not limited to, the circumstances surrounding the criminal incident for which exemption is sought; the time period that has elapsed since the incident; the nature of the harm caused to the victim; and any other evidence or circumstances indicating that you will not present a danger if continued employment is allowed. On March 13, 1997, in Riveria Beach, Florida, you were arrested for solicitation of prostitution for which you subsequently pled guilty. . . . Respondent appeared before the Committee accompanied by Mr. Mitten, his union representative. Respondent told the Committee that he had been drinking on the night in question and had let a friend, who he later identified as Billy Scott, drive his vehicle. Respondent further related that he had fallen asleep and that when he awakened, he and Mr. Scott were being arrested for solicitation of prostitution. Respondent asserted that his plea was one of convenience and entered only after the Public Defender told him the plea would not affect his employment.2 The Committee thereafter caused the School Police to investigate the circumstances surrounding Respondent's arrest. From that investigation, it was revealed that the supporting arrest documents do not reflect the presence of another person in Respondent's vehicle. Casting further doubt on Respondent's versions of the events was the fact that Respondent was cited as driving with an open container of alcohol. The citation indicates that Respondent was the driver of the vehicle, and not merely a passenger. Further, an interview of the arresting officer led the investigator to conclude that Respondent was in the car alone at the time of the incident. Based on the information that had been made available to it, the Committee concluded that Respondent's version of the events had not been confirmed. Respondent was invited to appear before the Committee to explain the discrepancies between his version of the events and the results of the investigation. Respondent, accompanied by Mr. Mitten, told the Committee that the person driving the car was Billy Scott, who was visiting from California. Respondent also said that Mr. Scott had told him that he (Scott) was not formally booked because he had a brother-in-law (Respondent was not certain as to the relationship) on the Riveria Beach Police Department who had interceded on his behalf. Respondent thereafter gave the investigator the telephone number and address of Mr. Scott's temporary residence. The investigator verified that the address was a valid address and called the telephone number, leaving a message on an answering machine. Later, a person claiming to be Mr. Scott telephoned the investigator and verified Respondent's version of the events. Subsequent to that call, the investigator received a call from a woman who stated that the investigator had left a message on her answering machine, that she had a son named Billy Scott, that Billy Scott had not been to California since he was an infant, and that Billy Scott did not have a relative who worked for the Riveria Beach Police Department. Based on the information before it, the Committee concluded that Respondent had committed a disqualifying offense and that the evidence offered by Respondent in mitigation of that offense was not credible. Because there was no mitigating evidence within the meaning of Section 435.07(3), Florida Statutes, the Respondent's work record was not considered.3 The Committee recommended to the Superintendent that Respondent's employment be terminated. The Superintendent accepted that recommendation and, in turn, recommended to the School Board that Respondent's employment be terminated. The School Board thereafter accepted the recommendation of termination from the Superintendent and voted to terminate Respondent's employment, subject to his right to contest the proposed action pursuant to Chapter 120, Florida Statutes. Respondent's testimony at the formal hearing was similar to the explanation of the events he gave the Committee. That self-serving, uncorroborated testimony is insufficient to establish by clear and convincing evidence that he is entitled to an exemption, as required by Section 435.07(3), Florida Statutes. Respondent asserts that the disqualification does not apply to his position because his position does not require direct contact with students. That assertion is rejected. The evidence is clear that Respondent's job duties require his presence at the various schools of the district at times the children are present. Although Respondent typically checks in at a school's office when he first comes on campus, he thereafter is not monitored or otherwise supervised while on the school campus. This opportunity to have contact with students provides the Petitioner with a sufficient basis to consider him to be an employee who has direct contact with students.4
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order that terminates Respondent's employment. DONE AND ENTERED this 2nd day of October, 1998, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 2nd day of October, 1998
The Issue The issue in this proceeding is whether Petitioner, Daniel James Bradley's, application for licensure as a resident life including variable annuity and health insurance agent should be denied for the reasons stated in Respondent, Department of Financial Services', Notice of Denial dated April 26, 2004.
Findings Of Fact Respondent is the state agency responsible for the licensure of insurance agents in the State of Florida pursuant to the authority granted in Chapter 626, Florida Statutes (2004). On January 3, 2004, Mr. Bradley filed an on-line application with the Department seeking licensure as a resident life including variable annuity and health insurance agent. The on-line application form included the following question: 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?. Mr. Bradley answered "No," which was a false answer. The Department conducted an internal investigation during the application process, and the criminal history check obtained by the Department revealed that in 1995 Mr. Bradley was charged with two counts of Obtaining Property for Worthless Check(s) (one check in an amount over $150 and one check in an amount less than $150). On May 31, 1995, in State of Florida v. Daniel J. Bradley, Case No. 94-2473F, in the Circuit Court in and for Sarasota County, Florida, Mr. Bradley appeared before Judge Robert B. Bennett and entered a plea of nolo contendere to the charge of Obtaining Property For a Worthless Check (over $150), which is a third degree felony in violation of Subsection 832.05(4)(a), Florida Statutes (1995). Judge Bennett withheld adjudication of guilt and imposed a fine and court cost in the amount of $250 that was paid by Mr. Bradley. Mr. Bradley testified that during the 1995 period, he was in the midst of a domestic dispute that was finalized in a dissolution of marriage, when he wrote two checks to Sears. He explained further that at the time the checks were written, sufficient funds were in the joint checking account at the bank, but his then-estranged wife withdrew all bank funds without his knowledge or consent resulting in the overdrafts. Explaining his "no" response to the criminal history question on his on-line licensure application form, Mr. Bradley asserted a lack of fully understanding the (intended) meaning of the term "punishable by imprisonment of one (1) year or more." Mr. Bradley testified that he "did not know, and had no reason to know, [or be concerned] that the worthless check charge to which he pled nolo contendere was punishable by imprisonment of one year or more," even though he knew the crime was a third- degree felony. Continuing, Mr. Bradley explained in detail his ongoing domestic entanglement then, as well as his financial obligations now. Mr. Bradley explained that he has undertaken the obligation to care for his parent(s) and his need for income to pay for his children's education. In effect, Mr. Bradley offered an "excusable neglect and a lack of knowledge" explanation for the "no" answer on his on-line licensure application form. Mr. Bradley earnestly insisted that it was not his "intent" to mislead, conceal, or lie about the criminal background question. He explained in detail that he "did not understand nor was he advised by his attorney, Susan Maulucci, or the Sarasota County Circuit Court that any offense that he had been accused or pled guilty to was punishable by a term of incarceration of one or more years." In conclusion, Mr. Bradley stated, "[I]f I had previous knowledge of such information I would never have answered incorrectly. If the question had addressed a felony charge punishable by one or more years, I would have certainly answered yes based on the assumption of a felony being the subject of the question not the period of punishment." It appears from his post-hearing submittal that he was under the impression that the term "felony" is missing from the question and that by the omission, he was somehow misled. The blame-shifting inference Mr. Bradley sought is that it was the omission by the Department to include the word "felony" in its application form that misled him. This suggestion is rejected. Mr. Bradley's explanation becomes even more suspect when one considers: his knowledge and experience as a military police officer; at the time he signed the plea document, it was clear that he was facing up to five years in prison for the crime(s) with which he was charged; when arrested on both misdemeanor and felony check charges, he spent the night in jail; and finally, he signed two bonds, one for the misdemeanor charge and a separate bond for the felony charge before he was released from jail. Mr. Bradley was individually and personally responsible for the accuracy of his answer. His misrepresentation of the truth by answering "no," if not intentional, supports the inference of a reckless or careless disregard as to the truth of the matter asserted. At the time he answered "no" on his application form, Mr. Bradley knew, without a doubt, that he had pled "no contest" to a felony worthless check charge in the Sarasota County Circuit Court in Florida. During his court appearance, he was identified and was personally informed by the presiding judge that he faced a felony charge, and he agreed to enter his plea of nolo contendere to that felony charge. On May 31, 1995, in open court, Mr. Bradley signed an "Acknowledgement and Waiver of Rights" form that contained in paragraph 1, the following statement: "I am pleading to the charge of worthless check (2 counts), and I understand the maximum penalty provided by law is five (5) years prison." (Emphasis added.) After the court accepted his plea, sentenced him, and imposed court costs, Mr. Bradley signed the court's acknowledgement reflecting the disposition of the proceeding. Only after completion of the foregone process was Mr. Bradley free to leave the courtroom.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order dismissing the Petition herein filed by Petitioner, without prejudice, for Petitioner to reapply as provided in the Florida Administrative Code Rule 69B-211.042(4). DONE AND ENTERED this 31st day of August, 2004, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE 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 August, 2004.
The Issue The issue in the case is whether Petitioner's application for licensure should be approved.
Findings Of Fact On July 12, 2004, Petitioner filed an application for licensure as a Resident Life including Variable Annuity and Health Insurance Agent with Respondent. Included among the questions on the application was the following: Have you ever been convicted, found guilty, or pled guilty or nolo contendere (no contest) to a felony or crime punishable by imprisonment of one (1) year or more under the laws of any municipality, county, state, territory or country, whether or not adjudication was withheld or a judgment of conviction was entered? Petitioner answered "no" in response to the question. The application requires the applicant to consent to the following statement: Under penalties of perjury, I declare that I have read the foregoing application for license and that the facts stated in it are true. I understand that misrepresentation of any fact required to be disclosed through this application is a violation of the Florida Insurance and Administrative Codes and may result in denial of my application and/or the revocation of my insurance license(s). By affixing his electronic signature to the application, Petitioner affirmed that the information set forth therein was true. The evidence establishes that on April 7, 1978, Petitioner was sentenced to the Nassau County Correctional Center for a term of one year after entering a guilty plea to a felony count of Attempted Grand Larceny (Grand Jury Indictment No. 46323, June 24, 1977, Nassau County, New York.) Petitioner entered the Correctional Center to begin serving his sentence on December 15, 1978, and was released on February 28, 1979. Petitioner did not disclose the 1978 conviction on the application for licensure as an insurance agent. After completing a criminal history check, Respondent issued two deficiency letters, dated July 26, 2004, and August 5, 2004, seeking additional information related to Petitioner's background. In response to the deficiency letters, Petitioner submitted additional information and a letter. In the letter and in his testimony at the hearing, Petitioner stated that he misinterpreted the question, and believed that because he was incarcerated for less than one year, the 1978 conviction was responsive to the question. He stated that he did not intend to mislead or deceive Respondent. Respondent issued a Notice of Denial on August 25, 2004. The grounds for the denial was Petitioner's failure to disclose the 1978 conviction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order denying the application for licensure filed by Anthony A. Sagnelli and imposing a waiting period to expire on August 26, 2005. DONE AND ENTERED this 28th day of February, 2005, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 2005.
Findings Of Fact On October 13, 1993, Respondent filed an application to change the ownership of an ACLF known as Kadima Manor. Respondent also applied to operate the facility as its administrator. The facility is situated at 6750 West Flamingo Way South in St. Petersburg, Florida. Petitioner denied Respondent's ACLF application by letter dated March 23, 1994, substantially on the basis that: Respondent entered a plea of no contest to an offense of abuse or neglect of a disabled or aged person and; Respondent failed to provide complete and accurate background information in the application for licensure. Section VIII of the application seeks information about an applicant's "Criminal Abuse History". Section VIII(a) of the application asks the following question: "Has any owner, administrator, partner, or director ever been arrested, adjudicated, or convicted of a crime involving injury to persons, or financial or business management (e.g. assault, battery, embezzlement or fraud)?" In response to the question in Section VIII(a) of the application, Respondent answered "no". Although Respondent answered "no" to the question in Section VIII(a) of her ACLF application, Respondent thought that she answered the question truthfully. Respondent was arrested by the St. Petersburg Police Department on February 8, 1977, on the charge of petty larceny. The disposition of that arrest is unknown and Petitioner did not rely on the 1977 arrest as a basis for the denial letter relating to Respondent's application. On May 8, 1991, Respondent was arrested by the Pinellas County Sheriff's Office. Pursuant to that arrest, a two-count Information was filed alleging that Respondent operated an ACLF without first being licensed and that she abused or neglected aged or disabled persons. In the criminal cases in 1991, Respondent challenged the charges. As to the first count relating to operating an ACLF without first being licensed, the charge was dismissed. On September 16, 1991, Respondent entered a plea of nolo contendere to the offense of abuse or neglect of aged or disabled persons, Winona Sill and/or Carolyn Poole, a misdemeanor. Respondent entered a plea of nolo contendere to the charge of abuse or neglect of an aged person based upon the advice of legal counsel that she would not have a criminal record and that the "no contest" plea would not adversely affect her or her business. Following Respondent's entry of the "no contest" plea, Respondent was ordered to pay court costs of $250.00 only; the court withheld adjudication of guilt and no fine or probation was imposed. Respondent has never been convicted of a crime involving injury to persons, or financial or business management. Concurrently with law enforcement, HRS adult Protective Services conducted its own investigation relating to the incidents in 1991. Upon completion of FPSS Reports 91 Respondent as the perpetrator of abuse or neglect of two aged or disabled adults. Respondent challenged the classification and sought to have her name expunged from the reports. Following a formal hearing before the Division of Administrative Hearings, HRS issued a Final Order on February 17, 1993, which expunged Respondent's name from the Abuse Registry and changed the classification of the reports to "unfounded". In reviewing ACLF applications, Petitioner obtains and relies on criminal arrest records obtained from the Florida Department of Law Enforcement (FDLE). Petitioner requested that Respondent provide certified copies of the criminal charges involving the 1991 incidents. Respondent timely submitted the requested information. In addition Petitioner is required to be screened for prior confirmed abuse, neglect or exploitation reports from the Florida Protective Services System Abuse Registry. Technically, Respondent did not disclose the fact that she was arrested in 1991 for a crime involving injury to persons as she was asked in question VIII(a) on the ACLF application. However, the question on the form was not clear and did not track the statutes or the rule. There was no evidence that the failure to disclose was a conscious effort on Respondent's part to withhold information relating to her arrest in 1991. Respondent provided all of the related information regarding the abuse allegations, including the fact that those records were expunged in the HRS files. She acted upon the advice of legal counsel when she did not disclose the "no contest" plea. On each occasion that Petitioner asked for additional information regarding her criminal history, Respondent timely responded and provided the information requested. Respondent completed the required courses and other requirements to be an ACLF administrator, including the ACLF Core Education Program on or about October 5, 1993. Respondent did not intend to fail to fully disclose her criminal history. In the one instance where she answered "no" to the criminal arrest history, Respondent considered that she completely and truthfully answered question VIII(a). Respondent attached to the original application a copy of the Division of Administrative Hearings Recommended Order which called for the expungement of her name for the abuse registry and changing the classification of the report to unfounded. She also attached other information which disclosed the 1991 criminal charges. Respondent intended to show that she had been arrested but, by administrative action, her name had been cleared and her name expunged. Respondent has demonstrated that she is of suitable character and competency to be an owner and administrator of an ACLF.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a final order granting Respondent's application for licensure to change the ownership and operate an adult congregate living facility, subject to the payment of the requisite fees and other licensing requirements. DONE AND ENTERED this 12th day of September, 1995, in Tallahassee, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 1995. APPENDIX Petitioner's proposed findings of fact Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 8 (in part. Rejected as contrary to the greater weight of evidence; paragraphs 7, 8 (in part. Respondent's proposed findings of fact Accepted in substance: paragraphs 1 (in part), 2 (in part), 3 (as modified), 4 (as modified), 5 (as modified), 6 (as modified), 10 (as modified), 11 (as modified), 15 (as modified), 17 (in part), 18 (as modified), 19 (as modified), 23 (as modified). Rejected as subsumed or irrelevant and immaterial paragraphs 1 (in part), 2 (in part), 7, 8 (argument), 9, 12, 13, 14, 16 (argument), 17 (in part), 20, 21, 22, 23. COPIES FURNISHED: Thomas W. Caufman, Esquire Agency for Health Care Administration 6827 North Dale Mabry Highway, Unit 100 Tampa, Florida 33614 Dale L. Gross, Esquire P.O. Box 40041 St. Petersburg, Florida 33741 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Bldg. 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309
The Issue Whether the Petitioner's application for licensure as a real estate salesperson should be granted or denied.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Commission operates within the Department of Business and Professional Regulation and is the entity responsible for certifying to the Department that an applicant for licensure under Chapter 475 is qualified to practice as a real estate broker or salesperson. Sections 475.02 and .181, Florida Statutes (2001). On or about June 12, 2001, Mr. Parker submitted his application for licensure as a real estate salesperson to the Commission. In the application, Mr. Parker answered "yes" to Question 9, which asks in pertinent part: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? . . . If you answered "Yes," attach the full details including dates and outcome, including any sentence and conditions imposed, on a separate sheet of paper. Mr. Parker attached to his application the results of a North Carolina criminal records check, which consisted of a cover sheet and three pages. Relevant to this proceeding, the information attached to Mr. Parker's application establishes the following: On May 26, 1994, Mr. Parker was found guilty of misdemeanor larceny; there is no indication that he received a sentence or paid a fine, court costs, or restitution. On June 29, 1995, Mr. Parker was found guilty of driving while impaired; he was sentenced to one year's unsupervised probation and paid either a fine or court costs in the amount of $160.00. On July 8, 1996, Mr. Parker waived trial on a charge of passing a worthless check; he paid either a fine or court costs in the amount of $60.00 and restitution in the amount of $76.30. On July 31, 1998, Mr. Parker was convicted of misdemeanor larceny; he was sentenced to six month's unsupervised probation and paid either a fine or court costs in the amount of $130.00. On June 12, 2000, Mr. Parker was found guilty of violating a domestic violence protective order; he was sentenced to six month's unsupervised probation and paid either a fine or court costs in the amount of $186.00. On August 6, 2000, Mr. Parker was charged with driving while impaired and driving without a license in his possession; trial was scheduled for February 21, 2001, but no disposition is indicated in the materials Mr. Parker provided. Mr. Parker admits to having driven while impaired in August 2000, but he has not been in trouble since his arrest on this charge. He completed an alcohol treatment program and has not consumed alcohol for one and one-half years. Mr. Parker understands that he has had problems in the past and believes that he has done better in the past two years. He moved to Florida in January 2001 in order to make a new life. At the time of the hearing, he was employed as a server at a restaurant. In that job, he routinely handles up to $1,000.00 in cash each day and always turns the money over to management.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order denying the application of Robert L. Parker for licensure as a real estate salesperson. DONE AND ENTERED this 26th day of June, 2002, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 26th day of June, 2002. COPIES FURNISHED: Robert L. Parker 44 Douglas Drive Boynton Beach, Florida 33435 Donna K. Ryan, Esquire Department of Business and Professional Regulation Hurston North Tower 400 West Robinson Street, Suite N308 Orlando, Florida 32801-1772 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Dean Saunders, Chairperson Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
The Issue The issues in the case are whether the allegations of the Administrative Complaint are true, and, if so, what disciplinary penalty, if any, should be imposed.
Findings Of Fact At all times material to this case, the Respondent was certified by the Petitioner as a law enforcement officer, holding certificate 267907. At all times material to this case, the City of Sarasota, Florida, employed the Respondent as a law enforcement officer. On the night of January 4, 2010, the Respondent was on duty, riding in a patrol car driven by her work partner, Officer Coppinger. The patrol car contained a laptop computer that was connected to the Florida Driver and Vehicle identification Database (DAVID), a law enforcement database. The DAVID system is not accessible to the public. At the time of logging into the DAVID system, users are advised by a warning screen that the system is restricted to authorized personnel for appropriate law enforcement purposes. Usage of the system for personal purposes is specifically prohibited. An officer accessing the DAVID system must affirmatively acknowledge an understanding of the usage policy prior to initiating research. On the night of January 4, 2010, Officer Coppinger was logged into the DAVID system. The laptop computer is available to both officers in the patrol car. While on duty, the Respondent received a telephone call from her cousin, "Whizz," who told the Respondent of an alleged threat of arson against the Respondent's family by a man identified as "Terrance Bryant." The Respondent did not report the threat to Officer Coppinger or to any other law enforcement officer or agency. Instead, the Respondent immediately accessed the DAVID system in an effort to identify Terrance Bryant's residential address. The Respondent was sufficiently familiar with Terrance Bryant to use a variety of family names and spellings in the search. The Respondent also used information about Terrance Bryant's girlfriend, with whom the Respondent was also familiar, to the extent that the girlfriend had listed the Respondent as a reference on her own application for employment with the Sarasota Police Department. After extensive research in the DAVID system on January 4, 2010, the Respondent obtained the residential address for Terrance Bryant. The Respondent and Whizz met on January 5, 2010, at the Respondent's home to handle some household errands. The Petitioner asserts that the Respondent provided Terrance Bryant's residential address to Whizz at that time. The evidence is insufficient to clearly establish how Whizz obtained the address, but, by the time Whizz left the Respondent's home on that date, he possessed Terrance Bryant's residential address.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order suspending the Respondent's correctional certificate for two years. DONE AND ENTERED this 19th day of April, 2012, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 2012.
