The Issue The central issue in this case is whether Respondent is guilty of the violations alleged in the administrative complaint dated June 21, 1990; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the stipulation of the parties, the testimony of the witness, and the documentary evidence received at the hearing, the following findings of fact are made: The Department is the state agency charged with the responsibility of pursuing disciplinary actions against real estate licensees. At all times material to the allegations of the administrative complaint, Respondent is and has been a licensed real estate salesman in the State of Florida having been issued license number 0347386. On May 7, 1987, the Respondent was charged with seven counts of criminal misconduct. The charging document, an information filed by the State Attorney of the Third Judicial Circuit of Florida, alleged that Respondent had: solicited to commit extortion while armed; solicited to commit murder I while armed; delivered a controlled substance; possessed a controlled substance with intent to sell or deliver; committed grand theft II; and carried a concealed firearm during a felony. Subsequently, Respondent was tried and found guilty of: solicitation to commit extortion (a 3rd degree felony); solicitation to commit murder I (a 1st degree felony); delivery of a controlled substance (a 3rd degree felony); grand theft II (a 3rd degree felony) ; and carrying a concealed firearm (a 3rd degree felony). The judgment of guilt was entered on September 9, 1987. Respondent received a sentence for each of the convictions noted above and was committed to the Department of Corrections with credit for the 150 days of incarceration in the county system he had spent prior to the imposition of the sentences. All sentences ran concurrent with one another. During the time of his incarceration (on or about September 30, 1987), Respondent's real estate license expired. At that time, Respondent mistakenly presumed he was not required to send a notice of the convictions to the Real Estate Commission and, therefore, did not do so. In July, 1989, Respondent was released from prison. Upon his release, Respondent considered what action would be needed to renew his real estate license. To that end, he took a continuing education course and discovered he should have notified the Real Estate Commission of his felony convictions. On March 10, 1990, Respondent wrote a letter to the Real Estate Commission which stated, in part: My name is Gene Stephen Wilson, expired license #0347386. My license expired September 30, 1987. In September 1987, while working in another profession, I was convicted, sentenced and served two and one- half years in a Correctional Institution for a felony charge. Since my license was expired, I did not realize that I was required to report to FREC at that time. Now, after completing my sentence, I have been granted an Order of Executive Clemency by the Governor of the State of Florida. On October 5, 1989, the Governor, with the concurrence of the requisite members of the Cabinet of the State of Florida, filed an Executive Order which granted to Respondent the restoration of his civil rights. Anne Frost, a real estate broker, and Deborah J. Mickle, a real estate agent with Anne Frost, Inc., submitted written statements which attest that, based upon their experiences with the Respondent, he is ethical and professional in connection with the real estate business.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Florida Real Estate Commission enter a final order finding the Respondent guilty of having violated Section 475.25(1)(p), Florida Statutes, suspending his license for a period of two years, imposing an administrative fine in the amount of $500, and requiring a period of probation under such terms and conditions as the Commission may deem appropriate. DONE and ENTERED this 30th day of November, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1990. APPENDIX TO CASE NO. 90-4403 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: 1. Paragraphs 1 through 5 are accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: None timely submitted. COPIES FURNISHED: Steven W. Johnson Senior Attorney Department of Professional Regulation, Division of Real Estate 400 West Robinson Street Post Office Box 1900Orlando, Florida 32802 Stanley M. Silver, Jr. 217 East Ivanhoe Boulevard, North Orlando, Florida 32804 Darlene F. Keller Division Director 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0750
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: On March 3, 1994 Petitioner submitted to the Department an application for licensure as a Limited Surety Agent (Bail Bondsman). In a Denial Letter dated July 20, 1994, the Department notified Petitioner that his application for licensure was denied. The basis for the Department's denial of Petitioner's application was Petitioner's past felony convictions. The evidence established that on or about December 4, 1980, Petitioner was charged in the Circuit Court for the Twelfth Judicial Circuit of Florida, Case Number 80-105 (the "First State Case"), with trafficking in illegal drugs and the use of a firearm during the commission of a felony in violation of Sections 893.135 and 790.07, Florida Statutes. On June 5, 1981, Petitioner pled no contest in the First State Case to trafficking in excess of two thousand (2,000) pounds, but less than ten thousand (10,000) pounds of cannabis. Petitioner was fined and placed on probation for ten (10) years. On or about June 14, 1981, Petitioner was charged in the United States District Court, Southern District of Florida, Case Numbers 83-6033-CR-EPS and 83-6038-CR-NCR (the "Federal Cases"), with five felony counts of possession with intent to distribute illegal drugs and conspiracy to import illegal drugs into the United States of America, in violation of Title 21, Sections 841(a)(1), 846, 952(a), 960(a), 963, and 843(b), United States Code. On or about November 5, 1981, Petitioner was charged in the Circuit Court for the Twentieth Judicial Circuit of Florida, Case Number 81-1191 CFG (the "Second State Case") with violation of the Florida Racketeer Influence and Corrupt Organization Act ("RICO"), Section 943.462, Florida Statutes. Although the exact timing is not clear, at some point after his arrest, Petitioner began cooperating with authorities which led to plea bargains and a sentence which did not include any jail time. On April 4, 1984, Petitioner pled guilty to one count in each of the Federal Cases to attempt and conspiracy to import marijuana and methaqualaudes into the United States of America. As a result of his plea in the Federal Cases, Petitioner was fined and placed on 5 years probation. On April 6, 1984, Petitioner pled guilty in the Second State Case, was fined $7,500.00 and placed on probation for fifteen (15) years. This plea was negotiated as part of the plea in the Federal Cases. Petitioner's probation from the First State Case was terminated May 20, 1988. Petitioner's probation from the Federal Cases was terminated on April 21, 1989 and September 11, 1989. Petitioner's civil rights were restored pursuant to Executive Orders of the Office of Executive Clemency dated May 19, 1989 and May 23, 1990. It is not clear from the record if the Executive Orders constitute a "full pardon" as suggested by counsel for Petitioner at the hearing in this matter. Petitioner down plays his role in the elaborate criminal scheme that led to his arrests and convictions. He suggests that all of the charges were related to the same scheme. Insufficient evidence was presented to reach any conclusions regarding the underlying criminal activity and/or Petitioner's exact involvement. Petitioner has been very active in community affairs since his convictions. He has apparently been a good family man and claims to have rehabilitated himself. Subsequent to his conviction, Petitioner and three other investors started a bail bond business. Petitioner claims he did not play an active role in the business. However, when the Department learned of his involvement, it required Petitioner to terminate any affiliation with the company. Petitioner's wife currently owns a bail bond company. Petitioner operates a "court services" business out of the same building where his wife's bail bond business operates. No evidence was presented of any improper involvement by Petitioner in his wife's business.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Insurance and Treasurer enter a Final Order denying Petitioner's application for licensure as a Limited Surety Agent. DONE AND RECOMMENDED this 2nd day of August, 1995, in Tallahassee, Leon County, Florida. 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 2nd day of August, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4893 Rulings on the proposed findings of fact submitted by the Petitioner: Subordinate to findings of fact 4 through 10. Subordinate to findings of fact 13. Rejected as unnecessary. Adopted in substance in findings of fact 1. Adopted in substance in findings of fact 2. Adopted in the Preliminary Statement. Rejected as vague and unnecessary. Subordinate to findings of fact 14 and 15. Subordinate to findings of fact 14 and 15. Rulings on the proposed findings of fact submitted by the Respondent: Adopted in substance in findings of fact 1. Adopted in substance in findings of fact 2. Adopted in substance in findings of fact 2 through 10. Subordinate to findings of fact 14. Rejected as argumentative and unnecessary. COPIES FURNISHED: Bill Nelson State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-0300 Dan Sumner Acting General Counsel Department of Insurance The Capitol, PL-11 Tallahassee, FL 32399 Julio Gutierrez, Esq. 2225 Coral Way Miami, FL 33145 Allen R. Moayad, Esq. Florida Department of Insurance and Treasurer 612 Larson Building 200 E. Gaines Street Tallahassee, FL 32399-0300
The Issue The issue is whether Florida Administrative Code Rule 69B-211.042(6), (8), and (14) is an invalid exercise of delegated legislative authority within the meaning of Subsections 120.52(8)(b), (c), and (e), Florida Statutes (2002).
Findings Of Fact Respondent is the state agency responsible for licensing insurance agents in the State of Florida, pursuant to Chapter 626, Florida Statutes (2002). On April 3, 2003, Petitioner applied for a license as a resident company employee property and casualty adjuster (resident adjuster license). Petitioner truthfully answered all questions on the application, including those questions pertaining to Petitioner's criminal history and guilty plea to a felony charge in Georgia. On September 25, 2003, Respondent issued a Notice of Denial of Petitioner's license application. Respondent based the denial, in relevant part, on the grounds that Florida Administrative Code Rule 69B-211.042(6) and (14) prohibit Respondent from granting the application while Petitioner is on probation or in a pre-trial intervention program; and that Florida Administrative Code Rule 69B-211.042(8) requires Petitioner to wait five years after the plea dated May 14, 2002, before applying for a license. On a date not disclosed in the record, Respondent issued a Second Amended Notice of Denial (the Amended Notice of Denial). The record does not disclose a first amended notice of denial. The Amended Notice of Denial, in relevant part, deletes grounds for the proposed denial that are not relevant to this Final Order. On May 14, 2002, Petitioner pled guilty to a single felony charge of possession of cocaine. A Georgia court sentenced Petitioner under Georgia's First Offender Act. If Petitioner successfully completes probation, Georgia will dismiss the felony charge. If Petitioner does not successfully complete probation, the Georgia court may revoke Petitioner's probation, adjudicate Petitioner guilty as charged, and sentence Petitioner to the maximum sentence authorized under Georgia law. Petitioner challenges the following provisions in Florida Administrative Code Rule 69B-211.042: (6) Probation. The Department shall not grant licensure to any person who at the time of application or at any time during the pendency of the application is serving a probationary term on any felony crime, or any misdemeanor crime, except for those crimes specified in Chapter 316, F.S., which are not punishable by imprisonment. The Department shall not substantively consider an application until the applicant has successfully completed his or her probationary term. * * * (8) Required Waiting Periods for a Single Felony Crime. The Department finds it necessary for an applicant whose law enforcement record includes a single felony crime to wait the time period specified below (subject to the mitigating factors set forth elsewhere in this rule) before licensure. All waiting periods run from the trigger date. (c) Class C Crime. The applicant will not be granted licensure until 5 years have passed since the trigger date. * * * (14) Pre-Trial Intervention: Specific Policy. (b) The Department will not grant licensure to any person who at time of application is participating in a pre-trial intervention program. The Department finds it necessary to the public welfare to wait until the pre- trial intervention is successfully completed before licensure will be considered. Petitioner challenges the foregoing provisions in Florida Administrative Code Rule 69B-211.042 on the grounds that each provision violates Subsections 120.52(8)(b), (c), and (e), Florida Statutes (2002). Petitioner alleges that each challenged provision of the rule, respectively, exceeds the grant of rulemaking authority; enlarges, modifies, or contravenes the specific provisions of law implemented; or is arbitrary or capricious within the meaning of Subsections 120.52(8)(b), (c), and (e), Florida Statutes (2002). The challenged provisions of the rule may reasonably be construed in a manner that preserves the validity of the rule. The express terms of the rule do not mandate an interpretation that violates Subsections 120.52(8)(b), (c), and (e), Florida Statutes (2002). However, Respondent interprets the challenged provisions of the rule in a manner that, if accepted, would violate Subsections 120.52(8)(b) and (c), Florida Statutes (2002). The enabling legislation for Florida Administrative Code Rule 69B-211.042 is Subsection 626.207(1), Florida Statutes (2002). Subsection 626.207(1), Florida Statutes (2002), authorizes Respondent to adopt rules establishing specific waiting periods that Respondent must apply after Respondent denies, suspends, or revokes Petitioner's license pursuant to specifically enumerated Florida statutes. In relevant part, Subsection 626.207(1), Florida Statutes (2002), provides that Respondent: . . . shall adopt rules establishing specific waiting periods for applicants to become eligible for licensure following denial, suspension, or revocation. . . . (emphasis supplied) Subsection 626.207(1), Florida Statutes (2002), prescribes a statutory prerequisite to the imposition of any waiting period pursuant to Florida Administrative Code Rule 69B-211.042. The statutory prerequisite is that Respondent must first deny, suspend, or revoke an existing license based on statutory provisions enumerated in the enabling legislation; enumerated provisions that are independent of any waiting periods. Thereafter, Respondent may impose relevant waiting periods to any application that follows Respondent's denial, suspension, or revocation of a license. The express terms of Florida Administrative Code Rule 69B-211.042 do not mandate the imposition of waiting periods without first satisfying the statutory prerequisite prescribed in the enabling legislation. The challenged provisions of the rule may reasonably be construed as authorizing the imposition of waiting periods following Respondent's denial, suspension, or revocation of an existing license. Respondent interprets the challenged provisions of the rule as authorizing Respondent to impose waiting periods without satisfying the statutory prerequisite in the enabling legislation. The waiting period that Respondent proposes to impose against Petitioner does not follow Respondent's denial, suspension, or revocation of a license within the meaning of Subsection 626.207(1), Florida Statutes (2002). When Georgia authorities arrested Petitioner for possession of cocaine on November 4, 2001, Petitioner held a Florida nonresident company all-lines adjuster license pursuant to license number A082918 (a nonresident adjuster license). Petitioner voluntarily cancelled the nonresident adjuster license on October 21, 2002. Respondent did not deny an application for renewal of the nonresident adjuster license. Nor did Respondent suspend or revoke Petitioner's nonresident adjuster license. The application for a resident adjuster license at issue in this proceeding indicates that no administrative action was ever taken against Petitioner's nonresident adjuster license. Respondent stipulated that Petitioner answered all questions on the application truthfully. The Florida licensure file that Respondent maintains shows that Respondent took no administrative action against Petitioner's nonresident adjuster license. Respondent proposes to impose a waiting period against Petitioner that that does not follow denial, suspension, or revocation of either Petitioner's previous nonresident adjuster license or the resident adjuster license that Petitioner seeks in this proceeding. The second page of the application that Petitioner submitted states that Respondent will not consider the application while Petitioner is under probation or in a pre- trial intervention program. In relevant part, the second page of the application provides: NOTE: IF YOU ARE CURRENTLY ON PROBATION OR PARTICIPATING IN A PRE-TRIAL INTERVENTION PROGRAM, YOU MAY WANT TO WAIT TO FILE YOUR APPLICATION WITH THE DEPARTMENT UNTIL YOUR PROBATION OR PRE-TRIAL PROGRAM HAS TERMINATED. (For other than minor traffic violations, the rules of the Department prohibit the approval of licensure for an individual who is currently serving a probationary term or participating in a pre- trial intervention program. ) (emphasis not supplied) After receiving the application for a resident adjuster license, Respondent issued a letter dated April 7, 2003, stating Respondent's intent to deny the application. In relevant part, the letter stated: [W]e are in receipt of the certified documents, however, a review of the documents indicate[s] that you are still on probation. The rules of the Department prohibit the approval of licensure for an individual who is currently serving a probationary term. Please write and let us know if we need to close or withdraw your application. The express terms of Subsection 626.207(1), Florida Statutes (2002), require an interpretation of Florida Administrative Code Rule 69B-211.042 that limits the imposition of relevant waiting periods to periods that follow Respondent's denial, suspension, or revocation of a license. The waiting periods begin on "trigger dates" defined in Florida Administrative Code Rule 69B-211.041(11). The express terms of the enabling legislation do not authorize the imposition of waiting periods unless the waiting periods follow a denial, suspension, or revocation of a license by Respondent in accordance with Florida law. If Respondent were to deny Petitioner's application for a resident adjuster license on the grounds that Petitioner violated one of the statutes enumerated in the enabling legislation, Subsection 626.207(1), Florida Statutes (2002), would authorize Respondent to apply the challenged provisions of Florida Administrative Code Rule 69B-211.042 to prevent Petitioner from applying for a license before the expiration of the applicable waiting period. Similarly, if Respondent were to have suspended or revoked Petitioner's nonresident adjuster license, Subsection 626.207(1), Florida Statutes (2002), would have authorized Respondent to apply the relevant waiting period to prevent Petitioner from applying for another nonresident adjuster license; or arguably to prevent Petitioner from applying for the resident adjuster license at issue in this proceeding.
Findings Of Fact The Petitioner was convicted of unarmed robbery before the courts of the State of Massachusetts in 1960. The Petitioner has applied for a pardon so that his civil rights can be restored, and it is probable that his civil rights will be restored. Apparently the process for accomplishing a restoration of civil rights is time consuming in the State of Massachusetts. The Petitioner failed to reflect on his application that he was arrested for robbery in 1962. He was not convicted of that crime. It does not appear that the Petitioner deliberately falsified his application.
Findings Of Fact Respondent is Mason Calvin Jackson, licensed by Petitioner at all times relevant to these proceedings to engage in the business of insurance as a life agent, a life and health agent and as a health insurance agent. On or about August II, 1987, Respondent entered a plea of guilty in the United States District Court for the Southern District of Florida to dealing in counterfit obligations or securities of the United States in violation of Title 18 U.S.C. Section 473. Respondent was adjudged guilty of the offense and subsequently sentenced to incarceration for six months followed by three years of probation. The maximum sentence for the offense is a fine of $5,000 and/or imprisonment of 10 years. Respondent's guilty plea, conviction and sentence are undisputed. No evidence was presented regarding the underlying factual basis upon which Respondent's guilty plea, conviction and sentence rest.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding Respondent has demonstrated a lack of fitness or trustworthiness to engage in the business of insurance in violation of Sect 626.611(7), Florida Statutes, and revoking his licenses and eligibility for licensure. DONE AND ENTERED this 24th day of August, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 88-1234, 88-1468 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. PETITIONER'S PROPOSED FINDINGS Addressed in finding 1. Addressed in finding 1. Addressed in finding 2. Addressed in finding 3. RESPONDENT'S PROPOSED FINDINGS 1.-2. Addressed in finding 1. 3. Addressed in findings 2-3. COPIES FURNISHED: S. Marc Herskovitz, Esquire Department of Insurance and Treasurer 413-B Larson Building Tallahassee, Florida 32399-0300 John Witt, Esquire 1610 Southern Boulevard West Palm Beach, Florida 33406 Don Dowdell, Esquire General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Hon. William Gunter State Treasurer and Insurance Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300
Findings Of Fact At all times material hereto Respondent was a licensed dentist in Florida holding license number DN 0001025. Respondent graduated from Emory University Dental School in 1945, thereafter served two years apprenticeship with a practicing orthodontist before opening his own office in Coral Gables, Florida, where he practiced orthodontics for some 25 years before selling his practice and moving to the Tampa Bay area. Respondent is eligible for board certification. In November 1981 Respondent was working as an orthodontist at the Sheppard Dental Clinic in Seminole, Florida. On November 23, 1981, Valarie Rosenfeld went to Respondent to discuss orthodontic treatment to correct a deep overbite and severe overjet. At the time of this visit Miss Rosenfeld was 17 years old and had a severe Class II skeletal discrepancy with a 9.5 degree discrepancy between upper and lower jaws and an overjet of 12 mm. Respondent took some seven photographs of Miss Rosenfeld (Exhibit 2) showing generally the condition of her teeth and her facial profile. Be also took a cephalometric x-ray (Exhibit 3) and a panoramic x-ray (Exhibit 4) of Miss Rosenfeld. Respondent advised Miss Rosenfeld that it would be necessary to extract one tooth in her upper jaw and maybe a second tooth in order to improve her appearance. The purpose of this extraction was to make room in which to move the upper teeth to reduce the overjet. Respondent did not discuss surgery with Rosenfeld or fully explain to her the options available and the probable consequences of each of the options she may elect. Miss Rosenfeld has a thin maxillary bone which does not show up very well on the cephalometric x-ray taken due to a burnout in this x-ray at the location this fact could be determined. Absent adequate bone in which to move teeth it becomes very difficult to obtain much movement. In accordance with orders issued by Respondent Miss Rosenfeld's tooth number 12 was extracted by another dentist at a subsequent visit to the clinic. Respondent next saw Rosenfeld on December 16, 1981, when he put separators between her teeth to make room for bonds. Respondent intended first to install light wire braces to better level the teeth before this was replaced by heavier wire which would be tightened from time to time to move the upper teeth back and the lower teeth forward. Although he testified he planned to reduce the malocclusion using intrusion mechanics Respondent did not discuss with Miss Rosenfeld the headgear which she would have to wear at night during this process or fully explain the procedure to her. Following her December 16 visit, Rosenfeld was seen by a Dr. Bryant, an orthodontist who was replacing Respondent at the Sheppard Dental Clinic. Bryant saw Rosenfeld on December 22, 1981, when he fitted and cemented bonds on the teeth and put in the flexwire to level the teeth. She was next seen at the clinic on January 23 when Bryant religated the flexwire. The next visit on February 15, 1981, Bryant again religated the braces. Rosenfeld was last seen by Respondent on March 20, 1982, when he religated upper arch and observed lower arch. Rosenfeld was seen on April 24, 1982, by Bryant who advised her that three additional extractions would be required to correct the malocclusion. Rosenfeld then decided to obtain a second opinion before losing anymore teeth and went to see another orthodontist, John Harrison. When Dr. Harrison examined Rosenfeld he explained the three options available to her to wit: (1) do nothing, (2) attempt some movement of the teeth to reduce the overjet and overbite and (3) surgery. Dr. Harrison took additional x-rays and attempted to obtain the dental records from Sheppard's Dental Clinic but without much success. By this time Respondent no longer worked at Sheppard's and Harrison became quite frustrated by the lack of cooperation he got in attempting to obtain Rosenfeld's records. He received only the panoramic x-ray. Harrison made models of Rosenfeld's mouth, took cephalometric x-rays, made intra and extra-oral photographs and did quite a number of tracings from the cephalometric x-rays to better ascertain the misalignment of the upper and lower jaws. He discussed the various options with Rosenfeld and, at her request, commenced the mechanical intrusion needed to move the upper teeth back and the lower teeth forward. Harrison would not have extracted tooth number 12 because there is insufficient maxillary bone to allow much movement of the upper teeth or to fill the void created by the extraction. Harrison further opined that the orthodontic problem faced by Rosenfeld is wholly in the lower jaw and this can be fully corrected only by risky and expensive surgery. Attempting to correct the problem by retracting the upper teeth is, in his opinion, the wrong approach. He considers the entire problem is in the lower arch and retracting the upper teeth, which are satisfactory, to obtain a better alignment between the upper and lower teeth, simply creates another problem, viz. changing the existing good profile of the upper lip. Furthermore the thin maxillary bone in which the upper teeth are being moved is not adequate to accomplish much movement of the teeth and when the bonds are removed the upper teeth will likely return to their original position or close thereto. The cephalometric x-ray taken by Respondent on November 23, 1981, was overexposed in the part of the x-ray which would best show Rosenfeld's maxillary bone and thereby alert Respondent to the problem of moving the upper teeth. Dr. Harrison formed his opinion that Respondent's diagnosis and treatment of Rosenfeld was below minimum acceptable standards on his initial assumption (from the records he obtained from Sheppard's Dental Clinic) that the diagnosis and course of treatment were made with panoramic x-rays only. When he learned the day before the hearing that Respondent also had the benefit of the cephalometric x-ray, Harrison hedged his opinion and ultimately concluded that Respondent's diagnosis and course of treatment did reach minimal acceptable standards. Petitioner also called Dr. DeDominico, an orthodontist, who, at the request of Petitioner, examined Rosenfeld and her dental records. DeDominico concurred with Harrison that extraction of tooth number 12 was not indicated and it is unlikely the space vacated by the removal of that tooth can be closed by the movement of the other teeth on the upper jaw. DeDominico further opined that and adequate diagnosis could not be made from the x-rays taken by Respondent due to the "burnout" in this critical area of the cephalometric x-ray which concealed the thinness of Rosenfeld's maxillary bone. Failure to retake this x-ray before embarking on a plan of treatment that required an adequate maxillary bone for success, and that included an unnecessary extraction was, in his opinion, below the minimal acceptable standards for the dental profession. Respondent testified that his more than 20 years experience in orthodontics qualified him to properly diagnose Rosenfeld's problem without doing tracings from the cephalometric x-ray, and that he considered the cephalometric x-ray adequate for the diagnosis that was made. Further, extraction of tooth number 12 was necessary to provide space into which the upper could be moved to accomplish the retraction of the upper teeth desired. He did not explain the available options to Rosenfeld and never considered surgery as a viable option for the orthodontic problem presented by Rosenfeld. He also failed to apprise her of the full implications of the treatment he planned, such as headgear, for the mechanical intrusion or of the limited success to be expected from this procedure. Respondent's expert witnesses, whose depositions were received into evidence as Exhibits 9 and 10, both opined that the diagnosis and treatment of Rosenfeld by Respondent met minimum acceptable standards of the dental profession. One of these witness' credibility is somewhat tarnished by his testimony that the mandible can be induced to grow in an adult. Not only was this testimony deemed incredible by other expert witnesses but also even a layman generally understands that the skeletal structure does not continue to grow after maturity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order dismissing the charges against respondent, R. Hughes, Inc. d/b/a The Odyssey, contained in the Notice To Show Cause in this case. RECOMMENDED this 6th day of December, 1984, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9673 Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1984.
Findings Of Fact In January, 1967 the Petitioner was convicted of the felony Contributing to the Delinquency of a Minor in the Courts of the State of Florida. He was placed on probation for a period of five years. It does not appear that the Petitioner's civil rights have been restored to him. Approximately five years ago the Petitioner was charged with assault. The charges were dropped. The Petitioner did not reflect this arrest on his application. It does not appear that the Petitioner deliberately falsified his application. The Petitioner is, in all other respects, entitled to issuance of the license.
The Issue Whether the Petitioner' termination from employment was in violation of Section 760.10, Florida Statutes.
Findings Of Fact On March 9, 1999, the Petitioner was an employee of the State of Florida, Department of Corrections (Department) working as a correctional officer at the Santa Rosa County Correctional Institution in Milton, Florida. The Petitioner was employed as a Correctional Officer, on probationary status. On February 25, 1999, the Petitioner was arrested for a purported traffic violation by a law enforcement officer in Escambia county. An officer of the Escambia County Sheriff's Department, at approximately 1:08 a.m., on that day, observed the Petitioner's blue Toyota Tercel run a stop sign. The officer pulled in behind the vehicle and the vehicle made a quick turn off the road behind a closed business establishment and turned off its lights. The officer stopped near the vehicle and approached the driver's side and asked the driver for identification. The driver was later identified as the Petitioner, Perry Foster. Mr. Foster told the officer that his one-year-old son had torn up his driver's license. While the officer was talking with the Petitioner the officer detected a strong odor of marijuana emanating from inside the vehicle. Believing a narcotic violation was taking place the officer summoned another officer with a drug-detecting dog. The dog detected marijuana in the vehicle. Both the Petitioner and his passenger, Eric Adams, were placed outside the vehicle while the investigation was continuing. Officer Price, who brought the dog to the scene, detected the odor of marijuana on the person of Eric Adams. Ultimately, Eric Adams allowed a search and Officer Price retrieved a small package of marijuana from Mr. Adams shirt pocket. Mr. Adams was arrested for "possession of marijuana under 20 grams." The officer found no marijuana or drugs inside the vehicle although the dog strongly alerted on the driver's seat where the Petitioner had been sitting. There was the odor of marijuana along with signs of blunt cigar usage. Blunt cigars are typically used, hollowed out and packed with marijuana to smoke marijuana, without revealing its presence and use. In any event, the Petitioner was not arrested for possession or use of marijuana, none was found on his person, and he was given a traffic citation and released. The friend or family member who was his passenger was arrested for possession of marijuana. The evidence is unrefuted that the Petitioner was driving the vehicle with a passenger, knowing that that passenger possessed and was using marijuana in his presence. The Petitioner's employer, specifically Warden Ardro Johnson, was made aware of the Escambia County Sheriff's Office offense report that detailed the above facts and circumstances concerning the Petitioner's arrest and the arrest of his companion on the night in question. While the Petitioner remonstrated that he only was charged with running a stop sign and had not been using drugs and that he later passed a drug- related urinalysis, that position misses the point that his termination was not because of drug use. Rather, the Petitioner was dismissed by Warden Johnson from his position as a probationary employee pursuant to Rule 60K-4.003(4), Florida Administrative Code, because his employer believes that he committed conduct unbecoming a correctional officer. The true reason the Petitioner was terminated was because, as delineated by Warden Johnson in his letter to the Petitioner of March 23, 1999 (in evidence as Petitioner's Exhibit 1), the Petitioner made a personal choice to overlook, ignore, or fail to report a criminal violation occurring in his immediate presence. Warden Johnson thus explained that this leaves a clear question as to whether the Petitioner had, or would in the future, perform his correctional officer duties in the same manner by ignoring, overlooking or failing to report infractions. Because of this and because he was a probationary employee and thus had not yet established his full job qualifications, the Petitioner was terminated. There is no evidence that he was terminated based upon any considerations of his race. There is also no evidence that he was replaced in his position. Moreover, there is no evidence that if he was replaced he was replaced by a new employee who is not a member of the Petitioner's protected class. The evidence that the Petitioner was in the car at approximately 1:00 a.m., on the morning in question with a passenger who was possessed of and using marijuana is unrefuted and is accepted as credible.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the subject Petition in its entirety. DONE AND ENTERED this 2nd day of August, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 2nd day of August, 2002. COPIES FURNISHED: Mark J. Henderson Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399-2500 Perry A. Foster 1882 Gary Circle Pensacola, Florida 32505 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
