The Issue The issue is whether Petitioner should be exempt from disqualification for employment in a position of trust, pursuant to section 435.07, Florida Statutes.1/
Findings Of Fact AHCA is authorized to conduct certain background screenings for employees providing specific types of services within health care facilities licensed by AHCA. See § 408.809(1)(a), Fla. Stat. (employees subject to screening); § 408.803(9), Fla. Stat. (definition of “licensee”). Petitioner was required to participate in Respondent’s background screening process because he sought employment in a position providing direct services to residents of a health care facility licensed by AHCA under chapter 400, Florida Statutes. Petitioner underwent the required background screening, which revealed: On or about May 6, 1996, in Case No. 1995MM007600, Petitioner was adjudicated guilty of Battery under section 784.03(1)(a)1., Florida Statutes. At the time of this offense, Petitioner and Teresa Poole, the alleged victim, resided together or shared the same dwelling. On or about May 15, 2002, in Case No. 2002CF000065, Petitioner pled no contest to Battery under section 784.03(1)(a)1., a misdemeanor. Adjudication was withheld. At the time of this offense, Petitioner was residing with or was sharing the same dwelling with Erica Goode, the alleged victim. On or about July 6, 2009, in Case No. 2009MM000294, Petitioner pled no contest to Battery under section 784.03(1)(a)1. Christine Crowley, the alleged victim, and Petitioner are related by blood and have previously resided together in the same dwelling. Christine Crowley is Petitioner’s biological sister. Each of the above-referenced battery charges constitutes Domestic Violence under section 741.28, Florida Statutes. Under sections 435.04(3) and 408.809(4)(e), Florida Statutes, the above-referenced criminal offenses disqualify Petitioner from providing services in a health care facility licensed by AHCA, unless AHCA grants Petitioner an exemption pursuant to section 435.07. In addition to his disqualifying offenses, Petitioner's background screening revealed: On or about September 18, 1998, in Case No. 1998CF000638, Petitioner was arrested for Aggravated Battery under section 784.045(1)(a)1. Although Petitioner was not ultimately convicted, at the time of this charged offense, Petitioner was residing with or had previously resided with the alleged victim, Christina McCullum, in the same dwelling. A conviction of this charge would constitute Domestic Violence under section 741.28. On or about September 21, 1998, in Case No. 1998CT003202, Petitioner pled no contest to Driving While License Suspended (With Knowledge) under section 322.34(2), Florida Statutes. Petitioner maintains that he did not actually have knowledge. On or about February 1, 1999, in Case No. 1999CT00187, Petitioner was adjudicated guilty of Driving While License Suspended (With Knowledge) under section 322.34(2). Petitioner maintains that he did not actually have knowledge. On or about February 24, 1999, in Case No. 1998CT004442, Petitioner was adjudicated guilty of Driving While License Suspended (With Knowledge) under section 322.34(2). Petitioner maintains that he did not actually have knowledge. On or about January 25, 1999, in Case No. 1999CF000264, Petitioner was arrested for Burglary under section 810.02(3)(b) and Battery under section 784.03(1)(a)1. At the time of these offenses, Petitioner had previously resided with the alleged victim, Christina McCullum, in the same dwelling. If convicted, this charge would constitute Domestic Violence under section 741.28. On or about April 14, 1999, in Case No. 1999MM000766, Petitioner was arrested for Assault under section 784.011. Petitioner was not ultimately convicted. On or about July 14, 1999, in Case No. 1999CF2483, Petitioner was arrested for Aggravated Battery under section 784.045. Petitioner was not ultimately convicted. At the time of this alleged offense, the Petitioner had previously resided with the alleged victim, Christina McCullum, in the same dwelling. If convicted, this charge would constitute Domestic Violence under section 741.28. On or about December 12, 1999, in Case No. 1999CF000727 (later transferred to 1999MM002249), Petitioner was arrested for Battery under section 784.03(1)(a)1. and Resisting without Violence under section 843.02. At the time, Petitioner had previously resided with the victim, Christina McCullum in the same dwelling. The battery charge constitutes Domestic Violence under section 741.28. Petitioner was adjudicated guilty of the above-referenced Resisting without Violence charge and sentenced to a year of probation with a special condition of completion of a Batterer’s Intervention Program. i. On or about July 30, 2002, in Case No. 2002MM007400, Petitioner was charged for giving a worthless check under section 832.05(2), but the charges were ultimately dismissed. On or about November 5, 2003, in Case No. 2003CF000692, Petitioner was charged with Aggravated Battery under section 784.045(1)(a)1. Petitioner was not ultimately convicted. On or about March 18, 2004, in Case No. 2004CF000185, Petitioner was charged with Dealing in Stolen Property, under section 812.019(1). Petitioner was not ultimately convicted. On or about June 3, 2009, in Case No. 2009CF000362, Petitioner was charged with Burglary under section 810.02(3)(c) and Petit Theft under section 812.014(3)(a), Florida Statutes. Petitioner was not ultimately convicted. At the time of the above- referenced charges, Petitioner was the former spouse of, and had previously resided with, the alleged victim, Erica Goode/Crowley in the same dwelling. On or about June 26, 2009, in Case No. 2009MM000678, Petitioner was arrested for Battery under section 784.03(1)(a)1. and Disorderly Conduct (Affray) under section 870.01(1). Petitioner was not ultimately convicted. On or about July 9, 2009, in Case No. 2009MM000721, Petitioner was charged with violating a No Contact Order issued by the first appearance judge in the case referenced above. Petitioner was not ultimately convicted. On or about August 21, 2009, in Case No. 2009MM000922, Petitioner was arrested for Battery under section 784.03(1)(a)1. Petitioner was not ultimately convicted. At the time of this arrest, Petitioner was residing in the same dwelling with the alleged victim, Michelle Vanhoose. On or about January 2011, in Case No. 2010CF000620, Petitioner was adjudicated guilty of Aggravated Stalking under section 784.048(3), Florida Statutes. Licensed professionals under the Department of Health may work at a facility licensed by AHCA, if granted an exemption by the Department of Health, but may only work within the scope of that professional license, unless AHCA itself grants the applicant an exemption. Petitioner does not have an active license or exemption from disqualification from the Department of Health. Petitioner does not dispute that he has disqualifying offenses and subsequent criminal history, but claims his application and entire file support his rehabilitation by clear and convincing evidence. AHCA received Petitioner’s application for exemption in accordance with sections 408.809 and 435.07, on or about June 15, 2017. AHCA conducted a telephonic hearing with Petitioner on August 2, 2017. During the telephonic hearing, in addition to discussing the results of Petitioner’s background screening, as evidence of his rehabilitation, Petitioner pointed out that he has been working, getting an education, and has not been arrested in six years. Petitioner also submitted several positive letters of recommendation from close friends and family. After the telephonic hearing, AHCA denied Petitioner’s request for an exemption and sent Petitioner the Denial Letter, signed by AHCA’s manager for the Background Screening Unit, Samantha Heyn, on behalf of AHCA. Although Ms. Heyn did not attend AHCA’s telephonic hearing with Petitioner, she previously spoke to Petitioner in a phone call about his exemption request. In making the decision to deny Petitioner’s application, Ms. Heyn and pertinent AHCA staff with the background screening unit considered Petitioner’s entire case file, including all submissions received from Petitioner and his explanations during the teleconferences. AHCA also considered the time elapsed since the offenses, the nature and harm to the victims, the circumstances surrounding the offenses, Petitioner’s history since the offenses, and all other supporting documentation provided by Petitioner before deciding to deny Petitioner's request for exemption from disqualification. Petitioner testified that he has ambitions to work as a licensed health care professional. During the administrative hearing, Petitioner testified that he is in his current predicament because of vindictive people falsely accusing him of crimes, and AHCA personnel who have labeled him a criminal. Similarly, during his earlier teleconference with AHCA, Petitioner stated that he was in his current situation due to racism, labeling, vindictive people out to destroy him, and other factors out of his control. Petitioner’s statements at the initial teleconference with AHCA were conflicting as to whether the courses he took for batterer’s intervention and anger management were court-ordered, conditions of a plea deal with prosecutors, or fully voluntary outside of the criminal justice system. Petitioner was arrested for violent and domestic crimes after taking each course. While Petitioner has stated that he takes full responsibility for his actions, his other statements at the teleconference and at the administrative hearing reflect a lack of candor and an unwillingness to accept responsibility for his past criminal episodes. While the letters of recommendation from close family and friends, successful educational pursuits, and a clean record for the last six years demonstrate progress toward rehabilitation, this fairly recent success does not annul Petitioner's extensive criminal history, lack of candor, and unwillingness to accept responsibility. The records of successful exemption applicants offered by Petitioner were not helpful to Petitioner’s case. The criminal backgrounds were not the same as Petitioner’s and the evidence was insufficient to permit a useful comparison between the facts and circumstances of those applicants with those of Petitioner. In view of all of the evidence, it is found that Petitioner failed to meet his burden to prove by clear and convincing evidence of rehabilitation when he presented his case to AHCA, and the evidence presented at the final hearing failed to demonstrate that AHCA abused its discretion in denying Petitioner’s request for exemption.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent enter a final order denying Petitioner’s request for an exemption from disqualification for employment. DONE AND ENTERED this 16th day of March, 2018, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 16th day of March, 2018.
The Issue Whether Petitioner, Robert J. Bopp, Jr.'s, application for licensure as a resident independent all lines insurance adjuster should be approved or denied by Respondent, Department of Financial Services.
Findings Of Fact Respondent is the state agency responsible for the licensure of insurance agents in the State of Florida pursuant to Chapter 626, Florida Statutes (2005).1/ On May 18, 2005, Petitioner filed an on-line application with Respondent seeking licensure as a resident independent all lines insurance adjuster. Petitioner had recently completed all prerequisites for an adjuster's license. The on-line application form, filled out by Petitioner, included the following screening question: 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 judgment of conviction was entered? Petitioner answered in the negative. The criminal history records obtained by Respondent during the application review process revealed that on or about March 29, 1994, Petitioner was charged, via Information, with "Fraudulently Making Application for a Florida Driver's License or Identification Card," a third-degree felony, in violation of Subsection 322.212(5), Florida Statutes (1993), in the Circuit Court of the Fifth Judicial Circuit of the State of Florida in and for Lake County, Florida, Case No. 94-362-CFA-DS. On or about May 31, 1994, Petitioner pled guilty to the charge, as set forth in the Information. Subsequently, a judgment was entered placing Petitioner on probation for a period of 30 months supervised by the Department of Corrections, ordering Petitioner to perform 50 hours of Community Service, pay $250 in court costs, as well as $250 into the Fine and Forfeiture Fund of Lake County, and withholding adjudication of guilt. Petitioner successfully completed probation, which was then terminated. The criminal charges in question arose when Petitioner, then age 25, supplied a friend, Patrick C. Ruddell, then age 20, with Petitioner's Social Security card and Birth Certificate for the purpose of obtaining a false identification card for Ruddell to enable Ruddell to gain access to bars. In explaining his "No" response to the criminal history question on his license application, Petitioner asserts that he inadvertently provided a negative response because he had to submit the on-line application approximately eight times because of a problem with the programming and/or transmission. In addition, he testified that he had not realized that the charge was a felony, but assumed that it was a misdemeanor. At the time, he did not realize the seriousness of the charge. Petitioner also testified that at the time he was signing up for the adjustor's course, he asked the instructor whether his prior conviction would prevent him from obtaining a license and was informed that it would not. He relied on that statement and completed the course. Petitioner and his witness testified that he is of good moral character, is fit, and can be trusted to hold this license. He has learned from his mistake. No additional criminal charges have been filed against Petitioner. Petitioner has failed to meet his burden to demonstrate that he is fit and trustworthy to engage in the business of insurance.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that a final ordered be entered: 1) finding Petitioner has not met his burden to prove entitlement to a license; 2) denying the application for licensure of Petitioner as a resident independent all lines insurance adjuster (Code 05-20); and 3) finding that the 16-year waiting period from Petitioner's trigger date should not be reduced. DONE AND ENTERED this 9th day of January, 2006, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 2006.
The Issue The issue is whether Petitioner’s request for exemption from disqualification should be granted.
Findings Of Fact Respondent is the state agency responsible for regulating the employment of persons in positions of special trust as direct service providers. Petitioner is seeking employment with Always Promoting Independence, LLC, and Supporting Independence/Honor Health Care Management, both service providers are regulated by Respondent. Petitioner wants to work as a direct service provider, which requires background screening. The results of Petitioner’s background screening revealed a history of criminal offenses. Respondent relies on the Department of Children and Families Background Screening Unit (“Department”) to initially receive exemption from disqualification requests and to compile documents related to such requests. On February 8, 2016, Petitioner submitted a Request for Exemption, Exemption Questionnaire (“Questionnaire”), various criminal records, character references, and other various documents (the “Exemption Packet”), to the Department seeking to demonstrate support for the granting of an exemption from employment disqualification. The Department subsequently forwarded the Exemption Packet to the Agency for review. To begin its exemption review, Respondent considered Petitioner’s disqualifying offense. In May 1991, Petitioner committed the disqualifying offense of “Fraudulent Use of Credit Card” (six counts). Petitioner pled nolo contendere to the disqualifying offense and adjudication was withheld. She was sentenced to 24 months’ probation and payment of fines and court costs. She completed her term of probation early. In its continued exemption review, Respondent considered the following non-disqualifying offenses, which Petitioner obtained subsequent to her May 1991 disqualifying offense: an arrest for “Aggravated Assault with a Firearm” in August 1997 (a violation of section 784.021, Florida Statutes); an arrest for “Driving While License Suspended with Knowledge” in October 2007 (a violation of section 322.34(2), Florida Statutes); an arrest for “Driving While License Suspended with Knowledge” in September 2008 (another violation of section 322.34(2)); an arrest for “Possession of Cannabis” in March 2012 (a violation of section 893.13(6)(b), Florida Statutes); and a conviction for “Possession of Drug Paraphernalia” in March 2012 (a violation of section 893.147(1)). Petitioner received notification by letters dated September 22, 2015, and January 12, 2016, from the Department, Respondent’s background screening entity, of her disqualification from employment due to criminal history. The specific disqualifying offense listed in both letters was “Fraud-Illegal Use of Credit Cards,” a violation of section 817.61, Florida Statutes. Petitioner provided details of the circumstances surrounding the disqualifying offense. In short, Petitioner indicated she gave three “associates” a ride to the mall in exchange for their promise to buy her a new pair of shoes. She left the Champs sports store with her shoes, expecting one of her companions to pay for them. She was in her car when her companions ran from the store with a security guard in pursuit. They told her to start the car which she refused because she believed she had not done anything wrong. Unfortunately for her, one of her companions had attempted to pay for her new shoes with a stolen credit card. She and her companions were arrested and charged with credit card fraud. Petitioner provided documentation of the charge, the disposition after her no contest plea, and the fact that her probation was terminated early. Petitioner provided explanations for all but one of the non-disqualifying offenses that ranged from the gun charge being at the end of a “bad relationship” (her then-girlfriend falsely accused her); to she was pulled over for a broken taillight, then charged with driving with a suspended license (she claimed she paid her tickets and the license was reinstated, although no records were provided on this point); to she was pulled over for having too dark a window tint in her car and cannabis was found (she testified it was not hers), but, since no one confessed to ownership, all were cited for possession; and finally to no explanation at all for the 2007 driving with a suspended license charge. Petitioner accepted little responsibility for her criminal offenses and concluded with the statement that she has no current involvement with any court system; she stated she is in “good standing.” Petitioner indicated on her Questionnaire that there was no harm to any victim or property, including damage or injury, in her past. Petitioner indicated on her Questionnaire that there were no stressors in her life at the time of the disqualifying offense. Regarding current stressors in her life, Petitioner testified she is unable to provide for her family and she is eager to obtain and keep steady employment. Petitioner listed her educational achievements as a diploma from Clearwater High School (1988), an Associate in Arts degree from Tampa Tech in computer engineering (1991), and an Associate in Science (“A.S.”) degree from St. Petersburg College in human services (2014). Petitioner indicated on her Questionnaire that she has received no counseling for any reason. Petitioner indicated on her Questionnaire that she has no history of alcohol and drug abuse. Petitioner indicated on her Questionnaire that she is involved with a community organization known as “Parents that Care.” As to expressing remorse or accepting responsibility for her actions, Petitioner testified she completed her probation early and that she no longer surrounds herself with negative influences and people. Petitioner’s recent work history has been stable. Her work history since 2009 indicates she has worked for two groups providing direct support/in-home support staff: Supporting Independence/Honor Health Care Management (2012-present) and Peaceful Dreams, Inc. (2009-2012). In addition to the criminal records submitted, Petitioner also offered affidavits of good moral character, written personal statements, IRS W-2 Forms, a copy of her A.S. degree from St. Petersburg College, and three letters of reference attesting to her character. The letters were written by people who have known Petitioner for many years and who believe her to be hard-working, reliable, and caring. Petitioner also submitted a copy of an exemption from disqualification she had received from the Agency for Health Care Administration (“AHCA”) dated May 27, 2014. Jeffrey Smith, regional operations manager for the Suncoast Region, testified that the Agency reviewed all the provided documentation provided by Petitioner, the information provided on the Exemption Questionnaire, the various records documenting Petitioner’s criminal history, her educational record, her character references, and her exemption from AHCA. Following a review of all the documentation included in the Exemption Packet, Agency Director Barbara Palmer advised Petitioner by a letter dated May 27, 2016, that her request for an exemption from her disqualifying offense was denied. The basis for the denial was that Petitioner failed to provide clear and convincing evidence of her rehabilitation. Mr. Smith testified the Agency considered all the documentation submitted by Petitioner in her Exemption Packet, as well as the additional documents provided prior to and at the hearing. He did not find that the documentation negated or refuted the official records of the disqualifying and non- disqualifying offenses. Further, the fact that the non-disqualifying offenses related to Petitioner’s driving is relevant to the position for which she seeks an exemption from disqualification. A direct service provider is often called upon to transport individuals entrusted to her care. Petitioner’s statement that her license was reinstated and that she received no more driving citations after the offenses described above was refuted by Mr. Smith, based upon subsequent driving records regarding Petitioner. Mr. Smith also noted two additional reports from the Department in which Petitioner was named the alleged perpetrator. One report showed some indicators of child abuse (cuts/punctures/bites/excessive corporal punishment), and the other report involved allegations of exploitation of a vulnerable adult, specifically, one with a developmental disability, but resulted in no official findings of exploitation. The Agency’s clients are a vulnerable population, consisting of individuals whose developmental disabilities are defined as intellectual disability, autism, spina bifida, Prader-Willi syndrome, cerebral palsy, Down syndrome, and/or Phelan-McDermid syndrome. Without the Agency’s services, these clients would require institutionalization. Petitioner testified passionately that she enjoys working with individuals with disabilities. Working in this field inspired her to return to school to earn a degree in human services. She testified that working with persons with disabilities is her long-term goal. She admitted she made some “foolish mistakes” when she was younger, but that she now accepts responsibility for her actions. She also testified that she believed her exemption should be granted because another agency, AHCA, had granted her an exemption from disqualification. Respondent countered with the fact that this vulnerable population requires being able to rely on the direct care provider’s good character and trustworthiness. Individuals entrusted with the care of the disabled are often called upon to make decisions of a financial, medical, and social nature. The Agency must weigh the benefit against the risk when considering granting an exemption. Petitioner’s history shows poor judgment on her part, and she provided testimony that was inconsistent with the documentation of her criminal history and the report and allegations of abuse or neglect from the Department. Petitioner admitted to use of a credit card of a vulnerable adult, which showed poor judgment on her part. Additionally, the close proximity of Petitioner’s most recent arrest (2012) to her request for exemption demonstrates her issues with the law are not limited to the distant past. Finally, Respondent, pursuant to section 435.07(5), Florida Statutes, considered the exemption given Petitioner by AHCA. The exemption from AHCA, however, is neither binding on the Agency nor does such exemption follow the same criteria or involve the same service population as the exemption sought from Respondent. The granting of an exemption from employment disqualification would allow Petitioner to be employed as a direct service provider to Agency clients. The undersigned appreciates Mr. Smith’s thoughtful and comprehensive assessment of Petitioner’s criminal history and fitness to hold a position of trust, and finds his testimony at hearing and reasons for recommending the denial to be credible and reasonable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order denying Petitioner’s request for an exemption from disqualification. DONE AND ENTERED this 19th day of October, 2016, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 October, 2016. COPIES FURNISHED: Rosemary Brinson 1010 Eldridge Street Clearwater, Florida 33755 Jeannette L. Estes, Esquire Agency for Persons with Disabilities 200 North Kentucky Avenue, Suite 422 Lakeland, Florida 33801 (eServed) Lori Oakley, Acting Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Richard D. Tritschler, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Barbara Palmer, Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
The Issue Whether Petitioner should receive a General Lines Agent license, pursuant to Sections 626.611 or 626.621, Florida Statutes.
Findings Of Fact On April 10, 2003, Petitioner applied for licensure as a General Lines Agent. On May 22, 2003, Respondent denied Petitioner's application for licensure due to his criminal history. On May 30, 2003, Petitioner submitted a timely Election of Rights form, which requested a hearing before the Division of Administrative Hearings. On February 23, 1996, Petitioner was charged with two counts of Depositing Worthless Item with Intent to Defraud in the Circuit Court in and for Orange County, Florida. On July 2, 1996, Petitioner pled nolo contendere to two counts of Depositing Worthless Item with Intent to Defraud. Adjudication of guilt was withheld by the circuit court, and Petitioner was placed on supervised probation for one year and ordered to pay restitution. On March 31, 1997, Petitioner's probation was modified, and then on June 30, 1997, Petitioner's probation was terminated. Petitioner testified as to the circumstances surrounding his plea of nolo contendere to Depositing Worthless Item with Intent to Defraud. He stated that a cousin gave him two post-dated checks to repay a debt and that he deposited them on different days but sought and received permission from his credit union for the immediate release of the funds, in the total amount of $1,435.00. Upon receiving the funds, he used the proceeds to make payments on other accounts. Approximately 30 days later, the credit union informed him that the two checks were returned and marked "account closed" and demanded immediate reimbursement. Petitioner testified that he was only able to make a partial repayment, and, therefore, criminal charges were filed by the state attorney. On the advice of his counsel, he pled nolo contendere to both charges and was placed on probation. While on probation, he repaid approximately 40 percent of the debt and fines. Petitioner believes there is an outstanding balance due of $256.00 plus interest and penalties, for which he is unable to pay because he is presently unemployed. Petitioner testified that he is a trustworthy person and should be granted a waiver from the rules requiring a waiting period, following his conviction, before becoming eligible for licensure. The reason for this request is that he did not intentionally commit these crimes; that he previously worked 20 years successfully in the airline industry which required a background screening for his position; and that he has been studying hard and been offered employment by Liberty Mutual Insurance Group in Orlando, Florida, who did their own background check and approved him for employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner's application for licensure as a General Lines Agent in this state. DONE AND ENTERED this 24th day of September, 2003, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 24th day of September, 2003. COPIES FURNISHED: Ladasiah Jackson, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Joseph M. Santino 3201 South Semoran Boulevard Number 39 Orlando, Florida 32822-2678 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue Whether the Petitioner, Juan Ramon Leal, is entitled to be licensed as resident legal expense sales representative.
Findings Of Fact At all times material to the allegations of this case, the Respondent is the state agency charged with the responsibility of regulating persons seeking licenses to become resident legal expense sales representatives. As such the Respondent appropriately received and considered the application for licensure submitted by the Petitioner on or about April 3, 2002. On June 27, 2002, the Respondent issued its decision regarding the Petitioner's application for licensure. Such decision denied Petitioner's request based upon his criminal history and the short amount of time that had elapsed between the alleged criminal activity and the application for licensure. On July 6, 2000, when he was 20 years of age, the Petitioner was arrested for possession of a controlled substance, unauthorized possession of a driver's license, and carrying a concealed weapon. As to the controlled substance charge, at the time of the arrest, the Petitioner was delivering to an individual, who was a confidential informant for the police, 400 tablets of a drug commonly known as ecstasy. The Petitioner knew that the package contained an illegal substance and that he was committing an illegal act. As to the charge of possessing an unauthorized driver's license, the Petitioner held fake identification so that when carded at dance clubs he could enter with his older girlfriend. There is no evidence that the fake license was used for any other purpose. As to the charge of possession of a concealed weapon, the Petitioner was arrested and his vehicle was thoroughly searched. The "concealed weapon" was a hunting knife under the seat or in the crack of the seats. The knife was not presented in the course of any of the activities cited by the police. In fact, the arresting officer described the Petitioner as "sincerely remorseful" and "cooperative." Subsequent to his arrest the Petitioner attempted to assist the police but proved unsuccessful. On May 10, 2001, the Petitioner pled nolo contendere to the possession charges. As he had no prior criminal record, adjudication of guilt was withheld and he was placed on probation. The Petitioner successfully completed all requirements of his probation. Thereafter, on March 14, 2002, the probation was terminated. On April 3, 2002, within the month of his probation being completed, Petitioner applied for the license at issue in this proceeding. Because the Department denied the license, the Petitioner sought the instant administrative review of the denial and sought relief from the criminal court having jurisdiction over his probation and record. To that end, Petitioner obtained an Order to Seal his criminal records. This order was entered on August 15, 2002. Had the Petitioner waited until after that date to apply for licensure, the pertinent criminal records would have been under seal and therefore unavailable for review. It is the Department's position that the Petitioner lacks fitness and trustworthiness to hold the license based upon the nature of the criminal activity and the recentness in time to the application for licensure. The Petitioner's employer, Nicolo Bonanno, testified that the Petitioner is a trustworthy employee, that he has had business dealings with the Petitioner for approximately 3 years, and that he has no hesitation in supporting his licensure. Mr. Bonanno is himself a licensee through the Department. The arresting officer expressed complimentary statements regarding the Petitioner including his demeanor during and subsequent to the arrest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance enter a final order granting the license sought by the Petitioner. DONE AND ENTERED this 23rd day of January, 2003, in Tallahassee, Leon County, Florida. ___________________________________ J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of January, 2003 COPIES FURNISHED: Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Eugene J. LaNeve, Esquire 717 Ponce de Leon Boulevard Suite 215 Coral Gables, Florida 33134 Ladasiah Jackson, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333
The Issue Whether the Petitioner has presented clear and convincing evidence that she is of good moral character so as to receive an exemption from disqualification from employment with children or adults who are severely developmentally disabled, pursuant to Section 435.07(7), Florida Statutes (1997).
Findings Of Fact Autumn Nichols is a 20 year-old woman living in her mother's home. She dropped out of school at age 16, and is currently studying to obtain a high school equivalency diploma (GED). Petitioner was arrested and charged with domestic violence-battery in October 1995. She was subsequently adjudicated delinquent in the circuit court (juvenile division) and was placed on community control for a year, attended a law awareness class and a jail tour, performed 25 hours of community service and participated in an anger management class. Petitioner successfully completed her sanctions. On or about October 10, 1995, Petitioner became involved in a verbal argument with her brother. The argument escalated into a physical fight. Petitioner made threats to kill her brother and attempted to get a knife. The police arrested her and she was placed in the Juvenile Detention Center. Two days later, Petitioner was hospitalized due to severe emotional problems. Following the hospitalization, Petitioner was in residential treatment at Devereaux treatment center. She remained at Devereaux for six months and then attended the out- patient program. The episode with her brother, when she was 17, was her last episode of violence. Petitioner no longer verbalizes her anger. Petitioner has never had violent episodes outside the home. Petitioner was diagnosed with bi-polar disorder. She has been hospitalized at least five times. Two of those hospitalizations were involuntary commitments (Baker Act). Petitioner, as recently as six months ago, checked herself into a residential treatment facility for depression. Petitioner's job experience has been limited due to her age. She worked for her mother caring for children in her mother's family daycare for one to two years in her early teens. When Petitioner was 18, she worked a summer job for her father in a restaurant, and at 19, Petitioner worked for three months as a telemarketer. In January 1998, Petitioner was hired by Tutor Time daycare center. She worked at the daycare for three months until she was disqualified from employment. Although Petitioner has demonstrated a sincere desire to work with children, she has failed to prove by clear and convincing evidence that she is rehabilitated. Insufficient time has elapsed since the incident, her mental health issues are too extensive and her work history is inadequate to show that she no longer presents a danger to children.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's request for exemption from disqualification for employment in a child care facility be DENIED. DONE AND ENTERED this 3rd day of November, 1998, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 3rd day of November, 1998. COPIES FURNISHED: Carmen Sierra, Esquire Department of Children and Family Services 400 West Robinson Street Orlando, Florida 32801 Autumn Nichols 513 Teakwood Drive Altamonte Springs, Florida 32714 Gregory D. Venz, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700 Richard Doran, General Counsel Department of Children and Family Services 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700
The Issue Whether the Agency for Health Care Administration’s (Agency) intended decision to deny Petitioner’s application for exemption from disqualification for employment is an abuse of the Agency’s discretion.
Findings Of Fact Respondent is required to conduct certain background screenings for employees who provide specific types of services within health care facilities licensed under chapters 400, 408, and 429, Florida Statutes. § 408.809, Fla. Stat. Petitioner seeks employment in a position providing such services to residents of a health care facility licensed by Respondent, and, as such, is required to participate in Respondent’s background screening process pursuant to section 408.809, Florida Statutes. Petitioner submitted to the required background screening, which revealed that in 2006, Petitioner was adjudicated delinquent for the felony offense of Aggravated Battery with a Deadly Weapon, in violation of section 784.045, Florida Statutes, in Franklin County, Florida, Case No. 06000033CJAXMX. In 2010, Petitioner was charged with Child Abuse and Child Neglect, but pleaded guilty to Contributing to the Delinquency of a Minor, in Duval County Circuit Court, Case No. 162010CF002633AXXXMA, in violation of section 827.04, Florida Statutes. The two above-referenced criminal convictions render Petitioner disqualified and ineligible to provide the listed services in a health care facility licensed by Respondent unless Petitioner receives an exemption from Respondent, pursuant to section 435.07, Florida Statutes. In addition, Petitioner’s background check revealed that she was arrested in 2014 for Battery, although the charge was dismissed, and Petitioner pleaded no contest to Disorderly Conduct, in Gulf County Court, Case No. 14-100MM. Petitioner was also arrested in 2014 for two (2) counts of Aggravated Battery with a Deadly Weapon, but those charges were dismissed. However, Petitioner pled no contest to the offense of Affray, in Gulf County Court, Case No. 14-179-CF. Petitioner initially submitted an application for exemption to the Agency in accordance with sections 408.809 and 435.07, on or about April 21, 2017, and participated in a telephonic hearing conducted by Respondent on June 13, 2017. Respondent’s witness, Sherry Ledbetter, the operations and management consultant manager for the Background Screening Unit, testified that she attended the telephonic hearing on June 13, 2017. Following the telephonic hearing, Respondent denied Petitioner’s request for an exemption by letter dated June 19, 2017, and Petitioner subsequently requested an administrative hearing. At the administrative hearing, Sherry Ledbetter testified that, in making the decision to deny the exemption request, Respondent considered Petitioner’s entire case file, including all submissions received from Petitioner, as well as her explanations of her past offenses. Ms. Ledbetter also testified that the instant denial was separate from, and did not impact, any exemption that Petitioner may receive for her Certified Nursing Assistant (CNA) license through the Florida Department of Health. As explained by Ms. Ledbetter, once there is a disqualifying offense or conviction, Respondent is legally authorized to consider all subsequent arrests or convictions, even if those arrests or convictions are not disqualifying offenses. Indeed, Respondent considered Petitioner’s subsequent arrests and convictions during the review of Petitioner’s application for exemption. Ms. Ledbetter testified that Respondent also considered the circumstances surrounding Petitioner’s most recent arrests, even though the charges were not disqualifying under the law. She further testified that the recency of those 2014 incidents was a large factor in Respondent’s decision to deny Petitioner’s application for exemption. Ms. Ledbetter noted that some of Petitioner’s statements conflict with the police reports and other documentation in Petitioner’s exemption file, particularly with respect to the 2010 Contributing to the Delinquency of a Minor conviction. Petitioner’s child, who was four months old at the time, was discovered to have a broken leg and a broken arm. At the telephonic hearing, Petitioner was unable to explain what happened and blamed the injuries on the babysitter, although no proof was presented that the babysitter was charged with a crime related to this incident. When determining to deny the exemption request, the Agency was aware of the fact that Petitioner had taken court- ordered anger management courses in 2006, and again in 2014. In summary, Ms. Ledbetter testified that, based on Petitioner’s entire file and her responses during the teleconferences, Petitioner had not satisfied her burden of proving, by clear and convincing evidence, her rehabilitation subsequent to her disqualifying offenses. Petitioner testified on her own behalf and explained how her past does not define her today, and that she is a changed person. She explained that she has grown up a lot, and has learned to love herself. She also stated that she has learned how to be honest with herself, and to take responsibility for her actions. Petitioner explained that in 2015, her mother had lung cancer and was in hospice. She acknowledged that this experience with her mother was the pivotal moment in her life that changed her. Petitioner professed that she wants nothing more than to help people, and would do so if granted the exemption. Specifically, Petitioner would like to return to her work helping elderly adults. Petitioner called as a character witness her friend since high school, Sheila Long, who testified that Petitioner has grown up a lot, is a good mother, and is trying to be a better person. Petitioner successfully completed a CNA course in March 2017. Included with Petitioner’s application for exemption from disqualification were several letters of reference, all lauding Petitioner’s good character and geniality. Three of those letters attested to her successful employment in recent years, including two from representatives of the Eisenhower Center, a rehabilitation facility where Petitioner worked as a CNA until her disqualification. A third, from the assistant manager at the Walmart where Petitioner had been employed, praised Petitioner’s pleasant and courteous demeanor, and her honesty in revealing her criminal background. Although Petitioner appeared genuinely remorseful for her criminal convictions and has clearly made an effort to turn her life around, due to the recency of some of the offenses, it cannot be concluded that she is rehabilitated and should not be disqualified from employment. Petitioner has thus failed to meet her burden of proof by clear and convincing evidence that she should be granted an exemption from disqualification.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner’s request for an exemption from disqualification. DONE AND ENTERED this 28th day of November, 2017, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 28th day of November, 2017. COPIES FURNISHED: Lindsay Worsham Granger, Esquire Agency for Health Care Administration Mail Stop 7 2727 Mahan Drive Tallahassee, Florida 32308 (eServed) Nicole Henry 1609 Chatham Road Jacksonville, Florida 32208 Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Justin Senior, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 (eServed) Stefan Grow, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Shena L. Grantham, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Thomas M. Hoeler, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed)
The Issue The issue to be determined is whether Petitioner has demonstrated eligibility for licensure as a resident life, including variable annuity, insurance agent.
Findings Of Fact Based upon the observation and the demeanor of the witnesses while testifying, documentary material received in evidence, stipulation of the parties, and evidentiary rulings during the hearings, and the entire record complied herein, the following relevant, material, and substantial facts are determined: The Department is the state agency responsible for the licensure of insurance agents in the State of Florida, pursuant to Chapter 626, Florida Statutes (2004). On October 4, 2004, Petitioner filed an online application with the Department seeking licensure as a resident life, including variable annuity, insurance agent. The online application form completed by Petitioner for the licensure at issue included the following question: 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 this question in the negative. On November 9, 2004, the Department sent a letter to Petitioner, requesting she provide, among other things, certified copies of court documents relating to her 1999 arrest in Hillsborough County, Florida, for child abuse. Petitioner found the above question to be confusing and in an attempt to be completely forthcoming, she sent the Department copies of two documents: (1) an August 9, 2004, letter to Petitioner from the Department of Corrections and (2) Petitioner's two-page printout regarding the Probation/Parole record. The Department received the referenced documents on November 23, 2004. Petitioner's criminal history established a November 18, 1999, arrest on two felony counts of aggravated child abuse. Petitioner had used an electric cord to spank her daughter as punishment for stealing and had left marks on the child as a result. The two-count information was filed in the Thirteenth Judicial Circuit, Hillsborough County Circuit Court, Case No. 99-20373, on January 27, 2000. On December 13, 2000, Petitioner entered a plea of guilty to one felony count of child abuse, as set forth in Count II of the information, and the second count pending against Petitioner was nolle prossed. The disposition of the case was that adjudication of guilt be withheld on the one felony count of child abuse and that Petitioner be placed on four years probation and required, inter alia, to complete parenting and anger management classes, which she did. Circumstances that resulted in Petitioner's plea involved her method of disciplining her daughter. Petitioner was born and grew up in Haiti and her method of punishment, spanking her daughter with electric cord, is culturally accepted. Spanking with electric cord leaves bruises and marks on the child spanked. Petitioner's testimony indicates that she learned through her anger management classes that the Haitian method of punishment is not considered appropriate, and other nonphysical methods would bring about desired results. Petitioner now has four children. She is employed by Lakeshore Villas, a nursing home where she is responsible for caring for elderly persons, as a full-time Certified Nursing Assistant (CNA). To acquire her CNA license from the Department of Health (DOH), Petitioner testified that she reported her criminal history to the DOH, and no disciplinary action was taken by the agency because of her plea. Even though the answer to the criminal history question on her application for licensure was not correct, circumstances evident from evidence of record reveals that Petitioner, in fact, disclosed her criminal history to the Department prior to the Department's specific inquiry about that history. She testified that her "no" answer on the application was because she spent only two days in jail. Subsequently realizing the possibility of a misunderstanding, Petitioner, before a request by the Department, mailed documents to the Department that disclosed her criminal history. Viewed in the totality of circumstances, Petitioner's voluntary disclosure of her criminal history negates any reasonable inference or conclusion that Petitioner made an intentional "[m]aterial misstatement, misrepresentation, or fraud in . . . [her] attempt to obtain the licensure or appointment," Subsection 626.611(2), Florida Statutes (2004). Likewise, the simple fact that Petitioner (through misunderstanding) incorrectly answered the application question does not show that Petitioner's conduct demonstrated a "lack of fitness or trustworthiness to engage in the business of insurance." Notwithstanding the foregone findings, there is no evidence that Petitioner was under the age of 21 years when the crime was committed. There is no written documentation from the prosecuting attorney evidencing the belief that Petitioner posed no significant threat to public welfare if licensed.
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 finding that Petitioner did not attempt to obtain the license at issue through material misstatement, misrepresentation or fraud, but that Petitioner has not met the 15-year mandatory waiting period applicable to her criminal history and is, therefore, ineligible for licensure pursuant to Subsection 626.611(14), Florida Statutes (2004), and denying Petitioner's request for relief. DONE AND ENTERED this 9th day of August, 2005, 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 9th day of August, 2005. COPIES FURNISHED: Dana M. Wiehle, Esquire Department of Financial Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399 Alia Baptiste Sossous 10310 Birdwatch Drive Tampa, Florida 33647 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Carlos G. Muniz, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307
The Issue The issue is whether the application of Petitioner for a Florida real estate broker’s license should be granted.
Findings Of Fact Petitioner is an individual residing in the State of Connecticut. Respondent is the state agency responsible for licensing real estate associates and brokers in the State of Florida, pursuant to Chapter 475, Florida Statutes. In June 2007, Petitioner submitted to Respondent an application to be licensed as a real estate broker in Florida. In his application, Respondent requested mutual recognition of his broker’s license in Connecticut. Petitioner held an active real estate broker’s license in Connecticut for at least 24 months during the preceding five years from the date of his application. Petitioner was first licensed in the State of Connecticut as a real estate salesperson from May 13, 1987 through July 28, 1989. Thereafter, Petitioner held an individual license as a real estate broker in Connecticut from July 28, 1989 through April 30, 1993, and again from June 22, 1993, until his real estate broker’s license with the State of Connecticut expired on March 31, 2006. In addition, Petitioner’s limited-liability company, America’s Home & Communities Real Estate, LLC, was licensed as a broker with the State of Connecticut, with Petitioner as the designated broker, on December 30, 2005. That license was active when Petitioner submitted his application with Respondent in June 2007, and expired, effective March 31, 2008. In his application, Respondent answered “No” to the following question: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest) to, even if you received a withholding of adjudication? This question applies to any violation of the laws of any municipality, county, state or nation, including felony, misdemeanor and traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, were paroled, or pardoned. If you intend to answer “NO” because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, or applicable law of another state, you are responsible for verifying the expungement or sealing prior to answering “NO.” YOUR ANSWER TO THIS QUESTION WILL BE CHECKED AGAINST LOCAL, STATE AND FEDERAL RECORDS. FAILURE TO ANSWER THIS QUESTION ACCURATELY MAY RESULT IN THE DENIAL OR REVOCATION OF YOUR LICENSE. IF YOU DO NOT FULLY UNDERSTAND THIS QUESTION, CONSULT WITH AN ATTORNEY OR CONTACT THE DEPARTMENT. After receiving Petitioner’s application, the Commission ordered a criminal record check from the Florida Department of Law Enforcement (FDLE). The results of that check showed that Petitioner had no Florida criminal record history, but the National/FBI Criminal History Record Response (FBI Report) ordered by FDLE as part of that check under Petitioner’s name listed the following information in the following format: ARRESTED OR RECEIVED 1968/08/05 AGENCY-POLICE DEPARTMENT HARTFORD (CT0006400) AGENCY CASE-46848-R94 CHARGE 1-B OF P CHARGE 2-DC CHARGE 3-WIL DAM TO PRIV PROP ARRESTED OR RECEIVED 1972/07/27 AGENCY-POLICE DEPARTMENT HARTFORD (CT0006400) AGENCY CASE-46848-R94 NAME USED-PARKER,EDWARD LEON CHARGE 1-INCITING TO RIOT CHARGE 2-ESCAPE FROM CUSTODY ARRESTED OR RECEIVED 1974/09/12 AGENCY-POLICE DEPARTMENT HARTFORD (CT0006400) AGENCY CASE-46848R94 NAME USED-PARKER, EDWARD L CHARGE 1-LARC #3 ARRESTED OR RECEIVED 1975/09/30 SID- CT00246406 AGENCY CASE-4684R94 NAME USED PARKER, EDWARD L CHARGE 1-DC CHARGE 2-POSS NARC CHARGE 3-CARRY GUN W/O PERMIT ARRESTED OR RECEIVED 1975/10/23 SID- CT00246406 AGENCY-POLICE DEPARTMENT HARTFORD (CT0006400) AGENCY CASE-46848R94 NAME USED-PARKER, EDWARD L CHARGE 1-L III BY POSS ARRESTED OR RECEIVED 1975/12/18 SID- CT00246406 AGENCY-POLICE DEPARTMENT HARTFORD (CT0006400) AGENCY CASE-46848R94 NAME USED-PARKER, EDWARD L CHARGE 1-LARC IV CHARGE 2-CARRY DANG WPN CHARGE 3-INTERFERING W/POLICE ARRESTED OR RECEIVED 1976/01/27 SID- CT00246406 AGENCY-POLICE DEPARTMENT HARTFORD (CT0006400) AGENCY CASE-46848R94 NAME USED-PARKER, EDWARD CHARGE 1-INTERF W/PO CHARGE 2-DC * * * ARRESTED OR RECEIVED 1977/07/14 SID- CT00246406 AGENCY-POLICE DEPARTMENT WEST HARTFORD (CT0015500) AGENCY CASE-0786-77 CHARGE 1-ILL USE OF CREDIT CARD 31 CTS CHARGE 2-CRIM IMPERSONATION 31 CTS CHARGE 3-FORGERY 3RD DEG 31 CTS CHARGE 4-LARC 4TH DEG 31 CTS COURT- CHARGE-ILL USE OF CREDIT CARD 31 CTS SENTENCE- 09/01/77 PG 1YR 9/S ON EA CT 2YRS PROB CHARGE-CRIM IMPERSONATION 31 CTS SENTENCE- NOLLED CHARGE-FORGERY 3RD DEG 31 CTS SENTENCE-NOLLED CHARGE-LARC 4TH DEG 31 CTS SENTENCE-NOLLED ARRESTED OR RECEIVED 1985/11/14 SID- CT00246406 AGENCY-POLICE DEPARTMENT BLOOMFIELD (CT0001100) AGENCY CASE-7206 NAME USED-PARKER, EDWARD L CHARGE 1-ASLT 3RD RECORD UPDATED 2007/12/07 ALL ARREST ENTRIES CONTAINED IN THIS FBI RECORD ARE BASED ON FINGERPRINT COMPARISONS AND PERTAIN TO THE SAME INDIVIDUAL. THE USE OF THIS RECORD IS REGULATED BY LAY. IT IS PROVIDED FOR OFFICIAL USE ONLY AND MAY BE USED ONLY FOR THE PURPOSE REQUESTED. The preamble to the above-recited FBI Report provides: THIS RECORD IS SUBJECT TO THE FOLLOWING USE AND DISSEMINATION RESTRICTIONS UNDER PROVISIONS SET FORTH IN TITLE 28, CODE OF FEDERAL REGULATIONS (CFR), SECTION 50.12, BOTH GOVERNMENTAL AND NONGOVERNMENTAL ENTITIES AUTHORIZED TO SUBMIT FINGERPRINTS AND RECEIVE FBI IDENTIFICATION RECORDS MUST NOTIFY THE INDIVIDUALS FINGERPRINTED THAT THE FINGERPRINTS WILL BE USED TO CHECK THE CRIMINAL HISTORY RECORDS OF THE FBI. IDENTIFICATION RECORDS OBTAINED FROM THE FBI MAY BE USED SOLELY FOR THE PURPOSE REQUESTED AND MAY NOT BE DISSEMINATED OUTSIDE THE RECEIVING DEPARTMENT, RELATED AGENCY OR OTHER AUTHORIZED ENTITY. IF THE INFORMATION ON THE RECORD IS USED TO DISQUALIFY AN APPLICANT, THE OFFICIAL MAKING THE DETERMINATION OF SUITABILITY FOR LICENSING OR EMPLOYMENT SHALL PROVIDE THE APPLICANT THE OPPORTUNITY TO COMPLETE, OR CHALLENGE THE ACCURACY OF, THE INFORMATION CONTAINED IN THE FBI IDENTIFICATION RECORD. THE DECIDING OFFICIAL SHOULD NOT DENY THE LICENSE OR EMPLOYMENT BASED ON THE INFORMATION IN THE RECORD UNTIL THE APPLICANT HAS BEEN AFFORDED A REASONABLE TIME TO CORRECT OR COMPLETE THE INFORMATION, OR HAS DECLINED TO DO SO. AN INDIVIDUAL SHOULD BE PRESUMED NOT GUILTY ON ANY CHARGE/ARREST FOR WHICH THERE IS NO FINAL DISPOSITION STATED ON THE RECORD OR OTHERWISE DETERMINED. IF THE APPLICANT WISHES TO CORRECT THE RECORD AS IT APPEARS IN THE FBI’S CJIS DIVISION RECORDS SYSTEM, THE APPLICANT SHOULD BE ADVISED THAT THE PROCEDURES TO CHANGE, CORRECT OR UPDATE THE RECORD ARE SET FORTH IN TITLE 28, CFR, SECTION 16.34. - FBI IDENTIFICATION RECORD – WHEN EXPLANATION OF A CHARGE OR DISPOSITION IS NEEDED, COMMUNICATE DIRECTLY WITH THE AGENCY THAT FURNISHED THE DATA TO THE FBI. On March 5, 2008, Respondent wrote to Petitioner and asked Petitioner to provide a copy of the arrest reports and the final outcome for each of the arrests detailed in the FBI Report. Of the 9 reported arrests listed under Petitioner’s name on the FBI Report, only one, number 8 from July 14, 1977, indicates that Petitioner was convicted of a crime. According to that report, Petitioner was sentenced on September 1, 1977, for 31 counts of illegal use of a credit card. According to the report, the other charges listed under arrest number 8 (multiple counts for criminal impersonation, forgery, and larceny) were not prosecuted. Petitioner disputes that he was ever arrested on July 14, 1977, or convicted of any of the charges listed in item number 8. In correspondence and in his testimony at the final hearing, Petitioner pointed out that the record for July 14, 1977, is not supported by fingerprints, and further, that he is not white, as indicated in the police records for that arrest. Petitioner also disputes that he was ever incarcerated. Upon his request to obtain court records related to the disputed conviction, Petitioner was advised by the Records Center for the Superior Court of the State of Connecticut that the court records had been destroyed. At the final hearing, Petitioner submitted certified copies of correspondence from Connecticut’s Superior Court’s Record Center as evidence that the records had been destroyed. Nevertheless, in order to clear his name, Petitioner sought a pardon from the State of Connecticut for the listed conviction for illegal use of a credit card, as well as two other matters listed as arrests (apparently, the “interfering with police” charge listed in item number 6 and the “larceny” charge under item number 8) that Petitioner disputed. On June 8, 2009, Petitioner faxed to Respondent correspondence indicating Petitioner’s efforts to obtain records and clear his name. Included in the correspondence were three letters dated February 17, 2009, from Connecticut’s Superior Court Record Center indicating that records from the disputed charges had been destroyed; Petitioner’s letter dated February 18, 2009, to Connecticut’s Board of Pardons & Paroles requesting assistance in getting a pardon for the alleged crimes; and a letter dated June 3, 2009, to Petitioner from Connecticut’s Board of Pardons & Paroles conditionally granting Petitioner a pardon, pending confirmation from several criminal justice agencies that “the records of your conviction(s) have been erased, which takes at least 8 months.” On June 11, 2009, Petitioner sent to Respondent by facsimile three letters of reference which reflect positively upon Petitioner’s character. By letter dated July 17, 2009, Respondent advised Petitioner that his application would be considered at Respondent’s meeting scheduled for August 12, 2009, in Orlando, Florida, and that Petitioner should forward any additional letters of recommendation or other supporting documentation no later than July 20, 2009. Petitioner’s application file indicates that Respondent received a positive recommendation for Petitioner on July 23, 2009, from a real estate broker in Connecticut, and that, on July 24, 2009, Petitioner forwarded a letter to Respondent from the Greater Hartford Association of Realtors, Inc., stating that Petitioner “is a member in good standing with the Greater Hartford Association of Realtors® since December 11, 1998,” indicating that Petitioner’s local, state and national dues have been paid, and advising that Petitioner completed a code of ethics course on December 12, 2008. Petitioner appeared, pro se, and gave testimony at the August 12, 2009, meeting where his application was considered. Following that meeting, Respondent entered a Notice of Intent to Deny, which stated a number of grounds for the intent to deny Petitioner’s application. Respondent’s Notice of Intent to Deny recited Key findings of fact 1, 2, 4, and 7, and Key conclusions of law B, C, E and M, as grounds for its proposed denial of Petitioner’s application. Those Key findings and conclusions, as set forth on the Key for License Denials, attached to Respondent’s Notice of Intent to Deny, are as follows: Crimes in Application. Applicant’s criminal record is as revealed in application. Failure to disclose. Applicant’s complete criminal record was not revealed in application. 4. Unpersuasive Testimony. Applicant’s testimony or evidence in explanation/mitigation was unpersuasive. 7. No Showing Rehabilitation. Applicant has not had sufficient time free of government supervision to establish rehabilitation. Failing to demonstrate: honesty, truthfulness, trustworthiness and good character, a good reputation for fair dealing, competent and qualified to conduct transactions and negotiations with safety to others. 475.17(1)(a), 475.181 F.S. Having engaged in conduct or practices which would have been grounds for revoking or suspending a real estate license. 475.17(1)(a), 475.181, F.S. E. Guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence or breach of trust in any business transaction; 475.25(1)(b), 475.181 F.S. M. The Commission concludes that it would be a breach of its duty to protect the health, safety and welfare of the public to license this applicant and thereby provide him easy access to the homes, families or personal belongings of the citizens of Florida. 455.201, F.S. In sum, all of Respondent’s reasons to deny Petitioner’s application for a broker’s license are related to a finding that Petitioner was convicted of crimes and failed to disclose them on his application. The evidence, however, does not support the grounds recited in Respondent’s Notice of Intent to Deny. Other than Petitioner’s disputes of, and eventual pardon from, three crimes listed on the pardon obtained on May 27, 2009, there is no evidence that Petitioner was ever convicted of a crime. At the final hearing, Petitioner admitted that he grew up in a rough neighborhood and had negative contacts with law enforcement for a number of years. He apologized for any appearance that he tried to deceive Respondent, but explained that although he had been arrested in the past, he has never been incarcerated. Petitioner further explained that he did not believe that he had a record because of the passage of time. In addition, at the final hearing, Petitioner submitted evidence that he has received a full pardon for the listed (and disputed) conviction for illegal use of a credit card.3/ It has been over 20 years since Petitioner has had any negative contact with law enforcement.
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 that Petitioner was not dishonest in his application to be licensed as a real estate broker in Florida submitted in June 2007, but denying that application, without prejudice, consistent with the terms of this Recommended Order. DONE AND ENTERED this 13th day of April, 2010, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 13th day of April, 2010.
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.
