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 Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: As of the hearing date of March 15, 1982, the commission had not prepared subject-matter indices of its Orders entered after January 1, 1975 resulting from: petitions for rulemaking; hearings held pursuant to Section 120.57, Florida Statutes. determinations relating to presumptive and effective parole release dated (parole grants) or parole revocations; petitions for a declaratory statement issued prior to approximately July of 1981, or other final orders not otherwise defined. Other than as referred to in paragraph 2 of these Findings of Fact, the Commission has not produced indices of its current 1981 orders. (TR. 9) Neither the Commission's General Counsel nor the Planning and Evaluation Director, both of whom receive their assignments of duties and responsibilities from the Commission, have been directed by the Commission to prepare a subject- matter index of final Commission orders issued pursuant to hearings held under Section 120.57, Florida Statutes, or petitions for rulemaking. (TR. 34, 35, 37 & 104) The Commission's General Counsel and Planning and Evaluation Director would prepare such indices only if directed to do so by the Commission. (TR. 35 & 104) The General Counsel's office has been directed by the Commission to prepare an index of declaratory statements issued by the Commission. With the aid of an assistant counsel, the Commission's General Counsel has prepared a subject-matter index of declaratory statements purportedly issued as of September 30, 1981. (Appellant's Exhibit 3) This index utilizes key words or topics, without further citation to statutes or rules. It includes all declaratory statements issued by the Commission during the approximately ninety- day period prior to September 30, 1981. The General Counsel, who has been in that position since March of 1980, was aware of no other declaratory statements issued by the Commission or petitions for a declaratory statement submitted to the Commission. (TR. 108) A draft of an update to the subject-matter index for declaratory statements issued after September 30, 1981 has been prepared and was expected to be in final form within thirty days of March 15, 1982. The Office of General Counsel will prepare and produce an updated subject-matter index of declaratory statements on at least a quarterly basis. (TR. 101-103) As indicated by the opinions rendered in the case of Turner v. Florida Parole and Probation Commission, 379 So.2d 148 (Fla. 1st DCA, 1980) aff'd, 389 So.2d 1181 (Fla. 1980), and various issues of the Florida Administrative Weekly, 1/ petitions for a declaratory statement have been received and ruled upon by the Commission prior to July 1, 1981. As noted above, the witnesses presented by the Commission to testify in this proceeding had not been assigned the task of preparing subject-matter indices for orders on petitions for rulemaking, orders following hearings conducted pursuant to section 120.57, Florida Statutes, and other final agency decisions which are equivalent to "orders". Involved in the preparation such indices would be a review of the file and a development of a subject heading or headings for each such order. The Commission presented no further evidence regarding the practicability or cost of preparing such indices or any lack of public benefit to be derived from access to such indices. Absent such evidence, it is specifically found that it would not be impracticable, unduly time- consuming, or cost-prohibitive for the Commission to prepare or produce subject- matter indices of its Orders resulting from petitions for rulemaking, Section 120.57 hearings or other final agency decisions which are equivalent to "orders." Whatever inconvenience such indices cause the Commission in terms of time and costs of preparation are far outweighed by the public benefit to be derived from accessibility to the Commission's interpretations of the law and development of agency practice and incipient policy. The Commission has failed, without sufficient justification, to comply with the Court's mandate and Order dated September 3, 1981, to "forthwith prepare and report that it has prepared indices of its declaratory statements and of petitions to the Commission for rulemaking" and has further failed to comply with its own approved proposal to produce induced of current 1981 orders on or before November 30, 1981. Because of a change in the statutes effective January 1, 1979, with respect to the granting of parole and the establishment of presumptive and effective parole release dates, orders of the Commission entered prior to that date have no relationship to orders entered after that date. Therefore, the public would gain no present benefit from an index of parole granting orders entered prior to January 1, 1979. The appellant, Florida Institutional Legal Services, Inc. , has withdrawn its request to have the Commission index parole granting orders issued from January 1, 1975 through December 31, 1978. (TR. 12 & 13) As to the period between January 1, 1979 through December 31, 1980, it would be beneficial to the public to have access to an index of only those parole granting orders which contain a reference to a constitutional provision, statute or rule, since such orders may contain the agency's interpretation of the law or incipient policy. The parole revocation process has not changed since 1975. It would be beneficial to the public to have access to all those parole revocation orders of the Commission entered since 1975 which contain a reference to a constitutional provision, statute, or a rule. Jay D. Farris, the Commission's Planning and Evaluation Director, has been appointed by the Commission to be in charge of the indexing project as it relates to parole granting orders (which includes Commission determinations on presumptive and effective parole release dates) and parole revocation orders. This assignment is in addition to his other duties which include the drafting of all legislation for the Commission, lobbying, acting as a part-time clerk of the Commission, preparing complex case analysis for the Commission, the drafting of proposed rules, holding public hearings for proposed rules and training Commission hearing examiners when there are rule changes. Mr. Farris has only a secretary on his staff. (TR. 28, 29) Since the District Court entered its opinion on November 26, 1980 (petition for rehearing denied on January 8, 1981) reported at 391 So.2d 247, the Commission, through Mr. Farris, has conducted an investigation into the number of Commission actions which could possibly fall within the parameters of the Court's ruling regarding the prepartion of subject-matter indexing. It was determined that a minimum of 600 actions per week would fall under the purview of that decision. A private indexing firm would charge approximately $1.00 per action to review the data and produce an index. (Tr. 16) Determining that this cost would be prohibitive, Mr. Farris has been working with the Bureau of Management Information Systems (MIS) of the Department of corrections to prepare a computer program which would meet the Commission's indexing requirements. By statute, the department of Corrections maintains the sole offender-based information and records system for the joint use of the department of Corrections and the Commission. Section 20.315(20) Florida Statutes. The function of the Bureau of Management Information Systems of the Department of Corrections is the automation of departmental records for ease of retrieval and management information. To accomplish this function, the Department of Corrections shares a computer with the Supreme Court of Florida, with the Department owning 67 percent and the supreme Court owning 33 percent of the computer. The computer itself is located in the basement of the Supreme Court, but the Department of Corrections has approximately 40 terminals located in its headquarters in Tallahassee and in excess of 100 terminals located throughout the State. The computer maintains a complete offender record of each Florida inmate. This record includes the inmate's date of birth, race, sex, the offense for which he or she is incarcerated, other offenses, gain time accrued, presumptive, projected and current release dates and FDLE and FBI numbers. Without the prior preparation of a specific program by the Bureau of MIS, it is not possible to retrieve from the computer any generic information on Florida inmates. For example, while the computer presently has the ability to produce a screen view of the record of any particular inmate, it cannot search through its entire data base and produce screen printouts of the names of all those inmates meeting any particular criteria, such as those serving a mandatory 25-year capital life sentence. (TR. 91-94) The records of 53,700 offenders are presently contained in the computer's data base, with some 24,000 records being for active inmates. (TR. 93) In December of 1981, the Commission, through Mr. Farris, entered into discussions with Reynold L. Ferrari, the Chief of the Bureau of MIS for the Department of Corrections, and his staff regarding the subject of utilizing the computer system to produce and maintain a subject-matter index for Commission orders concerning the granting and/or revocation of parole. A basic technical problem presently exists in the computer program utilized by the Department of Corrections. The computer is only designed to handle single actions taken by the Commission on any particular day. Often, multiple separate actions by the Commission are taken in one day on a particular inmate, and the present computer programming does not allow multiple entries at one point in time. This problem is one of systems design and involves more than reprogramming. It involves a definition of a new data base that will have to be created for the Commission, and then programming it to provide the input capability to add additional data and defining the output reports that are required. (TR. 90) Once a systems design is accomplished and all the relevant data is in the computer, it will take about three weeks or less to produce a program that would result in a printout format similar to that developed and utilized by the Commission in its declaratory statement index. (Appellant's Exhibit 3, TR. 79, 84, 85) The Commission has not specifically or formally requested the Department of Corrections to resolve the multiple-action problem. It has simply asked the Department to look into the problem and estimate the length of time it would take to accomplish certain results. (Appellee's Exhibit 2) Mr. Ferrari has informed the Commission that he would need an exact and specific definition of the output required by the Commission and would work with the Commission and its staff in achieving the desired goals. (Appellee's Exhibit 3, TR. 89, 90) The answer to how long it would take to redesign the system is dependent upon a detailed definition of the information needed by the Commission. (TR. 98) A detailed statement of what is required by the Commission has not been provided to the Bureau of MIS. (TR. 99) The only evidence adduced by the Commission as to its time frame for providing the format the Commission requires was the statement of Mr. Farris that "I would like to have had it done some time ago, but just as soon as I possibly can. This has received a great deal of priority, I must say." (TR. 72) The Commission did make a budget request for two new positions--a data entry operator and a clerk typist III--in order to comply with indexing requirements and to augment their data input ability. (TR. 74, Appellee's Exhibit 4) Presently, the only information being provided by the Comission to the computer data base is current, single Commission action regarding presumptive parole release dates (PPRD) and the inmate's next interview date. Included within the PPRD information presently being put into the computer is a code which makes reference to aggravating factors contained in the Commission's rules. (TR. 69, 70) Prior Commission's actions regarding PPRDs have not been put into the computer data base. The manner in which this information will be retrieved or the printout format has not been developed yet. (TR. 52, 53) It is expected that the format will be similar to that developed for the index of declaratory statements. (Appellant's Exhibit 3). The Commission has not requested the department of Corrections to produce any particular format for a subject-matter index of parole granting or parole revocation orders (TR. 53, 54) and no evidence was tendered as to when such a request would be made. Mr. Farris, the person responsible for such indices, could give no specific date for the production of such indices (TR. 38) While the Commission has not prepared a final proposed style of indexing for Commission actions regarding presumptive and effective parole release and parole revocations, it is expected that such indices would be broken down by topic similar to that prepared by the Commission for declaratory statements. It is not known whether such indices will include citations to constitutional provisions, statutes or rules. (TR. 64) According to Mr. Farris, "the specification of the nature of the index is yet to be determined." (TR. 66) RECOMMENDATIONS TO THE COURT The undersigned, as the appointed commissioner of the Court, has been charged with the responsibility to take evidence and report recommendations to the Court with respect to a determination of the following issues: The practicability of the Commission preparing indices of its orders entered from 1975 through 1980; and The reasonableness of the schedule proposed by the Commission in light of the proposed contents of the indices, the cost of preparation, and the public benefit to be gained therefrom. Prior to addressing those issues, it must first be noted that, with the exception of preparing a subject-matter index for a portion of its declaratory statements, the evidence adduced at the hearing illustrates that the Commission has made absolutely no effort to produce indices of its current 1981 orders. This action is contrary to the Court' s original mandate as well as Paragraphs 1 and 2 of the Court's Order entered on September 3, 1981. There has been absolutely no evidence adduced in the proceedings before the undersigned as to a legitimate reason or justification for such noncompliance with the Court's directives. Indeed, the evidence illustrates that the Commission has simply not directed its attention to this important matter. Any problems attendant to the computer system utilized by the Department of Corrections should have absolutely no effect upon the ability of the Commission to immediately prepare subject- matter indices for all its Orders resulting from petitions for a declaratory statement, hearings conducted pursuant to Section 120.57, Florida Statutes, petitions for rulemaking or other matters which result in the issuance of the functional equivalent of an "order" as it is defined in Section 120.52(9). Florida Statutes. Turning now to the issues addressed in Paragraph 3 of the Court's September 3, 1981 Order, it is concluded from the evidence adduced at the hearing that it would not be impracticable or cost-prohibitive for the Commission to immediately prepare indices, whether arranged by subject matter and/or citations to constitutional, statutory or regulatory provisions, for its Orders entered from 1975 through 1980 in those matters arising from: petitions for a declaratory statement, proceedings conducted pursuant to Section 120.57, Florida Statutes, petitions for rulemaking, and cases, such as the instant proceeding, which result in the functional equivalent of an "order" as defined in Section 120.52(9), Florida Statutes. The public benefit to be gained from such indices is obvious since such Orders are indicative of an agency's interpretation of the laws under which it operates and can indicate incipient agency policy as developed on a case-by-case basis. The Commission has made no good-faith effort or diligent attempt to comply with its own schedule for the accomplishment of the preparation of indices for the Orders listed above and neither the contents, costs, or practicability of preparing such indices justify the time frame proposed. With respect to the remaining Orders issued by the Commission between 1975 and 19890--those involving parole grants and parole revocations--it is concluded that an index of Orders on parole grants entered prior to 1979 would not be beneficial to the public due to the drastic change in the law which became effective on January 1, 1979. It is further concluded that only those post-1974 Orders concerning parole parole grants which contain a reference or citation to a constitutional, statutory or regulatory provision would contain information beneficial to the public. Therefore, an index limited to such Orders would satisfy the requirements of Section 120.53(2)(c), Florida Statutes. The Commission has failed to adduce evidence that the preparation of a subject-matter and/or citator index for its Orders entered after January 1, 1975 involving parole revocation and its Orders entered after January 1, 1979 involving parole grants would be either impracticable or cost-prohibitive. While the computer system will need to be redesigned to accomplish multiple- entries in cases where the Commission takes more than one action on the same date regarding a single inmate, it is possible to make this change. The Bureau of Management Information Systems stands ready and able to effectuate such a design change and is simply waiting for a specific and detailed definition of the information sought to be retrieved by the Commission. Again, from the evidence adduced at the hearing, it appears that the Commission has simply made no diligent or good-faith effort to determine the format of the required indices or the information it desires to accomplish the indexing task. In summary, it is concluded that the Commission, along with the joint assistance and efforts of the Department of Corrections, presently has or can quickly obtain the capability of preparing indices of all Orders entered from 1975 through the present date. The Commission presented no evidence that the preparation of such indices would be cost-prohibitive, or that, other than its lack of attention to the matter, the contents of the indices would make the task unduly time-consuming or would otherwise render the indexing requirement prohibitive. With the exception of pre-1979 parole granting Orders and Orders granting or revoking parole which contain no reference to a constitutional, statutory or regulatory provision, the public will benefit from an index of, and consequently access to, all Orders of the Commission. In order to accomplish the indexing task, the Commission need only render a determination of the format for each index and provide the staff to either review the files containing the Commission Orders or provide the necessary input to the computer system so that the required information can be retrieved from the computer. The evidence presented by the Commission illustrates that not only has the Commission failed to adhere to its own proposed schedule of compliance with the law, the schedule proposed is unreasonably lengthy in terms of the contents, cost and information presently available, as well as the public benefit to be derived from the production of the indices. Respectfully submitted and entered this 4th day of June, 1982, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 1982.
The Issue Whether Respondent committed the violations alleged in the Amended Administrative Complaint issued against him, as modified at hearing, and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, including the parties' prehearing stipulation filed October 21, 2004, the following findings of fact are made: Respondent is now, and has been since October 17, 1988, licensed as an insurance representative in the State of Florida holding 02-16, 02-18, and 02-40 licenses. His licensure identification number is A268617. In 2001, criminal charges were filed against Respondent in Orange County Circuit Court Case No. CR-01-2309/B. On or about February 20, 2002, Respondent submitted, in Orange County Circuit Court Case No. CR-01-2309/B, a verified Petition to Enter Plea of Guilty, which read as follows: My name is Robert Trueblood and I acknowledge that I am the Defendant charged in the above-styled criminal case[]. I am represented by a lawyer, Arthur L. Wallace, III. I wish to withdraw my plea of not guilty and plead guilty to: Count 2 - Sale of Unregistered Security and Count 3 - Sale of Security by Unregistered Agent. I understand that each of these counts is a third degree felony and each is punishable by up to five (5) years in the Department of Corrections and a $5,000.00 fine. I have told my lawyer all the facts and circumstances about the charges against me. I believe that my lawyer is fully informed on all such matters. My lawyer has counseled and advised me on the nature of each charge; on any and all lesser included charges; on all possible defenses that I might have in this cause; and all the penalties that might be imposed if convicted.[1] I understand that I may plead not guilty to any offense charged against me. If I choose to plead not guilty, the Constitution guarantees me the right to maintain that plea and (a) the right to a speedy and public trial by jury; (b) the right to see, hear and face in open Court all witnesses called to testify against me and to cross- examine said witnesses; (c) the right to use the power and process of the Court to compel the production of any evidence, including the attendance of any witnesses in my favor; (d) the right to have the assistance of a lawyer at all stages of the proceedings and to have one appointed for me if necessary; and (e) also the right to take the witness stand at my sole option; and if I do not take the witness stand I understand the jury, at my request, will be told that this may not be held against me. I also understand that by pleading guilty and admitting the truth of the charges against me, I am waiving all of the rights referred to in the above paragraph and the Court may impose the same punishment as if I had ple[]d not guilty, stood trial and been convicted. I know that if I plead guilty there will be no further trial of any kind, which means that by pleading guilty I waive my right to trial. I understand that some of the charges filed against me in this case may have occurred in whole or in part in Florida Counties other than Orange. However, I wish to resolve, in Orange County, all the charges filed in case number CR 01-2309 and do affirmatively waive my right to venue in other counties where the crimes may have occurred. I am 55 years of age. I have gone to school up to and including 5 y[ea]rs [of] college. I am not under the influence of any alcoholic beverage, drug or medicine at the time I sign this plea agreement. My physical and mental health is presently satisfactory. No one has made any promise, assurance or guarantee to me that I would receive any consideration in exchange for pleading guilty other than as set out in this plea agreement. I declare that no one has subjected me to any force, duress, threats, intimidation or pressure to compel or induce me to enter a plea of guilty. I am entering this plea with the understanding that I may serve every day of the sentence I am agreeing to in this plea agreement. Although I may have received advice or opinions as to the potential for some type of early release, I hereby acknowledge under oath that I have not relied upon those opinions or that advice as an inducement to enter this plea. I believe that my lawyer has done all that a competent attorney could to counsel and assist me. He has answered all my questions about this case to my satisfaction and I AM SATISFIED WITH THE ADVICE AND HELP HE HAS GIVEN ME. I understand that if I am not a United States citizen, this criminal proceeding could cause me to be deported to the country of my origin. I understand that if I fail to pay any fines or costs as ordered by the Court, there will be a lien placed against me. I understand that I waive my right to appeal any rulings of the Court previously made in this case except as specifically stated herein. I understand that I have the right to appeal the judgment and sentence of the Court within thirty (30) days from the date of sentence. I understand that any appeal must be in writing. I understand that if I wish to take an appeal and cannot afford an attorney to help in my appeal, the Court will appoint an attorney to represent me for that purpose. I request the Court to accept my plea, knowing that upon it being accepted by the Court that nothing will remain to be done except for the Court to enter its judgment and sentence. I offer my plea freely and voluntarily and of my own accord and with full understanding of all matters set forth in the Information and in this Petition, the Certificate of my lawyer and Plea Agreement which are contained herein. Though I may have been assisted by my lawyer, I certify that the statement and representations herein above made are my own and have not been suggested directly or indirectly by him or anyone else, and that the decision to plead guilty was made by me. I further represent that my attorney has advised me of considerations bearing on the choice of which plea to enter and the pros and cons of such plea, the likely results thereof as well as any possible alternative which may be open to me. I represent to the Court that the plea bargain attached hereto was negotiated by my attorney with my full and complete consent thereto and that the decision to plead guilty was made by me. I fully concur in the efforts of my attorney and agree to the terms of the bargained plea. The Plea Agreement between Respondent and the prosecutor (which was referenced in Respondent's Petition to Enter Plea of Guilty) read as follows: The Defendant, and the State, pursuant to the provisions of Fla. R. Crim. P. 3.171, agree and stipulate to recommend to the Court the following resolution of the above- styled case: Defendant agrees to plead guilty as charged to Count 2 - Sale of Unregistered Security and Count 3 - Sale of Security by Unregistered Agent. The State will stand silent as to the issue of adjudication. The Defendant shall be sentenced to five (5) years of supervised probation with all standard conditions, as well as the following special conditions: The Defendant shall testify truthfully when requested by the State, without the necessity of subpoena, in reference to any and all matters related to the facts and circumstances surrounding the Defendant's charges in this case. The Defendant shall pay restitution in an amount to be determined. The Defendant agrees the amount of restitution owed is not limited to the transactions to which he is entering this plea. Defendant shall pay court costs as directed by the Court. Defendant shall be required to pay $3,5000.00 for costs of prosecution to the Office of Statewide Prosecution, Department of Legal Affairs for the State of Florida. The Defendant shall pay $500.00 to the Florida Department of Law Enforcement and $500.00 to the Office of Comptroller, Department of Banking and Finance for costs of investigation involved in this case. The Defendant shall have no contact, directly or indirectly, with any of the witnesses in this case. [4]. If the Defendant violates any law while awaiting sentencing or if he fails to appear for sentencing as ordered by the Court, the State shall not be bound by this agreement and may recommend any lawful sentence and the Court may impose any sentence permissible under the law. The Defendant shall not be entitled to withdraw his plea of guilty in this case. [5]. The State agrees to nolle prosequi Count 4 - Sale of Unregistered Security, Count 5 - Sale of Security by Unregistered Agent, Count 6 - Sale of Unregistered Security, and Count 7 - Sale of Security by Unregistered Agent. [6]. If the sentence agreed upon in this plea agreement is a departure from the sentencing guidelines, both the State of Florida and the Defendant agree not to appeal this sentence. [7]. Should the Defendant violate his community control or probation, he affirmatively agrees that he shall be sentenced pursuant to the sentencing guidelines. [8]. The Defendant affirmatively agrees not to request that the Court impose a sentence lower than the sentence outlined above. [9]. Both the State and the Defendant understand that the trial judge has the ultimate responsibility for the sentence the defendant actually receives and that the recommendations made above are not binding on the trial judge unless adopted thereby. The Defendant shall not be entitled to withdraw his pleas of guilty in the event that the trial judge imposes a sentence different from that recommended above. On February 20, 2002, after Respondent entered his guilty pleas in Orange County Circuit Court Case No. CR-01- 2309/B to Count 2 (alleging the "Sale of Unregistered Security," in violation of Section 517.07, Florida Statutes) and Count 3 (alleging the "Sale of Security by Unregistered Agent," in violation of Section 517.12(1), Florida Statutes), the court accepted the pleas, withheld adjudication, and placed Respondent on two concurrent five-year terms of probation, with the special condition that he "serve 1 Day[] in the Orange County Jail, with 1 Day[]'s credit for time served." Other special conditions, including those described in the Plea Agreement set out above, were also imposed.2 Respondent failed to notify Petitioner in writing within 30 days after entering his guilty pleas in Orange County Circuit Court Case No. CR-01-2309/B that he had entered the pleas. Respondent has previously been disciplined by Petitioner's predecessor, the Department of Insurance (DOI). By Consent Order issued November 1, 2000, in DOI Case No. 31036-00-AG, Respondent was suspended for a period of three months. The Consent Order approved the parties' Settlement Stipulation for Consent Order, which provided, in pertinent part, as follows: * * * The Department has caused to be made an investigation of the Respondent and other individuals involved in the marketing and promotion of Legends Sports, Inc. As a result of that investigation, the Department alleges that the Respondent induced individuals to invest in Legends Sports, Inc. and represented that the investment was guaranteed by a surety insurer. However, the investment was not a good investment, the purported surety insurer did not exist or was not authorized to conduct business in this state, and the investment resulted in substantial losses to individual investors. The investigation resulted in a multi- count criminal information (hereinafter referred to as the "criminal actions") being filed against Respondent and other Legends Sports agents in the Seminole County Circuit Court in Sanford, Florida, Case No. 98- 4569CFW. Specifically, Respondent was charged with the following felonies: sale of unregistered securities, sale of securities by an unregistered dealer and unlawful transaction of insurance. Respondent has entered or will enter a plea of guilty to lesser included charges which are first degree misdemeanors. As a result of the plea, the Court in the criminal action, among other things, placed the Respondent on probation. As a condition of probation, the Court ordered the Respondent to pay restitution to the individuals who invested in Legends Sports through the Respondent and suffered financial losses as a direct consequence of such investments. The restitution amount represents the commissions received by the Respondent (hereinafter referred to as the "restitution order in the criminal action"). The Court in the criminal action also ordered that a criminal restitution judgment, that is not dischargeable in bankruptcy, be entered for the full amount of the promissory notes sold by the Respondent, unless a judgment has already been entered in that amount in favor of the Receiver for Legends Sports. Respondent denies knowingly misrepresenting the Legends Sports investment. * * * 13. This Settlement Stipulation for Consent Order is subject to the approval of the Insurance Commissioner. Upon his approval, and without further notice, the Insurance Commissioner may issue a Consent Order providing for the following: Incorporation by reference of the terms and conditions of this Settlement Stipulation For Consent Order. Respondent's licensure and eligibility for licensure as an insurance agent within the state are SUSPENDED for a period of three (3) months pursuant to section 626.641(1), Florida Statutes. The suspension shall take effect on 11/1/2000. * * * Approximately a year earlier, by Consent Order issued July 12, 1999, in DOI Case No. 99-CE58350, Respondent was fined $250.00 for failure to comply with continuing education requirements. Respondent's health has deteriorated in recent years. He has "been in the hospital several times with . . . heart [problems]."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner issue a Final Order finding Respondent guilty of twice violating Section 626.621(8), Florida Statutes, as alleged in Counts I and II of the Amended Administrative Complaint, and of violating Section 626.621(11), Florida Statutes, as alleged in Count III of the Amended Administrative Complaint, and suspending his licenses for nine months for having committed these violations. DONE AND ENTERED this 7th day of December, 2004, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 2004.
Findings Of Fact By application dated April 29, 1988, Petitioner applied to Respondent for a Florida real estate salesman's license. Petitioner disclosed on the application, in response to question six, that he had been convicted of second degree murder in the killing of his wife on October 10, 1969, during a domestic dispute. He was sentenced to 15-20 years and paroled after seven years in December, 1977. He successfully completed his parole on January 16, 1980. Petitioner also disclosed on his application that he was arrested for the solicitation of a prostitute on November 18, 1987, in Daytona Beach. By a Pre-Trial Intervention Agreement entered into by Petitioner and the State Attorney's Office, the parties agreed that the case would be dropped if Petitioner did not violate any other criminal laws for the next six months expiring on September 10, 1988. Petitioner has not violated the provisions of the Pre-Trial Intervention Agreement and, presumably, the solicitation case has been dropped. Petitioner was also arrested and convicted of either driving under the influence or disorderly conduct in Michigan. This conviction, which resulted in a $50 fine, was not disclosed on the application.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered denying Petitioner's application for a real estate salesman's license. DONE and RECOMMENDED this 5th day of December, 1988, in Tallahassee, Florida. ROBERT E. MEALE 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 5th day of December, 1988. COPIES FURNISHED: Gifford Lorimer Crippen 4018 North Harbor City Boulevard Melbourne, Florida 32935 Manuel E. Oliver, Esquire Assistant Attorney General Suite 212, 400 West Robinson Street Orlando, Florida 32801 Darlene F. Keller Division Director 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street 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
Findings Of Fact By Administrative Complaint filed May 28, 1986, Petitioner, Department of Insurance and Treasurer (Department) charged that Respondent, Theodore Riley (Riley), while employed as an adjuster by United States Fidelity and Guaranty Group, (USF&G), did wrongfully obtain the sum of $400 from a workmens compensation claimant to assure that USF&G would not contest the claim (Count I). The complaint further alleged that on September 16, 1985, Riley entered a plea of nolo contendere to an information charging a violation of Section 812.014, Florida Statutes, a felony of the second degree and a crime involving moral turpitude, and that the court withheld adjudication and placed Riley on 18 months probation (Count II). The Department concluded that such conduct demonstrated, inter alia, a lack of fitness or trustworthiness to engage in the business of insurance; fraudulent or dishonest practices in the conduct of business under the license or permit; and, a plea of nolo contendere to a felony involving moral turpitude. Section 626.611(7),(9) and (14), Florida Statutes. At hearing, Riley entered a plea of no contest to Count II of the Administrative Complaint in exchange for the Department's dismissal of Count I of the Administrative Complaint and the Department's agreement that the penalty imposed would be limited to a suspension of his eligibility for licensure for a period of two (2) years. While not conditioning his agreement to a two year suspension, Riley did request that the Department consider crediting the time he has been on probation against the two year suspension. The evidence shows that Riley was arrested and charged with the subject offense in March 1985, that he entered a plea of nolo contendere, that adjudication of guilt was withheld, and that he was placed on probation for 18 months commencing September 16, 1985. As a special condition of probation, Riley was ordered not to apply for an adjuster's license during the term of his probationary period. Consistent with the terms of his probation, Riley has not renewed his adjusters' license. The Department's records reflect that Riley's license was last due for renewal, but not renewed, on April 1, 1985.
The Issue The issue presented for decision in this case is whether the Petitioner is eligible for an exemption from disqualification to work in a position of special trust pursuant to the terms of Section 435.07, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: Petitioner has worked as a certified nursing assistant at Highland Pines Rehabilitation and Nursing Center in Clearwater for the past six years. A recommendation letter from the Director of Nursing characterizes Petitioner as an excellent, reliable, and trustworthy employee. Petitioner is disqualified from working in a position of special trust as a result of a 1991 conviction for grand theft under Section 812.014, Florida Statutes. Petitioner was also been convicted of petit theft in the same case. Both crimes involved passing forged checks. She was initially given a sentence of four years probation, but was imprisoned in 1992 for violation of her probation conditions. In 1996, Petitioner was found guilty of welfare fraud in violation of Section 409.325(1), Florida Statutes (1995). She was placed on community control for a period of one year, to be followed by three years of probation. A letter from the Department of Corrections indicates that Petitioner’s probation is now scheduled to terminate on April 18, 2000, with a possibility of early termination provided all conditions have been satisfied. Petitioner has not violated the terms of her probation on this conviction. Petitioner testified that her criminal activities were due to “financial difficulties” and drug use. She testified that she now believes herself to be rehabilitated and ready to put her past behind her. Petitioner testified that she has not entered into any sort of structural rehabilitation program or received counseling in connection with her rehabilitation efforts. Her testimony was essentially that she has turned her life around on her own. Petitioner applied to Respondent for an exemption. A hearing was held by the Exemption Review Committee on February 17, 1998. The Exemption Review Committee recommended to the District Administrator that the requested exemption be denied. After reviewing the record and the Exemption Review Committee’s recommendation, the District Administrator concurred with the committee’s recommendation and denied Petitioner’s request by letter dated March 18, 1998. Upon consideration of all available information and the record of Petitioner’s adjudication for felony theft and her current placement on probation for welfare fraud, the District Administrator concluded that, due to the serious nature of the adjudications and her current probationary status, there has not been sufficient opportunity for Petitioner to demonstrate rehabilitation. Petitioner failed to offer any evidence of her rehabilitation, beyond her testimony that she has changed her ways and the fact that she has thus far served her current probation without incident. While several years have passed since the grand theft conviction that compelled disqualification, Petitioner’s subsequent history is also relevant to Respondent’s decision. Petitioner’s conviction in 1996 of welfare fraud certainly provided Respondent with reason to believe that Petitioner had not demonstrated rehabilitation.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Children and Family Services enter a Final Order denying Petitioner an exemption to work in a position of special trust. DONE AND ENTERED this 19th day of August, 1998, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 19th day of August, 1998. COPIES FURNISHED: Linda Susan Floyd, pro se 13149 119th Street North Largo, Florida 33778 Amy V. Archibald, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 100 Largo, Florida 33778-1630 Gregory D. Venz, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building Two, Room 204 Tallahassee, Florida 32399-0700
The Issue By a two-count Amended Administrative Complaint, the Department of Insurance has charged Respondent, a licensed Florida life and health insurance agent, pursuant to Count I with violations of Sections 626.611(7), 626.611(14) and 626.621(8), F.S. arising out of his plea of nolo contendere to a felony charge of grand theft, and pursuant to Count II with violating Section 626.611(7) F.S. arising out of adjudication of guilt to multiple misdemeanor charges of issuing worthless bank checks.
Findings Of Fact Respondent is currently eligible for licensure and licensed in Florida as a life insurance agent and as a health insurance agent. He has been so licensed since 1985, and except for the facts, as set out infra., no disciplinary charges have ever been filed against him. Count I of the Amended Administrative Complaint On December 6, 1989, Respondent was charged by Information in the Circuit Court of the Eighth Judicial Circuit, in and for Alachua County, Florida, in Case No. 89-4842-CF, with a felony, to wit: Grand Theft in the third degree, a violation of Section 812.014, F.S. Respondent admitted that Case No. 89-4842-CF arose out of his writing a check on First Union Bank to cover computers previously contracted for by Respondent for his insurance agency. When he wrote the check, Respondent knew that he was short of funds but expected to deposit sufficient funds to the appropriate account before his check was presented for payment. When this "kiting" episode occurred, Respondent was short of funds due to an illegal conversion of funds perpetrated by one of his employee agents. Respondent did not get the money into his account in a timely manner and did not later "make the check good" before prosecution began. In accord with the appropriate regulatory rules, Respondent reported the illegal conversion by his employee agent to the Petitioner Department of Insurance and cooperated with that agency. He also reported the offending employee agent's illegal conversion to the local State Attorney. He cooperated in a criminal prosecution and filed a civil action in his own right against the offending agent. These events further depleted his assets and in part accounted for his being unable to make his check good. On July 19, 1990, in response to the Information filed against him, Respondent entered a plea of nolo contendere to grand theft, a felony in the third degree, in Circuit Court Case No. 89-4842-CF. With adjudication of guilt withheld, Respondent was placed on probation for one year and ordered to pay restitution in the amount of $7,139.29 to First Union Bank. Pursuant to court papers and Respondent's testimony, it appears that he was first given until July 19, 1991 to complete restitution on this charge. Respondent testified without refutation that he had received an extension from the circuit court until July of 1993 in which to make this restitution. That date had not yet been reached as of the date of formal hearing. With regard to his nolo contendere plea to a third degree felony, adjudication withheld, Respondent's unrefuted testimony is that he was represented by an attorney, Johnny Smiley, until Mr. Smiley was suspended from practicing law by the Florida Bar and that Mr. Smiley failed several times to appear on his behalf in court, did not advise him of any alternative misdemeanor pleas, and never properly advised him of all the potential consequences of pleading nolo contedere to a felony charge of grand theft, including that if that offense is construed as an offense involving moral turpitude, then Section 626.611(14), F.S. may be read to mandate revocation or suspension of his professional insurance licenses. It may be inferred from Respondent's testimony that Respondent, the prosecutor, and the circuit court judge assumed that Respondent would be able to continue selling insurance and thereby would be able to meet the restitution requirements of his plea bargain and probation. At formal hearing on January 3, 1992, Respondent represented that he had made some restitution and hoped to complete restitution under the foregoing circuit court order by January 31, 1992. Respondent further represented that a circuit judge had indicated that once Respondent made restitution on all charges (including those misdemeanor adjudications that gave rise to Count II of the instant amended administrative complaint, see infra.), the court would entertain a motion to set aside his grand theft plea. What the circuit judge may or may not have indicated is not admissible for proof of the matters asserted, but it is admissible to show Respondent's reliance thereon and his motivation beyond the obvious motivations for making restitution as soon as possible. By stipulation of the parties, the record in this instant disciplinary cause was left open for 60 days after formal hearing so that Respondent could amplify on this testimony. Pursuant to Fla. Rule of Criminal Procedure 3.850, and Art. I Section 16 of the Florida Constitution, Respondent has filed a Motion for Post- Conviction Relief in Circuit Court Case No. 89-4842-CF. However, a copy of this motion was not filed as an exhibit with the Division of Administrative Hearings until the day before the record herein closed by Order of March 5, 1992. Because the record was closed, the outcome, if any, of that circuit court motion/exhibit is not before the undersigned. Also, Respondent's motion/exhibit alone is not sufficient evidence for the undersigned to infer that Respondent has paid all required restitution amounts as of the date of this recommended order. Count II of the Amended Administrative Complaint From September 7, 1990 through July 30, 1991, the Respondent was charged by several Informations in the Circuit Court of the Eighth Judicial Court, in and for Alachua County, Florida, in Case Nos. 90-3267-CF-A, 90-3310- CF-A, 90-3881-CF-A, 91-2236-CF-A, 91-2237-CF-A, 91-2238-CF-A, 91-2712-CF-A, and 91-2713-CF-A, with one count per case of a third degree felony, to wit: Issuing a Worthless Check, a violation of Section 832.05(4), F.S. According to Respondent's unrefuted testimony, the negative balance situation arising from his earlier felony plea bargain, the need to make restitution in that case, and his attorney fees and costs associated with suing the agent who had taken money from Respondent's agency and one of Respondent's insurance carriers had caused an additional shortage of personal funds at a time Respondent was desperately fighting to save his marriage and keep his family, consisting of a wife and two small daughters, together. He admitted that he had issued seventeen worthless bank checks during this stressful period for personal expenses, primarily for telephone charges, groceries, and furniture. Nonetheless, Respondent's marriage failed and the couple is now divorced. By a plea bargain executed July 30, 1991, Respondent agreed to enter a nolo contendere plea to four first degree misdemeanor charges of issuing worthless bank checks and agreed to make restitution totalling $6,492.88 on thirteen others. The restitution agreement covering 17 checks included restitution for nine worthless checks for which the State had agreed to allow deferred prosecution. Five check charges were to be dismissed. What happened next is not entirely clear because, despite an order of the circuit court accepting the plea bargain, the case numbers in the plea bargain and on the subsequent judgments do not match, and it appears that on July 30, 1991, Respondent plead nolo contendere and was adjudicated guilty of eight first degree misdemeanor charges, ordered to serve six months probation on each, the probations to run concurrently, and was further ordered to make restitution pursuant to the plea/restitution agreement. Pursuant to court papers and Respondent's testimony, it appears that he was also given six months, or until approximately January 31, 1992, to make restitution on these cases. That date had not yet been reached as of the date of formal hearing. Respondent remained on probation as of the date of formal hearing. Respondent testified at formal hearing that he hoped to make full restitution on these cases by January 31, 1992, and that unless he also made full restitution on the grand theft case, he could not file a motion to vacate his plea therein. (See, Finding of Fact 7, supra.) Respondent did not file any evidence of restitution in these misdemeanor cases, although he was given until March 5, 1992 to do so. The filing as an exhibit herein of his Motion for Post- Conviction Relief in the circuit court felony case covered in Count I of the instant amended administrative complaint is not sufficient for the undersigned to infer that Respondent has made full restitution on these misdemeanor charges covered in Count II of the instant amended administrative complaint. (See, Finding of Fact 8, supra.) Respondent presented the testimony of Reverend L.D.J. Berry, pastor of a Baptist Church in St. Thomas, Florida, to the effect that the minister has bought insurance from Respondent and has always found him to be helpful and honest in insurance matters. Although Reverend Berry has counselled with Respondent, Respondent is not a member of Reverend Berry's parish. Reverend Berry has never been a recipient of one of Respondent's bad checks. Reverend Berry considered the Respondent to be of good character, even knowing of his bad check history.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Insurance enter a final order that: Finds Respondent guilty of violating Sections 626.611(14) F.S. and 626.621(8) F.S. and not guilty of violating Section 626.611(7), F.S. as alleged in Count I of the Amended Administrative Complaint; Finds Respondent not guilty of violating Section 626.611(7) F.S. as alleged in Count II of the Amended Administrative Complaint; and Suspends Respondent's licensure and eligibility for licensure as a life and health insurance agent for six months and provides for a probationary period subsequent to reinstatement of his licenses to run concurrently with any criminal probations left for him to serve, up to the maximum of two years provided by Section 626.691 F.S., during which period of license probation, Respondent's insurance business shall be monitored by the Department of Insurance upon such terms as the Department shall determine to be appropriate. RECOMMENDED this 29th day of April, 1992, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 29th day of April, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3109 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: Accepted substantially; modified to eliminate subordinate, unnecessary, and cumulative findings: 1, 2, 3, 4, 5, 7, 13, and 15. Rejected because as stated, it is a mischracterization of the weight of the evidence, but sunstantially covered within the recommended order: 6, 8, 14, 16. Accepted as modified. What has been rejected has been rejected so that the recommended order conforms the greater weight of the credible record evidence as a whole: 9, 10, 11, 12, 17. Respondent's PFOF: Accepted substantially, but modified to eliminate subordinate unnecessary, and cumulative findings or otherwise C, D, E, F. Accepted as modified. What has been rejected was rejected to conform the recommended order to the greater weight of the credible record as a whole: A, B. COPIES FURNISHED: Michele Guy, Esquire Department of Insurance 412 Larson Building Tallahassee, Florida 32399-0300 S. Scott Walker, Esquire Watson, Folds, Steadham, et al. P. O. Box 1070 Gainesville, Florida 32602 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Don Dowdell, General Counsel Department of Insurance and Treasurer 200 E. Gaines Street 412 Larson Building Tallahassee, Florida 32399-0300
Findings Of Fact Danny Michael Shipp is a black male who was employed at the Jacksonville, Florida, aluminum can plant of Respondent Kaiser Aluminum and Chemical Corporation. This period of employment was from October 29, 1978 until November 19, 1978. Mr. Shipp was hired as an equipment tender. In that position his duties included loading pallets, maintaining six paint spray guns and generally checking on equipment to ensure that is was functioning properly in the assembly of aluminum cans. His job required no special skills or qualifications. At the tame Mr. Shipp was hired, Kaiser was adding 70 to 80 people to its working force because it was starting up a new production shift. There were approximately 500 applicants and around 300 people were interviewed by plant management. A background check was made by Pinkerton's of Florida, Inc. on the newly-hired personnel including Mr. Shipp and another employee K.M. 1/. Of the 70 to 80 people hired, only K.M., who is white, and Mr. Shipp were reported to have a criminal record. Mr. Shipp's Pinkerton's report indicated: 7-2-77 Case number 77-2789 Possession of Contra. Substance (more than 5 grams) WHASJ Guilty 19 Month Probation. Released on $751.00 Bond. 3-26-70 Case number 701455 Assault and battery, case discharged 4-7-70 Case number 70 1454 Malicious Mischief, sugar in gas tank of Gail Shipp. K.M.'s report stated: 4-30-76 Case number 21013 possession Narcotics implements Nol. Press. Possession controlled substance Marijuana, over 5 gr. $250.00 Fine 7-31-78 Case number 3105 Sale of controlled substance, 80 days Duval County jail, 1 year Probation. There were other charges which were later shown as misdemeanor's. (sic.) On the job application form filled in by Mr. Shipp, Kaiser asked if he had been convicted of a felony within the last seven years. Mr. Shipp answered by checking a box "no." After several weeks of employment, Mr. Shipp on November 19, 1978, was invited to a conference with Mr. Rice, the Kaiser administrative manager; the plant manager; and the plant superintendent. This was still during his thirty- day probation period when he could be fired without cause and without the right to grieve a discharge. He was told by Mr. Rice that he was being terminated due to the Pinkerton's report. When Mr. Shipp asked for a specific reason for his discharge, Mr. Rice responded: (From Hearing Transcript p. 142) "He said, Well what are you talking about specifically?' And I said, 'Well, based on the evidence, the background check, that we no longer want to keep you as an employee. He said, 'Well, what specifically are you talking about?' And I said, 'Well,' I said, 'You currently are on probation?' He said, 'Yes, sir.' And I said, 'Well, let's just let it go at that, and I'm not going to talk about it anymore.' And that's basically what we did. And then Mr. Carlson walked back to the lockerroom with Mr. Shipp and we all walked out to the front, shook hands, and that was it. On October 21, 1977, Mr. Shipp was placed on probation, adjudication withheld for the felony possession of more than 5 grams of marijuana. His probation successfully expired on April 21, 1979, subsequent to his discharge at Kaiser. On his application with Kaiser, gave "layoff" as the reason for leaving a former employer, Jacksonville Shipyard. In fact, as was brought out during his cross examination, he was terminated there due to being absent from work. Kaiser's primary reason for discharging Mr. Shipp was because of his arrest record. At the time of his termination, Mr. Rice believed after consulting with Kaiser counsel, that Mr. Shipp had not been convicted of any felonies. He further believed that for the purpose of terminating an employee, K. M.'s report was the equivalent of Mr. Shipp's. K.M. who was also in his probationary period as an equipment tender was dismissed by Kaiser because of his arrest record. Kaiser has and had no custom, policy (written or otherwise) or practice of terminating an employee for his arrest record, conviction or criminal probation status. The decision to fire Mr. Shipp and K. M. was made spontaneously by Mr. Rice, Mr. Gene Miller, the plant manager, and Mr. Curtis Thompson, who collectively are the top management at the Jacksonville plant. There is no proof that anyone has ever been fired either before or after the termination of Mr. Shipp and K.M. because of their arrest record, convictions or criminal probation status. After his discharge, Mr. Shipp spoke with his probation counselor, Mrs. Susan Karl, about his discharge. She wrote a letter to Mr. Kaiser on November 28, 1978, in which she explained Mr. Shipp's legal status and gave her opinion about his currently being a law-abiding citizen. She asked that Mr. Shipp be considered for reemployment. He was not rehired. A copy of the Notice of Failure of Conciliation in Mr. Shipp's case was sent to him on March 10, 1980. He filed his Petition for Relief with the Commission on April 8, 1980. For reasons not appearing in the record, a Second Notice of Failure of Conciliation was sent to Mr. Shipp on March 28, 1980. During his employment at Kaiser, Mr. Shipp received three weekly evaluations as a probationary employee. For the first week his evaluator rated him as "fair" and commented that he "overreacted and needs to study more for the test." During the second week he received a "good" with the note that he "Works good on line, picks up on job fast." Finally, on November 17, 1980, he was given a "good" rating with the comment that "Danny's performance has been consistently good overall (He was late once)." With respect to Mr. Shipp's complaint charging Kaiser with race discrimination the Commission by its Executive Director has made a determination of reasonable cause to believe that an unlawful employment practice occurred.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the petition for relief filed by Danny Michael Shipp and supported by the Commission. DONE and RECOMMENDED this 8th day of January, 1981, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
Findings Of Fact Respondent, George Thomas Darby, at all times relevant to these proceedings, was licensed as a professional bail bondsman and limited surety agent. The Respondent was previously licensed as an ordinary-combination life, including disability agent, but such license expired on March 30, 1981. On January 7, 1982, a grand jury indictment was issued in the United States District Court for the Northern District of Florida, Panama City Criminal Division, against the Respondent, George Thomas Darby. The indictment specifically charged that the Respondent: Did knowingly combine, conspire, confederate agree, and have a tacit understanding with other stated individuals to possess with the intent to distribute more than 1,000 pounds of the Schedule I control substance marijuana, in violation of Sections 841 and 846 of Title 21 of the United States Code. Did knowingly combine, conspire, confederate agree, and have a tacit understanding with other specified persons to import into the United States the Schedule I control substance marijuana in violation of Sections 952 and 963 of Title 21 of the United States Code. Did knowingly and intentionally import into the United States a Schedule I control substance in violation of Section 952 of Title 21 and Section 2 of Title 18 of the United States Code. Did knowingly and intentionally possess with the intent to distribute the Schedule I control substance marijuana in violation of Section 841 of Title 21 and Section 2 of Title 18 of the United States Code. On July 14, 1982, George Thomas Darby was convicted in the United States District Court for the Northern District of Florida, Panama City Criminal Division, as follows: Defendant has been convicted as charged of the offense of from on or about January, 1975, until the date of the indictment, in the Northern' District of Florida and elsewhere, knowingly combining, conspiring, and agreeing with others to import marijuana into the United States, in violation of Title 21, U.S. Code, Sections 952 and 963, as charged in Count 111(3) of the indictment. Pursuant to the above conviction, the Respondent, George Thomas Darby, was sentenced to a term of five years imprisonment and fined $15,000. The Respondent, by answer, admitted and further, at the formal hearing by stipulation, accepted as true the following facts: That you, George Thomas Darby, on or about July 14, 1982, in the United States District Court of the Northern District of Florida, in Case No. MCR 82-00203-07, were found guilty of knowingly combining, conspiring and agreeing with others to import marijuana into the United States, in violation of Title 21, U.S. Code, Sections 952, and 953, as charged in Count 111(3) of a previous grand jury indictment, Criminal Case No. MCR82-00203. The violation of either of the aforementioned titles is a felony as defined by Title 18, U.S.C. Section I(1). The Respondent has been licensed as a professional bail bondsman since October, 1976. His primary business as a bail bondsman has been in Jackson County, Florida. The Respondent has had no prior criminal convictions and no complaints or other disciplinary actions by the Department of Insurance against any license held by him from that Department. The Respondent has voluntarily ceased writing bail bonds since February of 1982, to the date of the hearing. Prior to the above-referenced conviction, the Respondent enjoyed a reputation as an honest, hardworking, and law-abiding citizen in the Jackson County area. On January 31, 1983, Clyde M. Taylor, Jr., Esquire, counsel for the Respondent in the above-referenced criminal action, filed an appellate brief in the United States Court of Appeal for the Eleventh Circuit on behalf of George Thomas Darby, seeking to reverse the July 14, 1982, district court conviction. At the time of the formal hearing, this appeal was pending.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Insurance enter a Final Order dismissing its Administrative Complaint against the Respondent, George Thomas Darby. DONE and ENTERED this 27th day of July, 1983, in Tallahassee, Florida. COPIES FURNISHED: Clark R. Jennings, Esquire Department of Insurance Suite 413-B, Larson Building Tallahassee, Florida 32301 Clyde M. Taylor, Jr., Esquire 1105 Hays Street Tallahassee, Florida 32301 Honorable Bill Gunter Insurance Commissioner and Treasurer The Capitol Tallahassee, Florida 32301 MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1983.
