The Issue Whether the Respondent's real estate license in Florida should be disciplined as a result of his criminal conviction of crimes involving moral turpitude in violation of Section 475.25(1)(f), Florida Statutes.
Findings Of Fact At all times material to these proceedings, Respondent Rosenberg has been licensed as a real estate broker in Florida, and has held license number 0308769. The last license issued was as a broker and was sent in care of Monopoly Realty, Inc., 944 Country Club Boulevard, Cape Coral, Florida. On April 7, 1989, the Respondent entered guilty pleas to the eleven criminal charges set forth in an Information filed in Case No. 89-3310-CF10, Brevard County, Florida. Counts I-IV of the Information charged the Respondent with the crimes of unlawful and knowing possession of four different motion pictures containing sexual conduct by children. Counts V-XI of the Information charged the Respondent with possession of seven additional motion pictures or videotapes containing obscene materials. It was alleged that the Respondent intended to sell, show or distribute these videotapes. Upon acceptance of the pleas, the judge found the Respondent guilty of Counts V-VII and withheld adjudication on all other counts. The Respondent was sentenced to two years of community control followed by three years probation on Counts I-IV. In addition, he received six months probation to run concurrently with the first sentence on all other counts. Other conditions of the community control portion of the sentence required the Respondent to pay $774.50 in investigative costs to the Organized Crime Division, continue in sexual therapy, and required that he not accept employment in video stores or any establishment where adult magazines or videos are sold. After his pleas were accepted by the Court, the Respondent notified the Florida Real Estate Commission of the court's judgment and sentence by letter on May 3, 1989. Mitigation In mitigation, the Hearing Officer finds that the Respondent has never had a complaint filed against him during the eleven years he has been licensed and actively engaged in the sale of real estate in Florida. The Respondent realizes that his interest in pornography is prurient, and he is sincerely involved in the sexual therapeutic program. The Respondent has a supportive family which is anxious to assist him in overcoming his problem. The charges filed against the Respondent in the Information were based upon one criminal episode which involved eleven pornographic films or tapes.
Recommendation Based upon the foregoing, and having reviewed the mitigating factors presented by Respondent at hearing, it is recommended: That Respondent David Rosenberg be found guilty of having violated Section 475.25(1)(f), Florida Statutes, as set forth in the Administrative Complaint. That the Respondent's real estate broker's license be suspended for a period of four years in accordance with the guidelines set forth in Rule 21V- 24.001, Florida Administrative Code. This recommendation aligns itself with the sentence of the circuit court judge who has given Respondent the opportunity to be placed in a community control program with probation over a five-year period in order to receive sexual therapy and repay his debt to society for having committed crimes which violate Florida's obscenity laws. As one year of the sentence imposed by the court has passed, the recommended four-year suspension would run concurrently with the remaining term of the Respondent's sentence. RECOMMENDED this 7th day of May, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-5858 Petitioner's proposed findings of fact are addressed as follows: Accepted. Accepted. See HO #1. Accepted. See HO #2. Accepted. See HO #2 and #3. Rejected. Irrelevant. Respondent's proposed findings of fact are addressed as follows: Rejected. Improper legal conclusion and irrelevant. Rejected. Immaterial and Irrelevant. Rejected. Irrelevant. A collateral attack on Respondent's plea is improper as this is not the proper forum for such review. Rejected. Irrelevant. Accept that adjudication was withheld on all but Counts V- VIII in the Information. See HO #3. Accept that Respondent will be receiving therapy. See HO #3. Accept that Respondent has no prior arrests. The state of Respondent's future record once he successfully completes his sentence is irrelevant and is rejected as irrelevant. The assertion that child pornography is a victimless crime is rejected as contrary to fact. Accept subparagraphs 6(a) - (d). See HO #4 and HO #5. Reject subparagraph 6(e). Contrary to fact. See HO #2 and HO #3. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Professional Regulation Division of Real Estate Post Office Box 1990 Orlando, Florida 32801 Peter L. Rosenberg Qualified Representative 1224 Southeast 23rd Place Cape Coral, Florida 33990 Darlene F. Keller, Executive Director DPR - Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Petitioner, Paul Rancourt (Mr. Rancourt), established through clear and convincing evidence his actual innocence, thereby entitling him to compensation under the Victims of Wrongful Incarceration Compensation Act, chapter 961, Florida Statutes (2011).1/
Findings Of Fact Before discussing the findings from the administrative hearing, it is appropriate to set out the procedural history of the criminal proceedings. On December 18, 1996, the State charged Mr. Rancourt and Daniel McLean (Mr. McLean) with the kidnapping and three counts of sexual battery of A.S., which occurred on October 31, 1996. On July 27 through July 30, 1998, the State tried Mr. Rancourt and Mr. McLean together. The jury convicted both men, and the trial court sentenced Mr. Rancourt and Mr. McLean to life imprisonment on each count with the sentences to run concurrently. On April 5, 2000, the Second District Court of Appeal issued an opinion overturning Mr. McLean's conviction based on trial errors. McLean v. State, 754 So. 2d 176 (Fla. 2d DCA 2000). The appellate court reversed Mr. McLean's conviction for kidnapping because it found that the State "failed to prove [McLean] intended the kidnapping to occur, or that he performed any action that assisted in the kidnapping." Id. at 180. Further, the appellate court found that the trial court erred in two key evidentiary rulings. First, the trial court erred in allowing the State to elicit testimony from the medical provider who examined A.S. following the assault. The disputed question was: "[d]id she act in any way inconsistent with the way a rape victim would act?" Id. at 181. The appellate court found that the prejudicial effect of the expert testimony substantially outweighed its probative value. Id. Second, the trial court erred in excluding testimony under the Rape Shield Statute.3/ Id. Specifically, the trial court erred in not allowing Mr. McLean's attorney to cross-examine the medical provider about whether or not the A.S.'s soreness in her vulva area was due to the fact that she had not had sexual intercourse in the past year, as opposed to a sexual battery. Id. The appellate court found that this question went to a key issue of whether the sexual contact was consensual. The appellate court found the exclusion of this testimony was not harmless error; and thus, reversed Mr. McLean's convictions and sentences, and ordered a retrial. On January 5, 2001, Mr. McLean, pursuant to a plea agreement, pled nolo contendere to one count of sexual battery, section 794.011, Florida Statutes (1996). Based on the plea agreement, Mr. McLean was sentenced to 64 and one-half months’ incarceration, which reflected his time served, and two years’ probation. On June 14, 2000, the Second District Court of Appeal affirmed Mr. Rancourt's convictions for sexual battery and kidnapping, and his life sentences. Rancourt v. State, 766 So. 2d 1071 (Fla. 2d DCA 2000). In affirming Mr. Rancourt's conviction, the appellate court found that trial counsel had failed to preserve the issues concerning the medical expert's opinion vouching for the victim's credibility and the exclusion of the medical testimony under the Rape Shield Statute. On September 13, 2000, the appellate court issued its mandate. On September 10, 2002, Mr. Rancourt filed a post- conviction motion alleging ineffective assistance of counsel. Notably, Mr. Rancourt's post-conviction motion alleged, in part, his trial counsel was ineffective for failing to preserve the evidentiary issues that had formed the basis of Mr. McLean's reversal. On November 3, 2003, the circuit court entered an order vacating Mr. Rancourt's convictions and sentences "after considering the Motion and applicable law, and upon agreement of both parties[.]" The order directed that a new trial be held. On September 27, 2005, the State re-tried Mr. Rancourt for sexual battery and kidnapping. The jury convicted Mr. Rancourt of the lesser-included offense of battery, section 784.03, Florida Statutes (1996), a first-degree misdemeanor. Consequently, the trial court sentenced Mr. Rancourt to one year in the Polk County jail with credit for time served. On June 25, 2010, Mr. Rancourt filed the Amended Petition for Determination of Wrongfully Incarcerated Person, which is the subject of this hearing. Mr. Rancourt has not been convicted of any other felony in any jurisdiction. At the time of these events, Mr. Rancourt was a 32-year- old man, and A.S. was a 19-year-old freshman at Florida Southern College. Mr. Rancourt, in offering proof of actual innocence, testified on his own behalf that the sexual encounter that occurred between him and A.S. was consensual. Mr. Rancourt's testimony on December 8, 2011, was consistent with the testimony that he had provided in his two criminal trials. Transcripts of Mr. Rancourt's prior testimony at the criminal proceedings were admitted into evidence. Mr. Rancourt's testimony at the hearing concerning his meeting A.S. and the subsequent sexual encounter was not believable. Specifically, the undersigned did not find Mr. Rancourt's description of how a young woman, whom he had never spoken too, would at the closing of the bar grab him at the door as patrons attempted to leave the bar, and give him a "deep french kiss." Further, it was incredulous that after asking him for a ride back to her dorm room that A.S., while in the back seat of the car, would engage in a series of intimate gestures towards himself and his best friend, Mr. McLean. Finally, it was not credible that A.S. and Mr. Rancourt engaged in a consensual sexual encounter as described by Mr. Rancourt on the lawn of a home off a dark street. The conclusion that Mr. Rancourt's description of the events is not credible is further bolstered by the testimony showing A.S.'s actions immediately after the sexual encounter, and Mr. Rancourt's untruthful responses to the police investigation following the events. Mr. Rancourt also offered Mr. McLean, who testified that he witnessed A.S. acting as a "willing participant" in the sexual encounter with Mr. Rancourt. Further, Mr. McLean offered testimony that he did not engage in any sexual relations with A.S., and that he only pled to the sexual battery charge in order to avoid the risk of receiving another lengthy sentence. Next, Mr. Rancourt brought forward the testimony of Brandon Perron (Mr. Perron), a private investigator, and introduced into evidence copies of Mr. Perron's investigative reports. The record shows that Mr. Perron prepared these reports as part of Mr. Rancourt's post-conviction efforts. The reports and Mr. Perron's testimony show that he identified many factual issues regarding Mr. Rancourt's convictions. Specifically, Mr. Perron raised issues concerning discrepancies in A.S.'s statements, testimony, and her motivations to lie concerning the events of October 31, 1996; discrepancies in witnesses' statements to the police investigator and testimony; poor and prejudicial police investigative techniques that overlooked potentially exonerating evidence showing that the sexual encounter was consensual; and defense counsel's failure to conduct an adequate investigation into potential witnesses. Although Mr. Perron was a persuasive witness for showing potential problems with the State's criminal case against Mr. Rancourt, Mr. Perron's testimony did not establish Mr. Rancourt's actual innocence. Mr. Rancourt's final witness was his aunt, Barbara Hoffman (Ms. Hoffman). In October 1996, Mr. Rancourt and Mr. McLean were living with Ms. Hoffman while they sought employment. Ms. Hoffman's testimony concerned Mr. Rancourt's character and her opinion that he was not capable of committing a crime. Further, she testified about the day that law enforcement officers went to her home to ask Mr. Rancourt and Mr. McLean to come in for questioning. She testified that the detective investigating the events had prejudged Mr. Rancourt to be guilty of rape. The purpose of this testimony appeared to show that statements given by Mr. Rancourt and Mr. McLean to the police may not have been voluntary. It is noteworthy that neither Mr. Rancourt nor Mr. McLean was arrested; thus, the questioning was non-custodial. Moreover, Ms. Hoffman's testimony was marginally relevant in that it did not bring forward any fact showing that Mr. Rancourt was actually innocent of the sexual battery and kidnapping charges. The State introduced evidence showing that the sexual encounter was not consensual. A.S.'s trial testimony shows that she consistently testified that the sexual encounter was not consensual. In addition to A.S.'s trial testimony, the State introduced trial testimony of Angie Wren (Ms. Wren) and Issac McKeithan (Mr. McKeithan). The criminal trial transcript shows that Ms. Wren and Mr. McKeithan drove upon A.S. shortly after the event and saw a car quickly drive away from the area where A.S. was standing. Ms. Wren testified that A.S. was hysterical and crying, and "she just didn't look like she had been through anything good, that's for sure." A.S. reported to Ms. Wren and Mr. McKeithan that she had been raped. Ms. Wren and Mr. McKeithan drove A.S. to the Lakeland Police Department immediately, and the attack was reported. This testimony shows that A.S. contended that she had been raped moments after the sexual encounter. Further, a review of the criminal proceedings shows that the State brought forward medical testimony showing bruises on A.S.'s arms. A.S. had testified that, before the attack, she did not have the bruises. Finally, the criminal trial transcripts and testimony given at the December 8 through 9, 2011, hearing showed that Mr. Rancourt and Mr. McLean had provided false statements, and changed the story given to the officer conducting the investigation. Specifically, the trial transcripts, and Mr. Rancourt's testimony on December 8, 2011, showed that he told the investigator at first that he did not engage in sexual relations with A.S., then changed his story to claim that he and A.S. had sex in the vehicle, and then changed his story, yet again, to state that he and A.S. had consensual sex on the front yard of a home off a dark street. During his testimony on December 8, 2011, Mr. Rancourt acknowledged that the statements he gave about not having sex with A.S. and then having sex in the vehicle were false. Similarly, Mr. McLean, when asked if he and Mr. Rancourt had sex, informed the officer "no." Mr. McLean testified that he answered that way because he contended that he had not had sex with A.S. This parsing of words was not credible. The undersigned found these acknowledged false statements, made at the time of the investigation, persuasive evidence that Mr. Rancourt's explanation of the night was not credible.
Recommendation Based on the record in this proceeding and the above Findings of Fact, it is RECOMMENDED that an order be entered by the Circuit Judge determining that Mr. Rancourt has failed to meet his burden of proving actual innocence by clear and convincing evidence, denying Mr. Rancourt's claim for compensation, and dismissing his Petition. DONE AND ENTERED this 14th day of March, 2012, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS 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 14th day of March, 2012.
The Issue The issues in this case are whether Respondent was adjudicated guilty of a crime which directly relates to the practice of contracting or the ability to practice contracting, or failed to report his guilty plea to a crime in writing to the Construction Industry Licensing Board within 30 days, in violation of sections 489.129(1)(b) and 455.227(1)(t), Florida Statutes,1/ as alleged in the Administrative Complaint; and, if so, what is the appropriate sanction.
Findings Of Fact The Department is the state agency charged with regulating the practice of contracting pursuant to section 20.165 and chapters 455 and 489, Florida Statutes. The Board is charged with final agency action with respect to contractors pursuant to chapter 489. The practice of contracting is regulated by the State of Florida in the interest of the public health, safety, and welfare. Mr. Walk is licensed as a certified residential contractor in the State of Florida, having been issued license number CRC 1327370. He was subject to regulation by the Department at the time of the actions alleged in the Administrative Complaint. Mr. Walk's license allows him to construct, remodel, repair, or make improvements to one-family, two-family, or three- family residences. Such residential structures may reasonably be expected to have children residing in them. A state-licensed residential contractor is trusted by homeowners, allowed into their homes, and into contact with their children. On March 15, 2016, Mr. Walk pled guilty to three counts of possession, control, or intentionally viewing a sexual performance by a child in Case Number 2015CF009085AMB in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida. As Mr. Walk testified at hearing, he did not know any of the people in the photographs, he did not take any of the pictures. He "clicked" on child pornography pictures and dragged them into his computer file. The crimes to which Mr. Walk pled guilty affect the public health, safety, and welfare, and directly relate to the practice of contracting or the ability to practice residential contracting. Mr. Walk testified that at the time he signed the guilty plea, he had not seen his son in six months, his attorney at the time did not explain much to him, and the details of the plea agreement were still being worked out. He testified that his main goal was to go home to be with his son. Mr. Walk testified that later, through discussions with his wife and a new attorney, he considered withdrawing his guilty plea, but ultimately he did not do so. On or about November 18, 2016, Mr. Walk was adjudicated guilty of three counts of possession, control, or intentionally viewing a sexual performance by a child in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida. On or about December 19, 2016, Mr. Walk reported his guilty plea to three counts of possession, control, or intentionally viewing a sexual performance by a child to Petitioner via a Criminal Self-Reporting Document. On or about December 27, 2016, Petitioner received Mr. Walk's Criminal Self•Reporting Document. An Order of Sex Offender Probation was issued against Mr. Walk in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, on or about February 3, 2017. Mr. Walk was required to register as a sex offender. As a result of Mr. Walk's conviction, he served 18 months in state prison. He is currently serving ten years of sex offender probation and attending sex offender therapy once a week. He must wear a GPS monitor at all times, must keep a log whenever he drives a vehicle, and must pay $23,226.50 for his supervision and other financial obligations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board enter a final order finding Christopher Michael Walk in violation of section 489.129(1)(b), Florida Statutes, and revoking his license as a certified residential contractor. DONE AND ENTERED this 18th day of October, 2018, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 18th day of October, 2018.
Findings Of Fact Respondent David A. Avant, III, was arrested on October 16, 1989, and charged with one count of cultivation of marijuana (a third degree felony), and one count of possession of marijuana (a misdemeanor). The charges concerned one marijuana plant which was found on Avant's property by a game warden. Avant was arrested when he picked up the plant to throw it over his fence. The marijuana plant did not belong to Avant and it was not on his property with his permission. A search of Avant's truck by game wardens did not reveal any tools, buckets, etc., indicating that he was, in fact, cultivating and/or caring for the marijuana plant. Avant accepted a plea agreement offered by the State Attorney to save the money and expenses that would be required for a trial. Avant accepted the state attorney's plea agreement for reasons of economics and convenience. Avant entered a plea of nolo contedere to one felony count of cultivation of marijuana and one misdemeanor count of possession of marijuana. 1/
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Amended Administrative Complaint. DONE AND ENTERED this 24th day of June, 1991, in Tallahassee, Leon County, Florida. DON W. 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 24th day of June, 1991.
The Issue Whether Petitioner's application for licensure as a Class "D" Security Officer should be denied on the grounds set forth in the Department of State, Division of Licensing's (Department's) March 26, 1992, letter to Petitioner?
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Petitioner is 56 years of age. He has had numerous brushes with the law, many of them alcohol-related, dating back to 1956, but he has never been convicted of a felony. In June of 1956, Petitioner attempted to purchase a beer in Sacramento, California. He was 19 years old at the time and, although in the military, under the legal drinking age. Petitioner was arrested and charged with a misdemeanor violation of California's alcoholic beverage control law. He received a ten-day suspended sentence. In November of 1956, when Petitioner was stationed on a military base in Amarillo, Texas, he and friend, without authorization, went into a room on the base where weapons were stored. They took possession of a .38 calibre firearm and started "playing with it." Petitioner was arrested and charged with the misdemeanor offenses of unlawful entry and wrongful appropriation. He received a bad conduct discharge, which was suspended. After attending a rehabilitation training program, he returned to active military service. In May of 1962, Petitioner was arrested for operating a motor vehicle under the influence of alcohol, a misdemeanor. He was subsequently convicted of the offense. His license was suspended for ten days and he was ordered to pay $25 in court costs. In the early part of 1964, Petitioner, along with several others, charged $700 worth of merchandise in a department store in Indianapolis, Indiana using credit card slips they had forged. Petitioner was arrested and charged with the felony offense of uttering a forged instrument. Adjudication of guilt on this charge was withheld and Petitioner was placed on three years probation. In October of 1968, while in Anderson Indiana, Petitioner was arrested and charged with theft by deception for having written checks in amounts that exceeded the balance of his checking account. The checks were actually written by Petitioner's estranged wife without his knowledge. The charge against Petitioner was dropped after restitution was made. In January of 1969, Petitioner was again arrested in Anderson, Indiana and charged with theft by deception for having written bad checks. These checks were written by Petitioner, but he did not realize at the time he wrote them that, because of his wife's check writing, he had insufficient funds in his account. Adjudication of guilt on this charge was withheld and Petitioner was placed on probation for a year. In February of 1970, Petitioner stayed in a Naples, Florida hotel for approximately three or four days. When he checked out, he did not have enough money to pay his bill. Petitioner was arrested and charged with the misdemeanor offense of defrauding an innkeeper. Less than a week later, Petitioner made restitution and the charge against him was dropped. The following month, while in Miami Beach, Florida, Petitioner was again unable to pay a hotel bill and, as a result, arrested and charged with defrauding an innkeeper. This charge was also dropped after Petitioner made restitution. In May of 1970, Petitioner was arrested and charged with breaking and entering a Naples, Florida restaurant with intent to commit grand larceny. The charge was unfounded and it was subsequently dropped. In January of 1971, Petitioner was driving a motor vehicle in Fort Myers, Florida that had an expired inspection sticker affixed to it. He was stopped by the police and a firearm belonging to a passenger was discovered in the vehicle. Petitioner was arrested and charged with unlawful possession of a firearm and driving a vehicle with an expired inspection sticker. The former charge was dropped. With respect to the latter charge, Petitioner was fined $30 or $35. In October of 1971, Petitioner was arrested in Naples, Florida and charged with writing a worthless check. The check was in the amount of $20 or $25. At the time he wrote the check, Petitioner was unaware that he did not have enough money in his account to cover the check. Petitioner subsequently made restitution and the charge was dropped. In February of 1976, in Lauderhill, Florida, Petitioner was arrested and again charged with writing a worthless check. The amount of this check was less than $50. Petitioner pled guilty to this misdemeanor offense and was fined $10. In addition to paying the fine, Petitioner made restitution. That same month, Petitioner was arrested in Sunrise, Florida and charged with battery on his wife. The charge was unfounded and it was subsequently dropped. In July of 1976, in Fort Lauderdale, Florida, Petitioner was arrested and charged with aggravated assault, assault and battery and petty larceny. All of these charges were unfounded; however, as a matter of convenience and pursuant to a plea agreement, Petitioner pled no contest to the assault and battery charge. Adjudication of guilt on this charge was withheld. Petitioner received a 90-day suspended sentence and a $352 fine, which was also suspended. The remaining charges against Petitioner were dropped. In December of 1977, Petitioner was again arrested in Fort Lauderdale, Florida. On this occasion, he was charged with two counts of writing worthless checks under $50. Petitioner subsequently made restitution and the charges were dropped. In February of 1980, in Jasper, Florida, Petitioner was arrested and charged with driving while intoxicated, speeding, driving without a valid drivers license and refusing to sign a summons. The latter charge was dropped. Petitioner pled guilty to the remaining charges and was adjudicated guilty on these charges by the trial court. For speeding and driving without a valid drivers license, he was fined. For driving while intoxicated, he was also fined and, in addition, his drivers license was suspended and he was ordered to attend DWI school. In May of 1985, in West Palm Beach, Florida, Petitioner was arrested on a Dade County, Florida warrant that had been issued in 1980, when he had been charged with two felony counts of writing worthless checks. The checks had actually been written by Petitioner's daughter. After his arrest, Petitioner made restitution and the charges against him were dropped. In November of 1985, Petitioner was arrested in West Palm Beach, Florida and charged with driving while intoxicated. He pled guilty to this misdemeanor charge. The trial court adjudicated Petitioner guilty and suspended his license for six months and ordered him to attend DWI school. Petitioner has not been in trouble with the law since. He is now a law-abiding citizen, who is better able to control is intake of alcohol. In filling out Section 5 of his application for licensure, which addressed the subject of criminal history, Petitioner did not intentionally make any misrepresentations or omit any required information. It was his understanding that he was required to disclose information relating only to felony convictions in this section of the application.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order finding that Petitioner should not be denied licensure as a Class "D" Security Officer on the grounds cited in the Department's March 26, 1992, denial letter. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of August, 1992. STUART M. LERNER 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 18th day of August, 1992.
The Issue Whether Petitioner, Andrew Anthony Taylor (“Petitioner”), timely filed a petition under the Victims of Wrongful Incarceration Act, chapter 961, Florida Statutes (2016)(“the Act”); and, if so, whether Petitioner demonstrated by clear and convincing evidence, his actual innocence, thereby entitling him to monetary compensation under the Act.
Findings Of Fact Petitioner seeks compensation pursuant to the Act after serving a prison term of 25 years for the sexual abuse of his stepdaughter, C.J. The jury verdict was vacated after C.J., in 2014, recanted her accusation that Petitioner sexually abused her in 1990, when she was eight years old. The undersigned will begin with a discussion of the events in 1990, when C.J. first reported the allegation of sexual abuse against Petitioner to Dr. Valerie Rao, a rape treatment medical examiner. On the evening of March 10, 1990, C.J. was brought to the Jackson Memorial Hospital Roxcy Bolton Rape Treatment Center by her mother and grandmother, at which time C.J. came under the care of Dr. Rao. Dr. Rao obtained a detailed history from C.J., during which C.J. reported that she had been sexually abused by her stepfather, “Andrew,” at two different locations--her old house and her new house. According to C.J., the most recent sexual encounter was when she was awoken by Petitioner on “Friday night,” March 8, 1990, and told to get up and go to her mother’s bed. C.J. did so, and Petitioner then told her to take off her pajamas, which she did. According to C.J., Petitioner got on top of her, put his “private part” in her, began kissing her, and put his mouth on her “private part.” C.J. also stated Petitioner made her touch his “private part,” and that he touched her in the anal area. C.J. also stated Petitioner often put his “private part” in her mouth. C.J. also stated Petitioner told her that if she told anyone, he would kill her. After obtaining the history, Dr. Rao examined C.J. and observed multiple bruises on her right arm and thighs, and abrasions on her back and on her left breast. The bruises and abrasions were caused when C.J.’s mother beat her with a baseball bat after C.J. told her mother of Petitioner’s sexual abuse. Dr. Rao immediately reported the mother to law enforcement, and C.J.’s mother was arrested at the rape treatment center for aggravated child abuse. Dr. Rao conducted a vaginal examination of C.J. and used a colposcope to observe and document the status of C.J.’s hymen. Dr. Rao observed and documented several healed tears of the hymen, which made the opening of C.J.’s hymen bigger than it should be for a child of her age. According to Dr. Rao, C.J. did not show any natural signs of progression of the hymen tissue that might be present due to a child approaching puberty. Dr. Rao persuasively and credibly testified at hearing that C.J.’s history was consistent with her physical examination. According to Dr. Rao, the healed tears could have resulted from Respondent “trying to push his penis into her” consistent with C.J.’s history. Dr. Rao acknowledged the tears also could have been caused by a finger, a pencil, or any object that is bigger than the opening of the hymen. However, no evidence was presented at hearing indicating that a finger, pencil, or any other object was placed in the opening of C.J.’s hymen. Dr. Rao further acknowledged there was no physical evidence that she could discern or collect that identified Petitioner as the assailant in this case. However, in 1990, obtaining DNA samples and the gathering of other types of physical evidence in an effort to specifically identify perpetrators of sexual abuse were not as advanced and reliable as it is today. Following Dr. Rao’s examination on March 10, 1990, C.J. was separated from her mother, and her mother no longer had custody of her. C.J. lived with her maternal great grandmother, and without her mother in her life, until she was 16 years old. On March 27, 1990, Mercy Restani, a trained interviewer who was employed by the Dade County Children’s Center within the office of the State Attorney, interviewed C.J. at the children’s center. C.J. provided a detailed history to Ms. Restani. C.J. told Ms. Restani that the sexual abuse by Petitioner happened in the old house and at the new house. C.J. told Ms. Restani that Petitioner would get her out of her bedroom and take her into her mother’s bedroom. C.J. told Ms. Restani that Petitioner would touch her “pocketbook” (the child’s word for a vagina) with his “private” (the child’s word for penis). C.J. told Dr. Restani that Petitioner got on top of her, that he moved very fast, and that it hurt when he did so. C.J. said Petitioner touched her breasts, put his mouth on her “pocketbook,” and his “private” in her mouth. C.J. also told Ms. Restani that Petitioner told her he would kill her if she told anyone. Ms. Restani asked C.J. if she had told her mother or anyone about what had happened to her. C.J. told Ms. Restani that she did not tell her mother because she was afraid. C.J. told Ms. Restani that her mother “had been asking her for several days if Andrew had been messing with her.” When C.J. eventually told her mother what had happened, C.J. said her mother beat her with a baseball bat. On April 3, 1990, C.J. was interviewed by a clinical forensic psychologist, Manuel E. Alvarez, Ph.D. The purpose of the interview was to assess C.J.’s current mental status and emotional therapeutic needs. According to Dr. Alvarez, C.J. was able to distinguish between the truth and a lie. C.J. had the intelligence to comprehend what had happened to her, to be able to relate it to others, and she was competent to testify. C.J. provided a detailed history to Dr. Alvarez. Dr. Alvarez observed that C.J. was able to provide a synopsis of her living arrangements at the time of the incidents. C.J. identified her stepfather, “Andrew,” as the perpetrator of the sexual abuse. C.J. told Dr. Alvarez it occurred at the old house and current house. C.J. told Dr. Alvarez it occurred when Petitioner would wake her, take her into the room, and tell her to get onto the bed. C.J. was reluctant to verbally tell Dr. Alvarez what Petitioner did to her, but C.J. wrote it down on a piece of paper (Petitioner’s Exhibit 4) in her own handwriting: He would get on me. He would start moving fast on me. He would take out his private part. On my private part and In my mouth. C.J. also told Dr. Alvarez that after the incidents, Petitioner threatened to kill her if she told anyone about it. On April 5, 1990, C.J. executed an affidavit, attesting to the fact of her name, that she was eight years old, that she lived with her mother and Petitioner at a specific street address in Dade County, Florida, and that: Early in the morning on Friday, March 9, 1990, Andrew woke me up and took me to his bedroom. Andrew told me to take off my panties. He touched my breasts. He put his private part into my pocketbook. It hurt. He kissed me on my mouth and on my pocketbook. He had done this before. He told me he would kill me if I told. My mother asked me if anyone was messing with me. For several days I wouldn’t tell her. When I did tell her what Andrew did, she beat me with a baseball bat. In August 1990, C.J.’s mother entered a plea of nolo contendere to the offense of aggravated child abuse against C.J. She was adjudicated guilty, sentenced to community control, and ordered not to have any contact with C.J. until approved by the court. On October 22, 1990, C.J. gave a videotaped deposition in Petitioner’s criminal case, in which she provided details of the sexual abuse by Petitioner. In the deposition, C.J. described how Petitioner woke her up, took her to her mother’s room, touched her “pocketbook” with his mouth, and placed his “wee-wee” in her “pocketbook.” C.J. testified he moved his body around while putting his “wee-wee” in her “pocketbook,” and that it hurt when he did so. She testified that on another evening, Petitioner woke her up again, took her to her mother’s room, and touched her “pocketbook” with his hand moving up and down as he did so. She testified it happened at the new house and at the old house. Petitioner’s criminal jury trial was held in March 1991, before the Eleventh Judicial Circuit in and for Dade County, Florida, in the case of State of Florida v. Andrew Anthony Taylor, Case No. F90-009928. At Petitioner’s criminal trial, C.J. testified via closed circuit television that Petitioner came to her bedroom, woke her up, and took her to her mother’s room. C.J. testified that she was wearing pajamas and panties and that Petitioner removed them. Using anatomically correct dolls, C.J. showed the jury that Petitioner touched her vagina with his hand and put his mouth on her breasts. She further indicated that Petitioner put his mouth on her vagina and demonstrated how he put his penis in her mouth and vagina. C.J. testified that it hurt when Petitioner placed his penis in her “private part.” She testified she did not tell her mother about this that night because Petitioner said he would do something bad to her. C.J. testified that another incident occurred that same week where Petitioner did the same things to her. C.J. also testified Petitioner put something “greasy” on his “private part” before he put his “private part” in her “private part.” C.J. indicated Petitioner’s sexual abuse of her also occurred at the old house. C.J. testified that when she told her mother about Petitioner’s sexual abuse of her after the last incident, her mother became upset and hurt her. C.J. testified that when she told Dr. Rao she got all the bruises when her mother hit her with a baseball bat, it was the first time her mother ever hit her with a bat. C.J. testified she has not been able to live with or have contact with her mom since her mother hurt her. C.J.’s mother did not testify at the criminal trial against Petitioner because she had an open warrant for her arrest at the time for violating her community control. Petitioner testified at his criminal trial. Although Petitioner denied he sexually abused C.J., he acknowledged that he was C.J.’s stepfather; he married C.J.’s mother in 1989; he had a son with C.J.’s mother in 1998; he was having an extramarital affair with another woman; and while he divided his time between Maryland and Miami because of work, he was sleeping in the same home as C.J. during the timeframe that C.J. indicated she had been sexually abused by him. Following the criminal trial, Petitioner was convicted on March 15, 1991, of three counts of capital sexual battery and one count of lewd and lascivious behavior for the sexual abuse of C.J. Petitioner was sentenced to life in prison on the three capital offenses. The judgment and sentences were per curiam affirmed on appeal in Taylor v. State, 610 So. 2d 644 (Fla. 3d DCA 1992). After reporting the incidents of sexual abuse, C.J. went through counseling two times per week for several years. At no time did C.J. tell any therapists that she was not sexually abused by Petitioner. In 2006, C.J. was approached at her grandmother’s home by a male private investigator for Petitioner. The investigator wanted to ask C.J. questions about what happened with Petitioner, but C.J. refused to speak with the investigator. In either late 2013 or early 2014, C.J. was again approached by a private investigator for Petitioner, this time a female who came to C.J.’s place of employment (“Walmart”). The investigator wanted to ask C.J. if anything had happened with Petitioner. In response, C.J. immediately told her “no.” The investigator then gave C.J. a card, and C.J. told the investigator she would call her in couple of weeks. On February 17, 2014, C.J. executed an affidavit formally recanting the accusation that Petitioner sexually abused her when she was eight years old. In this affidavit, C.J. asserted now, at the age of 32, that she made the allegation because her mother was either drunk or high on drugs who would ask her “if anybody touched me inappropriately.” C.J. asserted that late one night after telling her mother that nobody touched me, her mother beat her with a baseball bat and started yelling, “did Andrew touch you.” C.J. asserted that after telling her mother no, her mother began to beat her and beat her for hours. C.J. asserted that after an extensive beating, she told her mother that “Andrew” had touched her so that she would stop beating her, and after telling her that Andrew touched her, the beating stopped. However, by this time, C.J. had developed a close relationship with her half-brother Andrew Taylor, Jr. C.J. further asserted: A while back, I began to talk with my half- brother, Andrew Jr., and would see him interacting with his own son. This started me thinking about what I had done and only I knew the real truth that Andrew was innocent. My conscience started bothering me every time I would see Andrew, Jr. playing and interacting with his son and it got to the point where I couldn’t sleep and hardly eat. I finally called my half-brother, Andrew Jr., and told him I needed to meet with him and explain what had happened regarding his father. I told Andrew Jr. that his father never touched me or bothered me sexually and that I was so sorry for his dad not being in his life because of what I did. I asked Andrew Jr. to forgive me and he agreed. I also asked Andrew Jr. what I should do and who I could write in order to correct this situation. Investigator Jeannie Rogers came to see me a few months ago and spoke to me about coming forward. I have finally gotten the courage to stand up and do what is right. On June 23, 2014, Petitioner filed a Motion for Post- Conviction Relief Based on Newly Discovered Evidence in Case No. F90-009928. The newly discovered evidence was C.J.’s recantation of the sexual abuse allegation against Petitioner. On April 2, 2015, an evidentiary hearing was held on the motion before Circuit Court Judge Diane Ward. At the hearing before Judge Ward, Petitioner presented the live testimony of C.J., who testified she made up the allegation that Petitioner sexually abused her because her mother beat her with a baseball bat to make her provide a false allegation against Petitioner. C.J. testified she told her mother Petitioner sexually abused her because she wanted the beating to stop. However, C.J. also testified when she told her mother that Petitioner sexually abused her, the beating did not stop, and her mother continued to beat her with the baseball bat for not telling her about the sexual abuse sooner. During the hearing before Judge Ward, C.J. acknowledged she provided specific details of sexual abuse by Petitioner to Dr. Rao, Ms. Restani, Dr. Alvarez, and in her prior testimony in the underlying criminal proceedings involving Petitioner. C.J. was asked how she could have had such knowledge of sexual activity as an eight year old in order to provide the details that she did to Dr. Rao, Ms. Restani, Dr. Alvarez, and in her testimony in the underlying criminal proceedings. In response, C.J. testified she came up with the details by watching cable television and walking in on her mother and Petitioner while they were having sex. At the hearing before Judge Ward, Respondent presented the live testimony of C.J.’s mother, who acknowledged she was a cocaine addict in March 1990. C.J.’s mother testified on direct examination that she recalled an incident in which she had returned home one night on March 5, 1990, and found C.J. lying in bed with her hands covering her front “private parts.” She testified that she could smell a “sexual scent” in the room and that she asked C.J. “what was wrong.” She testified C.J. did not indicate anything was wrong, but she was still suspicious something was wrong because of the sexual odor in the room. C.J.’s mother testified that due to this suspicion, she asked C.J. a second time on March 9, 1990, if “anyone had been messing with her.” According to C.J.’s mother, C.J. indicated this time that Petitioner “[h]ad been bothering her,” which meant that he had been sexually molesting her. C.J.’s mother testified on direct examination that when C.J. began telling her specific details of the abuse by Petitioner, she became irate and beat C.J. with a baseball bat. However, C.J.’s mother’s testimony as to when she began to beat C.J. with a baseball bat is inconsistent. C.J. and her mother acknowledged their relationship over the past several years has been good, and there is no current animosity between them. At the conclusion of the evidentiary hearing, Judge Ward orally announced her ruling that C.J.’s change in testimony is newly discovered evidence. In reaching this conclusion, Judge Ward specifically found C.J.’s testimony “reliable and credible.” Judge Ward commented she “had the opportunity to view her, and observe her during the testimony, and as well as consider any motive that she had for the recantation of her testimony.” On the other hand, Judge Ward specifically found the live testimony of C.J.’s mother to be “incredible.” In reaching this conclusion, Judge Ward commented that at the time of the events, she was by her own admission using drugs, and she had a poor recollection of the events, which is attributable to her drug use rather than to the passage of time. Judge Ward further stated: There were multiple lengthy pauses between the attorney’s questions and her answers where she seemed to be searching in her memory for answers. The Court observed that she seemed very hesitant and unsure of her own recollection of the events, and I further find that this is attributable to her extensive drug use, and that, and her intoxication on drugs at the time that this occurred. With regards to the beating, but with a baseball bat, although at some times she did acknowledge, did state that she beat her child with the baseball bat after she implicated the Defendant in the sexual assault, there were times that she said that she couldn’t recall and it could have been before she implicated her. And this is the most damaging testimony you could possibly have given the fact that there was no direct evidence otherwise implicating the Defendant as the person who sexually assaulted her. She did have six healed tears on her hymen which could have occurred at any time, and been caused by any other person. There was no DNA, blood evidence, semen, eyewitnesses, or a confession, so the only evidence that the State had, or the strongest evidence that the State had was the victim’s testimony, which was obviously obtained through a beating with a baseball bat by her mother when she was a very tiny child. The pictures of her are very sad at such a young age. There is no doubt that if a jury were to hear that the victim, hear from the victim that the Defendant was not the person that sexually abused her, and that she lied because her mother beat her with a baseball bat when she was eight years old, would have produced an, could have, would have produced an acquittal on retrial, and that the Defendant would probably be acquitted on retrial, so based on the foregoing I’m going to grant the motion for post-conviction relief. We need to schedule it for trial now. I think it has to be set in ninety days; isn’t that correct? Okay, I’ll answer my own question yes. Pet. Ex. 14, pp. 245-247. On April 2, 2015, a written order was entered vacating the finding of guilt, judgment, and sentence, and a hearing was scheduled for April 10, 2015, at which time a new trial date would be set. On April 10, 2015, the State announced a nolle prose of all criminal charges against Petitioner. On June 30, 2015, Petitioner timely filed a Petition to Establish Wrongful Incarceration in Case No. F90-009928. On July 31, 2015, Respondent filed a response contesting the petition. After the filing of the initial petition, a grand jury returned an indictment recharging Petitioner for the same crimes. C.J. was notified of the grand jury proceeding, but she did not appear or request a continuance. After the criminal case was re-filed, Respondent and Petitioner were unable to reach a settlement. On December 12, 2016, the second set of charges were nolle prossed. On January 25, 2017, Petitioner filed an amended petition. On March 17, 2017, pursuant to section 961.03(4)(a), Judge Ward issued an “Order Finding That Defendant Was a ‘Wrongfully Incarcerated Person’ and Is ‘Eligible for Compensation’ Pursuant to Section 961.03, Florida Statutes.” Judge Ward held that the petition was timely filed and that Petitioner met his burden of establishing, by a preponderance of the evidence, his “actual innocence” of the charges. Central to Judge Ward’s conclusion that C.J.’s recantation is reliable and that Petitioner met his burden of establishing his actual innocence by a preponderance of the evidence is that she had the opportunity to observe C.J. and her mother’s demeanor when they testified live at the April 2, 2015, evidentiary hearing on Petitioner’s motion for post-conviction relief. Judge Ward’s findings are largely based on credibility assessments of C.J. and her mother based on observations of their demeanor while testifying. In concluding that Petitioner established his “actual innocence” by a preponderance of the evidence, Judge Ward relied on the evidence presented at the April 2, 2015, evidentiary hearing on Petitioner’s motion for post-conviction relief. In the instant proceeding, however, Petitioner failed to meet his burden of establishing his actual innocence by clear and convincing evidence. Whether Petitioner is actually innocent turns on whether Petitioner presented clear and convincing evidence that C.J.’s recantation is reliable. The evidence presented in this case does not clearly and convincingly establish the reliability of C.J.’s recantation. To begin with, C.J. consistently provided details about sexual conduct perpetrated against her by Petitioner in her visits with Dr. Rao, Ms. Restani, and Dr. Alvarez, and in her prior deposition and trial testimony in the underlying criminal proceeding against Petitioner. C.J. gave details about how Petitioner would wake her up and take her to another room. She gave details about oral sex by Petitioner on herself and that she performed on Petitioner. She gave details about Petitioner using a lubricant on his penis. She gave details about how he would place his penis in her vagina and move up and down really fast. She said it hurt when he did so. Dr. Rao persuasively and credibly testified that the injuries to C.J.’s hymen were consistent with her history. C.J. consistently stated in 1990 and 1991 that her mother beat her with a baseball bat after she told her of the sexual abuse by Petitioner. Over 20 years later, C.J.’s story changed, and she stated that her mother beat her with a baseball bat before she told her of the sexual abuse by Petitioner. In her recantation affidavit, C.J. stated that after telling her mother that Petitioner touched her, the beating stopped. However, in the hearing before Judge Ward, C.J. testified that her mother continued to beat her with the baseball bat after she told her about the abuse for not telling her about the abuse sooner. From March 10, 1990, when C.J. was removed from her mother until she was 16 years old, C.J. had many opportunities to come forward and recant the allegation of abuse against Petitioner. During this time, there was no reason for C.J. to fear her mother because her mother was not in C.J.’s life. Subsequently, C.J. and her mother developed a good relationship. However, Petitioner waited almost 24 years to recant. C.J. recanted after developing a relationship with her half-brother, Andrew Taylor, Jr. When Andrew Taylor, Jr., turned 18 years old, he began a relationship with his father, Petitioner. Prior to recanting, C.J. regretted her half-brother did not get to spend quality time with Petitioner because Petitioner was in prison. C.J.’s development of a relationship with her half-brother and her desire that he have a strong relationship with Petitioner could be a motive for her recantation. C.J. did not appear before the grand jury, she did not request a continuance, and she was not called as a witness at either of the hearings in the instant matter. The undersigned lacked the opportunity to observe C.J.’s demeanor because she was not called to testify as a live witness. However, the undersigned had the opportunity to observe C.J.’s demeanor while testifying in her videotaped deposition in 1990, at which time she testified credibly and persuasively to facts demonstrating that Petitioner sexually abused her. Petitioner was called as a witness at the August 8, 2017, hearing, at which he was simply asked on direct examination if he ever molested C.J., to which he responded no. Petitioner’s testimony at the hearing was unpersuasive.
Findings Of Fact Standing. The Petitioner, Roger Smith, is an inmate in the custody of the Department of Corrections. The Petitioner is subject to the rules of the Respondent, the Florida Parole Commission, including the Challenged Rule. The Petitioner is serving a "parole eligible sentence." The Petitioner's eligibility for parole has been determined by the Respondent. The Petitioner was convicted of the offense of escape and, therefore, the Respondent applied the Challenged Rule to the Petitioner. The Respondent. Sections 947.07 and 947.13, Florida Statutes, authorize the Respondent to adopt rules governing the parole of inmates in the State of Florida. Among other things, Section 947.13, Florida Statutes, authorizes the Respondent to determine who is placed on parole and to fix the time and conditions of parole. Pursuant to Sections 947.07 and 947.13, Florida Statutes, the Respondent promulgated the Challenged Rules. Rule 23-21.018(1) and (7), Florida Administrative Code. Rule 23-21.018(1) and (7), Florida Administrative Code, provides the following: Vacation of presumptive or effective parole release date: The exiting of an inmate from the incarceration portion of his sentence, which shall include but not be limited to bond, escape, parole or MCR release, expiration of sentence, or transfer to a mental health facility, shall vacate any established presumptive parole release date. Any subsequent return to incarcerations will require an initial interview to establish a presumptive parole release date. Provided, however, inmates returning to court for modification of a previously imposed sentence or as witnesses shall not have their presumptive parole release dates vacated. Inmates returning to courts outside of Florida's jurisdiction, i.e, Federal or other state, shall not have their presumptive parole release dates vacated. However, information resulting from disposition of cases in court may be used as new information in accordance with applicable law and these rules. Inmates transferred to a Mentally Disordered Sexual Offender Program shall not have their presumptive parole release dates vacated. . . . . Conviction for crimes committed while incarcerated: Escape or any other crime committed during incarceration with an ensuing conviction and sentence vacates any previously established presumptive parole release date and shall cause the inmate to be considered a new admission. If the inmate is found to be eligible for consideration for parole, the Commission shall aggregate.
Findings Of Fact Some time before May 15, 1992, the Petitioner, Executive I & II, Inc., applied for licensure to operate as an adult congregate living facility (ACLF). (It had been, and is still, operating as a licensed boarding home.) The exact date of the application, or how long before May 15, 1992, the application was made, is not clear from the evidence. The facility operated by the Petitioner is the same facility that was the subject of Division of Administrative Hearings (DOAH) Case Nos. 90-3356 and 90-3791. Before and during the pendency of those proceedings, the facility was owned and operated by Kriscour, Inc., d/b/a Executive I & II. Kriscour, Inc., is a separate legal entity from the Petitioner. The sole owner and operator of the Petitioner was the sole owner and operator of Kriscour, Inc., until October 10, 1989, when he became a 49% owner of Kriscour and ceased all involvement in the operation of the facility. Throughout, however, he owned the real property operated by Kriscour and by the Petitioner. In DOAH Case No. 90-3356, HRS sought to revoke Kriscour's conditional ACLF license. While it was pending, Kriscour applied for renewal of the license, and HRS denied renewal. Kriscour initiated formal administrative proceedings, which became DOAH Case No. 90-3791. The two cases were consolidated at DOAH. Ultimately, they resulted in an HRS Final Order denying the renewal application and "cancelling" the conditional license. Kriscour appealed the Final Order to the District Court of Appeal, Second District of Florida, where it was given Case No. 91-00751. Kriscour obtained a stay of the Final Order and continued to operate the facility as an ACLF during the appellate proceedings. Meanwhile, on or about November 26, 1991, the Petitioner, Executive I & II, Inc., was formed and became licensed to operate the facility as a boarding home. The Petitioner made extensive renovations and improvements to the physical plant. At the same time, Kriscour continued to operate the facility as an ACLF. Ultimately, the appellate court upheld the Final Order. The court's Mandate, which operated to dissolve the stay, was entered on January 2, 1992. On or about that date, Kriscour ceased to operate the facility as an ACLF and began operating the facility as a boarding home. To date, the Petitioner has operated the facility exclusively as a boarding home.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order denying the application of the Petitioner, Executive I & II, Inc., for licensure to operate as an ACLF. RECOMMENDED this 21st day of October, 1992, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 21st day of October, 1992.
Findings Of Fact At all times relevant and material to this proceeding, the Respondent, Willie Marion Ware (Licensee), held license number 74-00564, series 2-COP, authorizing him to sell alcoholic beverages on the premises doing business as Silver Shadow, located at 918 S. Adelle, Deland, Volusia County, Florida (the premises). Between the dates of July 1, 1989, and October 30, 1991, the Licensee's brother, Earl M. Ware (a/k/a Joe or Little Joe), was a convicted felon. The Licensee's brother, Earl M. Ware, was convicted less than five years ago for selling cocaine inside the licensed premises. The Licensee fully knew that his brother, Earl M. Ware, was and is a convicted felon who is prohibited from being employed as person in charge, bartender, or manager. Contrary to agreements made by Licensee in a previous case with this same charge and despite notice by Deputy Bowman, Licensee has continued to employ his brother, Earl M. Ware, as a person in charge, bartender or manager. At various times relevant to this proceeding, the Licensee's brother, Earl M. Ware, possessed keys to enter the premises and open the locked door to the premises and he opened the premises to the public without any supervision by Licensee or by any other employees. Earl M. Ware worked inside the premises when there were no other employees or the Licensee present inside the premises. In fact, Earl M. Ware was the only person in charge for extended periods of time, particularly on Sundays. The Licensee's brother, Earl M. Ware, worked behind the bar, asked clients what they wanted to drink, retrieved the alcoholic beverage orders, served those alcoholic beverages to clients, charged clients for those alcoholic beverages, and took money from clients for those alcoholic beverages. Between July 1, 1989, and October 30, 1991, the licensed premises were a continuing nuisance. Complaints regarding or involving the premises and its parking lot owned by Licensee were more than double those of the other two licensed premises located within 5 blocks of Licensee's premises. The complaints ranged from possession of drug paraphernalia and sale of narcotics, to armed robbery and attempted murders of law enforcement officers. Deputy Brown, in particular, testified that he purchased crack cocaine right at the front door of the premises. Deputy Brown also observed numerous narcotics transactions taking place inside the premises, while Licensee was inside the premises. Deputy Brown also made several purchases of cocaine in the parking lot of the Silver Shadow when the dealer advised that he was not holding the drugs and he then went inside the Silver Shadow to retrieve the drugs to be sold. Deputy Boltz removed two males under age 21 from the bathroom of the Silver Shadow, one of whom had a gun in his pocket. Deputy Bowman followed up on a complaint by a man who said he was beaten and robbed in the Silver Shadow. Deputy Bowman was advised by "Joe" that a fight occurred and that he had broken it up. The shoe missing from the complainant's foot was found by Bowman in the back corner of the bathroom. Deputy Bowman notified Licensee several times between the dates of July 1, 1989, and October 30, 1991, that the premises was fostering illegal activity, particularly narcotics activity. Every deputy who testified identified multiple occasions when he found containers of cocaine, bags with drug residual, and drug paraphernalia on the premises. They also each smelled marijuana and crack cocaine being smoked on the premises. Licensee was made aware of the incidents and told the law enforcement officers that he couldn't check or control the use of drugs on the premises. The Licensee never contacted the Sheriff's Office and never asked any of the deputy sheriff's specifically assigned to work the area to come inside his premises to enforce any criminal laws. Licensee did not contact the police when he knew that a criminal was hiding the gun used in an attempted murder of a police officer inside the premises. The Licensee denied ever speaking with Deputy Bowman regarding the continued illegal activity inside the premises. According to the Licensee, there is no illegal activity taking place inside the premises. This testimony is simply not worthy of belief. While the Licensee did attend community meetings and did place no trespassing signs in the adjoining parking lot, he had never asked any law enforcement officer to remove anyone from his premises. The Licensee acknowledged that he did not feel it was his duty to police his premises and identify persons who are engaging in illegal activity to the law enforcement authorities. According to the Licensee, that was the job of the police, and not his responsibility. In DABT Case No. AY74870121, Licensee's license was suspended and fined for multiple instances of the sale of crack cocaine on the premises by Earl M. Ware and for keeping an establishment used by persons using controlled substances and thereby deemed a public nuisance. The Final Order in that case was entered on May 25, 1989. In that proceeding, Licensee made various assurances regarding the exclusion of Earl M. Ware from the premises and the implementation of various devices meant to discourage and prevent any sale and use of drugs on the premises. Despite that Final Order and the terms thereof, the proof in this case shows that these same violations continued from July 1, 1989, to November 1, 1991, without cease.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco enter a Final Order and therein: Find that the Licensee, Willie Marion Ware, is guilty of the first count of employing a convicted felon. Find that the Licensee is guilty of the second count of maintaining a nuisance. Find that the previous conviction history of this Licensee for similar offenses is a sufficient aggravating factor to exceed the penalty guidelines Revoke license No. 74-00564, Series 2-COP, issued to Willie Marion Ware d/b/a Silver Shadow. DONE and ENTERED this 29th day of September, 1992, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 1992. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-3333 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, DABT 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-6(1-6); 7-10(6-9); 11-16(9-14); 17(18); and 18-22(21-24). COPIES FURNISHED: Richard W. Scully, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, FL 32399-1000 Donald D. Conn, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000 Monica Atkins White Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 Reginald Moore Attorney at Law Post Office Box 1848 Daytona Beach, FL 32115-1848
