Recommendation By reason of the foregoing facts and conclusions, I hereby recommend that the Respondent's registration be revoked. DONE and ENTERED this 24th day of August, 1976, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact Based upon the oral and documentary evidence adduced at the Final Hearing and the entire record in this proceeding, the following findings of fact are made: On March 3, 1994 Petitioner submitted to the Department an application for licensure as a Limited Surety Agent (Bail Bondsman). In a Denial Letter dated July 20, 1994, the Department notified Petitioner that his application for licensure was denied. The basis for the Department's denial of Petitioner's application was Petitioner's past felony convictions. The evidence established that on or about December 4, 1980, Petitioner was charged in the Circuit Court for the Twelfth Judicial Circuit of Florida, Case Number 80-105 (the "First State Case"), with trafficking in illegal drugs and the use of a firearm during the commission of a felony in violation of Sections 893.135 and 790.07, Florida Statutes. On June 5, 1981, Petitioner pled no contest in the First State Case to trafficking in excess of two thousand (2,000) pounds, but less than ten thousand (10,000) pounds of cannabis. Petitioner was fined and placed on probation for ten (10) years. On or about June 14, 1981, Petitioner was charged in the United States District Court, Southern District of Florida, Case Numbers 83-6033-CR-EPS and 83-6038-CR-NCR (the "Federal Cases"), with five felony counts of possession with intent to distribute illegal drugs and conspiracy to import illegal drugs into the United States of America, in violation of Title 21, Sections 841(a)(1), 846, 952(a), 960(a), 963, and 843(b), United States Code. On or about November 5, 1981, Petitioner was charged in the Circuit Court for the Twentieth Judicial Circuit of Florida, Case Number 81-1191 CFG (the "Second State Case") with violation of the Florida Racketeer Influence and Corrupt Organization Act ("RICO"), Section 943.462, Florida Statutes. Although the exact timing is not clear, at some point after his arrest, Petitioner began cooperating with authorities which led to plea bargains and a sentence which did not include any jail time. On April 4, 1984, Petitioner pled guilty to one count in each of the Federal Cases to attempt and conspiracy to import marijuana and methaqualaudes into the United States of America. As a result of his plea in the Federal Cases, Petitioner was fined and placed on 5 years probation. On April 6, 1984, Petitioner pled guilty in the Second State Case, was fined $7,500.00 and placed on probation for fifteen (15) years. This plea was negotiated as part of the plea in the Federal Cases. Petitioner's probation from the First State Case was terminated May 20, 1988. Petitioner's probation from the Federal Cases was terminated on April 21, 1989 and September 11, 1989. Petitioner's civil rights were restored pursuant to Executive Orders of the Office of Executive Clemency dated May 19, 1989 and May 23, 1990. It is not clear from the record if the Executive Orders constitute a "full pardon" as suggested by counsel for Petitioner at the hearing in this matter. Petitioner down plays his role in the elaborate criminal scheme that led to his arrests and convictions. He suggests that all of the charges were related to the same scheme. Insufficient evidence was presented to reach any conclusions regarding the underlying criminal activity and/or Petitioner's exact involvement. Petitioner has been very active in community affairs since his convictions. He has apparently been a good family man and claims to have rehabilitated himself. Subsequent to his conviction, Petitioner and three other investors started a bail bond business. Petitioner claims he did not play an active role in the business. However, when the Department learned of his involvement, it required Petitioner to terminate any affiliation with the company. Petitioner's wife currently owns a bail bond company. Petitioner operates a "court services" business out of the same building where his wife's bail bond business operates. No evidence was presented of any improper involvement by Petitioner in his wife's business.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Insurance and Treasurer enter a Final Order denying Petitioner's application for licensure as a Limited Surety Agent. DONE AND RECOMMENDED this 2nd day of August, 1995, in Tallahassee, Leon County, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4893 Rulings on the proposed findings of fact submitted by the Petitioner: Subordinate to findings of fact 4 through 10. Subordinate to findings of fact 13. Rejected as unnecessary. Adopted in substance in findings of fact 1. Adopted in substance in findings of fact 2. Adopted in the Preliminary Statement. Rejected as vague and unnecessary. Subordinate to findings of fact 14 and 15. Subordinate to findings of fact 14 and 15. Rulings on the proposed findings of fact submitted by the Respondent: Adopted in substance in findings of fact 1. Adopted in substance in findings of fact 2. Adopted in substance in findings of fact 2 through 10. Subordinate to findings of fact 14. Rejected as argumentative and unnecessary. COPIES FURNISHED: Bill Nelson State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-0300 Dan Sumner Acting General Counsel Department of Insurance The Capitol, PL-11 Tallahassee, FL 32399 Julio Gutierrez, Esq. 2225 Coral Way Miami, FL 33145 Allen R. Moayad, Esq. Florida Department of Insurance and Treasurer 612 Larson Building 200 E. Gaines Street Tallahassee, FL 32399-0300
The Issue Whether Petitioner's application for licensure as a real estate sales associate or broker should be granted.
Findings Of Fact The Parties Petitioner, who was 49 years old at the time of the final hearing in this cause, is an applicant for licensure as a real estate sales associate or broker. Respondent Florida Real Estate Commission is authorized to certify for licensure persons who are qualified to practice as real estate brokers and sales associates in the state of Florida. Petitioner's Criminal History On April 15, 1986, Petitioner was arrested in Middleton, New York, for the charge of second degree assault. Petitioner ultimately pleaded guilty to the reduced charge of third degree assault and was ordered to pay a fine of $300. In or around June 1990, the State Attorney for Florida's Fifteenth Judicial Circuit charged Petitioner, in case number 91-239207, with one count of burglary of a dwelling (a second degree felony), three counts of grand theft (each a third degree felony), and two counts of dealing in stolen property (each a second degree felony). Subsequently, on August 14, 1991, Petitioner pleaded guilty to each of the foregoing charges and was sentenced to eight months of incarceration in the Palm Beach County jail. Approximately seven years later, the United States Attorney for the Southern District of New York indicted Petitioner for wire fraud. On July 8, 1998, Petitioner pleaded guilty to the charge and was sentenced to 30 months of imprisonment, followed by a term of probation (the exact length of which is not established in the instant record). Petitioner was also ordered to pay $745,000 in restitution to the victim(s) of his fraudulent behavior. Subsequently, in or around 2003, Petitioner——having previously completed his prison sentence——fell behind on his restitution payments, at which point the government violated his supervision. As a result, Petitioner was incarcerated for approximately 30 days until his wife's family satisfied the arrearage of $26,230.61. Although not established precisely by the testimony or exhibits, it appears that Petitioner's supervision in connection with the wire fraud charge was terminated in 2005 or 2006 and that the outstanding restitution balance of $500,000 was reduced to a civil judgment. Application for Licensure and Intent to Deny On May 16, 2011, Respondent received Petitioner's application for licensure as a real estate sales associate or broker. In the application, Petitioner properly responded "yes" to question number one, which asked, among other things, if he had ever pleaded guilty or no contest to a crime in any jurisdiction. Subsequently, on May 20, 2011, Respondent advised Petitioner in writing that it required: [T]he full details of any criminal conviction . . . including the nature of any charges, outcomes, sentences, and/or conditions imposed; the dates, name and location of the court and/or jurisdiction in which the proceeding were held or are pending . . . . (emphasis added). Nearly one month later, on June 17, 2011, Respondent received an eight-page facsimile from Petitioner, which included, in relevant part: the second page of the federal criminal judgment, a document which actually consists of six pages1/ (the other five pages are not part of the record, nor does it appear that they were provided to Respondent); the judgment and sentence in connection with the Florida burglary, grand theft, and dealing in stolen property charges; and, as quoted below, Petitioner's vague explanations of the New York assault charge, Florida offenses, federal mail fraud charge, and probation violation: [New York assault charge] Pled guilty to a fight. Fined $300. [Florida charges] [S]tems from one arrest pled guilty sentenced to 8 months jail time. There is an error in record it looks like several arrest [sic] but it was only one document provided. [Federal wire fraud charge] [A] single charge of wire fraud sentenced to 30 months ordered to pay restitution. [Federal probation violation] I was violated for being unable to keep up with restitution payments was released after paying the sum of $26230.61. On July 16, 2010, Respondent filed its Notice of Intent to Deny Petitioner's application for licensure. The intended denial was based upon the following reasons: B. Failing to demonstrate: honesty, truthfulness, trustworthiness and good character, a good reputation for fair dealing competent and qualified to conduct transactions and negotiations with safety to others. G. Convicted or found guilty or entered a plea of nolo contendre to, regardless of adjudication, a crime which directly relates to activities of a licensed broker or sales associate or involves moral turpitude or fraudulent or dishonest dealing. M. The Commission concludes that it would be a breach of its duty to protect the health, safety and welfare of the public to license this applicant and thereby provide him/her easy access to the homes, families or personal belongings of the citizens of Florida. Petitioner's Final Hearing Testimony During the final hearing, Petitioner testified that he has not been arrested since 2003——when he was violated for the restitution arrearage——and that he presently manages an automobile dealership. Regarding his criminal conduct, Petitioner offered very little detail other than a brief explanation that the wire fraud charge involved a scheme in which he ordered laptop computers but never paid for them. Notably, Petitioner expressed no remorse for his conduct, either during his hearing testimony or in the written materials submitted to Respondent during the application process. Further, and equally troubling, Petitioner conceded that he has made no payments whatsoever against the outstanding restitution judgment since 2006. With respect to the Florida burglary, dealing in stolen property, and grand theft charges (to which he pleaded guilty), Petitioner testified that he did not commit a burglary and that he only attempted to pawn items that had been stolen by somebody else——an explanation the undersigned finds dubious at best. Once again, Petitioner expressed no remorse for his criminal misdeeds.2/ As to the present state of his character, Petitioner testified that he now values——and recognizes the importance of—— honesty, a good reputation, and fair dealing. However, other than these self-serving remarks, his present employment, and the absence of any recent arrests, Petitioner offered no persuasive evidence of his honesty or character. Further, no credible evidence was adduced concerning his reputation for fair dealing. Ultimate Factual Findings The undersigned determines, as a matter of ultimate fact, that Petitioner failed to demonstrate that he is honest, trustworthy, of good character, and has a reputation for fair dealing, all of which are requirements for licensure as a real estate professional. Furthermore, the undersigned finds, as a matter of ultimate fact, that the statutory disqualification of eligibility that flows from a guilty plea to one or more crimes involving moral turpitude has not been overcome by way of subsequent good conduct and lapse of time.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Real Estate Commission issue a Final Order denying Petitioner's application for licensure as a real estate sales associate or broker. DONE AND ENTERED this 20th day of January, 2012, in Tallahassee, Leon County, Florida. S Edward T. Bauer 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 20th day of January, 2012.
The Issue The issue in this case is whether Respondent violated Section 475.25(1)(m), Florida Statutes (1997), by obtaining a license by fraud, misrepresentation, or concealment. (All Chapter and Section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for the regulation and discipline of real estate licensees in the state. Respondent is licensed in the state as a real estate sales person pursuant to license number 0640934. The last license issued to Respondent was c/o Raizor Realty, Inc., 12007 Cypress Run Road, Orlando, Florida 32836. On July 3, 1996, Respondent applied for a license as a real estate salesperson. On the application, Respondent signed a sworn affidavit that all of his answers were true and correct and: . . . are as complete as his/her knowledge, information and records permit, without any evasions or mental reservations whatsoever. . . . Question nine on the application asked Respondent whether he had ever been convicted of a crime, found guilty, or entered a plea of nolo contendere, even if adjudication was withheld. Respondent answered "no." Petitioner relied on the accuracy of the application and issued a license to Respondent. Respondent is active in the practice of real estate and depends on his license to earn a living. Respondent has no prior disciplinary history and has been licensed for approximately two years. On February 20, 1985, Respondent was adjudicated guilty of misdemeanor theft. The court suspended the sentence. Petitioner had changed the price stickers on a pair of shoes valued at $20 and on a jar of vitamins. The court found Respondent guilty of misdemeanor theft, fined him $100, and sentenced him to 30 days in jail. The jail sentence was suspended pending completion of six-months' probation. Respondent completed probation in a satisfactory and timely manner. Respondent did not willfully misstate a material fact. He conferred with friends. They advised Respondent that the matter was immaterial and more than seven years old. Respondent answered no to question nine on his application in the good faith belief that the crime was immaterial and not the type of offense addressed in the question. When Petitioner's investigator inquired of Respondent, Respondent answered all questions fully and truthfully and cooperated in the investigation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order finding Respondent not guilty of violating Section 475.25(1)(m), and dismissing the charges against Respondent. DONE AND ENTERED this 15th day of December, 1998, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 15th day of December, 1998. COPIES FURNISHED: Laura McCarthy, Senior Attorney Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Frederick H. Wilsen, Esquire 1999 West Colonial Drive, Suite 211 Orlando, Florida 32804 James Kimbler, Acting Division Director Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The Respondent Michael Rush is a Doctor of Podiatry having been issued license number PO 0000529. The Respondent Rush was charged with and convicted of conspiracy to possess and import marijuana, Title 21 USC 841(a)(1), in the United States District Court, Connecticut. On March 30, 1981, the Respondent's conviction was affirmed, United States v. Rush, 666 F.2d 10 (2nd Cir. 1981). The Respondent Rush was incarcerated for a period of fourteen months, paid a fine of $15,000 and forfeited $33,000 from his savings account to the federal government pursuant to 21 USC 881(a)(6)(1976). The Respondent Rush is a resident of Broward County, Florida and maintains a professional office at 4700 Sheridan Street, Hollywood, Florida. Prior to the instant conviction, the Respondent Rush had never been charged with or convicted of any crime. The Respondent Rush has been active in community affairs, having participated in Little League, Boy Scouts, the Broward County Fair, and has received character references from a variety of local community leaders. The Respondent Rush is currently practicing his profession, has obtained professional liability insurance through the Podiatry Trust and is on the staff of Community Hospital of North Broward and Hollywood Pavillion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Administrative Complaint filed against Michael Rush by the Board of Podiatry be dismissed. DONE and ORDERED this 30th day of December, 1982, in Tallahassee, Florida. SHARYN L. SMITH, 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 30th day of December, 1982.
Findings Of Fact The parties stipulated to the facts alleged in paragraphs 1, 2, 3 and 4 of Count I of the Administrative Complaint, and to the facts alleged in paragraphs 1, 2, 3 and 4 of Count II, and the fact of the arrests as set forth in paragraphs 5 of Count I and Count II. The evidence indicates that Respondent applied for a Florida Real Estate Salesman's License on January 20, 1973, and thereon replied in answer to question 9, "Yes. Arrested for speeding by State Road Patrol. Do not have records. Occurrence over five years ago." On his January 15, 1975 application, Page responded to question 6, "Yes, traffic offenses." With regard to the application dated January 20, 1973, which is the subject of Count I, the evidence of arrest for traffic offenses reveals Page was arrested on April 6, 1969; October 8, 1970; and October 30, 1971. Obviously, Page could not report his arrest in January 2, 1973 on his application filed six months prior. Although Page indicated his arrest had been five years previous to his 1973 application, while in fact the last arrest had been 14 months before, the fact he reported these traffic offenses indicates that he did not seek to conceal these arrests or violate the statute. With regard to January 15, 1975 application, Page again referenced traffic offenses in response to question 6 but did not provide any information regarding any other arrests or charges. Clearly, the record of arrests for passing worthless bank checks, assault, and a family offense were not reported on either application. Page explained that these checks were issued by him during the period of a divorce and domestic turmoil and that this had resulted in the overdrafts. Each of these charges were dismissed upon restitution and payment of cost. Page did not explain the nature of the assault and battery charge, however, the record indicates it was dismissed upon nonappearance of the complaining witness. The Hearing Officer further notes that the record presented is not of an arrest but rather of an Information filed by the County Regarding the family offense, the only records introduced relative to this charge are an Information dated June 15, 1974 and the accompanying order of dismissal which indicates that the Information was improperly filed because the court lacked jurisdiction to consider the offense. The Hearing Officer finds, based on the facts relating to the traffic offenses, that the Respondent, Page, did not conceal or misrepresent these arrests. Clearly, he referred to traffic arrest or offenses on both his 1973 and 1975 applications. While his references nay have been less complete than one would desire, they evidence no intent to misrepresent or conceal the arrest and were apparently sufficient from the record presented at hearing for the Commission's staff to develop the details relevant to them. The charges relating to passing worthless bank checks were not reported on the application. Page explained the reason for these arrests at hearing, but offered no explanation of why they were not reported. The information charging Page with criminal non-support was improper from the outset as indicated in the Order of Dismissal because the court lacked jurisdiction over the subject. It is questionable whether there was an arrest, and the charge was a nullity. This "offense" was obviously related to the domestic problem which Page had had, not a criminal matter.
Recommendation Based on the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Commission exercise its discretion and approve Pace's applications for registrant as a salesman and broker-salesman, as it were, nune pro tunc, and take no action against his registrations. DONE and ORDERED this 23rd day of April, 1976. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Charles Felix, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Gordon I. Page c/o Glenn D. Gerke 513 West Central Avenue Winter Haven, Florida 33880
Recommendation By reasons of the foregoing Facts and Conclusions of Law, I recommend that the Respondent's license be revoked. DONE and ORDERED this 4th day of August, 1976, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact On August 21, 1990, the Petitioner submitted an application for licensure as a real estate salesman in the state of Florida. Item 7 of the licensure application form required the applicant to answer the following question: "Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld?" Petitioner responded yes to that question. The application form provided that "If you answered 'YES,' please state the details including dates and outcome in full. (Use separate sheet if necessary)." The only response provided by Petitioner was "1970 found guilty shooting a firearm in a dwelling - served 28 months Avon Park and work release." In fact, Petitioner has been arrested and/or convicted on several other occasions that were not listed on his application. On October 19, 1964, the Petitioner was found guilty of breaking and entering an automobile, petit larceny, and carrying a concealed weapon in Case 64-755 in the Criminal Court of Record in and for Dade County, Florida. Petitioner was placed on probation for a period of one year in connection with that case. On August 13, 1975, the Petitioner entered a plea of guilty to a charge of unlawfully and feloniously breaking and entering a dwelling with the intent to commit a felony therein, to-wit: grand larceny. The court suspended imposition of sentence, withheld adjudication of guilt and placed the Petitioner on probation for a term of five years. This case was Case Number 75-5081 in the Circuit Court of the Eleventh Judicial Circuit of Florida in and for Dade County. On June 18, 1976, the Petitioner entered a plea of guilty to robbery, shooting into an occupied dwelling, and unlawful possession of a firearm while engaged in a criminal offense. Petitioner was sentenced to five years in the state penitentiary. The case was Case No. 76-3328 in the Circuit of the Eleventh Judicial Circuit of Florida in and for Dade County. Apparently, this was the case the Petitioner was referring to in the disclosure set forth in his Application. However, the application lists the date of conviction as 1970 and the offense actually took place in 1976. As a result of the Petitioner's conviction in Case No. 76-3328, his probation in Case No. 75-5081 was violated and Petitioner was ordered to serve two years in the state penitentiary to run concurrently with the sentence in Case No. 76-3328. The violation of probation order was entered on June 18, 1976. In an Information dated April 26, 1982, the Petitioner was charged with disorderly conduct and two counts of resisting an officer without violence. The charges were assigned Case No. 82-61725 in the County Court for Dade County, Florida. Petitioner was found guilty of the two charges of resisting arrest without violence and was fined on June 21, 1982. On February 22, 1988, the Petitioner entered a plea of Nolo Contendere to the offense of battery on a law enforcement officer in Case No. CR-87-6784 in the Circuit Court of Orange County, Florida. On February 24, 1988, the court entered an order withholding adjudication and placing Petitioner on probation for two years. On November 29, 1988, the Petitioner entered a plea of guilty to two counts of grand theft in the third degree in Case Nos. 88-21122 and 88-21123 in the Circuit Court for the Eleventh Circuit in and for Dade County, Florida. The Petitioner was ordered to serve one day imprisonment as a result of those convictions.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Florida Real Estate Commission enter a final order denying the Petitioner's application for licensure as a real estate salesman in the State of Florida. RECOMMENDED in Tallahassee, Leon County, Florida, this 16th day of May 1991. 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 16th day of May 1991. COPIES FURNISHED: Mr. Stephen C. Stein 2515 Northeast 208th Terrace North Miami Beach, Florida 33160 Manuel E. Oliver, Esquire Department of Legal Affairs 400 West Robinson Street Suite S107 Orlando, Florida 32801 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Darlene F. Keller Division Director Division of Real Estate Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801
The Issue The issue presented is whether Respondent should deny Petitioner's application to be licensed as a resident personal lines insurance agent.
Findings Of Fact Respondent is the state agency responsible for licensing insurance agents in the state pursuant to Chapter 626, Florida Statutes (2004). On October 29, 2004, Respondent received Petitioner's application to be licensed as a resident personal lines insurance agent (insurance agent). On October 13, 2005, Respondent issued a Notice of Denial to Petitioner. Respondent based the denial on several grounds that fall into three categories. The first category is based on Petitioner's prior criminal history. In relevant part, the Notice of Denial denies the application because Petitioner pled nolo contendere to a crime punishable by imprisonment of one year or more. The Notice of Denial further states that the crime was one of moral turpitude and that Subsection 626.611(14), Florida Statutes (2004), makes denial of the application compulsory. Even if the crime were not one of moral turpitude, the Notice of Denial states that the plea of nolo contendere provides a discretionary ground to deny the application pursuant to Subsection 626.621(8), Florida Statutes (2004). The Notice of Denial states a second category of grounds that are also compulsory. The second category of grounds may be fairly summarized as alleging a lack of fitness or trustworthiness to engage in the business of insurance. The second category of grounds generally relates to turpitude inherent in the criminal offense and an inaccurate application answer stating that Petitioner had no prior criminal record. The Notice of Denial states that Petitioner lacks one or more qualifications for the license, that Petitioner committed a material misstatement or misrepresentation on her application, and that Petitioner demonstrated a lack of fitness or trustworthiness to engage in the business of insurance as provided in Subsections 626.611(1), 626.611(2), and 626.611(7), Florida Statutes (2004). The third category of grounds relates to waiting periods. The Notice of Denial states that Petitioner must wait 17 years from the date she pled nolo contendere before applying for a license as an insurance agent. The waiting period is based on agency rules in Florida Administrative Code Rules 69B-211.042(4)(b) and 69B-211.042(8) that are promulgated pursuant to Subsection 626.207(1), Florida Statutes (2004). The remaining Findings of Fact address the factual sufficiency of the second category of grounds for denial. The conclusions of law, in relevant part, address the legal sufficiency of the remaining grounds for denial. The criminal record of Petitioner is not disputed. On October 4, 2004, Petitioner pled nolo contendere to a third degree felony of grand theft in the Circuit Court in and for Pasco County, Florida, Case No. CRCO4-1177-CFAES. The court withheld adjudication of guilt and imposed fines and costs of $395. Petitioner served 30 days in the Pasco County jail. The court placed Petitioner on supervised probation for 18 months, which Petitioner successfully terminated early on September 27, 2005. Petitioner contests neither the inaccuracy of the application answer stating she had no prior criminal record nor the materiality of the inaccuracy. However, Petitioner does contest the agency's assertion that Petitioner possessed the culpable knowledge or scienter required to misstate, misrepresent, or commit fraud in attempting to obtain a license within the meaning of Subsection 626.611(2), Florida Statutes (2004). Petitioner also contests the assertions that she lacks one or more qualifications for licensure and that she lacks fitness or trustworthiness within the meaning of Subsections 626.611(1), 626.611(2), and 626.611(7), Florida Statutes (2004). Petitioner testified that her employer submitted her application electronically. Petitioner testified that she gave her employer accurate information concerning her application, but she did not review the application before transmission. The trier of fact finds the testimony concerning Petitioner's lack of culpable knowledge to be credible and persuasive. Petitioner testified with extraordinary candor. Her demeanor was frank and unguarded. Her denial of culpable intent to mislead the agency is consistent with the totality of evidence in this proceeding and with Petitioner's demonstrated fitness and trustworthiness after November 2002. After Petitioner gave birth to a son on March 20, 2002, her treating physician advised her to undergo a tubal ligation, and the subsequent surgery was successful. The resulting inability to bear more children, however, led Petitioner into a mental state that was subsequently diagnosed as severe clinical depression. Petitioner returned to work approximately 12 weeks after surgery. From August 2002 through November 2002, Petitioner engaged in an episode of compulsive spending in which she incurred approximately $70,000 in credit card debt that she charged to personal and business credit cards. In order to pay the debt, Petitioner began taking money from her employer. Petitioner describes her hedonistic offense in her own words: [T]his incident occurred when I was suffering from severe depression that was [subsequently] diagnosed by a physician. I have been under the treatment of a psychiatrist and also a psychologist. I still see my psychiatrist quarterly to make sure that all is well with my medications . . . . The psychologist released me from her care because she felt that I can now deal with everyday stress. . . . So in order to fill that void [of no more children] I started shopping. And I would - I would go to the mall in a day and I would spend several thousand dollars on absolute garbage, you know, when you look. I mean. I started buying clothes; I bought furniture. I just was a shopaholic. I would go every Saturday and Sunday and spend time at the mall and just shop like crazy. [M]y husband had no idea of our finances. He just gave the paycheck and said: You do what you need to do. As long as he could have cash he didn't care. So he had no idea. He didn't even know how much money I made; he didn't know how much our mortgage was; he didn't know anything about our finances. And then once I started having all these credit card bills then I was, you know, robbing Peter to pay Paul . . . . And then it just got where I snapped . . . . And . . . unfortunately it looked like the easy way out. It was an answer to my problems and I could continue doing what I needed to do. [T]he attorney [employer] pretty much left me to do what I needed to do. I wrote all of his court motions, and I wrote all of his pleadings, and accountings, and inventories, and he didn't even look at them. He would just sign them. He didn't review them at all. And so when I would give him checks to sign . . . I would just take him the check and say, "I need you to sign a check," and he would sign the check and wouldn't even look to see . . . it was [to me]. Transcript (TR), pages 15 and 24-26. After November 2002, Petitioner voluntarily disclosed her offense to her employer. Petitioner's effort to reclaim her integrity and trustworthiness was both epiphanic and Herculean. The effort is best described in her own words: I started contemplating suicide and said: Oh, well, this will take care of all the problems. But then I had read up and didn't want my kids to grow up without a parent or think that for some reason they caused me to do it. So at that point in time I was just - I didn't know what to do or where to turn. I was just completely lost. And so I hadn't been to church in like a year. For whatever reason the Sunday before the Monday that I went to [an] attorney I went to church and they told a story. And I said: You know, I'm willing to confess to what I've done at whatever cost because I can't - I can't keep going like this, and I can't keep pretending like nothing is wrong, and laying in bed and the couch all day. So I went to [an] attorney the very next day. Q. Do you need a moment? A. I'm okay. * * * In January 2003, I'm sorry. This is hard reliving it. THE COURT: That's okay. Take your time and if you need a recess just let me know. A. This is the first time that I just really said it out loud. THE COURT: Yes. A. In January of 2003, I contacted [an attorney]. I informed him . . . that I had done something wrong and I didn't know where to turn to or who to turn to. At this point in time I hadn't told my family and nobody knew. All they knew is that something was wrong with me. I wasn't myself. I was withdrawn and I stayed in bed . . . all day. The attorney immediately contacted my former employer to advise that there was a problem with his accounting system. Up until this time he had no knowledge of any . . . problems. My attorney also contacted a doctor for me to see immediately because he could tell that something was not right with me. At this time that my attorney contacted my former employer I offered to make immediate restitution, which I did [over time]. At this point in time my employer said that he did not want to contact any authorities because he didn't want the publicity in a small town. And as far as I knew, the situation was taken care of. I was making restitution and I thought it was over. At some point in time my former employer contacted the Federal Bureau of Investigation (FBI). After meeting with the FBI, I agreed to assist them because my former employer was billing my time as the attorney's time in guardianship cases. This would cause clients to run out of money and become eligible for Medicaid and other state governmental services. The federal government ended up dropping the charge against me and I . . . agreed to assist them in any cases against my employer. When things were not moving along in the federal case my former employer also contacted the local authorities. I was arrested on May 1 of 2004. And this was almost - this was almost a year-and-a-half after I had first come forward. And then in September 2004, my attorney was ready to go to trial. At the last minute the State Attorney offered a plea deal. I was told that I could finally put this nightmare behind me by pleading no contest and I would have no criminal record because the court would withhold adjudication. [T]he judge made a point to mention that adjudication was being withheld so I would have no felony criminal record. And also at this time there was no restitution ordered because I had already paid it all back. TR at 15-18. Petitioner paid approximately $85,000 in restitution. Restitution was a Sisyphean effort, as Petitioner explains: I paid back cash. I had taken - I had calculated $40,000. He said that I calculated - that I had taken $60,000 and then he raised it to $80,000 for his time. But I - I paid back $45,000 in cash. The credit card companies, he contacted every credit card company that I paid and they all reversed all of their [charges]. So I ended up owing, you know, another $45,000 back in credit cards that he had . . . all the payments reversed. . . . So I paid a total - it was $85,000. * * * [W]e sold everything we had. . . . We sold our home. I had bought my husband a third vehicle. We sold that. We had a motorcycle that sold. We had a lot of toys. TR at 27-28. The trier of fact is not persuaded that Petitioner would have lied on her license application in October 2005 after voluntarily disclosing her offense in January 2003. When Petitioner exercised a conscious choice to confess her offense, she knew with certainty that shame would follow her exposure to her husband and children. Petitioner also knew that her choice would subject her family to the financial hardship and social upheaval inherent in selling everything they owned to make restitution to her former employer. Petitioner learned a new occupation, contributed to her family's recovery, and testified candidly and frankly about her offense. When the court sentenced Petitioner to 30 days in jail, Petitioner requested that she be allowed to serve the sentence every other weekend. Petitioner worked during the week and did not want to be away from her children all week and every weekend. The judge granted the request. The trier of fact finds that Petitioner neither misstated nor misrepresented her criminal record on her license application. Nor did Petitioner commit fraud in answering the questions on the application within the meaning of Subsection 626.611(2), Florida Statutes (2004). The trier of fact finds that Petitioner does not lack one or more of the qualifications for licensure required in Subsection 626.611(1), Florida Statutes (2004).1 Nor does Petitioner demonstrate a lack of fitness or trustworthiness to engage in the business of insurance within the meaning of Subsection 626.611(7), Florida Statutes (2004).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order determining that Petitioner's license application has been granted by operation of law. DONE AND ENTERED this 17th day of May, 2006, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 17th day of May, 2006.
The Issue Whether the Respondent, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, was correct in its denial of the Petitioner's application and request to transfer a Series 4-COP beverage license for the premises, Paradise Inn.
Findings Of Fact The facts reveal that sometime in December, 1978, the Petitioner, James Sylvester Cooper, determined to apply for the transfer of a Series 4-COP beverage license which originally had been issued to the Petitioner's since deceased father. The license was issued by the Respondent, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco. The license which had been held by Mr. Cooper's father was for the premises known as Paradise Inn, Madison Heights, 518 Alabama Street, Daytona Beach, Florida. In pursuit of the request for transfer, the Petitioner completed a personal questionnaire form which was given to him by the Respondent, and may be found as the Respondent's Composite Exhibit No. 2 admitted into evidence. In actuality, a form was completed for this license transfer and the transfer of a license in a companion application, D.O.A.H. Case No. 79-532. The Petitioner also completed a fingerprint card by affixing his fingerprints to that document, and the document may be found as the Respondent's Exhibit No. 1 admitted into evidence. The fingerprint card was submitted in December, 1978. The questionnaire was completed on January 3, 1979. Both items were filed with the Respondent in its office located in Daytona Beach, Florida. When the Petitioner completed the questionnaire form, his initial response to question No. 6 was, "No". The thrust of the question No. 6 was to ask the applicant if he had been arrested for the violation of any other laws of the State of Florida not enumerated in questions Nos. 1 through 5 of the first page of the questionnaire or arrested for the violation of laws of other states or the United States, excluding minor traffic violations and instructed that if the answer was, "Yes," that details be provided concerning the nature of the events surrounding the arrest. When the questionnaire which was submitted on January 3, 1979, was reviewed by employees of the respondent, it was noted that the answer to question No. 6 was in the negative, notwithstanding the fact that the Respondent had received information from the Florida Department of Law Enforcement that possible charges for carrying a concealed firearm in Daytona Beach, Florida, and for issuing a check for which insufficient funds were available to honor the check, which latter charge purportedly was brought in Duval County, Florida. Officer Blanton, the employee of the Respondent who made this discovery, tried to contact the Petitioner in person and was unsuccessful. Later, Officer Blanton was able to contact Mr. Cooper by telephone and to request that the Petitioner come in to discuss the answer to question No. 6. Cooper agreed and came to the office of the Respondent in Daytona Beach on January 8, 1979. At the meeting on January 8, 1979, when confronted with his answer to question No. 6, the Petitioner responded that he did not understand that question to mean that you had to indicate all arrests. The Petitioner said he understood the question to mean that only convictions should be reported. Once the Petitioner had teen specifically advised by the Respondent's employee that the form, as it suggested, required an applicant to indicate arrests, he admitted that he had been arrested by the Daytona Beach, Florida, Police Department for carrying a concealed firearm, and stated further that the adjudication of quilt in that matter had been withheld. Cooper said that he would verify this disposition of the case and report back to the Respondent to establish the fact of the disposition by providing the Respondent with an official record. At the meeting referred to above which was held on January 8, 1979, between Officer Blanton and the Petitioner, Mr. Cooper denied any arrest having occurred in Duval County, Florida, relating to a worthless check. The Petitioner left the office of the Respondent, to shortly return with his attorney, Mr. Moore, and a further conversation was held on January 8, 1979, pertaining to the Petitioner's arrest record. A discussion was held concerning the carrying of a concealed firearm case in Daytona Beach, Florida, and the Duval County, Florida, worthless check allegations. Again, the Petitioner admitted being arrested for carrying a concealed firearm, but denied any involverent in a worthless check charge in Duval County, Florida. In view of this further denial of a knowledge of a Duval County, Florida, charge, Officer Blanton indicated that he would check into the matter further. After the second meeting between the Respondent's employee and the Petitioner, and on the same day, January 8, 1979, the employee of the Respondent discovered another allegation of an arrest which had taken place in Daytona Beach, Florida, for the offenses of loitering and prowling. On January 10, 1979, the Petitioner reported back to the office of the Respondent in Daytona Beach, Florida, and amended his application form by striking in the column the word, "No" and writing in the column the word, "Yes" and indicating that the carrying a concealed firearm complaint had taken place in 1974. In support of his position he produced documents that showed that the disposition of that case had been: withhold adjudication of quilt and place the Petitioner on two years unsupervised probation. When questioned about the loitering and prowling arrest, the Petitioner initially denied that arrest, but later indicated that he thought it was vagrancy. Subsequent to that discussion, he indicated on the application form that a loitering charge had occurred in June, 1976, for which he had paid a $35.00 fine. In the meeting on January 10, 1979, when the employee of the Respondent interrogated Petitioner further about any incidents in Duval County, Florida, involving a worthless check, the Petitioner again replied that he had no connection with such a charge. On January 11, 1979, the Respondent, in its Daytona Beach office, received a reply to its inquiry about the Duval County, Florida, case for a worthless check. That response may be found as Respondent's Composite Exhibit No. 4 which is a transmittal sheet and an arrest and booking report. The arrest and booking report shows that the Petitioner, James Sylvester Cooper, had been arrested in May of 1975 in connection with a check charge. Officer Blanton then contacted Mr. Cooper and indicated that the Respondent would need to know the disposition of the Duval County, Florida, charge, to which Cooper replied that be would go to Jacksonville and take care of the matter by bringing back a disposition of the case. Later in the month, Mr. Moore, the Petitioner's attorney, spoke with Officer Blanton and asked for the case number of the Duval County, Florida, allegation against the Petitioner. Mr. Moore was given the information and stated he would discover the nature of the allegation in Duval County and contact the Respondent when he had ascertained the facts of those charges and had attended them. On January 31, 1979, Officer Blanton saw that the application for the license was submitted through channels to the Director of the Division of Alcoholic Beverages and Tobacco, in Tallahassee, Florida. The application was reviewed in view of the answer to question No. 6 as amended, on January 10, 1979, which answer reflected the carrying of a concealed firearm charge and the loitering charge in Daytona Beach, but did not reflect the worthless check charge in Duval County, Florida. Acting in view of this information, the Director issued a letter on February 7, 1979, indicating his intent to deny the application for transfer of the license. In that letter the operative provisions of the statement of denial were couched in this language: The applicant's failure to truthfully answer questions concerning his qualifications and his criminal history record are indicative of a lack of good moral character. Subsequently, in keeping with his representations, the Petitioner's attorney went to Jacksonville and discovered that there was outstanding a case against the Respondent for failure to appear in connection with a worthless chock charge, and this allegation was pursuant to Section 300.405, Florida Statutes. A disposition of the case was achieved on March 8, 1979. A copy of the disposition may be found in the Respondent's Exhibit No. 3 admitted into evidence. In the course of the hearing in this cause, the Petitioner testified about the matter in Duval County, Florida, which dates from May, 1975. Petitioner's explanation was that he had some occasional contact in Duval County, Florida, in 1974 and 1975 and that while living there he mistakenly assumed that his roommate would pay the landlord, which did not occur, and led to some type of claim by the landlord. The Petitioner stated that although he does not recall a summons being served on him, he does recall that his roommate contacted him to tell him about an outstanding worthless check, for which he went voluntarily to the Judge's Chambers, then reported to be fingerprinted in the jail area and reported back to the Judge's Chambers and paid off the check through the Judge's secretary. In fact, the Petitioner had been arrested in Duval County, Florida, in the year 1975, in connection with a worthless check claim and the facts of this case indicate that he had a knowledge of that case when he answered question No. 6 in the submitted questionnaire on January 3, 1979, as amended on January 10, 1979. This is borne out by the facts which were revealed in the process of checking on the arrest allegation through the office of the Respondent and the answers that the Petitioner gave to the representative of the Respondent, and by the Petitioner's admission in the course of the hearing that he had been fingerprinted and taken to court in connection with a worthless check charge and by his grudging recognition in the course of the hearing that the events and charges complained about in the Respondent's Exhibit No. 3; i.e., the arresting and booking report and attendant disposition of the case, were matters which took place in Duval County, Florida, and matters that pertained to him. Likewise, the Petitioner only admitted the loitering arrest and conviction after being confronted for a third time, the first time being in filling out the form which was handed in on January 3, 1979; the second occasion of January 8, 1979, when he was told that the questionnaire, just as it said, required that all arrests be reported; the third instance, January 10, 1979, by direct questioning concerning the offense in which he initially denied the loitering arrest. Finally, the Petitioner in his initial completion of the questionnaire, even though the questionnaire clearly said to report arrests, did not do so until told to do so specifically on January 8, 1979, and then he only reported the arrest for carrying a concealed firearm. In reading the basis of the denial of the license, which has been set out above, it could be read to address the issue of the answers which the Petitioner gave in the application questionnaire on the basis that those answers were not truthful and the additional allegation that the Petitioner's criminal history record both show a lack of good moral character as described in Section 561.15, Florida Statutes; however, in the course of the hearing, the Respondent's counsel asserted that the true basis of denying the license application was related solely to whether the answers which the Petitioner gave on the questionnaire were truthful concerning the subject of his criminal history record, and that the denial was not related to any criminal history per se. Therefore, this Recommended Order is rendered in keeping with the Respondent's counsel's representation and the Petitioner conducted his case to comport with that limitation. Having established the nature of the statement of denial the question becomes one of whether the answers to question No. 6 on the personal questionnaire are of such a caliber that they demonstrated a lack of good moral character on the part of the Petitioner to the extent that he is not entitled to be the recipient of the beverage license that he has applied for. Subsection 561.15(1), Florida Statutes, states: 561.15 Licenses; qualifications required.-- (1) Licenses shall be issued only to persons of good moral character, who are not less than 18 years of age. Licenses to corporations shall be issued only to corporations whose officers are of good moral character and not less than 18 years of age. There shall be no exemptions from the license taxes herein provided to any person, association of persons or corporation, any law to the contrary notwithstanding. When considered in view of that standard, the facts in this case demonstrate that the Petitioner does not show the requisite good moral character expected of a person licensed by the Division of Alcoholic Beverages and Tobacco. The Petitioner's response to question No. 6, a legitimate inquiry made to him by the Respondent, ranged from equivocation to undeniable misstatements of the facts known to him and by these actions the Petitioner has shown himself to be a person not to be entrusted with a beverage license. The Petitioner, the record will show, has had some experience as a law enforcement officer and for this reason, his counsel contended that the Petitioner would not be so bold as to erroneously answer the questionnaire, knowing that the fingerprint identification card would be the vehicle by which a successful records check could be conducted and the arrests discovered. The tone of the testimony in this case as concluded puts that theory to rest. There is, however, another view which can be asserted on the question of the significance of the Petitioner's police experience. That view is that the Petitioner indeed knew the difference between what it meant to be convicted of an offense as contrasted with being arrested, and even with this knowledge selected the course of conduct which he pursued in answering question No. 6 on the application form. Finally, it was shown in the course of the hearing that the Petitioner had lived at certain residences in Duval County, Florida, which residence addresses are not reflected in the answers to the questionnaire and had held employment with an organization known as General Wholesale, which statement of employment is not reflected in the answers to the questionnaire. These items were first revealed at the hearing. These facts were made known subsequent to the Director's letter denying the application which was dated February 7, 1979, and for that reason they did not constitute the basis for denying the application and have not been relied upon by the Hearing Officer in reaching the factual conclusions, conclusions of law and recommendation in this matter.
Recommendation It is recommended that the Petitioner's application for transfer of the Series 4 COP beverage license connected with the premises, Paradise Inn, be DENIED. DONE AND ORDERED this 29th day of June, 1979, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1979. COPIES FURNISHED: Reginald E. Moore, Esquire 724 Second Avenue Post Office Box 1848 Daytona Beach, Florida 32015 Francis Bayley, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
