The Issue By a two-count Amended Administrative Complaint, the Department of Insurance has charged Respondent, a licensed Florida life and health insurance agent, pursuant to Count I with violations of Sections 626.611(7), 626.611(14) and 626.621(8), F.S. arising out of his plea of nolo contendere to a felony charge of grand theft, and pursuant to Count II with violating Section 626.611(7) F.S. arising out of adjudication of guilt to multiple misdemeanor charges of issuing worthless bank checks.
Findings Of Fact Respondent is currently eligible for licensure and licensed in Florida as a life insurance agent and as a health insurance agent. He has been so licensed since 1985, and except for the facts, as set out infra., no disciplinary charges have ever been filed against him. Count I of the Amended Administrative Complaint On December 6, 1989, Respondent was charged by Information in the Circuit Court of the Eighth Judicial Circuit, in and for Alachua County, Florida, in Case No. 89-4842-CF, with a felony, to wit: Grand Theft in the third degree, a violation of Section 812.014, F.S. Respondent admitted that Case No. 89-4842-CF arose out of his writing a check on First Union Bank to cover computers previously contracted for by Respondent for his insurance agency. When he wrote the check, Respondent knew that he was short of funds but expected to deposit sufficient funds to the appropriate account before his check was presented for payment. When this "kiting" episode occurred, Respondent was short of funds due to an illegal conversion of funds perpetrated by one of his employee agents. Respondent did not get the money into his account in a timely manner and did not later "make the check good" before prosecution began. In accord with the appropriate regulatory rules, Respondent reported the illegal conversion by his employee agent to the Petitioner Department of Insurance and cooperated with that agency. He also reported the offending employee agent's illegal conversion to the local State Attorney. He cooperated in a criminal prosecution and filed a civil action in his own right against the offending agent. These events further depleted his assets and in part accounted for his being unable to make his check good. On July 19, 1990, in response to the Information filed against him, Respondent entered a plea of nolo contendere to grand theft, a felony in the third degree, in Circuit Court Case No. 89-4842-CF. With adjudication of guilt withheld, Respondent was placed on probation for one year and ordered to pay restitution in the amount of $7,139.29 to First Union Bank. Pursuant to court papers and Respondent's testimony, it appears that he was first given until July 19, 1991 to complete restitution on this charge. Respondent testified without refutation that he had received an extension from the circuit court until July of 1993 in which to make this restitution. That date had not yet been reached as of the date of formal hearing. With regard to his nolo contendere plea to a third degree felony, adjudication withheld, Respondent's unrefuted testimony is that he was represented by an attorney, Johnny Smiley, until Mr. Smiley was suspended from practicing law by the Florida Bar and that Mr. Smiley failed several times to appear on his behalf in court, did not advise him of any alternative misdemeanor pleas, and never properly advised him of all the potential consequences of pleading nolo contedere to a felony charge of grand theft, including that if that offense is construed as an offense involving moral turpitude, then Section 626.611(14), F.S. may be read to mandate revocation or suspension of his professional insurance licenses. It may be inferred from Respondent's testimony that Respondent, the prosecutor, and the circuit court judge assumed that Respondent would be able to continue selling insurance and thereby would be able to meet the restitution requirements of his plea bargain and probation. At formal hearing on January 3, 1992, Respondent represented that he had made some restitution and hoped to complete restitution under the foregoing circuit court order by January 31, 1992. Respondent further represented that a circuit judge had indicated that once Respondent made restitution on all charges (including those misdemeanor adjudications that gave rise to Count II of the instant amended administrative complaint, see infra.), the court would entertain a motion to set aside his grand theft plea. What the circuit judge may or may not have indicated is not admissible for proof of the matters asserted, but it is admissible to show Respondent's reliance thereon and his motivation beyond the obvious motivations for making restitution as soon as possible. By stipulation of the parties, the record in this instant disciplinary cause was left open for 60 days after formal hearing so that Respondent could amplify on this testimony. Pursuant to Fla. Rule of Criminal Procedure 3.850, and Art. I Section 16 of the Florida Constitution, Respondent has filed a Motion for Post- Conviction Relief in Circuit Court Case No. 89-4842-CF. However, a copy of this motion was not filed as an exhibit with the Division of Administrative Hearings until the day before the record herein closed by Order of March 5, 1992. Because the record was closed, the outcome, if any, of that circuit court motion/exhibit is not before the undersigned. Also, Respondent's motion/exhibit alone is not sufficient evidence for the undersigned to infer that Respondent has paid all required restitution amounts as of the date of this recommended order. Count II of the Amended Administrative Complaint From September 7, 1990 through July 30, 1991, the Respondent was charged by several Informations in the Circuit Court of the Eighth Judicial Court, in and for Alachua County, Florida, in Case Nos. 90-3267-CF-A, 90-3310- CF-A, 90-3881-CF-A, 91-2236-CF-A, 91-2237-CF-A, 91-2238-CF-A, 91-2712-CF-A, and 91-2713-CF-A, with one count per case of a third degree felony, to wit: Issuing a Worthless Check, a violation of Section 832.05(4), F.S. According to Respondent's unrefuted testimony, the negative balance situation arising from his earlier felony plea bargain, the need to make restitution in that case, and his attorney fees and costs associated with suing the agent who had taken money from Respondent's agency and one of Respondent's insurance carriers had caused an additional shortage of personal funds at a time Respondent was desperately fighting to save his marriage and keep his family, consisting of a wife and two small daughters, together. He admitted that he had issued seventeen worthless bank checks during this stressful period for personal expenses, primarily for telephone charges, groceries, and furniture. Nonetheless, Respondent's marriage failed and the couple is now divorced. By a plea bargain executed July 30, 1991, Respondent agreed to enter a nolo contendere plea to four first degree misdemeanor charges of issuing worthless bank checks and agreed to make restitution totalling $6,492.88 on thirteen others. The restitution agreement covering 17 checks included restitution for nine worthless checks for which the State had agreed to allow deferred prosecution. Five check charges were to be dismissed. What happened next is not entirely clear because, despite an order of the circuit court accepting the plea bargain, the case numbers in the plea bargain and on the subsequent judgments do not match, and it appears that on July 30, 1991, Respondent plead nolo contendere and was adjudicated guilty of eight first degree misdemeanor charges, ordered to serve six months probation on each, the probations to run concurrently, and was further ordered to make restitution pursuant to the plea/restitution agreement. Pursuant to court papers and Respondent's testimony, it appears that he was also given six months, or until approximately January 31, 1992, to make restitution on these cases. That date had not yet been reached as of the date of formal hearing. Respondent remained on probation as of the date of formal hearing. Respondent testified at formal hearing that he hoped to make full restitution on these cases by January 31, 1992, and that unless he also made full restitution on the grand theft case, he could not file a motion to vacate his plea therein. (See, Finding of Fact 7, supra.) Respondent did not file any evidence of restitution in these misdemeanor cases, although he was given until March 5, 1992 to do so. The filing as an exhibit herein of his Motion for Post- Conviction Relief in the circuit court felony case covered in Count I of the instant amended administrative complaint is not sufficient for the undersigned to infer that Respondent has made full restitution on these misdemeanor charges covered in Count II of the instant amended administrative complaint. (See, Finding of Fact 8, supra.) Respondent presented the testimony of Reverend L.D.J. Berry, pastor of a Baptist Church in St. Thomas, Florida, to the effect that the minister has bought insurance from Respondent and has always found him to be helpful and honest in insurance matters. Although Reverend Berry has counselled with Respondent, Respondent is not a member of Reverend Berry's parish. Reverend Berry has never been a recipient of one of Respondent's bad checks. Reverend Berry considered the Respondent to be of good character, even knowing of his bad check history.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Insurance enter a final order that: Finds Respondent guilty of violating Sections 626.611(14) F.S. and 626.621(8) F.S. and not guilty of violating Section 626.611(7), F.S. as alleged in Count I of the Amended Administrative Complaint; Finds Respondent not guilty of violating Section 626.611(7) F.S. as alleged in Count II of the Amended Administrative Complaint; and Suspends Respondent's licensure and eligibility for licensure as a life and health insurance agent for six months and provides for a probationary period subsequent to reinstatement of his licenses to run concurrently with any criminal probations left for him to serve, up to the maximum of two years provided by Section 626.691 F.S., during which period of license probation, Respondent's insurance business shall be monitored by the Department of Insurance upon such terms as the Department shall determine to be appropriate. RECOMMENDED this 29th day of April, 1992, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3109 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: Accepted substantially; modified to eliminate subordinate, unnecessary, and cumulative findings: 1, 2, 3, 4, 5, 7, 13, and 15. Rejected because as stated, it is a mischracterization of the weight of the evidence, but sunstantially covered within the recommended order: 6, 8, 14, 16. Accepted as modified. What has been rejected has been rejected so that the recommended order conforms the greater weight of the credible record evidence as a whole: 9, 10, 11, 12, 17. Respondent's PFOF: Accepted substantially, but modified to eliminate subordinate unnecessary, and cumulative findings or otherwise C, D, E, F. Accepted as modified. What has been rejected was rejected to conform the recommended order to the greater weight of the credible record as a whole: A, B. COPIES FURNISHED: Michele Guy, Esquire Department of Insurance 412 Larson Building Tallahassee, Florida 32399-0300 S. Scott Walker, Esquire Watson, Folds, Steadham, et al. P. O. Box 1070 Gainesville, Florida 32602 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Don Dowdell, General Counsel Department of Insurance and Treasurer 200 E. Gaines Street 412 Larson Building Tallahassee, Florida 32399-0300
The Issue The issue in this case is whether the defense of equitable tolling applies to excuse Respondent's untimely request for a disputed-fact administrative hearing on an Administrative Complaint.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of nursing pursuant to section 20.43, Florida Statutes, and chapters 456 and 464, Florida Statutes. At all times material to the Complaint, Respondent was a licensed registered nurse (R.N.) within the state of Florida. On or about February 19, 2016, Respondent retained CLG to represent him in Petitioner's Case 2016-08658, the number assigned by Petitioner to an investigation that ultimately led to issuance of the Complaint. In late May 2018, Attorney Leikam assumed the role as the CLG attorney with primary responsibility for Respondent's case, and informed Petitioner. At that time, the status of the case was characterized as "pre- probable cause." Attorney Leikam represented then to Petitioner that she "will be representing this client in all matters pending before the Department." On November 9, 2018, CLG legal assistant Katherine Kalinowski testified that she closed CLG's file on Respondent's case. However, she did not follow CLG procedures, in that she did not ensure that a withdrawal letter was sent to Respondent before CLG closed its file. On July 1, 2019, Petitioner filed its Complaint against Respondent. Although Attorney Leikam was still counsel of record for Respondent for all matters pending before the Department, including Case 2016-08658, the Department sent the Complaint and Election of Rights form to Respondent directly. When Respondent received the Complaint package, he called CLG and was referred to Attorney Leikam. Attorney Leikam determined that, although CLG had attempted to close its file, since no withdrawal letter was sent to Respondent, "we are still on it." Attorney Leikam sent an email to counsel for Petitioner to complain of the improper attempt to serve Respondent with the Complaint, when she was still counsel of record for Respondent, as she had previously informed Petitioner. Petitioner acknowledged and rectified this mistake by serving the Complaint and Election of Rights form by certified mail to Attorney Leikam, which she received on July 19, 2019. The parties agree that this second attempt to serve the Complaint constitutes the proper service on Respondent. The last page of the Complaint—page 11—set forth the NOTICE OF RIGHTS in bold type, informing Respondent that a written request for an administrative hearing must be received by Petitioner within 21 days after receipt of the Complaint. There is no claim by Respondent in this case that the Notice of Rights was unclear regarding the deadline to request a hearing or the manner in which a hearing must be requested. Respondent knew that there was a deadline to request an administrative hearing, but he did not know when the actual deadline was. He admitted he only "vaguely" reviewed the Complaint, and probably did not make it to the last page. (Tr. 126-27). Instead, he relied on Attorney Leikam to timely submit whatever was necessary to protect his rights.2 2 Upon determining that CLG had not effectively terminated its representation of Respondent, Attorney Leikam immediately notified Respondent that further retainer payments were required. As of July 22, 2019, Attorney Leikam noted as follows in CLG's internal File Notes: "Client never paid but now that we've been served [with the Complaint], I don't want to miss the deadline. I completed only the election of rights form. I am not sending the answer to the [Complaint] until the client pays." To meet the 21-day deadline, a completed Election of Rights or other written hearing request had to be received by Petitioner no later than Friday, August 9, 2019 (21 days after July 19, 2019). The 21-day window to request an administrative hearing was closed on and after Monday, August 12, 2019.3 Neither Respondent nor Attorney Leikam submitted a completed Election of Rights or other written request for an administrative hearing to Petitioner by any means—electronic mail, in-person delivery, U.S. mail, or facsimile—within 21 days after the Complaint and Election of Rights form were received by Attorney Leikam. On November 6, 2019—89 days after the deadline to request an administrative hearing—Petitioner's counsel sent an email to Attorney Leikam to serve Petitioner's Motion for Waiver, which was attached. The Motion for Waiver, filed with the Board of Nursing, sought a determination that Respondent waived his right to a disputed-fact administrative hearing by not timely filing an Election of Rights or other written request for a disputed-fact hearing. That same day, after receiving the Motion for Waiver, Attorney Leikam responded by email to Petitioner's counsel, submitting for the first time a completed Election of Rights form on Respondent's behalf to dispute the facts alleged in the Complaint. 3 The parties stipulated that the 21-day period to request an administrative hearing "expired" August 12, 2019. The stipulation is not entirely clear. The ambiguity was reconciled based on the parties' other stipulation that the Complaint was properly served on Attorney Leikam on July 19, 2019. As a simple application of the computation of time rule, 21 days after Friday, July 19, 2019, was Friday, August 9, 2019. Thus, August 9, 2019, was the last day to file the request for hearing; the 21-day time period was "expired" as of Monday, August 12, 2019. See Fla. Admin. Code R. 28-106.103. Petitioner's PRO interpreted the ambiguous stipulation differently, proposing a finding that the 21-day deadline to file a hearing request was on Monday, August 12, 2019. (Pet. PRO ¶ 5). Respondent's PRO adhered to the ambiguous stipulation, proposing a finding that the 21-day response time "expired on August 12, 2019." (Resp. PRO ¶ 8). This discrepancy is inconsequential, as the findings herein demonstrate, because no hearing request was filed by August 9, 2019, August 12, 2019, or on any date close to either of those dates (if "close" mattered). Attorney Leikam represented to Petitioner's counsel that she had completed the Election of Rights form on or about July 21, 2019, and that her then-legal assistant, Tawanna Hackley, had submitted the completed form by email to Petitioner on July 23, 2019. Petitioner ran email searches and reported to Attorney Leikam that no emails were received from Ms. Hackley or from anyone else at CLG submitting a completed Election of Rights or otherwise requesting an administrative hearing to dispute the Complaint against Respondent. On December 3, 2019, Attorney Leikam sent an email to Petitioner's counsel, transmitting an Answer to the Complaint for filing on Respondent's behalf.4 Attorney Leikam also sent an email attaching Respondent's response to the Motion for Waiver. The response invoked the doctrine of equitable tolling as a defense to the admitted untimely filing of the Election of Rights. The Motion for Waiver and response were presented to the Board of Nursing on December 5, 2019. As a result of Attorney Leikam's request that the Board defer review of the case pending a hearing on equitable tolling, the matter was referred to DOAH to hear the equitable tolling defense. The equitable tolling defense asserted by Respondent is predicated on the circumstances surrounding Attorney Leikam having entrusted the filing of the Election of Rights to her then-assistant, Tawanna Hackley, who failed to complete the assigned task. Tawanna Hackley was not a lawyer or a paralegal; her position at CLG was a "legal assistant," and she worked under the supervision of Attorney Leikam. Ms. Hackley began working at CLG on November 12, 2018. Just over eight months later, on July 24, 2019, she was fired for inadequate performance. 4 As noted above, Attorney Leikam had recorded in the File Notes that as of July 22, 2019, Respondent had not yet paid the requested retainer fee, and that until Respondent paid, she was only going to file the Election of Rights and not the Answer. No evidence was offered to establish when Respondent paid, but based on Attorney Leikam's July 22, 2019, File Notes entry, presumably Respondent did not pay until shortly before Attorney Leikam filed the Answer on December 3, 2019. Attorney Leikam testified candidly that during Ms. Hackley's short tenure at CLG, she had a lot of performance issues, described as follows: It was really—it was really everything from not completing tasks, not documenting tasks, or then doing tasks but having multiple repeated errors in the format or the spelling or the language. It was— it was really a constant issue one way or another. But to me, the biggest issue was that when I would confront these things with her, she just denied all responsibility. (Tr. 25-26). Ms. Hackley was primarily trained by another legal assistant, Katherine Kalinowski, who acknowledged that Ms. Hackley did not seem to grasp what she was taught. When asked how long it took Ms. Kalinowski to train Ms. Hackley, of the eight months she was employed, Ms. Kalinowski responded, "Eight months." (Tr. 108). Nonetheless, Ms. Kalinowski testified that after the first month or so, she stopped checking over Ms. Hackley's work, limiting her involvement to answering Ms. Hackley's questions. Attorney Leikam communicated in telephone calls with CLG's director of human resources, Kristin Teague, regarding the consistent performance problems she was having with Ms. Hackley. However, no specific steps to address these problems were documented in Ms. Hackley's personnel file until her last few weeks at CLG. In particular, her personnel file contains one "coaching" document, prepared by Ms. Teague from information given to her by Attorney Leikman to facilitate a performance-related meeting between Attorney Leikam and Ms. Hackley on July 8, 2019; and one formal corrective action in the form of a counseling warning, issued on July 12, 2019. The July 8, 2019, coaching document listed specific performance issues to be addressed in discussion with Ms. Hackley, all of which fell within the broad categories of performance issues to which Attorney Leikam testified at the hearing: not completing tasks assigned to her, not documenting tasks, and committing multiple repeated errors in the work she did complete. The coaching document ended with a list of specific behavior changes needed from Ms. Hackley, and item two on the list was: "Complete tasks given by attorneys and/or ask a question if she does not understand." The next step in CLG's performance review process if an employee does not meet the expectations communicated in a coaching discussion is formal corrective action in the form of a counseling warning. A corrective action counseling warning was issued to Ms. Hackley on July 12, 2019, only four days after the scheduled performance discussion. The corrective action document was signed by Ms. Teague on July 12, 2019, and by Ms. Hackley and Attorney Leikam on July 15, 2019. The document warned Ms. Hackley that her performance needed to improve because she was making too many mistakes of the type identified by Attorney Leikam in her testimony: not completing assignments given to her by her attorneys, not following the CLG procedures for documenting tasks, not scanning documents into the electronic files, and making a lot of spelling and formatting errors. A confidential version of the corrective action document contained a heading identifying the reason for the action as "Unsatisfactory Work Performance." (Jt. Ex. 1, Pet. Depo. Ex. 2, Bates page 0028). The corrective action defined a time period for improvement of six months from the date it was issued, during which Ms. Hackley was expected to have weekly meetings with Attorney Leikam to discuss her performance. Almost immediately after the corrective action counseling warning was signed by Ms. Hackley, though, Ms. Teague testified that she and Attorney Leikam made the decision that Ms. Hackley needed to be terminated. Together, they informed Ms. Hackley that she was fired on Wednesday, July 24, 2019, but the decision was made either on Monday, July 22, 2019, or Tuesday, July 23, 2019. Ms. Teague explained when and why the decision was made: "Earlier that week I think we had decided that we could no longer risk her continuing to work on our files." (Jt. Ex. 1 at 53). That was because of the errors Ms. Hackley kept making. The precursor to this joint decision appears to have occurred on Friday, July 19, 2019 (the day on which Attorney Leikam received the Complaint by certified mail from Petitioner). Attorney Leikam apparently spent her morning in several rounds of email exchanges with Ms. Hackley. In each of these rounds, Attorney Leikam pointed out errors in Ms. Hackley's work, to which Ms. Hackley responded by blaming someone or something else for the errors. Attorney Leikam then forwarded each round of these email exchanges to Ms. Teague at CLG's Michigan office, and the email strings were placed in Ms. Hackley's personnel file. Attorney Leikam testified that she completed Respondent's Election of Rights on July 22 or 23, 2019, and physically handed it to Ms. Hackley with verbal instructions to scan and email the Election of Rights to Petitioner.5 Attorney Leikam exercised questionable judgment by entrusting to Ms. Hackley the critical step of transmitting the Election of Rights to Petitioner without verifying for herself that the email was sent and received, when at the same time she and Ms. Teague had jointly concluded that Ms. Hackley had to be fired because they "could no longer risk her continuing to work on our files." But according to Attorney Leikam, it is standard CLG practice for legal assistants to transmit by email these time-critical documents to the opposing party for filing. That this is the standard practice is not so clear in the CLG policies and procedures manual, which seems to assign to attorneys the responsibility for all communications of any kind with opposing parties. Further, as to deadlines, the CLG manual is quite clear that "[w]hile legal assistants should remind attorneys daily of their upcoming deadlines/events, both parties are responsible for ensuring that deadlines and events are not missed." 5 Attorney Leikam told Petitioner in the early November 2019 email exchanges that she completed the Election of Rights form on July 21, 2019, and gave it to Ms. Hackley to submit to Petitioner, but that is unlikely, since July 21, 2019, was a Sunday. More likely, Attorney Leikam completed the Election of Rights form on Monday, July 22, 2019, or possibly Tuesday, July 23, 2019, and gave it to Ms. Hackley to scan and email to Petitioner. Attorney Leikam acknowledged that when CLG's legal assistants send emails to opposing parties regarding a case, CLG's standard practice also dictates that the legal assistant must copy the attorney handling the case on the email. Attorney Leikam did not receive a copy of an email sent by Ms. Hackley to Petitioner transmitting the Election of Rights for filing. Despite not getting a copy of an email from Ms. Hackley transmitting the Election of Rights to Petitioner, Attorney Leikam believed Ms. Hackley completed the assigned task by sending the completed Election of Rights form by email to counsel for Petitioner on July 23, 2019. Attorney Leikam believed that the filing was made on July 23, 2019, because an entry dated July 23, 2019, in the File Notes document maintained for Respondent's case stated: "Sent election of right to Dirlie McDonald @ DOH place in G:drive. TH." The File Notes document is a Microsoft Word document. File Notes documents are maintained for each case, with contact information for parties and counsel, and entries reporting on events and communications relevant to the case. The File Notes documents can be accessed by any CLG employee. In theory, and in accordance with CLG procedures, an entry's date should be the date the entry is actually made, but no date or time stamp is automatically generated to ensure accuracy. As such, an entry can be made either before or after the typed date. Likewise, in theory, and in accordance with CLG procedures, the initials at the end of a File Notes entry should identify the person who made the entry, but the initials are not automatically generated to identify who accessed the File Notes to record a particular entry. Attorney Leikam testified that she checked the File Notes for Respondent's case sometime on July 24, 2019, and saw the entry for July 23, 2019, by "TH" stating that the "election of right" was "sent" to "Dirlie McDonald @ DOH." Attorney Leikam later made the following entry in the File Notes: "7/24/19: Client left a message worried about payment and election of rights. I played phone tag and left him a message saying it was covered. Sent f/u [follow-up] email. LAL." According to Attorney Leikam, the sequence of events, as recorded in her File Notes entry, was that, first, Respondent called and left a message expressing concern about whether the election of rights had been filed. Then, after Attorney Leikam received the message, she investigated the status of the Election of Rights assignment by reviewing the File Notes and finding the July 23, 2019, entry by TH. Attorney Leikam drew the inference from the entry and the initials that Ms. Hackley had completed her assigned task of sending the Election of Rights by email to Petitioner on July 23, 2019 (even though the entry does not state how the Election of Rights was sent, and even though Attorney Leikam did not receive a copy of an email from Ms. Hackley to Petitioner). Then, Attorney Leikam "played phone tag" with Respondent, and ultimately left a message saying "it was covered." Attorney Leikam then drafted a "follow-up" email to Respondent and sent it to him. The follow-up email prepared by Attorney Leikam stated: "We submitted the Election of Rights form on 7/23/19. We received it on 7/19/19, so it is timely. This is because we were still counsel of record[, so] the Department should have sent the Administrative Complaint to our office. Thus, the Complaint you received [earlier] is not considered properly served." This email was sent to Respondent at 3:16 p.m., on July 24, 2019. Of necessity, then, all of the preceding steps in the sequence occurred sometime earlier on July 24, 2019, if not before July 24, 2019. Attorney Leikam offered no explanation as to why she did not just ask Ms. Hackley if she completed the assignment so Attorney Leikam could answer Respondent's inquiry. Ms. Hackley was still in the office on July 24, 2019, until nearly the time that the follow-up email was sent at 3:16 p.m. Attorney Leikam's review of the File Notes entry ostensibly made by Ms. Hackley on July 23, 2019, was inadequate to support the inference drawn by Attorney Leikam. Reasonable prudence dictated that she ask Ms. Hackley to confirm that she sent the Election of Rights by email, before assuring the client that "we" submitted the Election of Rights on July 23, 2019, and that it was timely filed. The File Notes entry itself did not identify how the Election of Rights was "sent," and Attorney Leikam was not copied on an email from Ms. Hackley to Petitioner transmitting the Election of Rights, as was the standard CLG practice.6 Meanwhile, Attorney Leikam also spent time on July 24, 2019, dealing with Ms. Hackley's termination. Attorney Leikam testified that she spoke with Ms. Teague during the morning of July 24, 2019, to confirm the plan to schedule a meeting with Ms. Hackley at 3:00 p.m., and that Ms. Teague would attend by telephone. Sometime between 12:00 p.m. and 1:00 p.m., Attorney Leikam used Microsoft Outlook to schedule the 3:00 p.m. meeting, sending "invitations" to Ms. Hackley and Ms. Teague.7 Ms. Hackley's receipt of an "invitation" to a meeting with Attorney Leikam and Ms. Teague was not well received, coming on the heels of the corrective action counseling warning Ms. Hackley had signed nine days earlier, and the multiple rounds of criticizing emails from Attorney Leikam five days earlier. According to Attorney Leikam, rather than accepting the invitation, Ms. Hackley "stormed" into her office and started yelling that they 6 Attorney Leikam attempted to justify the reasonableness of her inference by explaining Ms. Hackley did not always follow procedure by copying her on emails. Even if true, that would not support the reasonableness of inferring Ms. Hackley completed the email filing assignment from an entry that did not say the Election of Rights was sent by email. Moreover, Attorney Leikam's explanation as to why she was unconcerned by the fact that she did not receive a copy of an email was impeached by Respondent's own evidence. According to an audit of Ms. Hackley's emails, not done until November 2019, all outgoing emails from July 10, 2019, through July 24, 2019, from Ms. Hackley to Petitioner or another party outside of CLG were copied to Attorney Leikam and/or Ms. Bazzigaluppi. If this was a performance issue for Ms. Hackley previously, it apparently was not a problem in July 2019. 7 Ms. Teague had a somewhat different, but much less clear, recollection of the timing. She repeatedly said she was not sure of the various times to which she hesitantly testified. Ms. Leikam, in contrast, did not express the same hesitancy in her testimony. To the extent their testimony differed as to when certain steps occurred, Ms. Leikam's more certain recollection is generally credited. It would stand to reason that she would have a clearer recollection of the timing of events that occurred in her physical presence than Ms. Teague's admittedly uncertain recollection of the timing of events in which she participated remotely by telephone from Michigan. were going to fire her and she was not going to sit around and wait for a meeting. Ms. Hackley then left Attorney Leikam's office, and Attorney Leikam said she heard "a lot of slamming for a little while." (Tr. 57). Then Ms. Hackley returned and said she was going to wait for Ms. Teague. Attorney Leikam said after this exchange, she called Ms. Teague immediately, who made herself available for a meeting "within about an hour's time." (Tr. 57). Given Attorney Leikam's description of the events that started at between noon and 1:00 p.m., the meeting must have begun no earlier than 1:30 p.m. and possibly as late as 2:30 p.m. The termination meeting was relatively uneventful, as Ms. Hackley was already expecting to hear that she was fired, and she was. No reasons for dismissal were discussed. Ms. Teague asked Ms. Hackley to give her key to Attorney Leikam, and she did. Ms. Teague than asked Ms. Hackley to delete her CLG email account from her phone while Attorney Leikam observed her doing so, and she did. Inexplicably, Ms. Hackley was not instructed to leave, nor was she instructed to pack up her personal things while a witness observed her doing so. Attorney Leikam testified that she does not know whether Ms. Hackley left the building right away, but believes that she heard Ms. Hackley at her desk for almost an hour after she was fired. Ms. Hackley's desk was just outside of Attorney Leikam's office, but not within her line of sight. Ms. Kalinowski testified that her work station was approximately six feet away from Ms. Hackley's station. Ms. Kalinowski was out to lunch when the termination meeting started in Attorney Leikam's office, but returned before it ended. Ms. Kalinowski testified that when Ms. Hackley left the meeting, she was a little teary-eyed and gave Ms. Kalinowski a hug, telling her she had been fired. Ms. Kalinowski told her she was sorry. Ms. Kalinowski testified that Ms. Hackley went to her work station and was "doing something on the computer," though Ms. Kalinowski could not say if it was work or something else, as she could not see what was on the screen. Ms. Kalinowski said she gave Ms. Hackley "a few minutes," then asked what she was doing, and Ms. Hackley said she was "cleaning things up." (Tr. 110). Ms. Kalinowski told Ms. Hackley she did not think she needed to worry about that, so Ms. Hackley got her things and went outside to wait for her ride. Ms. Kalinowski testified that it was between 2:30 p.m. and 3:00 p.m. when Ms. Hackley left the building.8 Attorney Leikam confirmed that Ms. Hackley was terminated because of performance issues. Ms. Teague agreed, stating that the decision was made to fire Ms. Hackley because of all the errors she continued to make. As such, when Ms. Hackley applied for unemployment compensation, CLG did not contest it. To do so, CLG would have had to show that Ms. Hackley had engaged in gross misconduct, and there was no evidence of that. Despite Ms. Hackley's performance inadequacies recounted by Attorney Leikam, there was no immediate undertaking after Ms. Hackley's termination to audit the files on which she had been working to determine whether there were additional instances in which she failed to complete assigned tasks. That was negligent. Attorney Leikam's acceptance at face value of an internal file notation as sufficient proof that Ms. Hackley completed an assignment just given to her on July 22, 2019, was negligent. Even if Attorney Leikam was unwilling or unable to ask Ms. Hackley before she left the building on July 24, 2019, whether she completed the assignment, there was an easy and simple solution. Attorney Leikam could 8 Among other evidence relied on by Respondent, testimony regarding conversations with Ms. Hackley is hearsay. At the outset of the hearing, the parties were informed that to the extent their evidence constituted or contained hearsay, the hearsay evidence would not be relied on as the sole basis for a finding of fact, whether objected to or not, unless the hearsay would be admissible in a civil action in Florida, i.e., that it would fall within a hearsay exception under the Florida Evidence Code. See § 120.57(1)(c), Fla. Stat. (2019); and Fla. Admin. Code R. 28-106.213(3). The parties were instructed to identify on the record any hearsay exceptions they intended to rely on so that argument could be presented by both parties. Neither party raised a hearsay exception on which they were relying. Accordingly, the testimony regarding conversations with Ms. Hackley is recounted not for the truth of what was said, but rather, to portray an approximate timeline of the events on July 24, 2019. have, and should have, called or emailed counsel for Petitioner to ask whether Respondent's Election of Rights had been submitted. As of July 24, 2019, there were still 16 days remaining—more than two-thirds of the 21-day window—to timely file an Election of Rights. It would have been easy to verify whether the just-fired employee who constantly made errors during her short tenure at CLG had, or had not, made another error on this assignment. Reasonable prudence and due diligence required that Attorney Leikam do so, particularly since she and Ms. Teague, the human resources director, had concluded together earlier that week that the firm could not risk having Ms. Hackley continue to work on their files. Attorney Leikam did nothing to check on the status of Respondent's case until she received the Motion for Waiver on November 6, 2019. Then, with the clarity of belated hindsight, the forces were marshalled as they should have been in late July 2019. Ms. Hackley's emails were searched and audited in November 2019, something that should have been done in late July 2019. And, as would have been confirmed in late July 2019 had the audit been requested then, the resulting audit report was that no email was sent by Ms. Hackley to counsel for Petitioner transmitting Respondent's Election of Rights. Respondent, through counsel, contends that Ms. Hackley's actions and inaction constituted intentional sabotage and, as such, extraordinary circumstances beyond Respondent's control and beyond Attorney Leikam's control that could not have been discovered in the exercise of due diligence. The credible non-hearsay evidence, with reasonable inferences drawn therefrom, does not support a finding that Ms. Hackley engaged in intentional sabotage. Instead, that evidence only establishes that Ms. Hackley did not complete an assignment verbally conveyed to her shortly before she was fired. At most, the evidence supports a finding that she was negligent, as she apparently had been throughout her tenure at CLG. Respondent, through counsel, argues that the entry dated July 23, 2019, in the CLG internal File Notes document by "TH" must have been intentionally made by Ms. Hackley after she knew she was fired, out of anger for being fired, to sabotage Attorney Leikam. Of course, this same entry was considered by Attorney Leikam on July 24, 2019, to be solid evidence that Ms. Hackley, in fact, completed her assignment by emailing the Election of Rights to Petitioner on July 23, 2019. Just as the latter inference was not reasonable, as previously found, the opposite inference of intentional sabotage is not fair, reasonable, or supported by the credible evidence. To begin with, the evidence is inconclusive regarding the timeline. Although Attorney Leikam was fairly specific in recalling the timeline related to Ms. Hackley's termination, she testified only in generalities as to the sequence of events on July 24, 2019, with regard to her investigation to respond to Respondent's telephone message. If anything, the sequence of events suggests that Attorney Leikam discovered the File Notes entry dated July 23, 2019, before Ms. Hackley became aware between 12:00 p.m. and 1:00 p.m. on July 24, 2019, that she was likely going to be terminated. Even if the timing predicate had been established, Attorney Leikam candidly admitted that the only basis for inferring that Ms. Hackley had intentionally falsified the File Notes entry to sabotage her was the fact, discovered in early November, that the File Notes entry was false. Respondent argues that the only reasonable inference from the false entry is that Ms. Hackley intentionally falsified the records. But another equally reasonable, if not more reasonable, inference from the July 23, 2019, entry is that Ms. Hackley may have been trying to respond to the recent criticism of her failure to document events in File Notes, by making an entry before she actually completed the task. The completed Election of Rights had also been scanned and saved to the G:drive, something else that Ms. Hackley had been criticized for not doing. Ms. Hackley may well have intended to follow through by preparing an email to counsel for Petitioner to transmit the already-scanned, already-saved Election of Rights form, but may have gotten sidetracked after making the File Notes entry on July 23, 2019. Had Attorney Leikam asked Ms. Hackley on July 24, 2019, when she saw the July 23, 2019, File Notes entry, the matter may have been resolved. Instead, Ms. Hackley was fired and left the building mid-afternoon on July 24, 2019.9 Respondent, through counsel, also points to the short time that Ms. Hackley was seen at her computer after she was fired, when she was seen doing something for a few minutes before she packed up her things and left. The suggestion is that the only, or most reasonable, inference is that Ms. Hackley must have been making the July 23, 2019, false entry in File Notes out of anger for being fired. Alternatively, the argument is that Ms. Hackley made the false entry between learning of the meeting at which she was pretty sure she was going to be fired and the actual meeting. These arguments are speculative, unsupported by competent substantial evidence, and not proven to be more likely than not. Once again, the suggested inference is not the only possible or reasonable explanation. Another reasonable inference is that Ms. Hackley may have been spending the little time she had at her computer, after learning she would likely be fired, to delete personal emails and/or documents that she did not want to leave behind on her work station. In the absence of supporting evidence, therefore, Respondent's suggested inference is rejected. Before the Board of Nursing, in the response opposing Petitioner's Motion for Waiver filed December 3, 2019, Attorney Leikam represented that the inference that Ms. Hackley had intentionally falsified the July 23, 2019, entry would be supported by evidence showing that in more than 30 other instances at CLG, Ms. Hackley had falsely documented performing work when she had not. (Resp. Ex. 4, ¶ 16). No such evidence was offered at the 9 Neither Respondent's inference nor the alternative inference suggested here is supported by evidence sufficient for a finding of fact. The point here is that Respondent's suggested inference is not the only possible or reasonable explanation for the false entry. In the absence of supporting evidence in the record, the inference offered by Respondent is rejected. hearing. Instead, according to Ms. Teague, Attorney Leikam's suspicion that Ms. Hackley intentionally sabotaged CLG's internal file for Respondent's case was the only time in which there was a suspicion of that kind during her tenure at CLG. She confirmed that Attorney Leikam first expressed her suspicion that the File Notes entry was intentionally falsified when she discovered well after Ms. Hackley was fired that no Election of Rights was filed. That is consistent with Attorney Leikam's testimony: the fact that the entry was false was the basis for inferring that it was intentionally falsified. She admitted she has no proof that Ms. Hackley intentionally falsified or sabotaged CLG's internal records for Respondent's case. As a final argument to bolster the missing evidence of nefarious intent, Respondent, through counsel, asserted that an inference of intentional falsification is supported by other evidence from Ms. Hackley's prior job at the Department of Health. However, to make the desired argument, Respondent mischaracterized the evidence. A fair review of the evidence undermines Respondent's argument. Respondent's argument is based on an excerpt of Ms. Hackley's personnel file from the Department of Health in evidence (subject to the hearsay caveat given at the outset of the hearing). The excerpt includes personnel forms indicating that Ms. Hackley was dismissed on July 29, 2016, from a "regulatory specialist II" career service position. Respondent's PRO asserts that the personnel file excerpt shows that "Ms. Hackley had been previously fired from her employment with the Department for what appears to be falsification of internal documents; specifically timesheets[.]" (Resp. PRO ¶ 49). Respondent's PRO refers to documentation within the personnel file claimed to support "the contention that Ms. Hackley was falsifying her timesheets." (Resp. PRO ¶ 51). Contrary to these characterizations, the personnel file excerpt contains no evidence establishing the reason why Ms. Hackley was dismissed from employment as of July 29, 2016. The documents referred to in Respondent's PRO were what appears to be a single written reprimand memorandum, dated July 14, 2008, plus a few pages containing handwritten notes that appear to relate to timesheets in August 2008. The memorandum indicates that Ms. Hackley was issued a written reprimand on July 14, 2008, for two reasons: attendance, including excessive tardiness; and "errors on your timesheet." (Resp. Ex. 15, Bates page 424). The written reprimand does not state that Ms. Hackley intentionally falsified timesheets; it states that as of July 14, 2008, she was making errors on her timesheets. The last few pages of the personnel file excerpt cannot be characterized at all without a witness to explain what the handwritten notes represent. All that can be gleaned is that information was written down by someone apparently in reference to Ms. Hackley's timesheets during one week in August 2008. Whatever this information represents, it apparently did not result in any formal action such as a written reprimand, which presumably would have been included in the exhibit. Without a witness to explain these documents, they are plainly hearsay with no predicate to support a hearsay exception, and as such, cannot be the sole basis for a finding of fact.10 Importantly, Respondent's PRO fails to point out the eight-year gap in time between the timesheet errors for which Ms. Hackley was apparently reprimanded in July 2008, and her dismissal for unstated reasons in July 2016. The only fair inference is that any attendance and timesheet error problems Ms. Hackley had in 2008 were considered minor and were corrected. Presumably falsification of timesheets, had that occurred in 2008, would have been met with serious disciplinary action such that Ms. Hackley would not have rebounded and continued with no adverse personnel records for an eight-year employment span between 2008 and 2016. 10 The handwritten notes appear to only indicate that Ms. Hackley may have made more errors on her timesheets in August 2008. In an attempt to suggest something worse than mere errors, Respondent's PRO contains a glaring misquote, asserting that one note stated "8-11-08 Now the week 8-1/8-7 has codes but 0 hours! This was faked again today 8-11." (Resp. PRO at 14, ¶ 51) (emphasis added). The quoted note actually ends as follows: "This was faxed again today 8-11." (Resp. Ex. 15, Bates page 00427) (emphasis added). In sum, Respondent mischaracterized a minor disciplinary action in 2008, and compounded that misfire by ignoring the huge time gap between the action and Ms. Hackley's dismissal, to advance an unsupportable claim that the timesheet issue in 2008 was somehow the reason for dismissal in 2016. That effort failed. Ms. Hackley's Department of Health personnel file adds nothing to Respondent's attempt to infer nefarious intent or bolster the claim that Ms. Hackley intentionally falsified CLG's internal records. Regardless of the nature, timing, or intent of Ms. Hackley's File Notes entry, the evidence clearly establishes that there was ample time and opportunity, with the exercise of even a modicum of due diligence, for Attorney Leikem to have discovered before the expiration of the filing period that the Election of Rights had not been filed. The circumstances did not prevent her from timely filing the Election of Rights.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Nursing issue a final order dismissing Respondent's Election of Rights request for a disputed-fact administrative hearing as untimely and not excused under the equitable tolling doctrine. DONE AND ENTERED this 20th day of July, 2020, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 July, 2020. COPIES FURNISHED: Dirlie Anna McDonald, Esquire Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed) Sara A. Bazzigaluppi, Esquire Chapman Law Group 6841 Energy Court Sarasota, Florida 34240 (eServed) Philip Aaron Crawford, Esquire Department of Health Prosecution Services Unit Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed) Joe Baker, Jr., Executive Director Board of Nursing Department of Health Bin C-02 4052 Bald Cypress Way Tallahassee, Florida 32399-3252 (eServed) Kathryn Whitson, MSN, RN Board of Nursing Department of Health Bin D-02 4052 Bald Cypress Way Tallahassee, Florida 32399-3252 Louise St. Laurent, General Counsel Department of Health Bin C65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed)
The Issue The issue presented is whether Petitioner James Joseph Richardson has met his burden of proving actual innocence, thereby entitling him to compensation under the Victims of Wrongful Incarceration Compensation Act.
Findings Of Fact On October 25, 1967, Petitioner's wife prepared a breakfast of grits for their seven children. In a separate pot she prepared the children's lunch of beans, gravy, rice, and hogs head meat. She also fried some fresh chicken which she used to make sandwiches for her and Petitioner's lunch. She and Petitioner then left to get a ride to the grove where they worked picking fruit. It was their routine for Petitioner's wife to cook the food. The eldest child, eleven-year-old Betty Jean Bryant, would later serve it to all the children after the Richardsons left for work. It is not clear whether the children actually ate their breakfast grits that day. The school-age children went to school while the younger children remained at home. It was the routine for Petitioner's neighbor Betsy Reese to look after them. Petitioner's family and Betsy Reese and her children lived in the same structure, assumedly similar to a duplex. There was a common porch across the front. There was also a shed in the back yard. The school-age children returned to the home at lunchtime. Reese divided the food in the second pot into seven equal portions, and the children ate lunch. Right after the children returned to school after lunch, they began exhibiting terrible symptoms, such as leaking from their orifices, twitching, and rigidity. Teachers began grabbing the Richardson children and rushing them to the hospital. One of the teachers, knowing there were younger children at home, drove to the Richardson home. Those children were on the shared porch, displaying the same symptoms. Reese was sitting on the porch, holding one of the children. The teacher took them to the hospital. Petitioner and his wife were summoned to the hospital. Six of the children died that same day, and the seventh child died early the next morning. At the hospital, medical personnel did not know what substance was causing the illness and deaths. Sheriff Frank Cline went to the Richardson home and conducted several searches of the home and the shed attempting to find what had poisoned the children. When Petitioner and his wife arrived at the hospital, Cline obtained from Petitioner the key to the refrigerator and searched again. The next morning Reese and Charlie Smith, who was described as the town drunk, found a bag of parathion, a highly- toxic insecticide, in the shed behind the house. Cline and his deputies had searched the shed approximately four times during the day the children became sick and Cline had searched the shed by himself late that night, and no bag of parathion had been seen by them. It was determined that parathion was present in the pot the grits were cooked in, the pot the lunch was cooked in, the frying pan the chicken may have been cooked in, flour, corn meal, sugar, and other substances found in the refrigerator. It was also determined that parathion is what killed the children. Petitioner had a key to the refrigerator as did his wife. Indications are that a third key was left on the refrigerator for the babysitter's use. Petitioner was tried for the first degree murder of the eldest child Betty Jean Bryant and was convicted. The jury did not recommend mercy, and he was sentenced to death. His conviction was reviewed by the Supreme Court of Florida. Richardson v. State, 247 So. 2d 296 (Fla. 1971). Petitioner's death sentence was commuted to life when Florida's death penalty was held to be unconstitutional the following year. In October 1988, 21 years after the seven children were murdered, the official file, which had been stolen ten years earlier from the office of the assistant state attorney who had prosecuted Petitioner, appeared in the office of the Governor of the State of Florida. Governor Bob Martinez ordered the Florida Department of Law Enforcement (FDLE) to investigate the disappearance and re-appearance of the file and accompanying information. That investigation resulted in new information and admissions surrounding the circumstances leading to the arrest and conviction of Petitioner. The Governor entered an Executive Order on July 31, 1989, appointing Janet Reno, State Attorney for the Eleventh Judicial Circuit of Florida, to provide prosecutorial assistance to FDLE. That Executive Order further directed FDLE to continue its investigation into all statements and evidence concerning Petitioner's arrest and conviction and to also investigate any violations of the criminal laws or misconduct by public officials relative to the events surrounding the deaths of the children and the arrest and conviction of Petitioner. On February 13, 1989, another Executive Order, amending the first, was signed by the Governor assigning State Attorney Reno to the Twelfth and Twentieth Judicial Circuits to discharge the duties of the State Attorneys in those Circuits relating to the investigation and prosecution of Petitioner's case. On March 31, 1989, a third Executive Order was signed. It amended the first two and recited that Reno and FDLE had reported their findings to the Governor and that Reno had also advised the Governor that Petitioner had filed a motion for post-conviction relief in the Circuit Court for the Twelfth Judicial Circuit. The Executive Order directed Reno to assume and discharge the duties of the State Attorney relating to any post-conviction proceedings involving Petitioner. A fourth Executive Order was then entered amending the first three by adding to Reno's duties consideration of any further prosecution of Petitioner. As a result of the extensive investigations conducted by Reno and FDLE, Reno joined in Petitioner's pending motion for post-conviction relief. Petitioner's request that his conviction and sentence be vacated was granted, and Petitioner was released from prison. Reno also made the decision that Petitioner would not be re-tried for the murder of Betty Jean Bryant and would not be prosecuted for the murders of the six other children. On May 5, 1989, Reno issued a 35-page Nolle Prosse Memorandum explaining in detail the evidence she had reviewed, the conflicting evidence she had considered, the apparent- perjured testimony that had been given at Petitioner's trial, and the conflicting witness statements which the State had before trial but had not disclosed to Petitioner's attorneys despite a court order to do so. The Memorandum discussed additional problems she had encountered because the physical evidence from the trial 21 years earlier had been misplaced or destroyed, a witness had later recanted his trial testimony, and key witnesses had died since the trial had taken place. Further, as a result of the publicity surrounding her investigation a number of persons had come forward claiming to have evidence, but they had never come forward during the initial investigation. Reno and the two Assistant State Attorneys who worked with her on her investigation determined that in evaluating whether Petitioner should be given post-conviction relief and whether Petitioner should be re-tried, they would only consider the files, records, and evidence that existed at the time that Petitioner was tried. They considered the evidence that had not been disclosed to anyone for 21 years to be unreliable. Some of it was also conflicting. She signed the Nolle Prosse Memorandum as did the two Assistant State Attorneys Don L. Horn and Richard L. Shiffrin. At the final hearing in this cause Don Horn testified extensively as to the contents of the Memorandum. Although he, Shiffrin, and Reno had discussed the misconduct they discovered on the part of the Sheriff and the prosecuting attorneys, they knew that the statute of limitations prevented taking action against those public officials, so the Memorandum did not discuss any action to be taken against them. It only considered the evidence against Petitioner. The Memorandum concluded that a "totally inadequate and incomplete investigation" into the deaths of the seven children had been conducted. Obvious leads had not been pursued, inconsistencies were not resolved, and standard investigative procedures had not been followed. The Memorandum further opined that at the time that Petitioner was charged with murder, the State did not have sufficient evidence to prove his guilt beyond and to the exclusion of a reasonable doubt. The Memorandum concluded that Petitioner "was probably wrongfully accused" based upon the evidence that existed at the time. Three years later a 260-page Memorandum Opinion prepared by United States Attorney Robert Merkle and indicating a need for further investigation into the 1968 prosecution of Petitioner was presented to the Treasurer of Florida. The Opinion, which was not admitted in evidence, was described as a "scathing indictment" of Reno's investigation. As a result, Governor Lawton Chiles issued a confidential Executive Order on October 16, 1992, appointing State Attorney Reno to further investigate all matters pertaining to or arising from the issues raised in the Opinion involving Petitioner's prosecution. On October 30, 1992, the Governor issued a second Executive Order deleting the provisions of his prior Order requiring that it be sealed and confidential. Assistant State Attorney Richard L. Shiffrin, who participated in Reno's first investigation, and Gertrude M. Novicki, Reno's Chief Assistant for Special Prosecutions, were assigned to conduct this investigation. Both of those Assistant State Attorneys signed the Response of the State Attorney of the Eleventh Judicial Circuit. The Response is not dated but a word-processing notation suggests it may have been issued on or about April 30, 1993. At the final hearing, Novicki testified regarding her Response. Rather than responding to or explaining each of the details set forth in Merkle's Memorandum Opinion, Novicki and Shiffrin re-examined the propriety of both the vacating of the original judgment of guilty and the decision to enter a nolle prosse. In doing so, they reviewed the original prosecution in light of the evidence at trial and of the law as it existed in 1968 and also reviewed the ability to re-prosecute Petitioner in light of the evidence currently available and admissible. The Response concluded that the Order granting Petitioner's motion to vacate his conviction and sentence was supported by the facts and the law and that the decision to enter a nolle prosse reached in 1989 was proper. The Response's summary states that the physical evidence against Petitioner did not establish guilt beyond a reasonable doubt, the testimonial evidence as to Petitioner's admissions of culpability were of dubious admissibility and value, the evidence of motive was equivocal at best, and the decision to enter a nolle prosse was unquestionably correct. The summary ends as follows: "Whether or not [Petitioner] is guilty of this horrible crime is uncertain. What is certain is that proof beyond a reasonable doubt of guilt is lacking." The prior proceedings involving Petitioner and the prior reviews of those proceedings have focused on the criminal law standard of guilty beyond a reasonable doubt. That standard, however, is not applicable to this proceeding. In this proceeding wherein Petitioner is seeking monetary compensation for his wrongful incarceration, Section 961.03, Florida Statutes, requires Petitioner to establish by clear and convincing evidence that he committed neither the act nor the offense that served as the basis for the conviction and incarceration and that he did not aid, abet, or act as an accomplice to a person who committed the act or offense. Further, he must prove his actual innocence by verifiable and substantial evidence in order to meet the definition of wrongfully incarcerated person. Petitioner testified that he did not poison his children, that he did not kill his children, and that he never told anyone that he did. He also testified that he did not aid or assist anyone in poisoning or killing his children. In order to provide verifiable and substantial evidence in support of his testimony that he is innocent, Petitioner has taken two approaches. The first is by relying on the investigation detailed in the 1989 Nolle Prosse Memorandum and the testimony of Don Horn, one of the authors. (In its defense, the State offered the 1993 Response and the testimony of Gertrude Novicki, one of its authors.) In so doing, Petitioner has offered clear and convincing evidence that the investigation leading up to Petitioner’s prosecution and conviction was incomplete. The investigation revealed conflicting evidence about whether Petitioner had obtained life insurance policies on his children the night before they were murdered, which he had not, and whether Petitioner believed that he had. The investigation did not determine how the parathion got into the pots and skillet and various food products in the refrigerator or when. The investigation appeared to focus only on Petitioner as a suspect and not also on others whose involvement was suspicious. Toward the end of the investigation and prior to Petitioner’s criminal trial, the prosecutors wrote memos expressing concern about the weakness of their case and their possible inability to present even a prima facie case. After those memos were written, the Sheriff produced three jailhouse informants to testify that Petitioner admitted to them his crimes. They also gave statements that Petitioner said he thought that Reese did it and gave details of different motives she might have had. Rather than resolving the conflicting statements, the prosecution withheld the conflicting statements from the defense. The Nolle Prosse Memorandum discusses these statements and informants and finds that one of the jailhouse informants recanted his testimony after Petitioner’s trial and one was drunk when he testified. The third one, whose statements were given under circumstances that made them highly doubtful, died before the trial, and his testimony given at the preliminary hearing was given to the jury in the form of five witnesses who testified as to their recollections of his testimony. The informants were not the only ones to provide perjured testimony at Petitioner’s trial; the Sheriff also appears to have done so. A review of the Nolle Prosse Memorandum and the detailed evidence it discusses makes it clear that Petitioner was wrongfully accused based upon the evidence and lack of evidence the prosecution had gathered. It is further clear that Petitioner’s conviction and sentence based upon that insufficient evidence should have been vacated, and they were. It is further clear that re-trying Petitioner would be fruitless because the evidence available 21 years after the murders was insufficient: the physical evidence was missing or destroyed, many of the key witnesses were dead, and the evidence that might have been admissible for a re-trial was conflicting. However, the inability of the State to prove Petitioner guilty beyond a reasonable doubt does not prove that Petitioner is actually innocent of committing the murders or aiding in the commission. Petitioner’s second approach to providing verifiable and substantial evidence of his actual innocence is attempting to show that Reese, not the Petitioner, murdered the children. The 1989 investigation showed that, at the time the Richardson children were poisoned, Reese was on parole for killing her second husband with a gun. Although there was also a rumor that she had poisoned her first husband, no evidence was found to support that rumor. Parenthetically, there was also a rumor that Petitioner killed his three other children in Jacksonville, but that was also untrue. Similarly, there was a rumor that Sheriff Cline fathered Reese’s granddaughter and that was why he steered the investigation away from her. The blood tests of all concerned done as part of the 1989 investigation proved that rumor also untrue. Petitioner relies also upon the facts that Reese was the last person in the Richardson home on the day in question, the person who served the children the poisoned lunch, and the person who found the parathion in the shed. Her unconcerned behavior while the Richardson toddlers were exhibiting horrible symptoms on her porch and her lack of concern about whether her children who were playing there might be at risk from whatever was making the Richardson children so sick are suggested to be evidence that she knew why the Richardson children were sick and why her children would not be. It was also suggested that she must have been the murderer since her third husband had gone to Jacksonville with Petitioner and his wife but they had returned without Reese’s husband who never did return to her. Petitioner relies heavily on evidence which he suggests constitutes admissions of her guilt by Reese. The 1988 investigation considered an affidavit by one certified nursing assistant and a taped interview of another, both of whom worked at a nursing home where Reese became a patient in 1986. The affidavit by Belinda Romeo asserts that Romeo asked Reese on more than 100 separate occasions if she killed the seven Richardson children, that Reese replied that she did, and that Reese was competent at the times Romeo asked that question. On the other hand, the transcript of a taped interview of Doris Harris, who was present several times when Romeo questioned Reese, is clearly contrary to that affidavit. Harris states that by the time Reese was admitted to the nursing home, she was incontinent, unable to walk, unable to feed herself, only “half way aware,” unable to say what day or year it was, "back to a child's state," and suffering from Alzheimer’s. When Romeo would ask if she killed the children, she would say that she killed them, say the name Charlie, and then lapse into incoherent mumbling. Harris believed that Reese was saying she killed them because she was the one who fed them the poisoned food, and not because she was the one who put the poison in the food. Reese’s “admissions” are, therefore, ambiguous and not trustworthy. Petitioner also introduced into evidence a 1988 affidavit of Richard H. Barnard, the Chief of Police who began an investigation into the children’s deaths. After he got Reese to admit she was in the Richardson home that day and served the children their lunch, he was removed from the investigation by the “Governor’s office” in a phone call which he believes Sheriff Cline instigated. His affidavit undermines the statements of the jailhouse informants, expresses his concern that Sheriff Cline may have tampered with the jury, and states his opinion that Sheriff Cline framed Petitioner. He concludes with his opinion that Petitioner was innocent and Reese was guilty. The hearsay evidence and suggestions that Reese was guilty of the murders do not constitute verifiable and substantial evidence of Petitioner’s innocence. Opinion testimony does not constitute verifiable and substantial evidence of Petitioner's innocence. The Nolle Prosse Memorandum and the Response do not constitute verifiable and substantial evidence of Petitioner’s innocence. The testimony of Horn and Novicki as to what they considered during their investigations does not constitute verifiable and substantial evidence of Petitioner’s innocence. Lastly, Petitioner’s own testimony denying his guilt is not verifiable and substantial evidence of his innocence. Simply put, the evidence in this proceeding does not establish Petitioner’s actual innocence. Since Chapter 961, Florida Statutes, does not provide a definition of “actual innocence,” Petitioner argues that the definition should be that based upon the evidence it is more likely than not that no reasonable juror would have convicted him. That definition is found in Supreme Court of the United States and Supreme Court of Florida cases. Bousley v. United States, 523 U.S. 614 (1998); Schlup v. Delo, 513 U.S. 298 (1995); Tompkins v. State, 994 So. 2d 1072 (Fla. 2008); Mills v. State, 786 So. 2d 547 (Fla. 2001). Petitioner’s argument is not persuasive. All of those cases involved motions for post-conviction relief, not claims for money damages. That definition of actual innocence was likely utilized when Petitioner was granted post-conviction relief by having his conviction and sentence vacated and being released from prison, which is the relief which results from meeting that definition. That definition of actual innocence tests the legal sufficiency of evidence. The Statute regulating this proceeding does not consider legal sufficiency; rather, it considers factual sufficiency by requiring the undersigned to make findings of fact as to Petitioner’s actual innocence if proven by verifiable and substantial evidence. In other words, proof of factual innocence is required. Perhaps the reason the Statute does not contain its own definition of actual innocence is that the Legislature intended the words to have their plain, ordinary meaning. A review of the two investigations of Petitioner’s prosecution clearly shows an absence of evidence proving Petitioner guilty beyond a reasonable doubt. However, a review of the two investigations does not show that Petitioner is actually innocent. Accordingly, Petitioner has failed to meet his burden of proving actual innocence by clear and convincing evidence and, thus, has failed to establish that he is a wrongfully incarcerated person eligible for compensation under the Victims of Wrongful Incarceration Compensation Act. RECOMMENDED DETERMINATION 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 Petitioner has failed to meet his burden of proving actual innocence by clear and convincing evidence, denying Petitioner’s claim for compensation, and dismissing his Petition. DONE AND ENTERED this 21st day of August, 2009, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 21st day of August, 2009. COPIES FURNISHED: Robert I. Barrar, Esquire Law Offices of Ellis Rubin & Robert I. Barrar 6619 South Dixie Highway, No. 311 Miami, Florida 33143 Raul C. De La Heria, Esquire 2100 Coral Way, Suite 500 Miami, Florida 33145 Dennis Nales, Esquire Office of the State Attorney 2071 Ringling Boulevard, Suite 400 Sarasota, Florida 34237 Earl Moreland, Esquire Office of the State Attorney 2071 Ringling Boulevard, Suite 400 Sarasota, Florida 34237
The Issue The issue in this case is whether the Petition for Relief, charging the Respondent with illegal discrimination on the basis of a perceived handicap (a history of back surgery and mild hypertension), should be granted.
Findings Of Fact On or about April 30, 1991, the Petitioner, Malcolm L. Deane, II, applied for a job as a tanker driver with the Respondent, Fleet Transport Company, Inc., at its Tampa, Florida, terminal. Tankers transport gasoline, which is classified as a hazardous material. The Respondent hired the Petitioner, who had extensive tanker experience, conditioned on passing the physical and written examinations required by the Florida Department of Transportation (the DOT). He passed the written examination. The Respondent's physician examined the Petitioner and determined that the Petitioner had mild hypertension, which the Petitioner believes was caused by stress in his personal life at the time. Under DOT guidelines, a systolic blood pressure reading of between 161 and 180, or a diastolic blood pressure reading of between 91 and 104, is considered mild hypertension. The Petitioner's blood pressure was 140/104. In accordance with DOT regulations, the physician qualified the Petitioner to drive a tanker for three months, during which time the Petitioner would be required to reduce his blood pressure to 160/90, or better, in order to continue to be qualified, physically, to drive a tanker. The Respondent's physician also prepared a medical report of his examination of the Petitioner. In it, he not only reported the Petitioner's mild hypertension, he also reported that the Petitioner had back surgery January 3, 1991, which was "O.K. now," and made the comment: "I advise Mr. Malcolm [sic] to refrain from doing heavy lifting due to his recent back surgery." After the Petitioner's back surgery, the Petitioner successfully attended an eight-week back school and was released by his physician on or about March 6, 1991, to return to work driving a truck full-time with no restrictions. Once the Petitioner received his three-month Medical Examiner's Certificate, the Respondent hired him. He started training, with another driver, on May 1, 1991. Training continued on May 2, 3 and 4, 1991. After a day off, the Petitioner began working solo. He worked May 6, was off the next day, worked May 8 and 9, was off the weekend of May 10-12, and worked May 13 through 21, at which point he was "out of hours" for the month under DOT regulations and was required to take off. Throughout his work with the Respondent, the Petitioner's work was satisfactory and merited commendations and exhortations to keep up the good work. Neither his mild hypertension nor his back hampered his ability to perform the work in any way. At the end of the work day on May 21, 1991, the Respondent's terminal manager approached the Petitioner to tell him that the Respondent was terminating his employment. The manager conceded that the Petitioner's work had been excellent but that the company considered him a medical risk the company could not afford to take, due to the mild hypertension and the prior back surgery. The Petitioner was able to confirm through others in the company what the terminal manager had told him. The Respondent pays its drivers between $500 and $550 a week. The Petitioner was unemployed for four weeks after the Respondent terminated him. (He did not collect unemployment compensation.) He then got a job as a heavy equipment operator for a landfill, making $330 a week. Under the circumstances of his discharge, he does not seek to be rehired by the Respondent. He believes that his discharge by the Respondent has made it impossible for him to be hired by any other company as a tanker driver. On or about August 30, 1991, the Respondent (and other related companies) filed a petition for relief under Chapter 11 of the federal Bankruptcy Code and became a protected debtor in possession. Creditors were given notice of commencement of the proceeding and notice of the possible operation of Section 362 of the Bankruptcy Code (which prohibits some creditors from taking certain actions against a debtor in possession).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a final order granting the Petition for Relief filed in this case, prohibiting the Respondent from the practice of discriminating against the Petitioner on the basis of a perceived handicap, and requiring the Respondent to pay the Petitioner $2,000. RECOMMENDED this 26th day of March, 1993, 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 26th day of March, 1993. COPIES FURNISHED: Malcolm L. Deane, II 727 Brook Street Largo, Florida 34640 Norman Block, Esquire Spengler Carlson Gubar Brodsky & Frischling 520 Madison Avenue New York, New York 10022 Ronald M. McElrath Executive Director Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dana Baird, Esquire General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Margaret Jones Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570
The Issue The issues in this case are whether Respondent was convicted or found guilty of a crime which directly relates to the practice of chiropractic medicine; and, if so, whether Petitioner should impose discipline on Respondent's chiropractic license within the applicable penalty guidelines or take some other action.
Findings Of Fact The Parties At all times relevant to this case, Respondent Mia Ann Higginbotham, D.C., was licensed to practice chiropractic medicine in the state of Florida. The Department has regulatory jurisdiction over licensed chiropractors such as Dr. Higginbotham. In particular, the Department is authorized to file and prosecute an administrative complaint against a chiropractic physician, as it has done in this instance, when a panel of the Board of Chiropractic Medicine has found that probable cause exists to suspect that the licensee has committed a disciplinable offense. The Material Historical Facts In April 2006, the State Attorney of the Eleventh Judicial Circuit filed an Amended Information in the Circuit Court of the Eleventh Judicial Circuit, in and for Miami-Dade County, Florida, which charged Dr. Higginbotham with six counts of insurance fraud as defined in section 817.234(1), Florida Statutes (2004); four counts of grand theft in the third degree, as defined in section 812.014; 24 counts of communications fraud as defined in section 817.034(4)(b)1.; and one count of organized fraud as defined in section 817.034(4)(a)1. Dr. Higginbotham had been arrested earlier on some or all of these (or similar) criminal charges, on October 21, 2004. The record does not contain the original information. The 38-count Amended Information also charged five other defendants, namely Francisco Javier Espinosa, Evelyn Cajuste, Romer Ferguson, Deborah Eugene, and Christopher Wesley Nelson.3 Two of these individuals——Mr. Ferguson and Ms. Eugene—— testified at the final hearing in this case. Each admitted having participated in a staged (i.e. fake) automobile accident on March 18, 2004, and, afterwards, having seen Dr. Higginbotham for treatment of "injuries" purportedly sustained in the "accident." Each claimed to have received real treatment from Dr. Higginbotham and other providers in her office. (Ms. Eugene testified that her back truly hurt at the time, not as a result of the fake accident of course, but due to a previous injury.) Each disclaimed any personal knowledge that Dr. Higginbotham had been aware that the March 18, 2004, "accident" was staged to defraud insurance companies.4 To the extent and as described in this paragraph, the undersigned credits the testimony of Mr. Ferguson and the testimony of Ms. Eugene and finds these facts, as stated, to be true. By the time the criminal case finally came to trial in February 2009, Dr. Higginbotham was the last defendant remaining, the others having previously made deals with the state pursuant to which they, or some of them, had agreed to testify against Dr. Higginbotham. During the nearly four and one-half years that elapsed between Dr. Higginbotham's arrest and the trial, the state had offered her numerous deals. Dr. Higginbotham had rejected all of the proposed deals because they would have required her to plead guilty, which she refused to do. Dr. Higginbotham consistently maintained her innocence throughout the criminal proceeding and has done the same in this proceeding as well. At the outset of the criminal trial on February 3, 2009, the state offered Dr. Higginbotham a no-prison deal under which, if she agreed to plead nolo contendere to eight of the 35 charges pending against her, the state would recommend that adjudication of guilt be withheld and that she be sentenced to a term of probation. Significantly, the state did not demand that Dr. Higginbotham relinquish her chiropractic license as consideration for the deal. Dr. Higginbotham had very little time to think about whether to accept the state's offer. Her defense attorney was adamant that she accept the deal because juries are unpredictable and the proposed plea bargain would eliminate the risk of incarceration. As Dr. Higginbotham recalled the scene, in testimony the undersigned accepts as credible and persuasive, "[My attorney] was screaming at me at the top of his lungs that he felt I needed to take this deal and all he was concerned about was that . . . I wouldn't be going to jail and he said you never know what could happen." The adverse consequences of a guilty verdict would have been devastating for Dr. Higginbotham. She faced the possibility of a lengthy prison sentence if convicted——in the worst case scenario, about 160 years, the prosecutor had stated. Were she to be incarcerated for even a fraction of that period, Dr. Higginbotham's professional life would be finished and her personal life shattered. In regard to the latter, Dr. Higginbotham wanted to start a family but felt she could not do so while the criminal case was pending. She likely would lose that opportunity if she spent her childbearing years behind bars. Ultimately, Dr. Higginbotham accepted the state's offer because, as she put it, "at the time I was scared, I was nervous, I was under a lot of stress. My attorney was putting an enormous amount of pressure on me and I felt I really had no other choice." The undersigned accepts this testimony as truthful and finds that Dr. Higginbotham agreed to plead nolo contendere, not because she had a guilty conscience, but to avoid the catastrophic downside of a guilty verdict, which she needed to reckon a possibility, despite being conscious of her own innocence. Consequently, Dr. Higginbotham pleaded no contest to four counts of insurance fraud as defined in section 817.234(1), Florida Statutes (2004), and four counts of communications fraud as defined in section 817.034(4)(b)1. (the "Uncontested Charges"). The court accepted the plea and entered an order disposing of the case, which is captioned "Finding of Guilt and Order Withholding Adjudication/Special Conditions" (the "Order"). In the Order, after reciting that it appeared Dr. Higginbotham "ha[d] been found guilty" of the Uncontested Charges "upon the entry of a nolo contendere plea," and that it appeared Dr. Higginbotham should not "presently [be required] to suffer the penalty imposed by law," the court ordered that "adjudication of guilt be . . . stayed and withheld." The court placed Dr. Higginbotham on probation for a period of four years, subject to early termination after the successful completion of two years. The court further ordered Dr. Higginbotham to pay about $2,300 in costs but reserved ruling on whether to require her to make restitution. Due to the insufficiency of the evidence, the undersigned is unable to make any findings of fact regarding the conduct of Dr. Higginbotham which gave rise to the Uncontested Charges. Simply put, given the minimal persuasive evidence regarding Dr. Higginbotham's conduct, the undersigned cannot determine what she actually did as a result of, or in connection with, the fake accident described above, besides (a) provide some chiropractic treatment to persons who falsely told her they had been hurt, as found above, and (b) plead no contest to the Uncontested Charges. In short, other than the undisputed fact of the plea, there is no persuasive evidence in the record to support a finding that Dr. Higginbotham committed any crime. Ultimate Factual Determinations Dr. Higginbotham did not impliedly admit guilt when she pleaded nolo contendere to the Uncontested Charges. Her explanation of the reasons for accepting the state's offer provides objectively reasonable grounds——consistent with innocence——for having entered the plea, refuting the implication that she acted on a guilty conscience or the substantial likelihood of a conviction. In this connection, it is further determined that Dr. Higginbotham, while being conscious of her innocence and never admitting guilt, entered the plea to avoid the possibility of being found guilty and sent to prison, potentially for many years; to be able to get on with her personal life; and to retain the ability to resume her professional career as a chiropractic physician. In addition, given that the state was willing to give up more than three-quarters of the criminal charges against Dr. Higginbotham; and that the sentence imposed (four years' probation subject to early termination) was lenient as compared to the range of potential sentences, including many years of imprisonment, which could have been imposed were she tried and convicted; the undersigned infers that the prosecutor's offer was a generous one, reflecting the strength of Dr. Higginbotham's position relative to the state's. In sum, under the circumstances, the no-prison plea bargain offered to Dr. Higginbotham was too good to refuse, given that an acquittal would have been only marginally more beneficial than a sentence of probation with a withhold of adjudication, whereas a guilty verdict would have been ruinous. Accordingly, it is determined as a matter of fact, based on the totality of the evidence including the plea of nolo contendere and the presumption of a conviction which arises therefrom, that Dr. Higginbotham was not "convicted or found guilty" of crimes relating to the practice of chiropractic medicine. Dr. Higginbotham is not guilty, as a matter of fact, of committing an offense punishable under section 460.413(1)(c), Florida Statutes (2008).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Chiropractic Medicine enter a final order finding Dr. Higginbotham not guilty of the charge set forth in the Complaint. DONE AND ENTERED this 11th day of May, 2011, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 11th day of May, 2011.
Findings Of Fact Respondent, Edward Willison Carroll, III, is currently eligible for licensure and is licensed in this state as a Credit Life, including Credit Disability Insurance Agent; General Lines - Property, Casualty, Surety and Miscellaneous Lines Agent; General Lines - Motor Vehicle Physical Damage and Mechanical Breakdown Agent; Ordinary Life, including Health Insurance Agent; Health Insurance Agent; and Automobile and Inspection and Warranty Association Salesman. On March 10, 1980, respondent filed a verified application with petitioner for examination as a General Lines Agent (Property, Casualty, and Miscellaneous Lines) . Question number 13 of the application asked the following: Have you ever been charged with or convicted of a felony? If so, complete the following and submit a full and detailed report on a separate sheet. Date Name of Court Address of Court Nature of Charge and Outcome Respondent answered no to this question. On May 28, 1982, respondent filed a verified application with petitioner for examination as an Ordinary Life including Disability Agent. Question number 15 of the application asked the following: Have you ever been charged with or convicted of a felony? If so, complete the following and submit a full and detailed report on a separate sheet. Date Name of Court Address of Court Nature of Charge and Outcome Respondent answered no to this question. Respondent's answers to question 13 on the March 10, 1980, application and question 15 on the March 28, 1982, application were false. On December 11, 1970, the State Attorney for the Second Judicial Circuit of the State of Florida, filed an information with the circuit court which charged that respondent did on December 3, 1970, in Leon County, Florida ... knowingly commit a lewd or lascivious act in the presence of Alice Leigh Divita, a female child under the age of fourteen years, to-wit: of the age of six years, without intent to commit rape upon said child, contrary to Section 800.04, F.S. On March 9, 1971, respondent entered a plea of guilty to the crime of fondling, as charged in the information. The court withheld adjudication of guilty and imposition of sentence, and placed respondent on probation for a period of three years. At hearing, respondent conceded that he had been charged with the aforementioned felony. He averred, however, that his failure to disclose such charge on his applications was not intended to be deceitful but was premised on his belief that he could properly answer no to such inquiries because adjudication of guilty had been withheld. While respondent may reasonably have believed that he could respond in the negative to an inquiry concerning felony convictions, his contention that he held an honest belief that he could also respond in the negative to inquiries about whether the had ever been charged with a felony is not persuasive. But for the foregoing charge, respondent has not been charged or convicted of any other felonies. Nor, has the respondent been shown to have engaged in any improprieties as an insurance agent.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered suspending respondent's licensure and eligibility for licensure for three months. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of August, 1988. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 1988. APPENDIX Petitioner's proposed findings of fact are addressed as follows: 1. Addressed in paragraph 1. 2 & 3. Addressed in paragraph 2. 4 & 5. Addressed in paragraph 3. 6. Addressed in paragraph 5. 7 & 8 Addressed in paragraph 6. 9 & 10. Addressed in paragraphs 7 and 8. 11. Addressed in paragraph 9. 12-14. Rejected as not relevant. COPIES FURNISHED: S. Marc Herskovitz, Esquire Office of Legal Services 413-B Larson Building Tallahassee, Florida 32399-0300 Thomas L. Neilson, Esquire 105 West Fifth Avenue Tallahassee, Florida 32303 The Honorable William Gunter State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Don Dowdell, Esquire General Counsel The Capitol, Plaza Level Tallahassee, Florida 32399-0300
Findings Of Fact On October 12, 1981, Petitioner pleaded guilty to the felony charge of unemployment compensation fraud, adjudication of guilt was withheld, and Petitioner was placed on probation for one year (Exhibit 2). The probation was terminated by Order Dismissing Warrant entered October 27, 1982 (Exhibit 3). The unemployment compensation fraud resulted from Petitioner's continuing to receive unemployment compensation following his discharge from the armed services after he had obtained full-time employment. The Information charged Petitioner with failure to disclose a material fact, to wit: he reported that he was unemployed while he was in fact working and receiving wages from Pacific Packing Company (Exhibit 2). In Application For Filing for Examination as an Ordinary Life, Including Health, agent dated March 16, 1984, Petitioner, in response to question 11(a) on this application asking if he had ever been charged with a felony, answered, "no." He gave the same answer to question 11(b) which asked if he had ever been convicted of a felony. Petitioner testified that he discussed the completion of this application with a fellow employee of an insurance agency at which he was working; and, since he had, on a earlier application for temporary employment, furnished the information regarding his unemployment compensation fraud conviction to the Department of Insurance, he did not deem it necessary to again report this offense. The fellow employee confirmed that he had discussed this answer with Petitioner and had suggested Petitioner answer the question as he did. Neither petitioner nor this witness satisfactorily answered the Hearing Officer's question how Petitioner could answer no to question 11 and then swear that all answers given on the application are true and correct. Petitioner's minister testified that Petitioner is a deacon in his church and he has found Petitioner to be truthful, honest, and capable of making mistakes and admitting them. As a temporary employee of A. L. Williams Company, a distributor of insurance products, Petitioner was deemed to be truthful, honest, and upright.
