The Issue The issue is whether Petitioner, Juan F. Ramos (Petitioner), is entitled to compensation pursuant to sections 961.01 through 961.07, Florida Statutes (2013). Unless otherwise stated, all references to the law will be to Florida Statutes (2013).
Findings Of Fact Petitioner immigrated to the United States from Cuba in 1980. In April of 1982, Petitioner resided in Cocoa, Florida, within walking distance of his employer, Armor Flite Southeast. Mary Sue Cobb, the victim of a murder, also lived in the area near Petitioner’s home and Armor Flite Southeast. Petitioner and Mrs. Cobb knew one another. Prior to April 23, 1982, Petitioner had placed an Amway order with the victim and her husband. The Cobbs sold Amway products and solicited Petitioner to purchase items and/or become a salesperson for the company. Prior to April 23, 1982, Petitioner had been at the Cobb residence five or six times. Petitioner had been inside the Cobb home. For the two days prior to April 23, 1982, Petitioner had been sick, unable to go to work, and had not been at the Armor Flite Southeast property. At all times material to this case, Manuel Ruiz was the general manager at Armor Flite Southeast. Mr. Ruiz served as Petitioner’s supervisor. From the Armor Flite Southeast property, it was possible to view the Cobb residence. On the morning of April 23, 1982, Petitioner told his wife he was going to work. Petitioner did not, however, enter the Armor Flite property at the beginning of the work day when Mr. Ruiz opened the shop at approximately 6:45 a.m. Moreover, Mr. Ruiz did not see Petitioner at the Armor Flite Southeast property until he came to pick up his check at 11:30 a.m. or noon on April 23, 1982. Instead of a paycheck, Mr. Ruiz gave Petitioner a letter on April 23, 1982, that notified him he was being laid off effective April 21, 1982. Armor Flite Southeast was in Chapter 11 and the trustee for the company gave Mr. Ruiz a list of four persons who were to be laid off. Petitioner was among those four. Petitioner was invited to attend a meeting with the trustee on April 23, 1982, at approximately 3:30 p.m. In theory, the employees were being laid off due to lack of work, but they could be re-hired if the work volume improved. Mr. Ruiz explained the foregoing to Petitioner. Mr. Ruiz and Petitioner had no difficulty communicating as both men were fluent in Spanish. At some time after the meeting with Mr. Ruiz, Petitioner returned home and was there when family members came over later in the afternoon. During the morning of April 23, 1982, Mrs. Cobb was murdered. Following an investigation of the crime, Petitioner was charged with the first degree murder of Mrs. Cobb, was convicted, and was incarcerated. Subsequent to the conviction and sentencing, Petitioner’s conviction was overturned and his case was remanded for a new trial. The second trial resulted in an acquittal on April 24, 1987. On June 28, 2010, Petitioner filed a petition for compensation and alleged he is entitled to relief pursuant to chapter 961, Florida Statutes. An Amended Petition was filed on October 20, 2010, and resulted in an order entered May 13, 2013, by Circuit Court Judge Charles Roberts that provided as follows: The Defendant’s [Petitioner herein] Amended Petition to Victims of Wrongful Incarceration Compensation Act shall be transferred to the Division of Administrative Hearings for findings of fact and a recommended determination of whether the Defendant has established that he is a wrongfully incarcerated person who is eligible for compensation.
The Issue The issues to be determined are whether Driving Under the Influence (DUI) with property or personal damage and DUI manslaughter, are crimes that relate to the practice of, or the ability to practice, dentistry, within the meaning of section 466.028(1)(c), Florida Statutes, as alleged in the First Amended Administrative Complaint and, if so, the appropriate penalty.
Findings Of Fact The Department of Health, Board of Dentistry, is the state agency charged with regulating the practice of dentistry in the state of Florida, pursuant to section 20.43, and chapters 456 and 466, Florida Statutes. Stipulated Facts At all times material to this proceeding, Respondent, Matthew Moye, D.D.S., was a dentist within the State of Florida, having been issued license number DN16032 on August 2, 2002. Respondent’s address of record with the Department is Marion Correctional Institution, Post Office Box 158, Lowell, Florida 32663. Respondent began his private dental practice, Big Bend Dental, in 2009. Respondent offered the following procedures in his practice: composite fillings; crown and bridgework, including preparing teeth for crowns; root canals; dentures; extractions, including molar and wisdom teeth extractions; Botox; and lip fills. Respondent has never been the subject of a disciplinary action against his license to practice dentistry. On or about October 31, 2010, while under the influence of alcohol, Respondent was involved in a motor vehicle collision in which he lost control of his vehicle on the Harbor Island Bridge in Tampa, Florida. Respondent struck three people with his vehicle, killing two, and caused property damage. On November 7, 2013, Respondent pled guilty to, and was convicted of, two counts of first-degree misdemeanor DUI with Property or Personal Damage and two counts of second-degree felony DUI Manslaughter based on the above incident. Respondent’s sentence included: 12 years of incarceration; 10 years of probation following release from incarceration; and Permanent revocation of driver’s license. Respondent has not practiced dentistry since being incarcerated. Other Findings of Fact Dr. Johnson testified that dentists operate from a position of trust, and that there is an expectation of professionalism and good judgment on the part of persons holding a license to practice dentistry. Upon his review of the police reports and court documents related to Respondent’s crime, he opined that the acts described therein evince recklessness and a lack of good judgment. As a result, he believed that the crimes affected Respondent’s practice or ability to practice dentistry. On cross-examination, Dr. Johnson candidly admitted that his opinion as it related to DUI Manslaughter was based on how he felt about that crime, and on his personal principles. He reviewed no journals or professional publications. He did not review court decisions or Board of Dentistry final orders. He was aware of no general consensus in the dental community as to whether DUI Manslaughter is a crime related to the practice or ability to practice dentistry. He had no training in substance abuse impairment, and could not state whether a single DUI could be used to diagnose alcohol abuse or impairment. As to evaluating whether an act affects the practice of dentistry, Dr. Johnson testified that “at some point along the way, there’s always going to be personal opinion. You know, could be somebody like mine. Could be a personal opinion on the Board of Dentistry.” What is clear from the totality of Dr. Johnson’s testimony is that his opinions reflect his personal belief as to whether DUI Manslaughter affects the practice or ability to practice dentistry, an opinion influenced by his self-perception as “a very black-and-white person.” Despite the stipulation as to his expertise, Dr. Johnson could identify nothing in his education or experience that made him an expert in crimes that affect the practice of dentistry, other than his years as an experienced, well-regarded, and respected oral and maxillofacial surgeon. The legislature’s 2013 amendment of section 90.702, Florida Statutes, was intended to replace the Frye standard of opinion testimony, which allows “pure opinion” testimony, with the Daubert standard, which does not. Chapter 2013-107, sections 1 and 2, Laws of Florida. In 2017, the Supreme Court declined to adopt the legislative change under its authority over procedural matters in Florida courts. In re: Amendments to the Fla. Evidence Code, 210 So. 3d 1231 (Fla. 2017). Whether the Supreme Court’s decision to decline to adopt the Legislature’s Daubert amendment bears on the issue at DOAH, an executive branch agency, is an interesting question, but one for another day. In this case, Dr. Johnson’s testimony comes down to a matter of weight. Were his testimony directed to a particular standard-of-care on the part of a licensed dentist, the undersigned would have no problem accepting his years of experience as a suitable basis for an opinion on that issue. Dr. Johnson’s opinion that the “act” of deciding to drive a vehicle while intoxicated is evidence of recklessness or lack of judgment that can reasonably affect the ability to practice dentistry. However, Dr. Johnson’s subjective belief that the unintentional outcome of that act evinces a greater lack of trustworthiness, or shows a higher degree of reckless behavior or poor judgment, does not rise to the level of competent, substantial evidence to support a finding that DUI Manslaughter is any more related to the practice of dentistry than is a DUI. There is insufficient evidence to support a finding that the act of driving under the influence of alcohol, regardless of the outcome of that act, is directly related to Respondent’s ability to provide effective and safe treatment of his patients. As it pertains to this case, the behavior that reflects on Respondent was his decision to get behind the wheel of his car while intoxicated. That is the conduct for which there is some evidence that demonstrates that Respondent exhibited “reckless behavior” and a “lack of judgment.” Counsel for Petitioner presented a well-researched and articulate analysis of the reasons underlying the legislature’s policy decision to classify incidents of impaired driving resulting in death as manslaughter. The basis for that policy decision is that a death resulting from DUI is the result of a presumptively negligent and culpable act, i.e., getting behind the wheel of a vehicle. However, the cases cited by Petitioner highlight the “policy choice” made by the Legislature to impose a heightened penalty for a DUI that results in death. The citation to State v. Hubbard, 751 So. 2d 552 (Fla. 1999), is certainly apropos, and worthy of repeating: We recognize that the Legislature accords disparate treatment to DUI and DUI manslaughter, for example. On the one hand, driving while drunk is a misdemeanor which requires at least three convictions to earn a year's imprisonment. § 316.193(2)(a) 2.c., Fla. Stat. (1995). It will only become a third-degree felony carrying a potential of five years' imprisonment upon a fourth or subsequent conviction. § 316.193(2)(b), Fla. Stat. (1995). In contrast, a drunk driver whose operation of his or her automobile causes the death of another is guilty of a second-degree felony, carrying a potential fifteen-year prison term. The Legislature clearly has made the policy choice to impose more severe sanctions on the drunk driver who kills someone than on the drunk driver who is fortuitously caught before possibly killing someone. While that may seem a bit unfair, it is hardly irrational. Id. at 565 n. 29. (emphasis added). There has been no such express legislative “policy choice” here. Rather, as it relates to this case, the Legislature has chosen to sanction conduct only to the extent that it relates to the practice of dentistry.1/ The motivation for legislative policy decisions and regulatory decisions are entirely different. See, Nadia N. Sawicki, Character, Competence, and the Principles of Medical Discipline, 13 J. Health Care L. & Pol’y 285, 295 (2010). (“Unlike criminal law, which is aimed at punishing wrongdoers, or civil law, which is aimed at victim compensation, professional discipline seeks to protect public welfare by incapacitating or rehabilitating dangerous physicians.”). The fact that the Legislature elected to punish DUI Manslaughter more severely than DUI based on the result of the act is not sufficient grounds to impose a different regulatory penalty for the same “act” based on the result. There has been no express “policy choice” by the Department that an act is more worthy of a different regulatory sanction based on its result. Again, it is the voluntary act of driving while intoxicated that reflects on the ability to practice dentistry, not the unintended, even tragic, result. The tragic outcome of Respondent’s reckless act of driving while impaired, though it certainly affects how Respondent’s behavior is treated from a criminal perspective, has little to do with whether it affects the clinical quality of his work, the quality of his patient care, or his ability to practice dentistry. The nature of the violation in this case has fairly been characterized as one of “character,” and not “competence.” As observed by Professor Sawicki, “many of the most serious disciplinary actions taken on the basis of criminal convictions involve criminal misconduct with no immediately apparent impact on patient safety or public health.” Sawicki, supra at 304. The incident here was not shown to have any effect on Respondent’s technical qualifications or abilities to practice dentistry. There was no suggestion that the DUI was the result of a broader pattern of alcohol abuse that affected Respondent’s practice of dentistry at the time of the incident. Given the terms of his probation after he is released -- neither driving nor alcohol consumption will be allowed -- there will be no possibility of a recurrence of the violation. Thus, the violation is directed to societal issues of trust and judgment, rather than ability and competence. The evidence in this case is sufficient to demonstrate that the act of driving while impaired is one that generally demonstrates recklessness and a lack of good judgment, and that such attributes can be correlated to one’s ability to effectively practice dentistry. The evidence in this case was not sufficient to demonstrate that the crime of DUI Manslaughter involves any greater degree of recklessness, or a heightened degree of poor judgment than does a DUI. Furthermore, the undersigned rejects the contention that Respondent’s inability to practice dentistry during his period of incarceration is a basis for revocation of his license. Petitioner pointed to no requirement that a licensed dentist engage in any minimum number of practice hours to maintain a license. Any necessary practical experience can be addressed in reasonable conditions as addressed herein.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Dentistry, enter a final order: determining that Respondent violated sections 456.072(1)(c) and sections 466.028(1)(c) and (mm), as a result of the recklessness and lack of judgment exhibited by his decision to drive while under the influence of alcohol; placing Respondent’s license on probation for a period of one year, to commence upon his release from incarceration, with appropriate terms of probation to ensure Respondent’s practical ability to perform dentistry as authorized by rule 64B5-13.005(3)(d)2.; imposing an administrative fine of $10,000 to be paid within a reasonable period of time from Respondent’s release from incarceration; requiring reimbursement of costs to be paid within a reasonable period of time from Respondent’s release from incarceration; requiring completion of an ethics course; requiring 100 hours of community service to be performed concurrently with that required as a condition of Respondent’s probation; and requiring an evaluation from the Professionals Resource Network. DONE AND ENTERED this 14th day of June, 2018, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of June, 2018.
The Issue Whether Respondent failed to maintain the minimum qualifications for employment or appointment as a law enforcement or correctional officer by failing to exhibit good moral character and, if so, the nature of the sanctions.
Findings Of Fact Petitioner is the entity within the Florida Department of Law Enforcement responsible for the execution, administration, implementation, and evaluation of the powers, duties, and functions established under sections 943.085 through 943.255, Florida Statutes, and is charged with certifying and revoking the certification of correctional officers in Florida. § 943.12, Fla. Stat. Pursuant to section 943.1395, Petitioner is authorized to investigate incidents in which certified correctional officers are alleged to have failed to maintain compliance with the minimum qualifications for certification, and to take disciplinary action against correctional officers found to have failed to maintain those qualifications. At all times relevant to this proceeding, Respondent was certified by Petitioner as a correctional officer, and holds Correctional Certificate Number 77370. He was initially certified on April 9, 1987. During the period from his initial certification up to 2007, Respondent rose through the ranks, achieving the rank of captain. In 2007, as he neared his date of retirement, Respondent requested a voluntary demotion to sergeant. The duties associated with being a “correctional officer in charge” were causing difficulties with his marriage, and his voluntary demotion to sergeant allowed him to “lay out the last five years so I could use my leave up easier and kind of have a life.” Respondent has not previously been the subject of any disciplinary action, nor was there any allegation of prior disciplinary history involving Respondent. On March 1, 2010, Respondent served as a correctional officer at the Lowell Correctional Institution. Respondent knew Tracy Coer as an inmate at the Lowell Correctional Institution. Respondent occasionally tasked inmate Coer, along with other inmates, with cleaning the correctional officers? supply room and staff bathroom at the end of a shift. Respondent testified that such activities were never done without another officer present in the officer station. On the evening of March 1, 2010, Respondent was assigned to escort inmate Coer from her dormitory to the medical unit for a breathing treatment. The medical unit has an exterior door, with a clear window described as being “about six inches long and . . . maybe about a foot and a half tall.” The exterior door led into a waiting room, which contained bench seating for inmates. A second secured door led from the inmate?s waiting room into the medical facility. Directly inside the second secured door was a desk for a monitoring correctional officer, which had a clear view into the inmate waiting room. From the dormitory to the medical unit, Respondent and inmate Coer were in view of the guard tower. Respondent intended to turn inmate Coer over to the custody of the monitoring correctional officer on duty and leave. When Respondent arrived at the medical unit, there was no correctional officer on duty at the waiting room monitoring desk.2/ Therefore, Respondent transferred custody of inmate Coer directly to medical staff. Since the monitoring officer was not at her post, Respondent stayed in the waiting room. After about 30 minutes, inmate Coer was returned by medical staff to the inmate waiting room. The monitoring officer had not returned to her duty station, and the waiting room was vacant, but for Respondent and inmate Coer. The time was about 9:25 or 9:30 p.m. It was dark outside, but the sidewalk was lit by security lights. It is Respondent?s practice to always be in view of another correctional officer when with a female inmate. However, for the period after inmate Coer was placed into Respondent?s custody in the waiting room, and before they exited through the exterior door, they were not in direct view of medical staff, the guard tower, or any other correctional officer. Respondent testified that as he was preparing to escort inmate Coer from the medical unit and return her to her dormitory, she became “off balance.” In Respondent?s experience, breathing procedures can make persons “dizzy and lightheaded.” He did not want her to fall, so Respondent grabbed inmate Coer?s jacket sleeve to steady her. She turned towards him, whereupon he grabbed her other sleeve to hold her up. According to Respondent “we came in close proximity at that time and shortly within like seconds I heard the door opening and I turned and looked over my right shoulder and Officer Richardson was standing in the door.” Respondent denied that he kissed inmate Coer, that he tried to kiss inmate Coer, or that he ever tried to kiss any inmate. Officer Richardson testified that she was returning to the medical unit from outside, and was preparing to enter the facility through the exterior door. She looked through the window, and saw Respondent and inmate Tracy Coer “holding hands and he leaned down to kiss her. It was like a lip to lip peck maybe.” She testified that she was able to see lip-to-lip contact between Respondent and inmate Coer. Her description gave a clear impression of a consensual act, with Respondent and inmate Coer holding hands, and inmate Coer in “a leaning upward motion so it?s not really unbalanced, but her face was leaning up.” After the incident, Officer Richardson testified that she reported what she observed to a fellow officer, and then to her captain. She was instructed to fill out an incident report describing her observations, which she did. Her incident report is consistent with and supplements her testimony. After submitting the incident report, Officer Richardson had no further involvement in the investigation of the incident until her testimony at the hearing. Officer Richardson testified that she had a clear view of the inmate waiting room, and of Respondent and inmate Coer, through the 6” x 18” window. Respondent testified that the windows consist of thick security glass, and that “[w]henever you approach one of those small windows at night, the reflection from the security lights, the shadows that are moving . . . [y]ou can?t see as clearly as you think you can.” Inmate Coer did not testify at the final hearing. Instead, Petitioner submitted an affidavit of inmate Coer describing the incident that forms the basis of the Administrative Complaint. The affidavit is hearsay. Inmate Coer?s affidavit could be said to supplement and corroborate Officer Richardson?s testimony in that they both describe an incident that culminated in a kiss. However, the affidavit described an act that was sudden, abrupt, and against inmate Coer?s will, while Officer Richardson described a more intimate and consensual act. Therefore, the affidavit does not serve to establish a firm belief or conviction in the mind of the undersigned as to the truth of the allegations sought to be established, but rather suggests a degree of imprecision or confusion as to the facts in issue.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that a final order be entered dismissing the Administrative Complaint. DONE AND ENTERED this 7th day of June, 2012, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 7th day of June, 2012.
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact Respondent, William E. Ford, Jr., was certified by the Criminal Justice Standards and Training Commission on May 20, 1976, and was issued Certificate Number 02-16845. After Harry L. Harper, a felony prosecutor in the office of the State Attorney for the Fourteenth Judicial Circuit, had known respondent, who worked as a deputy in the Bay County Sheriff's office, for about a year, it fell to him to draw and sign the information charging respondent and his wife Barbara with conspiracy to deliver cocaine. The jury who heard the case found respondent Ford guilty of conspiracy to deliver cocaine. On April 18, 1986, after the jury returned its verdict, the Honorable Don T. Sirmons entered an order withholding adjudication of guilt and placing respondent on probation on conditions which included 60 days in jail. State v. Ford No. 85- 1938 AG (14th Cir.1986). Petitioner's Exhibit No. 1.
Findings Of Fact Before 1989, the Petitioner, Gregory Miller, was a community control counselor (in effect, a juvenile probation officer) working for HRS. After several years of satisfactory job performance, his employment was terminated for unsatisfactory job performance in 1989. The Petitioner believes his termination by HRS was unfair. On January 30, 1991, the Petitioner, Gregory Miller, pled nolo contendere to attempted arson in violation of Section Section 806.01, Fla. Stat. (1991). Adjudication was withheld, and the Petitioner was placed on probation for two years. The attempted arson charge arose at a time in October, 1990, when the Petitioner, who has a 20-year history of substance abuse and suffers from bipolar disorder and borderline personality disorder, decompensated under financial and other stress and attempted to burn his automobile in order to fraudulently obtain property and casualty insurance benefits. At the time of the arson attempt, his car was parked in the garage, and a tenant was residing in the garage apartment overhead. The tenant noticed the fire started by the Petitioner, put it out and reported it to the Petitioner. The Petitioner berated him for putting the fire out and told him to get his personal belongings out of the garage apartment and leave. While the tenant was in the garage apartment gathering his belongings, the Petitioner was attempting to restart the fire. The tenant had been a worker's compensation client of the Petitioner. The Petitioner continued to have mental and emotional and substance problems that led to additional criminal charges. On February 13, 1991, he was arrested and charged with battery of a law enforcement officer, a third degree felony. On October 3, 1991, the Petitioner pled guilty to the lesser included offense of resisting arrest without violence, a misdemeanor, and was sentenced to seven days time served in jail. On or about December 22, 1991, the Petitioner overdosed on a mixture of drugs and alcohol in a possible suicide attempt. When confronted with law enforcement officers, the Petitioner struck the officers and was arrested and charged with battery of a law enforcement officer, a third degree felony. The Petitioner was involuntarily committed under the Baker Act, and on September 21, 1992, he pled nolo contendere to simple battery, a first degree misdemeanor, and was sentenced to one day time served in jail and ordered to pay $200 in fine and court costs. As a result of his other criminal charges, the Petitioner was charged with violation of his probation on the attempted arson charge. On or about March 16, 1992, the Petitioner pled guilty to violation of probation. Adjudication on the violation of probation was withheld, but probation was revoked, and he was resentenced under the attempted arson charge to a year of community control, followed by a year of probation. On or about March 8, 1992, the Petitioner was charged with driving with his license suspended or revoked for failure to maintain required insurance coverage. Since 1992, the Petitioner has not been involved in any additional criminal activity or charges. On February 23, 1993, his community control was converted to probation. He moved to Pasco County and, on December 22, 1993, his probation was terminated early. The Petitioner has sought professional counseling. On or about March 22, 1993, he was referred to a vocational rehabilitation counselor with the Department of Labor and Employment Security, Division of Vocational Rehabilitation. Since approximately early 1994, he also has been under the care of a psychiatrist. With the help of counseling, the Petitioner has been sober since before August, 1993. Fortunately, therapy seems to have been successful. Except for two short hospitalizations for decompensation and medication adjustment early in his counseling, the Petitioner has been sober and mentally stable over the course of the last three years. From a mental health standpoint, the Petitioner no longer seemed to be a danger to himself or others, and he was making good progress in rehabilitating himself. On or about May 18, 1995, the Petitioner sought employment with Action Youth Care, a provider on contract with HRS. When he applied for the job, he was required to complete an Affidavit of Good Moral Character that swore, in pertinent part, that he had "not been found guilty of, or entered a plea of nolo contendere or guilty to, any offense prohibited under . . . Section 806.01 [Florida Statutes, arson]." The affidavit also required the Petitioner to "acknowledge the existence of any criminal . . . record regardless of whether [he] was adjudged guilty by the court and regardless of whether or not those records have been sealed or expunged." The Petitioner signed without acknowledging his attempted arson record. When his name was screened, the attempted arson record disqualified him from employment, and the Petitioner was terminated from his employment pending his request for an exemption. Despite the Petitioner's commendable progress in rehabilitating himself, there still are signs that some instability persists. He does not seem to appreciate the seriousness of his criminal record and history of substance abuse and mental illness, as they relate to HRS's statutory obligation to properly assess his moral character under Section 409.175, Fla. Stat. (1995). Instead, he blames HRS's actions on a "political" conspiracy to prevent him from obtaining employment. Similarly, he attempts to excuse his criminal record by blaming it all on HRS--the termination of his employment in 1989 allegedly was the sole cause of his decompensation and the resulting criminal offenses. His excuse for falsifying his Affidavit of Good Moral Character was that it was reasonable not to disclose the arson record because it was only attempted arson, not arson. He does not seem to appreciate that there is little or no difference in blameworthiness between the two. (The only real difference between the two is how soon the fire goes out or is put out.) Finally, the Employee Closing Summary produced by Action Health Care upon termination of the Petitioner's employment stated that Action would not re-hire the Petitioner and that the Petitioner's "weak areas" included: "poor rapport with team"; "would not accept authority"; and "documentation skills." (No "strengths" were noted on the form.) The Petitioner again blamed HRS, contending that the person who completed the form was lying to cooperate with HRS's conspiracy against the Petitioner. It is found that the evidence, taken as a whole, was not clear and convincing proof of rehabilitation and good moral character at this time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that HRS enter a final order denying the Petitioner's request for an exemption from disqualification. DONE and ENTERED this 21st day of August, 1996, in Tallahassee, Florida. J. LAWRENCE JOHNSTON, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 1996.
The Issue Whether the application of Petitioner for a license as an employee guard should be granted or denied, based upon the grounds for tentative denial stated in the Department's letter dated August 23, 1978. At the hearing, the Department of State introduced the application of Willie F. Scott which stated that Scott had been arrested for driving without a license in 1969. The applicant testified that he had been arrested in 1967 in Miami, Florida for suspicion of armed robbery, that he had been arrested in 1969 in Long Beach, California for driving while intoxicated, had been arrested in 1970 in Atlanta, Georgia for disturbing the peace, had been arrested in Miami, Florida in 1971 for possession of marijuana, and had been arrested in Miami, Florida in 1972 for driving without a license. The Applicant further testified that he had revealed all of the foregoing arrests to his employer or a representative thereof, and that said representative had filled out his application and had advised him not to state these additional arrests. The grounds stated for denial by the Department was falsification of the application for licensure. The issue presented at final hearing was whether the Applicant had falsified his application when he advised his employer of the arrest and the employer, who filled out the application, failed to report the arrests?
Findings Of Fact Willie F. Scott is an Applicant for a license as an employee guard. This includes licensure both as an armed and unarmed guard. Scott signed an application which was presented to the Department of State. The application was filled out by Scott's supervisor, an agent of Scott's employer. Scott revealed his arrest record to the employer's agent who did not include these matters on Scott's application. Although Scott had been arrested several times prior to 1972, his only conviction was for driving while intoxicated while in Long Beach, California while he was in the Marine Corps. Scott served in the United States Marine Corps for two years and was honorably discharged with the rank of lance corporal. During the period of his employment, Scott has been promoted by his employer from patrolman to patrol sergeant. Scott was arrested in 1967 in Miami, in 1969 in Long Beach California, in 1970 in Atlanta, Georgia, and in 1971 in Miami, Florida. His only conviction was for driving while intoxicated in Long Beach, California.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Department of State issue Willie F. Scott Class F and G licenses as an employee guard. DONE and ORDERED this 17th day of October, 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 1978. COPIES FURNISHED: Willie F. Scott 5300 Northwest 33rd Northwest Miami, Florida 33142 Gerald Curington, Esquire Department of State The Capitol Tallahassee, Florida 32304 Marvin Sirotowitz Department of State The Capitol Tallahassee, Florida 32304
Findings Of Fact Petitioner Victor Rudolph Cobham made application for filing for examination as a Life and Health Agent on February 12, 1987, (hereafter, "application"). Question 8 of that application and Petitioner's answers thereto read as follows: Have you ever been charged with a felony? Yes If YES, give date(s): Dec. 16, 1983 What was the crime? Possession of cocaine & cannabis Where and when were you charged? Dade County, Dec. 16, 1983 Did you plead guilty or nolo contendere? Nolo Contendere on Appeal Were you convicted? Yes - Conviction reversed by 3rd District Court of Appeal Was adjudication withheld? See attachments to application Please provide a brief description of the nature of the offense charged. See attachments to application If there has been more than one felony charge, provide an explanation as to each charge on an attachment. Certified copies of the Information or Indictment and Final Adjudication for each charge is required. In response to the above question 8 Petitioner listed no other charges, convictions, or pleas, however he had, in fact, been charged on at least three other occasions. Petitioner was charged by an August 3, 1978 Information with possession of a controlled substance (cocaine), possession of cannabis in a felony amount, and possession or sale of a controlled substance implement (paraphernalia) in Case No. 78-7960 in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida. All of these charges were felony charges. Petitioner plead guilty to all charges. Adjudication of guilt was withheld. Petitioner was also charged by a September 18, 1978 Information with failure to redeliver a hired vehicle (rental car) in Case No. 78-10543 in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, which charge constitutes a felony. Petitioner pled guilty. Adjudication was withheld. In 1967, Petitioner was also charged with passing a worthless bank check but the charges were dropped because the check was paid. Whether this was a felony or misdemeanor charge is not clear. On March 31, 1987, the Insurance Commissioner denied Petitioner's application to sit for the insurance agent's examination due to this failure to divulge in his responses to question 8 of his application the facts contained in findings of fact 4-6, supra. Petitioner's position was that he had subconsciously omitted the information on the two 1978 charges due to the lapse of time and that since these charges did not result in any "convictions" no fraud was committed by him in failing to disclose them in response to question 8 of the application. He further asserted that because the Third District Court of Appeal reversed his conviction in the 1983 case, he had a "clean record." He offered no specific explanation for failing to reveal the 1967 charges except that with respect to all charges, he also asserted that he had assumed the agency would do an extensive background check as a result of his admission concerning the 1983 charge and would therefore discover all the charges prior to 1983 as well. Having weighed the credibility of Petitioner's testimony; the undersigned finds that Petitioner committed a material misstatement, misrepresentation, and fraud upon his application and that his reasons for his misstatement, misrepresentation and fraud are neither logical nor credible as mitigation therefor. Petitioner was previously a licensed insurance agent but has allowed his licensure to lapse. He has worked in insurance in one way or another for most of his adulthood. He is now an articulate 56 year old man who has completed two years of college. By education, training, and experience, Petitioner knows the difference between a charge and a conviction. Question 8 on the application requested that he list and explain all charges, not just convictions. It asked for types of pleas entered and whether adjudication had been withheld, thereby giving Petitioner every opportunity to explain the status of his record. Petitioner is knowledgeable about the various nuances of the judicial dispositions of each of the charges brought against him, and his failure to reveal them on his application can only be construed as deliberate misstatement, misrepresentation, and fraud.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that the Department of Insurance and Treasurer enter a final order denying Petitioner's application for filing for examination as a Life and Health Agent. DONE and RECOMMENDED this 10th day of September, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1987. COPIES FURNISHED: William Gunter Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Angelo A. Ali, Esquire 400 Roberts Building 26 West Flagler Street Miami, Florida 33130 Lealand L. McCharen, Esquire Department of Insurance and Treasurer Larson Building Tallahassee, Florida 32399-0300 =================================================================
Findings Of Fact The Respondent Michael Rush is a Doctor of Podiatry having been issued license number PO 0000529. The Respondent Rush was charged with and convicted of conspiracy to possess and import marijuana, Title 21 USC 841(a)(1), in the United States District Court, Connecticut. On March 30, 1981, the Respondent's conviction was affirmed, United States v. Rush, 666 F.2d 10 (2nd Cir. 1981). The Respondent Rush was incarcerated for a period of fourteen months, paid a fine of $15,000 and forfeited $33,000 from his savings account to the federal government pursuant to 21 USC 881(a)(6)(1976). The Respondent Rush is a resident of Broward County, Florida and maintains a professional office at 4700 Sheridan Street, Hollywood, Florida. Prior to the instant conviction, the Respondent Rush had never been charged with or convicted of any crime. The Respondent Rush has been active in community affairs, having participated in Little League, Boy Scouts, the Broward County Fair, and has received character references from a variety of local community leaders. The Respondent Rush is currently practicing his profession, has obtained professional liability insurance through the Podiatry Trust and is on the staff of Community Hospital of North Broward and Hollywood Pavillion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Administrative Complaint filed against Michael Rush by the Board of Podiatry be dismissed. DONE and ORDERED this 30th day of December, 1982, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1982.
Findings Of Fact Defendant, Daniel O. Schaiewitz, at all times here involved was a registered real estate salesman and on September 11, 1975 his registration was changed to inactive. Defendant was duly notified of the charges against him and of the date and place of the hearing. On October 14, 1975 Defendant was found guilty in the United States District Court for the Middle District of Florida of a violation of 18 U.S.C. 641. 18 U.S.C. 641 is the crime of embezzling property of the United States and carries a maximum punishment of $10,000 fine and ten years imprisonment.
