The Issue Whether Respondent's, Jamie Gonzalez, conduct evidenced lack of "good moral character" as alleged in the Administrative Complaint in this matter.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Respondent was certified by Petitioner on April 26, 1983, and devoted approximately 20 years to his career in law enforcement. He is 58 years old. He holds Law Enforcement Certificate No. 117162. On the evening of December 13, 2002, Respondent left a social function at approximately 11:00 p.m. and was operating his motor vehicle, a pick-up truck, while his ability to operate the vehicle was impaired by alcoholic beverages. Respondent acknowledged this at the onset of the final hearing. As he drove in an erratic manner on a rural Seminole County, Florida, roadway, he was observed by seven teenagers traveling together in two motor vehicles. One of these individuals contacted a law enforcement agency using a cellular telephone. The law enforcement agency directed these young people to follow Respondent and to continue reporting his route. Because of Respondent's proximity to the City of Oviedo, Florida, the Oviedo Police Department was alerted that a drunk driver was headed toward their city. Respondent was driving to the location of his business in an industrial park located in Seminole County, Florida, in close proximity to, but not within, the Oviedo city limits. When Respondent arrived at his business, he departed his motor vehicle and entered his business premises. The drivers of the two vehicles which were following Respondent placed their vehicles in position to block Respondent's exit from the industrial park which had only one exit road. After spending approximately ten minutes in his office, Respondent re-entered his vehicle and began to leave the industrial park. As Respondent drove his pick-up out the exit road, he was confronted by two vehicles blocking the exit road and seven individuals standing in close proximity of the blocking vehicles. There is no evidence that, until his exit was blocked, Respondent was aware that he was being followed. At approximately the same time as this confrontation was taking place, Officer Heather Capetillo, Oviedo Police Department, having been alerted and on watch for a drunken driver, approached the scene on the main road and observed all three vehicles. Because the industrial park was not within the City of Oviedo, she turned her vehicle around and parked within the City of Oviedo city limits several hundred feet from the road leading from the main road to the industrial park. It is not apparent that Respondent or the seven young persons were immediately aware of Officer Capetillo's presence. Although testimony regarding the ability of the various participants to observe what was happening varied, the closest street lights were approximately one mile from the industrial park. At least one vehicle had its headlights on; the remainder of the lighting was natural, moonlight. Lighting conditions were not good. Upon observing the blocking vehicles and the dismounted passengers, Respondent stopped his vehicle approximately 50 feet from them, leaving the vehicle's headlights on. Earlier in the evening Respondent had $4,400 in his possession, which he had deposited in a safe in his office. Believing himself to be the potential victim of a robbery, Respondent exited his vehicle carrying his automatic pistol and his cellular telephone. Because he did not want to confront these seven individuals, he retreated up the road toward his office in the industrial park. Observing Respondent with a handgun, the seven young people were understandably alarmed and began shouting and taking cover. Two young women, observing what they believed to be a Florida Highway Patrol vehicle, ran to Officer Capetillo's vehicle, screaming that "the man had a gun" or words to that effect. Acting immediately, Officer Capetillo activated her emergency lights and drove to the scene. When Respondent realized that a law enforcement officer had arrived on the scene, he turned and began walking toward the vehicles, which now included the police cruiser. Upon exiting her vehicle, Officer Capetillo could not initially see Respondent. He was immediately pointed out to her by one of the young people. She observed him near the road behind and to the side of his truck. She was approximately 50 feet from Respondent's vehicle in the immediate proximity of her cruiser and the two blocking vehicles. Officer Capetillo advises that "her adrenaline was flowing." She immediately announced, "Oviedo Police. Where's the gun?" Respondent answered, "Right here." She observed that Respondent had something in both hands. Respondent's right hand then moved up, and Officer Capetillo was able to observe the "barrel of a gun." Respondent was holding the weapon in his right hand at the barrel housing between his thumb and forefinger. She then said, "Put your hands up." Respondent "immediately" (Officer Capetillo's quote) put his hands up. She then said, "Drop it," and "I could hear it clunk." "There was no hesitation"; again, Officer Capetillo's quote. Respondent actually dropped the weapon into the cargo bed of the pick-up. She then said, "Drop the other thing," and she immediately heard a second "clunk." Respondent's hands were now free. Officer Capetillo then instructed Respondent to kneel down, which he did, and he was handcuffed. When Officer Capetillo observed the weapon in Respondent's right hand with the barrel directed at her, she believed herself to be in imminent danger. Fortunately, she used excellent judgment and did not use her firearm.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found not guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes (2002), and that the Administrative Complaint be dismissed. DONE AND ENTERED this 9th day of March, 2005, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 9th day of March, 2005. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jamie Gonzalez 1041 Sugarberry Trail Oviedo, Florida 32765 Michael Crews, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact On March 23, 1981, the Petitioner, Isidro R. Crucet, applied to the Respondent, Department of State, for licensure as a Class "D" (unarmed) and Class "G" (armed) security guard. The application for Class "D" and "G" licensure was denied on September 23, 1981, by the Director of the Division of Licensing pursuant to Section 493.306(2)(b)(1), 493.309(1)(e), 493.319(1)(a), (c), (g) and (p), Florida Statutes. On October 6, 1981, the Petitioner Crucet requested a hearing on the licensure denial. The basis for the Department's denial was the Petitioner's guilty plea on April 24, 1981, on a charge of carrying a concealed weapon following an information being filed against him in Dad County Circuit Court on April 5, 1981, which alleged violations of Section 790.01, Florida Statutes, carrying a concealed firearm, and Section 790.10, Florida Statutes, improper exhibition of a dangerous weapon. Following his guilty plea, the Petitioner Crucet was sentenced to eighteen months probation beginning April, 1981, and adjudication and sentence were withheld. At the final hearing, the Petitioner Crucet, through his interpreter, explained the events which led to his being charged and convicted of carrying a concealed firearm. Since early 1981, the Petitioner has been employed by Minutemen Security Patrol. In April, 1981, he was working the 6:00 p.m.-6:00 a.m. shift guarding a warehouse located at 3050 North River Drive in Miami. Adjacent to the warehouse area which he was guarding was a bar. A patron of the bar wanted to park his car in the warehouse area which the Petitioner was guarding since the bar parking area was full. When the Petitioner refused to allow the bar patron to park in the warehouse parking area, the patron became abusive and threatening. After the bar patron grabbed his neck and shoved him aside, the Petitioner went to his car and returned carrying a 33 caliber gun retrieved from the glove compartment which was lawfully purchased and for which he had received a temporary gun permit. When he reached the area where the bar patron had threatened him and the individual saw the gun, he left in his car. Although the gun was loaded, the Petitioner did not point the gun at anyone nor did he leave the area he was responsible for guarding. Approximately one hour after the incident the police arrived at the warehouse and asked the Petitioner if he had a gun. The Petitioner replied that he did and turned the gun over to the police. He was then arrested and booked on April 5, 1981. The Petitioner arrived in the United States from Cuba on May 1, 1980. He testified that while in Cuba he had worked on trains. He is presently working as an unarmed security guard for the same company which employed him when the incident in question occurred. Since the Petitioner arrived from Cuba, it is impossible at this time for the Respondent Department of State to ascertain from official records his criminal history in that country, if any. In this regard, the Petitioner is not unique and this is a situation that confronts all entrants from countries with whom the United States does not maintain formal or informal diplomatic relations. The Petitioner Crucet produced affidavits from individuals who were friends and neighbors in Cuba and who now reside in the United States. All of these individuals, who include an auto store clerk, a grocery store owner, a Community Service Agency owner and a supermarket owner, attest to his good moral character in Cuba and in the United States since his arrival in 1980. Additionally, the Petitioner's attorney, Jorge Fernandez, testified at the formal hearing that he knew the Petitioner, his family and his employer and would vouch for the good moral character and reputation of the Petitioner. Counsel for the Petitioner informed the Hearing Officer at the close of the final hearing that one of the conditions of his probation prohibit him from receiving a license as an armed security guard without the permission of his probation officer. However, once the Petitioner's probationary period has ended, it is the intention of Mr. Fernandez to attempt to expunge the Petitioner's record and reapply for a license as an armed security guard. The Respondent Department of State offered no evidence to refute the Petitioner's account of the incident which resulted in his guilty plea for carrying a concealed weapon or the character affidavits filed following the close of the final hearing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the application of Petitioner Isidro R. Crucet for licensure as a Class "D" unarmed security guard be granted. DONE AND ENTERED this 6th day of April, 1982, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings Department of Administration Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 6th day of April, 1982. COPIES FURNISHED: Jorge Luis Fernandez, Esquire 221 S.W. 22nd Avenue Suite 200 Miami, Florida 33135 James V. Antista, Esquire Assistant General Counsel Department of State Room 106, R. A. Gray Building Tallahassee, Florida 32301 Honorable George Firestone R. Stephen Nall, Esquire Secretary of State General Counsel The Capitol Department of State Tallahassee, Florida 32301 The Capitol Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF STATE ISIDRO R. CRUCET, Petitioner, vs. CASE NO. 81-2625S DEPARTMENT OF STATE, DIVISION OF LICENSING, Respondent. /
The Issue Whether or not the Division of Beverage was justified in denying Kenneth Oliver, trading as Capri Art Theatre, a beverage license under his application for a beverage license, based upon the fact that Kenneth Oliver was not deemed to be of good moral character, good moral character being a requirement for the issuance of a license as stated in Florida Statutes, 561.15.
Findings Of Fact Traditionally, in application cases the burden of going forth with proof rests with the Petitioner, Applicant. However, in the instant case the parties stipulated to allow the Respondent to offer its case first, in view of the fact that the Petitioner was not represented by an attorney. The Respondent introduced exhibit number 1 which was a notice of hearing. This exhibit was not objected to by the Petitioner and although the notice of hearing did not grant the statutory requirement of 14 days notice, the Petitioner waived any objections to the 14 day notice, because the Petitioner indicated that he was anxious to proceed to hearing immediately. The Respondent introduced a second exhibit, without objection by the Petitioner, and this exhibit was the letter of denial of application for license. Finally, in the way of proof the Respondent moved to admit a certain document known as a rap sheet, which the Respondent indicated was the basis for denying the license because of lack of good moral character on the part of the Petitioner. This exhibit was shown to the Petitioner in the course of the hearing and a recess was granted for the Petitioner and Respondent to discuss, out of the presence of the hearing officer, the accuracy of those entries found on the rap sheet. Upon return from the recess the present exhibit number 3 which was admitted, was tendered to the hearing officer as being the corrected record of arrests and convictions for criminal offenses and quasi criminal offenses as committed by the Petitioner, Kenneth Oliver. The only exception taken by the Petitioner to this account of his prior convictions was as related in exhibit number 3, the line pertaining to arrests and convictions for an offense in DeLand, Florida, for possession of nervous system stimulant for which the Petitioner is alleged to have paid a $250 fine based upon a guilty plea. The Petitioner indicated that he did not recall this particular incident. There was no further showing on the part of the Respondent as to the accuracy of this alleged plea of guilty to the offense of possession of nervous system stimulant which supposedly occurred in DeLand, Florida. The Petitioner, Kenneth Oliver, took the stand in his behalf and indicated that he felt that he should be entitled to the issuance of a beverage license for the purposes as applied for. His reasons for this suggestion were that he was a businessman and that he wanted to make money and that he could make money by selling beer. Additionally, he said that his last arrest for any criminal offense was in 1973, and that his past record should not stand in the way that much. Furthermore, the Petitioner testified in his behalf that he was of good moral character.
Recommendation It is therefore recommended that the Petitioner's application for a beverage license be denied. ENTERED this 7th day of November, 1975, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Kenneth Oliver 715 North Ridgewood Avenue Daytona Beach, Florida 32014 William A. Hatch, Esquire Department of Business Regulation 725 Bronough Street Tallahassee, Florida 32304
Findings Of Fact Background In June 1988, respondent, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), acting on a tip from the local media that intervenor, Metropolitan Dade County, Department of Corrections and Rehabilitation (County), had in its employ a number of corrections officers who were not certified, undertook a review of the County's employment records. Following a comparison of the County's records and those of the Commission, the Commission identified 363 individuals, including the petitioner, who were employed by the County as correctional officers but who had not been certified by the Commission. On August 10-11, 1988, Commission personnel visited the County's personnel office, and audited the personnel file of each of the 363 individuals in question. The audit demonstrated that the files were disorganized, lacking documentation required by Rule 11B-27.002, Florida Administrative Code, to apply for certification, and that the County had failed to apply for certification on behalf of the 363 officers. 2/ Over the course of their two-day visit, the Commission's personnel set up an "assembly line" and, together with the County's staff, attempted to complete the documentation on each file. Variously, registration forms and affidavits of compliance were prepared, and birth certificates, fingerprint cards and other missing documentation was assembled. On August 12, 1988, the Commission's personnel returned to Tallahassee with the subject registration forms and affidavits of compliance. Over the course of time, these applications were processed and the vast majority of the individuals were certified; however, the Commission declined, for reasons hereinafter discussed, to certify petitioner. The pending application Petitioner, Steven Albert (Albert), has been employed by the County as a correctional officer since February 19, 1988, without benefit of certification. On August 10, 1988, as a consequence of the aforementioned audit, the County, as the employing agency, applied for certification on behalf of Albert. 3/ Accompanying the application (registration) was an affidavit of compliance, dated August 10, 1988, signed by Fred Crawford, Director of Metropolitan Dade County, Department of Corrections and Rehabilitation, which comported with existing law and which certified that such employing agency had collected, verified, and was maintaining on file evidence that Albert had met the provisions of Section 943.13(1)-(8), and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. Among the provision of section 943.13 is the requirement that the applicant be of good moral character. By letter dated November 1, 1988, the Commission notified Albert and the County that his application for certification as a correctional officer was denied for lack of good moral character because: You have unlawfully and knowingly possessed and introduced into your body cocaine and cannabis. Following receipt of the Commission's letter of denial, Albert filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Albert denied that he failed to possess the requisite good moral character necessary for certification. Good moral character Pursuant to Rule 11B-27.0011, Florida Administrative Code, the County, as the employing agency, is responsible for conducting a thorough background investigation to determine the moral character of an applicant. Consistent with such mandate, the County routinely uses previous employment data, law enforcement records, credit agency records, inquiries of the applicant's neighbors and associates, and a pre-employment interview, at which a polygraph examination is administered, to assess an applicant's moral character. In assessing an applicant's character, the County is bound by the provisions of Rule 11B-27.0011(2), Florida Administrative Code, which provides: The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant for certification, employment, or appointment at any time proximate to such application for certification, employment, or appointment conclusively establishes that the applicant is not of good moral character as required by Section 943.13(7). The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant at any time remote from and not proximate to such application may or may not conclusively establish that the applicant is not of good moral character, as required by Section 943.13(7), depending upon the type of controlled substance used, the frequency of use, and the age of the applicant at the time of use. Nothing herein is intended, however, to restrict the construction of Section 943.13(7), only to such controlled substance use. The substances enumerated in rule 11B-27.00225 are amphetamines, barbiturates, cannabis (marijuana), opiates, cocaine, phencyclidine, benzodiazepines, and methaqualone. Pertinent to this case, the County undertook a pre-employment interview of Albert on July 23, 1987, at which time he admitted that during the course of his military service he had been involved with controlled substances. Here, the proof demonstrates that Albert joined the United States Air Force on March 31, 1975, at the age of 19, following his graduation from high school. During the course of such service, he experimented with cocaine, qualudes and "speed" a few times, the last time being in 1980 or 1981; used marijuana occasionally, the last time being in 1981; and sold or attempted to sell one ounce of marijuana on three separate occasions, the last being in 1981. On January 2, 1981, following his receipt of an Article 15, an administrative form of discipline, for possession of marijuana, Albert received a general discharge, under honorable conditions, from the military. Since that time, Albert has not used, bought or sold any controlled substance. Notwithstanding the County's conclusion, based on its investigation and analysis of Albert's background, that Albert possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on the foregoing events. The Commission's action is not warranted by the proof. Here, Albert used controlled substances, and sold or attempted to sell marijuana on 3 occasions, the last time being over 8 years ago when he was 26 years of age. Since that time he has had no contact with controlled substances. Under such circumstances, his prior contact with controlled substances is not proximate within the meaning of rule 11B-27.0011(2), or persuasive evidence of bad moral character. 4/ To date, Albert has been employed by the County as a corrections officer, a position of trust and confidence, for over one year. His performance has ranged from satisfactory to above satisfactory, he has received two commendations, and his periodic drug screenings have all met with negative results. By those who know of him, he is considered an excellent employee, observant of the rules, and of good moral character. Prior to his employment as a corrections officer, Albert was employed as a security guard for a private company, and was duly licensed by the State of Florida as an unarmed officer. Overall, Albert, now 34 years of age, has demonstrated that he possessed the requisite good moral character when he was employed by the County as a correctional officer, and has demonstrated in this de novo proceeding that he currently possesses the requisite good moral character for certification.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner, Steven Albert, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of June 1989. WILLIAM J. KENDRICK 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 28th day of June, 1989.
Findings Of Fact Respondent was certified as a law enforcement officer by the Petitioner on September 21, 1981, and was issued certificate number 02-29370. Respondent made a total of 28 personal telephone calls totalling over $100.00 on her state telephone credit card issued by her employer, the Florida Department of Law Enforcement (FDLE), between January 31, 1985 and May 31, 1985. At the time she made these calls, she knew it was wrong. She falsified telephone credit card bills by signing or initialing the bill and writing case numbers on the bills to conceal the fact that these were personal phone calls. It is FDLE policy that persons making telephone credit card calls must sign or initial the bills to verify that the calls were made on state business. During January, 1985, the FDLE was brought into an interagency investigation of pornography in the Pinellas, Pasco, Hillsborough and Manatee County area. Respondent was assigned to assist an interagency task force that had been established for this investigation. She was employed as a Special Agent with the FDLE at the time. Respondent developed, and was in control of, a confidential informant during this investigation who was employed at a bookstore which was involved in this investigation. Although she initially denied to other law enforcement officers working the pornography case, and later to the State Attorney's Office, that she had ever received from the confidential informant mail which was delivered to the bookstore, she was, in fact, getting mail from the confidential informant. The informant was, in some instances, opening the mail received at the bookstore and delivering information to the Respondent from such mail. In other instances, the mail was delivered unopened to the Respondent by the confidential informant, and she would steam open the envelope and read the contents. During the course of an investigation into her actions, Respondent made repeated material misstatements to fellow law enforcement officers by leading them to believe that the informant was simply opening the mail and providing her information, when in fact, she actually received mail from the informant on numerous occasions and opened it herself. When her actions were discovered, she attempted to cover up what she had done by having the mail delivered back to the bookstore. From March to July, 1986, Respondent made repeated material misstatements to the State Attorney's Office, her supervisors at FDLE, and an inspector at FDLE, about mail she had received in the pornography investigation. Due to concerns of the State Attorney's Office that evidence obtained in the pornography investigation may have been tainted due to it having been obtained illegally from mail delivered to the bookstore, Respondent's supervisor directed her in April, 1986, to prepare a memorandum explaining all of the mail she had received from the confidential informant. Her memorandum stated that she had only received mail on two occasions in August, 1985. In fact, she had received mail on many more occasions. FDLE procedures require an agent to write a report within five to fifteen days of receiving any evidence, and to tag such evidence and make it a part of such report by reference with an exhibit number. Respondent failed to follow these procedures, resulting in inaccurate and misleading reports to her supervisors and to the State Attorney's Office concerning this matter. The credibility of law enforcement officers is critical to their ability to carry out their responsibilities, and the Respondent's actions in the pornography investigation demonstrate her lack of credibility.
Recommendation Based upon the foregoing, it is recommended that the Petitioner enter a Final Order revoking the certification of Respondent. DONE AND ENTERED this 19th of May, 1989 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1989. APPENDIX DOAH CASE NUMBER 88-4737 Rulings on the Petitioner's Proposed Findings of Fact: 1. Adopted in Finding of Fact 1. 2-5. Adopted in Finding of Fact 2. 6-7. Adopted in Finding of Fact 3. 8-10. Adopted in Finding of Fact 4. 11-12. Adotped in Finding of Fact 5. 13-18. Adopted in Finding of Fact 6. 19-20. Adopted in Finding of Fact 7. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Finding of Fact 8. 24-27. Rejected as unnecessary and cumulative. 28. Adopted in Findings of Fact 6 and 7. 29-31. Adopted in Finding of Fact 5. 32-33. Adopted in Finding of Fact 2. 34. Rejected as unnecessary. 35-37. Adopted in Finding of Fact 5. 38. Adopted in Finding of Fact 8. Rulings on the Respondent's Proposed Findings of Fact: Not a proposed Finding of Fact. Adopted in Finding of Fact 1. A1. Not a proposed Finding of Fact. A2-13. Rejected in Findings of Fact 4-7 and otherwise as simply a summary and argument on the evidence and not a proposed Finding of Fact. B1-2. Adopted in Finding of Fact 2. C. Not a proposed Finding of Fact. COPIES FURNISHED: Elsa L. Whitehurst, Esquire P.O. Box 1489 Tallahassee, FL 32302 Maria Scruggs-Weston 1825- 45th Street, South St. Petersburg, FL 33711 Jeffrey Long, Director Criminal Justice standards and Training Commission P.O. Box 1489 Tallahassee, FL 32302 Daryl McLaughlin Executive Director Department of Law Enforcement P.O. Box 1489 Tallahassee, FL 32302 Rodney Gaddy, Esquire General Counsel P.O. Box 1489 Tallahassee, FL 32302
The Issue Whether the allegations of the Amended Administrative Complaint are correct and, if so, what penalty should be imposed.
Findings Of Fact The Respondent holds a Class "D" Security Officer license number D92- 03311. The license was issued in 1992. Beginning in 1992, the Petitioner resided with his companion, Tiatiana Aleksandrova, and their children Ruth and Ilia Shuvalov. On December 18, 1992, the Respondent and Tiatiana were arguing and he shoved Tiatiana. Daughter Ruth, 14 years old, was present and saw the incident occur. Apparently attempting to protect her mother, Ruth became involved in the altercation. At the point of her involvement, the Respondent grabbed Ruth by the arm and throat, and pushed her into the kitchen wall. Ruth, much younger and smaller than the Respondent, posed no threat of harm to him. Immediately after the December 18 incident, Tiatiana, Ruth and 12 year old Ilia went to the Gulfport, Florida, Police Department where they discussed the incident with Officer Michael J. Bieluwka. Officer Bieluwka went to the Respondent's home. The Respondent refused to cooperate in the investigation. Based on the accounts of the events provided by Tiatiana and the children, Officer Bieluwka believed he had probable cause to arrest the Respondent. He attempted to effect the arrest at the Respondent's home. As Officer Bieluwka placed the Respondent under arrest, the Respondent pulled his arm from the officer's grasp and attempted to get away from him. The Respondent was charged with resisting arrest without violence. Eventually, the Respondent entered a plea of no contest and was convicted of resisting arrest without violence. On June 22, 1993, Tiatiana and the children were asleep in the Respondent's home. Just before dawn, the Respondent entered the room where Tiatiana slept, kicked her, pulled her hair, and demanded that she get up. Based on the June 22 event, the Respondent was charged with criminal battery. He entered a plea of no contest and was convicted of battery. On July 20, 1993, the Respondent had shut off the water line to the house at the main valve. Tiatiana, attempting to bathe, went outside and turned the water back on. An argument ensued outside the house and continuing when they reentered the structure. As Tiatiana stood in the kitchen, the Respondent entered through a screen door. The door closed on and broke a drinking glass he held in his hand. He threw the broken glass towards Tiatiana. The glass struck and cut her right leg just below the knee. Based on the July 20 event, the Respondent was charged with criminal battery. He entered a plea of no contest and was convicted of battery. There is no evidence that Tiatiana posed a threat of harm to the Respondent at any time or that she consented to the violence. There is no evidence that commission of violence or use of force on any person was required to protect the Respondent or another person from physical harm.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department Of State, Division Of Licensing, enter a Final Order revoking the Class "D" Security Officer license of Edward Shuvalov, license number D92-03311, and imposing a fine of $1,500. DONE and RECOMMENDED this 13th day of March, 1995 in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 13th day of March, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4482 To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order. Respondent The Respondent's proposed recommended order is a statement of the financial hardship which will allegedly be imposed if he does not prevail in this case. The Hearing Officer's responsibility is to determine whether the allegations of the Administrative Complaint are correct and, if so, what penalty should be imposed. The imposition of penalties is governed by the Rules cited herein. The Respondent's proposed recommended order is rejected as legally irrelevant. COPIES FURNISHED: Honorable Sandra B. Mortham Secretary of State The Capitol Tallahassee, Florida 32399-0250 Don Bell General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250 Richard Whidden, Jr., Esquire Department of State Division of Licensing The Capitol, M.S. #4 Tallahassee, Florida 32399-0250 Edward Shuvalov Post Office Box 5057 Gulfport, Florida 33737
The Issue The issue in this case is whether Petitioner's application for a license to engage in the business of contracting should be granted or denied.
Findings Of Fact In June 2004, Petitioner submitted to Respondent an application for licensure as a certified general contractor. Petitioner had already passed the requisite contractor's examination. Question one at page six on the form used by Petitioner states: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest) to, even if you received a withhold of adjudication? This question applies to any violation of the laws of any municipality, county, state or nation, including felony, misdemeanor and traffic offenses (but not parking, speeding, intersection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, were paroled, or pardoned. If you intend to answer "NO" because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, or applicable law of another state, you are responsible for verifying the expungement or sealing prior to answering "NO." YOUR ANSWER TO THIS QUESTION WILL BE CHECKED AGAINST LOCAL, STATE AND FEDERAL RECORDS. FAILURE TO ANSWER THIS QUESTION ACCURATELY MAY RESULT IN THE DENIAL OR REVOCATION OF YOUR LICENSE. IF YOU DO NOT FULLY UNDERSTAND THIS QUESTION, CONSULT WITH AN ATTORNEY OR CONTACT THE DEPARTMENT. Petitioner answered this question in the affirmative and disclosed a federal bank robbery conviction from 1994. Petitioner served 58 months in prison, underwent three years of probation, and paid full restitution for that conviction. Question eight of the form used by Petitioner at Page 13 states: Have you, or a partnership in which you were a partner, or an authorized representative, or a corporation in which you were an owner or an authorized representative ever: * * * 8. Been convicted or found guilty of or entered a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction within the past 10 years? Note: if you, the applicant/licensee, have had a felony conviction, proof that your civil rights have been restored will be required prior to Licensure. Because Petitioner has had a clean record since his bank robbery conviction in 1994, Petitioner answered this question in the negative. The "No" answer was provided despite the fact he had been found guilty of two misdemeanors: Unauthorized Use or Possession of Driver's License and Unlawful Possession of Cannabis upon the entry of a nolo contendere plea in 1989. On August 5, 2004, Respondent requested additional information from Petitioner concerning his work experience and equipment. On February 8, 2005, Respondent requested additional information regarding proof of restoration of Petitioner's civil rights. Neither of the requests asked Petitioner for further information about his criminal past. The application was reviewed by Respondent and was denied. The Board's (amended) stated grounds for its denial of the application were: (1) Petitioner was guilty of committing a crime -- bank robbery -- directly related to contracting or the ability to practice contracting pursuant to Subsection 489.129(1)(b), Florida Statutes (2004); (2) Petitioner was guilty of committing a crime -- bank robbery -- related to contracting or the ability to practice contracting pursuant to Subsections 455.227(1)(c) and (2), Florida Statutes; (3) Petitioner was guilty of making fraudulent misrepresentations on his application pursuant to Subsections 455.227(1)(h) and (2), Florida Statutes; and (4) Petitioner lacks "good moral character" under Subsections 489.111(1)(b) and (3), Florida Statutes. Petitioner was confused by the questions on the application concerning past criminal history. He freely and voluntarily provided information about the felony bank robbery conviction. He did not believe the misdemeanor charges were within the time frame (ten years) discussed in the application. Applicants routinely make mistakes and have omissions on the Board's application form, causing the Board to routinely send formal Requests for Additional Information to applicants. The Board processes hundreds of applications every week. Many applicants receive formal written Requests for Additional Information from the Board, including requests directed to the criminal history section of the Board's application package. Professional services have developed for the purpose of assisting applicants with these applications. One such service helps with 15 to 20 applications every week. Petitioner is not and has never been a contractor, or a certificateholder or registrant, under Chapters 455 or 489, Florida Statutes (2004). Obviously then, Petitioner has never been the subject of any DBPR disciplinary action proceedings or orders commenced under Section 455.225 or Subsection 489.129(1), Florida Statutes (2004). A licensed contractor may typically collect funds from his client and disburse them to vendors, subcontractors, and the like. Contractors could also have access and/or keys to houses of persons for whom they are working. These responsibilities require the contractor to act prudently and reasonably. It is noted that a contractor may utilize a "financially responsible officer" to manage and be responsible for all monies coming from the contractor's clients. Respondent maintains that the bank robbery conviction is evidence of Petitioner's bad moral character. No other evidence of Petitioner's character was presented by Respondent. Petitioner's family immigrated to the United States via Spain from Cuba in 1980. He had a high school diploma and attended college, but did not finish his degree. He was abusing alcohol and drugs and associating with the wrong sort of people at the time he committed the bank robbery in 1994. While in prison, Petitioner attended drug rehabilitation classes for a period of one year. The classes were held five days a week, eight hours per day. During this time, he was housed in a special dorm for inmates attending the classes. His drug rehabilitation courses continued for six months after he was released from prison. He has paid full restitution for the money he stole. Petitioner's last criminal conviction was the 1994 bank robbery. Since abandoning drugs after this conviction, Petitioner has not been arrested for any crime, has become a husband and father, and has dispatched his professional duties to the praise of his colleagues and employer. Petitioner has been regularly employed since he stopped using drugs. He is currently employed as a sales manager for a large telecommunications company. He has an excellent credit history. Petitioner owns his own home subject to a mortgage. Petitioner also owns his own painting business, which is licensed by Broward County, Florida. Rafael Antequera has known Petitioner for approximately five years. Petitioner currently is employed by Antequera's company, Antequera Enterprises, Inc., with whom Petitioner would become a general contractor upon approval of his certified general contractor's licensure application. Mr. Antequera trusts Petitioner with his company's supplies, equipment, and money. Mr. Antequera considers Petitioner to be a good, honest, hard-working, and reliable employee. Antequera believes that Petitioner has the ability to distinguish right from wrong and has the character to observe the difference. Mr. Carlos Alonso also has known Petitioner for more than four years. Mr. Alonso worked with Petitioner at Mr. Alonso's family construction company, Domas & Alonso Development, Inc. Petitioner worked for Mr. Alonso as a project manager from 2004 to 2005. His duties included ordering supplies, picking up supplies, and interacting with local building inspectors. Petitioner was in a position of great trust and was often given a blank bank check to obtain project supplies. Petitioner never misused or abused that position of trust and authority. Rev. Adam S. Zele is a pastor at Epworth United Methodist Church, where Petitioner attends church. Pastor Zele described Petitioner as a hard-working, devoted family man with religious conviction. Zele also has observed Petitioner in a business capacity. With full knowledge of Petitioner's prior criminal history, Pastor Zele awarded Antequera Enterprises a $20,000 bid to paint his church. Petitioner acted as the salesperson for the project, and Pastor Zele was confident enough in Petitioner to hand Petitioner a check in the amount of $10,000 for the first half of the work. Petitioner is actively involved with the activities of Epworth United Methodist Church. Petitioner is highly regarded by church officials and enjoys a reputation of being very reliable, honest, and a person of integrity and good morals. The Board recently granted a license with six years' probation to an applicant who had been convicted of a crime related to contracting. The nature of that crime was not clear from the evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation granting a contractor's license to Petitioner. DONE AND ENTERED this 26th day of July, 2006, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 26th day of July, 2006. COPIES FURNISHED: Timothy P. Atkinson, Esquire Gavin Burgess, Esquire Oertel, Fernandez, Cole & Bryant, P.A. Post Office Box 1110 Tallahassee, Florida 32302-1110 Diane L. Guillemette, Esquire Thomas Barnhart, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether Respondent should grant Petitioner’s application for a real estate sales associate license.
Findings Of Fact Respondent is the state agency responsible, in relevant part, for licensing real estate sales associates in Florida, pursuant to Chapter 475, Florida Statutes (2010).1 Petitioner applied for a real estate sales associate license on a date not established in the record. The grounds stated in the Notice of Intent to Deny Petitioner’s application for license are based on the criminal convictions stated in the application, the recent nature of the crimes, the pattern of the crimes, and the unpersuasive testimony of the applicant pertaining to his rehabilitation. The Notice of Intent to Deny concluded, in relevant part, that the criminal history showed a course of conduct in which Petitioner was incompetent, negligent, or dishonest in dealing with money within the meaning of Subsections 475.25(1)(o) and 475.181. Respondent concluded it would be a breach of its duty to the public to grant the application as provided in Section 455.201. For the reasons stated hereinafter, the testimony of Petitioner at the hearing did not provide a preponderance of evidence to overcome the grounds for denial. It is undisputed that Petitioner was convicted of two separate misdemeanors crimes for theft in Orange County, Florida, on April 21, 2004, and October 4, 2005. Petitioner served six months’ probation for the first offense and 30 days in jail for the second offense, as well as fines and community service related to both offenses. Petitioner did not present any witness, or other evidence, to support his claim of his ability to deal favorably in business matters or transactions. Petitioner did not present any evidence as to whether he was honest, truthful, trustworthy, had good character, or had a good reputation for fair dealing. Petitioner presented no evidence to show that he was competent. Petitioner presented no evidence to show he is qualified to make real estate transactions and conduct negotiations with safety to investors and to those with whom the applicant may undertake a relationship of trust and confidence. Petitioner’s testimony can be fairly summarized as a plea for a second chance. Petitioner presented no evidence of rehabilitation from his criminal past. His pleas of guilt to two different thefts are of paramount concern. These acts, coupled with a lack of any evidence of rehabilitation, fail to satisfy Petitioner’s burden of showing that he is qualified for licensure.
Recommendation Based on the foregoing Findings of Fact and Conclusion of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order denying Petitioner’s application for licensure as a real estate sales associate. DONE AND ENTERED this 21st day of October, 2010, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 2010.
The Issue At issue in this proceeding is whether petitioner possesses the requisite good moral character for certification as a correctional officer.
Findings Of Fact Background In June 1988, respondent, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), acting on a tip from the local media that intervenor, Metropolitan Dade County, Department of Corrections and Rehabilitation (County), had in its employ a number of corrections officers who were not certified, undertook a review of the County's employment records. Following a comparison of the County's records and those of the Commission, the Commission identified 363 individuals, including the petitioner, who were employed by the County as correctional officers but who had not been certified by the Commission. On August 10-11, 1988, Commission personnel visited the County's personnel office, and audited the personnel file of each of the 363 individuals in question. The audit demonstrated that the files were disorganized, lacking documentation required by Rule 11B-27.002, Florida Administrative Code, to apply for certification, and that the County had failed to apply for certification on behalf of the 363 officers. 2/ Over the course of their two-day visit, the Commission's personnel set up an "assembly line" and, together with the County's staff, attempted to complete the documentation on each file. Variously, registration forms and affidavits of compliance were prepared, and birth certificates, fingerprint cards and other missing documentation was assembled. On August 12, 1988, the Commission's personnel returned to Tallahassee with the subject registration forms and affidavits of compliance. Over the course of time, these applications were processed and the vast majority of the individuals were certified; however, the Commission declined, for reasons hereinafter discussed, to certify petitioner. The pending application Petitioner, John Hawks (Hawks), has been employed by the County as a correctional officer since February 1986, without benefit of certification. On August 10, 1988, as a consequence of the aforementioned audit, the County, as the employing agency, applied for certification on behalf of Hawks. 3/ Accompanying the application (registration) was an affidavit of compliance, dated August 10, 1988, signed by Fred Crawford, Director of Metropolitan Dade County, Department of Corrections and Rehabilitation, which comported with existing law and which certified that such employing agency had collected, verified, and was maintaining on file evidence that Hawks had met the provisions of Section 943.13(1)-(8), and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. Among the provision of Section 943.13 is the requirement that the applicant be of good moral character. By letter dated November 1, 1988, the Commission notified Hawks and the County that his application for certification as a correctional officer was denied for lack of good moral character because: You have unlawfully and knowingly cultivated and delivered cannabis. Following receipt of the Commission's letter of denial, Hawks filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Hawks denied that he failed to possess the requisite good moral character necessary for certification. Good moral character Pursuant to Rule 11B-27.0011, Florida Administrative Code, the County, as the employing agency, is responsible for conducting a thorough background investigation to determine the moral character of an applicant. Consistent with such mandate, the County routinely uses previous employment data, law enforcement records, credit agency records, inquiries of the applicant's neighbors and associates, and a pre-employment interview, at which a polygraph examination is administered, to assess an applicant's moral character. In assessing an applicant's character, the County is bound by the provisions of Rule 11B-27.0011(2), Florida Administrative Code, which provides: The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant for certification, employment, or appointment at any time proximate to such application for certification, employment, or appointment conclusively establishes that the applicant is not of good moral character as required by Section 943.13(7). The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant at any time remote from and not proximate to such application may or may not conclusively establish that the applicant is not of good moral character, as required by Section 943.13(7), depending upon the type of controlled substance used, the frequency of use, and the age of the applicant at the time of use. Nothing herein is intended, however, to restrict the construction of Section 943.13(7), only to such controlled substance use. The substances enumerated in Rule 11B-27.00225 are amphetamines, barbiturates, cannabis (marijuana), opiates, cocaine, phencyclidine, benzodiazepines, and methaqualone. Pertinent to this case, the County undertook a pre- employment interview of Hawks on January 25, 1985, at which time he admitted that he had, three years previously, grown four marijuana plants which he had given away, and that he had on another occasion, three years previously, delivered one ounce of marijuana to a friend. The circumstances surrounding these incidents were further developed at hearing. There, the proof demonstrated that in or about 1982, Hawks was employed by the Metro-Dade Water and Sewer Authority on a survey crew. While working in the field, Hawks stumbled upon a marijuana plant, which was identified to him by a coworker. Having never seen a marijuana plant before, Hawks took 3-4 seeds back to his home and planted them to see what they would do. What they did, following his fertilization, was die when they had matured to the stature of approximately one inch. Following their death, Hawks permitted a coworker to take the plants. Regarding his delivery of one ounce of marijuana, the proof demonstrates that in or about 1982, Hawks was about to go to Broward County to visit a friend when another friend, aware of the pending visit, asked him to deliver a package to the same friend. Hawks did so, and after delivering the package learned for the first time that it contained one ounce of marijuana. Notwithstanding the County's conclusion, based on its investigation and analysis of Hawks' background, that Hawks possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on the foregoing isolated incidences. The Commission's proposed action is not warranted by the proof. Here, Hawks, born November 13, 1957, delivered a package which contained, unbeknownst to him, one ounce of marijuana and grew four marijuana plans to a stature of approximately one inch approximately 7 years ago. Considering the nature of such acts, their isolation and lack of timeliness to the pending application, and Hawks' age at the time, they are hardly persuasive evidence of bad moral character. 4/ To date, Hawks has been employed by the County as a corrections officer, a position of trust and confidence, for over three years. His annual evaluations have ranged from above satisfactory to outstanding, and his periodic drug screenings have all met with negative results. By those who know of him, he is considered an excellent employee, observant of the rules, honest, fair and respectful of the rights of others. Overall, Hawks has demonstrated that he possessed the requisite good moral character when he was employed by the County as a correctional officer, and has demonstrated in this de novo proceeding that he currently possesses the requisite good moral character for certification.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner, John Hawks, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of June 1989. WILLIAM J. KENDRICK 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 20th day of June, 1989.
The Issue The issue in this case is whether Petitioner lacks good moral character in violation of Section 539.001(4)(a)1., Florida Statutes (Supp. 1996). 1/
Findings Of Fact Petitioner and her husband own and operate Seminole Antiques and Pawn ("Seminole Antiques") at 6115 Seminole Boulevard in Seminole, Florida. The business of Seminole Antiques includes pawnbroking. Petitioner first engaged in the business of pawnbroking in 1990. On November 28, 1995, officers from the Pinellas County Sheriff's Office (the "Sheriff's Office") arrested Petitioner on charges of dealing in stolen property and failing to maintain adequate records. On March 4, 1995, Petitioner entered a plea of nolo contendere to both charges. The court accepted Petitioner's plea, withheld adjudication of guilt, assessed costs of $144, and placed Petitioner on probation for two years. On March 14, 1997, the court entered an order terminating Petitioner's probation. Registration And License Prior to October 1, 1996, pawnbrokers had been required by former Chapter 538, Part I, Florida Statutes (1995). 2/ to register with the Department of Revenue ("DOR") as secondhand dealers. From 1990 through 1996, Petitioner was continuously registered with DOR as a secondhand dealer. In relevant part, former Section 538.09(4) provided: . . . registration may be denied . . . or any registration granted may be revoked, restricted, or suspended . . . if the applicant or registrant: (f) Has, within the preceding 5-year period, been convicted of, or has entered a plea of guilty or nolo contendere to, a crime . . . which relates to registration as a secondhand dealer or which involves . . . dealing in stolen property. . . . The registration provisions in former Section 538.09 did not include a requirement that a pawnbroker be of good moral character. Effective October 1, 1996, Section 539.001 transferred responsibility for licensing and regulating pawnbrokers from DOR to Respondent and prescribed license eligibility requirements. 3/ The license eligibility requirements in Section 539.001 include a requirement that an applicant be of good moral character. On October 1, 1996, the eligibility requirements in Section 539.001 did not prohibit a plea of nolo contendere to a criminal charge of dealing in stolen property within a five year period. However, Sections 539.001(4)(a)3. and 4. did prohibit a conviction in the last 10 years of any felony or any other crime that directly relates to the duties and responsibilities of a pawnbroker ( a "related crime"). In 1997, the legislature amended Sections 539.001(4)(a) and 4. to prohibit a plea of nolo contendere to a felony or related crime. The amendments took effect on June 3, 1997, approximately 36 days after the hearing in this case. As amended, Section 539.001 provides inter alia: (4) ELIGIBILITY FOR LICENSE-- (a) To be eligible for a pawnbroker's license, an applicant must: 1. Be of good moral character; Not have been convicted of, entered a plea of . . . nolo contendere to, or had an adjudication withheld for a felony within the last 10 years . . . . Not have been convicted of, entered a plea of nolo contendere to, or had adjudication withheld for a crime that involves dealing in stolen property . . . within the last 10 years. * * * (6) SUSPENSION, REVOCATION, AND SURRENDER OF LICENSE . . . (a) The agency may, after notice and a hearing, suspend or revoke any license upon a finding that: The licensee . . . has violated this section . . . . A condition exists that, had it existed when the original license was issued, would have justified the agency's refusal to issue a license. . . . (emphasis supplied) The underlined provisions became effective June 3, 1997. Pawnbrokers already in business had six months from the date Section 539.001 became effective to comply with the "registration . . . provisions" of Section 539.001. 4/ Section 539.001(21) provides, in relevant part: (21) TRANSITION PERIOD FOR LICENSING--Each pawnbroker operating a pawnshop in business of the effective date of this section shall have 6 months from the effective date of this section to comply with the registration . . . provisions before the agency may initiate any administrative . . . action. (emphasis supplied) Section 539.001 became effective on October 1, 1996. Petitioner, had until April 1, 1997, to comply with the registration provisions in Section 539.001. Prior to April 1, 1997, Respondent was statutorily prohibited from initiating any administrative action against Petitioner. On October 8, 1996, Petitioner applied for a pawnbroker license. On December 4, 1996, Respondent initiated administrative action by denying the application. Notice In the letter of denial dated December 4, 1996, Respondent stated several grounds for denying Petitioner's application. In relevant part, the letter stated: Section 539.001(4) . . . provides that to be eligible for a pawnbroker's license, an applicant must be of good moral character and must not have been convicted of a felony within the last 10 years . . . that directly relates to the duties and responsibilities of a pawnbroker. Our background investigation has revealed that you were found guilty of or pleaded nolo contendere to dealing in stolen property and failure to maintain records, case number CRC9519648CFANOB in 1996 (sic). Based upon these findings, your application for a pawnbroker license is hereby denied for failure to meet the eligibility requirements of s. 539.001(4) . . . . (emphasis supplied) Consistent with Section 539.001(4), Respondent's letter of denial listed as separate and distinct requirements the requirement for good moral character and the requirement of no felony conviction within the last 10 years. However, Respondent's letter of denial deviated from the statute that was in effect at the time, by expanding the definition of a conviction to include a plea of nolo contendere. Petitioner timely requested an informal hearing with Respondent. Respondent conducted the informal hearing by telephone conference. During the telephone conference, Petitioner testified that she was not guilty of dealing in stolen property. She testified that law enforcement officers, posing as consumers, had tried, unsuccessfully, to get her husband to purchase a watch. The transaction was not completed, and Petitioner was not present at the time. Nevertheless, Petitioner was charged with dealing in stolen property and failure to maintain records. Petitioner further testified that she chose to enter a plea of nolo contendere in order to quickly resolve the issue. Respondent disregarded Petitioner's testimony. On January 13, 1997, Respondent issued a letter overruling Petitioner's objections and denying Petitioner's application. Respondent based its administrative action on the ground that Petitioner was not of good moral character. Respondent did not make an independent determination that Petitioner was guilty of dealing in stolen property. Respondent determined that Petitioner lacked good moral character solely on the basis of the criminal charge and plea of nolo contendere. In relevant part, Respondent's letter of January 13, 1997, stated: The facts set forth in the . . . denial letter dated December 4, 1996, are undisputed. As part of the . . . review of your application, a criminal background check . . . by the Florida Department of Law Enforcement . . . revealed that you pled nolo contendere to dealing in stolen property and failure to maintain records. Adjudication was withheld. During the proceeding, you stated that law enforcement officers, posing as consumers, had tried, unsuccessfully, to get your husband to purchase a watch. Although according to your testimony the transaction was not completed and your were not present at the time, you were charged. Subsequently, you chose to enter a plea in order to quickly resolve the issue. . . . Pursuant to Section 539.001(4) to be eligible for a pawnbroker license the applicant must be of good moral character. Based upon your criminal arrest and plea discussed herein, you fail to meet the eligibility requirements set forth in the Florida Pawnbroking Act. Therefore, your objections to the denial of your application for a license are hereby overruled. (emphasis supplied) Petitioner retained counsel. On February 5, 1997, Petitioner's counsel sent a letter to Respondent requesting a formal hearing. In relevant part, the letter stated: . . . my client . . . received a letter indicating that she had been turned down for her license because of a criminal matter where she had been charged with dealing in stolen property and received a withhold of adjudication and probation. It is my understanding that her probation is now complete. . . . Mrs. Garafolo received a letter from Geoffrey G. Luckemann informing her that she was not eligible for a pawn broker's license because she was not of good moral character. . . . I . . . believe that the ends of justice would be honestly met by allowing . . . a Formal Hearing. . . . (emphasis supplied) On February 24, 1997, Respondent referred the matter to the Division of Administrative Hearings for assignment of an Administrative Law Judge to conduct the administrative hearing. From February 24 through April 28, 1997, Petitioner's counsel did not file a request for discovery. On April 11, 1997, Respondent voluntarily served Petitioner's counsel with a copy of its administrative file. The administrative file contained numerous exhibits, including the exhibits Respondent submitted for admission in evidence at the administrative hearing. On April 15, 1997, the parties entered into a Prehearing Stipulation that included a list of Respondent's witnesses. The only witnesses listed by Respondent were the two undercover investigators Respondent called at the hearing. The Prehearing Stipulation stated that the issue for determination at the administrative hearing was whether Petitioner lacked good moral character. The parties did not stipulate that Respondent was limited to evidence of Petitioner's ". . . criminal arrest and plea . . .". In relevant part, the Prehearing Stipulation stated: . . . the application for a pawnbroker license was denied by respondent on the basis petitioner did not have good moral character. * * * The issue of fact to be determined is the good moral character or lack thereof by Nella Garafolo. At the administrative hearing, Respondent stated, for the first time, that it intended to prove Petitioner's lack of good moral character by evidence other than evidence of her ". . . criminal arrest and plea . . .". Respondent sought to prove that Petitioner actually dealt in stolen property and failed to keep adequate records. Petitioner's counsel objected to the admissibility of any evidence other than the ". . . criminal arrest and plea . . ." and moved to suppress any other evidence. Petitioner's counsel stated numerous grounds for the objection and motion, including due process requirements for adequate notice. The objections by Petitioner's counsel were overruled, and the motion was denied. Petitioner's counsel had adequate notice of the nature and scope of evidence Respondent intended to present at the administrative hearing. Even if Respondent had been required to file an administrative complaint in this case, due process would not require the complaint to satisfy the technical niceties of a legal pleading. 5/ Due process requires a specific accusation in the charging document or a procedure for disclosure, but not both. 6/ Respondent's letters of denial specifically charged that Petitioner lacked good moral character. Petitioner's counsel had adequate time from January 13, 1997, through April 28, 1997, to seek disclosure of the nature and scope of the evidence Respondent intended to adduce at the hearing. Petitioner's counsel declined to avail himself of the benefit of any procedure for disclosure. Petitioner's counsel had notice that Respondent intended to call the undercover investigating officers as witnesses in the administrative hearing. Neither Petitioner's arrest nor her plea were disputed issues of fact. The testimony of the undercover investigators was unnecessary to prove the criminal arrest and plea. It was reasonable to conclude that the undercover investigators were going to testify to facts other than Petitioner's ". . . criminal arrest and plea . . .". The notice to Petitioner's counsel was timely. On April 11, 1997, Respondent served Petitioner's counsel with a Notice of Filing Discovery. The notice listed the two undercover investigators as Respondent's only witnesses. On April 15, 1997, Petitioner's counsel signed the Prehearing Stipulation with a list of Respondent's witnesses attached as Exhibit 1. The Prehearing Stipulation identified the undercover investigators as Respondent's only witnesses. Petitioner's counsel had approximately 17 days from April 11, 1997, until the hearing on April 28, 1997, to inquire into the scope of the witnesses' testimony and to either prepare his case accordingly or to request a continuance to allow him time to do so. Petitioner's counsel chose not to avail himself of that opportunity prior to the hearing. There was no material error in procedure that impaired the correctness of Respondent's action. Respondent followed prescribed procedure. 7/ Good Moral Character In support of the allegation that Petitioner lacked good moral character, Respondent submitted evidence of an investigation and arrest that took place in November, 1995. On November 7, 1995, two undercover investigators for the Sheriff's Office began an investigation of Seminole Antiques. They were supported by four more officers at remote locations who monitored the conversations of the two undercover investigators. One or both of the undercover investigators visited Seminole Antiques on November 7, 14, 17, 20, 22, and 28. The investigation concluded on November 28, 1995, when Sheriff's deputies arrested Petitioner and her husband. The evidence submitted by Respondent consisted of the testimony of two undercover investigators, their arrest reports, tapes of visits they made to Seminole Antiques on November 14 and 17, 1995, transcripts of those two tapes, and transcripts of the tapes of the other visits. The evidence also included other miscellaneous documents. The tapes and transcripts purport to evidence conversations between the investigators, Petitioner's husband, and Petitioner. The two tapes submitted by Respondent are copies of the original tapes made by Sheriff's office personnel who monitored the conversations of the undercover investigators from outside Seminole Antiques. The original tapes were destroyed by the Sheriff's Office in accordance with department policy for cases in which a nolo contendere plea is entered. One of the undercover investigators made copies of the original tapes for November 14 and 17, 1997. Both copies are in evidence in this proceeding, without objection. Transcripts exist for the original tapes for each of the six visits that the undercover investigators made to Seminole Antiques. None of the transcripts are verbatim transcriptions. Each transcript is a summary prepared by one or the other of the two undercover investigators. Each summary contains only that portion of the recorded conversations which, in the opinion of the author of the transcript, are inculpatory. 8/ Respondent did not provide Petitioner with the notice of intent to use summaries that is required in Section 90.956. Similarly, Respondent did not make available to Petitioner the data from which the summaries were prepared because the data had been destroyed by the Sheriff's Office. The undercover investigators did not conduct business transactions every time they visited Seminole Antiques. On each occasion that the undercover investigators did conduct business, they used stolen property that the Sheriff's Office had recovered, inventoried in its log books, and stored. For the initial transaction conducted on November 7, 1995, the undercover investigators used two rings. One ring was a 14 karat gold ring with an onyx stone. The investigators placed a wholesale value of approximately $30 on the ring. The other ring was a gold ring with four diamond chips. The investigators placed a wholesale value of $35 on the second ring. On November 7, 1995, the undercover investigators pawned the two rings to Petitioner for $30. 9/ Petitioner completed the required paperwork evidencing the transaction. One of the undercover investigators returned to Seminole Antiques on November 14, 1995. He carried a bag containing two gold rings, two gold bracelets, and a gold necklace. One ring was a 10 karat gold ring with one sapphire stone flanked by two small diamond chips. The undercover investigator estimated its retail value at $40. The other ring was a 14 karat gold ring. The undercover investigator estimated its retail value at $39. One bracelet was a seven inch, 14 karat, bracelet. The undercover investigator estimated its retail value at $27. The other bracelet was also a seven inch, 14 karat, bracelet. The investigator estimated its retail value at $54. The necklace was an 18 inch, 14 karat, necklace. The undercover investigator estimated its retail value at $108. When the undercover investigator presented the bag of items to Petitioner, she and her husband were standing behind the counter at Seminole Antiques. Petitioner opened the bag and appraised the items inside while the undercover investigator conducted simultaneous conversations with Petitioner and her husband. Petitioner did not agree with the value placed on the goods by the undercover investigator. Petitioner gave the undercover investigator $30 for all of the items. She completed the required forms. The investigator terminated the transaction and returned to the Sheriff's Office. The same undercover investigator returned to Seminole Antiques on November 17, 1995. He did not conduct a transaction. He described to Petitioner and her husband a fictitious transaction on the previous day in which the investigator said he sold a gold Rolex watch to a competing pawn shop for $600. Petitioner was upset and told the investigator she would have given him more money. The investigator stated that Seminole Antiques was closed and that he needed the money. On November 20, 1995, both investigators returned to Seminole Antiques with unopened video cassettes. The investigators placed an aggregate value on the cassettes of $340. The investigators conducted a transaction with Petitioner's husband and agreed to take $60 for the cassettes. Petitioner paid the investigators $60 and completed the required forms. The investigators returned to the Sheriff's Office. On November 22, 1995, the two undercover investigators returned to Seminole Antiques with a video cassette recorder and remote control. They valued the two items at $149. The investigators conducted a transaction with Petitioner's husband and agreed to $55 for both items. Petitioner paid the investigators $55 and added the VCR to the pawn ticket for the previous transaction. On November 28, 1995, the two undercover investigators returned to Seminole Antiques with two Rolex watches. One watch was a stainless and gold watch. The other was an 18 karat gold watch with a 14 karat gold band. The undercover investigators valued each watch, respectively, at $2,995 and $6,995. The investigators first offered to sell the watches to Petitioner for $300 each. The investigators conducted the balance of the transaction with Petitioner's husband. The investigators agreed to accept $600 for the watches. Law enforcement officers from the Sheriff's Office arrested Petitioner and her husband. They took Petitioner and her husband to the Sheriff's Office and questioned them. Petitioner stated that she did not know any of the items had been stolen. She said that she was going to do the paper work on the watches and then resell them in the store. Petitioner did not have actual knowledge that the items she purchased were stolen. The investigators never represented to Petitioner that the items were stolen. As one of the investigators explained during his testimony: . . . at some time . . . it has to be represented as stolen. And that's hard to do sometimes because a lot of stores and pawn shops are fully aware of the law, and once you say something is stolen, they'll throw you right on out. * * * I did not say stolen. Transcript ("TR") at 40, 68. Respondent failed to show that Petitioner should have known that the items were stolen. Much of the evidence submitted by Respondent consisted of opinion testimony by the undercover investigators and hearsay statements by Petitioner's husband. The investigators opined that Petitioner paid them amounts far below the fair market value of the property. When asked how he determined the fair market value for each item, one investigator testified: . . . we've been taught by jewelers how to appraise and pawn brokers, and we give, at the Sheriff's Office, an incredibly low retail value. Wholesale and retail very low so that this way there's never no error. TR at 41. The investigators are not qualified experts in appraising property as diverse as jewelry, video equipment, VCRs, and watches. Respondent offered evidence that the investigators were dressed to portray someone who, in the opinion of the investigators, Petitioner should have known was of bad character. When questioned on this issue, one investigator testified: I had a goatee. I would wear a hat that I've got that's a very scrubby hat. I've got several of them that are scrubby. Holes in my pants. . . . I cut my grass. I don't shower. I get real sweaty. You can see the sweat stain on my shirt, and I walk in looking crummy. Pretty crummy. . . [t]o portray someone of bad character. TR at 42. Respondent offered evidence that the investigators conducted themselves in a manner which, in the opinion of the investigators, Petitioner should have known was typical of bad guys. When questioned on this issue, one investigator testified: I pulled the second [ring out of my pocket], which is typical of bad guys because they want to see how much money they can get for an item. TR at 47. The transactions conducted with Petitioner on November 7 and 14, 1997, do not show that Petitioner should have known she was dealing in stolen property. The investigators did not conduct a transaction on November 17. The transactions of November 20, 22, and 28, 1997, were conducted primarily with Petitioner's husband. Respondent relied on hearsay statements allegedly made by Petitioner's husband in the same room with Petitioner. Those statements are not competent and substantial evidence that Petitioner should have known she was dealing in stolen property. Petitioner maintained adequate records. The investigator who was at Seminole Antiques on each occasion originally testified that Petitioner did not complete the required records. He later testified that Petitioner completed the required paperwork after every transaction but did not give the investigator a copy of the paperwork.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order granting Petitioner's application for a pawnbroker license. DONE AND ENTERED this 7th day of August, 1997, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 1997.
