Findings Of Fact The Respondent holds law enforcement certificate number 4519, issued February 3, 1972. On March 5, 1981, in the Circuit Court of Duval County, Florida, the Respondent plead nolo contendere to the charge of aggravated assault. Pursuant to Section 784.021(2), Florida Statutes, aggravated assault is a felony.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that law enforcement certificate number 4519 held by the Respondent, Nathaniel Frederick, Jr., be revoked. DONE and RECOMMENDED this 18th day of April, 1983, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of April, 1983. COPIES FURNISHED: Susan Tully, Esquire Assistant Attorney General Suite 1601 - The Capitol Tallahassee, Florida 32301 Lacy Mahon, Jr., Esquire 350 East Adams Street Jacksonville, Florida 32202 G. Patrick Gallagher, Director Criminal Justice Standards Post Office Box 1489 Tallahassee, Florida 32302 Robert Dempsey, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue is whether Respondent failed to maintain good moral character as a law enforcement officer and violated provisions of Sections 943.1395(6), 943.1395(7), and 943.13(7), Florida Statutes (2003), and if so, what penalty should be imposed.
Findings Of Fact By stipulation of the parties, Respondent was, at all times material to this proceeding, a certified law enforcement officer in the State of Florida, holding certificate number 194615. On May 27, 2003, Dorothy Shelton was a dispatch duty officer at the Havana Police Department in Havana, Florida. The police chief asked Shelton to sit near Respondent in a small room at the police station when he came in to peruse the contents of his personnel file. Respondent arrived, took the folder and sat down near Shelton. When Respondent asked if he could remove papers from the folder, Shelton told him that it was not permitted. Some of the papers in the folder were loose and Respondent asked if he could have copies made of some of the documents. Shelton told him that copies could be made upon Respondent's going nearby to the Havana City Hall, paying the requisite copying fees, obtaining a receipt for same, and returning to the police station. Eventually, Respondent, after more paper shuffling, returned the folder to Shelton and left the police station. As he went out the door, Shelton observed a piece of paper in Respondent’s pocket. Shelton made the deduction that the paper came from the personnel folder and quickly told the duty sergeant that Respondent had removed a piece of paper from the folder. The sergeant immediately looked in the folder, noticed that a returned personal reference questionnaire sent out by the department in the folder was missing. The sergeant immediately proceeded to follow Respondent with the intent of stopping him outside, but discovered that Respondent had left the area. The sergeant then telephoned Respondent’s residence and left a telephonic message for Respondent to return the call. At about 5:00 p.m., that same day, Respondent returned the call. When questioned by the sergeant, Respondent admitted taking the document and later destroying it. At the hearing, Respondent testified that he was motivated to remove the document from the folder because he had a pending job application with the Florida Highway Patrol and the document inappropriately stated he had been “Baker-Acted.” In the course of his testimony, Respondent exhibited remorse and confirmed again a written apology he had written to the Havana police chief. At the hearing, Respondent also defended his actions by relating that he had discussed the matter with the Havana city manager who allegedly told him to go remove the document from the folder. In the absence of testimony by the city manager, Respondent’s testimony in this regard is not credited. The record does not reveal how long Respondent has been a certified law enforcement officer. There is no evidence that Respondent has a prior disciplinary history.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order placing Respondent's certification as a law enforcement officer on probation for a period of two years upon such reasonable terms and conditions as may be determined by the Criminal Justice Standards and Training Commission. DONE AND ENTERED this 13th day of May, 2004, in Tallahassee, Leon County, Florida. S DON W. DAVIS 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 13th day of May, 2004. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Thompkins W. White, Esquire Igler & Dougherty, P.A. 1501 East Park Avenue Tallahassee, Florida 32301 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Bennie M. O'Kelley submitted an application to the Division of Licensing, Department of State, for licensure as a Class F, Unarmed Guard. O'Kelley indicated on his application that he had never been arrested, although he had been arrested some 15 times, the last time having been for assault and battery in 1969. In 1969, O'Kelley served 90 days in the Dade County Stockade for assault and battery. O'Kelley introduced evidence that he had been licensed by the Department of State earlier as an Unarmed Guard and stated that he had revealed his misdemeanor arrests on that application. O'Kelley stated that he knew that he could not be licensed if he had been arrested for a felony and assumed that misdemeanors were not disqualifying, and that therefore he did not have to report his misdemeanor conviction and arrests on his application.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and considering the fact that O'Kelley has had a clean record for the past ten years, the Hearing Officer would recommend that his application for a Class F, Unarmed Guard, license be granted; however, because of O'Kelley's admitted history of being arrested for fighting, the Hearing Officer recommends that favorable consideration not be given to O'Kelley's application for a Class G, Armed Guard, license. DONE and ORDERED this 19th day of February, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Gerald Curington Division of Licensing The Capitol Tallahassee, Florida 32304 Bennie M. O'Kelley 4711 SW 38th Street Hollywood, Florida 33023
The Issue The issue in this case is whether Respondent's certification as a firefighter should be revoked.
Findings Of Fact Respondent, James F. Mathis, is a certified firefighter. On April 7, 1997, Respondent pled guilty to the charge of unlawful sexual battery upon a child under the age of 16, contrary to Section 800.04(3), Florida Statutes. Respondent was sentenced to 180 days in jail, ten years' probation, no contact with the victim, no allowance for early termination of probation, admission to sex offender treatment, and payment of court costs. However, adjudication was withheld. Respondent presented evidence to show: the factual basis for the charge; his rehabilitation; the unlikelihood of a repeat offense; how his plea of guilty came to Petitioner's attention; Respondent's dedication and commitment to quality service as a firefighter; the quality of Respondent's service as a firefighter; and the desire of the Bayshore Fire Protection and Rescue Service District and the local community to have the benefit of Respondent's services as an employed firefighter. Petitioner did not contest Respondent's evidence but took the position that the evidence was irrelevant. As reflected in the Conclusions of Law, it is agreed that the evidence was irrelevant, and no additional findings are necessary.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance enter a final order revoking Respondent's certification as a firefighter. DONE AND ENTERED this 20th day of October, 2000, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 20th day of October, 2000. COPIES FURNISHED: Terrence F. Lenick, Esquire Post Office Box 430 Bonita Springs, Florida 34133 James F. Mathis 11260 Shirley Lane North Fort Myers, Florida 33917 Lisa S. Santucci, Esquire Department of Insurance 200 East Gaines Street 612 Larson Building Tallahassee, Florida 32399-0333 Honorable Bill Nelson, State Treasurer and Insurance Commissioner The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Daniel Y. Sumner, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307
The Issue The issue in the case is whether the Petitioner should be permitted to take the examination for licensure as a real estate sales associate.
Findings Of Fact In September 2003, the Petitioner filed an application for licensure by the State of Florida as a real estate sales associate. In an application section titled "Background Information" question 1 asks in relevant part, "[h]ave you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere . . ." to which the Petitioner responded in the affirmative. "Background Information" question 4 in relevant part asks, "[h]as any license, registration, or permit to practice any regulated profession, occupation, vocation, or business been revoked, annulled, suspended, relinquished, surrendered, or withdrawn . . ." to which the Respondent replied in the affirmative. Question 1 directs an applicant who responds in the affirmative to disclose the full details of the incident(s) by completion of "form 0050-1." Question 4 directs an applicant who responds in the affirmative to disclose the full details of the termination(s) by completion of "form 0060-1." The disclosure forms completed by the Petitioner (if any) are not in the Respondent's files and are unavailable for review. The Petitioner's application package was presented to the Commission on December 16, 2003. After considering his presentation, the Commission denied his application and instructed him to return with additional information related to the disclosed charges. The Petitioner apparently sought reconsideration, and his application package was again presented to the Commission on March 17, 2004. After reconsidering the Petitioner's background, the Commission again denied his application. The Petitioner then sought an administrative hearing to challenge the denial of his application. On or about July 26, 2000, the Petitioner was arrested and charged with stalking. The Commission's records indicate that the Petitioner completed a pretrial program and was sentenced to 50 hours of community service. At the administrative hearing, the Petitioner testified that he was placed on probation for six months, and had to complete a six- month psychological evaluation. The stalking charge was nolle prossed. At the hearing, the Petitioner stated that at the time of the stalking charge, he was working at a retail establishment. The object of his attention was a 16-year-old female who was working in the vicinity. The Petitioner was approximately 36 years old. The Petitioner asserted that he did not know the female was 16 years old at the time. He denied that he "stalked" the female, but stated that he merely spoke to her a few times in person and attempted to contact her once by telephone. He continued to express surprise at the stalking charge. On or about June 6, 2001, the Petitioner was arrested and charged with burglary of an unoccupied conveyance, a felony, and criminal mischief. He was sentenced to two years of probation, six months of psychological evaluation, and was required to pay court costs. Adjudication of guilt was withheld. At the hearing, the Petitioner stated that he went to the home of an ex-girlfriend to collect a $500 debt she allegedly owed to him. He testified that he knocked on her door and got no response. As he left her residence, he saw that her automobile was unlocked. He opened the hood of the ex- girlfriend's vehicle and ripped out the spark plug cables. He asserted that he "didn't steal anything" because he threw the cables away and didn't keep them. On or about September 5, 2001, the Department of State, Division of Licensing, entered an order based on the Petitioner's stipulation, revoking his Class "D" Security Officer's License, based on the burglary charge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order denying the Petitioner's application for licensure as a real estate sales associate. DONE AND ENTERED this 17th day of August, 2004, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 2004. COPIES FURNISHED: Alfonso Santana, Esquire Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street, Suite 801N Orlando, Florida 32801-1757 Fernando Freire 5242 Millenia Boulevard, No. 304 Orlando, Florida 32839 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Juana Watkins, Acting Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street, Suite 802 North Orlando, Florida 32808-1900
Findings Of Fact The following facts are stipulated by the parties and are incorporated herein: The Respondent has been the clerk of court for Collier County since June of 1986. The Respondent was the clerk of court at all times material to this complaint. In July of 1990, the Respondent's wife was issued a citation for having glass bottles on the beach, a violation of municipal ordinance No. 16.30, City of Naples. On August 21, 1990, upon failure to timely pay the fine for the violation of the above-described ordinance or to appear in court on this date, an arrest warrant for Theresa Giles was issued. On August 30, 1990, on or about 4:30 p.m., police officers arrived at the Respondent's residence to arrest Ms. Giles for her failure to appear or to pay fine. The officers allowed Ms. Giles to make a telephone call to her husband at the clerk's office. The Respondent went to one of his deputy clerks, Lorraine Stoll and discussed the situation with her. As a result, Ms. Stoll called the officers at the Respondent's home and informed them that the bench warrant for Ms. Giles was recalled. Ms. Giles was not taken into custody as a result of Ms. Stoll's action. These facts are derived from the evidence presented, weighed and credited: Respondent, James Giles was the Collier County finance director, performing the pre-audit function for the county, when he was appointed county clerk to finish a two year term in 1986. He was then elected to a four year term ending in January 1993, and was not reelected. His prior employment experience was as a private certified public accountant, an employee of St. Johns County, and an auditor for the State of Florida. On August 30, 1990, when Theresa Giles called her husband, she was very upset. He had promised to pay the fine, but had forgotten. She was home alone with her young child and her elderly mother when the deputies came to serve the warrant and arrest her. The ticket, or "Notice to Appear" issued to Ms. Giles for her infraction plainly provides notice that if the fine is not paid or the person fails to appear in court at the appointed time, an arrest warrant shall be issued. (Advocate Exhibit No. 2) James Giles immediately called his misdemeanor division and Kathleen Heck answered the phone. After he briefly explained the situation, she went to find the supervisor, Lorraine Stoll. As the two women were at Ms. Stoll's desk, bringing Ms. Giles' case up on the computer, Mr. Giles appeared in person. This was a very unusual situation because the clerk rarely came back to the misdemeanor office. He was Lorraine Stoll's immediate supervisor. He asked if there was anything that could be done and Ms. Stoll responded that the warrant could be recalled. Before she could explain any further, he handed her a paper with his home phone and asked her to make the call. Ms. Giles answered the phone and put the deputy on; Ms. Stoll told him the warrant was recalled, and Ms. Giles was not arrested. Ms. Stoll then told Mr. Giles that the fine and court costs had to be paid. He said the whole thing was ridiculous, that he could not believe a warrant could be issued for such a minor offense. By this time it was after 5:00 p.m. and the cashier's office was closed. Giles paid the $36.50 fine the next day and paid the $100.00 court costs on September 13, some two weeks later. (Respondent's exhibits nos. 1 and 2). James Giles admits being upset at the time that the phone call was made, but was trying to calm down because he knew Lorraine Stoll to be excitable. He was flabbergasted that someone could be arrested for having bottles on the beach. He denies that he pressured Ms. Stoll, but claims he was trying to be rational and get sound advice. He wanted her to make the call because he felt it would "look bad" if he did. James Giles did not raise his voice but both Ms. Stoll and Ms. Heck perceived he was upset and in a pressure situation. Ms. Stoll had never been involved in a circumstance where the warrant was recalled while the deputies were getting ready to make an arrest. She has worked in the misdemeanor section of the clerk's office for eleven and a half years, as deputy clerk. No ordinary citizen could have received the advantage that the clerk and his wife received. Judge Ellis, a Collier County judge, has a written policy providing that a bench warrant may be set aside after payment of costs and fine. Another county judge, Judge Trettis, requires that his office or the State's Attorney be called, and does not have a written policy. Ms. Stoll does not have the authority to recall a warrant without following the proper procedure. This situation was out of the ordinary. She made the telephone call because her boss told her to, and their main concern was that the warrant needed to be recalled so Ms. Giles would not go to jail. On the other hand, Ms. Stoll did not tell Mr. Giles that he was pressuring her, nor did she have the opportunity to tell him the proper procedure before making the telephone call. James Giles' explanation that he was simply seeking advice of his staff and then acting on it without wrongful intent is disingenuous. Whatever his actual knowledge of proper procedures for recalling a warrant, he knew or should have known that what he was doing was not an opportunity available to other citizens. His experience in the clerk's office and in prior public service should have clued him that no one else could simply get a deputy clerk to intercept an arrest with a telephone call.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Commission on Ethics enter its final order finding that James Giles violated Section 112.313(6), F.S., and recommending a civil penalty of $250.00. DONE AND RECOMMENDED this 27th day of January, 1993, in Tallahassee, Leon County, Florida. MARY CLARK 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 27th day of January, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-4942EC The following constitute specific rulings on the findings of fact proposed by the parties: Advocate's Proposed Findings 1. Adopted as stipulated facts in paragraphs 1-5. Adopted in substance in paragraph 9. Adopted in substance in paragraph 12. 8.-10. Adopted in substance in paragraph 10. 11. Adopted in substance in paragraph 13. Respondent's Proposed Findings 1. A.-E. Adopted as stipulated facts in paragraphs 1-5. Adopted in substance in paragraphs 8 and 12. Rejected as the sequence suggested is contrary to the weight of evidence. Rejected as misleading. The evidence shows the process was incorrect and both staff knew it was incorrect. The clerk was informed about the correct procedure after the phone call. The procedure is set out in paragraph 13. The evidence is not clear that the fine and costs could not have been paid the same day. By the time Mr. Giles finished complaining, it was after 5:00. Rejected as contrary to the greater weight of evidence, considering the totality of Ms. Stoll's testimony as well as Ms. Heck's. Rejected as contrary to the greater weight of evidence. Rejected as immaterial. 3. Rejected as contrary to the greater weight of evidence. More specifically, this proposed finding suggests that the culpability was Ms. Stoll's rather than Respondent's. That suggestion is supported only by Ms. Stoll's timid admissions that she should not have made the phone call without having received the payment from her boss. Ms. Stoll's acceptance of blame does not relieve the Respondent of his responsibility. COPIES FURNISHED: Craig B. Willis Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1502 Tallahassee, Florida 32399-1050 Raymond Bass, Jr., Esquire Bass & Chernoff 849 7th Avenue, South - Suite 200 Naples, Florida 33940-6715 Bonnie Williams, Executive Director Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006 Phil Claypool, General Counsel Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006
The Issue The issues in this case are whether Petitioner has demonstrated, by clear and convincing evidence, that she is rehabilitated from her disqualifying offense, and, if so, whether Respondent’s intended action to deny Petitioner’s request for an exemption from employment disqualification would constitute an abuse of discretion.
Findings Of Fact Respondent is the state agency that regulates the provision of services to individuals with developmental disabilities (referred to by the Agency as its clients), pursuant to chapter 493, Florida Statutes (2015).1/ The Agency’s clients are a vulnerable population, consisting of individuals whose developmental disabilities include intellectual disability, cerebral palsy, autism, spina bifida, Prader-Willi syndrome, and Down syndrome. These individuals often have severe deficits in their abilities to complete self-care tasks and communicate their wants and needs. They are at a heightened risk of abuse, neglect, and exploitation by those who provide services to them. Petitioner is a 42-year-old female who worked for a short period of time (from April 14, 2015, to October 2, 2015) as an independent contractor for Peak Provider, Inc., which is a service provider regulated by the Agency to provide in-home and community-based services to the Agency’s clients. Petitioner worked as a supported living coach, providing supported living services to adults with developmental disabilities in their homes. This means that she provided “assistance to adult clients who require[d] ongoing supports to live as independently as possible in their own homes, to be integrated into the community, and to participate in community life to the fullest extent possible.” § 393.063(39), Fla. Stat. (defining supported living services). These services include assisting clients with paying bills and balancing checkbooks, and taking clients out in the community, for shopping, medical appointments, or other activities. Petitioner’s supported living coach job was a “direct service provider” position of special trust, because she provided services directly to the Agency’s clients, she had access to clients’ living areas, and she had access to client funds or personal property. As a direct service provider, Petitioner was required to undergo level 2 background screening pursuant to chapter 435, Florida Statutes, upon being retained by Peak Provider on April 14, 2015. See § 393.0655, Fla. Stat. Petitioner underwent level 2 background screening, which was processed by the Department of Children and Families (DCF) on the Agency’s behalf. By letter dated September 30, 2015, DCF notified Petitioner that her background screening results revealed a criminal offense that disqualified Petitioner from continuing to work in her position of special trust. As a result of her disqualification, Petitioner’s position with Peak Provider was terminated on October 2, 2015. The DCF letter informed Petitioner that she may be able to apply for an exemption from disqualification. Petitioner was familiar with that process, since she had recently applied for and received exemptions from disqualification from two other state agencies: the Agency for Health Care Administration (AHCA), which issued an exemption on February 5, 2015; and the Department of Juvenile Justice (DJJ), which issued an exemption on May 22, 2015. Within a few days after she was terminated by Peak Provider, Petitioner submitted an application seeking an exemption from disqualification for positions of special trust within the Agency’s purview. The purpose of an exemption application is to demonstrate to a state agency that the applicant should not be disqualified from employment in positions within the regulatory purview of that agency. Applicants must set forth “clear and convincing evidence of rehabilitation” from their disqualifying offense. Factors to be addressed with regard to rehabilitation include the circumstances surrounding the disqualifying offense, the time period that has elapsed since the disqualifying offense, the nature of harm caused to the victim, and the history of the applicant since the disqualifying offense. In assessing rehabilitation, the state agency reviewing an exemption application may consider evidence that the applicant has been arrested for or convicted of other crimes since the disqualifying offense, even though the subsequent criminal incidents would not themselves be disqualifying offenses. Petitioner’s Disqualifying Offense The disqualifying offense identified in DCF’s letter notifying Petitioner of her background screening results was an August 16, 1994, probation violation in reference to a September 1991 aggravated assault offense. The evidence established that Petitioner committed the underlying offense in May 1991, when she was 17½ years old. An information was filed in September 1991, charging Petitioner with aggravated assault, a felony. In October 1991, Petitioner pled guilty to the charge. Petitioner was adjudicated guilty, sentenced to five years of probation, and ordered to pay restitution to the victim. At hearing, the Agency’s representative testified that the Agency did not consider the aggravated assault offense itself to be a disqualifying offense, because Petitioner was a minor when she committed the offense. However, the Agency determined that Petitioner’s conviction in 1994 for violating probation was a disqualifying offense, because her probation was revoked and, in accordance with section 948.06, Florida Statutes, the original charge was reopened and sentence was imposed for the aggravated assault felony conviction. The Agency’s position that the aggravated assault felony conviction was not considered a disqualifying offense does not appear to be supported by the background screening laws in chapter 435, Florida Statutes. The aggravated assault offense was a felony to which Petitioner pled guilty. It is a disqualifying offense under level 2 background screening standards even though Petitioner was a minor when she committed the offense. The Agency did not explain or offer any support for the notion that a disqualifying offense does not count as a disqualifying offense if it is committed by a minor; the background screening laws provide otherwise. Petitioner gave her explanation of the circumstances surrounding the aggravated assault offense, both in the “arrest narrative report” she submitted with her exemption application and at hearing. Petitioner wrote in her arrest narrative report that she and a girl she went to school with were arguing over a boy when the girl’s mother “jumped in my face with a knife.” Petitioner wrote that she was fearful, and was only trying to defend herself. She wrote that she and the mother struggled over the knife, “and in the process [the mother] got cut on the leg.” Petitioner’s described an incident in which she was more the victim than the girl’s mother: it was the mother who brandished the knife, and Petitioner was only acting in self-defense by struggling with the mother over the knife. Petitioner did not accept responsibility for cutting the victim with a knife. Instead, Petitioner used a more neutral, passive description, acknowledging only that in the process of struggling for the knife, the mother “got cut on the leg” as if it just happened. Nonetheless, Petitioner did not plead self-defense, when charged with aggravated assault; she pled guilty. Petitioner’s description is inconsistent with the police report. The police report described Petitioner as the aggressor who “came after [the other girl] with a knife” and that the girl’s mother--the victim--attempted to stop Petitioner, but was knocked to the ground. The police report then stated that while the victim was on the ground, Petitioner cut the victim not once, but twice, on the inside thigh of the left leg and on the right calf; Petitioner then fled the area and the victim went to a hospital emergency room where she was treated for the knife wounds. Petitioner did not attempt to explain the discrepancies between her description of this incident and the description in the police report.2/ According to the court records, after Petitioner pled guilty to aggravated assault, she did not accept the consequences of her offense by steadfastly carrying out the terms of punishment imposed by the court. Instead, as a young adult, Petitioner was found guilty of violating the terms of the probation imposed for the aggravated assault felony conviction not just in September 1994, but multiple times in 1992, 1993, and 1994. For example, in 1993, Petitioner was found to have violated the probation condition requiring her to not violate any laws. She violated that condition by committing retail theft, for which she was adjudged guilty and convicted in March 1992. Petitioner pled guilty to violating probation, her probation was revoked, she was placed on community control for one year, and ordered to perform 50 hours of public service work. Then, in September 1994, she was found to have violated the community control order by not properly conducting herself, which she admitted in a revocation of community control hearing. The community control was revoked, and she was sentenced to two months in jail, just a few months before her 21st birthday. Length of Time Since Disqualifying Offense Whether measured from the offense itself, the adjudication of guilt, or the completion of the punishments imposed (and revised), it plainly has been a long time since Petitioner’s disqualifying offense. She is now 42; she had completed all punishments for the aggravated assault offense before she turned 21. To her credit, Petitioner has not been convicted of another disqualifying offense. Although Petitioner was arrested several times for crimes that would have been disqualifying offenses if Petitioner was prosecuted and convicted, that was not the case. These incidents are not considered as additional disqualifying offenses; however, they have some bearing on the issue of Petitioner’s rehabilitation, as discussed below. Nature of Harm Caused to the Victim In describing the aggravated assault incident, Petitioner said that there was only a single minor cut to the mother’s leg. As noted above, the police report more precisely described not one cut, but two cuts, on the victim’s left inner thigh and the right calf, and that the knife wounds were treated at a hospital emergency room. Regardless of how many or how serious the cuts were, the harm inflicted by Petitioner was serious enough that she was charged with, and pled guilty to, aggravated assault, which means that she committed an assault (intentional, unlawful threat by words or act to do violence to another) with a deadly weapon. See § 784.021, Fla. Stat. (defining crime of aggravated assault, unchanged since 1975). Petitioner said that she made amends for the minor cut by reimbursing the victim for the small medical bill to treat the wound. Petitioner did so, however, pursuant to court order as part of her sentence for the offense. Indeed, had she not paid the restitution ordered, she would not be eligible to apply for any exemptions from disqualification. Petitioner’s History of Positive Accomplishments Since the disqualifying offense, Petitioner demonstrated that she has worked hard on her education. She did not finish high school on schedule, but later completed the requirements to receive her GED certificate of graduation in June 1997, when she 23 years old. More recently, Petitioner went to Gulf Coast State College, and in July 2012, she earned an associate in applied science degree in the legal assisting/paralegal field. Then, attending St. Petersburg College, she earned an associate in arts degree in May 2013. Continuing at St. Petersburg College, she received a bachelor of applied science degree in the fields of public safety administration and criminal justice in July 2014. By all accounts, Petitioner has done very well in school, making the President’s Honor List/Dean’s List on several occasions during her college studies. Petitioner testified that she is currently enrolled in online coursework offered by Liberty University, and is working on her master of arts degree in human service counseling with a minor in addiction recovery. While no documentation was provided with regard to this endeavor, Petitioner testified that she expects to graduate in May 2016. Petitioner submitted a number of reference letters with her exemption application and more letters at hearing.3/ A good number of these letters appear to be written by individuals involved in her various educational programs. Several of these letters were written to recommend Petitioner for admission to a graduate program, while others were written to recommend her for employment. Some of the letters are quite old, such as a general reference letter written ten years ago by a circuit judge who taught a criminal procedure class in which Petitioner was an “outstanding” student at Gulf Coast Community College, offering the opinion that she can be successful “in whatever activity she is pursuing.” These letters are somewhat helpful only in a very general sense to confirm what is shown by Petitioner’s educational achievements--that Petitioner has worked hard to better herself through education. However, these letters do not really address the issues for determination in this proceeding, in that the letters fail to indicate that the authors know of Petitioner’s background germane to this proceeding, including the disqualifying offense and subsequent arrests and convictions for non-disqualifying offenses; as such, they cannot offer meaningful perspective as to Petitioner’s rehabilitation. While Petitioner is to be commended for her hard work and scholastic achievements, they do not provide the clear and convincing evidence that Petitioner is rehabilitated from her disqualifying offense, or that Petitioner’s non-disqualifying criminal history does not present concerns about her rehabilitation. Petitioner also provided some information about her employment history. At the time she filed her exemption application, she was not working, having just been terminated by Peak Provider. Prior to that job, she worked as an event specialist for Advantage Sales & Marketing in Clearwater from September 2009 to September 2012. Petitioner also worked as a client service coordinator for H&R Block in Clearwater from December 2007 to April 2010. When she lived in Panama City, she worked as an assistant cook for Laguna Christian Retreat from August 2005 to November 2007. The only two reference letters that were written recently (both in October 2015), obtained by Petitioner to respond to a letter identifying omissions from her exemption application, were from a Peak Provider co-worker, who wrote to recommend Petitioner for employment, and from Petitioner’s supervisor in the job she held from 2005 to 2007. Neither letter demonstrated knowledge of Petitioner’s background at issue in this case. The letter from Petitioner’s supervisor from ten years ago offered only a general statement that Petitioner has paid her debt to society and should be given a second chance. Petitioner’s exemption request noted that she was undergoing stress because her background was keeping her from getting or keeping a stable job. However, Petitioner had only recently obtained exemptions issued by two different state agencies. By the time of the hearing, Petitioner testified that she secured a job in December 2015 working for a home health agency as a home health aide. Petitioner qualified for that job because of her exemption from disqualification issued by AHCA. Petitioner testified that her real passion is juvenile justice. She presented evidence that she started her own non- profit organization in 2009 to carry out her dream of helping troubled youth. The program she envisions, described in the non- profit materials, would “promote and establish a strong network support with the school system and juvenile court system. We will form a partnership with local school district and juvenile court system. Our primary goal is to target at risk youth and to break habits that are leading our youth in trouble in school and in the streets.” She put it this way in an October 1, 2015, letter that she wrote to submit with her exemption application: I would like to open up a youth center for at-risk youth and a drug rehabilitation center to give back to the community and make a difference in people [sic] lives. I feel my past experiences will be a great asset to youth who are headed down the wrong path. I have not only been down that road they are traveling but I can relate too [sic] many of their issues and help them overcome them. Why not choose a person to work with youth that has overcome the same obstacles they are faced with, has the insight on their challenges and has hands on experience as a juvenile delinquent? Petitioner testified that her non-profit organization has not reached the operational stage. She blamed her background as a stumbling block that has kept her from progressing beyond creating the organizational structure to operations. Although she testified that the organization is not operational because of her background, she was unable to explain why her DJJ exemption would not allow her to move forward and begin at least a portion of the program she envisions. Petitioner explained that she would not be able to fully implement her dream program because she would want to include substance abuse counseling, a program regulated by DCF, requiring a DCF exemption from disqualification. However, the exemption application at issue in this case, submitted in response to being disqualified from working for Peak Provider, seeks an exemption from the Agency, not from DCF. Apparently realizing this when questioned at hearing, Petitioner retreated from her statement that an exemption would allow her to carry out her dream. Instead, she said that an exemption from Respondent would provide her with another option, and that she had “fun” as a supported living coach providing services to adults with developmental disabilities. While need for an exemption is not a criterion, to the extent Petitioner sought to justify her request as needed to remove the stress in her life caused by being unable to carry out her dreams and being unable to support her family with a job, those justifications were proven incorrect or no longer true. Petitioner was offered the opportunity to present evidence in her exemption application of her history after the disqualifying offense of positive contributions she has made in the various communities in which she has lived. Examples might include participating in volunteer work for religious or charitable organizations, schools, shelters, libraries, community centers for the elderly or for the needy, or any of the myriad of similar opportunities for becoming involved in one’s community. Petitioner fairly summarized her showing in this regard in her PRO: “Petitioner stated that she is not involved in any community activities because her background will not allow her to be a part of much now. She stated she would love to be more involved in community activities. Petitioner reports attending church.” While Petitioner may have voiced the right sentiment in stating that she would love to be more involved, that statement is not credible. Petitioner is unreasonably using her background as an excuse for her lack of involvement in community services. Petitioner presented no evidence that she has sought to provide volunteer services in the church or in the community, but was turned down because of her background. There appears to be plenty of room within the background screening requirements for Petitioner to volunteer in a variety of programs, perhaps with limits on the number of hours she could volunteer in any one area, and perhaps with supervisory requirements. This would be one way to develop more compelling evidence that she is making good choices in her free time and making positive contributions that not only improve herself (such as with her educational achievements), but also help others in need. Petitioner generally alluded to having overcome a troubled background, but did not offer much detail to explain what problems she has or had endured, and what she has done to cope with her troubles. In response to a question in the exemption application regarding whether she receives any form of counseling, she responded vaguely that she gets counseling at her church, as needed. No specifics were offered. No documentation or testimony was presented with regard to the counseling she has obtained at her church, such as a description of the nature of the counseling services she referred to and how often she has availed herself of those services. Here, too, a better showing could be made, such as by offering testimony of a pastor or other church official who could attest to Petitioner’s rehabilitation that may be evident from her drawing on church resources for support. In response to a question in the exemption application about alcohol or drug use, Petitioner stated that she used to drink alcohol, but does not now drink alcohol, and has never “abused” drugs (notably not stating that she has not used drugs). She stated that she completed substance abuse and alcohol courses in 1992, 2004, and 2010. She only provided documentation for a substance abuse awareness course completed on January 26, 2004, but not for any others. While she claimed these courses were taken “for educational purpose” (PRO, p. 7), it appears that the courses may have been taken close in time to an arrest involving drugs or alcohol. The documented 2004 course, in particular, was completed within the 12-month probationary period for Petitioner’s nolo plea to possession of drug paraphernalia, discussed below; her probation conditions specifically required her to complete such a course during her probation. The reasonable inference is that Petitioner completed this coursework because it was required as part of her punishment for drug or alcohol-related criminal offenses. Petitioner’s Subsequent Criminal History Since the Agency did not consider Petitioner’s disqualifying offense to be the 1991 aggravated assault offense, the Agency did not consider Petitioner’s criminal record of arrests and convictions for non-disqualifying offenses between the 1991 aggravated assault offense and the September 1994 probation violation. However, this information was collected and reported as part of the background screening results, and Petitioner was asked to submit documentation, if available, with her exemption application and to explain the circumstances of each criminal arrest and conviction reported. Petitioner’s arrest narrative report provided her description of 24 criminal incidents, spanning the time period from June 20, 1990, when Petitioner was a little over 16 years old, through January 16, 2010, when Petitioner was about to turn 36 years old. Between the 1991 aggravated assault conviction and the 1994 probation violation, the arrest narrative report itemized eight arrests resulting in criminal charges. Only one of these incidents occurred when Petitioner was still a minor. The others were: battery in January 1993 and battery again in May 1993 (both battery charges dropped by prosecutor); assault and disorderly conduct in July 1993 (adjudicated guilty); assault in August 1993 (adjudicated guilty); grand theft auto in January 1994 (charge dropped); battery in March 1994 (charge dropped); stalking in July 1994 (charge dropped); and aggravated battery and disorderly intoxication in July 1994 (first charge dropped, nolo plea to disorderly intoxication, adjudication withheld).4/ Petitioner’s record reveals many non-disqualifying criminal incidents after the September 1994 probation violation; the arrest narrative report identifies 13 criminal incidents after September 1994. In eight of these instances, Petitioner pled guilty or nolo contendere to a variety of misdemeanor charges, including fleeing and attempting to elude police (1997); passing worthless checks (1999, 2000, and 2007); retail theft (2000); possession of drug paraphernalia (2003); and driving under the influence of alcohol (2010). During this same time span, Petitioner was also arrested and charged on several other occasions, but the charges were dropped for a variety of reasons. These include a 1996 arrest and felony charge of aggravated battery with a deadly weapon; a 1998 arrest in Georgia on five counts of forgery; a 1999 arrest for domestic aggravated battery; a 2001 criminal reckless driving charge in Miami-Dade County; a 2002 arrest for felony child abuse; and a December 2002 arrest for possession of cocaine in addition to possession of drug paraphernalia--the cocaine charge was dropped in 2003 when Petitioner pled no contest to the drug paraphernalia charge. Petitioner offered little by way of detail regarding these incidents. She claimed no recollection of any incident that was not documented through official records. When Petitioner did provide some detail, in most instances Petitioner blamed someone or something besides herself; Petitioner was an innocent and falsely accused bystander. For example, with regard to the March 1996 charge of aggravated battery with a deadly weapon, Petitioner acknowledged that the charge stemmed from a fight that broke out at a club she had attended, and the victim accused Petitioner of hitting her with a bottle. However, according to Petitioner, she was not trying to hurt the victim, but was instead trying to help the victim who was “under the influence of drugs and alcohol.” Petitioner claimed that the charge was dropped because it was determined that the victim was not being truthful; instead, the court records reflect that a Nolle Prosequi was filed because the state was “unable to locate the victim after the defendant was arraigned.” With regard to the November 1998 forgery charges in Georgia, after stating that she was “not sure of all the specifics verbatim,” Petitioner excused this incident as follows: “I was falsely accused for something I didn’t do.” Petitioner submitted records from Georgia, including the arrest report, which stated that Petitioner was arrested at K-Mart when she tried to use a forged check in the amount of $631.25 to pay for merchandise. The arresting officer stated that Petitioner gave several different names during the investigation, and that when she was arrested, she had four other forged checks in her possession. Petitioner did not attempt to reconcile her statement that she was falsely accused for something she did not do with the officer’s contrary description in the police report. At hearing, Petitioner noted that these forgery charges should not have been revealed as part of her criminal history, because her request to have them expunged was granted. However, the documents are in evidence, and some or all of them were provided by Petitioner. If the charges were being considered as disqualifying offenses, the fact that they were expunged might make a difference, but they are not considered here as disqualifying offenses. Instead, as Petitioner was informed at the hearing, statements in the records in evidence related to those charges can be considered, such as the statement that Petitioner gave different names to the investigating officer. Moreover, to the extent Petitioner herself offered a description of the incident that was inconsistent with the arrest report, the unexplained inconsistencies have a bearing on Petitioner’s credibility. Despite being informed at hearing as to how this evidence might be considered, Petitioner still offered no explanation for the inconsistencies. With regard to the periodic worthless check offenses, Petitioner explained her first worthless check offense for which she was adjudged guilty in April 1999 this way: “I didn’t know how to balance my checkbook properly back then.” Her second worthless check offense in 2000 was explained as follows: “I think I wrote a check to pay my furniture bill and my paycheck didn’t post in time to cover the total amount.” Petitioner offered no explanation for the May 2007 worthless check charge, stating that “to be honest I do not remember this charge.” Petitioner blamed several of the more serious charges on a boyfriend whom she accused of “constantly abusing me physically, emotionally and verbally.” She said that the domestic aggravated battery charge in December 1999 occurred because she “finally got the courage to fight him back,” and noted that the charges against her were dropped after investigation. By the same token, she filed a complaint against the boyfriend, which was investigated by the state attorney’s office, and she was notified in April 2000 that prosecution was not warranted against the boyfriend. Three years later, Petitioner blamed “the same abusive boyfriend” when she was arrested and charged with possession of cocaine and possession of drug paraphernalia. Petitioner claimed that the boyfriend was “hiding drugs in my home which I knew nothing about,” but she pled no contest to possession of drug paraphernalia, rather than risk losing at trial. A different picture was painted by a DCF investigation report on allegations that Petitioner and her paramour were making and selling drugs out of the home, that the house was known as a “drug house” in the community, and that Petitioner and her paramour were arrested on the drug charges while a child was present. The DCF report verified the threatened harm to a child by exposure to substances, and also verified child neglect. While no findings are made herein with regard to the truth of the facts stated in the DCF report, Petitioner was aware that this and eight other DCF investigation reports were put in evidence by Respondent, and Petitioner chose not to address them at all. Petitioner’s most recent criminal charge and conviction was just over five years ago, for driving under the influence of alcohol in Alabama. Petitioner disclaimed any responsibility for the incident, seeming to blame a state trooper for improperly accusing her of being “on something,” then taking her to jail when she refused to take a breathalyzer test “because I know my rights.” Petitioner asserted that a field test was administered, which she “passed with no problem.” No evidence was offered to support that assertion. The arrest report did not mention a field test, nor did Petitioner offer the testimony of any witness, such as her sister who was a passenger in the car. Petitioner offered several sweeping statements, both in her exemption request and at hearing, to the effect that she accepted responsibility for all of her wrongs, and that she was very remorseful for everything she did wrong. However, in explaining each individual incident, she did not accept responsibility, did not concede that she did wrong, and expressed little or no remorse. The strongest expression of any remorse was in Petitioner’s statement that ten years after the aggravated assault disqualifying offense, she saw the victim at church and apologized, and said that the victim forgave her. Yet even with that, Petitioner’s narrative description in 2015 of the incident made it sound like Petitioner was acting in self-defense and should be considered the real victim. At the hearing, Petitioner exhibited frustration and borderline anger at being questioned about her past and having to explain herself. Petitioner made it clear that she is weary of being asked to explain the long list of criminal arrests, charges, and convictions in her background. As she stated in her exemption request and repeated at hearing, “I think I have paid my debt to society . . . my past has haunted me long enough.” However, while Petitioner may have paid her debt to society in terms of completing all of the punishments imposed under the criminal justice system, that does not equate to entitlement to an exemption from the Agency to serve its vulnerable clients. It was Petitioner’s choice to apply for an exemption from the Agency. By doing so, she took on the burden of proving her rehabilitation, upon consideration of her history since the disqualifying offense. Petitioner believes that she should be given a second chance, and that giving her an exemption would give her the opportunity she believes she deserves to prove herself. Two other agencies have given Petitioner such a chance. Although her submissions to these agencies were not offered in evidence, she succeeded in convincing both agencies to issue exemptions from disqualification for programs they regulate. Petitioner has embarked on proving herself worthy of that chance in her current job, for which she qualified by virtue of AHCA’s exemption. The Agency took those other exemptions into account in reviewing Petitioner’s application, but also considered the differences in the types of services that could be provided, and the clients who would be served, in positions of special trust within the Agency’s purview. The Agency believes that greater caution is required because of the Agency’s vulnerable clientele and also because of the nature of the services Petitioner would be able to provide to these vulnerable people. The Agency’s view is reasonable in this case. For example, Petitioner’s history skirting around violent incidents is of heightened concern for this vulnerable population. Petitioner’s history with crimes involving theft, forgery, and issuing worthless checks is of heightened concern because of duties that include helping adults with developmental disabilities gain independence by helping them shop, pay bills, balance checkbooks, and manage budgets. The Agency also considered Petitioner’s history of traffic infractions and driver’s license issues since the disqualifying offense, including the following: failure to obey a traffic sign in August 1997; driving with a suspended license in September 1997; speeding in February 2000; failure to yield to a pedestrian in May 2001; driving a vehicle in unsafe condition in December 2001; failure to obey a traffic control device in July 2008; the 2010 DUI conviction previously mentioned in Alabama; driving while license suspended or revoked in October 2010; suspension of Petitioner’s driver’s license in July 2011 for PIP cancellation; operating a motor vehicle without a driver’s license in October 2011; and suspension of her driver’s license again in March 2015 for PIP cancellation. In addition, Petitioner’s driver’s license records show that she completed two driver’s school courses, one identified as substance abuse treatment in September 2010, and the other identified as DUI school, completed in March 2011. Petitioner offered no explanation of these records in evidence. All things considered, Petitioner failed to demonstrate rehabilitation by clear and convincing evidence. Instead, her history subsequent to the disqualifying offense reflects a pattern of criminal incidents over a long period of time, providing reasonable concern that Petitioner would pose a risk of danger as a direct service provider to the Agency’s clients. While it has been over five years since the last criminal conviction, Petitioner’s traffic infractions have continued, causing some concern that Petitioner has not completely rid herself of bad choices that present risks to others, at least in positions where Petitioner’s duties include transporting clients to medical appointments and on community outings. And significantly, in 2015 (in the exemption application) and 2016 (at hearing), Petitioner has not demonstrated that she takes responsibility for her past actions, that she recognizes the seriousness of her long history of criminal incidents that cannot simply be erased or go without explanation, or that she is truly remorseful.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Agency for Persons with Disabilities, enter a final order denying Petitioner, Jenella Brown’s, request for an exemption from disqualification. DONE AND ENTERED this 11th day of May, 2016, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 2016.
Findings Of Fact As described in Respondent's exhibit 3, on May 18, 1987 Petitioner made application with Respondent for licensure. In response to question 13 about the number of arrests he had had, he noted that in 1947 that he had been arrested for the offense of "None (sic) tax liquor" and the outcome was said to be "six months". This is perceived as reference to the fact that the violation related to a liquor law in which Petitioner says he was given a six month sentence. A Federal Bureau of Investigation offense report, part of Respondent's exhibit 5, speaks to an arrest on February 3, 1949 related to violation of an Internal Revenue regulation of liquor laws and shows a jail commitment upon default of a $500.00 bond. The application also stated that the Petitioner had been arrested several times for fighting, but the cases had been dismissed. Petitioner was licensed by Respondent based upon the 1987 application previously referred to. Subsequent to his licensure he was arrested on November 8, 1987 for battery, in particular spouse abuse. This was an alleged violation of Section 784.03, Florida Statutes. The Florida Department Law Enforcement offense report, part of the Respondent's composite exhibit 3, shows the disposition of the offense by an adjudication of guilt. Petitioner through his testimony identified that he had pled nolo contendere to this offense. As a consequence of this incident he lost his license through revocation proceedings. On May 8, 1989 Petitioner reapplied for licensure. A copy of his application may be found as part of Respondent's composite exhibit 2. In this instance in response to question 13 he indicates that he was arrested in 1958 for making moonshine whiskey and served five months and 29 days. Again this is perceived as an acknowledgment of the offense of February 3, 1949 previously described. In answer to question 13 he also referred to the 1987 offense related to his wife as "spousal abuse" and stated that he had stayed overnight in jail. The Florida Department of Law Enforcement offense report which is part of Respondent's exhibit 3 refers to "2D credit", taken to mean two days credit for the time he had served. In the 1989 application Petitioner sought the assistance of counsel in offering a supplemental answer to question 13 which gives a more complete explanation of the non-tax whiskey case and the 1987 battery. In the course of this explanation by counsel he states that adjudication of guilt was withheld on the plea of nolo contendere for the 1987 offense. Citation is made to the case of Kinney v. Department of State, 501 So.2d 129 (Fla. 5th DCA 1987). In addition a disclaimer is given about other offenses in 1971 for larceny; in 1985 for carrying a concealed weapon; in 1983 for loitering and the belief that these items must pertain to someone other than the present Thomas Felton. Given the close proximity in time of the 1989 application to the loss of the license issued in 1987 through revocation, Petitioner withdrew his request for licensure. In the 1989 application the information that had been placed on the application form had been put there by Petitioner's wife. On February 7, 1990 Petitioner submitted his present application for classes "D" and "G" licenses. On this occasion the form application was filled out by his employer in the person of a Ms. Ross. Petitioner doesn't know what Ms. Ross used as an information base for filling out the 1990 application. She was aware of the fact that he had spent the night in jail in 1987. This is related to the incident with his wife in which he was arrested for battery. In the 1990 application, Respondent's exhibit 1, in answer to question 13 Petitioner says that in April 1948 that he had been arrested for moonshine selling and was given six months. Again this is seen as a comment on the February 3, 1949 incident related to the liquor laws. In the 1990 application he also mentions that he had been arrested several times for fighting and that the cases had been dismissed. He makes no reference to the 1987 incident of battery against his wife. Petitioner describes his omission of the 1987 arrest as that of someone who is careless as opposed to someone attempting to hide the facts. He accurately points out that the Respondent had a record of the 1987 battery offense against his wife. Having considered his explanation in the context of other facts presented, Petitioner is not found to have intended to misrepresent information concerning the 1987 battery offense against his wife when submitting the 1990 application. On March 13, 1990 as shown in the joint exhibit 1, Petitioner rejected the request for licensure. It gave as reasons the existence of the battery charge of November 8, 1987 in that the failure to disclose information about that charge was seen as a fraudulent or willful misrepresentation in applying for the license, in violation of Section 493.319(1)(a), Florida Statutes. Further, the existence of that offense was seen as the conviction of a crime directly related to the business being sought for licensure, in a circumstance where a plea of nolo contendere had been entered, in violation of Section 493.319(1)(c), Florida Statutes. This matter was seen as being in violation of Section 493.319(1)(j), Florida Statutes in that Petitioner was alleged to have committed a battery or use of force or violence against his wife. There is the overall reference within this explanation of denial which allows the agency in certain instances to deny a license for violation of any provision within Chapter 493, Florida Statutes. In particular that reference is Section 493.319(1)(p), Florida Statutes. For all these statutory reasons the application was denied. On March 27, 1990 Petitioner filed a formal petition requesting a hearing. This request was submitted to the Division of Administrative Hearings for consideration. The final hearing ensued. According to Petitioner the incident of spousal abuse occurred as follows: On the night he was arrested he was awakened by his wife who said that their children were fighting and one of those children had a knife. He used a metal walking stick to stop the daughter with the knife and hit his wife on the left forearm which became swollen after that blow. At the time he hit her she was behind him. He was then taken to jail and spent the night. He pled no contest without benefit of consultation with counsel. The judge told him he could go home. At the time he entered his plea he told the judge that he had hit his wife accidentally. Petitioner didn't indicate that he was trying to restrain the wife at the time he struck her. He stated that he was unacquainted with what the wife may have told the police about the incident. When cross-examined Petitioner said that he could not recall if he had been arrested for striking his wife before this incident, but that he didn't think so. He was then confronted with information concerning a 1969 incident of striking his wife and upon being reminded of that circumstance admitted that he had been fighting with his wife in that year. He also acknowledged that he could have been fighting with her in 1967. The wife in 1969 was the same wife as in 1987. The 1969 incident with his wife was felt by the Petitioner to have been another occasion of problems related to his children. As part of Respondent's composite exhibit 5, the Federal Bureau of Investigation offense report, there are items related to "DC" taken to mean disorderly conduct. The disposition of the disorderly conduct case in 1967 is shown as being discharged from municipal court. The 1969 incident of disorderly conduct is one disposed by a fine of $20.00 in municipal court. Both the incident in 1967 and the incident in 1969 occurred in Jacksonville, Florida, as did the 1987 incident with his wife. In her testimony Petitioner's wife says that she was hit on her right hand in the 1987 incident. She testified that the children called the police and that a lady officer took Petitioner to jail. She indicates in the testimony that the Petitioner and his wife were not fighting. She acknowledges that she was hit with a walking cane. She says she told the police that she was hit on her hand by her husband. She said she doesn't know whether she was hit intentionally. She does acknowledge that there was a scuffle of some sort. She states that in the past that she has called the police and that her husband was arrested when they have fought. In 1969 both she and her husband were arrested for that incident, according to the wife. She has no specific recollection about the incident in 1967. On the night that her husband was arrested in 1987 she did not attempt to stop the police from making the arrest. According to Mrs. Felton, at a later time Petitioner told her that he didn't intend to hit her. She says that six or seven kids were involved in the incident from ages 16 to 25. She states that she forgave her husband for the incident on the next day following the November 8, 1987 fracas. Kathy Evans offered testimony. She is an officer with the Jacksonville Sheriff's Department in Jacksonville, Florida. She responded to the incident on November 8, 1987 and arrested the Petitioner. By report that was given to her at the scene after she arrived, gathered from unidentified sources at the scene, she was led to believe that the Petitioner and his wife had had an argument about the children. This lack of identification of the reporters is associated with the officer's inability to recall at hearing who had made the report. By report, Petitioner sided with one of the daughters and the wife favored the other daughter's position. Petitioner got angry with his wife and hit her. In sequence, there had been a verbal argument between the daughters and the parents became involved and the wife was struck. As the officer recalls the nature of the injury, it was to the right arm of the wife and left a black and blue welt. The wife didn't object when the husband was arrested for spouse abuse. The officer observed four people at the scene of the event, two of these people being the Petitioner and his wife and the others the children. Having considered the testimony of the three witnesses who appeared at hearing, the officers account of what she observed after the incident and recount of what she was told at the scene is credited. The explanations by the Petitioner and his wife are not credited. This decision is reached in consideration of the demeanor of those witnesses, their motives for truth and veracity and the fact that they were not forthcoming in the explanation of the incident. Nor has the Petitioner been convincing in any suggestion that the circumstance of his plea of nolo contendere to the offense of battery related to the 1987 incident was under circumstances less than proper. Petitioner through his proof has failed to overcome the presumption created by the nolo contendere plea to the offense. Under the circumstances Petitioner has not shown sufficient rehabilitation to allow licensure following the revocation.
Recommendation Based upon the findings of fact and conclusions of law reached it is recommended that a final order be entered which denies Petitioner's application for class "D" and "G" licenses. RECOMMENDED this 8th day of August, 1990, in Tallahassee, Florida. CHARLES C. ADAMS, 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 8th day of August, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2210 The following discussion is given concerning the proposed facts found in Respondents proposed recommended order. Paragraphs 1-5 are subordinate to facts found. Paragraph 6 is subordinate to facts found with the exception of the second sentence which is rejected. Paragraph 7 is subordinate to facts found. COPIES FURNISHED: The Honorable Jim Smith Secretary of State The Capitol Tallahassee, FL 32399-0250 Ken Rouse, General Counsel Department of State The Capitol, LL-10 Tallahassee, FL 32399-0250 David B. Ferebee, Esquire Tassone and Ferebee 1833 Atlantic Boulevard Jacksonville, FL 32207 Henri C. Cawthon, Esquire Department of State The Capitol, MS #4 Tallahassee, FL 32399-0250
The Issue The issue in the case is whether the application filed by John Stover Mark (Petitioner) for licensure as a resident independent all lines adjuster should be approved.
Findings Of Fact On June 13, 2005, the Petitioner was driving his vehicle and was stopped for unlawful speeding. During the traffic stop, the law enforcement officer discovered that a grand theft warrant had been issued and was outstanding against the Petitioner. Prior to the traffic stop, the Petitioner was unaware of the warrant. The Petitioner was arrested on the warrant and charged with a third degree felony count of grand theft. The Petitioner testified that the charge was related to a claim by his former employer that the Petitioner had stolen tools from a construction job site. According to the Petitioner, he had been employed in the construction industry for many years by the same employer and had become unhappy with the lack of financial support he believed he was receiving from the employer. Eventually, he decided to quit the job and called his employer from the job site to do so. The Petitioner testified that he advised the employer that he was leaving the job and that the tools that belonged to the employer were being left at the job site. The abandoned tools apparently went missing, and the Petitioner was subsequently charged with the theft of the equipment. Although the Petitioner testified that he entered a plea of nolo contendere to the charge upon advice of his public defender, the court records indicate that the Petitioner entered a guilty plea to one count of grand theft, a third degree felony, on July 29, 2005, in Case No. 05-CF-012565, Circuit Court for the Thirteenth Judicial Circuit, Hillsborough County, Florida. The confusion related to the actual plea entered is immaterial to the disposition of this case. In any event, adjudication was withheld, and the Petitioner was sentenced to make restitution and pay court costs and to complete a five-year probationary period. The probation was terminated by order of the Court after approximately two years after the Petitioner had complied with all other requirements of his sentence. The Petitioner was subsequently injured in an automobile accident and through the services of the Department of Education, Division of Vocational Rehabilitation (DVR), received training for another occupation for which he was physically capable. The Petitioner testified that the DVR provided computer equipment and also funded the educational training that was a requirement for licensure as an insurance adjuster. The Petitioner testified that he disclosed the grand theft felony to his DVR counselor, who was apparently unconcerned or unaware that the felony incident posed an impediment to the Petitioner's prospects for licensure as an insurance adjuster. After completing the relevant training, the Petitioner filed an application for licensure as a resident independent all lines adjuster on July 11, 2007. The application contained the following question: Have you ever been convicted, found guilty, or pled guilty or nolo contendere (no contest) to a felony under the laws of any municipality, county, state, territory or country, whether or not adjudication was withheld or a judgment of conviction was entered. The Petitioner answered the question in the affirmative. The Petitioner truthfully answered other questions on the application related to the felony problem and properly disclosed the relevant information. There is no evidence that the Petitioner has failed to disclose the grand theft incident in response to any inquiry material to this case, or has made any attempt to conceal the matter from the Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner's application for licensure as a resident independent all lines adjuster be denied. DONE AND ENTERED this 13th day of May, 2008, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 13th day of May, 2008. COPIES FURNISHED: William Gautier Kitchen, Esquire Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0333 John Stover Mark 8143 Sudbury Drive Port Richey, Florida 34668 Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Sumner, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent, who holds a Florida teaching certificate, on the basis of allegations regarding the Respondent's purchase of crack cocaine.
Findings Of Fact The Respondent, Wayne Thurston, holds Florida teaching certificate number 479646, covering the area of physical education, which is valid through June 30, 1995. During the period from April 1991 to July 1991, the Respondent was employed as a teacher at James H. Bright Elementary School, in the Dade County School District. On April 5, 1991, Detective Laurick Ingram was working as an undercover police officer with the Metro-Dade Police Department, assigned to a tactical narcotics team detail. As part of his assignment, Detective Ingram was posing as a seller of cocaine in what is termed a "reverse sting" operation. It was an operation in which several undercover police officers posed as sellers of crack cocaine at premises which were previously know by the police to be the location of frequent drug sales. The reverse sting operation in question took place in the front yard of a house located at 2520 N.W. 159th Street, Miami, Florida. At approximately 8:00p.m. on the evening of April 5, 1991, the Respondent approached Detective Ingram at the location described above and asked the Detective for $20.00 worth of cocaine. Detective Ingram gave the Respondent two rocks of crack cocaine and in exchange the Respondent gave Detective Ingram $20.00. Detective Ingram did not conduct any tests on the substance sold to the Respondent to verify that it was, in fact, cocaine. However, it is the regular and consistent practice of the Metro-Dade Police Department, in conjunction with reverse sting operations, to use genuine cocaine. Detective Ingram then gave a signal to one of the other police officers and one of the other police officers then arrested the Respondent. The Respondent was processed and was subsequently charged by information in the Circuit Court for Dade County with one count of purchasing cocaine and one count of possession of cocaine. On or about July 11, 1991, the Respondent was accepted into the Dade County Drug Treatment Pretrial Release Program. During the period from February 27, 1992, to May 7, 1992, the Respondent was subjected to urinalysis examinations on eighteen occasions and on each occasion the results were negative for use of drugs. Ms. Joanne Goberna Molina has been the principal of James H. Bright Elementary School since January 23, 1992. During the year that she has been the principal at that school, the Respondent's performance as a teacher has been acceptable. During that period the Respondent has not been tardy. The fact that the Respondent was arrested has received very little notoriety among the faculty, staff, students, or parents of the school where he works.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a final order be issued in this case to the following effect: Concluding that the Respondent is guilty of the violation alleged in the Administrative Complaint and imposing a penalty consisting of a three year period of probation, which probation shall include the requirements that the Respondent: Shall make arrangements for his immediate supervisor to provide the EPC with quarterly reports of his performance, including, but not limited to, compliance with school rules and school district regulations and any disciplinary actions imposed upon the Respondent; Shall make arrangements for his immediate supervisor to provide the EPC with a true and accurate copy of each written performance evaluation prepared by his supervisor, within ten days of its issuance; Shall satisfactorily perform his assigned duties in a competent professional manner; Shall violate no law and shall fully comply with all district and school board regulations, school rules, and State Board of Education Rule 6B-1.006; and Participate fully and to its completion in a substance abuse program and submit to random drug testing as directed by his employer or the Education Practices Commission. DONE AND ENTERED this 27th day of July, 1993, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, 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 27th day of July, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-7063 The following are my specific rulings on all proposed findings of fact submitted by all parties. Findings submitted by Petitioner: Paragraphs 1, 2, 3, 4, 5, 6, and 7: Accepted in whole or in substance. Paragraphs 8 and 9: Rejected as constituting primarily argument about conflicting testimony, rather than specific proposed findings of fact. Paragraph 10: Rejected as subordinate and unnecessary details. Paragraph 11: First sentence rejected as unnecessary procedural details. Second sentence rejected as subordinate and unnecessary details. Paragraph 12: Rejected as based on speculation or conjecture, rather than on reliable evidence. Paragraph 13: Accepted in substance with some unnecessary details omitted. Findings submitted by Respondent: Paragraph 1: This paragraph is rejected because as stated it is nothing more than an unnecessary summary of the allegations of the Administrative Complaint. (It should be noted, nevertheless, that findings have been made to the effect that the acts alleged in the Administrative Complaint have been proved.) Paragraphs 2 and 3: These paragraphs are rejected as constituting summaries of testimony, rather than statements of specific proposed findings of fact. (It should be noted, nevertheless, that findings have been made consistent with the testimony summarized in these two paragraphs.) Paragraph 4: Rejected as constituting argument about the quality of the evidence, rather than a statement of a specific proposed finding of fact. Paragraph 5: Rejected as constituting a summary of testimony, rather than a statement of a specific proposed fact. Also rejected for the reason that the exculpatory explanation offered by the Respondent has not been credited. Paragraph 6: Rejected as constituting argument about the quality of the evidence, rather than a statement of a specific proposed finding of fact. Paragraph 7: The first line is rejected as not supported by persuasive, credible evidence. The remainder is rejected as subordinate and unnecessary details. Paragraphs 8, 9, 10, 11, and 12: Accepted in whole or in substance. COPIES FURNISHED: William T. Jackson, Esquire Department of Education 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 William du Fresne, Esquire Du Fresne and Bradley 2929 Southwest Third Avenue Suite One Miami, Florida 33129 Dr. Karen B. Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry Moore, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Sydney H. McKenzie, Esquire General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
