The Issue The issue in the case is whether the Respondent is quilty of the violation alleged in the Administrative Complaint; and, if so, what penalty should be imposed.
Findings Of Fact The Respondent was certified by the Commission on February 28, 1992, and was issued Law Enforcement certificate number 122723. (Stipulation) The Respondent was employed as a Special Agent for the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, from September 13, 1991, to October 18, 1996. (Stipulation) Kenneth Hunter is employed as a deputy sheriff with the Leon County Sheriff's Office, and has been so employed since July 5, 1989. Deputy Hunter has known the Respondent since 1991, when they attended law enforcement academy together. Deputy Hunter and the Respondent kept in touch over that period of time. On June 17, 1995, at approximately 9:00 a.m., the Respondent called Deputy Hunter at his residence. The Respondent told Deputy Hunter that the Respondent's brother, Reverend Gregory James, had been beaten up by Colby Richardson, and that Richardson had stolen some money from his brother, a local minister. The Respondent told Deputy Hunter that the amount stolen was $1,500.00. Some of the money which was taken was money which Reverend James had withdrawn intending to give it to the Respondent. The Respondent stated to Hunter that the prior evening he had spoken to Colby Richardson, and that Mr. Richardson had agreed to return the money taken from Reverend James. The Respondent asked Deputy Hunter to accompany him to Quincy, Florida, to find Richardson. When Respondent called Hunter, the Respondent was on his way to Pensacola, Florida, for a professional course, and was driving his state-issued vehicle which was equipped with a police radio and strobe light. The Respondent picked up Deputy Hunter at Hunter's residence, and introduced Hunter to Reverend James, who was riding in the back seat of the vehicle. Deputy Hunter asked the Respondent why his brother had not reported the robbery, and the Respondent stated that his brother was well known in the community, and did not want to make "a big stink" about it. The Respondent, Deputy Hunter, and Reverend James traveled to Quincy, Florida. While in Quincy, the Respondent spoke to two females who knew Mr. Richardson, and gave the Respondent the telephone number of Mr. Richardson's girlfriend, Rosilyn Copeland. The Respondent telephoned Ms. Copeland and asked for and received directions to her residence. The Respondent, Respondent's brother, and Deputy Hunter traveled to Ms. Copeland's residence in Quincy, Florida. The Respondent knocked on the door, and when Ms. Copeland answered the door, introduced himself as "Agent James," and introduced Deputy Hunter as "Officer Hunter." The Respondent was wearing black pants, a black polo shirt, and a black baseball cap. A conflict in the testimony exists regarding whether the Respondent, who was wearing a badge on a chain around his neck, removed his Special Agent badge from beneath his shirt and showed it to Ms. Copeland. Ms. Copeland later believed that the Respondent was a law enforcement officer who was looking for Mr. Richardson to recover money Mr. Richardson had stolen from Respondent's brother. The Respondent testified at hearing, and stated he was wearing a black shirt on the day in question, and his badge could have been visible. Deputy Hunter gave a statement to the investigator. It is noted that Hunter was also outside his jurisdiction and was the subject or the potential subject of an investigation into his activities in association with the Respondent during this incident. Hunter stated that he never identified himself to anyone they met, and that the Respondent identified himself as “Agent James” and him as “Deputy Hunter.” Hunter stated that he informed the Respondent that it was inappropriate to introduce themselves as officers, and told him not to do that. The Respondent continued to talk with Ms. Copeland about Mr. Richardson's location, and Ms. Copeland told them that she had driven Mr. Richardson to his mother's house. The Respondent asked Ms. Copeland how he could get in touch with Mr. Richardson, and she stated that she would call Mr. Richardson. Ms. Copeland contacted Mr. Richardson on the telephone, and the Respondent, who was standing outside, entered the apartment and took the telephone from Ms. Copeland. The Respondent talked to Mr. Richardson and told him that he had better give back the money. The Respondent told Deputy Hunter to talk to Mr. Richardson. Mr. Richardson stated to Hunter that he wanted to return the money, but was worried about what would happen to him. Deputy Hunter informed Mr. Richardson that nothing would happen to him, and that they only wanted the money back. Mr. Richardson stated that he didn't have all of the money, but would have it by 1:00 p.m. The Respondent gave Mr. Richardson a pager number with which to get in touch with him when Richardson had the money. The Respondent, his brother, and Hunter left Copeland’s, and drove to the residence of Bruce (last name unknown), where the robbery had occurred. Bruce was not there when they arrived, but they met Bruce driving up as they drove away. In the conversation that followed, the Respondent identified himself as Agent James. The Respondent was confrontational with Bruce and accused him of setting his brother up. Bruce denied having been involved, but Hunter was suspicious of Bruce’s version of events. Deputy Hunter told the Respondent that the facts did not sound right, and that they should report the matter to local law enforcement. The Respondent, Deputy Hunter and Reverend James went to the local police department; however, they were advised that the Gadsden County sheriff had jurisdiction. They did not seek assistance from the sheriff's department because of a personal conflict between Respondent's brother and the watch officer at the sheriff's department. Thereafter, the Respondent called Ms. Copeland to find out where Mr. Richardson was living. The Respondent, Reverend James, and Deputy Hunter traveled to the area known as Coon Bottom in the vicinity of State Road 12 in Gadsden County looking for Mr. Richardson. They encountered three boys, and the Respondent identified himself as Agent James. He asked them if they knew where Mrs. Richardson lived, and the boys pointed out her house. The Respondent, Respondent's brother, and Deputy Hunter went to her house and asked her where her son, Colby, was. When she asked why they wanted to know, the Respondent identified himself as "Agent James" and stated that they were looking for Colby. Ms. Richardson stated that she did not know where he was. Deputy Hunter wrote the Respondent's beeper number on the back of his (Hunter's) business cards, gave it to Ms. Richardson, and they left. Later that day, when Colby did not contact them, Deputy Hunter again suggested to the Respondent and Reverend James that they report the offense to the local sheriff. They obtained the mobile number of an investigator with the local Sheriff's Office. Reverend James dialed the number and handed the phone to Deputy Hunter who advised the sheriff investigator of the information as he knew it. On March 18, 1996, eight months after the incident, the Respondent gave a sworn statement to Internal Inspector John W. Harris of the Department of Business and Professional Regulation. Prior to giving his statement, the Respondent was allowed to review the statements previously given by Ms. Copeland and Deputy Hunter. The Respondent was placed under oath and notified that giving a false statement under oath constituted perjury. The Respondent stated to the investigator that he was in Tallahassee on June 17, 1995, on his way to a Narcotics Investigations Identification school in Pensacola. The Respondent stated that he and Deputy Hunter traveled to Quincy in his state vehicle to find the individual identified as Colby Richardson, who had robbed his brother. The Respondent stated that he was driving his police car, carrying his weapon and wearing his badge around his neck. Respondent stated they went to Colby Richardson's girlfriend's house, and that he introduced himself as "James" and that he introduced Deputy Hunter as "Hunter." When the Respondent was asked if he introduced himself as "Agent James" to Ms. Copeland, he stated, "No, I just said James." When asked if he had shown Ms. Copeland a badge, he stated, "No, I can't recall showing her a badge." When he was again asked if he reached inside his shirt and pulled out his badge to show her, he stated, "No, not that I can recall." The Respondent was asked if he showed his badge to anyone while he was near Colby Richardson's mother's house. The Respondent stated that he did not show his badge to the juveniles nor to Ms. Richardson. Respondent admitted that he wore his badge on a chain around his neck, and that he had it on his neck when he was talking to Ms. Copeland. The Respondent believes that Ms. Copeland knew that he was wearing a badge because she could see the outline of the badge under his shirt. There is no evidence and it is not alleged that Respondent knew at the time of the incident that his brother had not been robbed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That Respondent be found guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes, (1995), and that Respondent's certifications be suspended for a period of twelve months and until he presents evidence to the commission that he has taken such courses as the commission may direct on professional responsibility. DONE AND ENTERED this 30th day of December, 1998, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1998. COPIES FURNISHED: Richard D. Courtemanche, Jr., Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Theodore E. Mack, Esquire Powell & Mack 803 North Calhoun Street Tallahassee, Florida 32303 A. Leon Lowry, II, Director Criminal Justice Standards and Training Commission 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 The Petitioner, Lawrence A. Grolemund, has been in the securities business for over 21 years. Except for two complaints--one in 1986 and a second 1988--he has not been the subject of complaint or investigation by the National Association of Securties Dealers (NASD) or any state. He earned a reputation as a successful securities dealer and, as his career progressed, as manager of securities dealership branch offices. As branch manager, one of Grolemund's primary responsibilities was to insure that his office functioned in compliance with applicable state and federal law, and the rules of the NASD. Due to the reputation Grolemund had earned, the Chairman of the Board of Prudential Bache Securities, Inc., personally recruited Grolemund as a branch manager. After a training period, Grolemund assumed duties at the company's New Orleans office in August, 1982. He did not become a registered options principal for the New Orleans office until December, 1982. For several years before Grolemund's arrival, the company's New Orleans office had been a "problem office." A disproportionate share of securities violations occurred in that office, and management had difficulty controlling the associated persons in the office to achieve compliance. Several branch managers who preceded Grolemund had been disciplined by the NASD for inadequate supervision of the office. Grolemund knew some of the problems--he was hired to try to correct them--but he did not know the extent of the problems he would face when he took over. On August 25, 1986, the District 5 Business Conduct Committee filed a complaint against Howard Hampton, E.F Hutton & Company, Inc., Prudential-Bache Securities, Inc., Grolemund and others. The gist of the complaint is that Hampton committed various violations of the Securities and Exchange Act, SEC rules and NASD rules while an associated person with E.F. Hutton and with Prudential-Bache. Hampton was with E.F. Hutton from February, 1981, through August, 1982, and was with Prudential-Bache in the New Orleans office from August, 1982, through February, 1984. The violations involve Hampton's dealings with clients he brought with him from E.F. Hutton to Prudential-Bache. Most of the violations involve the exercise of discretionary power in the accounts of clients without prior written authorization. Some of the alleged incidents occurred while Hampton was at E.F. Hutton. Some occurred while Hampton was at Prudential-Bache but before Grolemund arrived at the New Orleans office. Some occurred after Grolemund arrived but before he became an options principal for the office. In some cases, the information in the file on which Grolemund had to rely was incorrect. Grolemund fired Hampton in December, 1983. (At the time Hampton was fired, no complaints had yet been leveled against Hampton. In fact, all of the clients who ultimately complained against Hampton went with Hampton when he was fired from Prudential-Bache.) Grolemund also fired some other "unsavory" account executives in the New Orleans office. Grolemund was charged, along with other Prudential-Bache options principals, with failure and neglect to establish, maintain, and/or enforce written procedures which would enable Prudential-Bache to exercise reasonable and proper supervision of Hampton and with failure and neglect to supervise Hampton reasonably and properly. Grolemund was represented in the proceedings before the district committee by in-house counsel for Prudential-Bache. Otherwise, Grolemund did not have independent advice of counsel. Prudential-Bache was involved in other proceedings before the SEC which made it in its best interest to resolve the matters arising out of the New Orleans office. For several months, Prudential- Bache tried to convince Grolemund to settle. In addition, Grolemund was concerned whether the District 5 Business Conduct Committee would fairly consider the complaint against him. As part of his successful management of Prudential-Bache's New Orleans office, he competed directly against other securities dealers in the area, some of which were represented on, or had friends who were on, the Committee. When Grolemund came to New Orleans, there were 16 account executives in the office. Under his term of management, after he fired four to five account executives, including Hampton, the New Orleans office grew from 16 to 36 account executives. In addition, Grolemund opened satellite offices in Shreveport and Lafayette, Louisiana. These offices grew in size to 11 and 9 account executives, respectively. Many of the account executives Grolemund added were recruited away from competitors, and he was concerned that there might be hard feelings against him among the members on the Committee. After spending considerable time weighing all factors, Grolemund agreed on or about November 3, 1987, to settle the Hampton matter on terms that included acceptance of a finding that he was guilty of the allegations against him and acceptance of a censure, a 21-day suspension, a requirement that he re- qualify as a registered options principal, and a $7,500 fine. The settlement was reduced to writing in final form on April 25, 1988. As a result of the 21-day suspension, another options principal at Prudential-Bache was required to sign all options agreements during the suspension. Otherwise, Grolemund's job was the same as before the suspension, and Grolemund continued to receive his full normal compensation from Prudential- Bache. Prudential-Bache paid the fine for Grolemund. Re-qualification was a matter of passing a written examination, which did not present a problem for Grolemund. In agreeing to settle, Grolemund misunderstood that the district committee's action would not be the basis of any other proceedings against him. He also misunderstood that the offer of settlement would resolve all pending matters involving the New Orleans office, including the so-called Keel matters. Contrary to Grolemund's understanding, the NASD filed another complaint against Prudential-Bache and Grolemund on May 9, 1988. This complaint, which had been under investigation during the time the Hampton case was proceeding, involved an account executive named Patrick Keel. Like Hampton, Keel was alleged to have exercised discretionary power in the accounts of clients without prior written authorization. He also was alleged to have recommended unsuitable stock and option investments to two clients and to have falsely reported to Prudential-Bache that some of his clients enjoyed profits from the investments he had recommended and made for them, when in fact they had incurred losses. As with the Hampton matter, Grolemund was accused of having failed to establish, maintain, and enforce written supervisory procedures that would have enabled him to exercise proper supervision of Keel and of having failed to properly supervise Keel. The Keel matter went to hearing before the District 5 Business Conduct Committee on August 24-25, 1989. As to what it called Cause One, the Committee found that Keel engaged in unauthorized and unsuitable options transactions in the account of one customer and that Grolemund had failed to supervise Keel properly in connection with the options transactions. Under Cause Two, the Committee found that Keel made unauthorized and unsuitable stock and options transactions in the account of another customer and that Grolemund had ample early warning that Keel was not handling his options accounts properly. The Committee noted that in October, 1984, the customer had lodged complaints regarding Keel's options trading and that Grolemund had daily conversations with a superior concerning problems with Keel's options accounts. The Committee found that, even if Grolemund did not have the benefit of the early warnings of irregularity, his response to the concerns raised by the customer in her December 10, 1984, telephone conversation was inadequate. The Committee found that, given the customer's refusal to sign the activity letter that Grolemund sent her, it was incumbent upon Grolemund to determine whether the customer understood options, whether options transactions were consistent with her financial situation, and whether she had approved the options transactions before their execution. The Committee found that Grolemund did not compile and review the customer's account documentation, which would have revealed that options trading was inconsistent with her objectives and needs and that the customer was only approved for Level II trading although Keel had executed two Level III transactions. Accordingly, the Committee found that Grolemund had violated Article III, Sections 1 and 27 of the Rules of Fair Practice by failing to supervise Keel properly. Under Cause Three, the Committee found that Keel recommended to a customer (the same customer involved in Cause Two) that she commit 25-30% of her net worth to a Hawaiian real estate private placement tax shelter that was not consistent with the customer's needs and objectives. However, the Committee noted that there was conflicting evidence as to whether Grolemund had reviewed the recommendation in light of the customer's personal financial strategy form. Although it was not Grolemund's job at Prudential-Bache to review suitability determinations with respect to private placements, the Committee expressed the view that Grolemund was in the best position to supervise the recommendations of salesmen and that he could not delegate this responsibility to other departments. Accordingly, the Committee found that Grolemund had violated Article III, Sections 1 and 27 of the Rules of Fair Practice under Cause Three. As to Causes Four through Eleven, the Committee dismissed all but two for insufficient evidence. As for the two that were not dismissed, the Committee found that Keel exercised discretion in the accounts of customers without prior written approval and that Grolemund failed to exercise proper supervision over Keel. The Committee reasoned that, by the time at issue, Grolemund had adequate warning of Keel's exercise of discretion without authority and that Grolemund allowed Keel not only to continue options trading but also allowed Keel to continue using special telephone and "bunching" privileges that, in the Committee's view, "greatly facilitated Keel's exercise of discretion." The Committee dismissed Cause Twelve to the extent that it alleged that Grolemund failed to supervise Keel reasonably with respect to the submittal of inaccurate active account information reports by him. The Committee, in its June 21, 1990, decision, censured Grolemund, barred him from associating with any NASD member in any principal capacity and fined him $4,000. Under the bar, Grolemund would not have been permitted to apply for reinstatement for at least ten years. Based on this decision, and the earlier disposition of the 1986 complaint in the Hampton matter, the Department offered to conditionally grant Grolemund's application, prohibiting Grolemund from acting as a principal, supervisor or manager. When Grolemund refused to accept the conditions, the Department denied the application. Grolemund appealed the Committee decision in the Keel matter to the Board of Governors of the NASD. The appeal was heard on October 11-12, 1990. On appeal, the Board reversed the finding that Keel executed out-of-level options transactions. The Board also noted that the record demonstrates a high degree of direct interaction between Grolemund, Keel, Keel's clients, and Prudential-Bache's operations manager and that the firm's records distribution system may have prevented Grolemund from exercising greater supervision over Keel. Because branch managers did not receive copies of customer information relating to limited partnerships, such as the Maui/Waikiki deal, Grolemund had no opportunity to assess the suitability of Keel's customer for the offering, or to compare the documents that Keel had completed in connection with that deal with other account information regarding the customer. The Board also noted that Grolemund engaged in more-than-adequate follow-up with clients following the receipt of complaints and that the customer may have been less than candid regarding her lack of understanding of the investments that Keel recommended for her account. Nonetheless, the Board believed that Grolemund fell short of the standard of reasonable supervision in that it should have been clear to Grolemund that Keel had not been properly trained and lacked a basic understanding of the practices of the securities industry. The well-documented problems that Keel's options trading caused with respect to customers' margins, and Keel's documented confusion of cash and margin accounts, certainly should have put Grolemund on notice that Keel lacked sufficient training to engage in such risky trading strategies as writing options. The Board also thought Grolemund should have inquired why there was no options agreement on file for one customer until after options trading in her account had ceased. The Board concurred with the Committee that Grolemund fell below the standard of reasonable supervision, and thereby violated Article III, Section 1 and 27 of the Rules of Fair Practice. The Board of Governors affirmed the censure and $4,000 fine against Grolemund. However, in light of the various mitigating factors regarding Grolemund's overall conduct, the Board ruled that barring him as a principal was an excessively harsh penalty. Instead, the Board suspended him from acting in any principal capacity for seven days and required him to requalify by examination in all principal capacities. In July, 1985, long before either the Hampton or the Keel complaint was filed, Prudential-Bache promoted Grolemund to the new Tampa office. When Grolemund took over as branch manager, the Tampa office was only nine months old. Grolemund successfully managed the Tampa office until May, 1990, when he applied for registration as an associated person with Advest, Inc. During Grolemund's time as branch manager, the Tampa office grew to 35 account executives. The evidence proved that no violations occurred in the Tampa office during the almost five years that Grolemund was the branch manager there. Since the Hampton and Keel matters, the securities industry has changed remarkably, in part as a result of the October, 1987, stock market crash. Before the crash, options trading generally was viewed as a conservative investment--a way to participate in the market with limited resources and to provide an additional source of income from a conservative investment. The risks of options trading now are widely recognized, and management generally has become sensitive and responsive to those risks. In addition, the data processing and informations systems now in general use in the industry have given management new and effective tools for supervising the activities of account executives. Some of these systems make it impossible for some of the Hampton and Keel violations to occur today. For example, the systems will not process options trades for which there is no record of prior written authorization in the file. For these reasons, it is not likely that activities such as those in which Hampton and Keel were involved in 1981 through 1984 would go undetected today by a manager of Grolemund's caliber or that, detected, they would go unchecked. Advest, Inc., the securities dealer that wants to associate Grolemund to manage its new Clearwater office, is a respectable securities dealer that places reasonably strong emphasis on compliance with the requirements of the various regulatory agencies under which it must operate. It specializes in relatively safe investments, certainly as compared with the activities of the New Orleans office of Prudential-Bache in the early 1980s. Options trading represents only 14 to 15 percent of Advest's total business nationwide. Less than six percent of the business of its new Clearwater office consists of options trading. Advest's compliance department generates a monthly computer report called a "commission versus equity" run which displays the account name and number, the account executive's number, gross commission generated for the month and year, the number of trades for the month and year to date, the amount of cash and securities in the account, and the value of the account in relationship to the trading on a percentage basis. Some variation of the report is provided to the branch managers, to the division managers, and to the branch group manager, with each higher level of management getting more and more information in the report. An options activity report is produced in the Advest compliance department on a daily basis listing all accounts that traded outside their levels, if any, and any accounts that have a trade executed where the appropriate forms are not on file within the allowed period. Advest compliance sends out active account letters to verify customer satisfaction. If the customer does not respond within ten days, a second letter is sent. If the customer does not respond to the second letter within ten days, the account is restricted from further activity. The Advest compliance department reviews all aspects of the branch offices on an annual audit. Compliance then issues a report to the branch manager, the division manager, and the branch group manager. The computer generated commission report would automatically detect a trade executed by a registered representative not assigned to the account for which the trade is completed and would place an asterisk around the account executive number. The manager would then be contacted by the compliance department and asked to explain the discrepancy. In addition to the ordinary compliance procedures in place at Advest, to address the concerns of the Department and other regulatory agencies, Advest proposes several measures to reduce even further the likelihood of violations in the new Clearwater office to which it will assign Grolemund as branch manager. First, it will limit the number of account executives under Grolemund to 15 or less for the first year. Second, it will require another senior registered options principal to supervise the options trading along with Grolemund for the first year. Third, Advest's branch group manager or another Florida branch manager will personally visit Grolemund's office four times during the first year to monitor compliance; during the second year, either he or another Florida branch manager will personally visit Grolemund's office for this purpose at least twice. Fourth, two annual routine compliance monitoring visits will be made, instead of the usual one visit. Finally, the branch group manager personally will review all new account information from Grolemund's office weekly.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Banking and Finance enter a final order granting Grolemund's application for registration as an associated person with Advest, Inc., subject only to the following conditions: First, that Advest limit the number of account executives under Grolemund to 15 or less for the first year; Second, that Advest require another senior registered options principal to supervise the options trading along with Grolemund for the first year. Third, that Advest's branch group manager or another Florida branch manager will personally visit Grolemund's office four times during the first year to monitor compliance and that, during the second year, either he or another Florida branch manager personally visit Grolemund's office for this purpose at least twice. Fourth, that Advest make two annual routine compliance monitoring visits to Grolemund's office, instead of the usual one visit. Finally, that the branch group manager personally review all new account information from Grolemund's office weekly. RECOMMENDED this 21st day of February, 1991, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-5880 To comply with the requirements of Section 120.59(2), Florida Statutes (1989), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Accepted and incorporated. Rejected in part in that the Department did not consider the order of the Board of Governors of the NASD on appeal from the order of the District 5 Business Conduct Committee on the 1988 "Keel" complaint before giving notice of intent to deny the application. Otherwise, accepted and incorporated. Accepted and incorporated. Rejected in the sense that final action has not yet been taken. As it refers to Department notice of intended action, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. 8.-10. Accepted but subordinate and unnecessary. Rejected as not proven. Also, subordinate and unnecessary. Accepted but subordinate and unnecessary. First sentence, accepted and incorporated. Second sentence, rejected as not proven exactly when the uniform guidedlines went into effect. Rejected as not proven exactly when the uniform guidedlines went into effect. Accepted and incorporated to the extent not subordinate or unnecessary. 16.-17. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Accepted but unnecessary. Rejected as not proven that the system was in operation since 1980. 21.-23. Accepted but subordinate and unnecessary. 24. Accepted and incorporated. 25.-28. Accepted and incorporated. 29. Accepted but subordinate and unnecessary. 30.-36. Accepted and incorporated. Rejected as not proven. Accepted but subordinate and unnecessary. Accepted but subordinate to facts contrary to those found and unnecessary. First clause, accepted; second clause, rejected consistent with the NASD orders. Accepted but subordinate to facts contrary to those found and unnecessary. Accepted but subordinate and unnecessary. 43.-46. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated in the form of the findings of the Board of Governors of the NASD on appeal from the 1988 "Keel" complaint. Accepted but unnecessary. 49.-50. Accepted and incorporated. 51.-52 Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Accepted and incorporated. Accepted but subordinate and unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated. Respondent's Proposed Findings of Fact. 1.-2. Accepted and incorporated. Rejected as conclusion of law and unnecessary. Rejected that the orders were entered in 1986 and 1988; otherwise, accepted and incorporated. 5.-7. Rejected as conclusion of law and unnecessary. 8.-12. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but unnecessary. Accepted that the Committee characterized its decision in those terms by way of explaining why it was just to differentiate between Prudential-Bache and its representatives, including Grolemund, and E.F. Hutton and its representatives. However, in fact, the various dispositions were agreed by the parties. It is unnecessary to include this finding. 15.-18. Accepted and incorporated. 19. Accepted but unnecessary. 20.-21. Accepted and incorporated. 22. Accepted but unnecessary. COPIES FURNISHED: Edward W. Dougherty, Esquire Mang, Rett & Collette, P.A. 660 East Jefferson Street Tallahassee, Florida 32302 Margaret S. Karniewicz, Esquire Assistant General Counsel Department of Banking and Finance Legal Section The Capitol Tallahassee, Florida 32399-0350 Hon. Gerald Lewis Comptroller The Capitol Tallahassee, Florida 32399-0350 William G. Reeves, Esquire General Counsel Department of Banking and Finance The Capitol Plaza Level, Room 1302 Tallahassee, Florida 32399-0350
The Issue Whether Respondent, a licensed all lines adjuster, committed the offenses alleged in the Amended Administrative Complaint; and, if so, what penalties should be imposed.
Findings Of Fact The Department is a licensing and regulatory agency of the State of Florida charged with, among other duties, the responsibility and duty to enforce the provisions of the Florida Insurance Code, which consists of Chapters 624-632, 634, 635, 641, 642, 648, and 651, Florida Statutes (2002). See § 624.307(1), Fla. Stat. (2002). Respondent has been continuously licensed in the State of Florida as an independent all lines adjuster authorized to transact insurance adjusting business since August 1986. On January 1, 1999, at approximately 11:55 p.m., Respondent was driving his Ford Bronco in Tampa, Florida. Hillsborough County Sheriff's Deputy White noticed that Respondent's license tag appeared to be expired. He followed Respondent for about a quarter of a mile, while he ran Respondent's tag number through the computer to determine whether it was, in fact, expired. Upon receiving an affirmative response, Deputy White pulled over Respondent's vehicle. Reserve Deputy McLaughlin was riding with Deputy White. Deputy McLaughlin approached Respondent's car and immediately detected a strong odor of burning marijuana. Deputy White then approached the car and confirmed the smell of marijuana smoke. The deputies asked Respondent for permission to search his vehicle. According to both deputies, Respondent not only gave them permission to search his car, but told them where they could find the marijuana, which was inside a black travel bag on the back seat of the car. Both deputies testified that Respondent told them he had received the marijuana as a Christmas gift. Respondent was arrested for possession of more than 20 grams of cannabis, a third-degree felony pursuant to Subsection 893.13(6)(a), Florida Statutes (1998). At the hearing, Respondent testified that the black travel bag containing the marijuana belonged to an acquaintance to whom he had earlier given a ride. Respondent testified that he did not know the marijuana was in the car until the deputies found it and denied having told the deputies where to find it or that it was a Christmas gift. Respondent's testimony on these points was not credible. On or about February 12, 1999, a one-count information was filed in the Circuit Court of the Thirteenth Judicial Circuit, Hillsborough County, charging Respondent with possession of cannabis in violation of Subsection 893.13(6)(a), Florida Statutes (1998), a third-degree felony. On September 30, 2002, Respondent entered a plea of nolo contendere to the charge, which was accepted. Adjudication of guilt was withheld, and Respondent was placed on probation for a period of six months and ordered to perform 50 hours of community service. Respondent successfully completed his probation, and an order terminating probation was entered on February 5, 2003. After Respondent's arrest, but before the disposition of his case, the Department received an unrelated complaint concerning the manner in which Respondent was handling claims. Ms. Raulerson, a Department investigator, performed an investigation. She discovered that the Department did not have a current resident address for Respondent and obtained the correct address through Respondent's father. On January 3, 2002, Ms. Raulerson issued a letter of guidance to Respondent regarding the subject matter of the investigation. Ms. Raulerson's letter also reminded Respondent of his obligation to notify the Department of changes in his principal business, residence, and mailing addresses. She enclosed a copy of the appropriate form on which to notify the Department of address changes. During her investigation of Respondent's claims handling, Ms. Raulerson had a telephone conversation with Respondent. Ms. Raulerson mentioned that, unrelated to her investigation, the Department had received information indicating that Respondent had been charged with a felony. Respondent told Ms. Raulerson that the charge had been dismissed. Ms. Raulerson responded that if the charges had been dismissed, Respondent would be prudent to forward the paperwork to the Department so that its records could be corrected. In October 2002, Mr. Wilds, a Department investigator, was assigned to investigate whether Respondent had been convicted of, or pled guilty or nolo contendere to a felony, and had failed to notify the Department of his conviction or plea. Mr. Wilds was unable to contact Respondent at the addresses in the Department's files, which indicated that Respondent did not take the advice in Ms. Raulerson's letter of guidance. Mr. Wilds added the failure to notify the Department of his address change to his investigator. Mr. Wilds contacted the Hillsborough County Circuit Court to request documentation regarding the outcome of Respondent's criminal case. In response, the Hillsborough County clerk's office provided Mr. Wilds with certified documents indicating that Respondent had pled nolo contendere and been placed on probation. Mr. Wilds next contacted the Department of Corrections to obtain information on Respondent's probationary status. By letter dated December 6, 2002, Respondent's probation officer, Robert Hughey, confirmed that Respondent was serving a probationary period of six months, commencing September 30, 2002, and scheduled to terminate on March 29, 2003. Subsection 626.621(11), Florida Statutes (2002), provides that the following constitutes grounds for the discretionary discipline of an agent's licensure: (11) Failure to inform the department or office in writing within 30 days after pleading guilty or nolo contendere to, or being convicted or found guilty of, any felony or a crime punishable by imprisonment of 1 year or more under the law of the United States or of any state thereof, or under the law of any other country without regard to whether a judgment of conviction has been entered by the court having jurisdiction of the case. Respondent failed to report to the Department, within 30 days of doing so, that he entered a plea of nolo contendere to a third-degree felony charge of possession of cannabis on September 30, 2002. Respondent testified that he did not inform the Department of his plea of nolo contendere to a felony because Mr. Hughey assured him that he had already notified the Department. The evidence establishes that Mr. Hughey contacted the Department only after Mr. Wilds requested information as to Respondent's probationary status and that this occurred more than 30 days after Respondent entered his plea. However, Respondent's reliance on Mr. Hughey militates against a finding that Respondent's failure to notify the Department was willful. As to the failure to notify the Department of his address changes, Respondent testified that he has always relied on his employers to notify the Department of his address when appointment papers are filed on his behalf and that there was never a problem until these investigations commenced. While Respondent's reliance on his employers does not absolve him of the personal responsibility envisioned by Section 626.551, Florida Statutes (2002), it does militate against a finding that Respondent's failure to notify the Department of his address changes was willful. Respondent's insurance license has not been previously disciplined in the State of Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order finding Respondent guilty of violating Subsection 626.621(8), Florida Statutes (2002), as alleged in Count I of the Amended Administrative Complaint; guilty of violating Subsection 626.621(11), Florida Statutes (2002), as alleged in Count II of the Amended Administrative Complaint; and guilty of violating Section 626.551, Florida Statutes (2002), as alleged in Count III of the Amended Administrative Complaint. It is further RECOMMENDED that Respondent's licensure as an all lines adjuster be suspended for three months for the violation of Count I, for three months for the violation of Count II, and for two months for the violation of Count III, with the suspensions for Counts II and III to run concurrently. DONE AND ENTERED this 30th day of April, 2004, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 30th day of April, 2004.
The Issue Whether respondent violated Section 112.3142(2)(b), Florida Statutes, with regard to her 1996 financial disclosure obligations, and, if so, what penalty is appropriate.
Findings Of Fact Respondent, Eileen McGuire, is now and at all times material to this proceeding has been a member of the Town Council of the Town of Welaka, Florida. As a public official, Respondent is subject to the applicable requirements of Chapter 112, Florida Statutes. Respondent was first appointed to the Welaka Town Council (Town Council) on October 24, 1995. Subsequently, she was elected to the Town Council in March 1996, and was re-elected in 1998. As an elected public official, Respondent was required to file an annual CE Form 1, Statement of Financial Interests (Statement of Financial Interests), for the year 1996 with the Supervisor of Elections Office of Putnam County, Florida (Putnam County Supervisor of Elections or Supervisor of Elections). The 1996 Statement of Financial Interests was required to be filed by July 1, 1997. On June 23, 1997, Respondent submitted her 1996 Statement of Financial Interests with the Putnam County Supervisor of Elections. However, Respondent failed to sign and date the 1996 Statement of Financial Interests she submitted to the Supervisor of Elections. Respondent's failure to sign and date her 1996 Statement of Financial Interests was inadvertent and unintentional. All the official records of the Putnam County Supervisor of Elections reflect that Respondent's 1996 Statement of Financial Interests was submitted to that office on June 23, 1997. Moreover, on that same day, Respondent's 1996 Statement of Financial Interests was accepted, received, stamped, and deemed filed by the Supervisor of Elections. The Putnam County Supervisor of Elections, deemed Respondent's 1996 Statement of Financial Interests filed on June 23, 1997, notwithstanding the fact that the form was not signed or dated. Respondent was not given any written notice of any alleged defect in or failure to properly file her 1996 Statement of Financial Interests either by the Putnam County Supervisor of Elections or any other government officer or agency. In October 1997, Respondent received a telephone call from an employee of the Putnam County Supervisor of Elections who advised that she needed to sign some documents that she had previously filed. Soon after Respondent received the aforementioned telephone call from the Supervisor of Elections Office, she went to that office and signed the document which was presented to her for her signature. The form that Respondent mistakenly signed was the CE Form 10, Annual Disclosure of Gifts From Governmental Entities and Direct Support Organizations and Honorarium Event Related Expenses (CE Form 10), which was attached to the Form 1 when it was presented for signature. Notwithstanding the voluntary mutual effort of the parties to correct the oversight relative to Respondent's failure to sign her 1996 Statement of Financial Interests, the original form was thereafter filed away unnoticed until the advent of this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that the Florida Commission on Ethics determine that the public interest would not be served by proceeding further against Respondent, and dismiss the complaint. DONE AND ENTERED this 20th day of January, 2000, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 January, 2000. COPIES FURNISHED: Virlindia Doss, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Allen C.D. Scott, II, Esquire Scott & Scott 101 Orange Street St. Augustine, Florida 32084 Sheri L. Gerety, Complaint Coordinator Florida Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, General Counsel Florida Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue The ultimate issue for determination is whether the Department of Environmental Protection should award attorney's fees and costs to G.E.L. Corporation pursuant to Section 120.595, Florida Statutes (2002).
Findings Of Fact Respondent Starla K. Rose, was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0046404. On February 25, 1985, an Information was filed in the Circuit Court of the Seventh Judicial Circuit, Broward County, Florida, charging Respondent with one count of grand theft, Sections 512.014(1)a and b and 512.014(2)b, Florida Statutes, two counts of insurance fraud by false or fraudulent claims Section 517.234(1)(a)1, Florida Statutes; and, one count of false report of the commission of a crime, Section 817.49, Florida Statutes. Respondent pled not guilty to the Information. On June 6, 1985, a verdict was rendered which found Respondent guilty of one count of grand theft, one count of insurance fraud by false or fraudulent claims and one count of false report of the commission of a crime. The court adjudged Respondent guilty of issuing a false report of the commission of a crime, withheld adjudication of guilt on the remaining counts, placed Respondent on probation for 3 years, and ordered her to pay costs. Respondent filed a timely motion for new trial following rendition of the verdict. At the time of final hearing in this case, no disposition had been made of Respondent's motion for new trial.
The Issue The issue is whether Petitioners, Judith C. Cleary and Charles B. Houck (Petitioners or Ms. Cleary and Mr. Houck), are entitled to an award of attorney's fees against Respondent, Department of Financial Services (Respondent or the Department), pursuant to section 57.111, Florida Statutes (2009).1/
Findings Of Fact The underlying proceedings were initiated by Respondent on February 22, 2010, by the issuance of substantively identical Administrative Complaints against Petitioners. Petitioners timely requested administrative hearings to contest the charges against them, and the cases were forwarded to the Division of Administrative Hearings where they were consolidated for hearing. Count 1 of each Administrative Complaint charged Petitioners with willfully misrepresenting and or omitting material information in order to induce Mr. and Mrs. Nagle to cash in another annuity they held in order to purchase an annuity sold by Petitioners. Included in the alleged misrepresentations or material omissions were: misrepresenting that there would be no surrender charges to withdraw the entire amount of the new annuity after one year, when in fact there would be a 15 percent surrender charge; falsely representing that the annuity would earn the Nagles ten to 20 percent returns; and (3) misrepresenting the suitability of the Nagles to purchase the annuity by misrepresenting the Nagles' net worth and by misrepresenting the Nagles' investment objective as long-term, in a form Petitioners submitted to the insurance company issuing the annuity. Count 2 of each Administrative Complaint charged Petitioners with similar conduct in order to induce the Nagles' son, Robert, to purchase an annuity. Included in the alleged misrepresentations or material omissions were: misrepresenting that there would be no surrender charges to withdraw the entire amount of the new annuity after one year, when, in fact, there would be a 15 percent surrender charge; and falsely representing that the annuity would earn Robert Nagle ten to 20 percent annual returns. Petitioners do not dispute that if the allegations charged in the Administrative Complaint had been proven by clear and convincing evidence, then Respondent would have established the statutory violations alleged as the predicate for taking disciplinary action against Petitioners' insurance agent licenses. Petitioners also acknowledge that Respondent initiated the disciplinary actions against them on the basis of two complaint letters received by Mrs. Phyllis Nagle, the attestation of Mrs. Nagle to the material allegations in an affidavit, and a corroborating complaint letter by Mrs. Nagle's son, Robert Nagle. After a full evidentiary hearing, a Recommended Order issued in the underlying disciplinary actions determined that the more credible evidence failed to establish the allegations in the Administrative Complaints. In particular, the undersigned weighed the credibility of testimony by Robert Nagle and by Petitioners at the final hearing, as well as deposition testimony by both Mr. and Mrs. Nagle. The question posed in this case, however, is not whether credibility judgments caused the Department to ultimately not prevail in its charges against Petitioners. Instead, the question here is whether Respondent had a reasonable basis, in law and in fact, at the time it initiated the underlying disciplinary actions. In this regard, Petitioners contend that the Department's investigation file contained documents from the insurance company issuing the annuities that contradict the allegations in the Administrative Complaints. Petitioners point to three documents in particular. The first document was a customer survey response submitted by Mrs. Nagle to the insurance company after she purchased the annuity from Petitioners. Her completion of the survey form indicated that she knew that "[s]urrender charges are imposed on premature full withdrawal"; that she considered the "annuity to be a long-term investment"; that she did "not intend to use these funds to meet current expenses"; and that Petitioners reviewed her "financial status . . . and other pertinent information to determine whether this annuity purchase" was suitable to her. The other document claimed to contradict the allegations in the Administrative Complaints was the Nagles' annual statement showing a yield of 5.66 percent, which was different than the 2.6 percent yield claimed by Mrs. Nagle in her complaint letters or affidavit. Finally, Petitioners point to statements of understanding signed by the Nagles, showing the surrender charges that would be imposed for early withdrawals. None of these documents conclusively refute the charges in the Administrative Complaint. For example, with respect to surrender charges, the Nagles' complaints assert that Petitioners represented that there would be no surrender charges for a withdrawal after one year. Mrs. Nagle's survey form only acknowledged that there would be surrender charges for "premature" withdrawal. It certainly would have been possible to reconcile these two concepts in that Mrs. Nagle may have been thinking that "premature" withdrawal, as used in the survey form, was a withdrawal in less than one year. The response in the survey form to the "surrender charge" question does not conclusively contradict Mrs. Nagle's complaint and affidavit, nor does it conclusively contradict the allegations in the Administrative Complaint. Similarly, the responses in the survey form about suitability do not conclusively contradict the allegations in the Administrative Complaint. The annual statement likewise does not conclusively contradict the allegations in the Administrative Complaint, even though the yield shown is somewhat different from the yield Mrs. Nagle referred to in her complaint. Whether the yield was actually 2.6 percent or 5.66 percent, the material allegations in the Administrative Complaint were that Petitioners misrepresented that the yield would be 10 to 20 percent per year. These allegations and the complaints on which they were based, were not so plainly lacking in credibility that no reasonable agency would have proceeded with charges. Finally, the signed statements of understanding showing that surrender charges would be imposed for early withdrawals do not contradict the Nagles' complaints or the allegations in the Administrative Complaint. Although the undersigned ultimately found against the credibility of the Nagles' complaints, those complaints were that Petitioners made oral representations assuring the Nagles that there would be no surrender charges after one year, even though the policy forms themselves said otherwise. The ultimate lack of credibility of the complaining witnesses' testimony was not so clear that no reasonable agency would have prosecuted the claims. In short, Respondent had a reasonable basis in law and in fact, following a reasonable investigation, to make the allegations and to charge the statutory violations it did in the Administrative Complaints. The documentation gathered in the investigation did not conclusively contradict the factual allegations, and the credibility of the complainants was not so obviously lacking that no reasonable agency would have made the allegations in the Administrative Complaints. And it is beyond dispute that if those factual allegations had been proven, the charged statutory violations would have been established. Thus, it cannot be said that Respondent's action in initiating the disciplinary proceedings against Petitioners was unreasonable governmental action.
The Issue Whether just cause exists to terminate Respondent from her employment with the Lee County School Board.
Findings Of Fact Petitioner is responsible for hiring, terminating, and overseeing all employees in the school district. Respondent has been employed by Petitioner since December 13, 2010. She is currently assigned as a school bus attendant in Petitioner’s transportation department. Respondent’s employment is governed by the collective bargaining agreement between the Support Personnel Association of Lee County (SPALC) and the School Board. The Petition for Termination alleges that on July 6, 2015, Petitioner’s Department of Professional Standards and Equity was notified that Respondent was arrested on June 26, 2015, and charged with four felony counts of public aid fraud in excess of $200.00. Andrew Brown testified that he received a “hit” notification from the Florida Department of Law Enforcement informing the District that Respondent had been arrested. Respondent obtained public assistance of $200 or more through false statements, misrepresentation, impersonation or other fraudulent means. The offenses were committed from: December 1, 2011, to May 31, 2012; October 1, 2012, to May 31, 2013; October 1, 2013, to September 30, 2014; and August 1, 2013, to December 31, 2013. All of the foregoing offenses occurred during Respondent’s period of employment with Petitioner. Respondent was arrested for the foregoing offenses on June 26, 2015. On November 24, 2015, Respondent pled guilty to four counts of engaging in public aid fraud, all felonies, and was sentenced to 36 months of probation and ordered to pay $8,483.29 in restitution to the Florida Department of Children and Families. The evidence demonstrates that Respondent, on November 24, 2015, knowingly pled guilty to public aid fraud. School Board policy 5.04 permits Petitioner to terminate the employment of an employee who commits a crime during their employment, if the crime would otherwise disqualify the employee from initial employment with the School Board. Public aid fraud is such a crime. Paragraph (7)(a) and (b) of policy 5.04 provides that the School Board will not hire an individual who has committed welfare and/or unemployment fraud within 10 years of the offense. Policy 5.04 also provides that an individual who is on probation may also be ineligible for employment. School Board policies 5.02, 5.03, and 5.29 all include language that mandate compliance with applicable laws, and require that employees maintain high ethical standards and good moral character. Respondent has failed those mandates. The credible evidence establishes that Petitioner has just cause to terminate Respondent’s employment with the School Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lee County School Board enter a final order terminating Respondent’s employment. DONE AND ENTERED this 21st day of April, 2016, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 April, 2016.
The Issue Whether Petitioner's application for certification as a certified nursing assistant (CNA) should be approved or denied.
Findings Of Fact On or about October 15, 2013, Ms. Warren submitted to Respondent an application for certification as a CNA. On or about August 15, 2014, Respondent informed Ms. Warren that her Application was being denied for two reasons. The first reason offered for denial is that Ms. Warren violated sections 464.018(1)(a) and 456.072(1)(h), Florida Statutes (2014),1/ by checking the "no" box, instead of the "yes" box, when asked about her criminal history on the Application. The second reason offered for denial is that Ms. Warren is not eligible for licensure because she did not pass the criminal background screening required by section 400.215, Florida Statutes.2/ Criminal Background Screening On March 5, 2012, Ms. Warren entered a plea of nolo contendere to a single count of "resisting an officer with violence" in violation of section 843.01, Florida Statutes. The offense occurred during calendar year 2010. Section 843.01 provides, in part, that any person found to be in violation of this section "is guilty of a felony of the third degree." According to the Order of Probation for this charge, the court withheld adjudication, and Ms. Warren was placed on probation for a period of 30 days. On April 4, 2012, the Florida Department of Corrections sent Ms. Warren a notice of "Termination of Supervision" and noted therein that "[y]ou are hereby notified that you completed your term(s) of supervision on 4/4/12 . . . and are no longer under the supervision of the Department of Corrections." Section 464.203 provides, in part, that "[t]he board shall issue a certificate to practice as a CNA to any person who demonstrates a minimum competency to read and write and successfully passes the required background screening pursuant to s. 400.215." Section 400.215 provides, in part, that "[t]he agency shall require level 2 background screening for personnel as required in s. 408.809(1)(e)," Florida Statutes. Section 408.809(1)(e) provides, in part, that individuals, like Ms. Warren, shall be subject to a level 2 background screening pursuant to chapter 435. Section 435.04(2), Florida Statutes, provides, in part, that "security background investigations under this section must ensure that no persons subject to the provisions of this section have . . . entered a plea of nolo contendere" to "[s]ection 843.01, relating to resisting arrest with violence." The preponderance of the evidence establishes that Ms. Warren failed her background screening test as a result of her plea of nolo contendere to the offense of resisting arrest with violence. Alleged Application Misrepresentation The Notice of Intent to Deny provides, in part, as follows: This matter came before the Board of Nursing at a duly-noticed public meeting on August 8, 2014, in Orlando, Florida. The applicant has applied for certification as a certified nursing assistant by examination. The applicant entered a plea of nolo contendere to a charge of resisting an officer with violence in 2012. The application includes the following question: Have you EVER been convicted of, or entered a plea of guilty, nolo contendere or no contest to, a crime in any jurisdiction other than a minor traffic offense? You must include all misdemeanors and felonies, even if adjudication was withheld. The applicant answered the question NO. It is undisputed that Ms. Warren checked the "no" box in response to the question. It is also undisputed that Ms. Warren should have checked the "yes" box in response to the question given that on March 5, 2012, she entered a plea of nolo contendere to the felony charge of resisting an officer with violence. By correspondence dated August 15, 2014, the Board informed Ms. Warren that it was the Board's intent to deny her Application because she did not truthfully answer the question about her criminal background. In response to the Notice of Intent to Deny, Ms. Warren, by correspondence dated August 21, 2014, informed Respondent of the following: To the State of Florida Board of Nursing, I Ashley Warren made a mistake and checked off the wrong box. I was reading so fast and I was not aware of what I checked off in the box. I had checked off the wrong question. If possible, can I do another application because I would love to become a CNA, and I really hate I made [a] mistake in checking the wrong box. One of the sections of the Application submitted by Ms. Warren is titled, "Initial Licensure - Individual." This section asks multiple questions with subparts. Question 1 of this section directs that if the applicant "responded 'no,' skip to #2." Even though Ms. Warren answered "no" to the question, she, nevertheless, proceeded to answer questions 1.a., 1.b., 1.c., and 1.d. Question 3 of this section directs that if the applicant responds "[n]o, do not answer 3.a." Even though Ms. Warren answered "no" to question 3, she, nevertheless, proceeded to answer question 3.a. The same pattern was repeated with respect to question 4 wherein Ms. Warren answered "no" and then disregarded the directive not to answer questions 4.a. and 4.b. The multiple errors made by Ms. Warren when completing the Application support her contention that she was rushing while completing the Application. During the formal hearing, Ms. Warren testified as follows: Q: Okay. Now, you were arrested again in 2010? A: Yes. * * * Q: And you were charged with resisting an officer with violence? A: Yes. * * * Q: Did they put you in jail? A: Yes. Q: And you went to court on that charge? A: Yes. Q: Okay. I'm looking at page 20 of the exhibit, your Honor. You had an order withholding adjudication; is that correct? A: Yes. Q: And you pled nolo contendere or no contest to that charge? A: Yes. Q: Were you put on probation? A: I was put on PYT. Q: All right. What is PYT? A: It's something like a probation that you complete and it will be off your record. * * * Q: Okay. Now, on the application the question concerning criminal history says "have you ever been convicted of or entered a plea of guilty, nolo contendere or no contest to a crime in any jurisdiction other than a minor traffic offense." What about that don't you understand? A: I really don't understand none of it. * * * Q: Yes. You testified earlier that in your 2010 charge you pled nolo contendere or no contest to resisting an officer with violence. You said that was correct. Is that correct? A: Yes. Q: So did you understand what a nolo contendere plea was in 2010? A: No. Q: Did your lawyer advise you to plead nolo contendere? A: Yes. Q: Did your lawyer explain to you what that kind of plea meant? A: No. Q: Did the judge explain to you what that kind of plea meant? A: Yes. Q: Once it was explained to you, you decided to plea nolo contendere? A: I didn't understand the question when I was reading over it. Formal hearing Transcript, pp. 17–21. Additionally, Ms. Warren also testified as follows: Q: In responding to the criminal history question, if you didn't understand it, why didn't you just leave it blank? A: Because I didn't know if I would have sent it off and leave it blank if I would have got my license, but, at the same time, when I had went through the probation office and everything, they told me that everything was going to be off my record, that I completed all my terms and everything because it was my first time on having adult charge. So I really didn't understand none of that. So I'm going by their word. So I'm thinking if I don't have it on my record, I completed it, I can put "no" on the answer. It's not on my record. Formal hearing Transcript, pp. 24-25. Ms. Warren's testimony that she believed it was proper to answer "no" to the criminal background question on the Application is credible. The fact that Ms. Warren made multiple mistakes on her Application, coupled with her genuine belief that the charge of resisting an officer with violence was no longer on her record, indicates that Ms. Warren acted honestly and did not intend to misrepresent her criminal history when completing her Application.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Board of Nursing, enter a final order denying Petitioner, Ashley Q. Warren's, Application for certification as a CNA due to her failure to pass the level 2 background screening. DONE AND ENTERED this 17th day of February, 2015, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 17th day of February, 2015.
