The Issue The Petitioner has applied for exemption from disqualification for licensure as a foster parent. The Respondent has denied the application. The issue in the case is whether the Petitioner’s request for exemption from disqualification should be approved.
Findings Of Fact On April 26, 1991, Joan Goldhammer (Petitioner) entered a plea of nolo contendere to the offense of grand theft in Case Number 91-1131, Circuit Court, Thirteenth Judicial Circuit, Hillsborough County, Florida. As a result of her plea, the Petitioner was placed on probation for 15 years, was ordered to complete 250 hours of community service, and was ordered to continue with counseling. The court withheld an adjudication of guilt. The Petitioner was also ordered to make restitution in the amount of $24,408 to the victim of the theft. The Petitioner continues to make restitution and has approximately five more years of scheduled payments before restitution will be completed. The Petitioner’s probationary period is continuing. She has performed the required community service requirement and has completed the counseling. There is no evidence that the Petitioner’s compliance with the terms of her probation has been other than appropriate. Early in 1999, the Petitioner began the process of becoming licensed by the State of Florida as a foster parent. The impetus for her application to become licensed as a foster parent was the suggestion by her pastor that she foster a child with whom the pastor was familiar. She completed the application process. Both she and her husband completed a state-mandated training course (MAPP-Model Approach to Partnership in Parenting). As part of the application process, the Petitioner was fingerprinted and a criminal background check was conducted. The Petitioner’s uncontradicted testimony was that she disclosed the 1991 incident to investigators at the time of the application process. The Respondent asserts that the information was revealed as a part of the criminal background check. There is no evidence that the Petitioner ever attempted to conceal the 1991 incident. Licensure as a foster parent is a "position of special trust" as defined by Florida statute. Based on the 1991 incident, the Respondent notified the Petitioner that she was disqualified from holding a "position of special trust" and therefore was ineligible for licensure as a foster parent. The Petitioner filed a request for exemption from the disqualification. By letter dated March 23, 1999, the Respondent denied the request for exemption from disqualification. The March 23 letter cites the statute that governs the granting of exemption from disqualification. As grounds for the denial of her request for exemption, the letter states as follows: It is the District’s policy that individuals currently serving a probation sentence, recently released for less than one year (misdemeanor offense), or for less than three years (felony offense), cannot demonstrate that they meet this standard. Consequently, your request for exemption from disqualification has been denied. There is no credible evidence supporting the policy stated in the March 23 letter. The Respondent’s sole witness acknowledged that the District Administrator established the District Five policy, and that each of the Department’s 15 District Administrators may have established different policies. The statute governing exemptions from disqualification provides that the applicant must provide "sufficient evidence of rehabilitation" and includes specific factors that should be considered. At the time of the 1991 offense, the Petitioner was a single mother, was newly divorced, was raising three children, and was financially needy. For various reasons, she was unable to take advantage of public assistance programs. Her employment provided access to the financial records and accounts of her employer. She took advantage of the situation and embezzled money from her employer, to whom she continues to make restitution. Other than the 1991 incident, the Petitioner has had no criminal involvement. Although the embezzlement was clearly illegal and inappropriate under any circumstances, the sole harm to the victim of her crime was financial loss. She has consistently met her obligation to make restitution of the money she embezzled. There is no evidence of any kind that the Petitioner currently poses, or has ever posed, a danger to any child.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Children and Family Services grant the request of Joan Goldhammer for exemption from disqualification. DONE AND ORDERED this 25th day of August, 1999, 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 25th day of August, 1999. COPIES FURNISHED: David L. Partlow, Esquire David L. Partlow, P.A. Transworld Center, Suite 210 4100 West Kennedy Boulevard Tampa, Florida 33609-2244 Frank H. Nagatani, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 100 Largo, Florida 33778-1630 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue in this proceeding is whether Petitioner should be granted an exemption from employment disqualification.
Findings Of Fact The Agency for Persons with Disabilities provides services to disabled clients. As part of its responsibilities, the Agency oversees the background screening process of caregivers, as well as any exemptions should a caregiver be disqualified by his or her background. Towards that end, the Agency’s primary concern in considering requests for exemption is the health and safety of the clients served by the Agency. Petitioner applied for an exemption from disqualification pursuant to section 435.07, Florida Statutes (2015). The application included two letters of recommendation regarding Petitioner’s character. Those letters were from people who knew Petitioner in the community or around town, but were neither detailed nor informative about the extent of their knowledge, the length of time the writers had known Petitioner, or any rehabilitation efforts by Petitioner. Additionally, the application for exemption included Petitioner's explanation of the events surrounding her multiple criminal convictions. In her explanation and at hearing, Petitioner admitted her criminal history but attempted to blame the other parties involved in the events that led to the police being summoned. Although she claimed remorse in her application, Petitioner did not appear particularly remorseful about her criminal past. Ms. Lynne Daw received and reviewed Petitioner’s exemption application packet prepared by the Department of Children and Families. The exemption packet contained the application; the requestor’s criminal history; information and questionnaires from the applicant; educational background and references; any documents that the applicant wished to submit on his or her behalf, as well as information that the background screening office had obtained, such as Florida Department of Law Enforcement reports; and other law enforcement documents. Ms. Daw testified to the steps followed and individuals who reviewed Petitioner’s request for an exemption. The evidence showed that the Department complied with its review process and ultimately determined to deny Petitioner’s request for an exemption from disqualification. Petitioner began her criminal activity on January 11, 2009, when at a local bar in Gretna, she engaged in a verbal altercation with her “live-in” boyfriend who was also the father of her son. The altercation caused both to be escorted from the bar, where the affray continued in the parking lot with the police eventually being summoned. During the altercation, Petitioner attempted to pepper spray the boyfriend by reaching around the police officer who was between them with a can of pepper spray in her hand. Petitioner was arrested and entered a plea of nolo contendere to domestic assault, a second-degree misdemeanor, on January 28, 2009. The plea was accepted by the court. Adjudication was withheld and a fine of $200.00 was imposed. From the court records, Petitioner completed the terms of her sentence in 2009 when she paid the fine. Petitioner attributed the altercation to the bad break-up she and her boyfriend were going through at the time or had just gone through. The conviction for domestic violence was the only disqualifying offense in regards to Level 2 background screening. However, around February 15, 2013, Petitioner was intoxicated at a local bar “screaming at the top of her lungs” and threatening to discharge a weapon. The police were again summoned to the bar. Petitioner continued to engage in a verbal altercation with another woman over some past love interest and threw her keys at her. She was arrested, placed in handcuffs, slipped out of them and continued to yell. Ultimately, she was charged with disorderly conduct and resisting an officer without violence. Petitioner entered a plea of nolo contendere to the charge of disorderly conduct. The court accepted the plea, withheld adjudication and imposed a fine. From the court records, Petitioner has made payments on the imposed fine, but has not paid the fine in full and has not completed her sentence. At hearing, Petitioner blamed the incident on the other women and indicated that somehow such behavior was less serious because the people involved all knew each other. More troubling is that Petitioner denied using and/or misusing alcohol in her application for exemption when her record clearly demonstrates that she does use alcohol to the point that it has led to at least one criminal conviction. The evidence showed that Petitioner, who was 35 at the time of hearing, was 32 years of age at the time of her last conviction, three years ago, and 28 at the time of her disqualifying domestic violence conviction, seven years ago. She currently works as a security officer and holds a certificate as a certified nursing assistant. Evidence showed that she has not received any exemptions from disqualification for these professions. Although Petitioner claims that she now only goes home to take care of her three children, the evidence did not demonstrate that she has removed herself from the rowdy drinking and bar life she has lived in the past. In this case, the good character of Petitioner was not attested to by character witnesses, who knew the Petitioner on both a personal and professional level. As indicated, the two reference letters were not helpful on the issue of character or rehabilitation. As noted, the evidence showed that Petitioner’s disqualifying crime occurred seven years ago. However, the evidence was insufficient to demonstrate that, since her conviction, she has rehabilitated herself to the extent she has either controlled her use of alcohol or her anger. To her credit, Petitioner is taking care of her young disabled daughter. But, such evidence covering only a short period of time does not on these facts constitute clear and convincing evidence of rehabilitation. Given these facts, the denial of the exemption is consistent with and supported by the evidence adduced at the hearing. The Department did not abuse its discretion in denying an exemption to Petitioner. As such, the Petitioner’s request for an exemption from disqualification should be denied.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order denying Petitioner an exemption from employment disqualification. DONE AND ENTERED this 31st day of May, 2016, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 31st day of May, 2016. COPIES FURNISHED: Shamika Williams 91 Henry Drive Gretna, Florida 32332 Tracie Hardin, Esquire Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) David De La Paz, Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Richard D. Tritschler, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Barbara Palmer, Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
The Issue The issue is whether the application of Petitioner for a Florida real estate broker’s license should be granted.
Findings Of Fact Petitioner is an individual residing in the State of Connecticut. Respondent is the state agency responsible for licensing real estate associates and brokers in the State of Florida, pursuant to Chapter 475, Florida Statutes. In June 2007, Petitioner submitted to Respondent an application to be licensed as a real estate broker in Florida. In his application, Respondent requested mutual recognition of his broker’s license in Connecticut. Petitioner held an active real estate broker’s license in Connecticut for at least 24 months during the preceding five years from the date of his application. Petitioner was first licensed in the State of Connecticut as a real estate salesperson from May 13, 1987 through July 28, 1989. Thereafter, Petitioner held an individual license as a real estate broker in Connecticut from July 28, 1989 through April 30, 1993, and again from June 22, 1993, until his real estate broker’s license with the State of Connecticut expired on March 31, 2006. In addition, Petitioner’s limited-liability company, America’s Home & Communities Real Estate, LLC, was licensed as a broker with the State of Connecticut, with Petitioner as the designated broker, on December 30, 2005. That license was active when Petitioner submitted his application with Respondent in June 2007, and expired, effective March 31, 2008. In his application, Respondent answered “No” to the following question: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest) to, even if you received a withholding of adjudication? This question applies to any violation of the laws of any municipality, county, state or nation, including felony, misdemeanor and traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, were paroled, or pardoned. If you intend to answer “NO” because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, or applicable law of another state, you are responsible for verifying the expungement or sealing prior to answering “NO.” YOUR ANSWER TO THIS QUESTION WILL BE CHECKED AGAINST LOCAL, STATE AND FEDERAL RECORDS. FAILURE TO ANSWER THIS QUESTION ACCURATELY MAY RESULT IN THE DENIAL OR REVOCATION OF YOUR LICENSE. IF YOU DO NOT FULLY UNDERSTAND THIS QUESTION, CONSULT WITH AN ATTORNEY OR CONTACT THE DEPARTMENT. After receiving Petitioner’s application, the Commission ordered a criminal record check from the Florida Department of Law Enforcement (FDLE). The results of that check showed that Petitioner had no Florida criminal record history, but the National/FBI Criminal History Record Response (FBI Report) ordered by FDLE as part of that check under Petitioner’s name listed the following information in the following format: ARRESTED OR RECEIVED 1968/08/05 AGENCY-POLICE DEPARTMENT HARTFORD (CT0006400) AGENCY CASE-46848-R94 CHARGE 1-B OF P CHARGE 2-DC CHARGE 3-WIL DAM TO PRIV PROP ARRESTED OR RECEIVED 1972/07/27 AGENCY-POLICE DEPARTMENT HARTFORD (CT0006400) AGENCY CASE-46848-R94 NAME USED-PARKER,EDWARD LEON CHARGE 1-INCITING TO RIOT CHARGE 2-ESCAPE FROM CUSTODY ARRESTED OR RECEIVED 1974/09/12 AGENCY-POLICE DEPARTMENT HARTFORD (CT0006400) AGENCY CASE-46848R94 NAME USED-PARKER, EDWARD L CHARGE 1-LARC #3 ARRESTED OR RECEIVED 1975/09/30 SID- CT00246406 AGENCY CASE-4684R94 NAME USED PARKER, EDWARD L CHARGE 1-DC CHARGE 2-POSS NARC CHARGE 3-CARRY GUN W/O PERMIT ARRESTED OR RECEIVED 1975/10/23 SID- CT00246406 AGENCY-POLICE DEPARTMENT HARTFORD (CT0006400) AGENCY CASE-46848R94 NAME USED-PARKER, EDWARD L CHARGE 1-L III BY POSS ARRESTED OR RECEIVED 1975/12/18 SID- CT00246406 AGENCY-POLICE DEPARTMENT HARTFORD (CT0006400) AGENCY CASE-46848R94 NAME USED-PARKER, EDWARD L CHARGE 1-LARC IV CHARGE 2-CARRY DANG WPN CHARGE 3-INTERFERING W/POLICE ARRESTED OR RECEIVED 1976/01/27 SID- CT00246406 AGENCY-POLICE DEPARTMENT HARTFORD (CT0006400) AGENCY CASE-46848R94 NAME USED-PARKER, EDWARD CHARGE 1-INTERF W/PO CHARGE 2-DC * * * ARRESTED OR RECEIVED 1977/07/14 SID- CT00246406 AGENCY-POLICE DEPARTMENT WEST HARTFORD (CT0015500) AGENCY CASE-0786-77 CHARGE 1-ILL USE OF CREDIT CARD 31 CTS CHARGE 2-CRIM IMPERSONATION 31 CTS CHARGE 3-FORGERY 3RD DEG 31 CTS CHARGE 4-LARC 4TH DEG 31 CTS COURT- CHARGE-ILL USE OF CREDIT CARD 31 CTS SENTENCE- 09/01/77 PG 1YR 9/S ON EA CT 2YRS PROB CHARGE-CRIM IMPERSONATION 31 CTS SENTENCE- NOLLED CHARGE-FORGERY 3RD DEG 31 CTS SENTENCE-NOLLED CHARGE-LARC 4TH DEG 31 CTS SENTENCE-NOLLED ARRESTED OR RECEIVED 1985/11/14 SID- CT00246406 AGENCY-POLICE DEPARTMENT BLOOMFIELD (CT0001100) AGENCY CASE-7206 NAME USED-PARKER, EDWARD L CHARGE 1-ASLT 3RD RECORD UPDATED 2007/12/07 ALL ARREST ENTRIES CONTAINED IN THIS FBI RECORD ARE BASED ON FINGERPRINT COMPARISONS AND PERTAIN TO THE SAME INDIVIDUAL. THE USE OF THIS RECORD IS REGULATED BY LAY. IT IS PROVIDED FOR OFFICIAL USE ONLY AND MAY BE USED ONLY FOR THE PURPOSE REQUESTED. The preamble to the above-recited FBI Report provides: THIS RECORD IS SUBJECT TO THE FOLLOWING USE AND DISSEMINATION RESTRICTIONS UNDER PROVISIONS SET FORTH IN TITLE 28, CODE OF FEDERAL REGULATIONS (CFR), SECTION 50.12, BOTH GOVERNMENTAL AND NONGOVERNMENTAL ENTITIES AUTHORIZED TO SUBMIT FINGERPRINTS AND RECEIVE FBI IDENTIFICATION RECORDS MUST NOTIFY THE INDIVIDUALS FINGERPRINTED THAT THE FINGERPRINTS WILL BE USED TO CHECK THE CRIMINAL HISTORY RECORDS OF THE FBI. IDENTIFICATION RECORDS OBTAINED FROM THE FBI MAY BE USED SOLELY FOR THE PURPOSE REQUESTED AND MAY NOT BE DISSEMINATED OUTSIDE THE RECEIVING DEPARTMENT, RELATED AGENCY OR OTHER AUTHORIZED ENTITY. IF THE INFORMATION ON THE RECORD IS USED TO DISQUALIFY AN APPLICANT, THE OFFICIAL MAKING THE DETERMINATION OF SUITABILITY FOR LICENSING OR EMPLOYMENT SHALL PROVIDE THE APPLICANT THE OPPORTUNITY TO COMPLETE, OR CHALLENGE THE ACCURACY OF, THE INFORMATION CONTAINED IN THE FBI IDENTIFICATION RECORD. THE DECIDING OFFICIAL SHOULD NOT DENY THE LICENSE OR EMPLOYMENT BASED ON THE INFORMATION IN THE RECORD UNTIL THE APPLICANT HAS BEEN AFFORDED A REASONABLE TIME TO CORRECT OR COMPLETE THE INFORMATION, OR HAS DECLINED TO DO SO. AN INDIVIDUAL SHOULD BE PRESUMED NOT GUILTY ON ANY CHARGE/ARREST FOR WHICH THERE IS NO FINAL DISPOSITION STATED ON THE RECORD OR OTHERWISE DETERMINED. IF THE APPLICANT WISHES TO CORRECT THE RECORD AS IT APPEARS IN THE FBI’S CJIS DIVISION RECORDS SYSTEM, THE APPLICANT SHOULD BE ADVISED THAT THE PROCEDURES TO CHANGE, CORRECT OR UPDATE THE RECORD ARE SET FORTH IN TITLE 28, CFR, SECTION 16.34. - FBI IDENTIFICATION RECORD – WHEN EXPLANATION OF A CHARGE OR DISPOSITION IS NEEDED, COMMUNICATE DIRECTLY WITH THE AGENCY THAT FURNISHED THE DATA TO THE FBI. On March 5, 2008, Respondent wrote to Petitioner and asked Petitioner to provide a copy of the arrest reports and the final outcome for each of the arrests detailed in the FBI Report. Of the 9 reported arrests listed under Petitioner’s name on the FBI Report, only one, number 8 from July 14, 1977, indicates that Petitioner was convicted of a crime. According to that report, Petitioner was sentenced on September 1, 1977, for 31 counts of illegal use of a credit card. According to the report, the other charges listed under arrest number 8 (multiple counts for criminal impersonation, forgery, and larceny) were not prosecuted. Petitioner disputes that he was ever arrested on July 14, 1977, or convicted of any of the charges listed in item number 8. In correspondence and in his testimony at the final hearing, Petitioner pointed out that the record for July 14, 1977, is not supported by fingerprints, and further, that he is not white, as indicated in the police records for that arrest. Petitioner also disputes that he was ever incarcerated. Upon his request to obtain court records related to the disputed conviction, Petitioner was advised by the Records Center for the Superior Court of the State of Connecticut that the court records had been destroyed. At the final hearing, Petitioner submitted certified copies of correspondence from Connecticut’s Superior Court’s Record Center as evidence that the records had been destroyed. Nevertheless, in order to clear his name, Petitioner sought a pardon from the State of Connecticut for the listed conviction for illegal use of a credit card, as well as two other matters listed as arrests (apparently, the “interfering with police” charge listed in item number 6 and the “larceny” charge under item number 8) that Petitioner disputed. On June 8, 2009, Petitioner faxed to Respondent correspondence indicating Petitioner’s efforts to obtain records and clear his name. Included in the correspondence were three letters dated February 17, 2009, from Connecticut’s Superior Court Record Center indicating that records from the disputed charges had been destroyed; Petitioner’s letter dated February 18, 2009, to Connecticut’s Board of Pardons & Paroles requesting assistance in getting a pardon for the alleged crimes; and a letter dated June 3, 2009, to Petitioner from Connecticut’s Board of Pardons & Paroles conditionally granting Petitioner a pardon, pending confirmation from several criminal justice agencies that “the records of your conviction(s) have been erased, which takes at least 8 months.” On June 11, 2009, Petitioner sent to Respondent by facsimile three letters of reference which reflect positively upon Petitioner’s character. By letter dated July 17, 2009, Respondent advised Petitioner that his application would be considered at Respondent’s meeting scheduled for August 12, 2009, in Orlando, Florida, and that Petitioner should forward any additional letters of recommendation or other supporting documentation no later than July 20, 2009. Petitioner’s application file indicates that Respondent received a positive recommendation for Petitioner on July 23, 2009, from a real estate broker in Connecticut, and that, on July 24, 2009, Petitioner forwarded a letter to Respondent from the Greater Hartford Association of Realtors, Inc., stating that Petitioner “is a member in good standing with the Greater Hartford Association of Realtors® since December 11, 1998,” indicating that Petitioner’s local, state and national dues have been paid, and advising that Petitioner completed a code of ethics course on December 12, 2008. Petitioner appeared, pro se, and gave testimony at the August 12, 2009, meeting where his application was considered. Following that meeting, Respondent entered a Notice of Intent to Deny, which stated a number of grounds for the intent to deny Petitioner’s application. Respondent’s Notice of Intent to Deny recited Key findings of fact 1, 2, 4, and 7, and Key conclusions of law B, C, E and M, as grounds for its proposed denial of Petitioner’s application. Those Key findings and conclusions, as set forth on the Key for License Denials, attached to Respondent’s Notice of Intent to Deny, are as follows: Crimes in Application. Applicant’s criminal record is as revealed in application. Failure to disclose. Applicant’s complete criminal record was not revealed in application. 4. Unpersuasive Testimony. Applicant’s testimony or evidence in explanation/mitigation was unpersuasive. 7. No Showing Rehabilitation. Applicant has not had sufficient time free of government supervision to establish rehabilitation. Failing to demonstrate: honesty, truthfulness, trustworthiness and good character, a good reputation for fair dealing, competent and qualified to conduct transactions and negotiations with safety to others. 475.17(1)(a), 475.181 F.S. Having engaged in conduct or practices which would have been grounds for revoking or suspending a real estate license. 475.17(1)(a), 475.181, F.S. E. Guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence or breach of trust in any business transaction; 475.25(1)(b), 475.181 F.S. M. The Commission concludes that it would be a breach of its duty to protect the health, safety and welfare of the public to license this applicant and thereby provide him easy access to the homes, families or personal belongings of the citizens of Florida. 455.201, F.S. In sum, all of Respondent’s reasons to deny Petitioner’s application for a broker’s license are related to a finding that Petitioner was convicted of crimes and failed to disclose them on his application. The evidence, however, does not support the grounds recited in Respondent’s Notice of Intent to Deny. Other than Petitioner’s disputes of, and eventual pardon from, three crimes listed on the pardon obtained on May 27, 2009, there is no evidence that Petitioner was ever convicted of a crime. At the final hearing, Petitioner admitted that he grew up in a rough neighborhood and had negative contacts with law enforcement for a number of years. He apologized for any appearance that he tried to deceive Respondent, but explained that although he had been arrested in the past, he has never been incarcerated. Petitioner further explained that he did not believe that he had a record because of the passage of time. In addition, at the final hearing, Petitioner submitted evidence that he has received a full pardon for the listed (and disputed) conviction for illegal use of a credit card.3/ It has been over 20 years since Petitioner has had any negative contact with law enforcement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a Final Order finding that Petitioner was not dishonest in his application to be licensed as a real estate broker in Florida submitted in June 2007, but denying that application, without prejudice, consistent with the terms of this Recommended Order. DONE AND ENTERED this 13th day of April, 2010, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 13th day of April, 2010.
The Issue Whether Petitioner is entitled to an exemption from her disqualification to work in positions of special trust.
Findings Of Fact Petitioner applied to Respondent for a license to operate a child care center out of her home. Section 402.305(2), Florida Statutes, provides, in pertinent part, as follows: Personnel.--Minimum standards for child care personnel shall include minimum requirements as to: Good moral character based upon screening. This screening shall be conducted as provided in chapter 435, using the level 2 standards for screening set forth in that chapter. The department may grant exemptions from disqualification from working with children or the developmentally disabled as provided in s. 435.07. Section 435.04, Florida Statutes, sets the Level 2 screening standards referred to in Section 402.305(2), Florida Statutes, as follows: All employees in positions designated by law as positions of trust or responsibility shall be required to undergo security background investigations as a condition of employment and continued employment. For the purposes of this subsection, security background investigations shall include, but not be limited to, employment history checks, fingerprinting for all purposes and checks in this subsection, statewide criminal and juvenile records checks through the Florida Department of Law Enforcement, and federal criminal records checks through the Federal Bureau of Investigation, and may include local criminal records checks through local law enforcement agencies. The security background investigations under this section must ensure that no persons subject to the provisions of this section have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense prohibited under any of the following provisions of the Florida Statutes or under any similar statute of another jurisdiction: * * * (w) Chapter 812, relating to theft, robbery, and related crimes, if the offense is a felony. The required background screening revealed that on August 3, 1993, Petitioner was found guilty by a jury of 15 counts of grand theft. Each of these counts was a third degree felony in violation of Section 812.014(1), Florida Statutes. 2/ For these felony offenses, Petitioner was incarcerated for a period of one year and placed on probation for a period of five years. Respondent notified Petitioner by letter dated May 28, 1999, that she ". . . may be [sic] ineligible for continued employment in a position of special trust working with children . . ." based on her conviction of 15 counts of grand theft. Section 435.07(1)(a), Florida Statutes, provides for the following exemption from the disqualification from employment in positions of special trust: The appropriate licensing agency may grant to any employee otherwise disqualified from employment an exemption from disqualification for: Felonies committed more than 3 years prior to the date of disqualification. . . . Section 435.07(3), Florida Statutes, places the following burden on the person seeking the exemption from the disqualification: (3) In order for a licensing department to grant an exemption to any employee, the employee must demonstrate by clear and convincing evidence that the employee should not be disqualified from employment. Employees seeking an exemption have the burden of setting forth sufficient evidence of rehabilitation, including, but not limited to, the circumstances surrounding the criminal incident for which an exemption is sought, the time period that has elapsed since the incident, the nature of the harm caused to the victim, and the history of the employee since the incident, or any other evidence or circumstances indicating that the employee will not present a danger if continued employment is allowed. The decision of the licensing department regarding an exemption may be contested through the hearing procedures set forth in chapter 120. During the course of a lengthy investigation of a burglary ring spanning approximately four years, Petitioner was found to have in her possession at her home 3/ large quantities of stolen property from burglaries dating from 1987 to 1993. Petitioner was alleged to have purchased this stolen property, as opposed to having committed the actual burglaries. Respondent's letter dated May 28, 1999, advised Petitioner of her right to seek an exemption from her disqualification from employment in positions of special trust. Petitioner thereafter timely applied for such an exemption. Respondent appointed a three-person committee who investigated the Petitioner's criminal background and conducted an informal hearing on June 15, 1999, at which Petitioner appeared with witnesses. The three members of the screening committee were Susan K. Barton (Respondent's District Screening Coordinator), Laura Williams (a foster parent liaison employed by Respondent), and Laura Cohn (Respondent's District Legal Counsel). The members of the committee did not find Petitioner to be remorseful or forthcoming about her involvement in the criminal conduct that led to her felony convictions. Petitioner has a college degree in early childhood education. At the time of her arrest she was employed by the School Board of Palm Beach County. Because of her felony convictions, she lost that employment and has not been able to find comparable employment. At the formal hearing, Petitioner's only evidence as to her entitlement to an exemption was her own testimony. She presented no other witnesses and no exhibits. Petitioner testified that she was remorseful and that she had responded truthfully to the questions asked at the informal hearing by the members of the committee.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's application for an exemption from her disqualification from employment in positions of special trust. DONE AND ENTERED this 28th day of December, 1999, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 28th day of December, 1999.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: At all times pertinent to this proceeding, the Respondent, Robert R. Sylvester, was certified as a law enforcement officer by the Florida Criminal Justice Standards and Training Commission. Respondent was issued certificate number 02-14567 on August 29, 1975. At the time of the hearing in this matter, Respondent was forty-six years old. Prior to becoming a police officer, Respondent was honorably discharged from the Marine Corps after three years of service and after achieving the rank of sergeant. Respondent's unblemished record of service in the Marine Corps included twenty-three months of active duty in Viet Nam and assignment to the security forces responsible for guarding the Presidents of the United States and South Viet Nam. Respondent began working with the Delray Beach Police Department ("DBPD") in 1975. At some point in 1979, the Delray Beach Police Department hired a new police chief. As discussed in more detail below, Respondent had a long feud with the new police chief beginning in approximately mid-1980 There is no evidence of any problems with Respondent's job performance at the DBPD or any dissatisfaction with his work until April or May of 1980, when Respondent and another officer were accused of using excessive force in the arrest of a shoplifter. Respondent was in line for a promotion prior to the complaint being lodged against him. The allegations against Respondent received wide publicity and, apparently as a result, Respondent was not promoted. After an investigation, the Chief of Police recommended that Respondent receive a thirty-day suspension without pay for the use of excessive force. Respondent contested the results of the investigation and was exonerated by the police department's five-man review board and by a grand jury. A federal civil rights investigation also found no basis for the charges against Respondent. Despite these findings, the City Manager imposed a 5-day suspension on Respondent. Under the existing Civil Service Rules, Respondent could not appeal that ruling. Respondent brought a civil action against the City Manager and the Chief of Police alleging that their actions in disciplining him violated his statutory, contractual and constitutional rights. A jury returned a verdict in favor of Respondent and awarded him $75,000 in compensatory damages and $25,000 in punitive damages. Respondent's lawsuit was appealed all the way to the Florida Supreme Court and was tied up in the courts for more than ten years. The suit was still not completely resolved at the time of the hearing in this case. During this entire time, Respondent continued to work for the DBPD. At the time of the hearing in this matter, Respondent was still a patrolman. Respondent has been passed over for promotion several times while his lawsuit has been pending against the Police Chief. He contends that throughout this period he has received unfavorable assignments and has been harassed by his supervisors. During this same time period, Respondent also became active in the police union serving as a bargaining agent and later as the president of the local organization. As a result of these matters, Respondent claims that his actions were very closely scrutinized by the DBPD and, consequently, he scrupulously tried to avoid even the appearance of impropriety in all of his actions. On November 13, 1989, the DBPD sought to terminate Respondent from employment alleging that he had improperly disseminated criminal history records and phone rosters of Delray Beach police officers to a private investigator named Virginia Snyder and/or her associate, Donald Pierce. Virginia Snyder was a former newspaper reporter in Delray Beach who subsequently started a business as a private investigator. She was a long-time and very vocal public critic of the DBPD and its chief. Donald Pierce was a former Delray Beach police officer who resigned from the police department and became a private investigator. He was associated on a part-time basis with Virginia Snyder's investigative agency. Respondent and Pierce served together as officers of the local police union. After he quit the DBPD, Pierce remained active in union affairs. Respondent successfully challenged his dismissal in a labor arbitration proceeding. He similarly prevailed in two separate unemployment compensation hearings. The only witness who claimed direct knowledge that Respondent provided confidential documents to Virginia Snyder and/or Donald Pierce was Nancy Adams. No other witness testified in this proceeding or in Respondent's labor arbitration or unemployment hearings that Respondent improperly delivered confidential documents. Respondent, Virginia Snyder and Donald Price have all disputed Ms. Adams testimony. Thus, this case boils down to whether Nancy Adams' testimony should be accepted. Nancy Adams began working for Virginia Snyder as a volunteer in Ms. Snyder's office beginning in approximately mid-May 1989. The circumstances under which Ms. Adams began working at Ms. Snyder's office are somewhat curious. Ms. Adams called Ms. Snyder inquiring about bodyguard or protective services which Ms. Snyder told her were not the types of services offered by the company. Ms. Adams then indicated that she was interested in learning the private investigation business. After much prodding by Ms. Adams, Ms. Snyder agreed to help her learn about the business by letting her observe what was done in the office. Ms. Adams demonstrated great eagerness and curiosity and volunteered to assist on various matters. In fact, she repeatedly offered to testify in proceedings of which she had no direct knowledge. Ms. Adams was not paid for her services. Within a week or so after she started working with Ms. Snyder, Ms. Adams began meeting with DBPD officers regarding alleged confidential information that she observed in Ms. Snyder's office. During June and July of 1989, Ms. Adams met with Sgt. Musco of the DBPD numerous times, usually a couple times a week. She provided him with documents that she claimed to have been obtained from Virginia Snyder, Donald Pierce and/or Respondent. Other than Ms. Snyder's public allegations, no evidence was presented to establish that the DBPD solicited or planted Ms. Adams in Ms. Snyder's office. Lieutenant Lunsford, who assumed responsibility for the investigation approximately two months after the meetings began between Ms. Adams and other DBPD officers and around the time the entire incident became public with a great deal of fan-fare, was very credible and forthwright. He accepted Ms. Adams statements regarding the Respondent based upon what he felt was corroborative circumstantial evidence, but candidly admitted that "I would say I'd question things that she said in general conversation, yes . . . it sometimes would take a lot to convince me about some of the things she said, yes." At the hearing in this matter Ms. Adams' testimony was often vague and sometimes contradictory and inconsistent. While some of her memory lapses can be attributed to the passage of time, the vagaries, inconsistencies and contradictions in her testimony make it difficult to decipher fact from fiction. NCIC/FCIC Records The National Crime Information Center (NCIC) and the Florida Crime Information Center (FCIC) maintain criminal history records that can be accessed by computer. The computer records also contain automobile registration information. Law enforcement agencies can obtain access to the NCIC/FCIC System by obtaining an appropriate computer terminal. Law enforcement personnel who utilize the computer are supposed to obtain a certification. As part of his duties with the Police Department, Respondent was trained to access NCIC/FCIC information through the NCIC/FCIC computer terminal. In order to obtain this certification, Respondent had to become familiar with the operation of the terminal and the restrictions on access to the information contained in the system. Section 943.053(2), Florida Statutes, provides that "criminal justice information derived from federal criminal justice information systems or criminal justice information systems of other states shall not be dessiminated in a manner inconsistent with the laws, regulations, or rules of the originating agency." 28 CFR Section 20.21(f)(4)(b) provides that "law enforcement agencies are required to provide that direct access to criminal history record information shall be availble only to authorized officers or employees of criminal justice agencies and, as necessary, other authorized personnel essential to proper operation of the criminal justice history record information system." As a result of his training, Respondent knew that sanctions could be imposed against a law enforcement agency for misuse of the criminal history records obtained through the computer access to the NCIC/FCIC System. Respondent also knew that use of the limited access information obtained over the terminal for personal gain could result in criminal prosecution. The general public can obtain access to certain information in the NCIC/FCIC System through the Public Records Act, Chapter 119, Florida Statutes. The information available under the Florida Public Records Law regarding criminal history records is different from the information available to law enforcement officers accessing those records for a criminal justice purpose. The public records access is limited to in-state criminal history records and does not include sealed criminal history records. Law enforcement officers accessing the records for a criminal justice purpose have access to both non- Florida criminal history records and sealed criminal history records. Since 1974, the Florida Department of Law Enforcement has maintained an automated data base, identified as the centralized criminal history dissemination file. This data base is comprised of records of the dissemination of Florida criminal history records from the NCIC/FCIC System as a result of both law enforcement requests and public sector requests. At the Delray Beach Police Department, the NCIC/FCIC computer terminal was located on the second floor near the police and fire dispatchers. The evidence presented in this case established that, while the door to the room was supposed to be locked, there was relatively free access to the room and computer terminal. During the spring and summer of 1989, Respondent was the only Delray Beach patrolman certified to use the NCIC/FCIC computer, but all of the dispatchers for the DBPD were certified. In addition, some officers utilized the computer even though they had not been certified. The evidence indicates that there was very little control over the dissemination of NCIC/FCIC information obtained via the computer. Some reports were distributed with little or no concern paid to protecting the security of the information. Ms. Adams contends that, during the time she was volunteering at Ms. Snyder's office, she observed that Ms. Snyder and Donald Pierce had NCIC/FCIC criminal history records on certain individuals. The evidence established that Respondent was the computer operator at the time that certain NCIC/FCIC criminal history records which later were turned over by Nancy Adams to the Delray Beach Police Department were generated. However, the evidence did not clearly establish that Respondent turned any such records over to Virginia Snyder, Donald Pierce, Nancy Adams, or any other unauthorized person. At the hearing in this case, Ms. Adams could not specifically tie Respondent to the delivery of any NCIC/FCIC records to Virginia Snyder or anyone else except in one case. She testified that the criminal records of Manuel Garcia were delivered by Respondent to Donald Pierce at a restaurant in Boca Raton. Previously, she had told Sgt. Musco of the DBPD that Manual Garcia's record was taken from Virginia Snyder's office. Ms. Adams also testified that she was told by Virginia Snyder and Donald Pierce that they regularly received NCIC/FCIC criminal history records from Respondent and that she heard Donald Pierce call Respondent and request certain NCIC/FCIC records. This testimony has been disputed by Respondent, Virginia Snyder and Donald Pierce. In her various statements, Ms. Adams has given different versions for the source of many of the documents that she turned over to the DBPD. At different times, the documents were alleged to have been handed to her by Respondent, given to her by Donald Pierce, removed from Virginia Snyder's office and/or Donald Pierce's truck. It is impossible to reconcile the sometimes conflicting stories on the source(s) of the documents. These inconsistencies and the questions raised regarding Ms. Adams' credibility lead to the conclusion that Petitioner has not met its burden of proof in this case. While it is conceivable that Virginia Snyder and/or Donald Pierce had some NCIC/FCIC records in their possession at certain times, it can not be concluded from the evidence produced in this case that Respondent was the source of any of those documents. There are a number of possible ways that Ms. Adams, Ms. Snyder and/or Donald Pierce could have obtained copies of NCIC/FCIC printouts. In fact, in earlier testimony Ms. Adams alluded to another alleged source that Ms. Snyder and Mr. Pierce had at the DBPD and/or the sheriff's office. While the explanations offered by Respondent as to why he requested certain criminal history records were not totally satisfactory, the evidence was not clear and convincing that Respondent turned such documents over to any unauthorized individual. Phone lists Ms. Adams also testified that Respondent provided Virginia Snyder with confidential phone lists of the Delray Beach police officers. The evidence established that those phone lists were widely disseminated and that Virginia Snyder had access to those lists from several sources. In fact, Ms. Snyder had copies of such lists dating back more than ten years, even though there is no evidence that Ms. Snyder had any dealings with Respondent until 1989 when Donald Pierce began doing some work for her. Thus, it appears that Ms. Snyder had a source for obtaining the phone lists long before she ever met Respondent. The evidence was not convincing that Respondent directly provided any such lists to Virginia Snyder. Respondent admits providing some phone lists to Donald Pierce in connection with Mr. Pierce's continuing involvement with the police union. Petitioner has not established that the dissemination of the phone lists to Donald Pierce was improper. Conclusion Respondent admits "running license tags" for Donald Pierce on the computer and verbally providing Mr. Pierce with the resulting non-confidential information. However, he denies ever providing any NCIC/FCIC criminal record printouts to Donald Pierce, Virginia Snyder or Nancy Adams. Respondent's close association with Donald Pierce and his willingness to provide him with phone lists and verbal information obtained from "running license tags" certainly raises some questions as to his judgment. In addition, Respondent did not carefully guard the confidentially of the criminal history records that he admittedly obtained. However, the evidence indicates that such information was not closely protected throughout the Department. In sum, the evidence did not clearly and convincingly establish that Respondent was lacking of good moral character.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order finding the evidence insufficient to prove that Respondent is guilty, as charged, of having failed to maintain "good moral character" in violation of Section 943.1395, Florida Statutes, and dismissing the Administrative Complaint issued against him. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 8th day of March 1994. J. STEPHEN MENTON 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 8th day of March 1994. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 92-6175 As noted in the Preliminary Statement, only Petitioner submitted separately identified and numbered proposed findings of fact. The following rulings are made on the proposed findings of fact submitted by Petitioner. Adopted in substance in findings of fact 1. Adopted insubstance in findings of fact 21. Rejected as unnecessary. The subject matter is addressed in findings of fact 30. Adopted in pertinent part in findings of fact 31. Adopted in pertinent part in findings of fact 24 and 30. Rejected as unnecessary. The subject matter is addressed in findings of fact 30. Adopted in substance in findings of fact 22. Adopted in substance in findings of fact 22. Adopted in substance in findings of fact 23. Rejected as unnecessary. The subject matter is addressed in findings of fact 30. Addressed in the Preliminary Statement. Rejected as unnecessary. Rejected as unnecessary. Subordinate to findings of fact 16 and 27-30. 15-21. Subordinate to findings of fact 16 and 27-30. COPIES FURNISHED: John P. Booth, Esquire Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jack Scarola, Esquire Searcy, Denney, Scarola, et al. 2139 Palm Beach Lakes Boulevard Post Office Drawer 3626 West Palm Beach, Florida 33402-3626 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether the Petitioner has presented clear and convincing evidence that she is of good moral character so as to receive an exemption from disqualification from employment with children or adults who are severely developmentally disabled, pursuant to Section 435.07(7), Florida Statutes (1997).
Findings Of Fact Autumn Nichols is a 20 year-old woman living in her mother's home. She dropped out of school at age 16, and is currently studying to obtain a high school equivalency diploma (GED). Petitioner was arrested and charged with domestic violence-battery in October 1995. She was subsequently adjudicated delinquent in the circuit court (juvenile division) and was placed on community control for a year, attended a law awareness class and a jail tour, performed 25 hours of community service and participated in an anger management class. Petitioner successfully completed her sanctions. On or about October 10, 1995, Petitioner became involved in a verbal argument with her brother. The argument escalated into a physical fight. Petitioner made threats to kill her brother and attempted to get a knife. The police arrested her and she was placed in the Juvenile Detention Center. Two days later, Petitioner was hospitalized due to severe emotional problems. Following the hospitalization, Petitioner was in residential treatment at Devereaux treatment center. She remained at Devereaux for six months and then attended the out- patient program. The episode with her brother, when she was 17, was her last episode of violence. Petitioner no longer verbalizes her anger. Petitioner has never had violent episodes outside the home. Petitioner was diagnosed with bi-polar disorder. She has been hospitalized at least five times. Two of those hospitalizations were involuntary commitments (Baker Act). Petitioner, as recently as six months ago, checked herself into a residential treatment facility for depression. Petitioner's job experience has been limited due to her age. She worked for her mother caring for children in her mother's family daycare for one to two years in her early teens. When Petitioner was 18, she worked a summer job for her father in a restaurant, and at 19, Petitioner worked for three months as a telemarketer. In January 1998, Petitioner was hired by Tutor Time daycare center. She worked at the daycare for three months until she was disqualified from employment. Although Petitioner has demonstrated a sincere desire to work with children, she has failed to prove by clear and convincing evidence that she is rehabilitated. Insufficient time has elapsed since the incident, her mental health issues are too extensive and her work history is inadequate to show that she no longer presents a danger to children.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's request for exemption from disqualification for employment in a child care facility be DENIED. DONE AND ENTERED this 3rd day of November, 1998, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 3rd day of November, 1998. COPIES FURNISHED: Carmen Sierra, Esquire Department of Children and Family Services 400 West Robinson Street Orlando, Florida 32801 Autumn Nichols 513 Teakwood Drive Altamonte Springs, Florida 32714 Gregory D. Venz, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700 Richard Doran, General Counsel Department of Children and Family Services 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700
Findings Of Fact The Petitioner, Francisco Palafox, Jr., made applications for licensure as an unarmed guard and an armed guard. In both applications he answered that he had never been arrested. The Petitioner's fingerprints were checked by the Respondent Division through the Federal Bureau of Investigation, and a record of arrest in San Francisco, California, was revealed for Frank Madrano Palafox, Social Security #560-96-6038, born January 14, 1953, in Arizona. Correspondence with the authorities resulted in receipt of records from San Francisco, California (Exhibit 1), which reveal that Frank Madrano Palafox was arrested and charged on August 21, 1973, with possession of a prohibited weapon, but later the charge was dropped to prohibited loitering while carrying a concealed weapon, a misdemeanor. Palafox's occupation on these records is given as Army. The Petitioner produced his military records of discharge (DD 214), on which Petitioner's name, birth date, social security number and birth place were the same as that on the FBI report. Petitioner said that at the time of his arrest he had loaned his identification to another soldier. However, his DD 214 show that he was on leave at the time the arrest occurred, and that he was charged for excessive unearned military leave for the same number of days the arrest record shows that Palafox was jailed. The Petitioner then remembered he was arrested for "aiding and abetting prostitution." The Petitioner did not report the arrest for aiding and abetting on his application.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Petitioner's applications for licensure as an unarmed guard and an armed guard be denied. DONE and ORDERED this 9th day of January, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: W. J. Gladwin, Jr., Esquire Assistant General Counsel Department of State The Capitol Tallahassee, Florida 32301 Mr. Francisco Palafox, Jr. 1551 Michigan Avenue, Apt. 12A Miami Beach, Florida 33139
The Issue Whether the Petitioner should be granted an exemption from disqualification for failure to meet minimum screening requirements for good moral character as specified by Section 409.175(2)(h), Florida Statutes (1995).
Findings Of Fact On May 11, 1986, an officer from the Office of Sheriff, Jacksonville, Duval County, Florida, arrested and charged Petitioner with battery on a spouse, a violation of Section 784.03, Florida Statutes, a first degree misdemeanor. The incident arose when Petitioner's wife, Keturah Latimer, took the family car to arrange a visit between Petitioner's stepson and the stepson's father. Angered by his wife's actions, Petitioner struck her with his fists causing considerable bruising to her forehead and head. He was twenty-eight years old at that time. Petitioner spent thirteen days in jail and was released on bond. The record does not indicate the exact disposition of the case. However, Petitioner admits that he struck his wife. He also expressed remorse for his behavior. Petitioner has a clean record subsequent to this incident in May of 1986. He is now thirty-eight years old. Petitioner is raising his stepson, Demetrius, as his own son. Petitioner and his wife are attempting to adopt Lashon, the daughter of a family friend. Respondent's protective services staff placed Lashon in the Latimer's home when Lashon was three weeks old. Lashon is now three years old. The Respondent's protective supervision staff conducted a home study which found the Petitioner's home to be an appropriate placement for Lashon. Petitioner has been employed for the past nine (9) years with Premier Plastering doing stucco work. Petitioner attends church occasionally at Macedonia Baptist Church and his wife and children attend We're for Jesus Church. The Latimer's have been married for seventeen (17) years and have three (3) sons of their own; they have had no involvement with Respondent's protective investigations staff. Petitioner and his family attended and completed Respondent's training for prospective foster parents.
Recommendation Based upon the findings of fact and the conclusions of law, it is, recommended that Respondent enter a Final Order granting Petitioner an exemption from disqualification from employment as a family foster home parent. DONE and ENTERED this 19th day of July, 1996, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 1996. APPENDIX The following constitutes the undersigned's rulings on the parties' proposed findings of fact. Petitioner's Proposed Findings of Fact Petitioner did not file proposed findings of fact. Respondent's Proposed Findings of Fact. 1-10. Accepted in substance and as restated in Findings of Fact 1-12 of this Recommended Order. The undersigned agrees with Respondent's findings of fact but not with the proposed conclusions of law. The testimony presented by the Latimers was very persuasive. COPIES FURNISHED: Roger L. D. Williams, Esquire Department of Health and Rehabilitative Services Post Office Box 2417 Jacksonville, Florida 32231-0083 Lawrence D. Latimer 1608 Golf Forest Drive Jacksonville, Florida 32205 Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services Building 7, Suite 728 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard Doran, Esquire Department of Health and Rehabilitative Services 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Respondent is guilty of having obtained a real estate license by fraud, misrepresentation, or concealment in violation of Subsection 475.25(1)(m), Florida Statutes (2004). Whether Respondent is guilty of failure to comply with Florida Administrative Code Rule 61J2-2.027(2), and, therefore, is in violation of Subsection 475.25(1)(e), Florida Statutes (2004).
Findings Of Fact Petitioner is the state agency charged with the responsibility and duty to prosecute administrative complaints pursuant to Section 20.165 and Chapters 120, 455, and 475, Florida Statutes (2004). At all times material, Respondent was a licensed Florida real estate sales associate, issued license number 3019284 in accordance with Chapter 475, Florida Statutes (2004). Petitioner has jurisdiction over disciplinary proceedings for the Florida Real Estate Commission (Commission). Petitioner is authorized to prosecute administrative complaints against licensees within the Commission's jurisdiction. On or about August 6, 2001, Respondent submitted to Petitioner an application for licensure as a real estate salesperson. Respondent signed a sworn affidavit on the application which indicated that Respondent carefully read the application, answers, and the attached statements, if any, and that all such answers and statements were true, correct, and complete to his knowledge without any evasions or mental reservations. Question 9 on the application asks: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no Contest), even if adjudication was withheld: This question applies to a violation of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. If you intend to answer "NO" because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, or applicable law of another state, you are responsible for verifying the expungement or sealing to answering "NO." If you answered "Yes," attach the details including dates and outcome, including any sentence and conditions imposed, in full on a separate sheet of paper. Your answer to this question will be checked against local, state and federal records. Failure to answer this question accurately could cause denial of licensure. If you do not fully understand this question, consult with an attorney or the Division of Real Estate. Respondent marked the "Yes" box on the application in response to this question and provided insufficient or no explanation for the incidents in his criminal history. Respondent signed the "Affidavit of Applicant." Respondent's signature was duly notarized, and the application was submitted. Relying on Respondent's incomplete representations, Petitioner issued Respondent a Florida real estate salesperson's license. Petitioner subsequently performed a background check and discovered the following: In 1998, Respondent was adjudicated guilty of DUI. In 1987, Respondent was adjudicated guilty of possession of a controlled substance. In 1986, Respondent was adjudicated guilty of driving under the influence of liquor. In 1985, Respondent was adjudicated guilty of driving a motor vehicle while his license was suspended. In 1985, Respondent was adjudicated guilty of simple assault and battery. Respondent failed to include the above-mentioned adjudications on his application for licensure. Petitioner's Exhibits 2, 3, 4, 5, and 6 are copies of court documents demonstrating that Respondent was adjudicated guilty in each unreported offense. Respondent testified that he failed to report the adjudications until August 20, 2003. However, Respondent's reporting of the adjudications occurred after Petitioner discovered them and prompted Respondent to explain.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order declaring Respondent has been found guilty of violating Subsection 475.25(1)(m), Florida Statutes (2004), and Florida Administrative Code Rule 61J2-2.027(2), and, therefore, Subsection 475.25(1)(c), Florida Statutes, as charged in the Administrative Complaint, and suspending Respondent's license until June 30, 2005, and requiring that Respondent pay a $1,000 fine. DONE AND ENTERED this 1st day of June, 2005, in Tallahassee, Leon County, Florida. S WILLIAM R. PFEIFFER 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 1st day of June, 2005. COPIES FURNISHED: James P. Harwood, Esquire Department of Business and Professional Regulation Hurston Building North Tower Suite 801N 400 West Robinson Street Orlando, Florida 32801 Michael G. Nichola, Esquire 800 North Ferncreek Avenue Orlando, Florida 32803 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 32801
