The Issue Whether Petitioner should be given an exemption from employment disqualification pursuant to Section 435.07, Florida Statutes.
Findings Of Fact At the age of twenty-eight, Petitioner, Alexander Fonseca (Fonseca), was arrested for felony possession of marijuana on February 21, 1989. For this charge, adjudication was withheld, and Fonseca was credited for time served. Petitioner's other criminal history includes a 1983 arrest for misdemeanor possession of marijuana for which he was credited for time served; a 1988 arrest for driving with a suspended license for which adjudication was withheld; a 1988 arrest for driving with a suspended license for which he was found guilty; and a 1991 arrest for reckless driving for which adjudication was withheld. In April 1999, Fonseca sought employment as a Juvenile Probation Officer with the Department. In conjunction with his application for employment, Fonseca was required to submit to the Department's background screening process since he would be working with juveniles. Fonseca was told by a receptionist with the Department that if he had a criminal record he would not be hired. As part of the application and background screening process, Fonseca submitted a State of Florida application and an Affidavit of Good Moral Character. Fonseca failed to disclose on both of these documents his felony arrest for and adjudication withheld on felony possession of marijuana. The affidavit contained Fonseca's notarized signature dated April 27, 1999, attesting to the following statement: I attest that I have read the above carefully and state that my attestation here is true and correct that neither my adult nor juvenile record contains any of the listed offenses. I understand that it is my responsibility to obtain clarification on anything contained in this affidavit which I do not understand. I am aware that any omissions, falsifications, misstatements or misrepresentations may disqualify me from employment consideration and, if I am hired, may be grounds for termination at a later date. Fonseca did not disclose his criminal history because, based on what the receptionist told him, he did not believe that he would get the job if he revealed that he had a criminal history. His failure to disclose his criminal history was not an error or oversight. It was intentional. A Florida criminal history conducted by the Department revealed Fonseca's 1989 arrest for felony possession of marijuana. As a result, on May 6, 1999, Fonseca was determined to be disqualified and ineligible for a position in the Department working with juveniles. In a letter dated June 1, 1999, the Department advised Fonseca that he could request a desk review to pursue an exemption from employment disqualification. Fonseca was required to submit specified documentation, which he did. As Inspector General for the Department, Perry Turner makes the final departmental decision on exemption requests. In an interoffice memorandum dated July 29, 1999, Fonseca's exemption request was forwarded to Mr. Turner along with Fonseca's complete background screening file. In a desk review, Mr. Turner does not interview the applicant's seeking an exemption. Each applicant has an opportunity to submit to the Department documentation, which he desires the Department to consider in determining whether an exemption should be granted. In reaching his decision, Turner reviewed Fonseca's background screening file and the documentation submitted by Fonseca. On July 30, 1999, Turner denied Fonseca's request for an exemption. The denial was based upon the totality of the circumstances surrounding Fonseca's prior criminal history and his falsification of the notarized Affidavit of Good Moral Character. Mr. Turner notified Fonseca of the denial in a letter dated August 1, 1999. From his early teens until approximately ten years ago, Fonseca was heavily involved with drug and alcohol use and was chemically dependent. He sought help for his dependency and has been clean and sober since 1991. Fonseca is actively involved in the 12-Step Programs of Alcoholics Anonymous and Narcotics Anonymous. In 1992, Fonseca decided to go back to school. He graduated with a degree in criminal justice in 1998. Fonseca did not present any information to the Department concerning his addiction prior to the denial of his exemption request.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Alexander Fonseca's application for an exemption from disqualification from employment pursuant to Section 435.07, Florida Statutes. DONE AND ENTERED this 27th day of April, 2000, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 27th day of April, 2000. COPIES FURNISHED: William G. "Bill" Bankhead, Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Alan K. Marcus, Esquire 7300 North Kendall Drive, Suite 540 Miami, Florida 33156 Lynne T. Winston, Esquire Department of Juvenile Justice Inspector General's Office 2737 Centerview Drive Tallahassee, Florida 32399-3100
The Issue The issue in this case is whether disciplinary action should be taken against Respondent's license to practice medicine based upon the alleged violation of Section 458.331(1)(c), Florida Statutes, set forth in the Administrative Complaint filed by Petitioner.
Findings Of Fact At all times pertinent to this proceeding, Respondent was a licensed physician in Florida having been issued license number ME 0004260. It is clear that Respondent was licensed to practice medicine in the State of Florida sometime prior to 1973. There are some indications in the record that Respondent has been licensed since approximately 1949. However, no conclusive evidence was presented on this point. There is no evidence of any prior disciplinary action against Respondent's medical license except for the charges in DOAH Case No. 93-2858 which was heard immediately after the hearing in this case. A Recommended Order in that case has been issued this same date. Although no conclusive evidence was presented in this case, the record in Case No. 93-2858 established that Respondent is certified by the American Board of Psychiatry and Neurology and that he also holds a Ph.D. in psychology and is a licensed psychologist. During 1989 and 1990, Respondent encountered a number of personal problems, including the loss of two brothers, the diagnosis of a sister with cancer, involvement in a number of bad business deals and significant tax problems with the IRS. From late 1989 until approximately February, 1990, Respondent treated a patient named Dale Bowlin for migraine headaches. During this period, Respondent saw Mr. Bowlin approximately thirty times in a professional capacity. Respondent knew that Dale Bowlin was an Assistant Director of the Metro-Dade Police Department. On or about August 23, 1990, Respondent called Dale Bowlin and asked Mr. Bowlin to come to his office to discuss an urgent matter. Pursuant to Respondent's request, Mr. Bowlin met with Respondent on or about August 24, 1990 at Respondent's office located at N.W. 31st Avenue and 7th Street, Miami, Florida. During that meeting, Respondent asked Mr. Bowlin to find someone to "plant" illegal narcotics on a local attorney, later identified as Arthur Spiegel, in order to have him arrested. Respondent indicated that Mr. Spiegel was married to the daughter of a social acquaintance of Respondent and stated that he had provided marriage counseling to Mr. Spiegel and his former wife. Respondent expressed a great deal of concern that Mr. Spiegel's alleged ability to manipulate the legal system during a difficult custody battle that occurred when the Spiegels dissolved their marriage. Respondent felt that Mr. Spiegel had been abusive during the marriage and was not a very good father. The evidence presented in this case established that Respondent was obsessed with finding some way to correct what he perceived to be the deferential or favored treatment that Mr. Spiegel received in the custody dispute. Respondent even hinted that Mr. Spiegel should be severely injured or killed. However, the evidence did not establish that Respondent ever seriously pursued those goals. Instead, he focused on having Mr. Spiegel "set up" and arrested. After returning to his office, Mr. Bowlin discussed Respondent's expressed desires with other members of the police department. A plan was devised to send another police officer, Kennedy Rosario, to meet with Respondent and pretend to cooperate with Respondent's requests. All of the subsequent meetings between Respondent and Detective Kennedy Rosario were recorded on audio tape and/or videotapes. Tapes of those meetings have been accepted into evidence. On or about August 27, 1990, Detective Kennedy Rosario of the Metro- Dade Police Department went to Respondent's office. During that meeting, Respondent offered Detective Rosario five thousand dollars ($5,000.00) to falsely arrest Mr. Spiegel for possession of drugs, specifically cocaine. Respondent wrote Mr. Spiegel's name and address on a page of Respondent's prescription pad and gave it to Detective Rosario. Respondent met for a second time with Detective Rosario at approximately 6:30 p.m. on August 27, 1990, at which time Respondent gave Detective Rosario additional information on Arthur Spiegel. Respondent's last meeting with Detective Rosario took place at approximately 4:00 p.m. on August 28, 1990, at which time Respondent told Detective Rosario that the drugs should be found on Mr. Spiegel and Mr. Spiegel should be arrested while Mr. Spiegel had his child with him. During that final meeting, Respondent gave Detective Rosario two thousand dollars ($2,000.00) as partial payment for setting up Mr. Spiegel to be arrested for possession of cocaine. At the conclusion of the August 28, 1990 meeting, Respondent was arrested and subsequently charged in the Eleventh Judicial Circuit in and for Dade County with two felony counts of bribery of a public official: one count was for allegedly offering money to Dale Bowlin to falsely arrest Arthur Spiegel, the second count was for allegedly offering money to Kennedy Rosario to falsely arrest Arthur Spiegel. Respondent's arrest and the subsequent criminal proceedings received a great deal of media coverage and notoriety. A jury trial was conducted on the criminal charges following which Respondent was acquitted of the first bribery count involving Dale Bowlin, and found guilty of the second bribery count involving Detective Rosario. The jury did not find that Respondent was insane at the time of the alleged offense. The conviction on the second count was subsequently reversed by an appellate court because the trial judge had incorrectly failed to dismiss a juror for cause. The Dade County State Attorney's Office sought to retry Respondent on the second bribery count. Respondent claimed that any such retrial was precluded because, among other things, it would constitute double jeopardy. Ultimately, the prosecutor's office and Respondent's counsel agreed to a plea bargain pursuant to which the felony bribery count was nolle prossed and Respondent agreed to pled nolo contendere to a misdemeanor charge of solicitation which was set forth in an Amended Information. Respondent claims that he only agreed to the plea bargain because the felony charges were dropped and he did not want to subject himself or his family to another trial. In respect to Respondent's motivation for entering the plea, the evidence presented in this case, including the audio and video tapes, conclusively established the facts set forth herein. Respondent formally entered the plea on or about February 23, 1993 in Case No. 90-34903-05 in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County. Specifically, Respondent pled nolo contendere to one count of violating Section 777.04(4)(d), Florida Statutes, for requesting Kennedy Rosario to "falsify an official record or official document of the Metro-Dade Police Department with corrupt intent to ... cause unlawful harm to another". Section 777.04(4)(d), Florida Statutes, provides as follows: Whoever commits the offense of criminal attempt, criminal solicitation, or criminal conspiracy shall be punished as follows: * * * (d) If the offense attempted, solicited, or conspired to is a felony of the third degree, the person convicted is guilty of a misdemeanor of the first degree, punishable as provided in s.775.082 or s.775.083. The basis for the plea agreement was Respondent's alleged solicitation of Kennedy Rosario of the Metro-Dade Police Department to violate Section 839.25, Florida Statutes. Section 839.25, Florida Statutes, provides as follows: "Official misconduct" means the commission of the following act by a public servant, with corrupt intent to obtain a benefit for himself or another or to cause unlawful harm to another: (b) knowingly falsifying or causing another to falsify any official record or official document. * * * "Corrupt" means done with knowledge that act is wrongful and with proper motives. Official misconduct under this section is a felony of the third degree, punishable as provided in s. 775.082, s.775.083 or s.775.084. The "official document" referred to in the solicitation count was the arrest warrant for Arthur Spiegel. The "unlawful harm to another" described in the solicitation count referred to the harm Respondent intended to cause to Arthur Spiegel by having him falsely arrested. Respondent points out that the Court accepted the plea agreement without any inquiry and without making any specific findings as to the factual or legal basis for the plea. Respondent was not present at the time the plea agreement was accepted by the Court and Respondent did not give any oral allocution as to the factual basis for the plea. The plea agreement was presented to and accepted by the same judge who presided over Respondent's criminal jury trial. After the entry of the plea, the remaining felony count of bribery against Respondent was dismissed and Respondent was released without further conditions as he had already served over a year on house arrest. During the course of the hearing in this case, there were suggestions by the attorneys that at some point in January 1991, Petitioner initiated proceedings against Respondent to determine his sanity as a result of some of the matters that came to light in the criminal case. Respondent was apparently examined by a psychiatrist appointed by Petitioner. The results of that examination are not part of the record of this proceeding. However, it appears that Respondent has been permitted to continue practicing medicine. As a result of the jury verdict in the initial criminal proceeding, Petitioner filed an Administrative Complaint against Respondent on August 27, 1991, seeking to impose disciplinary action against Respondent on the grounds that Respondent had violated Section 458.331(1)(c), Florida Statutes. After Respondent's conviction was reversed, Petitioner issued a Closing Order on May 23, 1992, dismissing the original Administrative Complaint. This present case was initiated on July 23, 1993 when Petitioner filed a new Administrative Complaint against Respondent following the entry of the nolo contendere plea to the misdemeanor charge.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of violating Section 458.331(1)(c), Florida Statutes, as alleged in the Administrative Complaint. As a penalty for the violation, Respondent's license to practice medicine should be suspended for one (1) year followed by a three- year term of probation. The suspension should be stayed if and when Respondent can demonstrate to the Board that he is currently of good moral character and emotionally stable enough to safely practice medicine. In addition, an administrative fine in the amount of two thousand dollars ($2,000) should be imposed. DONE AND RECOMMENDED this 24th day of May, 1995, in Tallahassee, Leon County, Florida. 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 24th day of May, 1995.
Findings Of Fact Petitioner Victor Rudolph Cobham made application for filing for examination as a Life and Health Agent on February 12, 1987, (hereafter, "application"). Question 8 of that application and Petitioner's answers thereto read as follows: Have you ever been charged with a felony? Yes If YES, give date(s): Dec. 16, 1983 What was the crime? Possession of cocaine & cannabis Where and when were you charged? Dade County, Dec. 16, 1983 Did you plead guilty or nolo contendere? Nolo Contendere on Appeal Were you convicted? Yes - Conviction reversed by 3rd District Court of Appeal Was adjudication withheld? See attachments to application Please provide a brief description of the nature of the offense charged. See attachments to application If there has been more than one felony charge, provide an explanation as to each charge on an attachment. Certified copies of the Information or Indictment and Final Adjudication for each charge is required. In response to the above question 8 Petitioner listed no other charges, convictions, or pleas, however he had, in fact, been charged on at least three other occasions. Petitioner was charged by an August 3, 1978 Information with possession of a controlled substance (cocaine), possession of cannabis in a felony amount, and possession or sale of a controlled substance implement (paraphernalia) in Case No. 78-7960 in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida. All of these charges were felony charges. Petitioner plead guilty to all charges. Adjudication of guilt was withheld. Petitioner was also charged by a September 18, 1978 Information with failure to redeliver a hired vehicle (rental car) in Case No. 78-10543 in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, which charge constitutes a felony. Petitioner pled guilty. Adjudication was withheld. In 1967, Petitioner was also charged with passing a worthless bank check but the charges were dropped because the check was paid. Whether this was a felony or misdemeanor charge is not clear. On March 31, 1987, the Insurance Commissioner denied Petitioner's application to sit for the insurance agent's examination due to this failure to divulge in his responses to question 8 of his application the facts contained in findings of fact 4-6, supra. Petitioner's position was that he had subconsciously omitted the information on the two 1978 charges due to the lapse of time and that since these charges did not result in any "convictions" no fraud was committed by him in failing to disclose them in response to question 8 of the application. He further asserted that because the Third District Court of Appeal reversed his conviction in the 1983 case, he had a "clean record." He offered no specific explanation for failing to reveal the 1967 charges except that with respect to all charges, he also asserted that he had assumed the agency would do an extensive background check as a result of his admission concerning the 1983 charge and would therefore discover all the charges prior to 1983 as well. Having weighed the credibility of Petitioner's testimony; the undersigned finds that Petitioner committed a material misstatement, misrepresentation, and fraud upon his application and that his reasons for his misstatement, misrepresentation and fraud are neither logical nor credible as mitigation therefor. Petitioner was previously a licensed insurance agent but has allowed his licensure to lapse. He has worked in insurance in one way or another for most of his adulthood. He is now an articulate 56 year old man who has completed two years of college. By education, training, and experience, Petitioner knows the difference between a charge and a conviction. Question 8 on the application requested that he list and explain all charges, not just convictions. It asked for types of pleas entered and whether adjudication had been withheld, thereby giving Petitioner every opportunity to explain the status of his record. Petitioner is knowledgeable about the various nuances of the judicial dispositions of each of the charges brought against him, and his failure to reveal them on his application can only be construed as deliberate misstatement, misrepresentation, and fraud.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that the Department of Insurance and Treasurer enter a final order denying Petitioner's application for filing for examination as a Life and Health Agent. DONE and RECOMMENDED this 10th day of September, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1987. COPIES FURNISHED: William Gunter Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Angelo A. Ali, Esquire 400 Roberts Building 26 West Flagler Street Miami, Florida 33130 Lealand L. McCharen, Esquire Department of Insurance and Treasurer Larson Building Tallahassee, Florida 32399-0300 =================================================================
The Issue The issue presented for decision in this case is whether the Petitioner is eligible for an exemption from disqualification to work in a position of special trust pursuant to the terms of Section 435.07, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: Petitioner has worked as a certified nursing assistant at Highland Pines Rehabilitation and Nursing Center in Clearwater for the past six years. A recommendation letter from the Director of Nursing characterizes Petitioner as an excellent, reliable, and trustworthy employee. Petitioner is disqualified from working in a position of special trust as a result of a 1991 conviction for grand theft under Section 812.014, Florida Statutes. Petitioner was also been convicted of petit theft in the same case. Both crimes involved passing forged checks. She was initially given a sentence of four years probation, but was imprisoned in 1992 for violation of her probation conditions. In 1996, Petitioner was found guilty of welfare fraud in violation of Section 409.325(1), Florida Statutes (1995). She was placed on community control for a period of one year, to be followed by three years of probation. A letter from the Department of Corrections indicates that Petitioner’s probation is now scheduled to terminate on April 18, 2000, with a possibility of early termination provided all conditions have been satisfied. Petitioner has not violated the terms of her probation on this conviction. Petitioner testified that her criminal activities were due to “financial difficulties” and drug use. She testified that she now believes herself to be rehabilitated and ready to put her past behind her. Petitioner testified that she has not entered into any sort of structural rehabilitation program or received counseling in connection with her rehabilitation efforts. Her testimony was essentially that she has turned her life around on her own. Petitioner applied to Respondent for an exemption. A hearing was held by the Exemption Review Committee on February 17, 1998. The Exemption Review Committee recommended to the District Administrator that the requested exemption be denied. After reviewing the record and the Exemption Review Committee’s recommendation, the District Administrator concurred with the committee’s recommendation and denied Petitioner’s request by letter dated March 18, 1998. Upon consideration of all available information and the record of Petitioner’s adjudication for felony theft and her current placement on probation for welfare fraud, the District Administrator concluded that, due to the serious nature of the adjudications and her current probationary status, there has not been sufficient opportunity for Petitioner to demonstrate rehabilitation. Petitioner failed to offer any evidence of her rehabilitation, beyond her testimony that she has changed her ways and the fact that she has thus far served her current probation without incident. While several years have passed since the grand theft conviction that compelled disqualification, Petitioner’s subsequent history is also relevant to Respondent’s decision. Petitioner’s conviction in 1996 of welfare fraud certainly provided Respondent with reason to believe that Petitioner had not demonstrated rehabilitation.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Children and Family Services enter a Final Order denying Petitioner an exemption to work in a position of special trust. DONE AND ENTERED this 19th day of August, 1998, in Tallahassee, Leon County, Florida. 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 Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1998. COPIES FURNISHED: Linda Susan Floyd, pro se 13149 119th Street North Largo, Florida 33778 Amy V. Archibald, 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 1317 Winewood Boulevard Building Two, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue is whether Respondent, Florida Commission on Human Relations (FCHR), should pay Petitioners' attorney's fees and costs under section 57.111, Florida Statutes (2013),1/ the Florida Equal Access to Justice Act, for initiating DOAH Case No. 12-2074.
Findings Of Fact On August 15, 2011, John and Kimberly Whitt (Whitts) filed a complaint of housing discrimination with the United States Department of Housing and Urban Development alleging disability discrimination. FCHR conducted an investigation of the complaint. During the investigation, the investigator obtained statements and documents from both parties. The investigator's final investigative report (Determination, found within Respondent's Exhibit 1) detailed the investigation. The Determination dated December 21, 2011, concluded that "there [was] reasonable cause to believe that a discriminatory housing practice occurred in violation of 804(f)(3)(A) of the Fair Housing Act, as amended." On March 2, 2012, FCHR issued a Legal Concurrence: Cause. The Legal Concurrence, drafted by FCHR's senior attorney, concluded that "there [was] reasonable cause to believe that Respondents [Association] discriminated against Complainants [the Whitts] in violation of 42 U.S.C. §§ 3604(b) and (f)(2)(A) and section 760.23(2) and (8)(a), Florida Statutes." On March 5, 2012, FCHR's executive director executed the Notice of Determination (Cause), charging that there was reasonable cause to believe that the Association had engaged in a discriminatory housing practice. The Whitts elected to have FCHR represent them to seek relief in an administrative proceeding against the Association. On June 14, 2012, FCHR filed a Petition for Relief (Relief Petition) with DOAH seeking an order prohibiting the Association from engaging in any unlawful housing practices, and granting damages. The final hearing in the underlying case was held before the undersigned on December 12, 2012. The undersigned entered a Recommended Order on February 15, 2013, recommending the dismissal of the Relief Petition filed on behalf of the Whitts. On May 2, 2013, FCHR entered a Final Order dismissing the petition for relief filed on behalf of the Whitts. The Association was the prevailing party in the underlying case. The Association is a not-for-profit corporation that does not have any employees. The Association relies solely on volunteers to run its operations. It has never had a net worth of two million dollars or more. The Association was represented by counsel and co- counsel in both proceedings. In the Fees Petition, the Association alleged it had incurred $75,657.00 in legal fees. At hearing, the Association provided a document which reflected that $5,945.00 in fees should not have been attributed to the instant case, thus setting the amount the Association was seeking at $69,712.00. However, the Association acknowledged that section 57.111(4)(d) 2., Florida Statutes, limited the recovery of attorney's fees and costs to $50,000. FCHR is a "state agency" for the purposes of this proceeding. See §§ 120.57(1) and 57.111(3)(f), Fla. Stat.
Findings Of Fact Respondent, George Thomas Darby, at all times relevant to these proceedings, was licensed as a professional bail bondsman and limited surety agent. The Respondent was previously licensed as an ordinary-combination life, including disability agent, but such license expired on March 30, 1981. On January 7, 1982, a grand jury indictment was issued in the United States District Court for the Northern District of Florida, Panama City Criminal Division, against the Respondent, George Thomas Darby. The indictment specifically charged that the Respondent: Did knowingly combine, conspire, confederate agree, and have a tacit understanding with other stated individuals to possess with the intent to distribute more than 1,000 pounds of the Schedule I control substance marijuana, in violation of Sections 841 and 846 of Title 21 of the United States Code. Did knowingly combine, conspire, confederate agree, and have a tacit understanding with other specified persons to import into the United States the Schedule I control substance marijuana in violation of Sections 952 and 963 of Title 21 of the United States Code. Did knowingly and intentionally import into the United States a Schedule I control substance in violation of Section 952 of Title 21 and Section 2 of Title 18 of the United States Code. Did knowingly and intentionally possess with the intent to distribute the Schedule I control substance marijuana in violation of Section 841 of Title 21 and Section 2 of Title 18 of the United States Code. On July 14, 1982, George Thomas Darby was convicted in the United States District Court for the Northern District of Florida, Panama City Criminal Division, as follows: Defendant has been convicted as charged of the offense of from on or about January, 1975, until the date of the indictment, in the Northern' District of Florida and elsewhere, knowingly combining, conspiring, and agreeing with others to import marijuana into the United States, in violation of Title 21, U.S. Code, Sections 952 and 963, as charged in Count 111(3) of the indictment. Pursuant to the above conviction, the Respondent, George Thomas Darby, was sentenced to a term of five years imprisonment and fined $15,000. The Respondent, by answer, admitted and further, at the formal hearing by stipulation, accepted as true the following facts: That you, George Thomas Darby, on or about July 14, 1982, in the United States District Court of the Northern District of Florida, in Case No. MCR 82-00203-07, were found guilty of knowingly combining, conspiring and agreeing with others to import marijuana into the United States, in violation of Title 21, U.S. Code, Sections 952, and 953, as charged in Count 111(3) of a previous grand jury indictment, Criminal Case No. MCR82-00203. The violation of either of the aforementioned titles is a felony as defined by Title 18, U.S.C. Section I(1). The Respondent has been licensed as a professional bail bondsman since October, 1976. His primary business as a bail bondsman has been in Jackson County, Florida. The Respondent has had no prior criminal convictions and no complaints or other disciplinary actions by the Department of Insurance against any license held by him from that Department. The Respondent has voluntarily ceased writing bail bonds since February of 1982, to the date of the hearing. Prior to the above-referenced conviction, the Respondent enjoyed a reputation as an honest, hardworking, and law-abiding citizen in the Jackson County area. On January 31, 1983, Clyde M. Taylor, Jr., Esquire, counsel for the Respondent in the above-referenced criminal action, filed an appellate brief in the United States Court of Appeal for the Eleventh Circuit on behalf of George Thomas Darby, seeking to reverse the July 14, 1982, district court conviction. At the time of the formal hearing, this appeal was pending.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Insurance enter a Final Order dismissing its Administrative Complaint against the Respondent, George Thomas Darby. DONE and ENTERED this 27th day of July, 1983, in Tallahassee, Florida. COPIES FURNISHED: Clark R. Jennings, Esquire Department of Insurance Suite 413-B, Larson Building Tallahassee, Florida 32301 Clyde M. Taylor, Jr., Esquire 1105 Hays Street Tallahassee, Florida 32301 Honorable Bill Gunter Insurance Commissioner and Treasurer The Capitol Tallahassee, Florida 32301 MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1983.
The Issue Whether Petitioner's application for licensure should be denied based upon his prior disciplinary history by the Florida Bar and failure to provide proof of satisfaction of resulting cost judgments against him, as indicated in the Notice of Denial issued by Respondent on February 12, 2016.
Findings Of Fact DFS is the state agency responsible for licensing and regulation of insurance in Florida pursuant to chapter 626, Florida Statutes. On September 4, 2015, Petitioner, Jeffrey A. Norkin, applied for licensure as a life, including health and variable annuity, insurance agent. On February 12, 2016, DFS issued a Notice of Denial with respect to Petitioner's application based upon Petitioner's disciplinary history with the Florida Bar ("Bar") and his failure to pay amounts assessed in his suspension and disbarment proceedings. Petitioner's Background Petitioner graduated from the University of Miami Law School in 1992 and was admitted to the Florida Bar in 1993. Prior to attending law school, Petitioner worked for several months as a life insurance agent and for a commodities broker. Until his suspension from the practice of law on October 31, 2013, Petitioner maintained a successful general litigation practice in Broward County, Florida, handling commercial disputes and civil rights matters, including the representation of victims in police brutality cases. Petitioner's Disciplinary History as an Attorney Petitioner's 2003 Reprimand On April 20, 1999, in the case of Greenberg v. Hunter, U.S. District Court, Northern District of Florida, Case No. 4:99cv45 WS, Judge William Stafford issued a Contempt Order against Petitioner for, among other things, falsely accusing opposing counsel of improperly interrupting a deposition to coach his client. Judge Stafford noted: I have observed . . . [Petitioner] is constantly accusatory in tone and by choice of words. He has been consistently disrespectful to the court, to the lawyers, to the parties, to the witnesses. He has accused counsel of spoliation of the evidence, of illegal conduct, of unprofessional behavior, of lying. He has demeaned the justice system, law enforcement, and his own profession, and my profession. He has refused to accept the court's rulings. He has constantly argued about rulings once I've made them. . . . He has called not just one attorney incompetent, but almost every attorney that has appeared here either as a witness or as counsel of record, and even his own client's prior counsel . . . . He has berated the court. . . . The Fla. Bar v. Norkin, 132 So. 3d 77, 88 (Fla. 2013). Judge Stafford banned Petitioner from practicing in the Northern District for a year. As a result, the U.S. District Court for the Southern District of Florida instituted a disciplinary action pursuant to the Rules Governing Attorney Discipline, Local Rules for the Southern District of Florida, Rule V(B). The matter was ultimately referred to the Bar for prosecution and on September 24, 2003, the Florida Supreme Court in SC02-854,2/ in its capacity as the Bar Disciplinary Board, disciplined Petitioner for "disrespectful, accusatory, argumentative, and rude behavior," by issuing a public reprimand, entering judgment for the recovery of costs against Petitioner in the amount of $930.00, and instructed him to attend 30 hours of continuing legal education. The Fla. Bar v. Norkin, 132 So. 3rd at 87 (citing The Fla. Bar v. Norkin, 858 So. 2d 332 (Fla. 2003)(unpublished table decision). Petitioner's 2013 Suspension Petitioner represented David Beem in a commercial litigation dispute, Gary Ferguson, individually, and derivatively on behalf of Floors to Doors, Inc. v. David Beem and Floors to Doors, Inc., Circuit Court Case Number: 07-34790 CA 20, in the Circuit Court of the Eleventh Judicial Circuit in and for Miami- Dade County ("Ferguson v. Beem"), which began in 2007. The litigation was very contentious and opposing counsel representing Ferguson, Gary Brooks, initiated a grievance against Petitioner, which resulted in the Bar complaint filed against Petitioner in July 2011. On October 31, 2013, in The Florida Bar v. Norkin, supra, the Florida Supreme Court, again in its capacity as the Bar Disciplinary Board, suspended Petitioner's license to practice law for 24 months, issued him a public reprimand, placed him on probation for 18 months upon reinstatement of his license, assessed costs against him in the amount of $7,970.53, and assessed administrative fees against him in the amount of $1,250.00 for engaging in unprofessional conduct in the Ferguson v. Beem litigation. Petitioner was cited for violating the Rules Regulating the Florida Bar 4-3.5(c), 4-8.2(a), 4-8.4(a), and 4-8.4(d),3/ for disrupting several court hearings by yelling at judges and exhibiting disrespectful conduct, falsely accusing a senior judge of criminal conduct to berate him into withdrawing his request for a fee, and engaging in "relentless unethical and unprofessional" efforts to denigrate and humiliate opposing counsel. The court adopted the referee's findings of fact and recommendations as to guilt, because they were supported by competent, substantial evidence, including witness testimony, exhibits, and transcripts from the Ferguson v. Beem litigation. However, the court disapproved the referee's recommended sanction of a 90-day suspension and, instead, imposed a two-year suspension. The Court held: Competent, zealous representation is required when working on a case for a client. There are proper types of behavior and methods to utilize when aggressively representing a client. Screaming at judges and opposing counsel, and personally attacking opposing counsel by disparaging him and attempting to humiliate him, are not among the types of acceptable conduct but are entirely unacceptable. One can be professional and aggressive without being obnoxious. Attorneys should focus on the substance of their cases, treating judges and opposing counsel with civility, rather than trying to prevail by being insolent toward judges and purposefully offensive toward opposing counsel. This Court has been discussing professionalism and civility for years. We do not tolerate unprofessional and discourteous behavior. We do not take any pleasure in sanctioning Norkin, but if we are to have an honored and respected profession, we are required to hold ourselves to a higher standard. Norkin has conducted himself in a manner that is the antithesis of what this Court expects from attorneys. By his unprofessional behavior, he has denigrated lawyers in the eyes of the public. Norkin's violations of the Bar rules and unprofessional behavior merit a two-year suspension and a public reprimand. We direct Norkin to appear personally before this Court to receive the public reprimand. His unprofessional conduct is an embarrassment to all members of The Florida Bar. Id. at 93. Petitioner's conduct was considered so outrageous that the court, in footnote 5 stated, "Members of The Florida Bar, law professors, and law students should study the instant case as a glaring example of unprofessional behavior." Id. Petitioner's 2015 Disbarment The Court's opinion required Petitioner to fully comply with Rule Regulating the Florida Bar 3-5.1(h), which requires a suspended attorney to give notice of the suspension to all clients, opposing counsel or co-counsel, and all courts, tribunals, or adjudicative agencies before which the attorney is counsel of record by furnishing them with a copy of the suspension order. The rule also requires the suspended attorney, within 30 days of service of the order, to furnish Bar counsel with a sworn affidavit listing the names and addresses of all persons and entities to which notice was given. On December 31, 2013, the Bar filed a petition for contempt and order to show cause against Petitioner in case number SC13-2480 alleging that despite several notifications of his noncompliance, he had failed to submit the required affidavit to Bar counsel. On January 13, 2014, the Bar filed an amended petition also alleging that Petitioner had engaged in the practice of law after the effective date of the suspension. Petitioner admits ghostwriting numerous pleadings for Mr. Beem after his suspension, both in the Ferguson v. Beem litigation and in In Re: Gary Ferguson, Debtor, United States Bankruptcy Court Case Number 12-22368, in and for the Southern District of Florida ("Ferguson bankruptcy"). In the meantime, the Bar filed, in case number SC11- 1356, a motion for sanctions against Petitioner. The motion alleged that after having been suspended and publicly reprimanded by the Court, Petitioner sent Bar counsel three offensive and threatening e-mails evidencing "complete disregard for the contents of the Court's opinion, as well as the reprimand administered by Justice Polston." The motion also pointed out that Petitioner, through his countenance and physical conduct while the public reprimand was being administered in case number SC11-1356, showed his contempt for the court. The motion urged the court to disbar Petitioner. This motion was referred to the referee in case number SC13-2480 for a hearing and recommendation. On September 3, 2014, the referee filed a report and recommendation on the Bar's petition for contempt and the motion for sanctions. The referee found that based upon Petitioner's own response to the motion for summary judgment and testimony at the hearing, there were no genuine issues of material fact with respect to the allegations concerning Petitioner's failure to comply with Rule Regulating the Florida Bar 3-5.1(h). Similarly, based on Petitioner's response and his own testimony at the hearing, the referee found that there was no genuine issue of fact concerning whether he engaged in the practice of law after the effective date of his suspension. The referee also found that with regard to the Bar's motion for sanctions, Petitioner knowingly or through callous indifference disparaged, threatened, and humiliated Bar counsel, in violation of Rule Regulating the Florida Bar 4-8.4(d). Based on these findings, the referee recommended that Petitioner be found in contempt of the court's suspension order in SC11-1356, and that he be disbarred. The Florida Supreme Court unanimously approved the recommendation, permanently disbarred Petitioner from the practice of law, and entered a judgment against Petitioner for costs in the amount of $3,034.19. See The Fla. Bar v. Norkin, 183 So. 3rd 1018 (Fla. 2015). In support of its decision, the court reasoned: Moreover, given Norkin's continuation of his egregious behavior following his suspension and during the administration of the public reprimand, we conclude that he will not change his pattern of misconduct. Indeed, his filings in the instant case continue to demonstrate his disregard for this Court, his unrepentant attitude, and his intent to continue his defiant and contemptuous conduct that is demeaning to this Court, the Court's processes, and the profession of attorneys as a whole. Such misconduct cannot and will not be tolerated as it sullies the dignity of judicial proceedings and debases the constitutional republic we serve. We conclude that Norkin is not amenable to rehabilitation, and as argued by the Bar, is deserving of permanent disbarment. Id. at 1023. The Application On September 4, 2015, Petitioner began his application for licensure as a resident life, including variable annuity and health, insurance agent. On November 5, 2015, DFS sent Petitioner a deficiency letter asking for, among other things, proof that he "paid all outstanding monies due the Florida Bar for recovery of costs ($7,970.53) and administrative fees ($1,250.00), with reference to . . . Florida Supreme Court Case 11-1356." On November 17, 2015, DFS received a letter from Petitioner indicating that he had not paid the costs or fees assessed against him in the 2013 Action. Petitioner stated "[m]ost of them are nothing more than fabricated costs, invented, and unsupported in any way by the Florida Bar as a revenue producer and as an additional means of harassing me." This submission completed his application. Petitioner admits that to date, the assessments from the suspension and disbarment have not been paid, and he has no intention of paying them. On February 12, 2016, DFS informed Petitioner of its intent to deny his application based on the Bar proceedings against him. DFS did not interview anyone, including Petitioner, prior to denying the application. Matt Tamplin, DFS Bureau Chief of Licensing, made the decision to deny Petitioner's application for lack of fitness based on Petitioner's suspension, disbarment, and failure to pay the costs or fees the Bar assessed against him. The position for which Petitioner seeks licensure is one of public trust. Tamplin's rational for the application denial was that "Florida is a very diverse and vulnerable population" and that Petitioner's disciplinary history resulted in "very serious concerns about Mr. Norkin's failure to follow rules under a regulatory authority." Petitioner's Position Petitioner does not dispute his disciplinary record or the fact that the fees assessed are not paid. However, he takes no responsibility for his actions, which resulted in his suspension and disbarment. He claims that every negative allegation against him "has been a total lie." For example, although Petitioner admits that he yelled about Judge Stafford and his rulings in a crowded public restaurant on a lunch break during trial, he speculates that he was disciplined by the federal court for the Northern District of Florida and the Bar in 2003, because he and his client were Jewish, he was "too handsome," "too young," "too loud," or "from New York." Regarding the 2013 suspension, Petitioner contends that he did nothing wrong, he apologized to the judges when he raised his voice, and that his actions towards his opposing counsel were justified because the litigation was "destroying" his client's life. Petitioner asserts he was not fully advised of the charges against him and that he was not under an obligation to disseminate the Florida Supreme Court's order of suspension to all of his opposing counsel and judges before whom he had cases pending because "the decision did not require me to send them the outrageous, false, and defamatory decision." Petitioner fully admits ghostwriting pleadings for Mr. Beem in both the Ferguson v. Beem civil litigation and Ferguson bankruptcy proceedings after his suspension. Petitioner, who was not a party to either litigation, contends this was not the unlicensed practice of law, because he was working to protect his "vested interest" in attorney's fees earned and "to protect my client from having the court be used as a weapon to steal money from him." Petitioner argues he was "the only lawyer in the world" who would help Mr. Beem and that he was not practicing law because he was not collecting fees from Mr. Beem. Petitioner also admits "staring down" each Florida Supreme Court Justice during his public reprimand, but justifies it as his attempt to humanize himself in their eyes. He also believes it was constitutionally protected non-verbal speech and that he did not receive due process because the justices did not ask him to stop staring or recuse themselves. Petitioner explains his threatening communication to Bar counsel: And I wrote an email to my bar counsel who destroyed my life telling her that she did something, I can't remember what it was, and telling her that she was the most despicable lawyer and that's the–-and that I'm going to file a lawsuit against her and to keep an eye out for it. To date, Petitioner has not paid the assessments of the Bar and has no intention of doing so. He claims an inability to pay because of his disbarment and alleges that the imposition of the costs "along with all the other punishment was unconstitutional, and completely unjustified." Petitioner argues there is no correlation between his disciplinary history as a lawyer and his ability to sell life insurance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DFS enter a final order denying Petitioner’s application for licensure as a life, including variable annuity and health, insurance agent in Florida. DONE AND ENTERED this 30th day of August, 2016, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 30th day of August, 2016.
Findings Of Fact In 1970, the Petitioner, WILLIAM C. HARRELL, was a student at Georgia Tech, a math major. Up to that time, he had been a very bright student and had been accepted for a full scholarship at Baylor University to study medicine. He planned to become a doctor, but that career opportunity was destroyed suddenly when he was involved in a severe automobile accident in which he was struck by a drunk driver. He sustained severe head injuries, almost died during neurosurgery, and was in a coma for many weeks thereafter. His initial medical prognosis following surgery was that he would be totally incapacitated, losing essentially all of his cognitive functions. In fact, however, he regained consciousness and over the ensuing four years, while under the care of Dr. Howard Chandler, his neurosurgeon in Jacksonville, Florida, effected a remarkable recovery. He had suffered severe memory and speech deficits as a result of the trauma, but through rehabilitation, gradually overcame much of this deficit. In 1974, his doctor released him and recommended that he try to renew his education and rebuild his life. He apparently began attending North Florida Junior College in Jacksonville, Florida, at approximately this time. He never was able to complete his college degree, however. His employment history thereafter is unclear in this record, but apparently he had some difficulty obtaining significantly rewarding employment. However, he did start his own lawn service business which he successfully operated for approximately 14 years. During this period of time in the late 1970's and early 1980's, he married and had a daughter and was enjoying some success at rebuilding a meaningful and productive life for himself and his family. Testimony adduced by the Petitioner through his witnesses, as well as evidence consisting of numerous testimonial letters regarding his character and reputation for honesty and sincerity (stipulated into evidence by the parties), established that the Petitioner is a willing and productive worker and an honest, sincere human being, both in his capacity as a husband and father and as to his dealings with customers of his lawn service business and as to his clients in his chosen career in insurance sales. In approximately late 1984 or 1985, the Petitioner's life began to go awry. He and his wife began experiencing severe marital difficulties, which ultimately culminated in the dissolution of their marriage. Thereafter, the Petitioner and his former wife became embroiled in a custody dispute regarding their young daughter. Apparently, the Petitioner's former wife had custody of their daughter, a very small child at the time; and they became embroiled in a bitter dispute over visitation rights, which was in litigation for approximately one year. The Petitioner states that he ultimately won visitation rights with his daughter as a result of this litigation, and his former wife became quite angry at this result. She was also, according to the Petitioner, quite jealous over his remarriage to his present wife and continued to actively obstruct his ability to have his daughter come to his home for visits. His former wife made statements to the effect that she would besmirch his reputation so that he would be unable to get employment and not ever be able to see his child again. The Petitioner states that his daughter at the time was subject to bed wetting frequently; and on one occasion, at least, when she was staying in his home, he would "wipe her bottom with toilet tissue". He states that during this visit or possibly on a number of them (the record is not clear), his daughter was very irritated and sore in the genital area due to bed wetting, and that he and his wife attempted to treat that condition while she was in their home. Apparently, his daughter made some mention of that incident to the former wife, who became angry and ultimately had the State Attorney file a criminal information against the Petitioner for sexual assault. This charge and the criminal litigation which ensued was the result of the bitter, ill feeling harbored against him by his former wife and was solely instigated at her behest. The date upon which the offense is supposed to have occurred was totally implausible because, according to the terms of the visitation decree, the Petitioner was only allowed to see his daughter on certain weekends. On the date he is alleged to have committed the sexual assault, his daughter was not even at his home or otherwise under his custody. Nevertheless, his former wife persisted in pursuing the matter; and ultimately, he was at the point of being tried for the charge of sexual assault, a felony. Upon advice of his attorney, an Assistant Public Defender, and after discussion with the State Attorney handling the case, an agreement was reached whereby the Petitioner would not be adjudicated guilty, but rather was given certain probationary terms. He was never convicted and adjudication was withheld in the matter. It is noteworthy that on the sentencing document executed by the Circuit Judge having jurisdiction of that case, (in evidence), the probationary sentence was noted by the judge to be less penalty than authorized by the sentencing guidelines because of the unlikelihood of any conviction should the matter be tried. The Petitioner maintains vehemently that he never committed this act and, further, that he did not consider, based upon his attorney's advice, that he had any felony charge on his record as a result of the outcome of that criminal matter. His attorney, Assistant Public Defender, E. E. Durrance, attested to that situation by a letter placed into evidence by agreement of the parties, which indicates that the Petitioner entered a plea of nolo contendere in that criminal case and that the court withheld adjudication of guilt which meant that the Petitioner does not have a felony conviction record. Based upon this advice at the time by his attorney, the Petitioner answered `1no" to question number 8 on the application for licensure involved in this case, wherein it was asked whether the applicant had ever been charged with a felony. The evidence in this proceeding reveals that, indeed, he was charged with a felony; but the Petitioner explained that he equated that question in his mind to mean whether he had a felony conviction on his record or a finding of guilt which he, of course, did not. The Petitioner's testimony about this entire situation was unrebutted. Due to observation of the Petitioner's obvious candor and sincerity in his testimony, as corroborated by the numerous testimonial letters stipulated into evidence, all of which testimony and evidence was unrebutted, the Petitioner's testimony is accepted in this regard. The Hearing Officer finds that, indeed, he did not commit the felony of sexual assault. The Hearing Officer further finds that he answered in the negative to the subject question on the application regarding the existence of a felony charge because he believed that he could honestly answer "no" because he had no conviction. Thus, his answer was due to a misunderstanding of the legal import of his criminal court experience in this matter and was not due to any effort to misrepresent his past record or to mislead the Respondent in an attempt to gain licensure. In 1986, the Respondent was arrested for petty theft or "shoplifting," which is the other basis for the denial of his application for licensure. This occurred when the Petitioner was embroiled in his severe marital discord described above. The dissolution of his marriage and related litigation had cost him virtually all of his significant, material possessions. He was unable to maintain steady employment, except for his lawn service, which he started himself. That was a very seasonal business; and at times, he was very short of funds. On one day, he made the mistake, as he admits himself, of going to a supermarket, buying a cup of coffee, for which he paid, but placing a package of ham into his pants pocket and walking out the door. He was arrested for stealing a $2.58 package of ham and was prosecuted and paid a small fine. The Petitioner is very remorseful that this occurred and states that it occurred at an emotional and financial low point in his life when he could obtain no regular, remunerative employment nor help from anyone. He was consequently thrust into a period of depression at this time. When he took the package of ham, he was in such an emotional state that he did not care about the consequences. He has since remarried, however, and has worked hard to rebuild his life, both his employment career and his family life. Since embarking upon his insurance sales career in recent months (as a temporarily licensed agent), he has been very successful. Although a new, inexperienced agent, he is one of the highest sales producing agents for Gulf Life Insurance Company's office, where he is employed, and is one of the highest producers in terms of collection of premiums due. His employer, supervisor and customers uniformly praise his honest, sincere and human approach to insurance sales and his sensitivity to the feelings of his customers or clients. The Petitioner's tetimony, as corroborated by other testimony and the numerous testimonial letters stipulated into evidence, establish in an unrefuted way, that he is, indeed, a sincere and honest person, who earnestly desires the opportunity to engage in an honorable profession within the field of insurance marketing. The incident involving the theft of the package of ham appears to be an isolated incident of aberrant conduct and does not, in itself, establish a lack of trustworthiness or fitness to engage in the business of insurance, given its singular nature and the emotional and financial straits in which the Petitioner found himself at the time. The Petitioner was candid in admitting this instance of petty theft, a misdemeanor. He did not fail to disclose this on the application in question because there was no category on that application calling for him to admit such an incident. The alleged failure to disclose involved question number 8, concerning the felony charge. Indeed, he did answer no? but gave that answer for the reasons delineated above. Further, it is noteworthy that upon inquiry by the Department after its own investigation had revealed indications of a criminal record incident, the Petitioner freely obtained certified copies of all pertinent court documents and otherwise cooperated and disclosed all information concerning the alleged felony charge. This full disclosure made by the Petitioner occurred before the agency took its purported final action in denying his application for examination and licensure. Thus, although he did not answer the question in an affirmative way concerning the felony charge at issue, he did fully disclose it and all circumstances surrounding it to the Department when the matter arose and was questioned in the Department's investigatory process.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED: That the applications of William C. Harrell for examination and licensure as a life, health and general-lines agent be granted. DONE AND ENTERED this 9th day of February, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 9th day of February, 1990. APPENDIX TO RECOMMENDED ORDER The Petitioner filed no proposed findings of fact. Accordingly, rulings on the Respondent's proposed findings of fact will be made. Respondent's Proposed Findings of Fact Accepted. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter. It was not established that a knowing misrepresentation on the application was made. Accepted, but not as dispositive of material issues presented and not to the extent that it is indicated that a misrepresentation was made in the application. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter, and as not, in itself, dispositive of the material issues presented. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter, and not in accordance with the preponderant weight of the evidence since it was proven that the Petitioner did not commit sexual battery. Accepted, to the extent that it shows the factual background underlying the procedural posture of this case, but not as dispositive of material issues presented. COPIES FURNISHED: Mr. William C. Harrell P.O. Box 5503 Jacksonville, FL 32247 John C. Jordan, Esq. Department of Insurance and Treasurer Office of Legal Services 412 Larson Building Tallahassee, FL 32399-0300 Honorable Tom Gallagher State Treasurer and Insurance Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, FL 32399-0300 Don Dowdell, Esq. General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, FL 32399-0300 =================================================================
The Issue The issues to be resolved in this proceeding concern whether the Petitioner's rights and benefits under the Florida Retirement System (FRS), should be forfeited for the reasons alleged in the Notice of Forfeiture of Retirement Benefits dated March 12, 2007.
Findings Of Fact The Division of Retirement (Division) is an Agency of the State of Florida charged with the responsibility of managing, governing and administering the Florida Retirement System (FRS) on behalf of the Department of Management Services. The FRS is a public retirement system as defined in Florida law. It provides benefits to local and state employees, including teachers, state legislators, local public officials, and public employees employed by local or state agencies which are members of the FRS. The Petitioner, Russell S. Lawler, was employed as a state employee by the Department of Health from August 1983 until he resigned his position in January 2004. Because he was employed by the Department of Health, the Petitioner became a participant in the FRS public retirement system as of August 1983. His benefits in the FRS became vested after 10 years, or in August 1993. On March 12, 2007, the Respondent Agency sent the Petitioner a Notice of Action to Forfeit Retirement benefits, in evidence as Respondent's exhibit six. The Division thus advised the Petitioner that it was proceeding under Section 112.3173(3), Florida Statutes, which provides that a public employee who is convicted of specified offenses committed prior to retirement, or who is terminated by reason of admitted commission, aid, or abetment of a specified offense, will forfeit all rights and benefits under the FRS. The Notice went on to list the six specified offenses in Section 112.3173(2)(e), Florida Statutes, which provide for the forfeiture of retirement benefits. The specified offenses include the committing, aiding, or abetting of embezzlement of public funds; of theft by a public officer or employee from his or her employer; bribery in connection with public employment; any felony specified in Chapter 838, except Sections 838.15 and 838.16, Florida Statutes; the committing of an impeachable offense, or The committing of any felony by a public officer or employee who, willfully and with intent to defraud the public or the public agency for which the public officer or employee acts or in which he or she is employed of the right to receive the faithful performance of his or her duty as a public officer or employee, realizes or obtains, or attempt to realize or obtain, a profit, gain, or advantage for himself or herself or for some other person through the use or attempted use of the power, rights, privileges, duties, or position of his or her public office or employment position. Ultimately, through the testimony of the Respondent's sole witness, Mr. Gaines and through Respondent's concession in its Proposed Recommended Order, the Division elected to proceed against the Petitioner solely under Section 112.3173(2)(e)6., Florida Statutes, the above-quoted statutory provision, which is the so-called "catch all" provision. After receiving this Notice from the Division the Petitioner submitted a timely Petition challenging the forfeiture of his retirement benefits on April 2, 2007. On April 26, 2007, the Petitioner submitted an Amended Petition to the Division, which was ultimately referred to the Division of Administrative Hearings and the undersigned Administrative Law Judge, who conducted the hearing on the above date. The Respondent Division, in essence, maintains that the Petitioner, who was employed as a pharmacist by the Department of Health, stole certain controlled substances or drugs from the Department of Health pharmacy where he was employed, and was convicted of illegal possession of controlled substances. It contends that such conduct constitutes violation of paragraph six of the above-quoted statutory provision, is the commission of a felony violative of that provision, and that forfeiture of his retirement benefits is appropriate. At the hearing the Respondent sought to introduce the following documents into evidence: the arrest and booking report dated December 31, 2003, (Respondent's Exhibit one); the state attorney's information dated January 16, 2004, as Respondent's Exhibit two; the plea of guilty entered by the Petitioner in that underlying criminal case, and the negotiated sentence, which is one document, dated March 14, 2004, as Respondent's Exhibit three; the Judgment of Conviction dated March 15, 2004, as Exhibit four and the related Judgment and Restitution Order of April 5, 2004, as Respondent's exhibit five. The Respondent was not the custodian of the records for the Respondent's Exhibits one, two, three, four, and five, which were obtained from the Clerk of Circuit Court in and for Duval County, Florida, and not from the Respondent's own maintained records. No foundation was laid for their admission under the business records exception to the hearsay rule, because no witness was called who could lay such a foundation. Moreover, they were clearly and admittedly acquired by the Respondent Division solely for the purpose of pursuing the forfeiture action against the Petitioner, the instant litigation. They were not shown to be business records maintained in the regular course of business by an appropriate foundation witness. They are also proffered as being admissible within the public records exception to the hearsay rule contained in Section 90.803(4), Florida Statutes, and as party admissions and, for that reason, admissible over hearsay objection. The admissibility issues are dealt with in the Preliminary Statement and in the Conclusions of Law below. Respondent's Exhibits one and two are inadmissible for the reasons delineated herein. Respondent's Exhibits three, four, and five have limited admissibility. Exhibit three, the Plea of Guilty and Negotiated Sentence is admissible as a party admission. The Judgment of Conviction, Respondent's Exhibit four, and the related Judgment and Restitution Order, Respondent's Exhibit five, are deemed, under Florida law, to be inadmissible under the public records exception to the hearsay rule contained in Section 90.803(4), Florida Statutes. They are not admissible to show the underlying facts upon which they are based or rendered. As judgments they have specific limited statutory admissibility under Section 92.05, Florida Statutes, merely to show that they were entered and they are valid. There is also limited authority to the effect that the Judgment of Conviction, to the extent that it is based upon the Guilty Plea, and therefore subsumes it, presumably can be admitted as a party admission. Since the guilty plea in the underlying criminal case related to this proceeding has been admitted as a party admission, such in this case is a distinction without any evidential or legal difference. The Respondent also proffered into evidence the deposition transcript of Deputy Chris Lavalley who is an officer of the Duval County Sheriff's Office. The deposition was noticed on July 19, 2007, with the deposition to be conducted (which it was) on August 13, 2007. The notice advised the Petitioner that the deposition was being taken for purposes of discovery, for use at trial, or for any other purpose for which it may be used under the applicable laws of Florida. On July 23, 2007, the Respondent noticed its serving of Answers to the Petitioner's Interrogatories in which the Respondent did not list Deputy Lavalley as a witness in that discovery response. During the deposition and thereafter the Respondent never notified the Petitioner's counsel that Detective Lavalley would not be called or available as a witness at the hearing, which was scheduled for August 22, 2007. Detective Lavalley was the author of the arrest and booking report contained in Respondent's exhibit one and was the arresting officer in the underlying criminal proceeding related to this forfeiture proceeding. The Respondent and Respondent's counsel made no showing before, during, or after the hearing in this case that Detective Lavalley was an unavailable witness as a predicate to an attempted introduction of Detective Lavalley's deposition (Respondent's Exhibit seven). The record reflects that Detective Lavalley is, or was, at times pertinent, an officer of the Duval County Sheriff's Office and this hearing was conducted in Jacksonville, in Duval County, Florida. There was no showing that he was beyond 100 miles from the hearing site or any other reason why he would be an unavailable witness. 12. The Respondent presented as its sole witness Mr. Ira Gaines, a benefits administrator in the Division's Bureau of Benefits Calculation. Mr. Gaines had no personal knowledge or competency to testify concerning any facts underlying the acts for which the Petitioner received the felony conviction at issue. He was not the custodian of the records of the Duval County Clerk or Circuit Court. He did establish he validly had access to the Division's own records in the pursuit of his regular duties and business for the Division and his bureau. He thus was able to establish that the name of the Petitioner and the Petitioner's Social Security number in the records of the Division, of which he had direct knowledge and access to, were the same as those depicted on the Respondent's exhibits. It was thus established that the defendant in the underlying criminal proceeding at issue is the same Russell S. Lawler as the Petitioner in this case, who is subject to this forfeiture proceeding. Mr. Gaines testified that in order for a retiree's benefits to be subject to forfeiture, that the retiree must be convicted of "a felony that related with the employment of that employer . . ." He also established, as the Respondent has conceded, that Section 112.3173(2)(e)6., Florida Statutes, is the specific and only offense for which forfeiture of the Petitioner's retirement benefits is sought in this proceeding. The Petitioner pled guilty to possession, actual or constructive, of a controlled substance (codeine) and is shown by the related judgment of conviction to be convicted of a third- degree felony in violation of Section 893.13(6)(a), Florida Statutes. Exhibit four shows that he was adjudicated guilty of such. The plea of guilty and negotiated sentence contained in Respondent's Exhibit three also shows that the court was to reserve jurisdiction for restitution. Respondent's Exhibit five, the Judgment and Restitution Order, shows restitution in the amount of $860.00 was to be made to the Department of Health and the Victim Compensation Trust Fund of the Office of the Attorney General. The above findings are all that the Respondent's evidence shows concerning the felony of which the Petitioner was convicted. The Respondent did not adduce any substantial, persuasive evidence or witnesses concerning the nature of the Petitioner's duties at the Department of Health or how those duties had any relationship to the crime the Respondent alleges to be the basis for the forfeiture action herein. The above admissible evidence does not show, for instance, where the Petitioner obtained the illegal controlled substances, possession of which, actual or constructive, he was convicted of, nor is there preponderant, persuasive evidence to show that, even though the order in exhibit five requires restitution to the Department of Health, what the restitution was for or for what purpose it was to be made. To presume more facts than shown on the face of that order would be speculation, and would not be based on admissible evidence. It could be for a number of reasons, such as to pay investigative costs to the Department of Health, or for other reasons, since it was based on a negotiated plea and restitution. Even if Exhibit five could be deemed to show that the Department of Health was a victim of a crime committed by the Petitioner, there was no preponderant, persuasive evidence by which it might be found that the Petitioner actually deprived his employer of anything of value, or acted at any time with the intent to defraud his employer, the public, and the Department of Health of the right to receive the faithful performance of his duties as a public officer or employee. There was no preponderant, persuasive evidence to show that the Petitioner realized, obtained, or attempted to realize or obtain a profit, gain, or advantage for himself or for some other person, by the use or attempted use of the power, rights, privileges, duties, or position of his public office or employment position. There was simply no evidence adduced to show what his duties were or to show how the function of his duties or his employment position might have a relationship to the crime for which he pled guilty and was convicted. Thus, there is no preponderant, persuasive, admissible evidence which is competent to show that a specified offense, as contemplated in Section 112.3173(2)(e)1-6, Florida Statutes, was committed. The Petitioner has filed a Motion for Attorney's Fees pursuant to Section 57.105, Florida Statutes, and provided the Respondent notice of his intent to seek attorney's fees under that section.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and the arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Management Services, Division of Retirement, finding that the Petitioner's retirement benefits should not be forfeited and that all such benefits be restored. DONE AND ENTERED this 30th day of January, 2008, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 30th day of January, 2008.
The Issue Whether the Respondent, a licensed physician, should be subject to discipline under section 458.331(1)(x), Florida Statutes (2016),1/ for violating the Final Order entered by the Board of Medicine in case DOH-15-0017-FOF-MQA by failing to pay the administrative fine and costs, as required; and, if so, the appropriate discipline.
Findings Of Fact On January 8, 2015, the Florida Board of Medicine rendered Final Order DOH-15-0017-FOF-MQA. The Final Order resolved charges against the Respondent, a licensed physician who holds license ME 59800, in the administrative complaints in DOH cases 2009-13497, 2011-06111, and 2011-17799. The Final Order suspended Respondent's license for six months and required her to: pay a $10,000 administrative fine and $74,323.56 of costs within a year from reinstatement of her license; and document completion of a medical records course sponsored by the Florida Medical Association and five hours of continuing medical education in the area of ethics within a year from the filing of the Final Order. The Final Order also placed the Respondent on probation for two years, subject to specific supervision and board appearance requirements, and included the following tolling provision: In the event the Respondent leaves the State of Florida for a period of 30 days or more or otherwise does not or may not engage in the practice of medicine in the state of Florida, then certain provisions of the requirements in the Final Order shall be tolled and shall remain in a tolled status until Respondent returns to the active practice of medicine in the state of Florida. * * * Unless otherwise set forth in the Final Order, the following requirements and only the following requirements shall be tolled until the respondent returns to active practice: The time period of probation shall be tolled. The provisions regarding supervision whether direct or indirect by the monitor/supervisor, and required reports from the monitor/supervisor shall be tolled. It is clear from the language of the tolling provision that it did not apply to: the requirement to pay an administrative fine and costs within a year of license reinstatement; or the requirement to document completion of the medical records course and five hours of continuing medical education in ethics within a year of license reinstatement. After entry of the Final Order, the Respondent left Florida and moved to New York. Initially, she practiced medicine in New York, using her New York license, and earned income doing so. However, New York initiated license disciplinary proceedings based on the Florida Final Order, and she was unable to continue to practice medicine in New York. She also had health issues that inhibited her practice of medicine. By the terms of the Final Order, the Respondent's medical license was reinstated on July 8, 2015, and the fine and costs were due to be paid on July 7, 2016. The fine and costs were not paid by the due date. Towanda Burnett, medical compliance officer employed by the Petitioner, contacted the Respondent in July and August 2017 concerning her apparent failure to comply with the terms of the Final Order. As to the obligation to take approved courses of education, the Respondent took the position that she had taken the required courses, or had tried to take them, but was prevented from doing so by the Petitioner. However, she did not document her completion of the required courses, which resulted in one of the charges in the Administrative Complaint filed on November 6, 2017. Eventually, during preparation for the hearing in this case, the Petitioner determined that the Respondent was in compliance with that obligation, and that charge was dropped. As to the fine and costs, the Respondent took the position that her obligation to pay was stayed because she filed for bankruptcy. Information regarding the Respondent’s bankruptcy proceedings was reviewed by attorneys in the Petitioner’s Prosecution Services Unit, who determined that the Respondent’s obligation to pay was not stayed. The Respondent disagreed and declined to make any payments. One of the Respondent’s defenses relies on her direct appeals from the Final Order in the Florida courts. However, at no time did any of the appellate courts stay the Final Order. Ultimately, the direct appeals were denied. The Respondent also argues that the Final Order is “void,” “invalid,” or “moot” for “non-compliance of the mandate” issued by the Second District Court of Appeal after her appeals were denied. This argument is confusing and unpersuasive. At times, the Respondent seems to be arguing that the tolling provision applied to the fine and costs and that the “mandate of the Final Order” was violated by the Petitioner by its attempt to enforce the fine and costs assessment in the Final Order before the Respondent resumed the practice of medicine in Florida. This argument has no merit because the tolling provision clearly only applies to her probation--i.e., her two- year probation runs from the time she resumes the practice of medicine in the state of Florida. At other times, the Respondent seems to be saying her two-year probation was not tolled, but rather began when she resumed the practice of medicine in New York for a period of time, and was already over, placing the Petitioner in violation of the “mandate of the Final Order” by taking the position that the Respondent was still on probation. This argument also has no merit. It is possible that the Respondent’s argument relates to her testimony that an employee of the Petitioner prevented her from taking a continuing education course required by the Final Order. However, the charge of failure to document the required course has been resolved and dropped. In any event, whatever happened with regard to the Respondent’s attempts to take the course did not “void” or “moot” the Final Order. The Respondent also attempted to attack the Final Order in litigation she filed as case 1:16-cv-03038-VSB in federal district court in New York on April 25, 2016. The Respondent’s complaint named the Florida Board of Medicine and the Florida Department of Health as defendants, along with the New York Department of Health. The Florida agencies contested the court’s jurisdiction over them, and an amended complaint filed on September 22, 2016, dropped the Florida Department of Health and Florida Board of Medicine as parties. On February 14, 2017, the Respondent sought a stay and injunctive relief against the remaining defendant in that case, but the New York court denied the request on September 30, 2017. On October 16, 2017, the Respondent appealed this ruling to the United States Court of Appeals, Second Circuit, in case 17-3358, listing the Florida Department of Health and the Florida Board of Medicine as appellees. (At the hearing in this case, the Respondent expressed that she was surprised to learn that the Florida agencies had been dropped from this litigation and that she intended to further amend to add them back.) The Respondent has repeatedly requested extensions of time, and the matter was still in court at the time of the hearing in this case. Neither federal court ever stayed the Final Order. This federal litigation is not an impediment to enforcement of the Final Order by the Petitioner. The Respondent also defends against the charges in this case based on various bankruptcy filings she has made. In 2015, the Respondent filed for chapter 13 bankruptcy in the United States Bankruptcy Court, Middle District of Florida, Tampa Division, in case number 8:15-bk-00594-CPM. She listed the Department of Health as a creditor. On June 3, 2015, the case was dismissed on motion of the trustee, and any funds held by the trustee were ordered to be returned to the debtor. On August 15, 2016, the Respondent filed for bankruptcy under chapter 13 in United States Bankruptcy Court for the Southern District of New York (Manhattan Division) in case 16- 12356-cgm. The Respondent again listed the Department of Health as a creditor, and the Respondent believed the bankruptcy automatically stayed her obligations to pay the fine and costs under the Final Order, as she told the Petitioner’s compliance officer, Ms. Burnett, when she contacted the Respondent in the summer of 2017. The Petitioner points to filings the Respondent made in in case 16-12356-cgm as evidence of the Respondent’s supposed knowledge that no automatic stay was in effect. Specifically, on September 13, 2017, the Respondent filed an Emergency Motion for Stay Pending Appeal, or in the alternative for temporary Administrative stay, which was denied by the bankruptcy court on September 19, 2017. However, the docket entries introduced into evidence in this case are difficult to decipher, and it is not clear that they refer to a stay of the collection of the fine and costs imposed by the Final Order. On November 22, 2017, the New York bankruptcy court dismissed the Respondent’s case 16-12356-cgm. On November 27, 2017, the Respondent appealed the dismissal to the United States District Court for the Southern District of New York. The appeal was assigned case number 1:17-cv-09429-JGK. On December 1, 2017, the Respondent filed in case 16-12356-cgm for a stay pending appeal, which was denied by the bankruptcy court on December 21, 2017. On February 6, 2018, the Respondent moved in district court for a stay pending appeal, or in the alternative, for a temporary administrative stay. On March 21, 2018, the district court affirmed the dismissal of the bankruptcy case, and denied the motion for a stay pending appeal as moot. On March 30, 2018, the Respondent sought review of the district court’s affirmance in the federal Second Circuit Court of Appeals. The case number of the circuit court appeal is 18- 890. On March 30, 2018, the Respondent filed in case 18-890 for an emergency injunction and stay; the filing was defective, for unspecified reasons, according to a court docket entry. On April 6, 2018, the Respondent filed in case 18-890 for a stay pursuant to 11 United States Code section 362(c)(4)(c); this filing also was defective, for unspecified reasons, according to the docket. In December 2017, after the New York bankruptcy court dismissed case 16-12356-cgm, the Respondent filed a second bankruptcy case in the United States Bankruptcy Court for the Middle District of Florida, Tampa Division. That filing was designated case 8:17-bk-10140. On January 11, 2018, the Florida bankruptcy court dismissed case 8:17-bk-10140 with prejudice; labeled the Respondent an “abusive serial bankruptcy filer”; “enjoined, barred, and prohibited [the Respondent] from commencing any bankruptcy petition” for a period of two years; and caused notice to be given that state courts should not halt debt collection proceedings based on any bankruptcy petition the Respondent attempted to file in violation of the court’s injunction against her. On January 31, 2018, the Florida bankruptcy court denied the Respondent’s motion for reconsideration. The Respondent’s bankruptcy filings are not a complete defense against the Petitioner’s charges. The Respondent was in violation of the Final Order for failure to pay the fine and costs as of July 7, 2016. No bankruptcy stay was in effect at that time. However, the Petitioner’s collection of those debts was stayed from August 8, 2016, through November 22, 2017. See 11 U.S.C. § 362(a) (2016). The Petitioner’s compliance office has a procedure for a payment plan when fines and costs cannot be paid at once. In order to obtain a payment plan, the licensee must propose a payment plan, with specific amounts and due dates, and submit documentation, including: two denial letters from any financial or loan institutions; a copy of the 1040 tax return; copies of bank statements; and any other relevant financial information. Once that information is received, it is sent to the chairperson of the Probation Committee of the Board of Medicine, who either approves or denies the payment plan. The Respondent did not submit the required information, pay anything towards the fine and costs, or express her intention to pay.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order: finding that the Respondent violated section 458.331(1)(x), Florida Statutes (2016), by failing to pay the administrative fine and costs imposed, as required by Final Order DOH-15-0017-FOF-MQA; issuing a reprimand against the Respondent’s Florida medical license; imposing an administrative fine of $1,000 (in addition to the administrative fine imposed by Final Order DOH-15-0017- FOF-MQA); and suspending the Respondent’s Florida medical license until such time as she pays all outstanding administrative fines and costs in full, or until the chairperson of the Board’s Probation Committee approves a payment plan. DONE AND ENTERED this 19th day of June, 2018, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 19th day of June, 2018.
