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 to be determined is whether Petitioner has demonstrated eligibility for licensure as a resident life, including variable annuity, insurance agent.
Findings Of Fact Based upon the observation and the demeanor of the witnesses while testifying, documentary material received in evidence, stipulation of the parties, and evidentiary rulings during the hearings, and the entire record complied herein, the following relevant, material, and substantial facts are determined: The Department is the state agency responsible for the licensure of insurance agents in the State of Florida, pursuant to Chapter 626, Florida Statutes (2004). On October 4, 2004, Petitioner filed an online application with the Department seeking licensure as a resident life, including variable annuity, insurance agent. The online application form completed by Petitioner for the licensure at issue included the following question: Have you ever been convicted, found guilty, or pled guilty or nolo contendere (no contest) to a felony or crime punishable by imprisonment of one (1) year or more under the laws of any municipality, county, state, territory or country, whether or not adjudication was withheld or a judgment of conviction was entered? Petitioner answered this question in the negative. On November 9, 2004, the Department sent a letter to Petitioner, requesting she provide, among other things, certified copies of court documents relating to her 1999 arrest in Hillsborough County, Florida, for child abuse. Petitioner found the above question to be confusing and in an attempt to be completely forthcoming, she sent the Department copies of two documents: (1) an August 9, 2004, letter to Petitioner from the Department of Corrections and (2) Petitioner's two-page printout regarding the Probation/Parole record. The Department received the referenced documents on November 23, 2004. Petitioner's criminal history established a November 18, 1999, arrest on two felony counts of aggravated child abuse. Petitioner had used an electric cord to spank her daughter as punishment for stealing and had left marks on the child as a result. The two-count information was filed in the Thirteenth Judicial Circuit, Hillsborough County Circuit Court, Case No. 99-20373, on January 27, 2000. On December 13, 2000, Petitioner entered a plea of guilty to one felony count of child abuse, as set forth in Count II of the information, and the second count pending against Petitioner was nolle prossed. The disposition of the case was that adjudication of guilt be withheld on the one felony count of child abuse and that Petitioner be placed on four years probation and required, inter alia, to complete parenting and anger management classes, which she did. Circumstances that resulted in Petitioner's plea involved her method of disciplining her daughter. Petitioner was born and grew up in Haiti and her method of punishment, spanking her daughter with electric cord, is culturally accepted. Spanking with electric cord leaves bruises and marks on the child spanked. Petitioner's testimony indicates that she learned through her anger management classes that the Haitian method of punishment is not considered appropriate, and other nonphysical methods would bring about desired results. Petitioner now has four children. She is employed by Lakeshore Villas, a nursing home where she is responsible for caring for elderly persons, as a full-time Certified Nursing Assistant (CNA). To acquire her CNA license from the Department of Health (DOH), Petitioner testified that she reported her criminal history to the DOH, and no disciplinary action was taken by the agency because of her plea. Even though the answer to the criminal history question on her application for licensure was not correct, circumstances evident from evidence of record reveals that Petitioner, in fact, disclosed her criminal history to the Department prior to the Department's specific inquiry about that history. She testified that her "no" answer on the application was because she spent only two days in jail. Subsequently realizing the possibility of a misunderstanding, Petitioner, before a request by the Department, mailed documents to the Department that disclosed her criminal history. Viewed in the totality of circumstances, Petitioner's voluntary disclosure of her criminal history negates any reasonable inference or conclusion that Petitioner made an intentional "[m]aterial misstatement, misrepresentation, or fraud in . . . [her] attempt to obtain the licensure or appointment," Subsection 626.611(2), Florida Statutes (2004). Likewise, the simple fact that Petitioner (through misunderstanding) incorrectly answered the application question does not show that Petitioner's conduct demonstrated a "lack of fitness or trustworthiness to engage in the business of insurance." Notwithstanding the foregone findings, there is no evidence that Petitioner was under the age of 21 years when the crime was committed. There is no written documentation from the prosecuting attorney evidencing the belief that Petitioner posed no significant threat to public welfare if licensed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order finding that Petitioner did not attempt to obtain the license at issue through material misstatement, misrepresentation or fraud, but that Petitioner has not met the 15-year mandatory waiting period applicable to her criminal history and is, therefore, ineligible for licensure pursuant to Subsection 626.611(14), Florida Statutes (2004), and denying Petitioner's request for relief. DONE AND ENTERED this 9th day of August, 2005, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 2005. COPIES FURNISHED: Dana M. Wiehle, Esquire Department of Financial Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399 Alia Baptiste Sossous 10310 Birdwatch Drive Tampa, Florida 33647 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Carlos G. Muniz, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307
The Issue At issue in this proceeding is whether Petitioner's request for an exemption from employment disqualification should be approved.
Findings Of Fact In or about April 1999, Petitioner, Darlene Renfroe, submitted a State of Florida Employment Application to Respondent, Department of Juvenile Justice (Department), for employment as a group treatment leader, a caretaker/direct contact position. Among the information sought on the application was a response to the question "[h]ave you ever been convicted of a felony or a first degree misdemeanor?" Petitioner respondent "yes" to the question and elaborated that she had been convicted of "Possession of Control[led] Substance" in Miami, Florida, on April 1, 1986. Accompanying the application was a copy of the Indictment filed in the United States District Court, Southern District of Florida (Case No. 85-937CR-Scott) which charged that on or about November 23, 1985, at Miami International Airport, Dade County, Florida, Petitioner knowingly and intentionally imported into the United States (Count I), and knowingly and intentionally possessed with intent to distribute (Count II), at least one kilogram of cocaine, a Schedule II narcotic controlled substance, in violation of Title 21, United States Code, Sections 952(a) and 960(a)(1), as to Count I, and Title 21, United State Code, Section 841(a)(1), as to Count II. The application was also accompanied by a three-page handwritten letter signed by Petitioner which offered her explanation of the events leading to her conviction. The position for which Petitioner applied, group treatment leader, is a position of special trust which requires, as a condition of employment, a successful background screening process to exclude the possibility that Petitioner was ever found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to certain enumerated disqualifying offenses under Florida law or similar offenses in another jurisdiction. If the screening process reveals a disqualifying offense, the applicant is not qualified for employment unless a request for exemption (pursuant to Section 435.07, Florida Statutes) is approved. Notably, among the disqualifying offenses is a violation of "Chapter 893 relating to drug abuse prevention and control if the offense was a felony . . . (. . . includ[ing] charges of possession of controlled substances, the sale of controlled substances, intent to sell controlled substances, trafficking in controlled substances, and possession of drug paraphernalia, etc.)," an offense for which Petitioner (as disclosed by her application) had been convicted. To complete the Department's background screening, Petitioner also completed and submitted three additional documents: a Request for Preliminary FCIC/NCIC and DHSMV Screening Check form; a Consent to Background Screening form; and an Affidavit of Good Moral Character.1 On May 27, 1999, the Department completed its background screening process. That process revealed (consistent with Petitioner's disclosure) that on April 1, 1986, Petitioner pled guilty to and was adjudicated guilty of the offense of "knowingly and intentionally import[ing] into the United States from a place outside thereof, a Schedule II controlled narcotic substance, that is a quantity of cocaine, at least one kilogram, in violation of Title 21, United States Code, Sections 952(a) and 960(a)(1), as charged in Count I of the Indictment. Count II of the Indictment was dismissed upon motion of the United States attorney. As a penalty for such offense, Petitioner was committed to the custody of the Attorney General or his authorized representative for imprisonment for a period of three years and six months. Petitioner served a two-year term of confinement at Women's Federal Correctional Institute, Lexington, Kentucky (released April 1, 1988), followed by a six- month term at a half-way house and then was discharged. Upon completion of its background screening, the Department concluded that (based on her conviction for importation of cocaine) Petitioner was disqualified from working in a position of trust; however, by letter of June 7, 1999, the Department accorded Petitioner an opportunity to request an exemption pursuant to Section 435.07, Florida Statutes. That letter reasonably advised Petitioner of her obligation to demonstrate by clear and convincing evidence that she had been rehabilitated and that she would not present a danger if accorded employment in a position of special trust. Among the items requested for Department review (in passing on a request for exemption) were the following:2 A detailed, written and notarized description of the circumstances leading up to and surrounding the disqualifying criminal offense. The time period which has elapsed since the offense. Whether there was any harm caused to victims and the nature of that harm. Your personal history since the offense (work, education, civic, religious history, etc.). And, such other circumstances as shall be sufficient to indicate that you will not present a danger to the safety or well-being of juveniles. A statement as to whether you have been involved in any other criminal offenses either prior or subsequent to the commission of the disqualifying offense. * * * Letters of support/recommendation from others indicating that you are of good moral character. If you were placed on probation/community control, certified documentation of successful completion of probation/community control. A statement as to what you believe you have to offer to juveniles and why you want to work with the Department of Juvenile Justice or a Provider Facility. Petitioner duly requested an exemption from disqualification and submitted the requested documentation to the Department. Upon review, Petitioner's request for exemption was denied. The Department's expressed rationale was stated in its Inspector General's letter of August 1, 1999, as follows: In order to reach a decision on your request, I have reviewed your criminal history and the supporting documentation you submitted. Based upon a careful review of all documentation, compelling evidence does not exist which would lead me to grant you an exemption. Therefore, your request is denied. As a criminal justice agency, this department has to exercise great care and caution in selecting those persons who are allowed to work with the juveniles entrusted to our care and custody. The letter further advised Petitioner of her right to request an administrative hearing pursuant to Section 120.57, Florida Statutes, to challenge the denial of her request for exemption. Petitioner filed a timely request for such a hearing and these proceedings duly-followed. Consistent with the Inspector General's conclusion that Petitioner had failed to convincingly demonstrate her entitlement to the requested exemption, the proof at hearing demonstrated that the crime to which Petitioner pled guilty and for which she was convicted ("knowingly and intentionally importing . . . a Schedule II controlled substance, that is a quantity of cocaine, at least one kilogram") gravely violated moral sentiment or accepted moral standards of the community, such that it could reasonably be said that Petitioner committed a crime of gravity involving moral turpitude.3 It may also be said, consistent with the Inspector General's observation, that Petitioner's explanation of the circumstances surrounding the criminal incident (as set forth in her letter of May 25, 1999, contained in Respondent's Exhibit number 1) appears, at best, fanciful. Finally, given the nature of the offense and Petitioner's age at the time (28 years), her conduct can hardly be characterized as youthful intemperance. Contrasted with the negative impression to be gleaned from the foregoing facts, the proof also provided some positive information. In this regard, the proof demonstrated that Petitioner successfully completed (with apparent good behavior) her term of incarceration; that she committed no other transgression; and that she has been continuously employed since her release (most recently by the State of Florida, Landmark Learning Center, as a behavior program associate, assisting and training mentally retarded children). Moreover, since January 1997, Petitioner has been licensed by the State of Florida, Department of Children and Family Services, to operate a foster home and currently has four children (two boys and two girls) under her care. Finally, among those who know her, Petitioner is considered truly remorseful for her misconduct, is believed to present a good role model for the youths she services, and is considered a reliable and trustworthy member of her community. While there are certainly accomplishments in Petitioner's life since her conviction which weigh favorably, it must be concluded (as urged by the Department) that the gravity of her offense, as well as her lack of candor regarding the circumstances surrounding the criminal incident, do not permit a conclusion to be drawn, with the requisite degree of certainty, that Petitioner stands rehabilitated. Stated differently, it must be concluded that Petitioner has failed to demonstrate, by clear and convincing evidence, that she is currently rehabilitated and will not pose a danger or risk (if allowed employment) to the social, emotional, and intellectual development of the juveniles in her charge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner's request for exemption from employment disqualification. DONE AND ENTERED this 14th day of January, 2000, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 14th day of January, 2000.
The Issue The central issue in this case is whether Respondent is guilty of the violations alleged in the administrative complaint and, if so, what penalty should be imposed. More specifically the issue is whether a federal misdemeanor can be construed as a felony for purposes of Section 943.13(4), Florida Statutes.
Findings Of Fact Based upon the stipulation filed by the parties, the testimony of the witness and the documentary evidence received at the hearing, I make the following findings of fact: The Respondent was certified as a law enforcement officer by the Commission on March 31, 1985, and was issued certificate no. 12-85-002-01. On January 31, 1986, the Respondent entered a plea of guilty to the offense of forgery of a United States Treasury check, a violation of Title 18 USC Section 510(b)-(c) and (2), in the United States District Court, in and for the Southern District of Florida, case no. 85-8098-Cr-PAINE. The acts which gave rise to the criminal charge against Respondent had occurred prior to Respondent's certification. The Superseding Information charged that Respondent, along with two other named defendants, had falsely made and forged an endorsement on a check made payable to another. This alleged forgery occurred on or about April 31, 1984, at Fort Pierce, St. Lucie County, Florida. Respondent had been employed as a police officer by the Fort Pierce police department for approximately seven months when the warrant for his arrest was issued. He subsequently resigned his position. Respondent was adjudged guilty of the charge set forth in paragraph 2, and was placed on probation for a period of one (1) year. Respondent was also required to make restitution to First Citizens Federal Savings and Loan Association of Fort Pierce in the amount of $179.71. Respondent was not required to serve a sentence of confinement. Respondent completed his probation and made restitution as required. The original charge against Respondent had been a felony, however, during the course of negotiations the charge was reduced to a misdemeanor. Respondent refused to plead guilty to the felony charge and testified he would have continued to fight a felony conviction. Respondent pled guilty to the federal misdemeanor on the belief that it would not affect his certification. Petitioner offered no evidence to establish the facts underlying the alleged criminal offense, i.e., that Respondent did, in fact, forge an endorsement on a check payable to another.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Criminal Justice Standards and Training Commission enter a final order revoking the Respondent's law enforcement certificate, no. 12-85-002-01. DONE and RECOMMENDED this 28th day of October, 1988, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 28th day of October, 1988. COPIES FURNISHED: Diamond R. Horne 101 C Seaway Drive Fort Pierce, Florida 34950 Joseph S. White Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, Director Department of Law Enforcement Criminal Justice standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Robert R. Dempsey Executive Director Department of Law Enforcement Criminal Justice standard and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 =================================================================
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.
The Issue The issue in the case is whether Petitioner's application for licensure should be approved.
Findings Of Fact On July 12, 2004, Petitioner filed an application for licensure as a Resident Life including Variable Annuity and Health Insurance Agent with Respondent. Included among the questions on the application was the following: Have you ever been convicted, found guilty, or pled guilty or nolo contendere (no contest) to a felony or crime punishable by imprisonment of one (1) year or more under the laws of any municipality, county, state, territory or country, whether or not adjudication was withheld or a judgment of conviction was entered? Petitioner answered "no" in response to the question. The application requires the applicant to consent to the following statement: Under penalties of perjury, I declare that I have read the foregoing application for license and that the facts stated in it are true. I understand that misrepresentation of any fact required to be disclosed through this application is a violation of the Florida Insurance and Administrative Codes and may result in denial of my application and/or the revocation of my insurance license(s). By affixing his electronic signature to the application, Petitioner affirmed that the information set forth therein was true. The evidence establishes that on April 7, 1978, Petitioner was sentenced to the Nassau County Correctional Center for a term of one year after entering a guilty plea to a felony count of Attempted Grand Larceny (Grand Jury Indictment No. 46323, June 24, 1977, Nassau County, New York.) Petitioner entered the Correctional Center to begin serving his sentence on December 15, 1978, and was released on February 28, 1979. Petitioner did not disclose the 1978 conviction on the application for licensure as an insurance agent. After completing a criminal history check, Respondent issued two deficiency letters, dated July 26, 2004, and August 5, 2004, seeking additional information related to Petitioner's background. In response to the deficiency letters, Petitioner submitted additional information and a letter. In the letter and in his testimony at the hearing, Petitioner stated that he misinterpreted the question, and believed that because he was incarcerated for less than one year, the 1978 conviction was responsive to the question. He stated that he did not intend to mislead or deceive Respondent. Respondent issued a Notice of Denial on August 25, 2004. The grounds for the denial was Petitioner's failure to disclose the 1978 conviction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order denying the application for licensure filed by Anthony A. Sagnelli and imposing a waiting period to expire on August 26, 2005. DONE AND ENTERED this 28th day of February, 2005, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 2005.
The Issue Whether Respondent was a probationary employee, and if so, whether the Division of Administrative Hearings has jurisdiction to enter a recommended order on his dismissal from employment with Petitioner. If Respondent is entitled to an administrative hearing, whether Petitioner had just cause to terminate Respondent's employment.
Findings Of Fact In January 1993, Respondent, Carlos Velasquez (Velasquez), became employed with Petitioner, Broward County School Board (Board), as a temporary teacher's aide in the after- school care program. In February 1994, Velasquez began working as a substitute teacher for the Board while continuing to work in the after-school care program. Velasquez was working toward a college degree while working for the Board. In April 1996, Velasquez received a bachelor's degree from Florida Atlantic University. In July 1996, Velasquez applied for a full-time teaching position with the Board. On February 26, 1997, Velasquez began working for the Board as a third grade teacher at Oriole Elementary School. On that date he began working as a full-time teacher, Velasquez completed a number of employment forms, including a Security Background Check.1 The Security Background Check form states that the form must be turned in with the applicant's application for employment. The form requires the applicant to answer certain questions by checking boxes marked "yes" or "no." The form advises the applicant as follows: At the time of employment your fingerprints will be researched by local, state and federal law enforcement agencies. Sealed or expunged records must be revealed to the School Board of Broward County pursuant to F.S. 943.058. Your employment with the Broward County School District is temporary and probationary pending successful processing of your fingerprints. The following questions must be answered truthfully. A 'Yes' answer to any of the following questions does not automatically keep your from being hired. Your omission or falsification of any criminal history (misdemeanor or felony, see reverse for examples of criminal offenses) information will result in your immediate termination. * * * NOTE: Pursuant to Florida Statute 943.058 Criminal History Record Expunction or Sealing, persons to be employed in a position having direct contact with children must answer questions 4, 5, and 6. The School Board of Broward County will receive information on all records that have been sealed, expunged, or where adjudication was withheld. To omit a response or to be untruthful in your response, regardless of any information received from your attorney or the Court will be considered falsification of your application and will result in your being terminated. If you wish to seek counsel prior to completing this section, you may take this application with you. The Security Background Check form also contains the following language: By signing this document I certify that I have carefully read and fully understand each question and that all information contained herein is true and accurate. My signature further certifies that there is no falsification of any information, omission of any information requested or any misrepresentation of information requested. I also understand that my fingerprints will be submitted to the Federal Bureau of Investigation for a complete criminal history background check. * * * By my signature, I certify that I know, understand, and agree that any false statement or omission of information requested will result in my immediate termination. The following two questions on the Security Background Check form are at issue in this case: 4. Have you ever had a criminal record sealed? * * * 6. Have you ever had adjudication withheld in a criminal offense? Velasquez answered no to questions four and six on the Security Background Check form and signed the form. Velasquez filled out the Security Background Check form at the Board's personnel office. He did not ask anyone how to fill out the form. At the time that he filled out the form, he did not understand the term "adjudication withheld." In 1981, Velasquez was arrested for shoplifting, and the charge was dismissed. In 1991, Velasquez personally petitioned the court to seal the arrest record, which petition was granted. In 1991, Velasquez was charged with disorderly conduct. He pled not guilty and went to trial. The court withheld adjudication and required Velasquez to attend a six- week advocate program. At the conclusion of his trial in 1991, Velaquez did not understand that adjudication had been withheld. By letter dated March 24, 1997, the Board advised Velasquez that it had received a report of criminal activity from the Department of Law Enforcement. The Board requested that Velasquez submit a full personal description of each incident. The letter further advised Velasquez that he could continue to work but that he would be suspended within ten working days if the Board had not received the requested documents. Velasquez wrote to Dr. Roger Beaumont, the Director of Instructional Staffing for the Board, and advised him of the circumstances surrounding the charge for disorderly conduct. Velasquez's case was presented to the Board's Security Clearance Committee, which determined on April 16, 1997, that Velasquez was not employable with the Board. Velasquez was notified of the committee's decision by letter dated April 18, 1997. When Velasquez applied to the Department of Education for a teaching certificate, he did not advise the Department of Education that he had had adjudication withheld in a criminal proceeding. In May 1997, Velasquez wrote the Department of Education and stated: Recently I filled out an application for a teaching position with both Dade and Broward Counties. While filling out these applications, it was explained the thoroughness of the information requested. The background information necessary for employment was also explained. It is therefore the purpose of this amended information to be added to my file to possibly clarify any misunderstood information and/or misinterpretations. I was unclear of the legal terminologies, such as, withheld adjudication. It is for that reason why I would like the following information officially added to my file for teacher certification. When Velasquez applied for the temporary teacher's aide position in January 1993, he completed a security check form and provided his fingerprints to the Board. The questions on the form did not include a question concerning sealed records. The form did include a question concerning adjudication being withheld in a criminal proceeding. Velasquez answered "no" to the question concerning the withholding of adjudication. By memorandum dated August 29, 1995, the Board informed him that based on the results of the federal criminal history check as of January 11, 1993, he had met the criteria for employment/licensing with the Broward County School System. In July 1996, Velasquez filled out an application form for employment as a full-time teacher. He also completed a Security Background Check form, which was the same form that he completed in February 1997. He answered "no" to question numbers four and six. His fingerprints were not processed in connection with the July 1996 application.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Carlos Velasquez's request for an administrative hearing be dismissed. DONE AND ENTERED this 26th day of February, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1998.
The Issue Whether the Petitioner's request for an exemption pursuant to chapter 435, Florida Statutes, should be granted.
Findings Of Fact Approximately ten years ago, Atkinson was charged with attempted armed robbery of a book store. Atkinson offered the following facts relating to the attempted robbery: (1) she decided to rob a book store in Georgia, (2) she secured an unloaded BB gun, (3) she entered the store, (4) she changed her mind when she encountered verbal resistance from the store clerk, (5) she ran from the store, (6) she was apprehended a few blocks from the book store, and (7) she was arrested for armed robbery. Atkinson pled no contest to a lower charge of attempted theft by taking and was sentenced to four years unsupervised probation. Other than the attempted theft by taking, Atkinson has no criminal record. Atkinson operates a small daycare center from her home in Lynn Haven, Bay County, Florida. Because she intended to expand the facility, Atkinson filed the requisite applications with the Department. Subsequently, Atkinson's criminal record was revealed. As a result of her criminal record, Atkinson was advised that she was ineligible to hold a position caring for children. The Department notified Atkinson of her right to request an exemption. Subsequently, Atkinson appeared before the Department's exemption review board, and she spoke on her own behalf. Atkinson offered neither witnesses nor exhibits at the hearing. According to the Christiane LeClair, the Department's District Screening Coordinator, Atkinson appeared to minimize the seriousness of the offense, and she did not voice true remorse for her actions. At the conclusion of the hearing, the screening committee recommended denial of her exemption request. Atkinson contested the Department's decision denying her exemption. The contest resulted in this chapter 120 hearing before the undersigned administrative law judge. Unlike her appearance before the screening committee, at the administrative hearing Atkinson brought six witnesses and introduced a composite exhibit. The witnesses came from varying occupational backgrounds and varying educational levels and all shared similar positive impressions of Atkinson. For example, James Douglas Williams, a senior foster care counselor for the Department of Children and Family Services in Bay County, testified that Atkinson had cared for his children, that she was trustworthy, and that she was more than competent to care for children. Mr. Williams was aware of Atkinson's criminal past. He stated that her criminal past did not give him a negative impression of Atkinson, and he reasoned that the crime was a youthful indiscretion for which she has adequately paid her debt to society. Mr. Luther W. McDonald, Jr. also testified on behalf of Atkinson. Mr. McDonald is a thirty-seven year veteran of the Bay County School District, and he has lived next door to Atkinson for the past three years. Based on Mr. McDonald's personal observations, he feels that Atkinson is well able to provide care for children. Mr. McDonald also was aware of Atkinson's criminal conviction, and like Mr. Williams, he feels that it was an isolated event that occurred over ten years ago which should not now have a negative effect on her ability to serve as a child care provider. A series of satisfied parents also testified on Atkinson's behalf. Each parent testified that Atkinson had cared for their respective children and that she provided a warm, caring, and nurturing environment. They also testified that they were aware of her criminal history and that it had no impact on their decision to enroll their children in Atkinson's care.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That the Department enter a Final Order GRANTING Atkinson's request for exemption. DONE and ENTERED this 1st day of November, 1996, in Tallahassee, Florida. WILLIAM A. BUZZETT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUMCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 1996.
The Issue Whether the Petitioner, Juan Ramon Leal, is entitled to be licensed as resident legal expense sales representative.
Findings Of Fact At all times material to the allegations of this case, the Respondent is the state agency charged with the responsibility of regulating persons seeking licenses to become resident legal expense sales representatives. As such the Respondent appropriately received and considered the application for licensure submitted by the Petitioner on or about April 3, 2002. On June 27, 2002, the Respondent issued its decision regarding the Petitioner's application for licensure. Such decision denied Petitioner's request based upon his criminal history and the short amount of time that had elapsed between the alleged criminal activity and the application for licensure. On July 6, 2000, when he was 20 years of age, the Petitioner was arrested for possession of a controlled substance, unauthorized possession of a driver's license, and carrying a concealed weapon. As to the controlled substance charge, at the time of the arrest, the Petitioner was delivering to an individual, who was a confidential informant for the police, 400 tablets of a drug commonly known as ecstasy. The Petitioner knew that the package contained an illegal substance and that he was committing an illegal act. As to the charge of possessing an unauthorized driver's license, the Petitioner held fake identification so that when carded at dance clubs he could enter with his older girlfriend. There is no evidence that the fake license was used for any other purpose. As to the charge of possession of a concealed weapon, the Petitioner was arrested and his vehicle was thoroughly searched. The "concealed weapon" was a hunting knife under the seat or in the crack of the seats. The knife was not presented in the course of any of the activities cited by the police. In fact, the arresting officer described the Petitioner as "sincerely remorseful" and "cooperative." Subsequent to his arrest the Petitioner attempted to assist the police but proved unsuccessful. On May 10, 2001, the Petitioner pled nolo contendere to the possession charges. As he had no prior criminal record, adjudication of guilt was withheld and he was placed on probation. The Petitioner successfully completed all requirements of his probation. Thereafter, on March 14, 2002, the probation was terminated. On April 3, 2002, within the month of his probation being completed, Petitioner applied for the license at issue in this proceeding. Because the Department denied the license, the Petitioner sought the instant administrative review of the denial and sought relief from the criminal court having jurisdiction over his probation and record. To that end, Petitioner obtained an Order to Seal his criminal records. This order was entered on August 15, 2002. Had the Petitioner waited until after that date to apply for licensure, the pertinent criminal records would have been under seal and therefore unavailable for review. It is the Department's position that the Petitioner lacks fitness and trustworthiness to hold the license based upon the nature of the criminal activity and the recentness in time to the application for licensure. The Petitioner's employer, Nicolo Bonanno, testified that the Petitioner is a trustworthy employee, that he has had business dealings with the Petitioner for approximately 3 years, and that he has no hesitation in supporting his licensure. Mr. Bonanno is himself a licensee through the Department. The arresting officer expressed complimentary statements regarding the Petitioner including his demeanor during and subsequent to the arrest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance enter a final order granting the license sought by the Petitioner. DONE AND ENTERED this 23rd day of January, 2003, in Tallahassee, Leon County, Florida. ___________________________________ J. D. PARRISH 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 23rd day of January, 2003 COPIES FURNISHED: Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Eugene J. LaNeve, Esquire 717 Ponce de Leon Boulevard Suite 215 Coral Gables, Florida 33134 Ladasiah Jackson, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333
The Issue Whether Respondent has failed to maintain "good moral character," as alleged in the Administrative Complaint issued against her, and, if so, what disciplinary action should be taken against her.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: It is undisputed that, as alleged in numbered paragraph 1 of the Administrative Complaint, "Respondent was certified by the Criminal Justice Standards and Training Commission on February 12, 1998, and was issued Correctional Certificate Number 178264." At all times material to the instant case, Respondent was employed as a correctional officer at the Broward Correctional Institution (BCI), a correctional facility operated by the Florida Department of Corrections (DOC). While on "full duty" as a correctional officer at BCI, Respondent was "responsible for [the] care, custody, and control of inmates" at the facility. She was not, however, on "full duty," the entire time she was at BCI. In the fall of 2001, while recovering from an eye injury, she was placed on "light duty" and assigned to the BCI mail room, where she did not have any supervisory responsibility over inmates. This "light duty" assignment was less demanding and had a more desirable work schedule compared to her normal "full duty" assignment. At all times material to the instant case, Jennifer Bateman was the environmental health and safety sergeant at BCI "responsible for all Work[ers'] Comp cases" at the facility. On or about September 24, 2001, Respondent reported to Sergeant Bateman that, earlier that month, while working in BCI's main kitchen (carrying out her duties as the facility's "main kitchen officer"), she had suffered an injury to her right eye. After having been told about the incident, Sergeant Bateman filled out and submitted a "first report of injury" form. She also made arrangements for Respondent to see a "Worker[s'] Comp" doctor. Respondent visited the office of Eye Surgery Associates (ESA) to see Kenneth Karp, M.D., on October 1, 2001. The ESA office was "very busy" that day. After seeing Dr. Karp, Respondent went to the check out counter, where Sherry Pendlebury, an ESA employee, was stationed. Respondent asked Ms. Pendlebury for a note concerning her visit with Dr. Karp that day that Respondent could give to her supervisor at work. Ms. Pendlebury "called back and asked for [and received] permission" to give Respondent the "work note" Respondent had requested. After receiving "permission" to write such a note for Respondent, Ms. Pendlebury asked Respondent what Dr. Karp had told her about "return[ing] to work" and whether "there [were] any stipulations." Respondent replied that, "other than light duty, there was nothing and that she could return to work tomorrow." Ms. Pendlebury then wrote the following note on ESA letterhead and signed Dr. Karp's name on the note (First Note) : CERTIFICATE FOR RETURN TO SCHOOL OR WORK Teresa Harden has been under my care from 9- 22-01 to open and is able to return to work on 10-2-01. Limitations/Remarks: Lite Duty The First Note was sent by facsimile transmission by "a Ms. Cummings" to Sergeant Bateman on or about October 10, 2001. Sergeant Bateman was suspicious of the First Note's authenticity. She thought that if the note indeed were one "coming from a doctor's office, 'light' would be spelled the right way." Sergeant Bateman therefore contacted ESA to inquire "as to whether or not [Dr. Karp] truly issued that note." In response to her inquiry, Sergeant Bateman was told that Dr. Karp "had not provided [Respondent] that note and that as of 10-02-01 [Respondent] was released to full duty." On October 11, 2001, Sergeant Bateman received a second note about Respondent's condition on ESA letterhead (Second Note). This Second Note, which was undated, read as follows: CERTIFICATE FOR RETURN TO SCHOOL OR WORK Teresa Harden has been under my care from 9/22/01 to 10/9/01[2] and is able to return to work on 10/2/01. Limitations/Remarks: full duty, no limitations.[3] The Second Note, as did the First Note Sergeant Bateman had received, purported to bear the signature of Dr. Karp, but the note was actually written by Dr. Karp's assistant, Sharon Corbin. On October 12, 2001, the matter was referred to Marilyn Henderson, a Senior Prison Inspector assigned to DOC's Fort Lauderdale field office, to conduct an internal investigation. As part of her investigation, Ms. Henderson obtained from BCI the First Note and the Second Note and, in addition, took sworn statements from Sergeant Bateman and Dr. Karp. In his sworn statement, which was taken on November 30, 2001, Dr. Karp stated the following: I provided Teresa Harden a certificate to return to work at "full duty, no limitations." I did not write "Lite duty." Furthermore, the signature on the form is not in my own handwriting. Ms. Harden was examined in my office on the following dates only: 9/22/01, 9/24/01, 9/25/01, 9/28/01, 10/1/01, and 10/9/01.[4] Ms. Henderson concluded as a result of her investigation that Respondent had "provided a false document to Broward Correctional Institution in reference to her return to duty status."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission issue a Final Order dismissing the Administrative Complaint issued against Respondent in the instant case. DONE AND ENTERED this 1st day of June, 2005, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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.
