The Issue The issues are whether Petitioner has shown, by clear and convincing evidence, that she is rehabilitated from her disqualifying offense, and if so, whether Respondent's intended action to deny Petitioner's request for an exemption from disqualification from employment would constitute an abuse of discretion.
Findings Of Fact The Agency is the state agency responsible for regulating the employment of persons in positions of trust for which Petitioner seeks to qualify. Petitioner is a 38-year-old female who seeks to qualify for employment in a position of special trust with Success for All of Florida, Inc., a service provider regulated by the Agency. Because she wishes to work as a direct service provider, Petitioner was required to undergo a background screening. The results of that screening identified a history of criminal offenses, including a disqualifying offense in 2003. Accordingly, Petitioner filed a request for exemption from disqualification, which triggered the instant proceeding. In a letter dated July 27, 2015, the Agency's Director, Barbara Palmer, notified Petitioner that after reviewing all information that led to her disqualification, her exemption request was denied. The letter advised Petitioner that this decision was based upon Petitioner's failure to "submit clear and convincing evidence of [her] rehabilitation." Resp. Ex. C. Before Director Palmer made her decision, Petitioner's request for an exemption was reviewed by a Department of Children and Families screener who compiled a 34-page report entitled "Exemption Review" dated June 10, 2015. See Resp. Ex. B. The packet of information contains Petitioner’s Request for Exemption, Exemption Questionnaire, various criminal records, and two character references. The Exemption Review did not make a recommendation one way or the other, but simply compiled all relevant information that would assist the Director in making her decision. The report was first given to the Agency Regional Operations Manager in Orlando, who reviewed it and then made a preliminary recommendation to the Director. In 2003, Petitioner had a disqualifying offense, Grand Theft, a third-degree felony, which automatically disqualified her from employment in a position of special trust. Around the same time, she committed a second-degree misdemeanor, Trespassing in a Structure or Conveyance, a non-disqualifying offense. Both offenses occurred at a JC Penney store in Lakeland. Petitioner pled guilty to both offenses and was adjudicated guilty. For the felony conviction, she was placed on probation for 25 months, given credit for time served in jail, and ordered to pay various fines and costs. Petitioner was then 26 years old. Petitioner's account of her disqualifying offense differs in several respects from the account memorialized in the Lakeland Police Department reports and is inconsistent with her plea of guilty. In her Exemption Questionnaire, she stated that the criminal offense was actually committed by her younger sister and not her. She wrote that "I didn't tell on my sister because she was only 16 at the time so I took the charge for her." Resp. Ex. A, p. 3. This version of events was never presented to the court. At hearing, she also stated that she pled no contest to the crime, but court records indicate she pled guilty. In January 2004, while on probation for the Grand Theft charge, Petitioner violated her probation by committing a non- disqualifying offense and was sentenced to 60 days in jail. In November 2005, Petitioner violated her probation a second time by testing positive for cocaine during a probationary drug screening. The record is unclear if Petitioner served any jail time for this violation. In September 2012, or approximately three years ago, Petitioner committed the non-disqualifying offense of Use or Possession of Drug Paraphernalia, a first-degree misdemeanor. She pled nolo contendere, was adjudicated guilty, placed on probation for 12 months, and ordered to pay various fines and costs. At hearing, Petitioner blamed her cousin for the arrest and stated that she was unaware her purse contained drug paraphernalia (a straw and cocaine residue), as she had not used cocaine since 2005. In any event, she stated that her drug of choice was previously ecstasy and not cocaine, and admitted that she had used that drug while working at Success for All in Florida, Inc., from 2001 until around 2005. Between 2006 and 2014, Petitioner was employed as a warehouse worker by Publix. Along with five other workers, she was terminated by Publix in 2014 for improperly accepting damaged merchandise from a co-worker. There is no record of any employment since that time. Petitioner blamed her criminal arrests on stress in her life, mainly due to a lack of family support and raising two children as a single parent, and being just "plain stupid" while she was young. She expressed remorse for her mistakes and now wishes to help others as a direct service provider. Three witnesses testified on Petitioner's behalf. They described her as being a good worker, a caring individual, dependable, and very determined to improve her life. The Agency's rationale for denying the application is Petitioner's failure to take responsibility for her actions, that is, blaming her arrests on others, and a failure to provide a truthful and full account of the circumstances surrounding her disqualifying offense. The Agency also expressed concerns over Petitioner's lack of specificity regarding her criminal background, and the short period of time (three years) since her latest arrest, albeit for a non-disqualifying offense. Finally, the Agency noted that Petitioner has never had counseling, she lacks any specialized training, and there is no record of employment since being terminated by Publix more than a year ago.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order denying Petitioner's application for an exemption from disqualification. DONE AND ENTERED this 7th day of December, 2015, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 7th day of December, 2015. COPIES FURNISHED: David M. De La Paz, Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) LaShae Thomas 3217 Julia Court Lakeland, Florida 33810-5510 Michael Sauve, Esquire Agency for Persons with Disabilities 400 West Robinson Street, Suite 430 Orlando, Florida 32801-1764 (eServed) Richard D. Tritschler, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Barbara Palmer, Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
Findings Of Fact Petitioner is a not for profit corporation, with physical facilities in Florida, holding tax exemption certificate 06-01290-00-58, issued November 16, 1977. By letter dated October 22, 1984, Respondent announced its intent to revoke the certificate. Petitioner is qualified as a non-profit entity under Section 501(c)(3) of the Federal Internal Revenue Code. The certificate at issue has been held continuously by Petitioner since 1977. Petitioner provides credit counseling assistance free of charge to any individual 1/ who is encountering difficulty paying his debts. Petitioner typically assists such individuals by contacting creditors, obtaining their agreement to accept smaller payments, and by taking temporary control of the client's income and making periodic payments on the client's behalf. Petitioner also gives educational presentations on personal financial management in the communities where it operates (Orange, Seminole, and Volusia Counties). Additionally, it provides counseling for the U.S. Department of Housing and Urban Development to persons facing foreclosure of home mortgages. It does not charge a fee for this service. Petitioner relies primarily on the United Way for its operating revenues. It also receives major support from the creditors it deals with, asking them to contribute 15 per cent of the amount sent to them on behalf of its clients. Additionally, Petitioner receives interest incomes on client trust funds.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Revenue enter a Final Order reissuing Certificate of Exemption Number 06-01290-00-58 to Petitioner. DONE and ENTERED this 24th day of May, 1985, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1985.
The Issue The issue in this case is whether Petitioner’s application for licensure as a resident all-lines adjuster should be approved or denied.
Findings Of Fact DFS is the state agency responsible for licensing and regulating insurance adjusters and agents pursuant to chapters 624 and 626, Florida Statutes. On April 20, 2016, Petitioner filed with DFS his application to become licensed as an all-lines adjuster in the state of Florida. On the second page of the application form, Petitioner answered “yes” to the question asking whether he has ever pled nolo contendere, no contest, or guilty to, or ever had adjudication withheld for, or ever been convicted of or found guilty of, any felony crime under the laws of any state. Despite answering yes to that question, on the third and fourth pages of the application, Petitioner answered “no” to the following three questions: First, Petitioner was asked whether his felony crime(s) fell within the following categories: any first-degree felony; a capital felony; a felony involving money laundering, fraud of any kind, or embezzlement; or a felony directly related to the financial services business. Second, Petitioner was asked whether his felony crime(s), if not falling in one of the above categories, were crimes involving moral turpitude. Lastly, Petitioner was asked whether his felony crime(s) were within the category of “all other felonies.” The questions asking how to categorize the felony crime(s) that Petitioner acknowledged on page two of the application correlate to the statute prescribing a range of consequences depending on the type of felony criminal background an applicant has. According to the statute, an applicant with felony criminal history falling in the first group above (first degree felony, etc.) is permanently barred from applying for licensure in Florida as an insurance agent or adjuster. For an applicant whose felony criminal history does not fall in the first group, but is categorized as a felony (or felonies) involving moral turpitude, the statute provides for a long period of disqualification. If an applicant’s felony criminal history does not fall in either of the first two categories, then a shorter period of disqualification is provided by the statute. See § 206.207, Fla. Stat., adopted in its current form in 2011 (with one immaterial amendment in 2014 to change a statutory cross-reference). Petitioner’s admitted felony history must, of necessity, fall within one of the three groups: the felony history must have involved one or more felonies identified for permanent bar, other felonies involving moral turpitude, and/or all other felonies. The application answers were internally inconsistent and at least one of the answers on pages three and four was wrong. At hearing, Petitioner did not offer any explanation for his incorrect answer(s).1/ Petitioner did not file with his April 2016 application submitted to DFS, and did not offer into evidence at hearing any proof of the felony criminal history to which he admitted in his application. Petitioner gave little information at all about his criminal background at hearing. He testified that he identified his prior criminal history on page two of the application (by answering “yes” to the question asking whether he had ever been convicted, etc. of any felony crimes). The only detail he was asked by his counsel to address was as follows: Q: Now the criminal history that you identified, is that something that occurred a while ago? A: Yes, sir. Q: And can you give me the approximate time period? A: The offense? It was in 1994, I believe. Q: Okay. And do you recall when you finished all your restitution and probation concerning any of these prior convictions? A: 1999. (Tr. 32). Petitioner later acknowledged on cross-examination, as suggested by his attorney’s attempted correction in his follow-up question, that there was not just one (“the”) offense--there was more than one offense and more than one conviction. Other than correcting that error, Petitioner volunteered no information regarding his prior convictions. He did, however, offer into evidence documentation generally corroborating his testimony regarding when he completed probation for his prior convictions. Two letters from New Jersey Superior Court personnel state that court records reflect that Mr. Bivona completed three different probationary terms associated with three different indictment numbers, as follows: for indictment number 96-03-0031-I, probation was completed as of August 9, 1999; for indictment number 95-10-0453-I, probation was completed as of May 2, 1999; and for indictment number 95-05-0206-I, probation was completed as of September 27, 1998. Although Petitioner offered no details or documentation for his prior felony convictions, either with his application or at hearing (other than the letters documenting when he completed probation), Petitioner said that he had previously provided documentation to Respondent regarding his felony convictions, a fact confirmed by Respondent. Respondent had in its files certified copies of court records for Petitioner’s felony convictions in New Jersey, obtained by Respondent in 2010 in connection with a prior license application by Petitioner.2/ Respondent offered into evidence at hearing certified copies of court records regarding Petitioner’s felony criminal history, including indictments issued by grand juries setting forth the original charges, and the subsequent judgments of conviction issued by New Jersey Superior Court judges. Because Respondent was willing to use the criminal history documentation previously provided by Petitioner that was already in Respondent’s files, Respondent did not require Petitioner to obtain or submit the same documentation again in connection with his new license application.3/ The indictment numbers identified in the three judgments of conviction match the three indictment numbers contained in Petitioner’s exhibit offered to prove when he completed his probationary terms for his prior convictions. Thus, although Petitioner was evasive at hearing, unwilling to identify the court records of his prior convictions, the records themselves establish the missing information about Petitioner’s felony criminal history that Petitioner only alluded to at hearing. In a September 28, 1995, judgment of conviction issued by Judge Leonard N. Arnold, New Jersey Superior Court for Somerset County, Mr. Bivona pled guilty to, and was convicted of, the charges set forth in indictment 95-05-0206-I. As enumerated in the judgment of conviction, these were: four counts of fraudulent use of a credit card, a third-degree felony; one count of unlawful theft or receipt of a credit card, a fourth-degree felony; four counts of forgery, a fourth-degree felony; and one count of theft by deception, a fourth-degree felony. For sentencing purposes, the court merged nine of the counts into count two (one of the charges for fraudulent use of a credit card), and imposed the following sentence: three years of probation, restitution of $271.60, a $500.00 fine, and other monetary assessments. On May 3, 1996, another judgment of conviction was issued by Judge Leonard N. Arnold. The judgment of conviction shows that Mr. Bivona pled guilty to, and was convicted of, the charges set forth in indictment 95-10-0453-I. As enumerated in the judgment of conviction, these were: three counts of fraudulent use of a credit card, a third-degree felony; and one count of theft, a fourth-degree felony. The sentence imposed by the judgment of conviction was incarceration for 180 days in the county jail, a three-year probationary term, restitution of $380.02, and monetary assessments. On August 9, 1996, a judgment of conviction was issued by Judge Marilyn Hess, New Jersey Superior Court for Hunterdon County. As shown on the judgment of conviction, Mr. Bivona pled guilty to, and was convicted of, the charges set forth in indictment 96-03-00031-I. As enumerated in the judgment of conviction, these were: one count of theft by deception, a third-degree felony; one count of forgery, a fourth-degree felony; and one count of credit card theft, a fourth-degree felony. The sentence imposed by the judgment of conviction was a three-year probationary term, restitution of $2,488.30, and monetary assessments. As noted, Mr. Bivona testified that he completed the probationary terms for his prior convictions in 1999. He provided documentation corroborating that he served the three probationary terms and completed them on three different dates in 1998 and 1999, the last of which was August 9, 1999. No evidence was presented to prove that Mr. Bivona has paid all restitution, fines, and other monetary assessments imposed in the three judgments of conviction, and, if so, when all payments were completed. Petitioner’s application was initially denied by DFS because of Petitioner’s felony criminal history. DFS determined that at least two of the judgments of conviction, and possibly all three, were for felony crimes involving fraud. DFS did not undertake a review of Petitioner’s rehabilitation from his past crimes or his present trustworthiness and fitness to serve as an insurance adjuster, because in DFS’s view, Petitioner was subject to the statutory permanent bar from applying for licensure. DFS did not determine that Petitioner did not otherwise meet the requirements for licensure as a resident all-lines adjuster. At hearing, neither party went into any detail regarding the requirements for licensure as an all-lines adjuster. Instead, the focus of both Petitioner and Respondent was on whether Petitioner’s criminal history renders him disqualified from applying for licensure as an adjuster, either permanently or for a period of time, and, if the latter, whether mitigating circumstances reduce the disqualifying period. No evidence was offered of aggravating circumstances. Respondent has not disputed whether, aside from the implications of Petitioner’s criminal history, Petitioner otherwise qualifies for licensure. Therefore, it is inferred that Respondent was and is satisfied that, aside from the implications of Petitioner’s criminal background (including questions about rehabilitation, trustworthiness, and fitness), Petitioner otherwise meets the requirements for licensure as an all-lines adjuster. Petitioner presented evidence addressed to the mitigating factors in Respondent’s rule to shorten the period of disqualification in certain circumstances, where there is no permanent bar. Petitioner testified that he moved to Florida with his wife in 1998 (apparently before he had completed his probationary terms for at least two of his convictions). He and his wife started a business in the Sarasota area, a corporation that has operated under two different names, but has remained essentially the same since 1998. The business has always been small; although it has gone up and down in size over the years, Petitioner said that the business has had at least five employees for over three years. Since 1998, the nature of his business has been to provide technical support and assistance to insurance adjusters. The business has not been engaged in the actual adjuster work; instead, his clients are licensed adjusters who perform the actual adjuster work. Petitioner testified that he has been employed by the corporation he owns, working at least 40 hours per week for a continuous two-year period within the five years preceding the filing of his application. This parrots one of the mitigation factors in Respondent’s rule, and although no documentation of his employment hours was provided for any period of time, the undersigned accepts Petitioner’s testimony as sufficient under the mitigation rule. If Petitioner is determined to be disqualified for a period of years and subject to the mitigation rule, this mitigation factor would reduce the disqualification period by one year. To meet another mitigation factor, Petitioner submitted five letters of recommendation in evidence. Three of those letters appear to be from someone who has known Petitioner for at least five years (one undated letter states that the author has known Petitioner for three years; another letter, more of a business reference from an insurance company representative in Maryland, does not state how long the author has known Petitioner). Those letters that are dated bear dates after the license application was submitted and initially denied, but there is no impediment to receiving and considering them in this de novo hearing. The letters meet the requirement in Respondent’s rule for mitigation. If Petitioner is determined to be disqualified for a period of years and subject to the mitigation rule, this mitigation factor would reduce the disqualification period by one year. Although the letters satisfy one of the mitigation factors in Respondent’s rule, the contents of the letters are hearsay, as none of the authors testified. The matters stated in the letters, for the most part, do not corroborate any non- hearsay evidence, except in a few immaterial respects (such as that Petitioner runs his own business and has daughters who play volleyball). Petitioner did not present any testimony from witnesses at hearing who could attest to his character, his business reputation, or his trustworthiness. Petitioner testified that he does volunteer work on a “sporadic” basis. He is active as a volunteer for his three daughters’ schools and travel volleyball activities, and he also works with youth groups in his church. Although Petitioner testified that he believes he has volunteered at least 180 hours over the three years preceding the filing of his application, Petitioner did not present any documentation from one or more charitable organizations confirming the number of his volunteer hours. It is undisputed that Petitioner held an insurance adjuster license in Florida for some period of time, until, according to DFS, the license expired by operation of law. Although Petitioner admitted that since 1998, his business has not been engaged in insurance adjuster work, merely holding a license appears to at least superficially satisfy a mitigation factor in Respondent’s rule. No evidence was presented to show that Petitioner has been arrested or charged with any criminal violations since he completed his third probation in August 1999, more than 17 years ago. The length of time without any additional criminal incidents is a positive consideration. Notably lacking from Petitioner were: an explanation for the circumstances underlying the multiple crimes he committed that involved fraud, theft, forgery, and deception, through use of other people’s credit cards and checks; express acceptance of responsibility for his criminal past; the expression of genuine remorse for his wrongdoing; and an explanation as to why his criminal history should not present concerns if Petitioner becomes authorized to engage in insurance adjusting. As Petitioner acknowledged, a licensed adjuster “would negotiate settlement [of claims under insurance policies], would offer payment, [and] would have authority to write payment and receive payments” (Tr. 35), placing the adjuster in a position of trust and responsibility in dealing with other people’s money. Simply noting that it has been a good number of years since Petitioner completed his probations, that he is running his own business (that does not engage in insurance adjusting), that he has a family, that he is involved with church, and that he does volunteer work is not enough, when Petitioner’s past crimes and the concerns they present go unexplained, to support a finding of rehabilitation, moral fitness, and trustworthiness today. It may well be that Petitioner could prove these things if he had addressed them; it may have been an unfortunate strategic choice to avoid any mention of Petitioner’s past crimes in anything but the most general and vague terms. Perhaps in light of decisional law discussed in the Conclusions of Law below, Respondent’s licensure application form asks applicants who disclose criminal history whether they have had their civil rights restored. Petitioner answered yes. He was asked to explain, and his response was: “Rights were restored and I have the ability to vote and act as a standard US Citizen.” (Pet. Exh. 11 at 4). In the initial review of Petitioner’s application, DFS staff apparently accepted Petitioner’s representation that his civil rights had, in fact, been restored.4/ However, in a “deficiencies” listing at the end of the application, DFS noted that Petitioner failed to provide a certificate of civil rights restoration, or other proof of restoration of his civil rights. Petitioner’s application was not denied because of these omissions, and Petitioner’s failure to provide such evidence in his application would not have been an impediment to receiving and considering proof of restoration of Petitioner’s civil rights at hearing, had such evidence been offered. At hearing, Petitioner attempted to prove that his civil rights were restored. However, Petitioner presented no evidence that he ever applied for restoration of his civil rights, or that his civil rights have been restored by order of the governor in the exercise of clemency power. Instead, the only evidence offered by Petitioner was a Florida voter status printout showing that he is an active registered voter. The exhibit was admitted for the limited purpose of showing that Petitioner was registered to vote in Florida. However, this fact is insufficient to support an inference that Petitioner’s civil rights must have been restored or he would not have been allowed to register to vote. If Petitioner has actually had his civil rights restored, there would be direct evidence of that, and Petitioner had no such evidence. It is equally or more plausible that Petitioner was allowed to register to vote in Florida by mistake; Petitioner acknowledged that he represented in his voter registration application that his civil rights were restored (just as he represented to DFS in his license application). Petitioner’s counsel argued that Petitioner was allowed to register to vote in Florida because Florida gave full faith and credit to what New Jersey had done. This argument was unsupported by evidence of how Petitioner became registered to vote in Florida. Regarding what was done in New Jersey, the only evidence offered by Petitioner was a “voter restoration handbook” from the state of New Jersey, which indicates as follows: “In New Jersey, any person who is no longer in prison or on parole or probation, can register to vote. . . . In New Jersey, unlike some other states, those who have been convicted of felony offenses in the past are not forever barred from voting. . . . Any ex-felon who has satisfactorily completed the term of his or her sentence can register to vote.” (Pet. Exh. 7, admitted for a limited purpose, at 1 - 2). The rest of the handbook simply describes how one goes about registering to vote in New Jersey. Under New Jersey law, then, one particular civil right--the right to vote--is taken away from convicted felons only until they complete their sentence, parole, and probation. This is confirmed by a New Jersey statute that has been officially recognized, providing that the right of suffrage--the right to vote--is taken away from any person “[w]ho is serving a sentence or is on parole or probation as the result of a conviction of any indictable offense under the laws of this or another state or of the United States.” § 29:4-1(8), N.J. Stat.5/ The right to vote is only one of the civil rights that may be lost by reason of being convicted of a crime. For example, under another New Jersey law officially recognized in this proceeding, persons convicted of a crime are disqualified from serving on a jury. See § 2C:51-3b., N.J. Stat. Petitioner presented no evidence to prove that he ever sought or received a restoration of his civil rights by executive order of the governor pursuant to an exercise of executive branch clemency power, either in the state of New Jersey or in Florida. In New Jersey, restoration of civil rights and privileges (one of which may be the right to vote) is accomplished pursuant to section 2A:167-5, New Jersey Statutes, officially recognized in this proceeding and providing in pertinent part: Any person who has been convicted of a crime and by reason thereof has been deprived of the right of suffrage or of any other of his civil rights or privileges . . . may make application for the restoration of the right of suffrage or of such other rights or privileges . . . which application the governor may grant by order signed by him. (emphasis added). Similarly, the Florida Constitution vests in the executive branch the following clemency powers: [T]he governor may, by executive order filed with the custodian of state records, suspend collection of fines and forfeitures, grant reprieves not exceeding sixty days and, with the approval of two members of the cabinet, grant full or conditional pardons, restore civil rights, commute punishment, and remit fines and forfeitures for offenses. (emphasis added). Art. IV, § 8(a), Fla. Const. Petitioner admitted that he did not apply to the governor for a restoration of civil rights in New Jersey, and he has no order from the governor restoring his civil rights. Similarly, Petitioner did not apply for and receive an order from the governor restoring his civil rights in Florida. Instead, he admitted that he is relying on whatever happened in New Jersey. The following testimony reveals Petitioner’s misconception of the process in New Jersey for restoration of civil rights: Q: Okay. Mr. Bivona, what’s your understanding of how your civil rights were restored in New Jersey? A: My understanding is that once probation and restitution and everything is completed, that civil rights are restored in the State of New Jersey. Q: And did that happen, to your knowledge? A: The completion? Q: Yes. A: Yes, sir. I also verified that with the State of New Jersey. I called them. The Court: I can’t consider that.[6/] A: I understand. I’m sorry. The Court: Do you have any exhibits that show that civil rights have been restored? Mr. Terrell: There’s a handbook from New Jersey that’s also how the rights are restored. [Pet. Exh. 8, in evidence for limited purpose] (Tr. 44).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services issue a final order denying Petitioner’s application for licensure as a resident all-lines insurance adjuster. DONE AND ENTERED this 14th day of April, 2017, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 2017.
Findings Of Fact The Respondent, Benny R. Hardy, is a licensed law enforcement officer in the State of Florida, holding License No. GF-7656. The Petitioner is an agency of the State of Florida charged with the licensing of and the regulation and enforcing of licensure, practice and conduct standards for law enforcement officers. The Respondent was hired on the police force of the City of Umatilla, Florida, on September 16, 1975, rising to the position of Chief of Police. He served in that capacity until his termination of employment by his resignation on March 23, 1983. The Respondent resigned from his employment due to his having been charged with a felony, involving obtaining drugs with a forged prescription. He entered a plea of nolo contendere to that charge and an order was entered on March 25, 1983, placing the Respondent on probation for three years and withholding adjudication of guilt, it appearing to the satisfaction of the court that the Respondent was "not likely again to engage in a criminal course of conduct . . . ." Certain conditions were imposed upon Respondent's probationary status and the court reserved jurisdiction to adjudge the Respondent guilty and impose any legally appropriate sentence if the conditions of that probation are violated. There is no evidence that Respondent has ever been the subject of any disciplinary proceeding such as this in the past. His licensure status is presently "inactive." The Respondent, however, after due and proper notice of hearing, failed to appear at the hearing at the appointed date and time and had still not appeared at 10:40 a.m., when the hearing was adjourned.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, and the evidence and testimony of record, it is, therefore RECOMMENDED: That a final order be entered by the Criminal Justice Standards and Training Commission revoking Law Enforcement Certificate No. GF-7656 presently held by Respondent. DONE and ENTERED this 12th day of December, 1983, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 13th day of December, 1983. COPIES FURNISHED: Dennis S. Valente, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Mr. Benny R. Hardy Post Office Box 1014 Umatilla, Florida 32784 James W. York, Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 G. Patrick Gallagher, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302
Recommendation Based on the foregoing, it is RECOMMENDED that a final order be entered dismissing the request for formal hearing filed by petitioner, Ronald McGahee. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of October 1989. COPIES FURNISHED: Jayne C. Weintraub, Esquire 330 Biscayne Boulevard Penthouse Miami, Florida 33132 Donald Papy, Esquire 19 West Flagler Street Suite 802 Miami, Florida 33130 Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Florida Department of Law Enforcment Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 WILLIAM J. KENDRICK 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 16th day of October, 1989.
The Issue The issue is whether Petitioner is entitled to its attorneys' fees and costs associated with this case and an associated case, DOAH Case No. 99-1679RX, in which Petitioner obtained a final order from the same Administrative Law Judge invalidating two rules promulgated by Respondent.
Findings Of Fact Petitioner was the prevailing party in DOAH Case No. 99-1679RX. In that case, Petitioner proved that Rules 12A-1.001(3)(b) and 12A-1.001(3)(q), Florida Administrative Code, which provided an exemption from the sales and use tax for certain organizations providing certain services to minors (Minor Organizations), were an invalid exercise of delegated legislative authority because the exemption in the rule covered only purchases by Minor Organizations and the exemption in the statutes covered purchases and sales by Minor Organizations. The sole issue in this case is whether Respondent's position in defending the challenged rules was substantially justified. Among other things, Respondent has conceded that Petitioner's claim exceeds $15,000. In the rule challenge, the Administrative Law Judge reviewed the language chosen by the legislature to create exemptions based on a sale, a purchase, the identity of the purchaser, the identity of the seller, and the identity of the item purchased or sold. The Administrative Law Judge concluded that the "plain meaning" of the statute was to exempt purchases and sales by Minor Organizations. As Petitioner notes in its motion, Respondent had already promulgated a rule conferring the broader exemption for purchases and sales by certain nursing homes, which were the beneficiary of a statutory exemption stated in the same language as that applying to Minor Organizations. However, several other rules, construing the same statutory language governing other types of entities, recognized only the narrower exemption extended to Minor Organizations. In one instance, the legislature exempted the purchases and sales by one type of entity in different, arguably stronger language. Additionally, Respondent defended its interpretation in the rule challenge largely in reliance upon legislative history, which, at least by negative implication, was not inconsistent with Respondent's position.
The Issue The issue presented for decision herein is whether or not Petitioner, by failing to disclose an arrest conviction and sentencing on a license application (as the applicant administrator), constitutes grounds for revocation of an ACLF license granted pursuant to that application as provided in Section 400.414(1), (2), (b), Florida Statutes.
Findings Of Fact Petitioner applied for an initial ACLF license on or about April 10, 1985 and a license was issued pursuant thereto on July 17, 1985. In Section 4 of the initial license application, the question is asked "have you ever been arrested or convicted of a crime involving injury or harm to persons, or financial or business management (e.g., assault, battery, robbery, embezzlement or fraud)". Applicant Lorraine Cooney, answered "no" and marked the section seeking further information about such arrest or conviction: "N/A". In fact, applicant Cooney's 1986 renewal application filed June 7, 1986, indicates that she was convicted in March 5, 1985, in Federal Court of Income Tax Fraud. Specifically, a review of a letter from Ms. Cooney's U.S. Probation Officer, Terry M. Levix, indicates that Ms. Cooney pled guilty on January 4, 1985 to two counts of a two count indictment charging that she filed a fraudulent claim to the United States Treasury and was placed on two years probation effective February 5, 1985. Ms. Cooney did not contest the conviction of the fact that she was placed on probation. At hearing, applicant Cooney admitted the facts of the arrest and conviction but contested the revocation of her license based on her contention that she has operated the facility in accordance with all applicable standards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner's appeal of the Department's revocation of her ACLF license be DENIED. RECOMMENDED this 20th day of June, 1988, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1988. COPIES FURNISHED: Leonard T. Helfand, Esquire Department of HRS 5190 Northwest 167th Street Miami, Florida 33014 Joaquin J. Iglesias, Esquire 2001 Northwest 7th Street Suite 303 Miami, Florida 33125 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issues are 1) whether Petitioner has shown, by clear and convincing evidence, that she is rehabilitated from her disqualifying offense(s); and, if so, 2) whether Respondent's intended action to deny Petitioner's request for an exemption from employment disqualification would constitute an abuse of discretion.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner is seeking employment with The Arc of Alachua County, a service provider regulated by APD. Petitioner’s desired employment is to work as a direct service provider, which requires compliance with background screening requirements. The results of Petitioner’s background screening identified a history of criminal offenses. Petitioner received notification via letter dated April 4, 2016, from the Department of Children and Families (DCF), Respondent’s background screening entity, of her disqualification from employment due to a criminal history. The specific disqualifying offense listed in the letter was Larceny (a violation of section 810.014, Florida Statutes (2016)1/). Florida’s Legislature has designated certain criminal offenses as disqualifying offenses, which would prevent an individual from working as a direct service provider. However, an individual may seek an exemption from the employment disqualification. The granting of an exemption from employment disqualification would allow for Petitioner’s employment as a direct service provider to APD clients. APD’s clients are a vulnerable population, consisting of those individuals whose developmental disabilities are statutorily defined as: intellectual disability, autism, spina bifida, Prader-Willi syndrome, cerebral palsy, Down syndrome, and/or Phelan-McDermid Syndrome. See § 393.063(12), Fla. Stat. Without APD’s services, these clients would otherwise require institutionalization. APD’s clients often have severe deficits in their abilities to complete self-care tasks and communicate their wants and needs. These clients are at a heightened risk of abuse, neglect, and exploitation because of their developmental disabilities and inability to self-preserve; consequently, employment as a direct service provider to APD clients is regarded as a position of special trust. APD is the state agency responsible for regulating the employment of persons in positions of special trust as direct service providers for which Petitioner seeks to qualify. See §§ 110.1127(2)(c)1. and 393.0655, Fla. Stat. Many of the tasks direct service providers perform for, and/or assist individuals with disabilities with, include those of a social, personal needs, and/or financial nature. APD relies on DCF to initially receive exemption from employment disqualification requests and compile documents received related to such requests. On or around May 10, 2016, Petitioner submitted a Request for Exemption, Exemption Questionnaire, a copy of her criminal record, character references, and other various documents (the Exemption Packet) to DCF in order to demonstrate support for the granting of an exemption from employment disqualification. DCF subsequently forwarded the Exemption Packet to APD for review. In beginning its exemption review, APD considered Petitioner’s disqualifying offense. Specifically, in December 1982, Petitioner committed the disqualifying offense of Larceny/Grand Theft (a violation of section 810.014). The court’s final disposition of the case included the withholding of adjudication of guilt, two years’ probation, and payment of costs. In its continued exemption review pursuant to section 435.07(3)(b), Florida Statutes, APD considered the following non- disqualifying offenses which Petitioner committed subsequent to her December 1982 disqualifying offense: an arrest for Worthless Check on December 23, 1995 (a violation of section 832.05, Florida Statutes); a second arrest for Worthless Check on December 23, 1995 (a violation of section 832.05); a conviction for Worthless Check on December 24, 1995 (a violation of section 832.05); an arrest for Driving While License Suspended/Revoked in June 1996 (a violation of section 322.34(2), Florida Statutes); an arrest for Worthless Check in January 2007 (a violation of section 832.05(4)(a)); and an arrest for Violation of Injunction Domestic Violence/Contempt of Court in August 2012 (a violation of section 741.31(4)(a), Florida Statutes). The Disqualifying Offense Petitioner provided an account of her disqualifying offense, Larcency/Grand Theft, in an addendum to the Exemption Questionnaire, dated August 3, 2015. Petitioner indicated in her account that she relocated to Tampa from Gainesville. She was 22 years old, single, and employed with the State of Florida. She became roommates with another female who was attending college at the University of South Florida. Petitioner stated “I have no explanation as to why the both of us committed a crime of theft.” Petitioner further explained that she received a two- year term of probation and completed all her court-ordered sanctions within a year. Petitioner also noted that “[s]ince that time, I have not committed any further crimes.” Petitioner provided the following record concerning her disqualifying offense: state attorney court record (13th Judicial Circuit, Hillsborough County, State Attorney). The Non-Disqualifying Offenses Court records received in evidence indicate a total of six non-disqualifying offenses as previously mentioned. Petitioner did not disclose any of her non-disqualifying offenses, nor did she provide accounts for such on the Exemption Questionnaire, despite the directions specifically requiring an applicant to do so. Petitioner did not provide records of her non- disqualifying offenses. Records of those offenses were obtained by APD as part of its detailed review process. Records of the non-disqualifying offenses obtained included: worthless check affidavit, witness form, copies of check, and no information filed court filing (Sears 12/23/1995); worthless check affidavit, witness form, and copy of check (Pic’n Save 12/23/1995); worthless check affidavit, witness form, copy of check, and court judgment (Pic’n Save 12/24/1995); worthless check affidavit, witness form, copy of check, copy of court diversion judgment and supporting documentation, and copy of dismissal of charge (Publix 1/30/2007); and warrant affidavit for arrest (Alachua County Sheriff’s Office, August 2012). Petitioner indicated that she has no current involvement with any court system; specifically, she stated “I have not experienced any criminal charges since my last event in 1982.” Regarding whether there was any degree of harm to any victim or property, including damage or injuries, Petitioner stated “I have not experienced any harm or damage to anyone or any property since my last event in 1982.” In answering the question about stressors in her life at the time of the disqualifying incident, Petitioner indicated that there were none, other than being on probation. Regarding whether there are any current stressors in her life, Petitioner stated “I have no current stressors with the law.” Petitioner indicated that her current support system and living arrangements include being married and having one daughter and numerous grandchildren. Petitioner also explained that her community activities/volunteer efforts include volunteering with the school system (field trips/activities) and attending church and performing functions for the church’s treasury department. Regarding educational and training achievements, Petitioner stated that she graduated from high school, started a career with the State of Florida, and attended a word processing/information course where she received the Most Outstanding Student Award. The Exemption Questionnaire asks whether an applicant has ever received counseling for any reason. Petitioner indicated that she has not received counseling for any reason; if she felt stress, she would call the Employee Assistance Program. Petitioner noted she has not experienced any “major post- traumatic [stress].” As to whether she has used and/or abused drugs or alcohol, Petitioner replied that she has “not abused any type of drugs or alcohol in [her] life.” Petitioner indicated the following regarding feeling remorse/accepting responsibility for her actions: “I am the type of person to feel remorse towards everything and every person that I have contact with. I always take full responsibility for any action(s) that I encounter when I am in the wrong.” The Exemption Questionnaire asks for an applicant’s prior three years’ work history. Petitioner provided the following information: 4/2016 to 5/2016--The Arc of Alachua County (support tech/direct care); 11/2007 to 7/2014--DCF--North Florida Evaluation & Treatment Center (Human Services Worker III); 3/2004 to 7/2007—DCF--State of Florida Foster Care (word processor/data management specialist); 4/1998 to 9/2003-- American Psychiatric Association (membership coordinator/secretary). In addition to the criminal record submitted, Petitioner also provided the following additional documents that were included in her Exemption Packet: local law background checks, a volunteer award (Head Start), three letters of reference attesting to Petitioner’s character, and an Affidavit of Good Moral Character. The letters were written by persons who have known Petitioner for several years; they described Petitioner as devoted, loyal, honest, kind, and trustworthy. Finally, Petitioner submitted a copy of an exemption letter she received from DCF, dated February 12, 2016. Leslie Richards, regional operations manager for APD’s Northeast Region, advised that APD reviewed all documentation provided by Petitioner in her Request for Exemption, the information indicated in Petitioner’s Exemption Questionnaire, the various records documenting Petitioner’s criminal history, her volunteer award, character letters, and exemption from DCF. Following a review of Petitioner’s Exemption Packet, Agency Director Barbara Palmer, advised Petitioner by a letter dated September 26, 2016, that her request for an exemption from her disqualifying offense was denied. The basis for the denial was that Petitioner failed to submit clear and convincing evidence of her rehabilitation. Petitioner sent APD a request for hearing on or around October 11, 2016. APD received this request timely and subsequently forwarded this appeal to DOAH. Along with her request for hearing, Petitioner submitted a personal statement explaining her reasons for disputing the denial and requesting the hearing, a copy of the denial letter, and a copy of a training certificate summary for APD-approved courses through her former employer, the Arc of Alachua County. At hearing, Ms. Richards explained APD’s process of reviewing exemption requests and the consideration of Petitioner’s application for such. Per Ms. Richards, APD considers the disqualifying offense, the circumstances surrounding the offense, the nature of the harm caused to the victim, the history of the applicant since the incident, and finally, any other evidence indicating that the applicant will not present a danger if employment is allowed. Additionally, Ms. Richards testified that APD looks for consistency in the applicant’s account of events in his or her Exemption Questionnaire, the passage of time since the disqualifying incident, whether the applicant accepts responsibility for his/her actions, and whether the applicant expresses remorse for his or her prior criminal acts. Because an applicant will be occupying a position of special trust if granted an exemption, APD weighs all of these factors in its determination. Ms. Richards testified that all of Petitioner’s submissions were reviewed and taken into consideration; she noted that the starting point of APD’s review began with the date of the disqualifying offense and any criminal conduct occurring thereafter. Ms. Richards emphasized that in APD’s review, it was noted that Petitioner failed to disclose sufficient details of the account of her disqualifying offense. Specifically, Petitioner provided what appeared to be background information about the time frame surrounding the offense and the person whom she committed the offense with, but indicated in her statement “I have no explanation as to why the both of us committed a crime of theft.” Petitioner provided other details about this time in her life, but nothing specific about the crime itself. Ms. Richards stated that it left APD with a concern that Petitioner was not forthright with disclosure of the circumstances involving the crime. Ms. Richards also explained that APD took note that Petitioner failed to disclose any of her non-disqualifying offenses, and that this fact was also of concern. APD obtained records of the non-disqualifying offenses and considered them in its review. Ms. Richards noted that the nature of the offenses, particularly the Worthless Checks and the Violation of the Injunction Domestic Violence/Contempt of Court, were troubling because those offenses involved monetary transactions and interpersonal relations. Ms. Richards observed that the individuals APD serves are highly susceptible to abuse, neglect, and exploitation, and a person who is in a role as a direct service provider would be assisting those individuals in a social and financial capacity. APD reviewed Petitioner’s involvement with three DCF investigations involving allegations of abuse toward a vulnerable adult, Petitioner’s spouse. Although there were no findings against Petitioner in these cases, based on the issues presented, DCF did make the recommendation for Petitioner to pursue family counseling. Ms. Richards noted that there is no evidence that Petitioner followed through with DCF’s recommendation, and by Petitioner’s own admission on the Exemption Questionnaire, has “not received counseling for any reason.” In addition to both the criminal offense and DCF- related information, APD noted Petitioner’s less than stellar driving record. Ms. Richards advised that a direct service provider will often be in a position to transport clients, and Petitioner’s driving record reflects a series of both moving and non-moving violations, which pose a concern. The record reflects a total of five driving-related violations: driving while license suspended/revoked (previously mentioned); tag not assigned (criminal traffic); red light camera citation; unlawful speeding; and a second red light camera citation. Ms. Richards testified regarding APD’s consideration of Petitioner’s prior employment history with DCF, and the subsequent exemption for employment granted to Petitioner by DCF. At hearing, APD presented employment evaluations and records of written disciplinary action taken against Petitioner by DCF while in its employ. Ms. Richards specifically noted that some of the disciplinary issues for which Petitioner was cited included: sleeping on the job while employed at a forensic facility; not securing the front door of a building at a forensic facility; tardiness; inappropriately streaming media on a state-owned computer; insubordination (refusal to work a shift); failure to report to work; and poor performance/negligence (failure to answer phones/answer front door of facility). Petitioner ultimately was dismissed from DCF due to her inability to perform her job functions because of an injury. Ms. Richards explained that these disciplinary issues gave APD great pause in considering granting Petitioner an exemption, as they were indicators for potential behaviors that could pose a great risk to individuals served by APD, many of whom are unable to communicate their wants and needs. The setting in which Petitioner committed these workplace violations mirrors those in which clients of APD are served. Ms. Richards did state that APD considered the exemption granted by DCF to Petitioner, however, the weight of the prior disciplinary issues outweighed that decision when compared to the possible jeopardy in which APD clients could be placed. Should Petitioner obtain future successful employment with DCF, APD would consider that in a subsequent exemption application review. Petitioner testified on her own behalf at the hearing. She spoke about the circumstances surrounding the disqualifying offense, reiterating her statement from the addendum to the Exemption Questionnaire. She provided no new information or surrounding details about the crime. Again, she stated that she has not had any legal issues since 1982. Regarding her non- disqualifying offenses, Petitioner remarked that she “didn’t consider those bad checks as crimes,” and though she denied being convicted of such, she admitted having overdrafted checks. Petitioner also stated that regarding the DCF investigations and the Injunction Violation/Contempt of Court charge, “that’s not why we are here today, so I am not going to talk about that.” Petitioner did admit to the driving infractions on her record, but stated that two of them, running red lights, were due to the fault of her daughter, as she was the driver at the time, rather than Petitioner. Petitioner stated that she is older and wiser and has changed. She enjoyed working at the adult day care program with the Arc of Alachua County. She indicated that any bad checks she has written, she “took care of.” Petitioner offered explanations for the disciplinary situations involving her prior employment with DCF, attempting to minimize her role. She explained that she and her husband, who Petitioner described as a vulnerable, disabled adult, no longer have domestic issues; however, they are currently homeless. Petitioner stated that APD’s denial is keeping her in an adverse financial situation, stating “I cannot find a job right now because of this denial.” When cross- examined by counsel regarding her ability to obtain gainful employment with DCF and its covered providers, Petitioner admitted that she can seek a job under DCF’s purview. Petitioner presented the testimony of two witnesses. Her sister, Sherry McCrae, a retired police officer, stated that she lived with her sister the entire time she was in college; Petitioner provided a source of support to her during this period. Ms. McCrae stated that her sister has been working all the years since the disqualifying incident. She affirmed that their maiden name is Williams, Petitioner’s last name at the time of the disqualifying incident. Petitioner’s second witness, Faye Williams, testified that after Petitioner’s disqualifying incident, she got a job and was active in the community. Petitioner has a desire “to be a part of something.” She loves people, especially children. Petitioner asserted that she enjoys working with individuals with disabilities; at her last place of employment, she believed she found her “purpose and mission.” She loves helping people. She admits she made some mistakes, but that was long ago. Petitioner argued that she “really only committed one crime”; she has rehabilitated herself and that should be enough for APD. She believes APD abused its discretion in denying her request for exemption. The individuals APD serves are vulnerable and highly susceptible to abuse, neglect, and exploitation, due to their developmental disabilities. APD’s representative observed that APD’s clients must be assigned to direct care providers without fear of their endangerment. This necessarily requires reliance on a caregiver’s good character and trustworthiness. Individuals who provide direct care are frequently responsible for assisting individuals in making decisions of a financial, medical, and social nature. APD must weigh the benefit against the risk when considering granting an exemption. Ms. Richards cautioned that Petitioner’s criminal history reflects a pattern of poor judgment. Petitioner’s failure to disclose certain details in her account regarding her disqualifying offense calls into question her trustworthiness. Additionally, failure to disclose her non-disqualifying offenses, along with a failure to recognize that those offenses are truly crimes, is not only troubling, but calls into question Petitioner’s trustworthiness. It also demonstrates a complete lack of remorse and acceptance of responsibility for her actions. Petitioner did not admit to any of the harm she caused to her victims. Petitioner’s minimization of the discipline she received while employed by DCF also gives great pause, as the individuals she was charged with caring for were clients in a forensic setting, a clear parallel to the clients she would serve should an exemption be granted by APD. Petitioner’s multiple driving citations are concerning as well, and demonstrate a pattern of questionable decision- making, especially when considering her for a position where she could potentially transport clients. All of the aforementioned factors, along with proximity in time of her application to her last arrest (2012), caused APD to question Petitioner’s fitness for providing services to the vulnerable individuals for which it is responsible, the most vulnerable population in the state. Petitioner failed to meet her burden of proving clear and convincing evidence of rehabilitation, and therefore, the denial of the exemption was proper.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Director of the Agency for Persons with Disabilities issue a final order upholding the denial of Petitioner’s exemption request. DONE AND ENTERED this 22nd day of February, 2017, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 22nd day of February, 2017.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: On or about October 25, 1988, a Felony Complaint was filed in Municipal Court, Mt. San Jacinto Judicial District, Riverside County, California (Case No. 884467) charging that Petitioner had committed a violation of Section 278.5, Subdivision (b) of the Penal Code, a felony, in that on or about September 1, 1988, in the County of Riverside, State of California, she, being a person having physical custody of a child pursuant to an order, judgment, and decree of court which granted to another person [her former husband] rights of physical custody and visitation, did willfully and unlawfully, with the intent to deprive such person of such rights to custody and visitation, detain, conceal, take, and entice away such child, to wit, JAMES H. RODEN [her son, who, according to court documents, was born on April 22, 1989]. An Amended Felony Complaint charging Petitioner with the same felony offense was filed on or about April 8, 1991. Subsequently, there were plea negotiations which resulted in Petitioner entering a guilty plea to a reduced, misdemeanor charge, which the court accepted. In June or July of 1993, Petitioner submitted to the Department an application for licensure as a general lines insurance agent. Among the questions on the application form that Petitioner filled out were the following: Have you ever been charged with or convicted of or pleaded guilty or no contest to a crime involving moral turpitude (yes or no), or a felony (yes or no), or a crime punishable by imprisonment of one (1) year or more under the law of any state, territory or county, whether or not a judgment or con- viction has been entered? (yes or no) If yes, give date(s): What was the crime? Where and when were you charged? Did you plead guilty or nolo contendre? Were you convicted? Was adjudication withheld? Please provide a brief description of the nature of the offense charged If there has been more than one such 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. On this portion of the form, Petitioner wrote "no" in each of the first three blank spaces and made no further entries, notwithstanding that several years prior thereto, in Mt. San Jacinto Judicial District Municipal Court Case No. 884467, she had indeed been charged with (albeit not found guilty or convicted of) a felony punishable by imprisonment of one year or more. Petitioner, however, did not intend to misrepresent or conceal any information or to otherwise deceive the Department concerning her past. She mistakenly believed that, in this portion of the form, the Department was inquiring only about criminal offenses involving "moral turpitude." After looking up the term "moral turpitude" in the dictionary, she determined that the crime with which she was charged in Mt. San Jacinto Judicial District Municipal Court Case No. 884467 was not one involving "moral turpitude" inasmuch as her actions in abducting her son were intended to protect the child and were not in any way "wicked." After receiving Petitioner's application, the Department conducted a records check which revealed the felony charge that had been filed against Petitioner in Mt. San Jacinto Judicial District Municipal Court Case No. 884467. The Department thereupon advised Petitioner of its discovery and asked her to supply it with certain documnents that were filed in the case. Petitioner complied with the Department's request.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order announcing its intention to continue to process Petitioner's application for licensure as a general lines insurance agent rather than denying the application on the ground stated in the Department's January 26, 1994, denial letter. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 14th day of September, 1994. STUART M. LERNER 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 14th day of September, 1994. COPIES FURNISHED: Lisa Beth Weiner 572 Northeast 31st Street Pompano Beach, Florida 33064 James A. Bossart, Esquire Division of Legal Services 612 Larson Building Tallahassee, Florida 32399-0333 Honorable Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neill General Counsel Department of Insurance The Capitol, PL-11 Tallahassee, Florida 32399-0300
