The Issue An Administrative Complaint dated January 22, 1998, alleges that Respondent violated Section 475.25(1)(m), Florida Statutes, by failing to disclose on his licensure application that on August 9, 1993, he had pled nolo contendere to passing a worthless check. The issue for resolution is whether that violation occurred and, if so, what discipline is appropriate.
Findings Of Fact Since approximately July 1, 1996, and at all times relevant, Respondent Donald J. Berry has been licensed as a real estate salesperson pursuant to Chapter 475, Florida Statute. He was born in England on April 4, 1966. The application for licensure which Mr. Berry submitted to the Department of Business and Professional Regulation (DBPR), Division of Real Estate, and which he signed and acknowledged on April 18, 1996, includes these pertinent parts: 9. Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? This question applies to any violation of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. If you intend to answer "NO" because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, or applicable law of another state, you are responsible for verifying the expungement or sealing prior to answering "NO." If you answered "Yes," attach the details including dates and outcome, including a sentence and conditions imposed, in full on a separate sheet of paper. Your answer to this question will be checked against local, state and federal records. Failure to answer this question accurately could cause denial of licensure. If you do not fully understand this question, consult with an attorney or the Division of Real Estate. . . . AFFIDAVIT OF APPLICANT The above named, and undersigned, applicant for licensure as a real estate salesperson under the provisions of Chapter 475, Florida Statutes, as amended, upon being duly sworn, deposes and says that (s) (he) is the person so applying, that (s) (he) has carefully read the application, answers, and the attached statements, if any, and that all succeeding answers and statements are true and correct, and are as complete as his/her knowledge, information and record of permit, without any evasions or mental reservations whatsoever; that (s)(he) knows of no reason why this application should be denied; and (s)(he) further extends this affidavit to cover all amendments to this application or further statements to the Division or its representatives by him/her in response to inquiries concerning his/her qualifications. (Petitioner's Exhibit No. 1.) Before he completed and signed the application, Mr. Berry called the Division of Real Estate and told them that the documentation he had was an arrest report. He understood from the staff-person's response that he could write information on the application and enclose what he had. He then checked "yes" in response to question no. 9, and wrote on the application form, "Driving with a suspended driving license." He also, so he thought, enclosed a copy of the arrest warrant from when he was stopped for traffic charges and was found to have an outstanding capias for "obtaining property for worthless check." Sometime later after he submitted his application, someone from the Division of Real Estate called to tell him that he needed the disposition report on the charges. He contacted the clerk of court's office and a staff-person from there called the Division of Real Estate. The Division then obtained records from the Orange County Court that Mr. Berry had pled "no contest" to the worthless check charge and was fined $115, with adjudication withheld. Later, Mr. Berry was told by an investigator from the Division of Real Estate that there was no record that an arrest report had been attached to his application. The only testimony in this proceeding was from Mr. Berry. He explained that he had tried, in good faith, to respond accurately to question no. 9. He did not have any documentation on the arrest for driving with a suspended license and had only a copy of his arrest report for the 1993 worthless check charge. He thought he included the information being sought and was not trying to hide anything. As he explained, he knew the agency had his social security number and could check up on him. He did not write anything about the worthless check on his application form because he had the separate paper (the arrest report) describing that charge.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That the agency enter its final order dismissing the Administrative Complaint. DONE AND ENTERED this 8th day of October, 1998, in Tallahassee, Leon County, Florida. MARY CLARK 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 8th day of October, 1998. COPIES FURNISHED: Ghunise Coaxum, Esquire Department of Business and Professional Regulation Division of Real Estate Suite N 308 Hurston Building, North Tower 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801-1772 Donald J. Berry, pro se 2901 Dickens Circle Kissimmee, Florida 34747 Lynda L. Goodgame, General counsel Office of the General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares, Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900
The Issue An amended administrative complaint alleges that Respondent violated Section 475.25(1)(m), Florida Statutes, when he failed to reveal two pleas of nolo contendere on his application for licensure. The issues for disposition are whether that offense occurred, and if so, what discipline is appropriate.
Findings Of Fact Respondent, Daniel P. Shannon, signed by affidavit a real estate saleperson's licensure application on August 29, 1995, and after passing the examination, became licensed on or about October 20, 1995. He continues to be so licensed and his current license is active (license no. 0630417.) The licensure application signed by Mr. Shannon includes this question no. 9: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? This question applies to any violation of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. If you intend to answer "NO" because you believe those records have been expunged or sealed by court order pursuant to section 943.058, Florida Statutes, or applicable law of another state, you are responsible for verifying the expungement or sealing prior to answering "NO." If you answered "Yes," attach the details including dates and outcome, including any sentence and conditions imposed, in full on a separate sheet of paper. Your answer to this question will be checked against local, state and federal records. Failure to answer this question accurately could cause denial of licensure. If you do not fully understand this question, consult with an attorney or the Division of Real Estate. The application form also includes this affidavit statement of the applicant: The above named, and undersigned, applicant for licensure as a real estate salesperson under the provisions of Chapter 475, Florida Statutes, as amended, upon being duly sworn, deposes and says that (s)(he) is the person so applying, that (s)(he) has carefully read the application, answers, and the attached statements, if any, and that all such answers and statements are true and correct, and are as complete as his/her knowledge, information and records permit, without any evasions or mental reservations whatsoever; that (s)(he) knows of no reason why this application should be denied; and (s)(he) further extends this affidavit to cover all amendments to this application or further statements to the Division or its representatives, by him/her in response to inquiries concerning his/her qualifications. In response to question no. 9. Mr. Shannon disclosed two traffic offenses: a DUI in 1987, and a conviction of reckless driving in 1989. After Mr. Shannon was licensed as a real estate salesperson, the Department of Business and Professional Regulation (DBPR) conducted a routine criminal history check in November 1995. This revealed two pleas by Mr. Shannon: a plea of guilty to trespassing in an unoccupied conveyance in June 1985, and a plea of nolo contendere to loitering or prowling in March 1987. Robert Baird, an investigator with DBPR's Division of Real Estate, was assigned to investigate the discrepancy in August 1997. He reached Mr. Shannon by telephone on September 22, 1997, and explained the basis for the investigation. Mr. Shannon told Mr. Baird that he didn't remember the offenses when he filled out his application and the oversight was unintentional. He cooperated with the investigation. Mr. Shannon lives in Kissimmee, Florida, with his wife and wife's children. He moved to Florida 18 years ago and has "tried to make a go of it" ever since. His real estate license is active but he doesn't make enough money so he works 6 days a week driving a cab, approximately 90 hours a week. When he filled out his application for real estate licensure in 1995, Mr. Shannon reviewed and answered the questions carefully. He understood he was supposed to disclose criminal convictions. He was worried about the driving offenses and disclosed them. He committed those offenses and went to jail. He simply forgot the other two offenses as they were really "stupid things." The trespass occurred when he had split-up with a girlfriend and moved down the street. He had taken most of his belongings, but still had her car key and was looking in the glove compartment. The girlfriend had him charged with burglary. He pled guilty to the lesser charge of trespass, paid a fine of $150, plus $7.50 costs, agreed to no further contact with the girlfriend, and received a suspended jail sentence of 30 days. He completed the terms of the sentence and did not spend time in jail. The "loitering" offense occurred when he was looking for a place to live. There was a rental sign on an apartment complex being constructed and there were no doors on the units so he went inside to look around. The security guard called the deputies and they arrested him. His public defender advised him to plead nolo contendere and he did not have to go to court. Adjudication was withheld and he performed some community service. At the time Mr. Shannon filled out his real estate license application he had no paperwork on the forgotten offenses and was reminded of the underlying circumstances only when he talked with the investigator and actually saw the court records that the agency had obtained.
Recommendation Based on the foregoing it is hereby RECOMMENDED: That the Florida Real Estate Commission enter its final order dismissing the administrative complaint. DONE AND ENTERED this 10th day of December, 1998, in Tallahassee, Leon County, Florida. MARY CLARK 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 10th day of December, 1998. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Frederick Wilsen, Jr., Esquire Gillis & Wilsen 1999 West Colonial Driver, Suite 211 Orlando, Florida 32804 James Kimbler, Acting Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399
The Issue The issues in this case are whether Petitioner has demonstrated, by clear and convincing evidence, that he is rehabilitated from a disqualifying offense, and, if so, whether Respondent’s intended action to deny Petitioner’s application for an exemption from disqualification is an abuse of discretion.
Findings Of Fact Mr. Mack is a 36-year-old male who desires to return to work for Allshouse Supported Living Services, Inc. (Allshouse), as a direct service provider to APD clients with developmental disabilities. Allshouse provides community-based services to APD clients with developmental disabilities. Mr. Mack was employed by Allshouse from October 2009 through October 2014. When Mr. Mack began working for Allshouse, he was licensed by the Department of Health, Board of Nursing, as a certified nurse assistant (CNA), and he provided home health care to APD clients pursuant to his CNA license. More recently, Mr. Mack worked for Allshouse as a supported living coach. On October 23, 2014, Mr. Mack completed an affidavit of good moral character for Allshouse. The affidavit--an APD form-- identifies disqualifying offenses pursuant to the employment screening laws in chapter 435, Florida Statutes, and instructs employees to select one of three responses to sign: that the employee has no disqualifying offenses, and therefore, meets the good moral character standard; that the employee’s record “may contain one or more” disqualifying offenses; or that the employee is a licensed physician, licensed nurse, or other professional licensed by the Department of Health and that the employee will be providing services within the scope of his or her licensed practice. Mr. Mack signed the option acknowledging that his “record may contain one or more” of the enumerated disqualifying offenses. In 2014, Mr. Mack was no longer licensed as a CNA, and was working for Allshouse as a supported living coach.2/ Based on Mr. Mack’s disclosure, the Department of Children and Families (DCF) conducted a Level II background screening. Criminal history record checks were performed at the state, national, and local levels. These record checks would identify records related to any criminal offenses, whether disqualifying offenses or not. The results would show arrests that did not culminate in charged criminal offenses, as well as arrests leading to charges and the ultimate disposition of those charges. The screening results for Mr. Mack showed one criminal offense in the state records; the same criminal offense was also shown in the local law enforcement agency’s records. No other criminal history of any kind was reported. The records show that 13 years ago, on October 29, 2002, Mr. Mack was arrested and charged with grand theft, a third degree felony, pursuant to section 812.014(2)(c)1., Florida Statutes (2002). The case was disposed of on October 16, 2003, when the Circuit Court for the Sixth Judicial Circuit in Pinellas County accepted Mr. Mack’s guilty plea to the single charge. The court withheld adjudication, imposed a two-year term of probation, ordered payment of $750.00 as restitution, imposed a $50.00 fine, and assessed $400.00 in court costs. Mr. Mack’s 2002 offense to which he pled guilty is a disqualifying offense pursuant to section 435.04(2), Florida Statutes.3/ By letter dated October 30, 2014, DCF informed Mr. Mack that he was ineligible for continued employment with Allshouse because of the 2002 disqualifying offense. Mr. Mack was informed that he could seek an exemption from disqualification, which would be granted if clear and convincing evidence was presented to DCF “to support a reasonable belief that a person is of good moral character and that the individual does not present a danger to the safety or well being of children or the developmentally disabled.” DCF sent a similar letter on October 28, 2014, to inform Allshouse that Mr. Mack was not eligible for continued employment unless and until he applied for an exemption and proved his rehabilitation to DCF.4/ In response to these letters, Mr. Mack’s employment with Allshouse was immediately terminated. The Exemption Application, After Remaining Court Costs Were Paid Upon receipt of the DCF letter, Mr. Mack immediately took steps to apply for an exemption. On November 4, 2014, he sent a letter requesting the necessary forms and instructions to Sandra Wesley with the DCF background screening unit in Tampa. However, on November 24, 2014, Ms. Wesley responded that DCF had located court records indicating that Mr. Mack still owed some costs, fines, and/or fees imposed for his 2002 offense. Ms. Wesley informed Mr. Mack that he was not eligible to apply for an exemption until he paid the balance and provided proof of payment. At hearing, Mr. Mack credibly testified that he believed he had paid all court-ordered costs, fines, or fees that were due, because when the court granted a motion for early termination of his probation in late 2004, the court also entered an order waiving outstanding court costs and fees. Mr. Mack’s testimony was credible, and his belief that he had previously satisfied all court-imposed monetary conditions was reasonable. The court docket contains the following entry on October 14, 2004: “Outstanding cos [presumably, costs] fees waived $390.00.” Apparently, Mr. Mack owed more than $390.00 due to a separate assessment to pay fees to the public defender, so that “waived” may have really meant “partially waived.” Nonetheless, despite his reasonable belief that he had satisfied all monetary conditions more than a decade earlier, as soon as Mr. Mack was informed by DCF that he may still owe some court costs, fines, and/or fees, he went to the courthouse and paid the amount that he was told was still due. The court clerk issued a Satisfaction of Judgment–Fine/Cost, providing that the balance due for the court-imposed “fine and/or costs” in connection with the 2002 offense was “paid and satisfied in full on December 1, 2014.” Mr. Mack immediately provided proof of payment to Ms. Wesley. Ms. Wesley accepted the proof and mailed the exemption application forms and checklist to Mr. Mack for him to complete and return to her. Mr. Mack completed the exemption application forms and provided all additional information suggested by the instructions and checklist. While Mr. Mack provided all information called for by the Agency’s application forms, more evidence was presented at hearing bearing on the issue of whether Petitioner is rehabilitated from his disqualifying offense, such that Petitioner poses no danger to APD clients if he is allowed to return to work as a direct service provider. Evidence of Rehabilitation As described in the exemption statute, section 435.07, evidence of rehabilitation begins with consideration of the disqualifying offense itself: the circumstances surrounding the disqualifying offense, the time period that has elapsed since the offense; and the nature of the harm caused to the victim. Mr. Mack provided a detailed explanation of the circumstances surrounding his single 2002 disqualifying offense. He explained that he was approached by two men from his neighborhood, whom he knew by the nicknames they used. They propositioned him with an offer of a free cell phone, if they could use his address for delivery of a box of several cell phones. Mr. Mack agreed. At the time, he was 22 or 23 years old; the two men were older. Mr. Mack was young and naïve, focusing only on the chance to obtain a free cell phone, which was not easy to get or common among his peers at that time. After many weeks, a box containing five cell phones arrived at Mr. Mack’s address. He contacted the two men, who picked up the phones, leaving one for Mr. Mack as promised. For just over one month, Mr. Mack enjoyed the use of the cell phone and cellular service. Then, on October 29, 2002, a detective from the sheriff’s office appeared at his door with a phone company investigator. He let them in, answered all of their questions about the cell phone, and gave the cell phone to the detective. He was arrested and charged with theft of all five cell phones and the related cellular service, with a total value between $300.00 and $5,000.00. Based on the value range, the charge was grand theft, a third degree felony. At the time of his arrest, Mr. Mack was too ashamed to tell his family and ask for help. Instead, he accepted a public defender, and followed advice to put the incident behind him by pleading guilty. And Mr. Mack freely admits that he was guilty, insofar as he knowingly received the cell phone shipment and used the cellular service. He was oblivious to suspect circumstances, ignoring alarms sounding the classic warning that if a deal sounds too good to be true, it probably is. He expressed sincere remorse for his wrongdoing. As he said, he was young, naïve, and stupid. It is difficult to argue with that characterization. Petitioner’s explanation of the circumstances and his genuine remorse for his actions were credible and are credited.5/ With regard to the nature of harm to the victim, the Agency’s exemption application form frames the issue this way: “Degree of harm to any victim or property [permanent or temporary], damage or injuries.” This reasonably invites a response that differentiates between harm to persons and property damage, and between permanent and temporary injuries or damage. Mr. Mack’s application provided this response: “No property was damaged and no physical bodily harm took place.” This was a reasonable and accurate response. Consideration of the nature or degree of harm necessarily requires an assessment of the relative seriousness of the consequences. Considered that way, Mr. Mack’s criminal offense 13 years ago caused relatively inconsequential harm to any victim or property, which was remediable and remedied by court-ordered restitution. Mr. Mack deprived the cell phone companies of the value of his use of a cell phone for just over one month, when Mr. Mack gave the undamaged cell phone to the detective. To compensate for that temporary property loss, Mr. Mack paid restitution of $750.00. The relevant considerations as to the disqualifying offense itself provide strong evidence of Petitioner’s rehabilitation: the circumstances credibly explained by Petitioner; Petitioner’s sincere regret for his wrongdoing; the inconsequential degree of harm to any victim or property; and the substantial length of time--13 years--since the offense. Beyond the factors related to the disqualifying offense itself, evidence of rehabilitation may be in the form of the history of the applicant since the incident and any other evidence or circumstances indicating that the applicant will not present a danger if continued employment is allowed. Since 2002, as a young but maturing adult, Mr. Mack has worked hard to right his path, earn a living through meaningful work that goes beyond just earning a paycheck, and serve those in need by volunteering through his church and in the community. As confirmed by the criminal history record checks, Mr. Mack’s history since the disqualifying offense is notable by the absence of any criminal matters. Mr. Mack has not been arrested, much less charged or convicted, of a crime, whether disqualifying or otherwise. Mr. Mack’s pristine criminal history record since 2002 is proof that he learned his lesson from his one transgression. Mr. Mack provided evidence, in his application and at hearing, that not only has he avoided criminal incidents since 2002, but he has also worked hard to better himself and further his education and skills. He received his CNA license and an exemption from disqualification from the Department of Health, Board of Nursing, in 2009, allowing him to be employed in a position providing services within the scope of his CNA license. The exemption was issued to Mr. Mack pursuant to the same exemption statute as is at issue here, based on the same standard of clear and convincing proof of rehabilitation from the 2002 disqualifying offense. Since 2009, Petitioner has dedicated his work hours as well as significant personal time to providing care to developmentally disabled persons. He provided documentation of his relevant training and certifications since 2009, in such areas as professional crisis management, CPR and AED basic life support for healthcare providers, heartsaver first aid, supported living coaching, and HIPAA patient privacy and security. Petitioner holds an APD medication administration assistance validation certificate, issued on October 22, 2014. Mr. Mack has a secure, positive family base. He testified that he comes from a large, loving family that finds great strength from each other and from their strong faith. His grandparents are the “rock” of the family that they started when they married 70 years ago. They are both disabled, which is why Mr. Mack developed a passion for working with persons with disabilities. At hearing, Mr. Mack presented compelling testimony of witnesses who were able to attest to the exemplary care Mr. Mack provided to developmentally disabled APD clients as an Allshouse employee from October 2009 to October 2014. For the entire five-year period when Mr. Mack was an Allshouse employee, he was assigned to provide in-home care, first as a home health aide and then as a supported living coach, to Jean and Michael Murvine. The Murvines are a married couple. They are APD clients with developmental disabilities, who are able to live independently in their home as long as they can count on substantial in-home services. Michael is more independent than Jean; he is able to work at a Publix grocery store as long as he can count on a caretaker who will stay with Jean, because she requires supervision and assistance at all times. Among other conditions, Jean is diabetic and is recovering from stomach cancer and related surgery. She requires assistance and supervision of her blood sugar monitoring and insulin shots. At great effort, the Murvines came to the hearing so that each of them could voice their strong support for, and belief in, Mr. Mack, who was such a great caretaker for them until he was terminated. At times, their disabilities served to impede the clear expression of their words, but there was no impeding the strong emotion and conviction in their testimony. Michael Murvine emphasized that he is only able to work at Publix if he can rely on good care being provided to Jean. When Mr. Mack was her caretaker, Mr. Murvine knew his wife was well-taken care of: “She was safe with him.” Since Mr. Mack has left, however, Mr. Murvine is concerned about his wife’s safety. She has ended up in the hospital because Mr. Mack’s replacements have not been good; Mr. Murvine does not trust them like he trusted Mr. Mack. Mr. Mack “is so good, we want him back.” Jean Murvine confirmed the quality of care provided by Mr. Mack over the five-year period. She was firm in her conviction that Mr. Mack would never harm them, because he has their best interests at heart. When asked how her care had been since Mr. Mack had left work, her distress was evident; she got choked up, saying that it was different without him, and adding, simply, “We want him back.” As part of his job, Mr. Mack would often drive the Murvines to appointments. The Murvines both described how safe they always felt as passengers being transported by Mr. Mack, whom they described as a very careful driver. As Mr. Murvine put it, Mr. Mack is “a very safe driver, not one of those crazy drivers.” Mr. Mack gave of himself to the Murvines, going far beyond what was required of him as a direct service provider. He did things for the Murvines on his own personal time and/or using his own resources. He drove the Murvines from Largo to Brandon, east of Tampa, to visit Michael’s two brothers, one of whom is disabled and essentially homebound. Mr. Mack also drove the Murvines to Orlando so that Michael could attend a Publix awards banquet at which he was receiving an employee award. Mr. Mack volunteered his own time to do this. Michael Murvine’s brothers, Rick and Bud Murvine, also testified on Mr. Mack’s behalf, to add their perspectives on the extraordinary care provided by Mr. Mack to Michael and Jean, as well as Mr. Mack’s loving generosity, beyond just doing the job. Rick described Mr. Mack as “an amazing man,” who was very attentive and patient with Michael and Jean, and obviously cared for their safety. Rick has seen a marked contrast between how Michael and Jean have fared when Mr. Mack was caring for them and now, without Mr. Mack. He echoed Jean and Michael’s testimony that Mr. Mack was the only caretaker who took good care of them, and that the others who have replaced Mr. Mack have not provided the same quality of care or dedication. Rick Murvine has no doubt as to Mr. Mack’s good moral character. He trusts Mr. Mack so completely that he would give Mr. Mack the keys to his house. It is so clear to him that Mr. Mack presents no danger to developmentally disabled persons, he finds it a travesty that this proceeding is needed to answer that question. Bud Murvine also spoke highly of the exceptional care he has seen Mr. Mack give to Jean and Michael. He knows from his observations that Mr. Mack poses no danger to developmentally disabled persons. Bud has absolutely no doubt as to Mr. Mack’s good moral character; he would trust him with his life. Mr. Mack has given selflessly to the Murvine family, and in so doing, has shown his good moral character and the positive contributions he has to offer developmentally disabled persons. Bud Murvine offered a touching story demonstrating how Mr. Mack has given of himself, beyond just doing the job, to enrich the lives of this disabled couple. Mr. Mack orchestrated a celebration in a park for Jean and Michael Murvine to renew their wedding vows. Mr. Mack drove the Murvines to the area, set up decorations at the park, helped Jean and Michael dress up, and brought them to the park where they renewed their vows before family and friends. Bud Murvine concluded, with emotion, that what Mr. Mack did for them that day “was really cool.” Mr. Mack’s exceptional care of the Murvines was echoed by Charlene Clark, a physical therapy assistant who works with developmentally disabled adults and elderly persons. Over a four-year period, Ms. Clark got to know Mr. Mack and observe him while they were both providing services to the Murvine couple. Ms. Clark was effusive in describing the “incredible care” she observed Mr. Mack providing to the Murvines. Ms. Clark found Mr. Mack to be very knowledgeable about the Murvines’ care needs and very concerned about their welfare. She described Mr. Mack as a very encouraging and positive caregiver, which “is so rare.” She was adamant in expressing her view that he would never harm the Murvines or other developmentally disabled clients. Instead, it was “just the opposite.” The only harm she has observed comes from the Murvines no longer having Mr. Mack as their caretaker. Ms. Clark offered compelling, credible testimony regarding the harmful trickle-down effects of Mr. Mack becoming ineligible to continue working for Allshouse assigned to the Murvines. She has observed a noticeable decline, both physically and emotionally, by both Murvines since Mr. Mack is no longer their caretaker. Ms. Clark described the revolving door of replacement caretakers, none of whom are as good as Mr. Mack was with the Murvines. Ms. Clark was also effusive in describing Mr. Mack’s good moral character. She described Mr. Mack as generous of spirit, loving, caring, honest, reliable, and trustworthy. She has no doubts about his good moral character, “not one.” She trusts him so completely that she would trust him to care for her six-year-old grandchild. As a direct care provider herself, Ms. Clark understands the background screening process and the need for this exemption proceeding. She wrote a letter of support for his application, but her testimony added a great deal of texture, detail, and heart that do not come through on paper. She strongly believes that discontinuing Mr. Mack’s service to APD clients with developmental disabilities is a great loss to clients he served and could serve, if allowed, and that the developmentally disabled APD clients deserve better. In addition to Mr. Mack’s exemplary service to developmentally disabled persons while working as an Allshouse employee, Mr. Mack has shown his dedication to serving needy persons of all kinds and putting their needs before his own. Information was provided in his application regarding his community volunteer work. At hearing, he elaborated and updated the application information. Mr. Mack contributes many hours each week to a variety of volunteer activities, both at his church where he helps feed homeless persons and works with youth, and also at the Union Academy Cultural Center of Tarpon Springs where he assists with after-school programs for children and feeding the elderly. He is currently working with other individuals to set up a meals-on- wheels-type program for homeless people who cannot take advantage of traditional meals-on-wheels programs, because they have no home to receive meal deliveries. Mr. Mack’s dedication to helping needy persons of all kinds, and particularly those who are dependent and in need of support because of disabilities, was confirmed by Nathaniel Crawford, Jr., Mr. Mack’s uncle and the only family member to testify. A very articulate gentleman, Mr. Crawford retired from the air force, and is now a college instructor and a pastor at Oak Hill Church of God in Christ (Oak Hill). He has observed Mr. Mack’s contributions at Oak Hill, where Mr. Mack serves as a choir director and assists with a variety of church activities and programs. Mr. Crawford has observed Mr. Mack gravitating towards young, adult, and elderly persons with disabilities to assist them and has seen that he is very qualified and very caring. Mr. Crawford described Mr. Mack’s dedication to caring for developmentally disabled persons as “his ministry.” Mr. Crawford strongly believes from his observations that Mr. Mack presents no danger to these vulnerable people. Mr. Crawford was very emphatic, and credibly so, that he was saying these things not because Mr. Mack is his nephew, but because he observes the strong need for more persons like Mr. Mack dedicated to these human services, and feels strongly that it is a great loss to the developmentally disabled population to be deprived of Mr. Mack’s extraordinary care. More generally, Mr. Crawford attested to Mr. Mack’s good moral character, describing him as a fine young man who is unselfish and very giving of his time and resources. The only problem Mr. Crawford identified is that sometimes Mr. Mack is too nice--he is very caring and sacrifices for others instead of for himself. Mr. Crawford trusts Mr. Mack completely; he would trust him with his property and with the church’s property. The Agency’s Review and Stated Concerns In reviewing exemption applications, the Agency has limited resources to conduct investigations. The Agency did not interview Mr. Mack, any APD clients for whom he provided care while employed at Allshouse, or other caregivers who had observed Mr. Mack while he was providing services. The Agency employs DCF to conduct a fact-finding investigation and issue an Exemption Fact Finding report, which is used by APD in its review of the exemption request. The DCF Exemption Fact Finding report corroborates the testimony at hearing. First, the report confirmed that the only criminal offense of any kind--disqualifying or non-disqualifying--in Mr. Mack’s background was the 2002 offense discussed above. With regard to the “degree of harm to any victim, any permanent or temporary damage or injuries” the DCF fact-finding report found: “No permanent damage or temporary damage[.]” With regard to whether Mr. Mack had shown “[r]emorse [and had] accept[ed] responsibility for [his] actions,” the DCF report responded: “Yes.” After the DCF investigation and report, Mr. Mack’s exemption request file went to the Agency’s Suncoast regional office for review and recommendation. The operations manager, Jeff Smith, recommended denial because of a few concerns. Mr. Smith did not testify at hearing; however, he is the only member of the “review team” named in the APD Exemption Review Report-Routing Sheet, and his summary on that sheet is the only indication of the rationale for the Agency’s initial action. Mr. Smith expressed concern with whether Mr. Mack was responsible, apparently inferring a lack of responsibility from the fact that DCF found some unpaid court costs, fines, or fees still due in 2014. Mr. Smith did not have the benefit of Mr. Mack’s hearing testimony, which refutes any such inference. As found above, Mr. Mack reasonably believed he did not owe any additional costs, fines, or fees. He reasonably believed that he had paid all court-imposed monetary amounts that had not been waived more than a decade ago. When told otherwise by DCF, he immediately paid the remaining balance. As credibly explained by Mr. Mack, this misunderstanding does not call into question whether Mr. Mack is responsible. In contrast, the hearing testimony of six witnesses speaking on Mr. Mack’s behalf provided direct and persuasive evidence establishing beyond any doubt that Mr. Mack is very responsible. Mr. Smith also considered Mr. Mack’s record of non- criminal traffic infractions. Based on the record of traffic infractions, Mr. Smith expressed concern for the safety of APD clients who would be transported by Mr. Mack if he is allowed to work as a supported living coach. Mr. Mack was not asked to address civil traffic infractions in his application, so his first chance to address the Agency’s concern was at the hearing. Mr. Mack admittedly has a good number of civil traffic infractions on his driving record. However, none of the infractions involve a charged criminal violation.6/ None of the infractions involve injuries (or worse) to passengers or others. None of the infractions involve drugs or alcohol use, such as DUI; Mr. Mack does not use drugs, and only occasionally drinks alcohol socially. The Agency’s generalized safety concern based solely on the paper record of past traffic infractions was refuted by the specific, credible, and persuasive testimony of Mr. Mack and of actual APD clients with developmental disabilities who were regularly transported by Mr. Mack over a five-year period. Mr. Mack credibly testified that he has never been stopped for a moving violation of any kind when he was driving with a passenger in the vehicle with him. Mr. Mack has never been cited for a traffic infraction while transporting an APD client (or any other passenger). None of the traffic infractions in Mr. Mack’s record posed a safety risk to any passenger. And none of the traffic infractions in Mr. Mack’s record posed a safety risk to an APD client. To the contrary, the Murvines both testified convincingly that they found Mr. Mack to be a very safe, careful driver, and they always felt very safe with Mr. Mack when he was transporting them, which he did regularly and without adverse incident. Mr. Mack acknowledged his past record of traffic infractions, which he regrets. He has made a concerted effort to eliminate the traffic infractions that he used to occasionally commit when driving alone. The evidence shows that his efforts have paid off, as he has not been found to have committed any traffic infraction in over three years. The clear, convincing, and credible testimony of Mr. Mack and of the APD clients whom he actually transported is credited. This testimony provides specific, persuasive, direct evidence that Mr. Mack does not pose a safety risk when transporting APD clients, which is far more persuasive than the general inference drawn from Mr. Mack’s paper record of traffic infractions. The more persuasive, direct evidence establishes that Mr. Mack has always driven cautiously, carefully, safely, and without adverse incident when transporting APD clients with developmental disabilities, and he does not pose a safety risk to those APD clients whom he might transport in the future. Besides the two concerns expressed in Mr. Smith’s summary, no other rationale was offered for the Agency’s initial action. The Agency’s two witnesses did not participate in the formulation of that initial decision. Ms. Mott testified that Jeff Smith is her supervisor, and he conducted a review to formulate his recommendation; she has no personal knowledge of how he conducted his review. Ms. McDaniel testified that she received the file from the regional office, and her role was to present the application and related documents to an exemption committee in Tallahassee, but not to formulate a recommendation or offer an opinion. She did not identify the exemption committee members involved with Mr. Mack’s application, and none are identified on the Routing Sheet. No committee member testified. There is no documentation of an exemption committee or of its recommendation. Ms. McDaniel testified that the entire file was provided to APD Director Palmer with two draft letters: one stating that the request is approved, and one stating that the request is denied. The director signed the latter. No evidence was offered to prove that in formulating its intended action, the Agency considered the exemption from disqualification issued to Mr. Mack in 2009 by the Department of Health based on the same 2002 disqualifying offense. Ultimate Findings of Fact Mr. Mack has proven by clear and convincing evidence that he is rehabilitated from the single disqualifying offense he committed in 2002. The undersigned finds that Petitioner presents no danger to the vulnerable population served by the Agency. The credible hearing testimony summarized above overwhelmingly established that Mr. Mack poses no danger to APD clients, including children and persons with developmental disabilities, if he is allowed to resume employment as a direct service provider. The few concerns expressed by the Agency in formulating its intended action, without the benefit of the hearing testimony, were effectively refuted by the credible testimony at hearing.
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 granting Petitioner’s application for an exemption from disqualification from employment. DONE AND ENTERED this 11th day of September, 2015, 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 11th day of September, 2015.
The Issue Whether Petitioner's application for licensure as a Class "D" Security Officer should be denied on the grounds set forth in the Department of State, Division of Licensing's (Department's) March 26, 1992, letter to Petitioner?
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Petitioner is 56 years of age. He has had numerous brushes with the law, many of them alcohol-related, dating back to 1956, but he has never been convicted of a felony. In June of 1956, Petitioner attempted to purchase a beer in Sacramento, California. He was 19 years old at the time and, although in the military, under the legal drinking age. Petitioner was arrested and charged with a misdemeanor violation of California's alcoholic beverage control law. He received a ten-day suspended sentence. In November of 1956, when Petitioner was stationed on a military base in Amarillo, Texas, he and friend, without authorization, went into a room on the base where weapons were stored. They took possession of a .38 calibre firearm and started "playing with it." Petitioner was arrested and charged with the misdemeanor offenses of unlawful entry and wrongful appropriation. He received a bad conduct discharge, which was suspended. After attending a rehabilitation training program, he returned to active military service. In May of 1962, Petitioner was arrested for operating a motor vehicle under the influence of alcohol, a misdemeanor. He was subsequently convicted of the offense. His license was suspended for ten days and he was ordered to pay $25 in court costs. In the early part of 1964, Petitioner, along with several others, charged $700 worth of merchandise in a department store in Indianapolis, Indiana using credit card slips they had forged. Petitioner was arrested and charged with the felony offense of uttering a forged instrument. Adjudication of guilt on this charge was withheld and Petitioner was placed on three years probation. In October of 1968, while in Anderson Indiana, Petitioner was arrested and charged with theft by deception for having written checks in amounts that exceeded the balance of his checking account. The checks were actually written by Petitioner's estranged wife without his knowledge. The charge against Petitioner was dropped after restitution was made. In January of 1969, Petitioner was again arrested in Anderson, Indiana and charged with theft by deception for having written bad checks. These checks were written by Petitioner, but he did not realize at the time he wrote them that, because of his wife's check writing, he had insufficient funds in his account. Adjudication of guilt on this charge was withheld and Petitioner was placed on probation for a year. In February of 1970, Petitioner stayed in a Naples, Florida hotel for approximately three or four days. When he checked out, he did not have enough money to pay his bill. Petitioner was arrested and charged with the misdemeanor offense of defrauding an innkeeper. Less than a week later, Petitioner made restitution and the charge against him was dropped. The following month, while in Miami Beach, Florida, Petitioner was again unable to pay a hotel bill and, as a result, arrested and charged with defrauding an innkeeper. This charge was also dropped after Petitioner made restitution. In May of 1970, Petitioner was arrested and charged with breaking and entering a Naples, Florida restaurant with intent to commit grand larceny. The charge was unfounded and it was subsequently dropped. In January of 1971, Petitioner was driving a motor vehicle in Fort Myers, Florida that had an expired inspection sticker affixed to it. He was stopped by the police and a firearm belonging to a passenger was discovered in the vehicle. Petitioner was arrested and charged with unlawful possession of a firearm and driving a vehicle with an expired inspection sticker. The former charge was dropped. With respect to the latter charge, Petitioner was fined $30 or $35. In October of 1971, Petitioner was arrested in Naples, Florida and charged with writing a worthless check. The check was in the amount of $20 or $25. At the time he wrote the check, Petitioner was unaware that he did not have enough money in his account to cover the check. Petitioner subsequently made restitution and the charge was dropped. In February of 1976, in Lauderhill, Florida, Petitioner was arrested and again charged with writing a worthless check. The amount of this check was less than $50. Petitioner pled guilty to this misdemeanor offense and was fined $10. In addition to paying the fine, Petitioner made restitution. That same month, Petitioner was arrested in Sunrise, Florida and charged with battery on his wife. The charge was unfounded and it was subsequently dropped. In July of 1976, in Fort Lauderdale, Florida, Petitioner was arrested and charged with aggravated assault, assault and battery and petty larceny. All of these charges were unfounded; however, as a matter of convenience and pursuant to a plea agreement, Petitioner pled no contest to the assault and battery charge. Adjudication of guilt on this charge was withheld. Petitioner received a 90-day suspended sentence and a $352 fine, which was also suspended. The remaining charges against Petitioner were dropped. In December of 1977, Petitioner was again arrested in Fort Lauderdale, Florida. On this occasion, he was charged with two counts of writing worthless checks under $50. Petitioner subsequently made restitution and the charges were dropped. In February of 1980, in Jasper, Florida, Petitioner was arrested and charged with driving while intoxicated, speeding, driving without a valid drivers license and refusing to sign a summons. The latter charge was dropped. Petitioner pled guilty to the remaining charges and was adjudicated guilty on these charges by the trial court. For speeding and driving without a valid drivers license, he was fined. For driving while intoxicated, he was also fined and, in addition, his drivers license was suspended and he was ordered to attend DWI school. In May of 1985, in West Palm Beach, Florida, Petitioner was arrested on a Dade County, Florida warrant that had been issued in 1980, when he had been charged with two felony counts of writing worthless checks. The checks had actually been written by Petitioner's daughter. After his arrest, Petitioner made restitution and the charges against him were dropped. In November of 1985, Petitioner was arrested in West Palm Beach, Florida and charged with driving while intoxicated. He pled guilty to this misdemeanor charge. The trial court adjudicated Petitioner guilty and suspended his license for six months and ordered him to attend DWI school. Petitioner has not been in trouble with the law since. He is now a law-abiding citizen, who is better able to control is intake of alcohol. In filling out Section 5 of his application for licensure, which addressed the subject of criminal history, Petitioner did not intentionally make any misrepresentations or omit any required information. It was his understanding that he was required to disclose information relating only to felony convictions in this section of the application.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order finding that Petitioner should not be denied licensure as a Class "D" Security Officer on the grounds cited in the Department's March 26, 1992, denial letter. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of August, 1992. 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 18th day of August, 1992.
The Issue On or about August 16, 1996, Petitioner, Betty Osborne, was notified by Respondent, the Department of Children and Family Services, that she was disqualified from employment in a position of special trust. The disqualification was based on the results of Petitioner's criminal screening. Petitioner challenged this eligibility status and requested an exemption from disqualification. On August 20, 1996, the Department's Exemption Review Committee met and, after reviewing the Petitioner's record, denied her request for an exemption from disqualification. Petitioner filed a timely request for formal hearing and this proceeding followed. At the final hearing, Petitioner testified on her own behalf and offered no exhibits into evidence. Respondent presented one witness, George H. Seibert, Background Screening Coordinator, Department of Children and Family Services. Respondent offered and had admitted into evidence five exhibits. The proceeding was recorded but not transcribed. Neither party filed proposed findings of fact or conclusions of law.
Findings Of Fact Petitioner applied for a license as a child care provider in 1993 in an effort to qualify to open her own day care facility. Based on a criminal screening of Respondent, the Department of Children and Family Services (Depatment), determined that Petitioner was disqualified from employment in a position of special trust or responsibility, and thus was ineligible to work or volunteer in child care programs. Pursuant to Petitioner's request for an exemption from disqualification, the Department convened the Exemption Review Committee (Committee) to consider the requested exemption. The Committee reviewed Petitioner's record relating to her August 19, 1993, plea of nolo contendere to one count of grand theft. On or about January 7, 1993, Petitioner was charged with grand theft. The incident giving rise to the denial of the request for exemption occurred during the course of Petitioner's employment as a supervisor with the Pinellas County Tax Collector's Office. The allegation was that Petitioner had misappropriated $20,000 or more collected by that office for fishing licenses for her personal use or with the intent to deprive the State of Florida of a right to the property or benefit therefrom. On or about August 19, 1993, Petitioner completed a Plea Form on which she indicated that she would plead nolo contendere to one count of grand theft. Paragraph Five of the Plea Form expressly stated that "No one has pressured or forced me to enter this plea.", and that "No one has promised me anything to get me to enter this plea. . . ." Nevertheless, the form noted that Petitioner had an understanding that as a result of the plea, she would serve fifteen (15) years probation; pay $300.00 in court costs; and pay $56,404.00 in restitution. Both Petitioner and her attorney signed the Plea Form. On or about August 19, 1993, an Order of Probation (Order) was entered noting that the "Defendant being present with counsel: entered a plea of nolo contendere to the offense of grand theft". The Order withheld an adjudication of guilt; placed Petitioner on fifteen (15) months of probation; and required payment of $300.00 in court costs and $56,404.00 in restitution. The amount of restitution was reduced to $27,501.00 by an order issued on January 26, 1994. As of August 20, 1996, the date of the Department Exemption Review and hearing, Petitioner had twelve years of probation remaining to be served. Also, as of that date, Petitioner had paid only $300.00 in restitution. If Petitioner had made restitution payments as scheduled, she would have paid $7,100.00 as of August 1996. At the time of this hearing, Petiitoner had made no additional restitution payments. At hearing, Petitioner presented no evidence of rehabilitation. Several letters of recommendation written by friends on Petitioner's behalf indicate that she is (1) active in her church; works well with children and others; and has a love for children. However, none of these letters reflect that Petitioner has worked in a responsible position or has been engaged in activities that demonstrate rehabilitation since she entered a plea of nolo contendere to grand theft.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, the Department of Children and Family Services, enter a Final Order denying Petitioner, Betty Osborne, an exemption from disqualification from employment in a position designated by law as one of trust or responsibility. DONE and ENTERED this 28th day of March, 1997, in Tallahassee, Florida. CAROLYN S. HOLIFIELD 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 28th day of March, 1997. COPIES FURNISHED: Ms. Betty Osborne 4149 38th Street South St. Petersburg, Florida 33711 Kathleen Harvey, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 100 Largo, Florida 34648-1630 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building Two, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran General Counsel Department of Children and Family Services Building Two, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
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. The Agency's clients are a vulnerable population, consisting of those individuals whose developmental disabilities include intellectual disability, autism, spina bifida, Prader- Willi Syndrome, cerebral palsy, and/or Down Syndrome. They often have severe deficits in their abilities to complete self- care tasks and communicate their wants and needs. Also, they are at a heightened risk of abuse, neglect, and exploitation because of developmental disabilities. Therefore, employment as a direct service provider to Agency clients is regarded as a position of special trust. Petitioner is a 27-year-old female who seeks to qualify for employment with Trust and Hope, a service provider regulated by the Agency. To work in a position of special trust, an individual must undergo a background screening. Petitioner's screening identified a history of criminal offenses, including a disqualifying offense in 2009. Accordingly, on July 29, 2015, Petitioner filed a request for exemption from disqualification, which triggered the instant proceeding. See Resp. Ex. D. Before a decision was made by the Agency, Petitioner's request for an exemption was reviewed by a Department of Children and Families (DCF) screener who compiled a 46-page report entitled "Exemption Review" dated October 6, 2015. See Resp. Ex. B. The packet of information contains Petitioner's Request for Exemption, Exemption Questionnaire, various criminal records, and letters from 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 Deputy Regional Operations Manager in Orlando, who reviewed it and then made a preliminary recommendation to deny the application. In a letter dated December 16, 2015, the Agency's Director notified Petitioner that in light of 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. The disqualifying offense occurred on January 17, 2009, when Petitioner, then 20 years of age, was arrested in Sanford, Florida, for Burglary with Assault and Battery, a violation of section 810.02(2)(a), Florida Statutes, and Aggravated Battery, a violation of section 784.045. Both offenses are felonies and constitute disqualifying offenses under section 435.04(2). On April 13, 2009, an Information was filed by the State Attorney charging Petitioner with Burglary of Dwelling with an Assault and Battery. The other charge was not prosecuted. On August 12, 2009, Petitioner pled nolo contendere to Burglary of a Structure. The court withheld adjudication, placed her on probation for 24 months, and imposed a number of conditions that applied during the probationary period, including a prohibition against having contact with the victim due to the nature of the crime. She later received a Certificate of Eligibility to Petition for a Seal or Expunge Order from the Florida Department of law Enforcement to seal the charges. Petitioner contends that because she successfully completed probation, and the arrest has been sealed, it should not be considered. After her August 2009 conviction, Petitioner was arrested for a number of offenses. On July 3, 2009, she was arrested for Aggravated Battery Using a Deadly Weapon (a knife), but no information was filed. On July 12, 2012, Petitioner was arrested for Neglect Child without Great Harm, but no information was filed. On December 21, 2013, she was arrested for Battery Domestic Violence, but no information was filed. In addition, she has a string of traffic violations beginning in May 2012 and continuing through July 2014. The driving record of a caregiver is relevant because she may be asked to transport a client in a motor vehicle. At hearing, Petitioner acknowledged that she was arrested on multiple occasions after the disqualifying offense, but contended that because she was never prosecuted for those crimes, they should not be considered. However, in determining whether an individual has demonstrated rehabilitation, the Agency may also consider whether the applicant, after the conviction for the disqualifying offense, has been "arrested for or convicted of another crime, even if that crime is not a disqualifying offense." § 435.07(3)(b), Fla. Stat. Therefore, the Agency may consider subsequent arrests, even if they are not prosecuted. At the same time, it considers "the history of the [applicant] since the incident, or any other evidence or circumstances indicating that the [applicant] will not present a danger if employment or continued employment is allowed." § 435.07(3)(a), Fla. Stat. Petitioner is currently working in the telemarketing field. The Exemption Report indicates that she worked as a patient care tech with John Knox Village Center from 2011 to 2013 and as an assistant manager at a Dunkin Donuts store from 2008 until 2010. Prior to that, she was employed for three years as a bank teller at a bank in Sanford. Petitioner received an Associate Degree in Science in Medical Assisting from Southern Technical College in June 2011 and is currently enrolled in classes to earn a degree in psychology. In 2006, she was certified by Homestead Job Corps Center in Phlebotomy, EKG, Vitals, Patient Care, and Medical Terminology. Through testimony by its Deputy Operations Manager for the Orlando office, the Agency explained its rationale for denying the application. As explained above, the Agency regulates direct care providers who are at a higher risk of abuse than others, and who are most vulnerable. Because many clients are unable to adequately communicate if they are hurt or abused, the Agency requires that workers must be trustworthy and have a background to ensure that clients are treated properly. Although Petitioner had only one disqualifying offense, and all other arrests were not prosecuted, in making its decision, the Agency considered Petitioner's pattern of conduct since 2009 and her multiple arrests. The Exemption Questionnaire requires an applicant to give a detailed version of the events underlying the disqualifying offense in 2009. The Agency considered Petitioner's explanation to be extremely brief and substantially different from the police report. It simply stated that her "best friend [Ms. Meadows] and [Ms. Meadows'] boyfriend [Mr. Herring] got into an altercation b/c he got caught cheating. I got brought into it for him not to get arrested she changed and put it all on me, thus me going to jail. (This is the only charges that I have obtained.)" Resp. Ex. A., p. 003. At hearing, Petitioner acknowledged that after arriving at Mr. Herring's apartment, Petitioner began arguing with him and then struck him in the head with a table leg, causing an injury to Mr. Herring. The victim then pressed charges against Petitioner. Although Petitioner indicated in the Exemption Questionnaire that no one had ever suffered any "real harm" from her actions, she acknowledged at hearing that Mr. Herring suffered an injury to his head during the incident. Police reports indicate that on two other occasions, individuals suffered physical harm due to her aggressive behavior. The Exemption Questionnaire also requires an applicant to provide a detailed explanation of any subsequent arrests, even for non-disqualifying offenses. Petitioner's explanation of subsequent arrests in 2010, 2012, and 2013, which were not prosecuted, are also very brief, and they omit facts found in the police reports. See Resp. Ex. A, pp. 3-4. The Agency's characterization of her explanations as "half-truths" and "incomplete" is a fair one. Petitioner denied that there were stressors in her life at the time of the disqualifying offense. Other than stating that she was in the wrong place at the wrong time, she was falsely accused, or she was "child minded," Petitioner did not express remorse or take responsibility for any of her actions. She has not received counseling for any of her past behaviors. Finally, in her Questionnaire, she denied any drug or alcohol history or use. This statement conflicts with a DCF report dated October 17, 2011, which revealed that Petitioner tested positive for Tetrahydrocannabinol (THC). Petitioner did not dispute this report. Petitioner presented the testimony of three witnesses. All testified that she "is a good person." Despite having knowledge of Petitioner's entire criminal record, one witness described her as a "peaceful person," but qualified that she was always peaceful with him. Given Petitioner's lack of specificity regarding her criminal offenses, her lack of accountability, and the pattern of conduct since her disqualifying offense, there is less than clear and convincing evidence of rehabilitation.
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 22nd day of March, 2016, 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 22nd day of March, 2016. COPIES FURNISHED: David M. De La Paz, Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Whitney Brown 719 East 8th Street Sanford, Florida 32771-2019 Jeannette L. Estes, Esquire Agency for Persons with Disabilities Suite 422 200 North Kentucky Street Lakeland, Florida 33801-4906 (eServed) Andrew F. Langenbach, Esquire Agency for Persons with Disabilities 400 West Robinson Street, Suite S430 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)
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.
The Issue The issue is whether Petitioner showed by a preponderance of the evidence that it is entitled to a refund of $1,500,216.60 in sales and use tax paid during the period from January 2005 through January 2007 to purchase industrial printing machinery that allegedly satisfied the statutory requirement for a 10 percent increase in productive output for printing facilities that manufacture, process, compound or produce tangible personal property at fixed locations in the state within the meaning of Subsection 212.08(5)(b), Florida Statutes (2005), and Florida Administrative Rule 12A-1.096.1/
Findings Of Fact Respondent is the agency responsible for administering the state sales tax imposed in Chapter 212. Petitioner is a "for profit" Florida corporation located in St. Petersburg, Florida. Petitioner is engaged in the business of publishing newspapers and commercial printing. Petitioner derives approximately 85 percent of its revenue from advertising and approximately 15 percent of its revenue from circulation subscriptions. In April, 2007, Petitioner requested a refund of $403,780.05 in sales and use taxes paid for the purchase of industrial machinery and equipment during the period from January, 2005, to January, 2006. In October, 2007, Petitioner requested a refund of $1,096,436.61 in sales and use taxes paid for the purchase of industrial machinery and equipment for the period from January, 2006, to January, 2007. The first refund request in April, 2007, became DOAH Case Number 08-3938, and the second refund request in October, 2007, became DOAH Case Number 08-3939. The two cases were consolidated into this proceeding pursuant to the joint motion of the parties. The parties stipulated that the only issue for determination in this consolidated proceeding is whether Petitioner satisfied the requirement for a 10 percent increase in productive output in Subsection 212.08(5)(b) and Rule 12A- 1.096. If a finding were to be made that Petitioner satisfied the 10 percent requirement, the parties stipulate that the file will be returned to Respondent for a determination of whether the items purchased are qualifying machinery and equipment defined in Subsection 212.08(5)(b) and Rule 12A-1.096. The issue of whether Petitioner satisfied the statutory requirement for a 10 percent increase in productive output in Subsection 212.08(5)(b) and Rule 12A-1.096 is a mixed question of law and fact. The ALJ concludes as a matter of law that Petitioner did not satisfy the 10 percent requirement. The ALJ discusses that conclusion briefly, for context, in paragraphs 6 and 7 of the Findings of Fact, and explains the conclusion and the supporting legal authority more fully in the Conclusions of Law. It is an undisputed fact that Petitioner counts items identified in the record as "preprints," "custom inserts," and "circulation inserts" separately from the "newspaper" as a means of exceeding the 10 percent requirement in Subsection 212.08(5)(b). Respondent construes the 10 percent exemption authorized in Subsection 212.08(5)(b) in pari materia with the exemption authorized in Subsection 212.08(5)(1)(g) for "preprints," "custom inserts," and "circulation inserts" (hereinafter "inserts"). The latter statutory exemption treats inserts as a "component part of the newspaper" which are not to be treated separately for tax purposes. For reasons stated more fully in the Conclusions of Law, the ALJ agrees with the statutory construction adopted by Respondent. That conclusion of law renders moot and, therefore, irrelevant and immaterial, the bulk of the evidence put forth by the parties during the two-day hearing because the evidence assumed arguendo that Petitioner's statutory interpretation would be adopted by the ALJ, i.e., inserts would be counted separately from the newspaper for purposes of satisfying the 10 percent requirement in Subsection 212.08(5)(b). In an abundance of caution, the fact-finder made findings of fact based on the legal assumption that inserts are statutorily required to be counted separately for purposes of the 10 percent requirement in Subsection 212.08(5)(b). Those findings are set forth in paragraphs 9 through 11. The verification audit by Respondent's field office was able to verify an output increase of only 4.27 percent for 2005 and only 8.72 percent for 2006. A preponderance of evidence in this de novo proceeding did not overcome those findings. The trier of fact finds the evidence from Petitioner during this de novo proceeding to be inconsistent and unpersuasive. For example, Petitioner inflated production totals by counting materials printed for its own use, and materials in which the unit of measurement was inconsistent. In other instances, production totals for printing presses identified in the record as Didde and Ryobi presses varied dramatically with circulation. In other instances, Petitioner's reporting positions changed during the course of the proceeding. There is scant evidence that the alleged increase in production created jobs in the local market in a manner consistent with legislative intent. Rather, a preponderance of evidence shows that when Petitioner placed the equipment in service it was job neutral or perhaps reduced jobs.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order finding that Petitioner did not satisfy the requirement for a 10 percent increase in productive output defined in Subsection 212.08(5)(b) and Rule 12A-1.096, and denying Petitioner's request for a refund. DONE AND ENTERED this 20th day of October 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 2009.
The Issue Whether Respondent's insurance license should be suspended or revoked because Respondent failed to disclose his criminal history on his insurance license application.
Findings Of Fact The Department has authority over licensing insurance agents pursuant to Chapter 626, Florida Statutes. At times pertinent Mr. Arleo was a resident of Pensacola, Florida. He holds a 220 General Lines (Property and Casualty) Agent license issued on February 27, 2001. The license he received was based on a license application he filed with the Florida Department of Insurance on January 30, 2001. Question three of the licensure and screening questions portion of the January 30, 2001, application inquired, "Have you ever been convicted, found guilty, or pleaded guilty or nolo contendere (no contest) to a felony under the laws of any municipality, county, state, territory, or country, whether or not adjudication was withheld or a judgment of conviction was entered?" Respondent answered this question in the negative. Question four of the licensure and screening questions portion of the application inquired, "Have you ever been convicted, found guilty, or pleaded guilty or nolo contendere (no contest) to a 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?" Respondent answered this question also in the negative. Following the aforementioned answers, Mr. Arleo signed his name beneath a statement that reads as follows: "Under penalty of perjury, I declare that all answers to the forgoing questions 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 the denial of my application and or the revocation of my insurance license(s)." Notwithstanding his responses on the application, the evidence indicated that Mr. Arleo, on September 30, 1986, pleaded nolo contendere to, and was adjudicated guilty of, one count of theft of property worth $100 or more, but less than $20,000, and one count of burglary of a structure or conveyance, in the Circuit Court of Escambia County, Case No. 86-2796. Both of the listed offenses are felonies in the State of Florida. Mr. Arleo was adjudicated guilty of the offenses. However, on January 6, 1987, pursuant to an Order of Modification, adjudication was withheld.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department revoke Mr. Arleo's license. DONE AND ENTERED this 21st day of November, 2003, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 21st day of November, 2003. COPIES FURNISHED: Steve Arleo 704 North 80th Avenue Pensacola, Florida 32506 Dana M. Wiehle, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399 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
