The Issue Whether the Petitioner is entitled to an exemption to work in a position of special trust.
Findings Of Fact Petitioner, Anthony Thomas, is an applicant for employment at a provider facility controlled by the Department of Juvenile Justice (the Department). As such, Petitioner must complete forms designated to reveal pertinent information regarding Petitioner's background. Part of the documentation required of Petitioner is an affidavit of good moral character. This form lists numerous offenses or acts which disqualify an applicant from employment in a position of special trust. On July 10, 1995, Petitioner completed an affidavit of good moral character and affirmed, under penalty of perjury, that he met the moral character requirements for employment but did not disclose that his record contained one or more of the disqualifying acts or offenses. In fact, Petitioner does have a history containing one or more such acts or offenses. In October, 1987, Petitioner was charged with handling and fondling a child under the age of sixteen years, a second degree felony. In January, 1988, Petitioner entered a plea of guilty to the charges and received a suspended sentence with probation and mandatory counseling. Subsequently, Petitioner violated the terms of his probation and was brought before the court for failure to complete counseling and to remit the fees outstanding for same. In 1994, Petitioner completed the counseling requirement, paid all outstanding fees, and was released from probation having successfully complied with the order of the court. A background search completed by the Department for the July 1995, application revealed the foregoing information. The Petitioner received an unfavorable and disqualifying rating in August of 1995 which he did not dispute. In October of 1996, Petitioner again applied for employment for a position of special trust for a provider facility controlled by the Department. On the affidavit of good moral character for this application Petitioner truthfully revealed that his record contained one or more of the disqualifying acts or offenses listed. Notwithstanding the truthful disclosure, Petitioner again received an unfavorable and disqualifying rating for this employment request. Upon receipt of this denial, Petitioner timely requested an exemption and filed a request for an administrative review of the decision denying same. Petitioner has been employed at the Hope Center for approximately six and one-half months. In order to qualify for this employment, Petitioner obtained an exemption from the Department of Children and Families to work in a position of special trust. Hope Center is a residential facility for adults many of whom have the mental age of a child. Petitioner assists the residents with daily living skills. Throughout his employment at Hope Center, Petitioner has exhibited exemplary conduct and has been entrusted with residents for field trips and apartment visits. Petitioner seeks employment at a Department facility because of his interest in working with youthful offenders and to improve his earning level. Petitioner has similar prior experience working at an academy in Maryland. He met Tadar Muhammad at the Maryland facility when they both served as youth counselors. As director of group living for the Florida facility with whom Petitioner now seeks employment, Mr. Muhammad opined that he would have to have more information before deciding whether or not to hire Petitioner to a position of special trust. While many of Petitioner's witnesses knew of his criminal background, none were aware of the specifics of the charges. In 1987, while still a teenager himself, Petitioner was employed as a youth counselor for a facility known in this record as "PAL." During this time, Petitioner, who was in a position of trust, engaged in sexual conduct with a minor female under sixteen years of age who attended activities at PAL. Petitioner denied having sexual relations with a second minor female. When Petitioner was arrested and charged, both females from the PAL facility were named as participants in the sexual acts with Petitioner. Although Petitioner pled guilty to the charges naming both females, he maintains he was sexually active with only one of the minors. The position now sought by Petitioner does not include minor females. Moreover, Petitioner would not be left with any minor unsupervised. Petitioner maintained he entered the plea because of fear of possible incarceration. Petitioner planned to attend college on an athletic scholarship which the criminal court permitted. Petitioner enjoys a good reputation among his coworkers and peers. Those who testified in his behalf maintain that the acts of his past do not reflect adversely on his current character.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a Final Order granting Petitioner an exemption to work at Everglades Academy with youthful male offenders. DONE AND ENTERED this 29th day of May, 1998, in Tallahassee, Leon County, Florida. J. D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1998. COPIES FURNISHED: Calvin Ross, Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Janet Ferris, General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Lynne T. Winston, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Anthony Thomas, pro se 5565 Northwest 185th Street Miami, Florida 33055
The Issue Whether or not the Division of Beverage was justified in denying Kenneth Oliver, trading as Capri Art Theatre, a beverage license under his application for a beverage license, based upon the fact that Kenneth Oliver was not deemed to be of good moral character, good moral character being a requirement for the issuance of a license as stated in Florida Statutes, 561.15.
Findings Of Fact Traditionally, in application cases the burden of going forth with proof rests with the Petitioner, Applicant. However, in the instant case the parties stipulated to allow the Respondent to offer its case first, in view of the fact that the Petitioner was not represented by an attorney. The Respondent introduced exhibit number 1 which was a notice of hearing. This exhibit was not objected to by the Petitioner and although the notice of hearing did not grant the statutory requirement of 14 days notice, the Petitioner waived any objections to the 14 day notice, because the Petitioner indicated that he was anxious to proceed to hearing immediately. The Respondent introduced a second exhibit, without objection by the Petitioner, and this exhibit was the letter of denial of application for license. Finally, in the way of proof the Respondent moved to admit a certain document known as a rap sheet, which the Respondent indicated was the basis for denying the license because of lack of good moral character on the part of the Petitioner. This exhibit was shown to the Petitioner in the course of the hearing and a recess was granted for the Petitioner and Respondent to discuss, out of the presence of the hearing officer, the accuracy of those entries found on the rap sheet. Upon return from the recess the present exhibit number 3 which was admitted, was tendered to the hearing officer as being the corrected record of arrests and convictions for criminal offenses and quasi criminal offenses as committed by the Petitioner, Kenneth Oliver. The only exception taken by the Petitioner to this account of his prior convictions was as related in exhibit number 3, the line pertaining to arrests and convictions for an offense in DeLand, Florida, for possession of nervous system stimulant for which the Petitioner is alleged to have paid a $250 fine based upon a guilty plea. The Petitioner indicated that he did not recall this particular incident. There was no further showing on the part of the Respondent as to the accuracy of this alleged plea of guilty to the offense of possession of nervous system stimulant which supposedly occurred in DeLand, Florida. The Petitioner, Kenneth Oliver, took the stand in his behalf and indicated that he felt that he should be entitled to the issuance of a beverage license for the purposes as applied for. His reasons for this suggestion were that he was a businessman and that he wanted to make money and that he could make money by selling beer. Additionally, he said that his last arrest for any criminal offense was in 1973, and that his past record should not stand in the way that much. Furthermore, the Petitioner testified in his behalf that he was of good moral character.
Recommendation It is therefore recommended that the Petitioner's application for a beverage license be denied. ENTERED this 7th day of November, 1975, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Kenneth Oliver 715 North Ridgewood Avenue Daytona Beach, Florida 32014 William A. Hatch, Esquire Department of Business Regulation 725 Bronough Street Tallahassee, Florida 32304
Findings Of Fact Respondent was certified as a corrections officer in 1972 and was so certified at all times here relevant. Respondent was a season ticket holder to the Tampa Bay Buccaneers 1983 football games. He attended the game on September 25, 1983, with four friends. Before arriving at the game the group bought a fifth of whiskey. Respondent contends he had only one drink prior to the incident with the police officers but three police officers opined that Respondent was intoxicated. During the second half of the game, with the Bucs woefully behind and some spectators leaving the stadium, Respondent was yelling disparaging remarks about the Bucs and their performance on that day. Occasionally, Respondent was standing on his seat when he yelled the remarks. Respondent was more noisy than others in the section in which his seat was located and drew the attention of Jennifer Frye, a City of Tampa police officer serving as a uniformed off-duty policewoman paid the owners of the stadium to maintain crowd control. Officer Frye motioned for Respondent to come to the platform where she was standing, some four rows above Respondent's seat. Respondent did so, climbing between the people and seats behind him as he responded to Frye's summons. When Respondent reached Frye's position, she smelled alcohol on his breath and he appeared to her to be intoxicated. Respondent was somewhat annoyed in being called up by the policewoman and wanted to know why she had beckoned him from his seat. He was gesturing with his arms and asking what he had done wrong. Officer Lois Morraro, another off-duty member of the Tampa police force, was also working in uniform at the stadium. She observed Respondent respond to Frye's request and saw Respondent arguing. Morraro approached the two and positioned herself behind Respondent. Respondent told Frye he was a season ticket holder and was entitled to be upset when the Bucs were losing. Frye and Morraro decided to evict Respondent from the stadium and when Frye initially grabbed his hand Respondent pulled away. She then told him he was under arrest and grabbed his left arm and hand with a come-along grip. Morraro grabbed Respondent's right arm, twisted it behind his back, and moved the hand up toward the shoulders. They proceeded to propel the struggling Respondent down the steps to a holding area. When they reached the holding area they were joined by Sergeant Peter Ambraz, the off- duty Tampa police officer in charge of the stadium detail. Ambraz took Respondent's right arm while Morraro handcuffed Respondent. During this time Respondent was trying to keep from being handcuffed and in the process his elbow accidentally hit Morraro in the throat while she was standing behind him putting handcuffs on him. After Respondent had been handcuffed and taken to the police station, he revealed that he was a certified corrections officer. Respondent was subsequently tried for disorderly intoxication and fired from his job with the Hillsborough County Sheriff's Department.
Findings Of Fact Background In June 1988, respondent, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), acting on a tip from the local media that intervenor, Metropolitan Dade County, Department of Corrections and Rehabilitation (County), had in its employ a number of corrections officers who were not certified, undertook a review of the County's employment records. Following a comparison of the County's records and those of the Commission, the Commission identified 363 individuals, including the petitioner, who were employed by the County as correctional officers but who had not been certified by the Commission. On August 10-11, 1988, Commission personnel visited the County's personnel office, and audited the personnel file of each of the 363 individuals in question. The audit demonstrated that the files were disorganized, lacking documentation required by Rule 11B-27.002, Florida Administrative Code, to apply for certification, and that the County had failed to apply for certification on behalf of the 363 officers. 2/ Over the course of their two-day visit, the Commission's personnel set up an "assembly line" and, together with the County's staff, attempted to complete the documentation on each file. Variously, registration forms and affidavits of compliance were prepared, and birth certificates, fingerprint cards and other missing documentation was assembled. On August 12, 1988, the Commission's personnel returned to Tallahassee with the subject registration forms and affidavits of compliance. Over the course of time, these applications were processed and the vast majority of the individuals were certified; however, the Commission declined, for reasons hereinafter discussed, to certify petitioner. The pending application Petitioner, Steven Albert (Albert), has been employed by the County as a correctional officer since February 19, 1988, without benefit of certification. On August 10, 1988, as a consequence of the aforementioned audit, the County, as the employing agency, applied for certification on behalf of Albert. 3/ Accompanying the application (registration) was an affidavit of compliance, dated August 10, 1988, signed by Fred Crawford, Director of Metropolitan Dade County, Department of Corrections and Rehabilitation, which comported with existing law and which certified that such employing agency had collected, verified, and was maintaining on file evidence that Albert had met the provisions of Section 943.13(1)-(8), and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. Among the provision of section 943.13 is the requirement that the applicant be of good moral character. By letter dated November 1, 1988, the Commission notified Albert and the County that his application for certification as a correctional officer was denied for lack of good moral character because: You have unlawfully and knowingly possessed and introduced into your body cocaine and cannabis. Following receipt of the Commission's letter of denial, Albert filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Albert denied that he failed to possess the requisite good moral character necessary for certification. Good moral character Pursuant to Rule 11B-27.0011, Florida Administrative Code, the County, as the employing agency, is responsible for conducting a thorough background investigation to determine the moral character of an applicant. Consistent with such mandate, the County routinely uses previous employment data, law enforcement records, credit agency records, inquiries of the applicant's neighbors and associates, and a pre-employment interview, at which a polygraph examination is administered, to assess an applicant's moral character. In assessing an applicant's character, the County is bound by the provisions of Rule 11B-27.0011(2), Florida Administrative Code, which provides: The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant for certification, employment, or appointment at any time proximate to such application for certification, employment, or appointment conclusively establishes that the applicant is not of good moral character as required by Section 943.13(7). The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant at any time remote from and not proximate to such application may or may not conclusively establish that the applicant is not of good moral character, as required by Section 943.13(7), depending upon the type of controlled substance used, the frequency of use, and the age of the applicant at the time of use. Nothing herein is intended, however, to restrict the construction of Section 943.13(7), only to such controlled substance use. The substances enumerated in rule 11B-27.00225 are amphetamines, barbiturates, cannabis (marijuana), opiates, cocaine, phencyclidine, benzodiazepines, and methaqualone. Pertinent to this case, the County undertook a pre-employment interview of Albert on July 23, 1987, at which time he admitted that during the course of his military service he had been involved with controlled substances. Here, the proof demonstrates that Albert joined the United States Air Force on March 31, 1975, at the age of 19, following his graduation from high school. During the course of such service, he experimented with cocaine, qualudes and "speed" a few times, the last time being in 1980 or 1981; used marijuana occasionally, the last time being in 1981; and sold or attempted to sell one ounce of marijuana on three separate occasions, the last being in 1981. On January 2, 1981, following his receipt of an Article 15, an administrative form of discipline, for possession of marijuana, Albert received a general discharge, under honorable conditions, from the military. Since that time, Albert has not used, bought or sold any controlled substance. Notwithstanding the County's conclusion, based on its investigation and analysis of Albert's background, that Albert possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on the foregoing events. The Commission's action is not warranted by the proof. Here, Albert used controlled substances, and sold or attempted to sell marijuana on 3 occasions, the last time being over 8 years ago when he was 26 years of age. Since that time he has had no contact with controlled substances. Under such circumstances, his prior contact with controlled substances is not proximate within the meaning of rule 11B-27.0011(2), or persuasive evidence of bad moral character. 4/ To date, Albert has been employed by the County as a corrections officer, a position of trust and confidence, for over one year. His performance has ranged from satisfactory to above satisfactory, he has received two commendations, and his periodic drug screenings have all met with negative results. By those who know of him, he is considered an excellent employee, observant of the rules, and of good moral character. Prior to his employment as a corrections officer, Albert was employed as a security guard for a private company, and was duly licensed by the State of Florida as an unarmed officer. Overall, Albert, now 34 years of age, has demonstrated that he possessed the requisite good moral character when he was employed by the County as a correctional officer, and has demonstrated in this de novo proceeding that he currently possesses the requisite good moral character for certification.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner, Steven Albert, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of June 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1989.
Findings Of Fact On December 20, 1985, Respondent was certified by the Criminal Justice Standards and Training Commission and issued certificate no. 14-84-502-04. Respondent's work in law enforcement in Florida has been as a correctional officer. On the night of December 27, 1986, Respondent left his home to go to the American Legion in Lake City, Florida. On his way he met his friend Eddie Goodbread, Jr. Goodbread asked the Respondent if he could go with him to the American Legion Club. The Respondent agreed to have Goodbread come with him. Once at the American Legion the two men socialized. When they got ready to leave the club the Respondent left with his girlfriend. Goodbread took the Respondent's car and parked it on Myrtle Street. Goodbread then went with the Respondent and the Respondent's girlfriend and another person, which the Respondent describes as a girl, to the house of a friend other than Goodbread. At that point the Respondent and Goodbread split up again. Respondent was then with his girlfriend and Goodbread had the keys to Respondent's car. The Respondent came back later and met with Goodbread. Prior to the rendezvous, while Respondent had been with his girlfriend in her car, he had placed a .25 caliber automatic pistol in the glove box of that car. He had a license to carry this weapon issued by local authorities. The weapon was not contemplated as being a necessary item for his work as a correctional officer. When the Respondent got out of his girlfriend's car and approached Goodbread, the Respondent had the pistol in his coat pocket. Respondent told Goodbread that he was ready to go home because he had to go to work the next morning. Goodbread said, in kidding with the Respondent, that he did not have the car keys and that he had locked them in the car. Respondent recognized that he was joking with him. Nonetheless, Respondent looked in the car and saw that the keys were not there. Respondent returned to Goodbread and told Goodbread to give him his keys. Goodbread again told Respondent that the keys were locked in the car. Respondent told Goodbread that he was starting to go home. Goodbread's reaction to this remark was to get in the car and say "let's go." Goodbread then jumped out of the car and said that he was not ready to go. Respondent told him to come on and give him his keys. Respondent told Goodbread "come on man. Let's go." Goodbread told Respondent that he wasn't ready to go that he wanted to talk to some girl. Respondent said "come on let's go." Respondent took the gun out and said "you are going to make me put this on you. Come on let's go." Goodbread grabbed the gun unexpectedly and the gun discharged and killed Goodbread. Respondent never intended to injure Goodbread in his display of the pistol. Eight or ten witnesses saw the incident. It was investigated by the Lake City Police Department and Respondent cooperated in that endeavor to include turning over the pistol to the police and giving a voluntary statement about the incident. Respondent was charged through the Grand Jury of Columbia County, Florida, with the exhibition of the handgun in a rude, careless, angry, or threatening manner, not in necessary self defense and contrary to Section 790.10, Florida Statutes. A copy of that indictment may be found as Petitioner's Exhibit No. 1. As set forth in Petitioner's Exhibit No. 2, Respondent plead guilty to the offense and was fined $176. The firearm was forfeited to the state, he received 11 days in jail and a condition was placed upon him not to possess a firearm for one year. Respondent claims that as a consequence of the incident with his friend Goodbread he began to drink more than he had before. There being no frame of reference to compare his drinking habits before and after the incident, this comment has little utility in understanding his motivation to drink and drive. It has been established that on September 13, 1987, in the early morning hours of that day, specifically around 1:30 a.m., the Respondent was observed by Deputy Sheriff Charles R. Tate of the Columbia County, Florida Sheriff's office, driving in a reckless manner. In this incident the Respondent pulled out of Church Street onto Bay Avenue in Lake City, Florida, in a reckless manner. The officer speeded up in his attempt to stop the Respondent and engaged the emergency equipment in the officer's car. Respondent went west bound on Bay and turned south on Marion Street which is U.S. 41. In the course of this pursuit Respondent accelerated to speeds up to 65 miles per hour. Respondent finally pulled over around the intersection of Marion Street and Grandview Avenue. Respondent cooperated with Officer Tate in the investigation of the driving offense. This included the officer noting that the Respondent had the smell of alcohol about his person. As a consequence, the Respondent was asked to perform certain activities associated with a field sobriety test to ascertain if Respondent was capable of operating his motor vehicle. When the Respondent tried to perform the finger to nose test which is given with each hand, he was unable to do that with either hand. In trying to perform the walking test Respondent staggered and when he made the return trip in the walking test he nearly fell over and had to support himself. From the observations of the Respondent Officer Tate believed that the Respondent was driving under the influence when the stop was made. He arrested the Respondent for that offense and took him to the Florida Highway Patrol station where Robert Bellamy, a trained breathalyzer operator, administered a breathalyzer test to the Respondent. The results show that the Respondent was registering at .16 at 2:25 a.m., and registering at .15 at 2:27 a.m. with .10 being the legal presumption for impairment. Respondent was then taken to the Columbia County Jail. While at the jail correctional officer Jacklyn Yvonne Jones- Holland attempted to fingerprint his right hand. Ms. Holland knew of the Respondent before this evening but had had no opportunity before to speak to the Respondent. In the course of the fingerprinting Respondent took his left hand and rubbed it on the side of the officer's leg in the area of her groin. The first time he did this she stepped back on the chance that the Respondent was unaware of what he was doing at the time. However, when she moved the Respondent again put his hand on her leg in the area of her groin. Based upon the facts of this case in which Officer Tate describes the quality of the Respondent's impairment on a scale of 1 to 10, as being a 5 and Ms. Holland describes this impairment to be 6 or 7 on a scale of 1 to 10, Respondent is not found to be so under the influence that he did not realize what he was doing when inappropriately touching Ms. Holland in two instances. When he touched her the second time Ms. Holland went to another part of the building and made out a complaint against the Respondent for his assault and he was arrested for that offense. An Officer Myers read the Respondent his rights related to the assault during which conversation Respondent said, "I'm drunk. Oh yeah, that's what I'm here for. I'm drunk." There was no verbal exchange between the Respondent and Ms. Holland during the inappropriate touching. Ms. Holland had not invited those actions by the Respondent. The Petitioner's Composite Exhibit 3 constitutes the Florida Uniform Traffic Citation for the offense of driving under the influence and the disposition of that case in which the Respondent was fined $411, had his license suspended for six months, and attended school for persons who have driven under the influence. He also attended Alcoholics Anonymous and received other counseling contemplated for persons who may have drinking problems. Respondent says that he does not drink at present and no evidence was offered which would refute that claim. Respondent was charged under information with the unlawful, intentional and knowing touching or striking of Jacklyn Yvonne Jones-Holland and plead guilty to battery. He received a period of probation of one year for that offense. Certified copies of the information and order withholding adjudication of guilt and placing the defendant on probation can be found as exhibit numbers 5 and 4 respectively. The reckless display of the firearm leading to the death of his friend, and the battery committed on Ms. Holland are all indications of a lack of good moral character and are events for which the Respondent has no acceptable explanation or excuse. Driving under the influence is reprehensible but does not show a lack of good moral character.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That a Final Order be entered suspending the certificate of the Respondent for a period of six months. DONE and ENTERED this 6th day of December, 1989, in Tallahassee, Florida. CHARLES C. ADAMS, 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 6th day of December, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-3816 The facts as presented by the Respondent are commented on as follows: Paragraphs 1-5 are subordinate to facts found. Paragraph 6 is not accepted to the extent that it argues that the incident involving the death of Mr. Goodbread is directly responsible for the fact that the Respondent was driving under the influence on the night in question and committed the battery on Ms. Holland. Furthermore, the suggestion that the Respondent was too under the influence to understand the fact of his battery against Ms. Holland is rejected. His testimony that he does not have a recollection of touching Ms. Holland runs contrary to the impression of the facts, that impression being that the act of the Respondent was volitional. The idea of his cooperation with Trooper Bellamy in the administration of the breathalyzer examination and the efforts to comply with what was expected of him in responding to the circumstance of the driving under influence offense is recognized as mitigation, but does not explain away the offense. The suggestion in Paragraph 7 that the death of the friend and the driving under the influence are interrelated is not accepted. Respondent did indicate that he was emotionally upset over the death of his friend, this would be expected but it is not clear to what extent his drinking increased following the death of the friend as compared to his drinking habits before that time. Respondent's suggestion that he is free from the effects of alcohol problems at present was not refuted. Therefore, there is no reason to believe that he presently has any problem with alcohol abuse. Reference to other traffic violations and his service record as a correctional officer leaves a neutral impression of the Respondent which is neither to his advantage or that of the Petitioner. Consequently, the facts of those prior events have not been reported in the fact-finding set forth in the Recommended Order. Paragraph 8 is contrary to facts found. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Stephen A. Smith, Esquire Post Office Drawer 1792 Lake City, Florida 32056-1792 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 =================================================================
The Issue Whether Petitioner is qualified for licensure as a real estate salesperson.
Findings Of Fact On or about November 8, 1995, Petitioner filed an application for licensure as a real estate salesperson. Question 9 of the application asked about the applicant's criminal history. In response to this question, Petitioner answered in the affirmative and stated the following: On May 24, 1995 I pleaded guilty to a misdemeanor offense, possession of a forged instrument in the third degree... . Question 13 of the application inquired as to whether the applicant had ever resigned from a regulated profession. Petitioner answered this question in the affirmative and stated: On October 6, 1995, as a condition of my sentence in the criminal matter...I executed an Affidavit of Resignation from the Bar of the State of New York. Petitioner testified at hearing that the incident giving rise to misdemeanor offense to which he pleaded guilty involved a divorce matter he was handling for a client. While practicing law in the State of New York, Petitioner was retained to handle what he initially believed was an uncontested divorce. When it became apparent that the divorce was being contested, Petitioner attempted to withdraw from the case, but at the client's insistence never did so. During the ensuing months, the divorce matter was not resolved by Petitioner. Nevertheless, after being repeatedly contacted by the client regarding the status of the case, Petitioner gave the client what purported to be a copy of his divorce decree. According to Petitioner, he conformed the document and knew no decree had been signed. The conformed document was never filed with the court. Petitioner's actions led his client to believe that the client was divorced when, in fact, he was not divorced. Petitioner was forthright in revealing his conviction and resignation from the New York Bar and acknowledged that his action was "a terrible mistake in judgment." While he admitted "there's no excuse for what I did," Petitioner attributed the incident to the stress in his life at the time caused by a myriad of circumstances. Among these circumstances was the illness and subsequent death of Petitioner's only law partner in his two-attorney law practice. Because of this, Petitioner's caseload increased significantly causing him to feel "overwhelmed." During this time period, Petitioner was also dealing with family problems related to the serious health problems of his parents. Petitioner pled guilty to a misdemeanor offense, possession of a forged instrument, and was convicted of the same. As a result thereof, on October 6, 1995, Petitioner was sentenced to three years probation. At the time of this hearing, Petitioner had served less than one year of his probationary period. Petitioner's probation will expire on October 5, 1998. At hearing, Petitioner presented numerous letters from family, friends, and business associates attesting to his good character. However, all the letters are based on these individuals' experiences and relationships with Petitioner prior to his October 1995 conviction. Petitioner appears remorseful about his prior conduct and has a sincere desire to be rehabilitated. However, Petitioner presented no evidence regarding his present character as reflected by his good conduct and reputation. Absent from the record is testimony from friends, relatives, business associates, employers, or church members regarding Petitioner's honesty, truthfulness, or trustworthiness subsequent to the date he pled guilty to possession of a forged instrument.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order denying Petitioner's application for licensure as a real estate salesperson. DONE and ENTERED this 10th day of December, 1996, in Tallahassee, Leon County, Florida. CARLOYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-647 Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 1996. COPIES FURNISHED: Dean Alan Burton 10098 Dunkirk Road Spring Hill, Florida 34608 William N. Halpern Assistant Attorney General South Tower, Suite 107 400 West Robinson Street Orlando, Florida 32801 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
Findings Of Fact Background In June 1988, respondent, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), acting on a tip from the local media that intervenor, Metropolitan Dade County, Department of Corrections and Rehabilitation (County), had in its employ a number of corrections officers who were not certified, undertook a review of the County's employment records. Following a comparison of the County's records and those of the Commission, the Commission identified 363 individuals, including the petitioner, who were employed by the County as correctional officers but who had not been certified by the Commission. On August 10-11, 1988, Commission personnel visited the County's personnel office, and audited the personnel file of each of the 363 individuals in question. The audit demonstrated that the files were disorganized, lacking documentation required by Rule 11B-27.002, Florida Administrative Code, to apply for certification, and that the County had failed to apply for certification on behalf of the 363 officers. 2/ Over the course of their two-day visit, the Commission's personnel set up an "assembly line" and, together with the County's staff, attempted to complete the documentation on each file. Variously, registration forms and affidavits of compliance were prepared, and birth certificates, fingerprint cards and other missing documentation was assembled. On August 12, 1988, the Commission's personnel returned to Tallahassee with the subject registration forms and affidavits of compliance. Over the course of time, these applications were processed and the vast majority of the individuals were certified; however, the Commission declined, for reasons hereinafter discussed, to certify petitioner. The pending application Petitioner, Arvis Bethel (Bethel), has been employed by the County as a correctional officer since October 23, 1985, without benefit of certification. On August 10, 1988, as a consequence of the aforementioned audit, the County, as the employing agency, applied for certification on behalf of Bethel.3/ Accompanying the application (registration) was an affidavit of compliance, dated August 10, 1988, signed by Fred Crawford, Director of Metropolitan Dade County, Department of Corrections and Rehabilitation, which comported with existing law and which certified that such employing agency had collected, verified, and was maintaining on file evidence that Bethel had met the provisions of Section 943.13(1)-(8), and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. Among the provision of section 943.13 is the requirement that the applicant be of good moral character. By letter dated November 1, 1988, the Commission notified Bethel and the County that his application for certification as a correctional officer was denied for lack of good moral character because: You have unlawfully and knowingly possessed and introduced into your body cocaine and cannabis. You have unlawfully committed an assault and battery on Louie F. Clayton. You have unlawfully and knowingly purchased stolen property. Following receipt of the Commission's letter of denial, Bethel filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Bethel denied that he failed to possess the requisite good moral character necessary for certification. Good moral character Pursuant to Rule 11B-27.0011, Florida Administrative Code, the County, as the employing agency, is responsible for conducting a thorough background investigation to determine the moral character of an applicant. Consistent with such mandate, the County routinely uses previous employment data, law enforcement records, credit agency records, inquiries of the applicant's neighbors and associates, and a pre-employment interview, at which a polygraph examination is administered, to assess an applicant's moral character. In assessing an applicant's character, the County is bound by the provisions of Rule 11B-27.0011(2), Florida Administrative Code, which provides: The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant for certification, employment, or appointment at any time proximate to such application for certification, employment, or appointment conclusively establishes that the applicant is not of good moral character as required by Section 943.13(7). The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant at any time remote from and not proximate to such application may or may not conclusively establish that the applicant is not of good moral character, as required by Section 943.13(7), depending upon the type of controlled substance used, the frequency of use, and the age of the applicant at the time of use. Nothing herein is intended, however, to restrict the construction of Section 943.13(7), only to such controlled substance use. The substances enumerated in rule 11B-27.00225 are amphetamines, barbiturates, cannabis (marijuana), opiates, cocaine, phencyclidine, benzodiazepines, and methaqualone. Pertinent to this case, the County undertook a pre- employment interview of Bethel on October 7, 1985, at which time he divulged that he had purchased stolen property a few times, so long ago as to not exactly remember when; had used marijuana, although he could not recall the number of times, 12- 13 years before the interview; and had tried cocaine twice, 3-4 years before the interview. Also conceded by Bethel was his conviction in 1965 of assault and battery. Notwithstanding the County's conclusion, based on its investigation and analysis of Bethel's background, that Bethel possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on the foregoing incidents. The Commission's action is not warranted by the proof. Here, the proof demonstrates that at some time prior to 1966, the exact date not being known due to the passage of time, Bethel did receive a few auto parts which, although he did not know at the time he received them, were apparently stolen property. At the time, Bethel and his friends raced cars and in the process of maintaining their cars traded parts. Such was the circumstance under which Bethel, who was then not more that 20 years of age, having been born October 1, 1944, received parts which later proved to have been stolen. On June 2, 1965, Bethel, then 20 years of age, was convicted in the Criminal Court of Record, Dade County, Florida, of assault and battery, a misdemeanor, and served four months in the Dade County Jail. That conviction, which occurred almost 25 years ago, arose as a consequence of a fight Bethel had with one Louie F. Clayton. On September 26, 1986, Bethel entered the United States Army where he served honorably for over six years. By the time he was discharged on February 9, 1973, he had been promoted to the rank of staff sergeant, had served two tours of duty in Vietnam, and had been awarded, among other indicia of distinguished service, the Army Commendation Medal, the Bronze Star Medal, and Good Conduct Medal. Admittedly, while in Vietnam, Bethel used marijuana, however, since that time, a period of over 16 years, he has not used it. Following his discharge from the service in 1973, Bethel was employed by Florida Portland Cement Company, and was continuously employed by such company, except for the period of July 1976 through January 1977, until it went out of business in 1984. During the period of July 1976 through January 1977, Bethel, along with other employees of Portland Cement, suffered a brief layoff. During that period, Bethel was employed as a corrections officer by the Department of Corrections in Florida City, albeit without certification. The only recent blemish on Bethel's record is his use of cocaine on two occasions in 1981 or 1982, during the course of his divorce. Such conduct is atypical of Bethel's character, and his remorse for having used such substance is credited. In light of the circumstances, such usage is not proximate or frequent within the meaning of rule 11B-27.0011(2), or persuasive evidence of bad moral character. 4/ To date, Bethel has been employed by the County as a corrections officer, a position of trust and confidence, for approximately three and one- half years. His annual evaluations have ranged from above satisfactory to outstanding, and his periodic drug screenings have all met with negative results. By those who know of him, he is considered an excellent employee, observant of the rules, honest, fair and respectful of the rights of others. Bethel is now, and has been for some time, a respected member of the community. He is a member of the Veterans of Foreign Wars and the Masons. He has attended Miami Dade Community College where he has amassed 78 semester credits. During the last semester he attended, the winter term which ended March 1, 1986, Bethel carried 18 semester hours of class work, and received a 3.33 grade average out of a possible 4.0. Overall, Bethel has demonstrated that he possessed the requisite good moral character when he was employed by the County as a correctional officer, and has demonstrated in this de novo proceeding that he currently possesses the requisite good moral character for certification.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner, Arvis Bethel, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of June 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June 1989.
Findings Of Fact Petitioner, Ellyn Schechter, who is thirty-two years of age, made application on October 14, 1985 for licensure as a real estate salesman by examination with respondent, Department of Professional Regulation, Division of Real Estate (Division). Question six on the application requires the applicant to state whether he or she "has ever been convicted of a crime, found guilty, or entered a plea of nolo contendere (no contest), even if adjudication was withheld". Petitioner gave the following response: "Yes, resist arrest w/o violence, possession cocaine." Applicant's attorney provided letter and documents attached, FDLE report lists an arrest 6-30-84 possess cocaine, narcotic equipment, tuinal (drug) - no dis- position. According to documents furnished, resisting arrest charges resulted in 1 yrs. probation effective July 10, 1984, fines and "community service hours; arrest reference drugs - withheld adj., 2 years community control, 1 year probation effective Nov. 9, 1984, 6 special conditions, concurrent. A background check by the Division revealed that Schechter was arrested and charged with three counts of resisting arrest without violence in Broward County in 1984. After pleading guilty to all three counts, the court withheld adjudication and placed Schechter on probation for one year. In addition, petitioner was also arrested and charged in Broward County in 1984 with possession of cocaine, possession of a barbiturate, and possession of drug paraphernalia . She pled guilty to the first and second charges. The third charge was dismissed. The court withheld adjudication, and sentenced petitioner to two years community control followed by one year of probation, 100 hours community service, drug evaluation and/or treatment as deemed appropriate, $1,000 court costs, and a requirement that she abstain from alcohol and drugs for three years. She satisfactorily completed her probation and community control in January, 1986. There is no evidence of any arrests or other problems since 1984. Schechter is a licensed dental hygienist and holds licenses to practice that profession in both Florida and New York. Due to a hand injury, she is no longer able to pursue that vocation. She desires to be licensed as a real estate salesman, and successfully completed the pre-examination course in October, 1985 with a score of 96. She was also offered a job at that time with Century 21 Rainbow Realty, Inc. in Plantation, Florida. At the present time, she is working as a waitress in a Fort Lauderdale area restaurant. Her employer described her as being honest, courteous and dependable, and stated that she handled his money in a responsible manner. Schechter also furnished letters from four former employers to corroborate the testimony concerning her honesty and trustworthiness. However, they all predate her 1984 convictions. Schechter freely acknowledged her prior difficulties, and was candid and forthright in answering all questions about her arrests. She stated the arrest for drugs stemmed from a passenger in her automobile having drugs in his possession. The charge of resisting arrest without violence occurred after Schechter was arrested in her home by two City of Hollywood police officers. They had apparently responded to a disturbance involving Schechter and a female guest. According to Schechter, the arrest was unjustified, and resulted in her receiving a beating from one of the officers which caused her to be hospitalized for four days.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner's application for licensure by examination be granted. DONE and ORDERED this 10th day of December, 1986 in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 10th day of December, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-1421 Respondent: Covered in finding of fact 1. Covered in finding of fact 2. Covered in finding of fact 2. Covered in finding of fact 2. Covered in finding of fact 2. Covered in finding of fact 2. Covered in finding of fact 2. Covered in finding of fact 5. Covered in finding of fact 5. Covered in finding of fact 5. COPIES FURNISHED: Ida M. Lawry, Esquire 621 South Federal Highway Suite 4 Ft. Lauderdale, Florida 33301 Lawrence S. Gendzier, Esquire 400 West Robinson Street Suite 212 Orlando, Florida 32801 Harold Huff Director Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32801 Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings S. Benton, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue is whether Petitioner properly denied Respondent's application for licensure as a community association manager for failure to establish good moral character as required by section 468.433(2)(b)2., Florida Statutes, and Florida Administrative Code Rule 61-20.001(5)(b)3.
Findings Of Fact Petitioner, Department of Business and Professional Regulation (Department), is the state agency responsible for regulating the practice of community association management pursuant to section 20.165, and chapters 455 and 468, Part VIII, Florida Statutes. In February of 2011, Respondent, Carl Allen Quesinberry, submitted an application for licensure as a community association manager to the Department. In May of 2011, the Department notified Respondent that it intended to deny his application on the ground that he had failed to demonstrate good moral character. Specifically, the Department indicated Respondent has exhibited a pattern of unlawful behavior which would indicate Respondent has little regard for the law, the rules of society, or the rights of others, and used the term "habitual offender" to describe him. A review of Respondent's criminal history discloses a series of 12 criminal convictions during the time period beginning May 5, 1985, through November 14, 2007. Specifically, Respondent was found guilty of the following criminal law violations on the following dates: Reckless Driving, May 3, 1985; Driving Under the Influence, April 4, 1996; Battery, September 27, 1996; Battery, August 15, 2001; Misdemeanor conviction, December 8, 2003; Two convictions for Battery, March 31, 2006; Revocation of Probation, March 29, 2007; Two convictions for Trespass of an Occupied Dwelling, June 29, 2007; Revocation of Probation, November 14, 2007; and Violation of Domestic Violence Injunction, November 14, 2007. A review of the criminal history for Respondent shows that he has not had any arrests, pleas, or convictions since November of 2007. At the time of Respondent's application for licensure as a community association manager in February of 2011, it would have been over three years since Respondent had encountered any legal difficulties. Respondent presented the testimony of Michael Gerrity, the CEO of the World Property Channel in Miami, Florida, as a factual witness in this matter. Mr. Gerrity runs one of the largest real estate global news networks in the country. His company covers residential and commercial real estate news and trends. Mr. Gerrity testified he has known Respondent since ninth or tenth grade from attending the same high school, Lyman High School, in Longwood, Florida. He testified that he has known Respondent to be an honest and trustworthy individual in his real estate dealings and transactions. He believes Respondent has respect for others and the law, and that Respondent's criminal troubles have never affected his business dealings or those of his clients. Respondent has represented a wide variety of real estate clients, from those investing in property to those leasing space for their businesses. Respondent has represented Fortune 500 Companies as well as smaller local companies in his real estate dealings. Mr. Gerrity, Anthony VanDerworp, and Michael LaFay (Respondent's criminal defense attorney) testified that the bulk of Respondent's criminal matters stemmed from Respondent's dysfunctional relationship, which involved both individuals drinking. Messrs Gerrity, VanDerworp, and LaFay all believe Respondent has changed his life and his focus in the last three or four years. Respondent has undergone substance abuse counseling and his testifying witnesses all believe he has overcome his addiction and will continue to serve his real estate clients well in the future. Respondent did not offer any testimony or evidence from his counselors or physicians that he has overcome or controlled his prior substance abuse addition, so the evidence supporting his changed life is based upon his testimony and the anecdotal testimony of his friends, Messrs Gerrity, VanDerworp, and LaFay. Respondent testified that he has received counseling, moved to Kentucky, gotten married, had a child, received real estate licenses in both Kentucky and Alabama, and turned his life around. Respondent has been licensed in Florida for more than 25 years as a real estate broker. During that time, he has not been disciplined by the Florida Real Estate Commission.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order denying Respondent's application for licensure as a community association manager. DONE AND ENTERED this 16th day of May, 2012, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 16th day of May, 2012. COPIES FURNISHED: C. Erica White, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399 Carl Allen Quesinberry 329 South Garcon Point Road Milton, Florida 32583 J. Layne Smith, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Anthony B. Spivey, Executive Director Regulatory Council of Community Association of Managers Division of Professions Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399
The Issue The issues in the case are whether the allegations set forth in the Administrative Complaint filed against Respondent are true, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with the responsibility for certification of correctional officers within the State of Florida. Respondent holds Correctional Certificate No. 242571, issued to him by Petitioner. On July 16, 2005, Respondent was involved in an altercation with Chelsey Traband, the woman he lived with in Cape Coral, Florida. In the course of the altercation, items were thrown around the interior of the house, Respondent damaged a closet door and window, and clothing was thrown into the front yard. These actions, and perhaps associated noise, caused a neighbor to call the Cape Coral Police Department, and two police officers went to the scene to investigate. The officers observed bruises on Ms. Traband's left arm, a minor scratch on her right arm, and three parallel scratches on the top of her right breast, one of which was relatively deep. In a statement made to Officer Frank Antos, Ms. Traband stated that the bruises and scratches were inflicted by Respondent. At the hearing, Ms. Traband attempted to recant the statements she made to Officer Antos on July 16, 2005, claiming that he told her what to say and threatened to arrest her and take her to jail if she did not make the statements. Much of Ms. Traband's testimony was evasive and lacking in credibility. She had a motive for lying, because she still lives with Respondent and does not want him to be disciplined. Sorting Ms. Traband's credible statements from her lies, it is found that Ms. Traband started the aggression by slapping and hitting Respondent. However, at some point, Respondent straddled Ms. Traband while she was on her back on a bed, grabbed her breast and twisted it violently. Although both Respondent and Ms. Traband testified under oath at the hearing that the marks on her breast were caused when Respondent pushed Ms. Traband away from him in self defense, the testimony was not credible. It contradicts the statement Ms. Traband made on July 16, 2005, and her former statement is consistent with the marks on her breast as depicted in the photographs. On the day of the incident, Ms. Traband told Sergeant Allan Kolak that Respondent had been smoking marijuana earlier that day, and she had thrown the pipe he had used to smoke the marijuana into the field behind the house. She showed Officer Antos where to find the pipe, and he found a small wooden pipe. Sergeant Kolak testified that the pipe was the kind used to smoke marijuana, it was not the kind of pipe used to smoke tobacco, and it had a smell that he knows from his training and experience is the smell of burned marijuana. After reading Respondent his Miranda rights, Sergeant Kolak questioned Respondent about the pipe, and Respondent volunteered that he had tried to smoke the marijuana residue in the pipe earlier that day.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner Department of Law Enforcement, Criminal Justice Standards and Training Commission, enter a final order finding that Respondent Rozell L. Hester failed to maintain good moral character and ordering that his certification as a correctional officer be suspended for one year. DONE AND ENTERED this 12th day of June, 2007, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 12th day of June, 2007.