Findings Of Fact Petitioner completed an application for issuance of a Class "C" Private Investigator License. That license request was denied on October 30, 1991. On November 20, 1991, Petitioner challenged the denial leading to the formal hearing held pursuant to Section 120.57(1), Florida Statutes. The statement of denial was amended on December 23, 1991. The reasons in the amendment are associated with Petitioner's criminal law history. The amended statement of denial frames the dispute. Petitioner was charged in the case of United States of America v. Hugh Mattingly Padgett, Jr., No. 63-230-CR-J, in the United States District Court for the Middle District of Florida, Jacksonville Division, with having in his possession and custody, and under his control, a still and distilling apparatus set up, which had not been registered as required by law, in violation of Title 26 U.S.C., Section 5601(a)(1). He was convicted in that case upon a plea of guilty and fined $500. He was given a nineteen month sentence with was suspended upon service of probation for three years under supervision. The judgement and order of probation was entered on January 31, 1964. The probation was terminated after two years of service. That action by the Court shortening the probationary period was by order drawn on January 17, 1966. On May 8, 1981, in Hunterton County, New Jersey, Petitioner was convicted of distributing a controlled substance, methaqualone; possession of that controlled substance; possession of that controlled substance with intent to distribute and conspiracy to distribute that controlled substance. For this conviction he received a prison term totalling ten years and a $45,000 fine. Petitioner served the prison sentence in New Jersey. There was a Florida criminal law case which was basically the factual counterpart to the New Jersey prosecution. That case was State of Florida v. Hugh M. Padgett, Jr., No. CF880-2813A2-XX, in the Circuit Court, Tenth Judicial Circuit, in and for Polk County, Florida. On June 27, 1989, Petitioner plead guilty to the Florida case. That plea pertained to a violation of the Florida Racketeering Influence and Corrupt Organization Act, Section 943.462(3), Florida Statutes, and trafficking in methaqualone more than five kilograms but less than 25 kilograms, a lesser included offense, Section 893.135(1)(e)3, Florida Statutes. Part of the sentence which Petitioner was given in the Florida case involving the controlled substance methaqualone was a five year mandatory minimum sentence pursuant to Section 893.135(1), Florida Statutes. For entering his plea the court sentenced the Petitioner to a period of eight years concurrent time with 192 days credit for jail time served. Later by order of February 14, 1990, in connection with the case, Petitioner was given credit for 894 days of jail time served, reflecting credit for time spent in New Jersey awaiting return to Florida. The two cases involving controlled substances stem from activities by the Petitioner in 1980 in both Florida and New Jersey. Concerning the 1964 Federal conviction, Petitioner acknowledges that he knew of the operations of what he referred to as a "moonshine still" but denies that he received any money from that operation beyond rent money from the person to whom he had rented a house and upon which property the still had been found.
Recommendation Based upon a consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which denies the application for a Class "C" Private Investigator License. DONE and ENTERED this 21st day of April, 1992, 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 21st day of April, 1992. Copies furnished: Ronald L. Jones, Esquire Jones and Koch 1200 East Lafayette Street, Suite 108 Tallahassee, FL 32301 Henri C. Cawthon, Esquire Department of State Division of Licensing The Capitol, MS #4 Tallahassee, FL 32399-0250 Honorable Jim Smith Secretary, Department of State The Capitol, MS #4 Tallahassee, FL 32399-0250
Findings Of Fact Bennie M. O'Kelley submitted an application to the Division of Licensing, Department of State, for licensure as a Class F, Unarmed Guard. O'Kelley indicated on his application that he had never been arrested, although he had been arrested some 15 times, the last time having been for assault and battery in 1969. In 1969, O'Kelley served 90 days in the Dade County Stockade for assault and battery. O'Kelley introduced evidence that he had been licensed by the Department of State earlier as an Unarmed Guard and stated that he had revealed his misdemeanor arrests on that application. O'Kelley stated that he knew that he could not be licensed if he had been arrested for a felony and assumed that misdemeanors were not disqualifying, and that therefore he did not have to report his misdemeanor conviction and arrests on his application.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and considering the fact that O'Kelley has had a clean record for the past ten years, the Hearing Officer would recommend that his application for a Class F, Unarmed Guard, license be granted; however, because of O'Kelley's admitted history of being arrested for fighting, the Hearing Officer recommends that favorable consideration not be given to O'Kelley's application for a Class G, Armed Guard, license. DONE and ORDERED this 19th day of February, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Gerald Curington Division of Licensing The Capitol Tallahassee, Florida 32304 Bennie M. O'Kelley 4711 SW 38th Street Hollywood, Florida 33023
Findings Of Fact On April 19, 1985, an Order Withholding Adjudication Of Guilt and Placing Defendant on Probation was entered in the Circuit Court for Palm Beach County in Case Number 84-5138CFA02, State of Florida vs. Zedekiah Clayton (hereinafter referred to as the "Felony Order".) The Petitioner was the defendant in that criminal case. According to the Felony Order, Petitioner entered a plea of guilty to aggravated battery without a firearm, a third degree felony. Adjudication of guilt was withheld and Petitioner was placed on three years probation and ordered to pay restitution and court costs. Petitioner contends that he did not plead guilty as reflected in the Felony Order, but, instead, entered a plea of nolo contendere. His contention is supported by the Commitment Form which accompanied the Felony Order. This Commitment Form includes the handwritten notations of the deputy clerk who was apparently present at the time the plea was entered. According to this Form, the Petitioner entered a plea of nolo contendere. While the Commitment Form and Felony Order are in conflict, Petitioner's testimony is credited and it is found that he entered a plea of nolo contendere rather than guilty. On May 22, 1986, Petitioner entered a plea of guilty to a misdemeanor battery count in Palm Beach County Circuit Court Case Number 86-4501CFA02, State of Florida vs. Zedekiah Clayton (the "1986 case"). The initial charge in this case was false imprisonment as reflected on the arrest record dated May 4, 1986. However, the charge was reduced to a misdemeanor battery count. Petitioner was adjudicated guilty and ordered to pay a fine of $125.00. The court specifically directed that Petitioner's probation from the earlier Felony Order should not be violated as a result of this charge. On December 19, 1989, Petitioner filed an application with Respondent for a Class "D" security guard license and a Class "G" statewide gun permit. Section 13 of the application requires the applicant to list any and all arrests and informs the applicant that falsification of the answer "... may be grounds for denial of your license." In response to this question, Petitioner listed the arrest which led to the entry of the Felony Order. However, Petitioner did not list his arrest in the 1986 Case under this section of the application. Petitioner contends that he did not know that he was ever formally placed under arrest in the 1986 Case because he voluntarily accompanied the police officer to the station. He also stated that his attorney advised him that he did not have to disclose the incident because it was a misdemeanor. However, the application form refers to all arrests, not just felony arrests. Petitioner clearly understood that he had to appear in court and he also paid the $125.00 fine assessed against him in that case. There is no acceptable excuse for Petitioner's failure to disclose the 1986 case on his application form.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent enter a Final Order denying Petitioner's application for a Class "D" security guard license and a Class "G" gun permit. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 15th day of June, 1990. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 1990. APPENDIX Case Number 90-1409S Both parties have submitted Proposed Recommended Orders. To the extent tht the proposed findings of fact can be isolated, they are addressed below. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. 1-5. Incorporated in the preliminary statement. Subordinate to Findings of Fact 4 and 5. Rejected as constituting legal argument. The subject matter of this proposal is covered in part in Findings of Fact 2 and 3. Rejected as not supported by competent, substantial evidence. Rejected as constituting legal argument. Rejected as constituting a conclusion rather than a proposed Finding of Fact. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 3. Incorporated in the preliminary statement and adopted in part in Finding of Fact 4. Incorporated in the preliminary statement. Adopted in part in Finding of Fact 5. COPIES FURNISHED: James K. Green, Esquire 250 Australian Avenue Suite 1300 West Palm Beach, Florida 33401 Henri C. Cawthon, Esquire Department of State Division of Licensing The Capitol (MS #4) Tallahassee, Florida 32399-0250 Honorable Jim Smith Secretary of State Department of State The Capitol Tallahassee, Florida 32399-0250 Ken Rouse General Counsel Department of State The Capitol Tallahassee, Florida 32399-0250
The Issue Whether the Petitioner’s request for an exemption pursuant to Chapter 435, Florida Statutes, should be granted.
Findings Of Fact Mr. Saunders seeks an exemption for employment in a position for which a security background check is required pursuant to Sections 397.451 and 435.04, Florida Statutes. Presently, Mr. Saunders is employed as an intern human service worker at Reliance House, an adult residential facility located in Panama City, Bay County, Florida. In addition to working at Reliance House, Mr. Saunders is enrolled at Gulf Coast Community College working toward a degree as a Certified Addition Associate Professional. Mr. Saunders sought this exemption so that he could work with children receiving substance abuse services. In 1990, Mr. Saunders was charged with and plead nolo contendere to the charges of burglary, possession of burglary tools, and carrying a concealed weapon. Mr. Saunders was placed on two years' probation. In 1991, Mr. Saunders pled guilty to the charges of burglary of a structure, attempted burglary of a structure, grand theft, criminal mischief, and burglary of a business. In 1992, Mr. Saunders was charged with burglary of a liquor store. Mr. Saunders testified that the burglary charge was reduced to a charge of criminal trespass and that he remained under court supervised probation until October, 1996. Mr. Saunders expressed remorse for his criminal behavior and accepted complete responsibility. He also believes that he shares some of the same problems that are exhibited by the residents of Reliance House and that he would be a good role model because he is attempting to correct his life. Christiane LeClair is a background screening coordinator employed by the Department of Children and Families. As part of her duties, Ms. LeClair reviews employment applications to determine if an applicant is worthy of a position of special trust. Ms. LeClair determined that Mr. Saunders was not qualified because of his conviction of grand theft. She also noted that Mr. Saunders has been released from supervision of the courts for only three months and that it is too early to determine if he has been rehabilitated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order and therein DENY Mr. Saunders’ request for an exemption.DONE and ENTERED this 12th day of March, 1997, at Tallahassee, Florida. WILLIAM A. BUZZETT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1997.
The Issue Can the Board of Real Estate consider matters surrounding the offense to which a person pleads guilty in determining whether that person possesses the necessary character to be licensee? What is the evidentiary effect of a plea of guilty by an applicant for licensure? Is the Petitioner qualified for licensure?
Findings Of Fact Petitioner Edward J. Gibney made application to The Board of Real Estate for licensure as a real estate salesman. The Board denied Petitioner's application pursuant to Section 475.25(1)(f), Florida Statutes, because he was convicted of crimes against the laws of the United States and against the laws of the State of New Jersey involving moral turpitude. Petitioner pleaded guilty to the crimes of conspiring to commit fraud on medicaid and medicare claims, a felony under the laws of the United States. He also pleaded guilty to a similar offense which was a felony under the laws of New Jersey. Both offenses arose out of the same factual situation. The sole grounds for denial of Petitioner's application were his criminal convictions and the matters surrounding them. The Petitioner is otherwise qualified for licensure. After initial notification of the Boards intention to deny his application, the Petitioner requested and received an informal hearing before the Board. The Board notified Petitioner that it still intended to deny his application, and the Petitioner requested and was granted a formal hearing. The transcript of the Board's informal hearing was received as Petitioner's Composite Exhibit #1. Petitioner was the only witness at the hearing. He explained very candidly the facts surrounding his entry of guilty pleas to the criminal charges brought against him. His testimony was uncontroverted and is accepted as true. Petitioner, a graduate chemist, was qualified and licensed as a medical laboratory director in New Jersey. For 15 years prior to 1975, he owned and operated a small medical laboratory directly providing clinical laboratory services to private physicians. In 1975, Petitioner was approached several times over a period of three months by Seymour Slaughtnick to provide laboratory services to several doctors for medicaid/medicare patients. Slaughtnick was functioning as an intermediary. Slaughtnick picked up test samples at the doctors' offices and transported them to another laboratory. Slaughtnick wanted to change laboratories because of the poor quality laboratory work. Although Slaughtnick's function was described, Slaughtnick's relationship with the other laboratory or the doctors was never defined. Petitioner described Slaughtnick as a salesman. Petitioner initially refused the Slaughtnick offer because he had not done medicare/medicaid work and did not know how to process the paperwork. Slaughtnick continued to press Petitioner for a commitment to do this work and offered to prepare and submit all the paperwork for Petitioner. Slaughtnick and petitioner eventually agreed to an arrangement under which Slaughtnick picked up the samples, brought them to Petitioner's laboratory, transmitted the test results back to the physicians, and prepared Petitioner's billings to medicare/medicaid for the professional services rendered. Petitioner performed all the laboratory work as ordered by the physicians and prepared all test results, paying Slaughtnick a percentage of the fee for each test for his services. Petitioner was aware that his arrangement with Slaughtnick and permitting Slaughtnick to bill in his name was illegal under New Jersey law. To assure himself that Slaughtnick's billings were in order, Petitioner checked on Slaughtnick's billings after they began to work together. The State of new Jersey's medicaid/medicare plan was administered by Prudential Insurance Company using a blind fee schedule. Petitioner was advised by Prudential that his schedule initially provided various fees for various laboratory tests, but laboratories would not be advised of the amounts of payment or criteria used for assessing the appropriateness of ordering the tests. He was advised Prudential would reject any billings that were inappropriate. In 1976, the State of New Jersey began an investigation of its entire medicare/medicaid system. Initially, the inquiry with Petitioner's laboratory centered on whether he was performing the work ordered. It was determined that Petitioner performed all the work for which he billed the state. This investigation gave rise to an administrative complaint against Petitioner that charged him with overbilling. An administrative hearing was conducted which lasted eight months, during which 55 days of testimony were taken. The New Jersey hearing officer eventually that 50 percent of the orders and billings were correct; however, before the administrative order was entered, the Petitioner was indicated by the state of New Jersey and the United States for conspiracy to defraud under medicaid/medicare. The indictment alleged that Petitioner, Slaughtnick and other unnamed co-conspirators had conspired to defraud medicaid and medicare. The indictment was not introduced at this hearing; however, the Petitioner explained it alleged that the conspirators arranged to order more complex tests than were necessary, performed these tests, and then billed the state for the inflated service. Petitioner denied any knowledge of such a scheme to inflate test orders, however Petitioner did admit that his permitting Slaughtnick to prepare bills to medicaid and medicare in the laboratory's name was not authorized under the New Jersey law. Petitioner also denied knowledge of any kickbacks paid by Slaughtnick to any of the physicians or those in their employment. However, Petitioner stated he had no doubt after the fact that Slaughtnick was engaged in such a practice. Since his release from probation slightly more than 18 months ago, Petitioner has studied real estate and attempted to recover from the strain of the loss of his business, the long hearing, and his conviction and sentencing. The facts upon which this case are based occurred in 1975-76. Petitioner was sentenced in 1977, and has been released from confinement and probation since January, 1980. There is no evidence that petitioner has engaged in any conduct that would reflect adversely on his character since he terminated his laboratory work for medicaid/medicare in 1976.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that Petitioner Edward J. Gibney be denied licensure upon the specific ground that under Section 475.17(1), Florida Statutes, he failed to present sufficient evidence of his reputation in the community to assure the Board of Real Estate that the interest of the public and investors would not be endangered unduly. DONE and ORDERED this 14th day of October, 1981, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 14th day of October, 1981. COPIES FURNISHED: Larry H. Spalding, Esquire 6360 South Tamiami Trail Sarasota, Florida 33581 Jeffrey A. Miller, Esquire Department of Legal Affairs Administrative Law Section The Capitol, 16th Floor Tallahassee, Florida 32301 Carlos B. Stafford, Executive Director Board of Real Estate 400 West Robinson Street PO Box 1900 Orlando, Florida 32802
The Issue An administrative complaint dated October 23, 1997, alleges that Respondent violated Section 475.25(1)(m), Florida Statutes, when he falsely indicated on his licensure application that he had never been convicted of a crime nor pled guilty or nolo contendere. The issue for disposition in this proceeding is whether the violation occurred, and if so, what discipline is appropriate.
Findings Of Fact Respondent, Ibrahim Z. Gonzalez, is, and has been at all relevant times, a licensed Florida real estate broker-salesperson, having been issued license no. 3003291 in accordance with Chapter 475, Florida Statutes. On February 17, 1984, in San Diego, California, Respondent pled guilty to one count of sexual battery- a felony, and was jailed, fined, and placed on probation. Respondent's court-appointed attorney told him the conviction would only affect him if he sought employment with the federal government or law enforcement. On August 3, 1989, after a plea of guilty, Respondent was convicted in the U. S. District Court for the Southern District of New York of making false statements on a government application. Specifically, in 1985, Respondent withheld disclosure of the 1984 California conviction described above when he applied for employment with the U. S. Postal Service. For the federal conviction, he was placed on probation and fined $1,000. By 1989, Respondent had obtained a real estate license in New York. His court-appointed lawyer advised him to "stick to real estate" because, as the California lawyer told him, he would never be able to work for the federal government or in law enforcement. In May 1995, Respondent applied for licensure as a real estate broker in Florida. On the application form he answered "no" to this question: 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, you are responsible for verifying the expungement or sealing prior to answering "NO." If you answered "YES", attach the details 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 affidavit that Respondent executed at the end of the application form states: The above named, and undersigned, applicant for licensure as real estate broker 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. Respondent contends that he did not disclose his prior convictions when he applied to practice real estate in New York and Pennsylvania and he remains licensed in those states. He claims that because real estate has nothing to do with law enforcement or federal employment, he did not have to reveal the convictions on his application. Respondent has practiced his real estate profession in Florida for 3 years without any disciplinary incidents.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Florida Real Estate Commission enter its final order finding Ibrahim Z. Gonzalez guilty of violating Section 475.25(1)(m), Florida Statutes, and revoking his Florida real estate brokers' license. DONE AND ENTERED this 9th day of July, 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 9th day of July, 1998. COPIES FURNISHED: Ghunise Coaxum, Esquire Department of Business and Professional Regulation Legal Section, Suite N 308 Zora Neale Hurston Building North Tower 400 West Robinson Street Orlando, Florida 32801-1771 Francisco Colon, Jr. 341 North Maitland Avenue Suite 360 Maitland, Florida 32751 Henry M. Solares, 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 Goodgame General Counsel Department of Business and Professional Regulation Northwood Center 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Is Petitioner entitled to exemption from disqualification by law with regard to working in a position of special trust and responsibility related to children, disabled adults, and elderly persons?
Findings Of Fact Petitioner is disqualified from working in a position of special trust because of a 1980 conviction of Grand Theft and Aggravated Assault; a 1981 Grand Larceny conviction; a 1986 Stolen Property conviction; a 1989 possession of cocaine charge; and a 1991 Grand Larceny conviction. Petitioner's testimony was direct, candid, and creditable. She previously engaged in a life-style that is no longer compatible with her present involvement with church and community. A 1976 diagnosis of lupus and subsequent marital problems led to her depression and her prior illicit activities. She has since reformed and is a credit to the community. Her testimony was well corroborated by the testimony of seven other witnesses. As established by clear and convincing evidence at the final hearing, Petitioner is rehabilitated and unlikely again to engage in criminal conduct or present a threat to children, disabled adults, or elderly persons, if employed in a position of special trust. The various criminal offenses for which Petitioner has been convicted, were all committed more than three years prior to her disqualification notice from Respondent for which Petitioner now seeks exemption. Section 435.07, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered granting Petitioner's request for exemption from disqualification to work with children in positions of special trust. DONE AND ENTERED this 30th day of November, 1999, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 30th day of November, 1999. COPIES FURNISHED: Carolyn Grimes 626 St. Clair Street Jacksonville, Florida 32254 Roger L. D. Williams, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083 Samuel C. Chavers, Acting Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 33299-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 33299-0700
Findings Of Fact Petitioner's application for licensure as a real estate salesman reveals that he was born in Miami, Florida, in 1960. In 1979 Petitioner asked a friend to take him to a department store so he could do some shopping. While Petitioner was inside the store shopping, his friend was stealing hub caps in the parking lot until he was caught by the police who arrested both Petitioner and his friend. Petitioner was charged with grand larceny from a building and possession of a barbiturate (methaqualone), but the charges were dropped. In 1981 Petitioner borrowed a car from an acquaintance in order to go out on a date. While Petitioner was driving the car, he was stopped for a traffic violation at which time it was discovered that the borrowed car was a rental car which had been stolen. Although Petitioner was arrested for vehicular theft of an automobile, that charge was dismissed. In 1984 while Petitioner was attempting to locate the home of a friend, he stopped at a house which turned out to. be on the wrong street. As he was returning from the front door of the house to his car, he was stopped by the police. Since the home was located in a neighborhood subject to burglaries and Petitioner did not live in that neighborhood, he was arrested and charged with trespassing and with loitering and prowling. Pursuant to the advice of his public defender, Petitioner plead to one of those charges adjudication was withheld on that charge and the other charge was dropped. Petitioner was not placed on probation and no fine was imposed on him although he believes that he paid court costs. Petitioner disclosed all of the above-described arrests to Respondent in his application for licensure although the application seeks information regarding convictions and not arrests where no conviction or adjudication ever occurs. For the past five years Petitioner has been employed by United Cerebral Palsy. His duties include vehicle maintenance, building maintenance, and lawn maintenance for two group homes. He receives weekly advances from his employer for purchasing supplies. Petitioner has been married for approximately one year.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered approving Petitioner's application for licensure as a real estate salesman, subject to the successful completion of any required examination. DONE and RECOMMENDED this 19th day of November, 1985, at Tallahassee, Florida. LINDA M. RIGOT, 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 19th day of November, 1985. COPIES FURNISHED: Bernard Stefon Gonzalez Post Office Box 610104 North Miami, FL 33261 Ralph Armstead, Esquire Department of Legal Affairs 400 West Robinson Street Orlando, FL 32801 Harold Huff, Executive Director Division of Real Estate 400 West Robinson Street Orlando, FL 32801| Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301
Findings Of Fact In 1932, Respondent was driving one of three cars involved in an automobile accident in Ohio. Respondent was approximately 18 years old. Two females in one of the automobiles not driven by Respondent died in the accident. They were Ms. Clara Shaw and Ms. Betty Montgomery. In January, 1933, Respondent was indicted for manslaughter of Ms. Montgomery. 2/ Respondent was also indicted for "failure to stop in case of an automobile accident" ("failure to stop"). Manslaughter was a felony in Ohio in 1933. Failure to stop was not a felony. 3/ Respondent initially pled not guilty to both manslaughter and failure to stop. Pursuant to a plea bargain between Respondent's attorney and the state attorney, Respondent subsequently changed his plea and entered a plea of guilty to both manslaughter and failure to stop. In exchange for Respondent entering a guilty plea, Respondent was sentenced to six months in the county jail and placed on probation for one year. Respondent served only 37 days of his sentence. The balance of his sentence and the imposition of court costs was suspended during the court's April term. Respondent successfully completed his probation. Respondent was not found guilty of manslaughter in Ohio in 1933. There is no adjudication of guilt in the court file for either manslaughter or failure to stop. Only a certificate of sentence appears in the court file. A certificate of sentence was entered only for failure to stop. No certificate of sentence was entered for manslaughter. In 1933, Section 12404 of the Ohio General Code required a person who was found guilty of manslaughter to be: . . . imprisoned in the penitentiary not less than one year nor more than twenty years. The court had no authority to find Respondent guilty of manslaughter and then either impose a sentence of less than one year or allow Respondent to serve out that sentence anywhere except the state penitentiary. 4/ The court sentenced Respondent to six months in the county jail. Respondent served only 37 days of his six month sentence. None of those days were served in the state penitentiary. Respondent remained in Ohio until he moved to Florida in 1940 or 1941. The state of Ohio never prevented Respondent from exercising his civil rights. Once Respondent reached the age of 21, he voted in local, state, and national elections in Ohio. Respondent also voted in local, state, and national elections in Florida for 50 years. 5/ Respondent served in the U.S. military for 2 1/2 years after his criminal conviction in Ohio. Thereafter, Respondent was employed in the defense industry by North American Aviation and by Martin Marietta from 1951 through 1977. Respondent had a confidential security clearance at North American Aviation and a secret security clearance at Martin Marietta. 6/ Respond disclosed his Ohio criminal record during security checks required for both North American Aviation and Martin Marietta. Respondent has been licensed to carry a concealed weapon in Florida for approximately seven years. He is applying for the third renewal of that license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of being "found guilty" of a felony in another state, within the meaning of Section 790.23(1)(d), and granting Respondent's request for the license at issue in this proceeding. RECOMMENDED this 25th day of July, 1995, in Tallahassee, Florida. DANIEL MANRY 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 25th day of July, 1995.
The Issue The issue in this case is whether Petitioner's Petition for Relief should be dismissed pursuant to Section 120.57(1)(i), Florida Statutes.
Findings Of Fact Petitioner's First Case. In 1985, Petitioner filed an administrative complaint with the Florida Commission on Human Relations (hereinafter referred to as the "Commission") alleging that Respondent had discriminated against him on the basis of his race and his gender. In 1987, as a result of the 1985 complaint, a Recommended Order was entering recommending that the Commission enter a final order finding discrimination on the basis of race. The 1987 recommendation was ultimately adopted in a Final Order issued by the Commission in 1988. In January 1990, the First District Court of Appeal affirmed the Commission's decision. School Board of Leon County v. Weaver, 556 So. 2d 443 (Fla. 1st DCA 1990). As a result of the foregoing, Respondent hired Petitioner as a full-time social studies teacher for the 1990- 1991 school year. Petitioner's Second Case. At the end of the 1990-1991 school year, Respondent determined that Petitioner's contract would not be renewed. Petitioner subsequently filed a second complaint with the Commission alleging, among other things, retaliation. Petitioner simultaneously filed a complaint with the EEOC alleging violations of Title VII of the Civil Rights Act of 1964, as amended, and 42 U.S.C. ss 1981 and 1988. In March 1992, the Commission issued a No Cause Determination finding that Petitioner had not shown a prima facie violation of Chapter 760, Florida Statutes, and that Respondent had "articulated and substantiated" a legitimate nondiscriminatory reason for its decision not to renew Petitioner's contract. In October 1992, the EEOC issued a similar determination. In January 1993 Petitioner filed a Complaint in the Circuit Court of the Second Judicial Circuit, Leon County, Florida. This Complaint was designated Case No. 93-200 (hereinafter referred to as the "State Court Case"). The State Court Case was brought pursuant to Title VII of the Civil Rights Act of 1964, as amended, and 42 U.S.C. ss 1981 and 1988. In particular, Petitioner alleged that Respondent had discriminated against him when it failed to renew his teaching contract following the 1990-1991 school year and that it had subsequently discriminated against him by failing to hire him for positions for which he had applied between 1991 and the filing of the Complaint in the State Court Case. Petitioner alleged that the Respondent had discriminated against him on the basis of his race and gender. The State Court Case was initially assigned to Judge E. Steinmeyer, III. Judge Steinmeyer initially ruled that the trial would be limited to a consideration of whether Respondent discriminated against Petitioner between August 1990 and January 19, 1993. Judge Steinmeyer entered this order on or about September 27, 1996. The State Court Case was subsequently transferred to Judge Charles D. McClure. While hearing pre-trial motions, Judge McClure amended Judge Steinmeyer's ruling concerning the limit of the scope of the trial. Judge McClure ruled that Petitioner would also be allowed to introduce evidence concerning alleged discrimination by Respondent for the period beginning January 1993 and ending at the date of the trial of State Court Case. Although Judge McClure did not enter a written order to this effect, he did nonetheless enter a valid order of the court. Transcript of Pre-Trial Hearing of January 6, 1997, Page 28. The State Court Case was transferred five times before being assigned to Judge Terry P. Lewis. Judge Lewis issued a Pretrial Order on October 8, 1998, in which he explained some of the history of the case and reaffirmed Judge McClure's earlier order: Judge Charles McClure was next assigned to this case. In pretrial motions, the parties sought to revisit issues with him. He amended Judge Steinmeyer's Order and indicated the [Petitioner] would be allowed to introduce evidence of the failure to rehire subsequent to January of 1993, up to the date of trial. . . . . There is a value in consistency and, all things being equal, my preference is to abide by the prior rulings of the predecessor judges and to make my rulings as consistent as possible with theirs. . . . Pursuant to Judge Lewis's Pretrial Order, Petitioner was allowed to present evidence in the State Court Case concerning alleged discrimination by Respondent against Petitioner on the basis of his race and gender during the period 1990 through October 1998. The State Court Case trial commenced October 12, 1998, and ended in a jury verdict on or about October 15, 1998. The jury ruled in favor of Respondent on all counts, finding no retaliation and no discrimination on the basis of race or gender, and judgment was entered for Respondent. The judgment was subsequently affirmed per curiam. Weaver v. School Board of Leon County, 757 So. 2d 504 (Fla. 1st DCA 2000). Petitioner's Third Case. While the State Court Case was pending, Petitioner filed a complaint against Respondent in the United States District Court for the Northern District of Florida. The complaint was designated case number 4:97cv272-RH (hereinafter referred to as the "First Federal Court Case"). Petitioner alleged that Respondent, in refusing to hire him for 32 positions which he had applied for from 1994 to 1995, had discriminated against him on the basis of his race and gender. Summary Judgment was granted in March 1999 in the First Federal Court Case. In granting Summary Judgment, the court accepted two Reports and Recommendation issued by Magistrate William C. Sherrill, Jr. In one of those Reports Magistrate Sherrill concluded, among other things, that a non- discriminatory reason had been proven by Respondent for its refusal to hire Petitioner: that Petitioner's job performance during the 1990-1991 school year had been inadequate. The decision to grant Summary Judgment in the First Federal Court Case was affirmed on appeal by the United States Court of Appeals for the Eleventh Circuit in an unpublished opinion. Weaver v. School Board of Leon County, (Case No. 99- 11045, March 29, 2000). In its decision, the Eleventh Circuit stated: The district court correctly concluded that there were no genuine issues of material fact precluding summary judgment for the Board because Weaver failed to show that the Board's articulated reason for not hiring him was a pretext for race or gender discrimination. The Board stated that it did not hire Weaver during the 1994-1995 school year because of prior unsatisfactory and inadequate performance during the 1991- 1992 [sic] school year in which he was a full-time seventh grade Social Studies teacher at Leon County's Deerlake and Nims Schools. Weaver has wholly failed to bring forward sufficient evidence to demonstrate that these reasons for failing to hire him were a pretext for discrimination. See Grigsby v. Reynolds Metals Co., 821 F.2d 590, 597 (11th Cir. 1987). Petitioner's Fourth Case. In 2000, Petitioner filed a second complaint against Respondent in the United States District Court for the Northern District of Florida. The complaint was designated case number 4:00cv91-WS (hereinafter referred to as the "Second Federal Court Case"). Petitioner alleged that Respondent, in refusing to hire him for positions which he had applied from 1995 to 2000, had discriminated against him on the basis of his race, age, and gender, and in retaliation for previous filed complaints. Respondent moved to dismiss the complaint in the Second Federal Court Case arguing, among other things, that two previous cases, the State Court Case and the First Federal Court Case, had determined that Respondent had not discriminated against Petitioner in refusing to hire him after the 1990-1991 school year and, therefore, Petitioner should not be allowed to continually apply for jobs with Respondent and then file a suit if he is not hired. In a Report and Recommendation issued in the Second Federal Court Case, Magistrate Sherrill wrote: [Petitioner's] pleading demonstrates that there are no new facts, no significant changes, but simply that [Respondent] continues to refuse to hire [Petitioner]. This conduct was deemed nondiscriminatory in the prior litigation between the parties. Four courts have now held that [Respondent's] actions were lawful and, thus, the issue may not be raised again in subsequent actions. See Kremer, 456 U.S. at 467 n. 6, 102 S.Ct. at 1890, n. 6. Unless there are material and significant changes in the facts underlying the dispute between these two parties, [Petitioner] may not continue to bring discrimination claims against [Respondent] every time he is denied employment. Judge William Stafford adopted the Report and Recommendation and ordered that Petitioner was enjoined from filing any lawsuit in Federal court alleging discrimination against him by Respondent unless Petitioner pays attorney's fees of Respondent incurred in the Second Federal Court Case and attaches affidavits from persons other than Petitioner setting forth competent evidence of discrimination in any future complaint. Petitioner's Current Complaint and Request for Hearing; Petitioner's Fifth Case. Petitioner is an African-American male. On September 25, 1995, Petitioner filed a Charge of Discrimination (hereinafter referred to as the "FCHR Complaint") with the Commission. Petitioner alleged that Respondent had discriminated against him on the basis of race, gender, and retaliation. In particular, Petitioner alleged that Respondent had discriminated against him "[i]n February of 1991 and continuing through September 19, 1995 " Some of the allegations of the FCHR Complaint relate to alleged acts of discrimination which occurred more than 365 days before the FCHR Complaint was filed. By filing the FCHR Complaint on September 25, 1995, the allegations contained therein should have been limited to alleged acts of discrimination which occurred between September 26, 1994, and September 25, 1995. On November 24, 1999, more than three years after Petitioner filed the FCHR Complaint, the Commission issued a "Notice of Determination: No Jurisdiction," and a "Determination: No Jurisdiction." The Commission gave the following explanation, in relevant part, of why it had concluded it had no jurisdiction over the FCHR Complaint: In his Complaint of Discrimination, Complainant asserted that between February, 1991, and September, 1995, he was not considered by Respondent for teaching positions for which he made application. Counsel for Respondent argues that Complainant's charges must be dismissed as a matter of law. Counsel states, "[M]r. Weaver's claims of discrimination against the School Board of Leon County, including but not limited to the 1994- 95 school year, and continuing to October 1988 [sic] have been litigated in both state and federal courts in favor of the school board." Information provided to the Commission indicates that in January, 1993, Complainant filed a civil suit in the Circuit Court of the Second Judicial Circuit. Case number "93-200" was assigned to the case. The complaint states, inter alia, that following the 1990-91 school year, Complainant applied for positions with Respondent and was not considered. Judge McClure of the Second Judicial Circuit held that Complainant would be permitted to introduce evidence of Respondent's failure to rehire subsequent to January, 1993, up to the date of the trial. Case number 93-200 was litigated before a jury of the Second Judicial Circuit. A Verdict Form provided to the Commission and dated October 15, 1998, indicates that Complainant was not retaliated against and that Complainant was not discriminated against because of his race or sex in Respondent's 'decisions not to hire him (Complainant) following the 1990-91 school year.' Therefore, the Commission's jurisdiction over the Complaint of Discrimination was terminated as a result of the issues being litigated in the Second Judicial Circuit. Inasmuch as the Commission lacks jurisdiction over the Complaint, the Determination will not address the merits of the allegations of discrimination contained in the Complaint. On December 25, 1999, Petitioner filed a Petition for Relief with the Commission. The Petition for Relief was filed three years and three months after Petitioner filed the FCHR Complaint. In the Petition for Relief, Petitioner relates a long history between himself and Respondent. That history for purposes of this proceeding goes back to at least 1979 when Petitioner was employed as a substitute and temporary teacher by Respondent. Petitioner goes on to contend that Respondent has discriminated against him from at least 1985 through the date of the Petition for Relief. The relevant allegations which may be considered, however, are limited by the dates alleged in the FCHR Complaint, February 1991 to September 19, 1995, since those were the only dates the Commission had an opportunity to consider before referring the matter to the Division of Administrative Hearings. On February 1, 2000, the Commission filed the Petition for Relief with the Division of Administrative Hearings and requested that an administrative law judge be assigned to conduct all necessary proceedings. On February 4, 2000, Respondent filed Respondent's Motion to Dismiss Petitioner's Petition for Relief. Respondent argued that the Petition for Relief should be dismissed for two reasons: (a) the Petition for Relief is barred by the statute of limitations of Section 760.11, Florida Statutes; and (b) the allegations of the Petition for Relief are barred by the doctrine of res judicata. An Order on Motions was entered on June 20, 2000, disposing of numerous motions filed in this matter, and disposing of Respondent's Motion to Dismiss Petitioner's Petition for Relief as follows: Respondent has filed a Motion to Dismiss Petitioner's Petition for Relief in which two grounds have been raised for the dismissal of the Petition for Relief in this case. Petitioner has filed a response to the Motion. Both grounds for the dismissal of this case have merit. Therefore, a recommended order of dismissal will be entered in this case within thirty-five days of the entry of this Order: July 24, 2000. The parties will be given an opportunity to file proposed recommended orders within fifteen days of the date of this Order: July 5, 2000. On July 25, 2000, a Recommended Order of Dismissal was entered recommending that this case be dismissed. The Recommended Order recommended dismissal of: Those portions of the Petition for Relief dealing with events that occurred more than 365 days before Petitioner filed the FCHR Complaint; The entire Petition for Relief due to the failure to comply with Section 760.11, Florida Statutes; and 3. The entire Petition for Relief based upon the doctrine of res judicata. On November 1, 2001, an Order Remanding Petition for Relief from an Unlawful Employment Practice (hereinafter referred to as the "Order of Remand") was entered by the Commission. In entering the Order of Remand, the Commission rejected the second and third reasons for recommending that the Petition for Relief be dismissed and returned the matter to the Division of Administrative Hearings. The Commission failed to address the first reason. The Order of Remand was filed with the Division of Administrative Hearings on November 30, 2001. On December 24, 2001, Respondent filed Respondent's Second Motion to Dismiss Petitioner's Petition for Relief. At the time the Motion was filed, the Division of Administrative Hearings did not have jurisdiction over this matter, because the Order of Remand had not yet been accepted. The Order of Remand was subsequently accepted and the file of the Division of Administrative Hearings was reopened by an Order Reopening File entered on February 13, 2002. The Respondent's Second Motion to Dismiss Petitioner's Petition for Relief was filed more than 20 days after the Commission's Order of Remand was entered. It was filed, however, before jurisdiction over this matter was accepted by the Division of Administrative Hearings. The Second Motion to Dismiss was, therefore, filed within less than 20 days after the file in this case was reopened. A motion hearing was scheduled for July 23, 2002, to consider the Second Motion to Dismiss. During the hearing, Petitioner was asked on more than one occasion to explain any differences in the allegations of this matter and the State Court Case. Other than suggesting that this case involves allegations of gender discrimination and the State Court Case did not, a suggestion refuted by the jury verdict in the State Court Case, Petitioner was unable to state any difference. Indeed, the material allegations of this matter and the State Court Case, the First Federal Court Case, and the Second Court Case are no different. At the conclusion of the July 23, 2002, motion hearing, it was announced that Respondent's Second Motion to Dismiss Petitioner's Petition for Relief was granted, that a recommended order would be entered recommending dismissal of this matter, and that the parties could file proposed recommended orders within 20 days of the motion hearing. On August 14, 2002, an Order was entered memorializing the rulings entered at the July 23, 2002, motion hearing. Petitioner has alleged in three previous court proceedings that Respondent's failure to hire him since 1991, was based upon race and gender. In one of those cases the issue was tried before a jury, and it was determined that Respondent had articulated a reasonable reason for refusing to hire Respondent-his unsatisfactory and inadequate performance as a teacher during the 1990-1991 school year-and that Petitioner had failed to prove that the reason for Respondent's refusal was a pretext. Two subsequent cases recognized this verdict. Petitioner continues to disagree with those judicial determinations and is attempting for a fourth time to litigate the same issue. Should he fail here, no doubt he will continue to file future proceedings. There is, however, no new issue to be tried. The doctrine of collateral estoppel should be applied to dismiss this matter. This case involves the same Petitioner bringing the same action against the Respondent that has been fully litigated and determined through a final decision of a court of competent jurisdiction in the State Court Case, the First Federal Case, and the Second Federal Case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the complaint of discrimination filed in this case by James J. Weaver. DONE AND ENTERED this 21st day of August, 2002, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 August, 2002. COPIES FURNISHED: James J. Weaver 1424 Jake Street Tallahassee, Florida 32310 William R. Mabile, III, Esquire William D. Horgan, Esquire Fuller, Johnson & Farrell, P.A. 111 North Calhoun Street Post Office Box 1739 Tallahassee, Florida 32302-1739 C. Graham Carothers, Esquire Ausley & McMullen 227 South Calhoun Street Post Office Box 391 Tallahassee, Florida 32302 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
