Findings Of Fact Based upon the oral and documentary evidence adduced at the Final Hearing and the entire record in this proceeding, the following findings of fact are made: On March 3, 1994 Petitioner submitted to the Department an application for licensure as a Limited Surety Agent (Bail Bondsman). In a Denial Letter dated July 20, 1994, the Department notified Petitioner that his application for licensure was denied. The basis for the Department's denial of Petitioner's application was Petitioner's past felony convictions. The evidence established that on or about December 4, 1980, Petitioner was charged in the Circuit Court for the Twelfth Judicial Circuit of Florida, Case Number 80-105 (the "First State Case"), with trafficking in illegal drugs and the use of a firearm during the commission of a felony in violation of Sections 893.135 and 790.07, Florida Statutes. On June 5, 1981, Petitioner pled no contest in the First State Case to trafficking in excess of two thousand (2,000) pounds, but less than ten thousand (10,000) pounds of cannabis. Petitioner was fined and placed on probation for ten (10) years. On or about June 14, 1981, Petitioner was charged in the United States District Court, Southern District of Florida, Case Numbers 83-6033-CR-EPS and 83-6038-CR-NCR (the "Federal Cases"), with five felony counts of possession with intent to distribute illegal drugs and conspiracy to import illegal drugs into the United States of America, in violation of Title 21, Sections 841(a)(1), 846, 952(a), 960(a), 963, and 843(b), United States Code. On or about November 5, 1981, Petitioner was charged in the Circuit Court for the Twentieth Judicial Circuit of Florida, Case Number 81-1191 CFG (the "Second State Case") with violation of the Florida Racketeer Influence and Corrupt Organization Act ("RICO"), Section 943.462, Florida Statutes. Although the exact timing is not clear, at some point after his arrest, Petitioner began cooperating with authorities which led to plea bargains and a sentence which did not include any jail time. On April 4, 1984, Petitioner pled guilty to one count in each of the Federal Cases to attempt and conspiracy to import marijuana and methaqualaudes into the United States of America. As a result of his plea in the Federal Cases, Petitioner was fined and placed on 5 years probation. On April 6, 1984, Petitioner pled guilty in the Second State Case, was fined $7,500.00 and placed on probation for fifteen (15) years. This plea was negotiated as part of the plea in the Federal Cases. Petitioner's probation from the First State Case was terminated May 20, 1988. Petitioner's probation from the Federal Cases was terminated on April 21, 1989 and September 11, 1989. Petitioner's civil rights were restored pursuant to Executive Orders of the Office of Executive Clemency dated May 19, 1989 and May 23, 1990. It is not clear from the record if the Executive Orders constitute a "full pardon" as suggested by counsel for Petitioner at the hearing in this matter. Petitioner down plays his role in the elaborate criminal scheme that led to his arrests and convictions. He suggests that all of the charges were related to the same scheme. Insufficient evidence was presented to reach any conclusions regarding the underlying criminal activity and/or Petitioner's exact involvement. Petitioner has been very active in community affairs since his convictions. He has apparently been a good family man and claims to have rehabilitated himself. Subsequent to his conviction, Petitioner and three other investors started a bail bond business. Petitioner claims he did not play an active role in the business. However, when the Department learned of his involvement, it required Petitioner to terminate any affiliation with the company. Petitioner's wife currently owns a bail bond company. Petitioner operates a "court services" business out of the same building where his wife's bail bond business operates. No evidence was presented of any improper involvement by Petitioner in his wife's business.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Insurance and Treasurer enter a Final Order denying Petitioner's application for licensure as a Limited Surety Agent. DONE AND RECOMMENDED this 2nd day of August, 1995, in Tallahassee, Leon County, Florida. 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 2nd day of August, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4893 Rulings on the proposed findings of fact submitted by the Petitioner: Subordinate to findings of fact 4 through 10. Subordinate to findings of fact 13. Rejected as unnecessary. Adopted in substance in findings of fact 1. Adopted in substance in findings of fact 2. Adopted in the Preliminary Statement. Rejected as vague and unnecessary. Subordinate to findings of fact 14 and 15. Subordinate to findings of fact 14 and 15. Rulings on the proposed findings of fact submitted by the Respondent: Adopted in substance in findings of fact 1. Adopted in substance in findings of fact 2. Adopted in substance in findings of fact 2 through 10. Subordinate to findings of fact 14. Rejected as argumentative and unnecessary. COPIES FURNISHED: Bill Nelson State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-0300 Dan Sumner Acting General Counsel Department of Insurance The Capitol, PL-11 Tallahassee, FL 32399 Julio Gutierrez, Esq. 2225 Coral Way Miami, FL 33145 Allen R. Moayad, Esq. Florida Department of Insurance and Treasurer 612 Larson Building 200 E. Gaines Street Tallahassee, FL 32399-0300
The Issue The issue to be resolved in this proceeding concern whether, because of a prior regulatory and criminal history, the Petitioner is entitled to licensure in Florida as a nonresident life, health and variable annuity agent.
Findings Of Fact The Petitioner, Eugene P. Kent, at times pertinent hereto was a licensed insurance agent in South Dakota. He was apparently an agent or broker for the Independent Community Banker's Association of South Dakota and engaged in the insurance business with regard to the various group benefits coverage for that association. Apparently in 1995, he become involved in a dispute between the Independent Community Banker's Association of South Dakota and United of Omaha Life Insurance Company. This dispute, the exact nature of which is not of record in this case, resulted in the Petitioner being charged with mail fraud by the United States Attorney for the District of South Dakota. He was prosecuted for mail fraud and ultimately was convicted by jury verdict on or shortly after October 26, 1996. He was sentenced to two years' imprisonment. The Petitioner believed that evidence existed in the home office of United of Omaha Life Insurance Company, which would exonerate him, and that his counsel during the criminal prosecution had, for unknown reasons, failed to subpoena and obtain such evidence for use in his criminal trial. He obtained new counsel who was successful in obtaining the evidence in question, which indeed proved to be exculpatory. It resulted in the presiding judge in the criminal case vacating the order of conviction, resulting in the Petitioner's release from incarceration. Because of his conviction, the insurance departments of South Dakota, as well as North Dakota and Nebraska, had revoked his insurance licenses, based upon the criminal conviction. On October 26, 1996, during the progress of the criminal trial referenced above, the Petitioner and his wife became concerned that she would not have funds to pay for his counsel, to operate her home and the business and to pay for her son's alcohol rehabilitation expenses if the jury returned a guilty verdict resulting in his incarceration. Consequently, on that day, the Petitioner made a withdrawal from his business account, drawn upon the Kent Insurance, Inc., account in the amount of $9,900, by writing a check on that account. On the same day, the Petitioner went to a different branch of the same bank and negotiated a second check on this same account also made payable to him, again, in the amount of $9,900, drawn upon the Kent Insurance, Inc., business account. The bank officer upon the occasion of the second withdrawal that same day told him that a currency transaction report would have to be filed. The Petitioner readily agreed to file the report and assisted the bank officer in completing and executing the transaction report. Thereafter, the United States Attorney secured an indictment of the Petitioner, during his incarceration for the earlier criminal conviction, before it was vacated by the trial judge. He prosecuted the Petitioner for "attempting to cause a financial institution not to file a report." During the pendency of this second criminal proceeding, the Petitioner remained incarcerated from the earlier proceeding, which was later vacated. Because of this, his counsel in the second criminal proceeding advised him to plead guilty to the second charge in return for a light penalty, because his counsel believed that if he attempted to litigate the second criminal matter to trial, he would have difficulty convincing a jury of his innocence because he was already incarcerated on the earlier mail fraud charge. Consequently, on May 20, 1998, the Petitioner pled guilty to attempting to cause a financial institution not to file a report. He was sentenced to five months' imprisonment as a result of that plea, which ran concurrently with the sentence imposed on February 24, 1997, regarding the mail fraud charge. After release, he was sentenced to supervised release for a period of approximately two years. The preponderant evidence in this proceeding shows that the Petitioner did not attempt to defraud the federal government or to prevent the bank involved from filing the report. Upon being informed of the requirement of filing the report, he freely consented and helped execute the report form involved at his bank. The funds he withdrew with the two checks were his funds from an account over which he had ownership and signatory authority. There is no evidence that the funds in the account withdrawn by the Petitioner had been obtained through an criminal alleged enterprise or that the Petitioner contemplated using them for such a purpose. The post-conviction evidence that was obtained by the Petitioner and his counsel resulted in the judge vacating the first conviction for mail fraud. This new evidence was also the basis for the South Dakota Insurance Regulatory Agency reinstating his licensure. Ultimately, the other states which had revoked his licensure reinstated his licenses. The Petitioner is now similarly licensed in 17 or 18 states. He applied for licensure as a non-resident life, health, and variable annuity agent in Florida and that application was denied by the Department due to his criminal history and the prior administrative actions against his licensure in the other states. That denial resulted in this proceeding. The other states which have since either reinstated his licensure or licensed him did so with knowledge, as reported by the Petitioner, of his prior criminal and administrative proceedings. The Department has a rule listing various crimes (in Classes A, B, and C) such that, if a petitioner has been so convicted, then that petitioner cannot be licensed for periods of times stated in that rule. Class A crimes listed in that rule carry the longest period of time during which licensure is prohibited with a waiting period extending as much as 15 years. The Division of Licensing of the Department decided that the crime involved herein was a "Class A crime." The rule allows the Department to analogize the crime of which a petitioner or applicant has been convicted with one of the crimes listed in this rule if the crime, of which an applicant was convicted, is not itself listed in the rule. The Division of Licensing thus decided to classify the crime of "attempting to cause a financial institution not to file a report" as analogous to "defrauding the government" or "obstruction of justice." The Petitioner was not charged with either defrauding the government or obstruction of justice and was not convicted of those crimes. Although the stipulation of facts between the Petitioner and the United States Attorney, attendant to the Petitioner's plea in the second federal criminal case (Petitioner's Exhibit G), shows that the Petitioner knowingly attempted to avoid the reporting requirement imposed by Title 31 U.S.C. § 5313(a) on the bank for currency transactions of more than $10,000 in one day, there is no persuasive evidence that he did so for any illegal purpose or fraudulent intent, or intent to in any way "obstruct justice," or engage in dishonest conduct. There was no demonstrative harm to the public nor was there any "victim" of his purported crime. If the Petitioner had truly wanted to conceal the transaction or induce the bank to fail to report it, he could simply have presented the second $9,900 check on another day for cashing, or had his wife negotiate such a check on a different business day. Instead, when told by the bank employee, on presenting the second check, that a currency transaction report would have to be filed, he freely assented and assisted in the preparation of the report form; even the above-referenced stipulation of facts attendant to his criminal plea shows this. There was no requirement that a report be made until the second check was negotiated on the same day. The Petitioner's testimony in evidence, including the fact that 18 states have licensed him or re-instated his licensure since the criminal and administrative proceedings at issue herein, with knowledge of those proceedings, shows preponderantly that his crime did not "involve moral turpitude" and that he is fit and trustworthy for engagement in the practice of insurance. The crime to which he pled did not involve any significant, rational relationship or nexus to the two "analogized crimes" involving "obstruction of justice" or "defrauding the government" for purposes of the Department's rule cited below. Two affidavits, admitted as Petitioner's Exhibits J and K, as corroborative hearsay, in accordance with Section 120.57(1)(c), Florida Statutes, bear out this finding and are worthy of quotation. The first affidavit is that of attorney James L. Volling, the Petitioner's counsel for purposes of appeal and post-conviction challenge to his first conviction, and his counsel for purposes of the second criminal case. Mr. Volling practices in Minneapolis, Minnesota, and is admitted to practice by the Minnesota Supreme Court, as well as by the United States District Court for the District of Minnesota and for the District of North Dakota. He is also admitted to practice in the courts of appeal for the District of Columbia Circuit, the Eighth Circuit and the Fifth Circuit, as well as the United States Supreme Court. He testified in pertinent part as follows: Following Mr. Kent's conviction on two counts of mail fraud, I was retained to represent him for purposes of appeal and post-conviction challenge to the conviction as well as in connection with a second case brought against him. Upon reviewing the facts and the law in Mr. Kent's case, I became convinced that his conviction was defective and inappropriate. Ultimately, the trial court agreed and his petition for post-conviction relief was granted and his conviction and sentence were vacated. The government chose not to appeal that decision which I believe clearly would have been upheld by the United States Court of Appeals for the Eighth Circuit. During the pendency of post-conviction proceedings in Mr. Kent's case, the government brought a second case against Mr. Kent involving allegations of an attempt to avoid currency transaction reporting requirements. In my view, these allegations were petty at best, especially considering that the bank involved did file a currency transaction report and Mr. Kent expressly permitted them to do so. Mr. Kent was simply withdrawing his own money and there was no claim that those funds were the product of any illegal activity [or for any illegal purpose]. The government's second case was only technical in nature and, in my view, would not have been charged in any other jurisdiction with which I am familiar. Indeed, the assistant United States attorney representing the government told me that the only reason the government brought the second case was their concern that Mr. Kent's conviction in the first case would ultimately be overturned, which of course it was. With regard to the currency transaction reporting matter, Mr. Kent elected to enter a plea bargain to avoid further expense and burden, and which did not augment the punishment that had been given to him in the first case. I have no doubt that, if Mr. Kent, had not been convicted in the first case so that he would not have had that stigma at the time of the second case, he would have elected to try the currency transaction reporting case rather than to enter into a plea agreement. It was after that plea agreement, that the conviction and sentence in Mr. Kent's first case were vacated. I have known and dealt with Eugene Kent for approximately five years now. During that entire time, he has always been a man of his word. He has done exactly what he said he would do and has told me the truth in every respect. I have great respect and admiration for Mr. Kent as person and as a client. I believe he has suffered unfairly throughout this entire ordeal, but he has remained steadfast and persevered through some truly difficult times. I have been proud to serve as his legal counsel, and I would recommend him unhesitatingly to anyone in terms of employment or any business relationship. The second affidavit is by Mark F. Marshall. Mr. Marshall is now a lawyer and at times pertinent hereto has been admitted to the practice of law by the South Dakota Supreme Court. He has been in the active practice of law since 1981. At times pertinent hereto from January 1, 1996, until August 1, 2000, Mr. Marshall served as a United States Magistrate Judge for the District of South Dakota. Mr. Marshall testified pertinently as follows: From January 1, 1996 until August 1, 2000, I served as a United States Magistrate Judge for the District of South Dakota. In my capacity as a United States Magistrate Judge, I conducted the initial appearance and detention hearings in a matter styled the United States of America v. Eugene P. Kent, CR. 96-40002-01. Over the objection of the United States, I ordered Mr. Kent released on conditions. A copy of the Order Setting Conditions of Release, as well as Mr. Kent's Appearance Bond in the Amount of $100,000.00 is attached hereto as Exhibits A and B respectively. [released on a non-surety bond requiring no security.] In my capacity as a United States Magistrate Judge, I conducted a hearing on the Defendant's Motion to Dismiss in a matter styled the United States of America v. Eugene P. Kent, CR. 97-40111. [the currency transaction prosecution.] I denied the Defendant's Motion to Dismiss as I believed that an issue of fact existed as to the Defendant's intent. While I believed that it would be improper to dismiss the case because of that issue, I also know that if I had been the finder of fact I would have found the Defendant not guilty of all of charges in the indictment. Perhaps more so than any defendant who appeared before me, Mr. Kent comported himself with grace, dignity, and the utmost of integrity with regard to both criminal cases. Since being exonerated from all underlying criminal counts regarding this matter, Mr. Kent has asked me to submit an affidavit on his behalf. Initially, I was reluctant to do so not because Mr. Kent was unworthy of support, but because I was concerned about whether doing so would reflect adversely on my former judicial office. I have concluded that the interests of justice compel me to provide this affidavit on behalf of Mr. Kent. I am firmly of the belief that Mr. Kent committed no criminal acts in either of the cases venued in the United States District Court for the District of South Dakota and as such he should not bear the stigma of any criminal record. I have been a member of the South Dakota Board of Pardons and Paroles since July of 2002. During my tenure as a member of the Parole Board, I have reviewed hundreds of applications for pardons. I have reviewed all public filings in Mr. Kent's civil actions arising from his conviction as well as all filings in the criminal action itself. Based on my experiences as a Parole Board member, my knowledge of Mr. Kent individually and professionally, and as well as my knowledge of the role that pardons serve in the state and federal judicial system, I believe that Mr. Kent is an unusually worthy applicant for such extraordinary relief. It is my personal belief that Mr. Kent poses no threat to society whatsoever. Society's interests, as well as those of Mr. Kent, would be well served by granting him the relief he seeks . . . . Dated this 11th day of November, 2003.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that the Petitioner be granted licensure. DONE AND ENTERED this 3rd day of September, 2004, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 3rd day of September, 2004. COPIES FURNISHED: Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Pete Dunbar, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Ladasiah Jackson, Esquire Department of Financial Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Eugene P. Kent 1209 West 37th Street Sioux Falls, South Dakota 57105
The Issue At the commencement of the hearing, the parties stipulated that Petitioner had filed applications for Class "A" and Class "C" licenses and was qualified except for the failure to demonstrate good moral character. The bases for the dispute over Petitioner's character were: Petitioner's arrest record; Petitioner's alleged falsification of his applications as to his employment with the Pittsburgh Police Department; and Petitioner's check for the application fee was dishonored for insufficient funds.
Findings Of Fact The Petitioner duly filed applications with the Department of State, Division of Licensing for Class "A" and Class "C" licenses. Except for matters related to Petitioner's good moral character, Petitioner is qualified for licensure. Petitioner's application reflects that he answered the question whether he had been arrested affirmatively with the following comment: The Courts of the Commonwealth of Pennsylvania in all five cases from 1965 to 1974 - ruled that as a Police Officer, I acted within the scope of my authority - These cases stem from being an undercover Narcotics Officer. The Petitioner's arrest records as maintained by the Federal Bureau of Investigation reveal several juvenile offenses, not considered by the Department and not at issue. This record also reveals the following arrests of Petitioner as an adult: Date Place Charge Disposition 06/09/66* Pittsburgh VDD & CA Not guilty 08/15/66* Pittsburgh VUFA Not guilty 08/20/66* Allegheny County VDDCA 06/24/67* Allegheny County VUFA Unavailable per contra 06/30/70 *Only one offense with different charges made on different dates 09/05/74 Allegheny County Theft, VUFA Discharged 09/23/74 05/07/75 Allegheny County Fraud - imper- sonating a public servant 12/19/79 Office of Provost No charge No charge Martial Petitioner presented testimony and supporting documentary evidence that the arrests reported on the FBI criminal history for the dates 06/09/66 through 06/24/67 were all related to the same offense, and that these charges were resolved in favor of the Petitioner by a verdict of not guilty. See Petitioner's Exhibit #1. The judge arrested judgment of the two years' probation for the charge of 05/07/75. See Respondent's Exhibit #2. Petitioner stated that based upon his status as a capital police officer he was not guilty of fraud or impersonation of a public servant. The Petitioner's remaining arrest was on 09/05/74, and was discharged. Petitioner's explanation of these arrests is not consistent with the explanation stated on his application form. According to the resume accompanying his application, Petitioner was employed on the indicated dates in the following positions: Date Position 1963 to 1965 Globe Security 1965 to 1970 Pittsburgh Police Department, special patrolman 1970 to 1973 NAACP special investigator and Bucci Detective Agency 1972 to 1976 Commonwealth Property Police with State of Pennsylvania 1973 to 1974 Part-time security guard in addition to employment listed above May, 1976 January, 1977 Federal Civil Service guard March, 1977 September, 1977 Part-time security guard with A&S Security December, 1978 Sears, Roebuck and Company as to June, 1980 undercover security investigator February, 1979 Security guard to June, 1980 September, 1979 VA, guard at VA Hospital GS5 to June, 1980 June, 1980 Came to Florida Petitioner stated that his check for the application fee bounced because of his travel back and forth to Pennsylvania to try to develop the data to support his application, which depleted his bank account. He has since made the check good and paid the fees by money order.
Recommendation The Petitioner has failed to establish that he has the requisite good character for licensure; therefore, it is recommended that the Petitioner's applications for Class "A" and Class "C" licensure be denied. DONE and ORDERED this 19th day of April, 1982, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Mr. James Barnett 758 Woodville Road Milton, Florida 32570 James V. Antista, Esquire Assistant General Counsel Department of State Division of Licensing R. A. Gray Building, Room 106 Tallahassee, Florida 32301 STEPHEN F. DEAN, Hearing Officer 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 April, 1982. George Firestone, Secretary Department of State The Capitol Tallahassee, Florida 32301
The Issue The issue in this case is whether Petitioner has forfeited his rights and benefits under the Florida Retirement System pursuant to section 112.3173, Florida Statutes, when he pled guilty to conspiracy to commit honest services fraud in violation of title 18, United States Code, section 371.
Findings Of Fact The FRS is a public retirement system as defined by Florida law. The Florida Division of Retirement is charged with governing, managing, and administering the FRS on behalf of the Florida Department of Management Services. Newell was first elected to a four-year term as Palm Beach County Commissioner representing District 3 in 1992 and he was reelected in 1996, 2000, and 2004. By reason of his employment, Newell was enrolled in the FRS because the Palm Beach County Board of County Commissioners is a FRS-participating employer. On or about November 20, 1996; November 21, 2000; and November 17, 2004, Newell executed oaths of office and swore to uphold the Constitutions and Governments of the United States of America and State of Florida pursuant to article II, section 5(b), Constitution of Florida. On July 17, 2007, Newell notified then-Governor Charlie Crist by letter of his resignation from his position as County Commissioner effective the same day. The letter stated: As an elected official, I fully understand my fiduciary relationship to the public. I also understand how I breached that relationship. I take full responsibility for my conduct. It is my intention to cooperate with the Federal Government, and, in the coming weeks, I intend to plead guilty to a criminal offense. On or about July 23, 2007, Newell voluntarily signed a Statement of Uncontested Facts detailing his actions regarding his pending federal criminal prosecution. On or about August 9, 2007, after Newell was advised of the nature of the charge(s) and accusations of conspiracy against him, he waived, in open court, prosecution by indictment and consented to proceeding by information. That same day, Newell was charged, by Information, in the United States District Court, Southern District of Florida, in case number 9:07-cr-80212, with a single count, two-object conspiracy to commit offenses against the United States, in violation of 18 U.S.C. § 371. The first object charged Newell with conspiring to commit honest services fraud, in violation of 18 U.S.C. §§ 1341, 1343, and 1346. The second object charged Newell with conspiring to file a false federal income tax return for calendar year 2004, in violation of 26 U.S.C. § 7206(1). At all times relevant to the Information, Newell served as a Palm Beach County Commissioner. On or about September 11, 2007, pursuant to a written Plea Agreement, Newell pled guilty to the single count, two- object conspiracy alleged in the Information, wherein he agreed to the facts the government outlined as a basis for the charge against him for the plea of guilty. He was adjudicated guilty. The Information detailed the scheme and alleged in relevant part, the following: * * * Beginning as early as in or around January 2002 and continuing through in or around May 2006, defendant WARREN H. NEWELL, kept his personal motor vessel at PBYC [Palm Beach Yacht Center] at a 50% reduced dockage rate. From in or around January 2002 and continuing through in or around May 2006 defendant WARREN H. NEWELL paid only a very small portion of his expenses with PBYC, accumulating a debt of approximately $48,092. As early as in or around March 2004, defendant WARREN H. NEWELL publicly advocated for a bond resolution securing public funds to preserve waterfront access for the people of Palm Beach County. * * * In November 2004, the citizens voted for the issuance of the $50,000,000 bond to preserve their access to, and the preservation of, waterfront properties. The bond gave the discretion to the BCC to find suitable public and private investment on behalf of the citizens to achieve those goals. With regard to private investment, the bond required the passing of a real property interest to the public to make the bond award valid. Defendant WARREN H. NEWELL advocated on numerous occasions, both in public and to PREM [Property and Real Estate Management for Palm Beach County], for the PBYC to receive a substantial portion of the waterfront bond money to purchase partial development rights for the citizens of Palm Beach County. The purchase of development rights is not a recognized interest in real property. * * * 50. After PBYC received $14,000,000 in waterfront bond monies in or around March 2006, defendant WARREN H. NEWELL agreed with L.B.B. and K.D.S. to create a false and fraudulent SFRN [SFRN, Inc.] invoice to PBYC which was designed and intended to create an appearance that defendant NEWELL, paid his outstanding PBYC bill, however, in actuality he paid PBYC with monies generated from the fraudulent invoice and paid PBYC with PBYC’s monies. * * * 64. It was the object of the scheme to defraud to unjustly enrich defendant WARREN H. NEWELL and others by having defendant NEWELL use his public position to advance ventures and relationships in which he had concealed financial interest and to continue to conceal those financial interest and relationships. * * * Defendant WARREN H. NEWELL used his elected position to advocate the payment of $14 million of taxpayer monies to his business partner and benefactor, L.B.B. without disclosing his true financial relationship with L.B.B., and his significant financial debt to L.B.B. and the PBYC. After the PBYC and L.B.B. received $14 million from the BCC, in order to avoid the true appearance of a $40,000 kickback debt forgiveness for his motor vessel from the PBYC, defendant WARREN H. NEWELL used his financial relationship with K.D.S. and L.B.B. to cause the issuance of a bogus invoice to PBYC from SFRN. PBYC’s payment to SFRN on that fraudulent invoice was immediately disbursed by K.D.S. to defendant NEWELL as a “bonus,” and defendant NEWELL subsequently used most of that “bonus” to make a substantial payment on his PBYC debt. On or about November 20, 2007, the federal court adopted and amended Newell’s plea agreement to which the parties had agreed to the amended terms. Newell pled guilty and entered an amended plea agreement with the United States to the offense of conspiracy to commit honest services fraud in violation of 18 U.S.C. § 371. In the amended plea agreement, the United States dismissed the second object of the conspiracy relating to filing a false income tax return. On or about January 11, 2008, the United States District Court adjudicated Newell guilty and sentenced him to the United States Bureau of Prisons for 60 months imprisonment, two years of supervised release, and payment of a $100.00 special assessment. Newell also forfeited $135,000.00. In May 2009, the United States moved the court to reduce Defendant’s sentence based on substantial assistance he provided to the Government. As a result, Newell’s sentence of imprisonment was reduced and amended to a term of 36 months. Newell has completed his sentence and term of supervised release. Newell was notified by certified letter dated May 19, 2010, of the Division’s proposed action to forfeit his FRS rights and benefits pursuant to the Florida Constitution, article II, section 8(d), and sections 112.3173 and 121.091(5), Florida Statutes. The notice provided the following basis for the proposed action: as a result of your guilty plea in the United States District Court for the Southern District of Florida for acts committed in connection with your employment with the Palm Beach County Board of County Commissioners. Specifically, on or about July 23, 2007, in Case Number 9:07-cr-80121, you pled guilty to one count of conspiracy to commit honest services fraud, in violation of 18 U.S.C. § 371. On or about January 11, 2008, you were adjudicated guilty of this crime. By Petition dated June 4, 2010, Newell contested the notice and challenged the forfeiture. Newell is not retired from the FRS and is not receiving FRS retirement benefits.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement enter a final order finding that Petitioner pled guilty to a crime which requires forfeiture of his FRS rights and benefits pursuant to section 112.3173. DONE AND ENTERED this 28th day of March, 2014, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 28th day of March, 2014.
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
The Issue The central issue in this case is whether there is a disputed issue of material fact to be resolved by an administrative hearing.
Findings Of Fact On October 30, 1991, the Department of Professional Regulation, Division of Real Estate, issued an administrative complaint against Marilyn Mirus, the Petitioner herein. [Administrative complaint attached to motion to relinquish jurisdiction as Exhibit A, not disputed by Petitioner] The administrative complaint alleged three violations of Chapter 475, Florida Statutes: having been convicted or found guilty, regardless of adjudication, of a crime in violation of Section 475.25(1)(f), Florida Statutes; having been found guilty of a course of conduct which shows dishonesty in violation of Section 475.25(1)(o), Florida Statutes; and having failed to inform the FREC of having pled nolo contendere or having been convicted of a felony within thirty days of such conduct in violation of Section 475.25(1)(p), Florida Statutes. [Exhibit A to the motion, not disputed by Petitioner] The allegations arose as a result of a criminal case in Broward County, Florida (Case no. 91-4894CF) wherein the Petitioner was charged with 31 counts of grand theft. In connection with those charges, the Petitioner pled nolo contendere and received a five year probation. Additionally, the court withheld adjudication of guilt for all counts. [Exhibit A to the motion, not disputed by Petitioner] As an additional condition of the sentence, Petitioner was required to make restitution in the amount of $69,834.50 to the alleged victim. [Exhibit A to the motion, not disputed by Petitioner] To resolve the charges of the administrative complaint, Petitioner entered into a stipulation attached to the motion to relinquish jurisdiction as Exhibit B. [Not disputed by Petitioner] The stipulation provided, in pertinent part: Respondent [Petitioner herein] neither admits nor denies all the allegations of essential fact contained in the Administrative Complaint. Respondent admits that the allegations of fact contained in the Administrative Complaint, if true, support a finding of a violation of the Real Estate Practice Act. There is currently pending in the Florida Fourth District Court of Appeal an appeal (hereafter, "the Appeal") of the Order dated March 2, 1992 (hereafter, "the Order"), denying the Respondent's Motion to Vacate and Set Aside Plea in Case No. 91-4894, Division FM, in the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida. STIPULATED DISPOSITION * * * 8. The Respondent's license shall be suspended beginning on the filing date of the Final Order approving this Stipulation. Thereafter, the suspension shall remain in effect during the pendency of the Appeal. Immediately upon the conclusion of the Appeal, the Respondent's license shall be automatically and permanently revoked unless the Order is reversed as the direct and immediate result of the Appeal. In the event of such reversal, the suspension shall be lifted. * * * 13. The Respondent expressly waives all notice requirements and right to seek judicial review of or to otherwise challenge or contest the validity and enforcement of this Stipulation and resulting Final Order of the Commission adopting and incorporating this Stipulation. [Emphasis added.] A final order accepting the stipulation entered into by the parties was adopted on May 19, 1992. [Attached to the motion to relinquish jurisdiction as Exhibit C, not disputed by Petitioner] The District Court of Appeal rendered a decision on April 21, 1993, which denied Petitioner's request to set aside the nolo contendere plea. Her requests for a rehearing on that decision were also denied. [Attached to the motion to relinquish jurisdiction as Exhibits D and E, not disputed by Petitioner] Petitioner maintains [Response to order issued by Hearing Officer on November 29, 1995] she should be able to challenge the denial of licensure because of the following disputed matters: Did Petitioner commit the crimes of which she was accused, and to which she plead nolo contendere? The Courts have held that when there is a plea of nolo contendere filed, it raises the presumption that a crime had been [sic] convicted. However, the Courts have held that the Licensee has the opportunity to rebut this presumption and assert his or her innocence of the underlying criminal charges together with what the reasons and circumstances were to show why the plea of nolo contendere was raised. See Ayala v. Department of Professional Regulations, 478 So.2d 116 (1st DCA Fla. 1985) and Son v. Florida Department of Professional Regulation, Division of Real Estate, 608 So.2d 75 (3rd DCA Fla. 1992). Was the Petitioner advised as to what the effect of her plea of nolo contendere would have as the same relates to the revocation of her license by the Department of Business and Professional Regulations? What was the effect of revocation of one's Real Estate License on April 7, 1992, at the time the stipulation was entered into by Petitioner? Has the effect of a revocation on a license changed from April 7, 1992 [to] today, if so, was her (sic) advise proper to enter into the Stipulation had she known what the law was today as it relates to the law of 1992? (It wasn't until October 1, 1992 that revocation became permanent. Prior to that date the laws of Florida were silent as to the term of a revocation. Section 455.227(4) F.S. 1992.) Was the adjudication withheld and was the file sealed as it relates to the criminal charges which were the subject of the original complaint against Marilyn Mirus? Is the Petitioner now held accountable for a crime that under the Florida law for all intents and purposes she did not commit nor was she even charged with such a crime? Petitioner has not challenged the authenticity or accuracy of the documents attached to the motion to relinquish jurisdiction.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That Florida Real Estate Commission enter a final order dismissing the request for hearing filed by Petitioner. DONE AND ENTERED this 8th day of January, 1996, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH, 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 8th day of January, 1996. COPIES FURNISHED: Manuel E. Oliver Assistant Attorney General Suite 107 South Tower 400 West Robinson Street Orlando, Florida 32801 William J. Haley, Esquire BRANNON, BROWN, HALEY, ROBINSON & BULLOCK, P.A. 10 North Columbia Street Lake City, Florida 32056-1029 Henry Solares Division Director Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
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
Findings Of Fact On November 22, 1989, T. L. James & Company, Inc. was convicted of conspiracy to suppress and eliminate competition. This is a public entity crime. T. L. James executed a Public Entity Crimes Affidavit on July 24, 1994. On the affidavit T. L. James disclosed the conviction. Pursuant to Section 287.133, Florida Statutes, the Department of management Services (DMS) shall investigate public entity crimes to determine if the convicted company should be placed on the convicted vendors' list. After receiving the affidavit from T. L. James, DMS conducted an investigation and discovered mitigating factors as defined and listed in Section 287.133, Florida Statutes. These factors are: payment of fines and damages totalling $600,000, cooperation with the officials criminally investigating and prosecuting the case, cooperation with DMS' investigation, instituting safeguards in the bid estimation process to prevent further irregularities, and providing full and accurate notice. All other facts stipulated to by the parties pursuant to the Joint Stipulation previously filed in this case are hereby adopted and incorporated by reference.
