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.
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 Whether Petitioner has cause to terminate the Respondent's employment as alleged in the Administrative Complaint dated October 20, 1998.
Findings Of Fact On August 14, 1998, Respondent, a teacher employed by Petitioner, entered a plea of guilty to the charge of exploitation of an elderly person, which is a first degree felony pursuant to Section 825.103, Florida Statutes. At the same time, Respondent also entered a plea of guilty to the charge of petit theft over $100.00, which is a first degree misdemeanor. In entering these pleas, Respondent advised the court, pursuant to Rule 3.172(d), Florida Rules of Criminal Procedure, that she believed the pleas were in her best interest and that she was maintaining her innocence to the charges. The court withheld adjudication of guilt as to the charge of exploitation of an elderly person, adjudicated her guilty of petit theft, sentenced her to one day of time served, placed her on probation for 20 years, and required that she pay restitution to the Estate of Lillie Keller in the amount of $52,000.00. 1/ By letter dated October 21, 1997, Petitioner reassigned Respondent to a position with no direct contact with children pending the outcome of the criminal charges. Following an investigation, the superintendent of schools recommended to the school board that Respondent's employment be suspended without pay and terminated. On October 7, 1998, the school board voted to adopt that recommendation. The recommendation and the subsequent vote to adopt the recommendation were based on Respondent's plea of guilty to the charge of exploitation of an elderly person. Petitioner followed its procedural rules in investigating this matter and in voting to terminate Respondent's employment. As of October 7, 1998, Respondent held a professional services contract and had been employed by Petitioner for approximately 13 years as a teacher. Section 231.02(1), Florida Statutes, requires school board employees to be of good moral character. Respondent, as a teacher, is required by Section 231.02(2), Florida Statutes, to be fingerprinted and screened by the Florida Department of Law Enforcement. Section 435.03(2), Florida Statutes, provides, in pertinent part, as follows: (2) Any person for whom employment screening is required by statute must not have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense prohibited under any of the following provisions of the Florida Statutes or under any similar statute of another jurisdiction: * * * (v) Section 825.103, relating to exploitation of an elderly person or disabled adult, if the offense was a felony. Petitioner's Rule 3.12, pertaining to criminal background checks of current and prospective employees, has been duly enacted and provides, in pertinent part, as follows: Definitions: For the purposes of this policy: * * * b. "Conviction" means a determination of guilt that is the result of a plea or a trial regardless of whether adjudication is withheld. * * * 3. A prospective or current employee may be disqualified or may be terminated from continued employment if the prospective or current employee has been convicted of a crime classified as a felony or first degree misdemeanor directly related to the position of employment sought or convicted of a crime involving moral turpitude or any of the offenses enumerated in Chapter 435, Florida Statutes. Section M of the collective bargaining agreement between the Petitioner and the Palm Beach County Classroom Teachers' Association provides for progressive discipline of covered employees such as Respondent. Section M provides, in pertinent part, as follows: Without the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. * * * 7. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations, progressive discipline shall be administered as follows: Verbal Reprimand With a Written Notation. . . . Written Reprimand. . . . Suspension Without Pay. A suspension without pay may be issued to an employee when appropriate, in keeping with the provisions of this Section, including just cause and applicable law. ... Dismissal. An employee may be dismissed (employment contract terminated or non-renewed) when appropriate in keeping with provisions of this Section, including just cause and applicable law. Section 435.06(2), Florida Statutes, requires an employing agency, such as the Petitioner, to take the following action when an employee has failed to meet the requirements of Section 435.03(2), Florida Statutes: The employer must either terminate the employment of any of its personnel found to be in noncompliance with the minimum standards for good moral character contained in this section or place the employee in a position for which background screening is not required unless the employee is granted an exemption from disqualification pursuant to s. 435.07. 2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that terminates Respondent's employment based on the findings of fact and conclusions of law contained herein. DONE AND ENTERED this 20th day of August, 1999, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 1999.
The Issue The issue presented is whether Petitioner's application for licensure as a real estate sales associate should be granted.
Findings Of Fact Petitioner Martha L. Socarras is a Hispanic female born in 1970. In March 2006 Petitioner filed with the Department of Business and Professional Regulation, Division of Real Estate, an application for licensure as a real estate sales associate. On that application, she answered in the affirmative question numbered 1 in the Background Information portion of the application. That question asked if she had ever been convicted of a crime, found guilty, or entered a plea of guilty. In support of her application she submitted a certified copy of the Judgment in a Criminal Case entered by the United States District Court for the Southern District of Florida on December 8, 1999. That Judgment recites that Petitioner pled guilty to one count of conspiracy to file false claims against Health and Human Services, mail fraud, and paying kickbacks. Counts 2 through 27 were dismissed by the prosecution. Petitioner was sentenced to two years in prison followed by three years of supervised probation. The Judgment also recites that the actual monetary loss was $700,000 and assessed the total amount of restitution to be paid by Petitioner as $1,114,676.04. The Judgment then provides that the amount of restitution was reduced to partial restitution in the amount of $500,000 due to Petitioner's inability to pay the full amount. The Judgment further provides that restitution to the Palmetto Government Benefits Administration was to be paid through the federal court. Petitioner was released from the Federal Correctional Institution in Danbury, Connecticut, on January 4, 2002, but was detained by the United States Immigration & Naturalization Service. At the time of her release, she still owed $499,500 in restitution. In March 2002 an Immigration Judge granted Petitioner permanent resident status at the conclusion of the immigration removal proceeding. On January 3, 2005, Petitioner completed her probation and was discharged from supervision. Petitioner filed her application for licensure only a year later. Petitioner also provided to the Department of Business and Professional Regulation an unexecuted consent agreement between herself and the federal government providing that she would pay the $500,000 in restitution at the rate of $200 per month commencing February 1, 2005. Petitioner attributes her criminal conduct to ignorance of the Medicare laws. She was employed for three years by her brother's medical equipment business. Although Medicare performed several audits of that business during Petitioner's employment there, the last audit revealed that Petitioner and her brother were paying "commissions" to persons for referring patients to her brother's business. Petitioner asserts that she did not know that what they were doing was illegal. At the final hearing Petitioner testified that she had offered to the federal government property she owns which is sufficient in value to pay the required restitution but did not know if the federal government would accept her offer. The several letters of recommendation which Petitioner submitted to the Department are from persons who have known her as long as 18 years. None appear to know about her criminal conviction or to have noticed that she was missing for two years. One alleges the author has known Petitioner for five years, which must mean she met Petitioner while Petitioner was in prison. Similarly, the persons who testified on her behalf at the final hearing did not appear to know that she had a conviction or that she was in prison for two years. One witness testified she has known Petitioner for ten years and that she saw Petitioner three or four times a week. Another witness testified both that he has had no business dealings with Petitioner and that he transacts business with her. As evidence of rehabilitation, Petitioner offered evidence that she is a very religious person and active in ministry. However, that aspect of her life appears to have pre- existed her criminal conduct, existed during her criminal conduct, and continues to exist. It, therefore, fails to prove rehabilitation. Petitioner offered no evidence concerning her employment since her release from prison. Her witnesses offered vague testimony indicating she works in the title insurance industry, but no evidence was offered as to her role therein.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner's application for licensure as a real estate sales associate. DONE AND ENTERED this 13th day of November, 2006, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 13th of November, 2006. COPIES FURNISHED: Thomas Barnhart, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 Daniel Villazon, Esquire Daniel Villazon, P.A. 1020 Verona Street Kissimmee, Florida 34741 Michael E. Murphy, Director Division of Real Estate 400 West Robinson Street Suite 802, North Orlando, Florida 32801 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
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.
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 Respondent holds a Class "C" Private Investigator License, license number C86-00509. The Respondent has held that license at all times material to this proceeding. On July 4, 1994, the Respondent intentionally struck N.S. (a minor) with a flashlight. The striking of N.S. took place immediately after, and was in response to, N.S.'s act of kicking the Respondent while the Respondent was on a stairway landing and was in reasonable fear that his attacker (N.S.) might push him down the stairs. Under the circumstances, the Respondent's act of striking N.S. was a reasonable act of self-defense in the lawful protection of himself from physical harm.
Recommendation On the basis of all of the foregoing it is recommended that a Final Order be issued in this proceeding dismissing all charges against the Respondent. DONE AND ENTERED this 9th day of February, 1996 in Tallahassee, Leon County, Florida. 1550 _ MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399- (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5321 The following are the Hearing Officer's specific rulings on all proposed findings of fact submitted by all parties. Proposed findings submitted by Petitioner: Paragraph 1: Accepted. Paragraphs 2, 3, and 4: Rejected as irrelevant or as subordinate and unnecessary details. (For reasons discussed in the Conclusions of Law, the details regarding the criminal prosecution of the Respondent are not competent substantial evidence of the facts alleged in the Administrative Complaint.) Proposed findings submitted by Respondent: The Respondent's proposed recommended order does not contain any specific portion designated as "findings of fact." Rather, the Respondent has intertwined his proposed findings, his proposed conclusions, and his arguments throughout his proposal. It appears to be sufficient to note that the findings of fact in this recommended order are generally consistent with the substance of the Respondent's version of the facts. COPIES FURNISHED: Douglas D. Sunshine Assistant General Counsel Department of State, Division of Licensing The Capitol, Mail Station Number 4 Tallahassee, Florida 32399-0250 Mr. Stephen A. Shields 9441 Southwest 4th Street, Number 311 Miami, Florida 33174 Honorable Sandra B. Mortham Secretary of State The Capitol Tallahassee, Florida 32399-0250 Don Bell General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250
