Findings Of Fact In 1932, Respondent was driving one of three cars involved in an automobile accident in Ohio. Respondent was approximately 18 years old. Two females in one of the automobiles not driven by Respondent died in the accident. They were Ms. Clara Shaw and Ms. Betty Montgomery. In January, 1933, Respondent was indicted for manslaughter of Ms. Montgomery. 2/ Respondent was also indicted for "failure to stop in case of an automobile accident" ("failure to stop"). Manslaughter was a felony in Ohio in 1933. Failure to stop was not a felony. 3/ Respondent initially pled not guilty to both manslaughter and failure to stop. Pursuant to a plea bargain between Respondent's attorney and the state attorney, Respondent subsequently changed his plea and entered a plea of guilty to both manslaughter and failure to stop. In exchange for Respondent entering a guilty plea, Respondent was sentenced to six months in the county jail and placed on probation for one year. Respondent served only 37 days of his sentence. The balance of his sentence and the imposition of court costs was suspended during the court's April term. Respondent successfully completed his probation. Respondent was not found guilty of manslaughter in Ohio in 1933. There is no adjudication of guilt in the court file for either manslaughter or failure to stop. Only a certificate of sentence appears in the court file. A certificate of sentence was entered only for failure to stop. No certificate of sentence was entered for manslaughter. In 1933, Section 12404 of the Ohio General Code required a person who was found guilty of manslaughter to be: . . . imprisoned in the penitentiary not less than one year nor more than twenty years. The court had no authority to find Respondent guilty of manslaughter and then either impose a sentence of less than one year or allow Respondent to serve out that sentence anywhere except the state penitentiary. 4/ The court sentenced Respondent to six months in the county jail. Respondent served only 37 days of his six month sentence. None of those days were served in the state penitentiary. Respondent remained in Ohio until he moved to Florida in 1940 or 1941. The state of Ohio never prevented Respondent from exercising his civil rights. Once Respondent reached the age of 21, he voted in local, state, and national elections in Ohio. Respondent also voted in local, state, and national elections in Florida for 50 years. 5/ Respondent served in the U.S. military for 2 1/2 years after his criminal conviction in Ohio. Thereafter, Respondent was employed in the defense industry by North American Aviation and by Martin Marietta from 1951 through 1977. Respondent had a confidential security clearance at North American Aviation and a secret security clearance at Martin Marietta. 6/ Respond disclosed his Ohio criminal record during security checks required for both North American Aviation and Martin Marietta. Respondent has been licensed to carry a concealed weapon in Florida for approximately seven years. He is applying for the third renewal of that license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of being "found guilty" of a felony in another state, within the meaning of Section 790.23(1)(d), and granting Respondent's request for the license at issue in this proceeding. RECOMMENDED this 25th day of July, 1995, in Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 1995.
Findings Of Fact Before 1989, the Petitioner, Gregory Miller, was a community control counselor (in effect, a juvenile probation officer) working for HRS. After several years of satisfactory job performance, his employment was terminated for unsatisfactory job performance in 1989. The Petitioner believes his termination by HRS was unfair. On January 30, 1991, the Petitioner, Gregory Miller, pled nolo contendere to attempted arson in violation of Section Section 806.01, Fla. Stat. (1991). Adjudication was withheld, and the Petitioner was placed on probation for two years. The attempted arson charge arose at a time in October, 1990, when the Petitioner, who has a 20-year history of substance abuse and suffers from bipolar disorder and borderline personality disorder, decompensated under financial and other stress and attempted to burn his automobile in order to fraudulently obtain property and casualty insurance benefits. At the time of the arson attempt, his car was parked in the garage, and a tenant was residing in the garage apartment overhead. The tenant noticed the fire started by the Petitioner, put it out and reported it to the Petitioner. The Petitioner berated him for putting the fire out and told him to get his personal belongings out of the garage apartment and leave. While the tenant was in the garage apartment gathering his belongings, the Petitioner was attempting to restart the fire. The tenant had been a worker's compensation client of the Petitioner. The Petitioner continued to have mental and emotional and substance problems that led to additional criminal charges. On February 13, 1991, he was arrested and charged with battery of a law enforcement officer, a third degree felony. On October 3, 1991, the Petitioner pled guilty to the lesser included offense of resisting arrest without violence, a misdemeanor, and was sentenced to seven days time served in jail. On or about December 22, 1991, the Petitioner overdosed on a mixture of drugs and alcohol in a possible suicide attempt. When confronted with law enforcement officers, the Petitioner struck the officers and was arrested and charged with battery of a law enforcement officer, a third degree felony. The Petitioner was involuntarily committed under the Baker Act, and on September 21, 1992, he pled nolo contendere to simple battery, a first degree misdemeanor, and was sentenced to one day time served in jail and ordered to pay $200 in fine and court costs. As a result of his other criminal charges, the Petitioner was charged with violation of his probation on the attempted arson charge. On or about March 16, 1992, the Petitioner pled guilty to violation of probation. Adjudication on the violation of probation was withheld, but probation was revoked, and he was resentenced under the attempted arson charge to a year of community control, followed by a year of probation. On or about March 8, 1992, the Petitioner was charged with driving with his license suspended or revoked for failure to maintain required insurance coverage. Since 1992, the Petitioner has not been involved in any additional criminal activity or charges. On February 23, 1993, his community control was converted to probation. He moved to Pasco County and, on December 22, 1993, his probation was terminated early. The Petitioner has sought professional counseling. On or about March 22, 1993, he was referred to a vocational rehabilitation counselor with the Department of Labor and Employment Security, Division of Vocational Rehabilitation. Since approximately early 1994, he also has been under the care of a psychiatrist. With the help of counseling, the Petitioner has been sober since before August, 1993. Fortunately, therapy seems to have been successful. Except for two short hospitalizations for decompensation and medication adjustment early in his counseling, the Petitioner has been sober and mentally stable over the course of the last three years. From a mental health standpoint, the Petitioner no longer seemed to be a danger to himself or others, and he was making good progress in rehabilitating himself. On or about May 18, 1995, the Petitioner sought employment with Action Youth Care, a provider on contract with HRS. When he applied for the job, he was required to complete an Affidavit of Good Moral Character that swore, in pertinent part, that he had "not been found guilty of, or entered a plea of nolo contendere or guilty to, any offense prohibited under . . . Section 806.01 [Florida Statutes, arson]." The affidavit also required the Petitioner to "acknowledge the existence of any criminal . . . record regardless of whether [he] was adjudged guilty by the court and regardless of whether or not those records have been sealed or expunged." The Petitioner signed without acknowledging his attempted arson record. When his name was screened, the attempted arson record disqualified him from employment, and the Petitioner was terminated from his employment pending his request for an exemption. Despite the Petitioner's commendable progress in rehabilitating himself, there still are signs that some instability persists. He does not seem to appreciate the seriousness of his criminal record and history of substance abuse and mental illness, as they relate to HRS's statutory obligation to properly assess his moral character under Section 409.175, Fla. Stat. (1995). Instead, he blames HRS's actions on a "political" conspiracy to prevent him from obtaining employment. Similarly, he attempts to excuse his criminal record by blaming it all on HRS--the termination of his employment in 1989 allegedly was the sole cause of his decompensation and the resulting criminal offenses. His excuse for falsifying his Affidavit of Good Moral Character was that it was reasonable not to disclose the arson record because it was only attempted arson, not arson. He does not seem to appreciate that there is little or no difference in blameworthiness between the two. (The only real difference between the two is how soon the fire goes out or is put out.) Finally, the Employee Closing Summary produced by Action Health Care upon termination of the Petitioner's employment stated that Action would not re-hire the Petitioner and that the Petitioner's "weak areas" included: "poor rapport with team"; "would not accept authority"; and "documentation skills." (No "strengths" were noted on the form.) The Petitioner again blamed HRS, contending that the person who completed the form was lying to cooperate with HRS's conspiracy against the Petitioner. It is found that the evidence, taken as a whole, was not clear and convincing proof of rehabilitation and good moral character at this time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that HRS enter a final order denying the Petitioner's request for an exemption from disqualification. DONE and ENTERED this 21st day of August, 1996, in Tallahassee, Florida. J. LAWRENCE JOHNSTON, 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 August, 1996.
The Issue Can the Board of Real Estate consider matters surrounding the offense to which a person pleads guilty in determining whether that person possesses the necessary character to be licensee? What is the evidentiary effect of a plea of guilty by an applicant for licensure? Is the Petitioner qualified for licensure?
Findings Of Fact Petitioner Edward J. Gibney made application to The Board of Real Estate for licensure as a real estate salesman. The Board denied Petitioner's application pursuant to Section 475.25(1)(f), Florida Statutes, because he was convicted of crimes against the laws of the United States and against the laws of the State of New Jersey involving moral turpitude. Petitioner pleaded guilty to the crimes of conspiring to commit fraud on medicaid and medicare claims, a felony under the laws of the United States. He also pleaded guilty to a similar offense which was a felony under the laws of New Jersey. Both offenses arose out of the same factual situation. The sole grounds for denial of Petitioner's application were his criminal convictions and the matters surrounding them. The Petitioner is otherwise qualified for licensure. After initial notification of the Boards intention to deny his application, the Petitioner requested and received an informal hearing before the Board. The Board notified Petitioner that it still intended to deny his application, and the Petitioner requested and was granted a formal hearing. The transcript of the Board's informal hearing was received as Petitioner's Composite Exhibit #1. Petitioner was the only witness at the hearing. He explained very candidly the facts surrounding his entry of guilty pleas to the criminal charges brought against him. His testimony was uncontroverted and is accepted as true. Petitioner, a graduate chemist, was qualified and licensed as a medical laboratory director in New Jersey. For 15 years prior to 1975, he owned and operated a small medical laboratory directly providing clinical laboratory services to private physicians. In 1975, Petitioner was approached several times over a period of three months by Seymour Slaughtnick to provide laboratory services to several doctors for medicaid/medicare patients. Slaughtnick was functioning as an intermediary. Slaughtnick picked up test samples at the doctors' offices and transported them to another laboratory. Slaughtnick wanted to change laboratories because of the poor quality laboratory work. Although Slaughtnick's function was described, Slaughtnick's relationship with the other laboratory or the doctors was never defined. Petitioner described Slaughtnick as a salesman. Petitioner initially refused the Slaughtnick offer because he had not done medicare/medicaid work and did not know how to process the paperwork. Slaughtnick continued to press Petitioner for a commitment to do this work and offered to prepare and submit all the paperwork for Petitioner. Slaughtnick and petitioner eventually agreed to an arrangement under which Slaughtnick picked up the samples, brought them to Petitioner's laboratory, transmitted the test results back to the physicians, and prepared Petitioner's billings to medicare/medicaid for the professional services rendered. Petitioner performed all the laboratory work as ordered by the physicians and prepared all test results, paying Slaughtnick a percentage of the fee for each test for his services. Petitioner was aware that his arrangement with Slaughtnick and permitting Slaughtnick to bill in his name was illegal under New Jersey law. To assure himself that Slaughtnick's billings were in order, Petitioner checked on Slaughtnick's billings after they began to work together. The State of new Jersey's medicaid/medicare plan was administered by Prudential Insurance Company using a blind fee schedule. Petitioner was advised by Prudential that his schedule initially provided various fees for various laboratory tests, but laboratories would not be advised of the amounts of payment or criteria used for assessing the appropriateness of ordering the tests. He was advised Prudential would reject any billings that were inappropriate. In 1976, the State of New Jersey began an investigation of its entire medicare/medicaid system. Initially, the inquiry with Petitioner's laboratory centered on whether he was performing the work ordered. It was determined that Petitioner performed all the work for which he billed the state. This investigation gave rise to an administrative complaint against Petitioner that charged him with overbilling. An administrative hearing was conducted which lasted eight months, during which 55 days of testimony were taken. The New Jersey hearing officer eventually that 50 percent of the orders and billings were correct; however, before the administrative order was entered, the Petitioner was indicated by the state of New Jersey and the United States for conspiracy to defraud under medicaid/medicare. The indictment alleged that Petitioner, Slaughtnick and other unnamed co-conspirators had conspired to defraud medicaid and medicare. The indictment was not introduced at this hearing; however, the Petitioner explained it alleged that the conspirators arranged to order more complex tests than were necessary, performed these tests, and then billed the state for the inflated service. Petitioner denied any knowledge of such a scheme to inflate test orders, however Petitioner did admit that his permitting Slaughtnick to prepare bills to medicaid and medicare in the laboratory's name was not authorized under the New Jersey law. Petitioner also denied knowledge of any kickbacks paid by Slaughtnick to any of the physicians or those in their employment. However, Petitioner stated he had no doubt after the fact that Slaughtnick was engaged in such a practice. Since his release from probation slightly more than 18 months ago, Petitioner has studied real estate and attempted to recover from the strain of the loss of his business, the long hearing, and his conviction and sentencing. The facts upon which this case are based occurred in 1975-76. Petitioner was sentenced in 1977, and has been released from confinement and probation since January, 1980. There is no evidence that petitioner has engaged in any conduct that would reflect adversely on his character since he terminated his laboratory work for medicaid/medicare in 1976.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that Petitioner Edward J. Gibney be denied licensure upon the specific ground that under Section 475.17(1), Florida Statutes, he failed to present sufficient evidence of his reputation in the community to assure the Board of Real Estate that the interest of the public and investors would not be endangered unduly. DONE and ORDERED this 14th day of October, 1981, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 1981. COPIES FURNISHED: Larry H. Spalding, Esquire 6360 South Tamiami Trail Sarasota, Florida 33581 Jeffrey A. Miller, Esquire Department of Legal Affairs Administrative Law Section The Capitol, 16th Floor Tallahassee, Florida 32301 Carlos B. Stafford, Executive Director Board of Real Estate 400 West Robinson Street PO Box 1900 Orlando, Florida 32802
The Issue The issues in this case are whether Respondent violated Subsections 943.1395(6), 943.1395(7), and 943.13(7), Florida Statutes (2005),1 and Florida Administrative Code Rules 11B-27.0011(4)(a),2 11B-27.0011(4)(b), and 11B-20.0012(2)(f),3 and, if so, what discipline should be imposed.
Findings Of Fact Mr. Taylor was certified by the Commission on March 21, 1990 and was issued Correctional Certificate No. 75624. On May 12, 1999, Mr. Taylor was issued Instructor Certificate No. 212961. On August 7, 2005, Mr. Taylor went to the house where his sister, Michelle Taylor (Ms. Taylor), and her boyfriend, Dean Radney (Mr. Radney), were living. Mr. Taylor owned the house and was allowing his sister to live in the house. Mr. Taylor had been drinking heavily and was intoxicated when he went to his sister’s home. An argument ensued between Mr. Taylor and Ms. Taylor. Ms. Taylor called 911 and requested the Holmes County Sheriff’s Department to intervene. Ms. Taylor felt that if she called the sheriff that Mr. Taylor would leave. Mr. Taylor did leave the house. Deputy Michael Raley came to the residence in response to Ms. Taylor’s call. When Deputy Raley arrived, James Taylor, the brother of Mr. and Ms. Taylor, was at the home. James Taylor told his sister not to press charges against Mr. Taylor. Deputy Raley asked James Taylor to leave, and James Taylor complied with the request. When Deputy Raley arrived at the home of Ms. Taylor, she was upset and told him that there had been a family dispute. Deputy Raley asked Ms. Taylor to walk him through the house, and she did. At the back door, Deputy Raley observed that the back door facing had been damaged. He saw a nine millimeter shell casing lying on the floor of a rear room. There was a bullet hole in the bathroom door and a fragmented bullet in the laundry hamper. Ms. Taylor told Deputy Raley that there was a bullet hole in the living room/kitchen area. He went to that part of the house and saw a nine millimeter shell casing lying on the kitchen floor and a hole in the window. Deputy Raley took a sworn statement from Ms. Taylor, but the statement was not submitted for introduction into evidence. Although Ms. Taylor called 911 to summon assistance, the tape of the 911 call was not submitted for introduction into evidence. At the final hearing, Ms. Taylor stated that she had just come home from a drug rehabilitation facility when Mr. Taylor came to her home, that she was under a lot of stress, and that she did not remember what happened except that she and her brother argued, and she called 911 for assistance. At the final hearing, Mr. Taylor testified that on the day of incident in question, he was too drunk to remember what happened. Other than hearsay testimony, there is no evidence to support the allegations that Mr. Taylor committed assault and battery against his sister or Mr. Radney or that he fired a gun in his sister’s home.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mr. Taylor did not violate Subsections 943.1395(6), 943.1395(7), and 943.13(7), Florida Statutes, and Florida Administrative Code Rules 11B-27.0011(4)(a), 11B-27.0011(4)(b), and 11B-20.0012(1)(f), and dismissing the Administrative Complaint. DONE AND ENTERED this 3rd day of January, 2008, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 January, 2008.
