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 The issues to be determined in this case are whether Respondent has failed to maintain the qualifications required for a correctional officer pursuant to Section 943.1395(7), Florida Statutes (2006),1/ and Florida Administrative Code Rule 11B- 27.0011(4)(b), and if so, what penalty should be imposed?
Findings Of Fact At all times material to the allegations in the Administrative Complaint, Respondent was certified by the Department as a correctional officer in the State of Florida, having been issued Correctional Certificate #170241. Respondent and Candida Nowlin are engaged and live together. They have lived together since 2002. Ms. Nowlin has two children from a previous relationship and she and Mr. Saria have a child together. At the time of the events giving rise to these proceedings, the couple was under a great deal of stress because of a serious accident involving one of Ms. Nowlin's children. On the evening of November 6, 2006, Mr. Saria and Ms. Nowlin had an argument. She asked him to leave, and he refused. In his anger, he slammed a cordless phone in their home against the kitchen counter. However, there is no competent evidence that he struck or grabbed her, or threw her into a wall. The only competent testimony presented is that he touched her arms in order to move her out of his path as he went to another room in the home, but did not harm her in any way. Ms. Nowlin felt that she and Mr. Saria needed some time apart, so when Mr. Saria refused to leave their home, she went with her young daughter next door to her neighbor's home to call the police. Her neighbor, Ms. Epley, was having a dinner party. She noticed that Ms. Nowlin was crying and she let her use her phone, but was distracted by her hostess duties. She did not remember Ms. Nowlin being injured, and Ms. Nowlin did not tell her that Mr. Saria had beaten her up. Ms. Nowlin called the police from Ms. Epley's home. Two officers came to the home, then-officer Barraclough and Sergeant Spears. They interviewed Ms. Nowlin, Ms. Epley, and Mr. Saria, and arrested Mr. Saria and took him away. After they had removed Mr. Saria from the home, the two officers completed statements from both Ms. Epley and Ms. Nowlin. Officer Barraclough testified that he saw scratches and red marks on Ms. Nowlin's arms. However, his testimony was contradicted by all other witnesses who testified, and is not credited. Sergeant Spears, who did not testify, took Ms. Nowlin's statement. While she was doing so, Ms. Nowlin's mother came to the home. Her testimony, which is credited, is that Ms. Nowlin had no bruises or marks on her arms and that Ms. Nowlin was primarily upset at that point because Mr. Saria had been arrested. The only competent evidence of what happened between Ms. Nowlin and Mr. Saria during their argument is the testimony of the two of them. They both deny vehemently that he struck her or engaged in any unwanted touching. They both insist that they had an argument because of the amount of stress they were under, and that the police were called because Ms. Nowlin felt they needed some time away from each other.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing the Administrative Complaint. DONE AND ENTERED this 24th day of November, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 24th day of November, 2009.
Findings Of Fact On or about October 1, 1990, in Case No. 90-233 CF, pending in the Circuit Court, Fifth Judicial Circuit, in and for Sumter County, Florida, the Petitioner pled nolo contendere to: one count of aggravated battery with a deadly weapon, a second degree felony under Section 784.045(1)(a)2., Florida Statutes; one count of battery on a law enforcement officer, a second degree felony under Section 784.07, Florida Statutes; and one count of resisting arrest with violence, a third degree felony under Section 843.01, Florida Statutes. On the same day, the Petitioner also was adjudicated guilty on all three charges. Sentence was withheld, and the Petitioner was placed in an adult community control program for two years subject to certain conditions. The Petitioner's nolo plea was entered notwithstanding a June 26, 1990, "No Information" filed in the case stating that the State Attorney's Office had taken testimony under oath at a State Attorney's investigation and that the facts and circumstances revealed did not warrant prosecution at the time. On July 28, 1991, the Petitioner was arrested for alleged spouse battery. As a result, the Petitioner was arrested and charged with violation of his community control conditions. On September 19, 1991, a "No Information" was filed in the battery case stating that the State Attorney's Office had taken testimony under oath at a State Attorney's investigation and that the facts and circumstances revealed did not warrant prosecution at the time. Nonetheless, an Order of Modification of Community Control was entered on October 28, 1991, adding a condition that the Petitioner attend and successfully complete marriage/family counseling. On or about April 19, 1992, the Petitioner again was arrested for alleged spouse battery. On July 21, 1992, a "No Information" was filed in the case stating that the State Attorney's Office had taken testimony under oath at a State Attorney's investigation and that the facts and circumstances revealed did not warrant prosecution at the time. Notwithstanding the April 19, 1992, arrest, there was no evidence that the Petitioner's community control program was further modified, and the Petitioner successfully completed the two-year program, as previously modified on October 28, 1991. On April 29, 1993, the Petitioner's civil rights, other than the right to possess and carry a firearm, were restored by Executive Order of the Office of Executive Clemency of the State of Florida. On or about October 4, 1993, the Petitioner again was arrested for alleged battery. (The record is not clear as to the identity of the alleged victim.) On November 29, 1993, a "No Information" was filed in the case stating that the State Attorney's Office had taken testimony under oath at a State Attorney's investigation and that the facts and circumstances revealed did not warrant prosecution at the time. There was no evidence of any other criminal arrests or convictions after October 4, 1993. The undisputed testimony of the Petitioner and his character witnesses was that there have been none. The Petitioner and his character witnesses also testified persuasively and without contradiction that, with the passage of time, the Petitioner has rehabilitated himself and that he is now a person of high character and integrity. The Petitioner now understands the importance of avoiding the circumstances that can lead to violations of the criminal law, he appears to have learned how to avoid them, and he appears to be determined to avoid them. Meanwhile, he also has proven himself to be a responsible and caring single father for his children and has made valuable contributions to his community as an adult volunteer, especially in community children's programs. It is found that, with the passage of time, the Petitioner has rehabilitated himself and that he is now a person of high character and approved integrity so as to qualify for licensure as a limited surety agent (bail bondsman).
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 granting the Petitioner's application for licensure as a limited surety agent (bail bondsman). DONE and ENTERED this 4th day of June, 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 4th day of June, 1996. COPIES FURNISHED: Alvie Edwards, pro se 1544 Bay Street Southeast St. Petersburg, Florida 33701 Dickson E. Kesler, Esquire Department of Insurance and Treasurer 612 Larson Building Tallahassee, Florida 32399-0333 Bill Nelson State Treasurer and Insurance Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Dan Sumner Acting General Counsel Department of Insurance and Treasurer The Capitol, PL-11 Tallahassee, Florida 32399-0300
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
Findings Of Fact On December 20, 1985, Respondent was certified by the Criminal Justice Standards and Training Commission and issued certificate no. 14-84-502-04. Respondent's work in law enforcement in Florida has been as a correctional officer. On the night of December 27, 1986, Respondent left his home to go to the American Legion in Lake City, Florida. On his way he met his friend Eddie Goodbread, Jr. Goodbread asked the Respondent if he could go with him to the American Legion Club. The Respondent agreed to have Goodbread come with him. Once at the American Legion the two men socialized. When they got ready to leave the club the Respondent left with his girlfriend. Goodbread took the Respondent's car and parked it on Myrtle Street. Goodbread then went with the Respondent and the Respondent's girlfriend and another person, which the Respondent describes as a girl, to the house of a friend other than Goodbread. At that point the Respondent and Goodbread split up again. Respondent was then with his girlfriend and Goodbread had the keys to Respondent's car. The Respondent came back later and met with Goodbread. Prior to the rendezvous, while Respondent had been with his girlfriend in her car, he had placed a .25 caliber automatic pistol in the glove box of that car. He had a license to carry this weapon issued by local authorities. The weapon was not contemplated as being a necessary item for his work as a correctional officer. When the Respondent got out of his girlfriend's car and approached Goodbread, the Respondent had the pistol in his coat pocket. Respondent told Goodbread that he was ready to go home because he had to go to work the next morning. Goodbread said, in kidding with the Respondent, that he did not have the car keys and that he had locked them in the car. Respondent recognized that he was joking with him. Nonetheless, Respondent looked in the car and saw that the keys were not there. Respondent returned to Goodbread and told Goodbread to give him his keys. Goodbread again told Respondent that the keys were locked in the car. Respondent told Goodbread that he was starting to go home. Goodbread's reaction to this remark was to get in the car and say "let's go." Goodbread then jumped out of the car and said that he was not ready to go. Respondent told him to come on and give him his keys. Respondent told Goodbread "come on man. Let's go." Goodbread told Respondent that he wasn't ready to go that he wanted to talk to some girl. Respondent said "come on let's go." Respondent took the gun out and said "you are going to make me put this on you. Come on let's go." Goodbread grabbed the gun unexpectedly and the gun discharged and killed Goodbread. Respondent never intended to injure Goodbread in his display of the pistol. Eight or ten witnesses saw the incident. It was investigated by the Lake City Police Department and Respondent cooperated in that endeavor to include turning over the pistol to the police and giving a voluntary statement about the incident. Respondent was charged through the Grand Jury of Columbia County, Florida, with the exhibition of the handgun in a rude, careless, angry, or threatening manner, not in necessary self defense and contrary to Section 790.10, Florida Statutes. A copy of that indictment may be found as Petitioner's Exhibit No. 1. As set forth in Petitioner's Exhibit No. 2, Respondent plead guilty to the offense and was fined $176. The firearm was forfeited to the state, he received 11 days in jail and a condition was placed upon him not to possess a firearm for one year. Respondent claims that as a consequence of the incident with his friend Goodbread he began to drink more than he had before. There being no frame of reference to compare his drinking habits before and after the incident, this comment has little utility in understanding his motivation to drink and drive. It has been established that on September 13, 1987, in the early morning hours of that day, specifically around 1:30 a.m., the Respondent was observed by Deputy Sheriff Charles R. Tate of the Columbia County, Florida Sheriff's office, driving in a reckless manner. In this incident the Respondent pulled out of Church Street onto Bay Avenue in Lake City, Florida, in a reckless manner. The officer speeded up in his attempt to stop the Respondent and engaged the emergency equipment in the officer's car. Respondent went west bound on Bay and turned south on Marion Street which is U.S. 41. In the course of this pursuit Respondent accelerated to speeds up to 65 miles per hour. Respondent finally pulled over around the intersection of Marion Street and Grandview Avenue. Respondent cooperated with Officer Tate in the investigation of the driving offense. This included the officer noting that the Respondent had the smell of alcohol about his person. As a consequence, the Respondent was asked to perform certain activities associated with a field sobriety test to ascertain if Respondent was capable of operating his motor vehicle. When the Respondent tried to perform the finger to nose test which is given with each hand, he was unable to do that with either hand. In trying to perform the walking test Respondent staggered and when he made the return trip in the walking test he nearly fell over and had to support himself. From the observations of the Respondent Officer Tate believed that the Respondent was driving under the influence when the stop was made. He arrested the Respondent for that offense and took him to the Florida Highway Patrol station where Robert Bellamy, a trained breathalyzer operator, administered a breathalyzer test to the Respondent. The results show that the Respondent was registering at .16 at 2:25 a.m., and registering at .15 at 2:27 a.m. with .10 being the legal presumption for impairment. Respondent was then taken to the Columbia County Jail. While at the jail correctional officer Jacklyn Yvonne Jones- Holland attempted to fingerprint his right hand. Ms. Holland knew of the Respondent before this evening but had had no opportunity before to speak to the Respondent. In the course of the fingerprinting Respondent took his left hand and rubbed it on the side of the officer's leg in the area of her groin. The first time he did this she stepped back on the chance that the Respondent was unaware of what he was doing at the time. However, when she moved the Respondent again put his hand on her leg in the area of her groin. Based upon the facts of this case in which Officer Tate describes the quality of the Respondent's impairment on a scale of 1 to 10, as being a 5 and Ms. Holland describes this impairment to be 6 or 7 on a scale of 1 to 10, Respondent is not found to be so under the influence that he did not realize what he was doing when inappropriately touching Ms. Holland in two instances. When he touched her the second time Ms. Holland went to another part of the building and made out a complaint against the Respondent for his assault and he was arrested for that offense. An Officer Myers read the Respondent his rights related to the assault during which conversation Respondent said, "I'm drunk. Oh yeah, that's what I'm here for. I'm drunk." There was no verbal exchange between the Respondent and Ms. Holland during the inappropriate touching. Ms. Holland had not invited those actions by the Respondent. The Petitioner's Composite Exhibit 3 constitutes the Florida Uniform Traffic Citation for the offense of driving under the influence and the disposition of that case in which the Respondent was fined $411, had his license suspended for six months, and attended school for persons who have driven under the influence. He also attended Alcoholics Anonymous and received other counseling contemplated for persons who may have drinking problems. Respondent says that he does not drink at present and no evidence was offered which would refute that claim. Respondent was charged under information with the unlawful, intentional and knowing touching or striking of Jacklyn Yvonne Jones-Holland and plead guilty to battery. He received a period of probation of one year for that offense. Certified copies of the information and order withholding adjudication of guilt and placing the defendant on probation can be found as exhibit numbers 5 and 4 respectively. The reckless display of the firearm leading to the death of his friend, and the battery committed on Ms. Holland are all indications of a lack of good moral character and are events for which the Respondent has no acceptable explanation or excuse. Driving under the influence is reprehensible but does not show a lack of good moral character.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That a Final Order be entered suspending the certificate of the Respondent for a period of six months. DONE and ENTERED this 6th day of December, 1989, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-3816 The facts as presented by the Respondent are commented on as follows: Paragraphs 1-5 are subordinate to facts found. Paragraph 6 is not accepted to the extent that it argues that the incident involving the death of Mr. Goodbread is directly responsible for the fact that the Respondent was driving under the influence on the night in question and committed the battery on Ms. Holland. Furthermore, the suggestion that the Respondent was too under the influence to understand the fact of his battery against Ms. Holland is rejected. His testimony that he does not have a recollection of touching Ms. Holland runs contrary to the impression of the facts, that impression being that the act of the Respondent was volitional. The idea of his cooperation with Trooper Bellamy in the administration of the breathalyzer examination and the efforts to comply with what was expected of him in responding to the circumstance of the driving under influence offense is recognized as mitigation, but does not explain away the offense. The suggestion in Paragraph 7 that the death of the friend and the driving under the influence are interrelated is not accepted. Respondent did indicate that he was emotionally upset over the death of his friend, this would be expected but it is not clear to what extent his drinking increased following the death of the friend as compared to his drinking habits before that time. Respondent's suggestion that he is free from the effects of alcohol problems at present was not refuted. Therefore, there is no reason to believe that he presently has any problem with alcohol abuse. Reference to other traffic violations and his service record as a correctional officer leaves a neutral impression of the Respondent which is neither to his advantage or that of the Petitioner. Consequently, the facts of those prior events have not been reported in the fact-finding set forth in the Recommended Order. Paragraph 8 is contrary to facts found. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Stephen A. Smith, Esquire Post Office Drawer 1792 Lake City, Florida 32056-1792 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 =================================================================
Findings Of Fact In 1970, the Petitioner, WILLIAM C. HARRELL, was a student at Georgia Tech, a math major. Up to that time, he had been a very bright student and had been accepted for a full scholarship at Baylor University to study medicine. He planned to become a doctor, but that career opportunity was destroyed suddenly when he was involved in a severe automobile accident in which he was struck by a drunk driver. He sustained severe head injuries, almost died during neurosurgery, and was in a coma for many weeks thereafter. His initial medical prognosis following surgery was that he would be totally incapacitated, losing essentially all of his cognitive functions. In fact, however, he regained consciousness and over the ensuing four years, while under the care of Dr. Howard Chandler, his neurosurgeon in Jacksonville, Florida, effected a remarkable recovery. He had suffered severe memory and speech deficits as a result of the trauma, but through rehabilitation, gradually overcame much of this deficit. In 1974, his doctor released him and recommended that he try to renew his education and rebuild his life. He apparently began attending North Florida Junior College in Jacksonville, Florida, at approximately this time. He never was able to complete his college degree, however. His employment history thereafter is unclear in this record, but apparently he had some difficulty obtaining significantly rewarding employment. However, he did start his own lawn service business which he successfully operated for approximately 14 years. During this period of time in the late 1970's and early 1980's, he married and had a daughter and was enjoying some success at rebuilding a meaningful and productive life for himself and his family. Testimony adduced by the Petitioner through his witnesses, as well as evidence consisting of numerous testimonial letters regarding his character and reputation for honesty and sincerity (stipulated into evidence by the parties), established that the Petitioner is a willing and productive worker and an honest, sincere human being, both in his capacity as a husband and father and as to his dealings with customers of his lawn service business and as to his clients in his chosen career in insurance sales. In approximately late 1984 or 1985, the Petitioner's life began to go awry. He and his wife began experiencing severe marital difficulties, which ultimately culminated in the dissolution of their marriage. Thereafter, the Petitioner and his former wife became embroiled in a custody dispute regarding their young daughter. Apparently, the Petitioner's former wife had custody of their daughter, a very small child at the time; and they became embroiled in a bitter dispute over visitation rights, which was in litigation for approximately one year. The Petitioner states that he ultimately won visitation rights with his daughter as a result of this litigation, and his former wife became quite angry at this result. She was also, according to the Petitioner, quite jealous over his remarriage to his present wife and continued to actively obstruct his ability to have his daughter come to his home for visits. His former wife made statements to the effect that she would besmirch his reputation so that he would be unable to get employment and not ever be able to see his child again. The Petitioner states that his daughter at the time was subject to bed wetting frequently; and on one occasion, at least, when she was staying in his home, he would "wipe her bottom with toilet tissue". He states that during this visit or possibly on a number of them (the record is not clear), his daughter was very irritated and sore in the genital area due to bed wetting, and that he and his wife attempted to treat that condition while she was in their home. Apparently, his daughter made some mention of that incident to the former wife, who became angry and ultimately had the State Attorney file a criminal information against the Petitioner for sexual assault. This charge and the criminal litigation which ensued was the result of the bitter, ill feeling harbored against him by his former wife and was solely instigated at her behest. The date upon which the offense is supposed to have occurred was totally implausible because, according to the terms of the visitation decree, the Petitioner was only allowed to see his daughter on certain weekends. On the date he is alleged to have committed the sexual assault, his daughter was not even at his home or otherwise under his custody. Nevertheless, his former wife persisted in pursuing the matter; and ultimately, he was at the point of being tried for the charge of sexual assault, a felony. Upon advice of his attorney, an Assistant Public Defender, and after discussion with the State Attorney handling the case, an agreement was reached whereby the Petitioner would not be adjudicated guilty, but rather was given certain probationary terms. He was never convicted and adjudication was withheld in the matter. It is noteworthy that on the sentencing document executed by the Circuit Judge having jurisdiction of that case, (in evidence), the probationary sentence was noted by the judge to be less penalty than authorized by the sentencing guidelines because of the unlikelihood of any conviction should the matter be tried. The Petitioner maintains vehemently that he never committed this act and, further, that he did not consider, based upon his attorney's advice, that he had any felony charge on his record as a result of the outcome of that criminal matter. His attorney, Assistant Public Defender, E. E. Durrance, attested to that situation by a letter placed into evidence by agreement of the parties, which indicates that the Petitioner entered a plea of nolo contendere in that criminal case and that the court withheld adjudication of guilt which meant that the Petitioner does not have a felony conviction record. Based upon this advice at the time by his attorney, the Petitioner answered `1no" to question number 8 on the application for licensure involved in this case, wherein it was asked whether the applicant had ever been charged with a felony. The evidence in this proceeding reveals that, indeed, he was charged with a felony; but the Petitioner explained that he equated that question in his mind to mean whether he had a felony conviction on his record or a finding of guilt which he, of course, did not. The Petitioner's testimony about this entire situation was unrebutted. Due to observation of the Petitioner's obvious candor and sincerity in his testimony, as corroborated by the numerous testimonial letters stipulated into evidence, all of which testimony and evidence was unrebutted, the Petitioner's testimony is accepted in this regard. The Hearing Officer finds that, indeed, he did not commit the felony of sexual assault. The Hearing Officer further finds that he answered in the negative to the subject question on the application regarding the existence of a felony charge because he believed that he could honestly answer "no" because he had no conviction. Thus, his answer was due to a misunderstanding of the legal import of his criminal court experience in this matter and was not due to any effort to misrepresent his past record or to mislead the Respondent in an attempt to gain licensure. In 1986, the Respondent was arrested for petty theft or "shoplifting," which is the other basis for the denial of his application for licensure. This occurred when the Petitioner was embroiled in his severe marital discord described above. The dissolution of his marriage and related litigation had cost him virtually all of his significant, material possessions. He was unable to maintain steady employment, except for his lawn service, which he started himself. That was a very seasonal business; and at times, he was very short of funds. On one day, he made the mistake, as he admits himself, of going to a supermarket, buying a cup of coffee, for which he paid, but placing a package of ham into his pants pocket and walking out the door. He was arrested for stealing a $2.58 package of ham and was prosecuted and paid a small fine. The Petitioner is very remorseful that this occurred and states that it occurred at an emotional and financial low point in his life when he could obtain no regular, remunerative employment nor help from anyone. He was consequently thrust into a period of depression at this time. When he took the package of ham, he was in such an emotional state that he did not care about the consequences. He has since remarried, however, and has worked hard to rebuild his life, both his employment career and his family life. Since embarking upon his insurance sales career in recent months (as a temporarily licensed agent), he has been very successful. Although a new, inexperienced agent, he is one of the highest sales producing agents for Gulf Life Insurance Company's office, where he is employed, and is one of the highest producers in terms of collection of premiums due. His employer, supervisor and customers uniformly praise his honest, sincere and human approach to insurance sales and his sensitivity to the feelings of his customers or clients. The Petitioner's tetimony, as corroborated by other testimony and the numerous testimonial letters stipulated into evidence, establish in an unrefuted way, that he is, indeed, a sincere and honest person, who earnestly desires the opportunity to engage in an honorable profession within the field of insurance marketing. The incident involving the theft of the package of ham appears to be an isolated incident of aberrant conduct and does not, in itself, establish a lack of trustworthiness or fitness to engage in the business of insurance, given its singular nature and the emotional and financial straits in which the Petitioner found himself at the time. The Petitioner was candid in admitting this instance of petty theft, a misdemeanor. He did not fail to disclose this on the application in question because there was no category on that application calling for him to admit such an incident. The alleged failure to disclose involved question number 8, concerning the felony charge. Indeed, he did answer no? but gave that answer for the reasons delineated above. Further, it is noteworthy that upon inquiry by the Department after its own investigation had revealed indications of a criminal record incident, the Petitioner freely obtained certified copies of all pertinent court documents and otherwise cooperated and disclosed all information concerning the alleged felony charge. This full disclosure made by the Petitioner occurred before the agency took its purported final action in denying his application for examination and licensure. Thus, although he did not answer the question in an affirmative way concerning the felony charge at issue, he did fully disclose it and all circumstances surrounding it to the Department when the matter arose and was questioned in the Department's investigatory process.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED: That the applications of William C. Harrell for examination and licensure as a life, health and general-lines agent be granted. DONE AND ENTERED this 9th day of February, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 9th day of February, 1990. APPENDIX TO RECOMMENDED ORDER The Petitioner filed no proposed findings of fact. Accordingly, rulings on the Respondent's proposed findings of fact will be made. Respondent's Proposed Findings of Fact Accepted. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter. It was not established that a knowing misrepresentation on the application was made. Accepted, but not as dispositive of material issues presented and not to the extent that it is indicated that a misrepresentation was made in the application. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter, and as not, in itself, dispositive of the material issues presented. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter, and not in accordance with the preponderant weight of the evidence since it was proven that the Petitioner did not commit sexual battery. Accepted, to the extent that it shows the factual background underlying the procedural posture of this case, but not as dispositive of material issues presented. COPIES FURNISHED: Mr. William C. Harrell P.O. Box 5503 Jacksonville, FL 32247 John C. Jordan, Esq. Department of Insurance and Treasurer Office of Legal Services 412 Larson Building Tallahassee, FL 32399-0300 Honorable Tom Gallagher State Treasurer and Insurance Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, FL 32399-0300 Don Dowdell, Esq. General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, FL 32399-0300 =================================================================
Findings Of Fact Petitioner, Douglas Clayton Brown (Brown), applied to Respondent, Department of Insurance and Treasurer (Department) , for examination as a general lines agent. By letter of September 9, 1986, the Department advised Brown that his application was denied because he had pled guilty to certain felonies which involved moral turpitude, and that he had failed to divulge on his application for examination that he had been charged with such felonies. Brown filed a timely request for formal hearing to contest the Department's decision. On March 21, 1983, an Information was filed in the Circuit Court of the Seventeenth Judicial Circuit, Broward County, Florida, charging Brown with one count of burglary, Section 810.02(2) Florida Statutes; and two counts of aggravated assault, Section 784.021, Florida Statutes. Brown entered a plea of guilty to the charges. On December 12, 1983, the court entered a judgment wherein it adjudged Brown guilty of having committed one count of burglary with a deadly weapon and two counts of aggravated assault with a deadly weapon. The court withheld the imposition of sentence, and placed Brown on 10 years probation. 1/ On August 20, 1984, Brown filed a motion in the criminal proceeding to terminate his probation and vacate the adjudication of guilt. By order of March 4, 1985, the court granted Brown's motion to vacate the adjudication of guilt, but continued his probation on the same terms and conditions as previously set. Subsequently, on March 13, 1985, the court entered a formal order that withheld adjudication of guilt and the imposition of sentence on the charges, and reimposed the term of probation previously established. By application dated March 4, 1985, filed with the Department on March 13, 1985, Brown sought examination for licensure as a general lines agent. Pertinent to this case the application requested and Brown responded: 12(a) Have you ever been charged with a felony? No Brown's application contained a material misrepresentation since he failed to disclose that he had been charged with a felony which involved moral turpitude. Brown's attempt to rationalize his nondisclosure was unpersuasive. According to Brown, he inquired of his attorney before completing his application and was advised that he could respond in the negative to the question set forth in paragraph 6, supra. Brown's assertion is not, however, supported by the proof and is inherently improbable and unworthy of belief. (See: Petitioner's exhibit 2).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the application of Petitioner, Douglas Clayton Brown, for examination as a general lines agent be DENIED. DONE AND ORDERED this 9th day of June, 1987, in Tallahassee, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 1987.
The Issue Whether Respondent committed the violation alleged in the Administrative Complaint issued against him and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at "formal hearing," and the record as a whole, including the parties' Joint Stipulation, the following findings of fact are made: Respondent is now, and has been since February 19, 1998, certified as a correctional officer in the State of Florida. He holds Correctional Certificate Number 178896. On February 19, 1982, Respondent was certified as a law enforcement officer in the State of Florida and issued Law Enforcement Certificate Number 34142, which has since expired. Respondent is now, and has been since shortly after receiving his bachelor of science degree in education from Slippery Rock University, certified as a teacher in the State of Florida. From the early 1980's until 1993, Respondent worked as a police officer for various law enforcement agencies in Florida. In 1985, Respondent was physically arrested and charged with battery in Pinellas County. He was acquitted of the charge following a jury trial. After the acquittal, at Respondent's request, records relating to the matter were ordered sealed. In the mid 1990's, Respondent worked for Wackenhut Corporation as a teacher at correctional facilities in Moore Haven and South Bay, Florida. While working for Wackenhut in South Bay, Respondent was asked to assist in the "start up" of a "work release center" in Broward County, Florida, that Wackenhut was going to operate for the Broward County Sheriff's Office. Pursuant to Wackenhut policy, Respondent had to "go through a correctional academy" before assuming his new duties. After graduating from the "correctional academy," Respondent relocated to Broward County and began his new assignment for Wackenhut. Respondent's primary tasks were to "draw[] up all the rules and regulations for the [soon to be opened] facility" and "interview[] people for jobs." Respondent was housed in a "temporary [Wackenhut] office" in Lauderdale-by-the-Sea, Florida, along with others involved in the effort to open the facility, including Richard Fortenberry, who was going to be the facility administrator. On September 26, 1997, Respondent was accused of stealing a "couple of packs of playing cards" from a retail establishment in Palm Beach County, Florida. The Palm Beach County Sheriff's Office deputy on the scene issued Respondent a notice to appear2 in lieu of physically arresting Respondent. As directed, Respondent subsequently appeared in the Criminal Division of Palm Beach County Court to respond (in Palm Beach County Court Case No. 97-024167 MM A04) to the retail theft accusation made against him. On November 17, 1997, Respondent signed a Deferred Prosecution Agreement in Palm Beach County Court Case No. 97- 024167 MM A04,3 which provided that, if Respondent complied with the[] "conditions [set forth in the agreement] during the [three-month] period of Deferred Prosecution, no criminal prosecution concerning this charge [of retail theft] [would] be instituted " On December 22, 1997, the Palm Beach County State Attorney's Office issued a Nolle Prosse in Palm Beach County Court Case No. 97-024167 MM A04. The Broward County "work release center" was scheduled to open in February of 1998. Respondent was to occupy a "lead supervisor" position at the facility when it opened. Before he was able to assume this position, however, Respondent needed to fill out an "extensive" application (even though he was already employed by Wackenhut) and pass a pre- employment review conducted by the Broward County Sheriff's Office. Respondent filled out the application, "to the best of [his] ability," in October of 1997. On the application, he mentioned the 1985 Pinellas County battery charge of which he was acquitted, but not the notice to appear that he had received the previous month.4 Deputy James Diefenbacher was the Broward County Sheriff's Office "contract manager" for the Broward County "work release center" project. In November of 1997, after Respondent had entered into his Deferred Prosecution Agreement in Palm Beach County Court Case No. 97-024167 MM A04, Mr. Fortenberry told Respondent that Deputy Diefenbacher needed from Respondent certain documents concerning the 1985 Pinellas County battery charge in order for Deputy Diefenbacher to complete his pre-employment review of Respondent's background. Respondent promptly furnished Deputy Diefenbacher the requested documents. On December 31, 1997, Deputy Diefenbacher "showed up" at Respondent's office in Lauderdale-by-the-Sea and told Respondent that he "needed to talk to [Respondent] real quick." It was New Year's Eve. The "handful of people," including Respondent, who were there, were finishing up there work for the day so the office could close early. After he and Respondent "looked over [Respondent's] application" together, Deputy Diefenbacher turned on a tape recorder, "swore [Respondent] in," presented Respondent with a document, and told Respondent, "I need you to sign this document here. It means that you don't have any other arrest history."5 The document, which was typed on Broward County Sheriff's Office letterhead, read as follows: I swear under oath that all information regarding my criminal history has been presented to the Broward Sheriff's Office. My criminal history consists of a charge of simple battery, of which I was found not guilty of all charges by the court. Not [sic] other criminal history exists. SWORN AND ATTESTED TO BY TIMOTHY J. MILLER ON THIS 31ST DAY OF DECEMBER NINETEEN HUNDRED NINETY SEVEN. Signed By: DEPUTY JAMES DIEFENBACHER OF THE BROWARD SHERIFF'S OFFICE Signed CCN# Respondent signed the document without reading it. Respondent took Deputy Diefenbacher at his word that, by signing the document, Respondent was attesting that he had no other arrests other than his 1985 arrest in Pinellas County for battery. Respondent did not intend to deceive anyone in signing the document. He believed that the information contained in the document (as explained to him by Deputy Diefenbacher) was true.6 He did not consider his having been given a notice to appear (on September 26, 1997, in Palm Beach County) to have constituted an arrest.7 Nonetheless, "a couple [of] years later," Petitioner was charged with and tried for perjury in connection with his signing the document; however, he was acquitted of the charge.8
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission issue a Final Order dismissing the Administrative Complaint issued against Respondent in the instant case. DONE AND ENTERED this 16th day of February, 2004, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 16th day of February, 2004.
