The Issue The issue in this case is whether the Petitioner should be placed on the convicted vendor list.
Findings Of Fact On May 31, 1990, Borden pled guilty to commission of a public entity crime, as defined by Section 287.133(1)(g), Fla. Stat. (Supp. 1996), for: a conspiracy to rig bids for the award and performance of contracts to supply milk to school boards within Peninsular Florida, lasting from the early 1970's through July, 1988; a conspiracy to rig bids for the award and performance of contracts to supply milk to school boards within the Florida Panhandle, lasting from the early 1970's through July, 1988; and a conspiracy to rig bids for the award and performance of contracts to supply dairy products for use at federal military installations within Peninsular Florida and the Commonwealth of Puerto Rico, and at the Kings Bay Naval Submarine Base in Georgia, lasting from the early 1970's through July, 1988. As a corporate entity, Borden was culpable of the crimes committed by its employees or agents. However, as set out in more detail in the Joint Stipulation, when the crimes came to the attention of Borden's corporate management, Borden cooperated with state and federal investigations and prosecutions of the crimes, promptly terminated the employees and disassociated itself from individuals implicated in the crimes, and promptly paid the damages and penalties resulting from Borden's conviction. As set out in more detail in the Joint Stipulation, Borden notified the Department of Management Services within 30 days of its conviction. As set out in more detail in the Joint Stipulation, in addition to terminating the employees implicated in the crimes, Borden has instituted self- policing to prevent public entity crimes. As set out in more detail in the Joint Stipulation, after a period of suspension by the Defense Logistics Agency of the federal government in relation to Borden's public entity crime, the suspension was terminated, and Borden's Dairy Division has been reinstated as a qualified government contractor. As set out in more detail in the Joint Stipulation, Borden has demonstrated its good citizenship with the exception of the public entity crime of which it was convicted. As set out in more detail in the Joint Stipulation, other than the public entity crime conviction itself, there was no evidence that it is in the best interest of the public to place Borden on the convicted vendor list.
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 issue is whether Respondent should deny an application for a real estate sales associate license on the alleged grounds that, in violation of Subsections 475.17(1)(a), 475.181, and 475.25(1)(f), Florida Statutes (2008),1 the application discloses two felony convictions for crimes of moral turpitude, the initial application omitted a misdemeanor conviction for driving under the influence (DUI), and the applicant’s explanation in mitigation of the incidents is allegedly unpersuasive.
Findings Of Fact Respondent is the state agency responsible, in relevant part, for licensing real estate sales associates in the State of Florida, pursuant to Chapter 475. Petitioner applied for a real estate sales associate license on March 8, 2007, and Respondent proposes in this de novo proceeding to deny the application. Respondent states several grounds for the proposed denial of Petitioner’s application. First, the application discloses two felony convictions for crimes of moral turpitude, and the crimes would have been grounds for revoking or suspending a real estate license. Second, Petitioner omitted a DUI misdemeanor conviction from the initial application before the application was complete. Third, Respondent claims the applicant has not demonstrated honesty, truthfulness, trustworthiness, good character, and a good reputation for fair dealing. Finally, Respondent considers the applicant’s testimony in explanation or mitigation of the crime and omission in his initial application to be unpersuasive. The application discloses two felony convictions on November 23, 1993. When Petitioner was approximately 18 years old, Petitioner and three other teenagers committed aggravated battery with a deadly weapon and armed robbery against two male adults in Lee County, Florida. One of the teenagers struck each victim with a baseball bat; took articles of clothing, jewelry, wallets, and fishing rods and reels from each victim; and divided the articles among the perpetrators. Each teenager was under the influence of alcohol and controlled substances, including marijuana and other drugs. The victims required hospital treatment. The two felony convictions involve crimes of moral turpitude. The crimes exhibit inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society. The two felony convictions are grounds for revoking or suspending a real estate license. On March 29, 1995, Petitioner pled nolo contendere to two counts of robbery with a deadly weapon and two counts of aggravated battery. The court adjudicated Petitioner guilty, sentenced Petitioner to 10 years’ imprisonment, to be followed by two years of probation, and ordered Petitioner to pay $1,500.00 in restitution to the victims. When the court convicted Petitioner on March 29, 1995, Petitioner was not qualified for a real estate sales associate license within the meaning of Subsection 475.17(1)(a). The statute deems that Petitioner is not qualified for a real estate sales associate license today, unless by lapse of time and subsequent good conduct and reputation or other sufficient reason, it appears the interest of the public and investors will not likely be endangered by licensing Petitioner. For reasons stated hereinafter, a preponderance of evidence shows the crimes in 1993 do not make it likely that licensing Petitioner as a real estate sales associate will endanger the public. The testimony of Petitioner in explanation and mitigation of the crimes committed in 1993 is persuasive. Petitioner did not inflict physical harm on either of the victims. Petitioner’s participation was limited to driving the vehicle, which was his mother’s car, used in the commission of the crimes and accepting a portion of the stolen property. Petitioner was intimidated by the teenager who used the baseball bat on the victims, and that teenager was under the influence of alcohol and controlled substances. When arrested, Petitioner admitted his guilt to police and cooperated fully in the investigation. When sentenced, Petitioner faced the victims in open court, admitted his guilt, accepted responsibility, and apologized to the victims and their family members. Sufficient time has lapsed for Petitioner to be rehabilitated and to overcome the statutory presumption of unfitness. Approximately 15 and 14 years have passed, respectively, from the dates of the commission and conviction of the crimes. Almost six years have passed from the successful completion of probation on June 5, 2003. Petitioner’s subsequent good conduct after 1993 demonstrates his rehabilitation. Petitioner paid the $1,500.00 in restitution ordered by the court. Petitioner was released from prison in late 1999, after serving four years and eight months of his 10-year sentence. While in prison, Petitioner took classes in drafting, anger management, and life skills. Petitioner also attended alcoholics anonymous and narcotics anonymous. Petitioner taught other inmates and read extensively. Petitioner also assisted with the development of a volley ball team for prisoners. Upon release from prison in late 1999, Petitioner moved to North Carolina for approximately two years, primarily to avoid contact with his former peer group. Petitioner worked two jobs and attended college where he continued to study drafting. In North Carolina, Petitioner was injured in an automobile accident and suffered severe head injuries. Petitioner was in a coma for nine days. After recovering from his injuries, Petitioner returned to his family in Lee County, Florida. Petitioner has been gainfully employed, self-supportive, and has been working for the past couple of years in a real estate office as an unlicensed assistant. Petitioner has earned a reputation for honesty, truthfulness, trustworthiness, and good character and has earned a good reputation for fair dealing in a relationship of trust and confidence with safety to investors. Petitioner’s girlfriend and grandmother are each licensed by Respondent as real estate brokers. Both licensees recommend Petitioner for licensure. Two disinterested licensees also recommend Petitioner for licensure.2 On February 14, 2007, Petitioner was convicted of a DUI misdemeanor. Petitioner paid the court-ordered fine and satisfactorily completed his sentence of community service and probation. A preponderance of evidence does not show that the misdemeanor conviction for DUI is a crime of moral turpitude or one that directly relates to the duties of a real estate sales associate. Respondent did not cite any legal authority to show that the DUI conviction would be a ground for license revocation or suspension, if Petitioner were licensed. Finally, the DUI conviction does not evidence a lack of honesty, truthfulness, trustworthiness, good character, or fair dealing. The initial application from Petitioner omitted the DUI conviction. Petitioner corrected the omission before the application became final and before Respondent formulated any proposed agency action. Respondent notified Petitioner by letter dated August 5, 2008, of the omission. The letter notified Petitioner that the application was incomplete without documentation of the DUI conviction and requested the documentation needed to complete the application. Petitioner promptly complied and provided the requested documentation on August 22, 2008. If the initial application had disclosed the DUI conviction, Respondent cited no legal authority that would make the DUI conviction a ground for denying the application. Petitioner did not omit the DUI conviction from the initial application through a lack of candor. The testimony of Petitioner was credible and persuasive.3 The omission of the DUI conviction from the initial application evidences a lack of diligence. Any incompetence or lack of diligence that remains after August 22, 2008, when Petitioner completed the license application, can be corrected through a probationary license authorized in Florida Administrative Code Rule 61J2-24.001(2).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order granting a probationary salesperson license to Petitioner consistent with the terms of this Recommended Order. DONE AND ENTERED this 24th day of April, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 April, 2009.
The Issue Whether Petitioner has shown, by clear and convincing evidence, that she is rehabilitated from her disqualifying offenses; and, if so, whether Respondent's intended action to deny Petitioner's request for an exemption from employment disqualification would constitute an abuse of discretion.
Findings Of Fact APD serves clients with disabilities such as autism, intellectual disabilities, Downs Syndrome, and Prader-Willi Syndrome. APD's clients range from those needing total care to those who can live on their own with minimal assistance. The services APD provides to its clients include personal care, respite care, adult day training, supported living, and a wide variety of other services. The aforementioned services are provided by APD's vendors in individual homes, group homes, and supported living arrangements. Petitioner is seeking to work as a direct service provider in a group home for persons with developmental disabilities. Section 435.06(2), Florida Statutes, mandates that an employer may not hire someone for a position requiring contact with any "vulnerable person" until a completed background screening "demonstrates the absence of any grounds for the denial or termination of employment." The Department of Children and Families ("DCF") administers the background screening process for APD. APD's Action Petitioner's background screening identified three felony counts that are disqualifying criminal offenses, and all for resisting an officer with violence to his person. On November 14, 2016, DCF notified Petitioner that she was disqualified from employment due to her criminal history and specifically because of the three counts of resisting an officer with violence to his person from a November 26, 1975, Miami Dade incident. On or around December 1, 2016, Petitioner submitted a request for exemption, which included the exemption application and questionnaire to DCF. The instructions provided: "[f]or EACH criminal offense appearing on your record, please write your DETAILED version of the events and be specific. Attach extra pages as needed and please type or write legibly. When Petitioner filled out the questionnaire, she provided the following answers to each question on the exemption questionnaire: Question #1 asked for "disqualifying incident(s)." Petitioner responded "3 Counts of Resisting Arrest with Violence." In response to Question #2 "Non-disqualifying Offenses(s)," Petitioner again provided none of the details surrounding these offenses. She listed two non-disqualifying offenses, "Battery" and "Petit Theft" to which she had criminal dispositions. Question #3 asks, "What is the current status in the court system?" Petitioner responded, "N/A." In Response to Question #4 on her Exemption Questionnaire, regarding "the degree of harm to any victim or property (permanent or temporary), damages or injuries," Petitioner indicated "N/A." In answering Question #5, about whether there were "any stressors in [her] life at the time of the disqualifying incident," Petitioner again indicated "N/A." Question #6 asked whether there are any current stressors in her life, Petitioner responded: "[D]ivorced living at home with my 3 minor children. I am a spokes-person for the SEIU union. Fight for Fifteen. I feed the homeless in my community." As confirmed at hearing, Petitioner listed educational achievements and training as the following: Fla College of Business – Certified Nursing Assistant (1985) National School of Technology – Surgical Tech (1998) Food Service – Brevard C.C. Under Question #8 of the Exemption Questionnaire, in response to the question whether she had ever received any counseling, Petitioner indicated "N/A." Question #9 of the Exemption Questionnaire asks, "Have you ever used/misused drugs and alcohol? Please be specific and list the age at which you started and how you started." Petitioner again responded "N/A." Question #10 of the Exemption Questionnaire asks whether Petitioner was involved in any community activities. Petitioner responded, "I have volunteered with Senator Dwight Bullard, Fla. State Rep. McGhee, Mayor Woodard, Joe Garcia, etc." Question #11 asks the applicant to "Document any relevant information related to the acceptance of responsibility for disqualifying and non-disqualifying offenses." Petitioner responded as follows: "Yes. I accept responsibility at the time of this offense I was 17 years of age and trying to fit in with my friends. I have learned when you know better you do better." The Exemption Questionnaire also requested Petitioner to provide her three prior years' work history. Petitioner provided detailed information about her 18-year work history in the health care field, which included care of the vulnerable community. Petitioner has worked in a hospital, nursing home, private home, and with both mental health and hospice patients. Petitioner's answer also outlines how she had performed some of the same job responsibilities as a direct service provider for the following employers: JR Ranch Group Home LLC: C.N.A 10/3/16 to present-Companion to individual bathing, feeding, dressing, grooming, etc. Nurse Plus Agency: C.N.A. 3/12/08 to 9/7/15- Working in private homes with hospice patients bathing, feeding grooming, shaving, R.O.M. T.C.C. vital signs, doctor's appointments, etc. Gramercy Park Nursing Home: C.N.A. 2/15/05 to 3/12/08-Working in skilled nursing facility doing patient care, vitals, charting, lifting, bathing, feeding, dressing, physical therapy, etc. Jackson M. Hospital: C.N.A. 1/7/98 to 5/8/2001-Working on HIV unit, patient care, R.O.M., bed making, bathing, feeding, dressing, shaving, oral care, transferring, lifting, etc. On December 15, 2016, DCF sent a letter to Petitioner requesting additional documentation to complete the exemption application. Petitioner was asked to "provide the arrest report (from arresting agency) and CERTIFIED court disposition JUDGMENT AND SENTENCE" for the following offenses appearing on [her] criminal history screening report: 05/20/2013 MIAMI-DADE POLICE DEPARTMENT, BW DRIVING WHILE LICENSE SUSPENDED 5/11/2002 MIAMI-DADE POLICE DEPARTMENT, AGGRAV BATTERY 5/11/2002 MIAMI-DADE POLICE DEPARTMENT, AGGRAV BATTERY 12/22/2001 MIAMI-DADE POLICE DEPARTMENT, COUNTY ORD VIOL 1/13/1998 MIAMI-DADE POLICE DEPARTMENT, AGGRAV BATTERY 1/13/1998 MIAMI-DADE POLICE DEPARTMENT, BATTERY 1/13/1998 MIAMI-DADE POLICE DEPARTMENT, AGGRAV BATTERY 1/13/1998 MIAMI-DADE POLICE DEPARTMENT, BATTERY 9/28/1996 MIAMI-DADE POLICE DEPARTMENT, AGGRAV BATT-POL OFF 9/28/1996 MIAMI-DADE POLICE DEPARTMENT, RESISTING OFFICER 9/28/1996 MIAMI-DADE POLICE DEPARTMENT, BATTERY 9/28/1996 MIAMI-DADE POLICE DEPARTMENT, RESISTING OFFICER 4/11/1994 MIAMI-DADE POLICE DEPARTMENT, AGG ASSLT - WEAPON 4/11/1994 MIAMI-DADE POLICE DEPARTMENT, AGG ASSAULT –WEAPON 01/14/1991 MIAMI-DADE POLICE DEPARTMENT, SHOPLIFTING 11/07/1981 MIAMI-DADE POLICE DEPARTMENT, ASSAULT 11/07/1981 MIAMI-DADE POLICE DEPARTMENT, RESISTING OFFICER 11/07/1981 MIAMI-DADE POLICE DEPARTMENT, DISORDERLY CONDUCT The DCF letter also instructed Petitioner that if she could not obtain the arrest report and/or court disposition, she might submit a notarized written "detailed statement on each arrest explaining why you were arrested. You must include the victim's age and relationship to you and the sentence you received (probation, jail, prison, etc)." Additionally, the letter requested proof of income, an affidavit of good moral character, two to five letters of recommendation, and a personal history explaining what happened with each arrest, current home life, education, training, family members, goals, and community involvement. The letter provided Petitioner a 30-day deadline and notified Petitioner "[n]o further action [would] be taken on [her] application for exemption until we receive the requested information." (emphasis added). On or about December 21, 2016, Petitioner complied with the DCF letter and provided 99 pages of documents including Florida Criminal History Record requested, certified police arrest reports, notarized printed dockets of her criminal offenses with court dispositions, notarized document from the Clerk of Circuit and County Court Harvey Ruvin listing all Petitioner's criminal charges and court dispositions available in Miami-Dade, certificate of parole, 2009 certificate of restoration of civil rights, taxes, nursing assistant certification, certificate of liability insurance, continuing education certificates, program certificates, June 13, 2015, White House Conference on Aging program listing Petitioner as a speaker at the White House, 2015 newspaper articles detailing Petitioner's substantive work in minimum pay raise advocacy nationwide for the Fight for Fifteen campaign, letters of recommendation, driving history records, ACHA exemption to work in the healthcare field as a Certified Nursing Assistant ("CNA"), and a personal statement. Petitioner's personal statement and testimony at hearing provided a comprehensive history of how she has been a caregiver since 1982 "working [i]n hospitals, nursing homes, mental health, hospice, private homes, SLF, etc." Petitioner's statement further detailed that she became a Certified Nursing Assistant in 1985 after the disqualifying offense incident and became a surgical technician in 1997. Petitioner also provided the requested following explanations for each of her arrests: 1.) 11/26/1975: I was arrested for (3) counts of resisting arrest with violence. At the time I was 17 years of age hanging with the wrong crowd. 2.) 11/07/1981: Was at a party drinking got in fight with boyfriend. No case action. 3.) 01/14/1991: In store buying groceries didn't realize there were a pair of socks in my buggy charged with petty theft no way I would have stolen a pair of one dollar socks. Judge was dumbfounded. 4.) 04/11/1994: Got into argument with my mother in which she was drinking she called police to say I had a gun. In which was not true. Office[r] ask me had I ever been to jail I stated yes he then said put your hands behind your back then placed me under arrest. My Mom was there next morning to bond me out. Case No Action. 5.) 09/28/1996: I was witness to a murder I told officer what I seen but didn't want to speak in front of people, also did not want to be labeled as a snitcher. I told the officer I would come to talk but I would not walk with him. I proceeded to walk away the officer grabbed me by the back of my hair, the officer and I proceeded to fight at that time other people got involved. The lead detective asked the officer why he did that. The lead detective promise me he would come to court with me in which he did case was dismissed. Case No Action. 6.) Boyfriend and I got into argument he was drinking and he wanted to drive I told him no he wouldn't give me my keys, so I proceeded to knock head lights out. Case No Action. 7.) 01/13/1998: Got in fight with boyfriend. Case No Action. Petitioner responded to the best of her ability to each of DCF's requests for information. DCF summarized Petitioner's 99 document submission in an Exemption Review Summary ("summary") and forwarded the application, questionnaire, and supporting documents to APD for review. The summary correctly identified Petitioner's 1975 acts of resisting an officer as the disqualifying offenses. The summary outlined twelve non-disqualifying offenses with which Petitioner was charged. However, the summary categorized one non-disqualifying offense as a driving charge and outlined an additional nine non-disqualifying offenses as dismissed or dropped, as Petitioner had reported in her personal statement when she said "no action" was taken. The summary only listed a 1991 shoplifting charge and a 2001 county ordinance violation for which Petitioner was prosecuted. On March 17, 2017, Agency Director Barbara Palmer advised Petitioner by letter that her request for an exemption from the disqualification has been denied. The basis for the denial was that Petitioner failed to submit clear and convincing evidence of her rehabilitation. On May 1, 2017, Petitioner requested to appeal APD's denial. Hearing At hearing, as well as in the exemption package, Petitioner took full responsibility for her disqualifying offenses. At hearing, Cunningham also showed remorse. In her personal statement she stated she "paid her debt to society . . . learned from [her] mistakes." Petitioner also credibly explained the circumstances at hearing for her 1975 disqualifying convictions and testified that she was 17 years old when she broke into the neighbor's empty house across the street and was hanging out there. When she was arrested they were handling her roughly. She was originally charged with burglary, larceny and resisting arrest. The burglary and larceny charges were dropped and she pled to three counts of resisting an officer with violence to his person. Petitioner was sentenced to a youth program but left it, was bound over as an adult, and was sentenced to prison where she served three and a half years. Petitioner successfully completed her parole on August 23, 1981, and her civil rights were restored on May 8, 2008. Petitioner testified to her other non-disqualifying offenses as she had detailed in her personal statement. She explained that the 1981 criminal charge was dropped and stemmed from a fight with her boyfriend while at a party where she had been drinking. In 1994, her mom, who was a drinker, was acting out and called the police on Petitioner. Her mother lied and told the police Petitioner had a gun, which she did not. The police asked Petitioner if she had been to jail previously and she answered yes and was arrested. Her mother came and got her out of jail the next morning and the case was dismissed. Petitioner verified that in 1996, she would not tell the police officer what she saw regarding a murder because she was going to the police station to report it privately. The officer grabbed her from behind, they fell to the ground, and she was arrested for Battery on an Officer. The next day the lead detective came to court and testified on Petitioner's behalf that the officer's behavior was inappropriate and Petitioner was released and the charges were dropped. Petitioner also explained that she received another arrest because her boyfriend was drunk and took her car keys and was going to drive. Petitioner testified she could not stop him so she knocked the headlights and windows out of her car to prevent him from driving and ultimately the charges were dropped. Petitioner confirmed at hearing that at least nine of the criminal charges she obtained were either dismissed or dropped and she had not been arrested in over 10 years. Petitioner's credible detailed testimony during the hearing was information that APD did not have the benefit of having while reviewing her application. Petitioner affirmed that she had a July 1999 public assistance fraud case on which adjudication was withheld for her trading food stamps to pay her light bill. DCF failed to ask Petitioner about the case in the request letter with the list of other charges. Petitioner admitted that the public assistance fraud case was the only case in which Petitioner had to make restitution. She paid back the total amount of food stamps she sold and then her food stamps were reinstated. Evelyn Alvarez ("Alvarez"), APD Regional Operations Manager for the Southern Region, made an independent review of Petitioner's Request for Exemption, Petitioner's Exemption Questionnaire, and documentation submitted on December 21, 2016. Among the factors identified by Alvarez as a basis for the recommendation of denial of the exemption was the perception that Petitioner's application was incomplete. Alvarez determined Petitioner did not take responsibility for her arrests or show any remorse. Alvarez testified that APD needs to be able to rely on the answers provided by the applicant in the Exemption Questionnaire to get the information needed to decide whether to grant an exemption. Although she relied on other information gathered as well, what the applicant stated in the Exemption Questionnaire is very important. Alvarez explained that she considered both Petitioner's disqualifying and non-disqualifying offenses, the circumstances surrounding those offenses, the nature of the harm caused to the victim, the history of the applicant since the disqualifying incident, and finally, any other evidence indicating whether the applicant will present a danger to vulnerable APD clients if employment is allowed. Alvarez also testified that she looked for consistency in the applicant's account of events in her Exemption Questionnaire, whether or not the applicant accepted responsibility for her actions and whether the applicant expressed remorse for her prior criminal acts. Alvarez concluded that there were inconsistencies between Petitioner's account of her disqualifying and non-disqualifying offenses compared with those found in the police reports. Alvarez further testified she was concerned that Petitioner had numerous traffic citations. Alvarez explained the citations concerned her because individuals who are granted exemptions would potentially be in positions to transport clients and an applicant that maintains a good driving record demonstrates an ability to ensure the health and safety of clients being served. At hearing, Petitioner testified that her driving record "was not the best." The summary detailed that the 2008 infractions included failure to pay required tolls, improper left, and lack of proof of insurance. Petitioner also had other driving offenses, such as a DWLS and Driver License in 2007 and a safety belt violation in 2006. After her review, Alvarez decided that Petitioner had exhibited a continuing pattern of criminal offenses over an extended period of time, many of which were violent and involved fights, and she concluded Petitioner had not demonstrated rehabilitation. At hearing, Tom Rice ("Rice"), APD Program Administrator for Regional Supports/Licensing, testified that an individual's good character and trustworthiness is important for individuals who provide direct care for APD because service providers are frequently responsible for assisting individuals in making decisions of a financial, medical, and social nature. APD must weigh the benefit against the risk when considering granting an exemption. Rice explained that APD's clients are susceptible to abuse because they are reliant on others to assist with intimate tasks, such as getting dressed, going to the bathroom, feeding, medicine, and funds. Direct service providers need to care and keep clients safe. Rice verified that Petitioner was eligible to work in an APD group home as a CNA. Rice also testified that APD was concerned with Petitioner's failure to disclose details in her accounts regarding her criminal offenses because it calls into question her trustworthiness. He further testified such factors demonstrate a pattern of poor judgment and decision-making and provide cause for APD to question Petitioner's fitness for providing services to the vulnerable individuals for which it is responsible and that is why Petitioner was denied. Findings of Ultimate Fact Upon careful consideration of the entire record, the undersigned finds that Petitioner has demonstrated by clear and convincing evidence that she is rehabilitated from her disqualifying offenses of resisting an officer with violence to his person and that she will not present a danger to disabled or otherwise vulnerable persons with whom she would have contact if employment in a group home were allowed. Petitioner has shown she is a responsible individual by successfully holding jobs in the health field for approximately 18 years. Her employment has been in positions where she cared for vulnerable persons and no evidence was presented that Petitioner was a danger while doing so. Instead, Petitioner's exemption package mirrors her credible testimony of her previous employment serving as a companion, bathing, feeding, dressing, grooming, taking vital signs, transporting patients to doctor's appointments, and working in a private home, which are personal care services that some direct service providers also supply. Petitioner was honest and forthright about her past and supplied 99 pages detailing her past to comply with DCF's request to complete her application. Petitioner testified convincingly that she has turned her life around. Petitioner's only disqualifying offenses occurred over 40 years ago. Even though she was arrested at least twelve times since then, nine of the charges were dismissed and Petitioner's last criminal arrest was 2002. Petitioner also obtained three certificates after her disqualifying offenses. Petitioner received licensure as a CNA and she has been successfully practicing under her license with an ACHA exemption in the health care field. Some of Petitioner's work has even been with vulnerable adults in both a hospital and nursing home. The undersigned further finds that denial of Petitioner's exemption request would constitute an abuse of discretion. As discussed above, it appears Respondent relied heavily on the initial application submitted, hearsay in the police reports, and traffic infractions, and failed to adequately consider the 99 pages and nine dismissed charges Petitioner provided regarding her rehabilitation. In doing so, Respondent failed to properly evaluate Petitioner's disqualifying offenses having occurred over 40 years ago and the last non-disqualifying criminal arrest being at least 15 years ago and the majority of the charges being dismissed. The evidence also indicates that Petitioner has performed successfully in a healthcare work setting, including some care of vulnerable individuals. Additionally, Petitioner has gone above and beyond to contribute in the community. She volunteers with the homeless and also volunteers with legislators and a mayor, and advocated nationally for a minimum wage increase in the Fight for Fifteen campaign, serving as the spokes-person. In 2015, the White House also extended an invitation to Petitioner to speak because of her advocacy, and Petitioner passed the background check and screening that the secret service conducted. As Petitioner testified at hearing, had she been any type of threat or been dangerous or violent based on her previous arrests, she would not have passed the high security screening and been allowed in the White House to speak. Petitioner also testified she does not have anything to hide. She demonstrated, by credible and very compelling evidence, that she made wrong decisions and took the initiative to turn her life around. For these reasons, it is determined that no reasonable individual, upon fully considering the record in this proceeding could find that Petitioner is not rehabilitated. The concerns expressed by Respondent in formulating its intended action, without the benefit of hearing testimony, particularly with those regarding her untruthfulness and lack of remorse for her actions, were effectively refuted by the credible testimony at hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Agency for Persons with Disabilities, enter a final order granting Petitioner, Molita Cunningham's, request for an exemption from disqualification from employment. DONE AND ENTERED this 13th day of September, 2017, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of September, 2017. COPIES FURNISHED: Kurt Eric Ahrendt, Esquire Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Molita Cunningham 12437 Southwest 220th Street Miami, Florida 33170 (eServed) Jada Williams, Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 335E Tallahassee, Florida 32399-0950 (eServed) Richard D. Tritschler, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Barbara Palmer, Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
The Issue The issue is whether Respondent's certification as a Firefighter II Compliance should be permanently revoked for the reasons stated in the Administrative Complaint (Complaint), dated June 6, 2018.
Findings Of Fact The Department is the state agency responsible for licensing and regulating firefighters in the State. Respondent is certified in Florida as a Firefighter II Compliance. He holds Certificate No. 139586. Until the incident underlying this controversy arose, Respondent was employed by the Sarasota County Fire Department as a firefighter/paramedic. He now is working in the emergency room of a local hospital. The parties have stipulated that on March 21, 2018, Respondent entered a plea of nolo contendere to aggravated assault with a weapon, a third-degree felony punishable by imprisonment of one year or more under Florida law. Adjudication was withheld, Respondent was placed on probation for a period of two years, and he was ordered to pay court costs, fines, and fees in the amount of $1,525.00. See also Dep't Ex. 19. In response to the Complaint, Respondent essentially argues that: (a) he should not have been charged with the underlying criminal offense because he was defending himself against an aggressor in a road rage incident, and (b) he entered a nolo contendere plea based on bad advice from his attorney. At hearing, Respondent gave his version of the events resulting in his arrest. Also, two police officers involved with his arrest testified to what they observed and reported. Their testimony conflicts in many respects with Respondent's testimony. The undersigned will not attempt to reconcile the conflicts, as this proceeding is not the appropriate forum in which to relitigate the criminal charge. During the criminal case, Respondent was represented by a criminal law attorney who presented him with two options: enter into a plea arrangement or go to trial and risk a harsher penalty if he were found guilty. Respondent says he accepted his counsel's recommendation that he enter a plea of nolo contendere on the belief that he would not have a felony arrest on his record. After the plea agreement was accepted by the court, Respondent learned that the plea required revocation of his certification and loss of his job. Respondent also testified that even though he paid counsel a $15,000.00 fee, his counsel did little or no investigation regarding what happened, as he failed to depose a single witness before making a recommendation to take a plea.1/ In hindsight, Respondent says he would have gone to trial since he now believes he had a legitimate claim to the "castle defense," and the so-called victim in the incident (the driver of the other car) has a long criminal history and is now incarcerated. At this point, however, if Respondent believes an error in the legal process occurred, his only remedy, if one exists at all, is through the court system and not in an administrative proceeding. A felony plea constitutes noncompliance with the certification statute and requires permanent revocation of a certification. According to a Department witness, however, five years after all requirements of the court's sentencing have been met, the Department has the authority "in a formal process" to make a "felony conviction review" that may result in the reissuance of a certification. Except for this incident, Respondent has no other blemishes on his record. He served in the United States Marine Corps, with combat tours of duty in Iraq and Afghanistan, he was honorably discharged, and he was honored for saving a life at a Target store while off-duty. He has apologized for his actions, taken an anger management course, and received further treatment for Post-traumatic Stress Disorder at a local Veteran's Administration facility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order permanently revoking Respondent's certification. DONE AND ENTERED this 15th day of February, 2019, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 15th day of February, 2019.
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.
