STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALEX MARRERO, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1437S

)

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, WILLIAM B. THOMAS, held a formal hearing in this case on October 23, 1981, in Miami, Florida. The parties reserved the right to submit proposed findings of fact and conclusions of law, and were accorded ten days within which to file the same. None were received from the Petitioner.

Those submitted by the; Respondent are accepted, and have been adopted herein.

APPEARANCES

For Petitioner: Edward J. O'Donnell, Esquire

1125 Northeast 125th Street, Suite 300 North Miami, Florida 33161

For Respondent: James V. Antista, Esquire

Room 106, R.A. Gray Building Tallahassee, Florida 32301

This matter was referred to the Division of Administrative Hearings on the Petitioner's request for a formal hearing to determine his eligibility for a Class A (private investigative agency) License, and for a Class B (watchman, guard, or patrol agency) License, under Chapter 493, Florida Statutes. By letter dated May 6, 1981, the Licensing Division of the Department of State had notified the Petitioner that his application for these licenses was denied for failure of the Petitioner to meet the requirement prescribed in subsection 493.306(2), Florida Statutes. Specifically, this provision permits the Department of State to refuse to license an applicant who is found to lack good moral character, under certain circumstances. The Petitioner's application also was denied on the basis of subsection 493.319 (1)(j), Florida Statutes, authorizing license denial when an applicant has committed assault, battery, kidnapping or use of force or violence on any person except in self-defense.

However, the facts detailed below rendered this rationale inapplicable.

The Petitioner testified in support of his contention that he meets the statutory requirements for issuance of a Class A license. The Division of Licensing presented no witnesses. Two exhibits were offered and received in evidence. During the course of the hearing the Petitioner withdrew his application for a Class B license.

FINDINGS OF FACT

1. The Petitioner, Alex Marrero, age 27, has never been convicted of a crime. He became a Dade County police officer in 1975. During his work as a police officer he received numerous commendations and citations from the Kiwanis Club and his supervisors for outstanding service. One year he was Officer of the Month once, and runner-up for Officer of the Year.

   
   

2. During the course of his employment as a police officer, however, the Petitioner became one of the subjects of an investigation by the Internal Security Bureau of the Dade County Public Safety Department, which related to the arrest and beating of Arthur McDuffie on the night of December 17, 1979. As a result of this investigation, the Petitioner was discharged as a police officer on February 1, 1980, by the Director of Public Safety.

   
   

3. The Petitioner's termination from employment was reviewed by a hearing examiner for Dade County at hearings held on April 29 and May 15, 1981, which resulted in the issuance of a recommendation dated June 19, 1981, that the discharge of the Petitioner be upheld. Thereupon, on July 16, 1981, the County notified the Petitioner that his dismissal from service was confirmed.

   
   

4. The Petitioner admitted the fact that the recommendation of the hearing examiner was based upon findings that he used unnecessary force in the arrest of Arthur McDuffie which contributed to his death. He also admitted that the hearing officer found that he had tampered with evidence to make the death of McDuffie appear to have been accidental. No administrative or judicial review of the Petitioner's discharge as a police officer has been undertaken.

   
   

5. Previously, in 1979, the Petitioner was charged with second degree murder and manslaughter and brought to trial in Circuit Court. The Petitioner pleaded self-defense, and he was found not guilty on all counts by a jury. There have been no other incidents in his life questioning his honesty or good moral character, according to the Petitioner.

   
   

6. Prior to his employment as a police officer the Petitioner worked for Preventative Security Service and Investigation, Inc. Since his termination as a police officer he has resumed investigative work with this employer, and he has also worked for a jewelry company in Miami as a security consultant.

   
   

7. The Petitioner contends that the same facts were before both the jury and the hearing officer relative to the arrest and beating of Arthur McDuffie, and that his acquittal by the jury after a trial wherein over ten witnesses were heard, is entitled to more weight than an administrative proceeding where only two witnesses testified. However, the jury verdict of not guilty after a self- defense plea, without more, is not subject to only a single interpretation. There is not sufficient evidence to support a finding that the death of Arthur McDuffie was justifiable or excusable. The only import of the jury's acquittal of the Petitioner is that he is not guilty of the crimes charged. Acts which might not be criminal offenses, or which may not have been proven sufficiently so as to warrant a conviction, may nevertheless be the basis for administrative proceedings and receive different treatment.

8. Further, the Petitioner presented no evidence to corroborate his own assertions relative to his character, past record, etc. In view of the circumstances surrounding the termination of the Petitioner's employment as a police officer by Dade County, there is not sufficient evidence to support a finding that the Petitioner meets the good character requirement for a private investigative agency license.

   
   

   CONCLUSIONS OF LAW

   
   

9. The requirements for issuance of the Class A license sought by the Petitioner are set forth in Section 493.306, Florida Statutes. Subsection (1)(b) requires each individual to be of good moral character. Subsection (2)(a) provides that good moral character "means a personal history of honesty, fairness, and respect for the rights of others, and for the laws of this state and nation." Subsection (2)(b)(1) permits the Department of State to refuse to license an applicant who lacks good moral character only if there is a substantial connection between the lack of good moral character and the business for which the license is sought. Subsection (2)(b)(2) of this statute further provides that the finding by the Department of lack of good moral character must be supported by clear and convincing evidence.

   
   

10. The Respondent had put the Petitioner on Notice that the license sought had been denied on grounds of lack of good moral character. At the hearing, the totality of the evidence presented relative to the Arthur McDuffie incident demonstrates the Petitioner's disrespect for the law and for the rights of others, and constitutes clear and convincing evidence of lack of good moral character. There was not sufficient evidence presented to support a contrary finding.

    
    

11. There is also a substantial connection between the lack of good moral character and the private investigative agency business for which the Class A license is sought. A license to operate a private investigative agency places the licensee in a position to acquire confidential information about persons and property. An applicant for such a license must be respectful of the law and of the rights of others.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Alex Marrero for a Class A Private

Investigative Agency license, be denied.

THIS RECOMMENDED ORDER entered on this 17th day of November, 1981, in Tallahassee, Florida.

WILLIAM B. THOMAS, 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 17th day of November, 1981.

COPIES FURNISHED:

Edward J. O'Donnell, Esquire Suite 300

1125 N.E. 125th Street North Miami, Florida 33161

James V. Antista, Esquire Room 106, R.A. Gray Building Tallahassee, Florida 32301

Docket for Case No: 81-001437

Orders for Case No: 81-001437