STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, DIVISION OF ) LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 91-0480

)

GARY W. CIANI PRIVATE ) INVESTIGATIONS, GARY WAYNE CIANI, )

Owner, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on May 29, 1991, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Henri C. Cawthon, Esquire

Assistant General Counsel Department of State Division of Licensing

The Capitol, MS 4

Tallahassee, Florida 32399-0250

For Respondent: Michael G. Widoff, Esquire

2929 East Commercial Boulevard Suite 501

Fort Lauderdale, Florida 33308 STATEMENT OF THE ISSUES

At issue in this proceeding is whether respondent, the holder of a Class "A" private investigative agency license and Class "C" private investigator license, should be disciplined for having been convicted of a felony in the Untied States District Court, Southern District of Florida, and, if so, what disciplinary action should be taken.

PRELIMINARY STATEMENT

By administrative complaint dated December 5, 1990, petitioner charged that respondent, the holder of a private investigative agency license and private investigator license, had been convicted of a felony in the United States District Court, Southern District of Florida, and proposed to revoke his licensure under the provisions of Section 493.6118(4), Florida Statutes (1990). Respondent filed an election of rights which disputed the facts upon which the agency proposed to take action, and requested a formal hearing. Thereafter, on

January 23, 1991, the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At hearing, petitioner called no witnesses, but its exhibit 1 was received into evidence. Respondent testified on his own behalf, and offered the testimony of the following additional witnesses: The Honorable Robert L. Andrews, Circuit Judge, Seventeenth Judicial Circuit; David Bogenschultz, attorney; Jon Krupnick, attorney; Kelly Hancock, attorney; Joseph Gerwins, Police Chief, City of Fort Lauderdale; and Robert Pusins, Captain, City of Fort Lauderdale Police Department. Respondent's exhibits 1 and 2 were received into evidence.

The transcript of hearing was not ordered, so the parties were granted leave until June 10, 1991, to file proposed findings of fact. The parties' proposed findings have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

The charges

1. Respondent, Gary W. Ciani Private Investigations, Gary Wayne Ciani, Owner (Ciani), holds a Class "A" private investigative agency license, number A88-00273, effective October 31, 1990, and a Class "C" private investigator license, number C87-00530, effected August 6, 1989. Both licenses were issued pursuant to Chapter 493, Florida Statutes.

   
   

2. On September 14, 1990, in the United States District Court, Southern District of Florida, Case No. 87-6021-CR-Gonzalez, Ciani, based on a plea of guilty, was convicted of a felony, to wit: violation of Title 28, USC Section 5861(d) and 5871-- possession of a firearm (one silencer) that was not registered to him in the National Firearms Registration and Transfer Record. The court withheld the imposition of a period of confinement, and placed Ciani on probation for a period of 24 months. As a special condition, the court directed that, without regard to any existing policies of the U.S. Probation Office, Ciani be permitted to maintain his employment as a private investigator so long as he was so licensed by the State of Florida.

   
   

   The person

   
   

3. Ciani has been a resident of Fort Lauderdale, Florida, since 1954. He is married, the father of three daughters, and was, until being charged with the offense leading to his conviction discussed supra, a career officer with the Fort Lauderdale Police Department. In all, Ciani dedicated 17 years and 8 months of his life as a police officer to the City of Fort Lauderdale, the last

   8 years of which were served with the Homicide Division. During such period, Ciani earned a reputation, which he continues to enjoy, as a very competent officer and investigator, as well as an excellent reputation for honesty and truthfulness.

   
   

4. The firearms violation, which ultimately resulted in Ciani's guilty plea and conviction, had its genesis when Ciani sought to sell an automatic weapon he had previously acquired for use in his employment. Regarding such firearms, the proof demonstrates that other officers owned similar weapons, used such weapons in the course of their employment, and that no officer had ever been prosecuted for possessing such a weapon. The proof is, however, silent as to whether such other officers had registered their firearms as required by law.

5. Notwithstanding, Ciani was, more likely than not, targeted for prosecution by Federal authorities in retribution for his refusal to curtail an investigation he had undertaken of a Federal confidential informant (CI) who he suspected of murder. In this regard, the proof demonstrates that shortly after securing an indictment against the CI, Ciani was approached out-of-the-blue by a licensed gun dealer, who inquired as to whether Ciani was interested in selling his weapon. Ciani, having no further use for the weapon, and believing a sale to a licensed dealer would be permissible, subsequently met with the dealer at his premises to make the sale, and was shortly thereafter arrested and charged with the subject offense.

   
   

6. Recognizing that federal law made no provision for withholding an adjudication of guilt, Ciani, upon advice of his counsel, entered into a plea agreement with the federal prosecutor which, if consummated, would have allowed him to plead guilty to a State weapons charge in exchange for a sentence of five years probation with adjudication of guilt withheld. Additionally, Ciani agreed to resign from his position as a law enforcement officer for the Fort Lauderdale Police Department, and not seek any law enforcement employment during his period of probation. In return, the United States agreed to dismiss the federal indictment.

   
   

7. In reliance upon the plea agreement, Ciani resigned from the Fort Lauderdale Police Department, and forfeited the eighteen years he had accrued toward his pension. Thereafter, he opened a new business for the support of his family as a private investigator, and has been so employed since August 1987. During that period, he has acquired twelve of the largest civil law firms in Dade and Broward Counties as clients, and has earned a reputation as a responsible private investigator, whose conduct conforms to the highest of moral and ethical standards.

   
   

8. While Ciani had complied with those terms of the plea agreement within his control, his counsel and the U.S. Attorney were unsuccessful in convincing the State Attorney to file the requisite State charges that would consummate the agreement. Accordingly, in August or September 1990, more than three years after the plea agreement had been executed, Ciani was informed that such agreement was, by its terms, void, and that he would have to plead guilty to the charge or stand trial. Recognizing the uncertainties of criminal prosecution, Ciani elected to plead guilty to count two of the indictment, and the remaining four counts were dismissed.

   
   

9. Petitioner, at least since November 23, 1987, has been aware of the criminal charges pending against Ciani, as well as the plea agreement that had been entered into between Ciani and the United States Attorney, and continually renewed his licenses until the subject conviction was rendered and these revocation proceedings were commenced. Additionally, the Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), was aware of the criminal charges pending against Ciani. In apparent recognition that Ciani's actions did not demonstrate that he failed to possess the requisite good moral character demanded of law enforcement officers, the Commission limited the disciplinary action it took against Ciani to a suspension of his certification for the period of January 31, 1988 through January 31, 1990.

   
   

10. Overall, the proof offered in this proceeding demonstrates that Ciani is a person of good moral character, who ascribes to the highest of ethical standards, and a responsible investigator. It further demonstrates that, were

    Ciani afforded the opportunity to continue as a private investigator, the public would not be adversely affected.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sections 120.57(1) and 120.60(7), Florida Statutes.

    
    

12. At issue in these proceedings is whether Ciani's Class "A" private investigative agency license and Class "C" private investigator license should be disciplined for having been convicted of a felony in the United States District Court, Southern District of Florida. In cases of this nature, the petitioner bears the burden of proving its charges by clear and convincing evidence. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

13. Pertinent to this case, Section 493.6118, Florida Statutes (1990), provides:

    
    

    493.6118 Grounds for disciplinary action.--

    1. The following constitute grounds for which disciplinary action specified in subsection (2)

       may be taken by the department against any licensee, agency, or applicant regulated by this chapter, or any unlicensed person engaged in activities regulated under this chapter.

       
       

       (c) Conviction of a crime which directly relates to the business for which the license is held or sought, regardless of whether imposition of sentence was suspended...

       
       

    2. When the department finds any violation of subsection (1), it may do one or more of the following:

       1. Deny an initial or renewal application for license.

       2. Issue a reprimand.

       3. Impose an administrative fine not to exceed $1,000 for every count or separate offense.

       4. Place the licensee on probation for a period of time and subject to such conditions as the department may specify.

       5. Suspend or revoke a license.

          
          

          (4) Notwithstanding the provisions of paragraph (1)(c) and subsection (2), if the applicant or licensee has been convicted of a felony in any state or o

          against the United States which is design felony, or convicted of an offense in any oth territory, or country punishable by impriso a term exceeding 1 year, the department sh

          the application or revoke the license unless and until civil rights have been restored by the State of Florida or by a state acceptable to Florida and a period of 10 years has expired since final release from supervision....

14. Here, the proof is clear and convincing that Ciani was convicted of a felony in the United States District Court, Southern District of Florida, on September 14, 1990, and placed on probation for a period of 24 months. Accordingly, a period of 10 years has not yet expired since his final release from supervision, and there is no proof that his civil rights have been restored, as mandated by Section 493.6118(4), Florida Statutes (1990).

    
    

15. But for the mandatory language of Section 493.6118(4), Florida Statutes (1990), the facts of this case would not warrant the extreme sanction that is to be imposed upon Ciani. Rather, at most, a term of probation for a period of time and subject to such conditions as the petitioner might reasonably specify, would adequately address the offense he committed while, at the same time, protecting the interests of the public. The provisions of the law are, however, clear and mandatory, and the Hearing Officer is constrained to apply the law as written. Dura lex sed lex (the law is hard, but it is the law).

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered revoking the Class "A" private

investigative agency license and Class "C" private investigator license of Respondent, Gary W. Ciani Private Investigations, Gary Wayne Ciani, Owner.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of June 1991.

WILLIAM J. KENDRICK

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 June 1991.

APPENDIX

Petitioner's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 1.

2. Addressed in paragraph 2.

Respondent's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 2.

2. Addressed in paragraphs 4 and 5.

3. Addressed in paragraphs 6-8.

4 & 5. Addressed in paragraph 9.

6. Addressed in paragraphs 3, 7, and 10.

Copies furnished:

Henri C. Cawthon, Esquire Assistant General Counsel Department of State Division of Licensing

The Capitol, MS 4

Tallahassee, Florida 32399-0250

Michael G. Widoff, Esquire 2929 East Commercial Boulevard Suite 501

Fort Lauderdale, Florida 33308

The Honorable Jim Smith Secretary of State

The Capitol

Tallahassee, Florida 32399-0250

488-3680

Phyllis Slater General Counsel Department of State The Capitol

Tallahassee, Florida 32399-0250

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-000480

Orders for Case No: 91-000480