STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT E. RODRIGUEZ, )

)

Petitioner, )

)

vs. ) CASE No. 91-6442S

)

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Veronica E. Donnelly, held a formal hearing in the above-styled case on April 24, 1992, in Tampa, Florida.

APPEARANCES

For Petitioner: Joseph H. Ficarrotta, Esquire

600 Madison Street

Tampa, Florida 33602

For Respondent: Henri C. Cawthon, Esquire

Assistant General Counsel Department of State Division of Licensing

The Capitol, MS #4

Tallahassee, Florida 32399-0250 STATEMENT OF THE ISSUE

Whether the Department of State, Division of Licensing, should grant Petitioner's application for a Class "CC" Private Investigator Intern License.

PRELIMINARY STATEMENT

Petitioner, Robert E. Rodriguez (Rodriguez), filed an application for a Class "CC" Private Investigator Intern License with Respondent, Department of State, Division of Licensing (the Department), on April 29, 1991. By letter dated August 16, 1991, the application was denied. A request for formal hearing was submitted by Petitioner, and the case was referred to the Division of Administrative Hearings on October 8, 1991.

The parties agreed to the substitution of an Amended Denial letter dated April 23, 1992, for the original Denial. The revised letter was subsequently modified prior to hearing. The allegation that Petitioner committed fraud or willful misrepresentation in applying for a license was withdrawn by the Department. A misdemeanor charge dated February 18, 1970, that alleged liquor was sold by Petitioner after hours was also removed from consideration.

During the hearing, the allegation that Petitioner's records show two violations of probation charges dated February 19, 1985, was also removed as grounds for possible denial. The Department, however, contends that it has sufficient grounds to deny the application based upon the following: (1) a 1975 charge in Hillsborough County, Florida, regarding the purchase, receipt or concealment of stolen property; (2) the 1982 charges in Hernando County, Florida, on two counts of marijuana trafficking; and (3) the 1983 charges in St. Petersburg, Florida, for aggravated assault and carrying a concealed weapon.

Legally, the Department asserts that these facts show violations of: Subsection 493.6118(1)(j), Florida Statutes, commission of an act of violence or unlawful use of force; and Section 493.6118(3), Florida Statutes, lack of good moral character.

Three joint exhibits were submitted by the parties. Respondent's Composite Exhibit #1 was admitted without objection, with the understanding that the character references would be considered in lieu of live testimony regarding the question of Petitioner's good moral character. No testimony was presented at hearing. The Department and Petitioner relied upon the exhibits to prove their respective positions in the case.

The exhibits were filed with the Division of Administrative Hearings on May 11, 1992. Proposed Recommended Orders were timely filed by the parties.

Rulings on the proposed findings of fact submitted are in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. In July 1975, in Hillsborough County, Florida, Petitioner was arrested on the charge of buying, receiving and concealing stolen property. He was placed in the Pretrial Intervention Program, which he successfully completed. As a result, formal charges were either never filed or were dismissed by the State Attorney.

   
   

2. On January 18, 1982, Petitioner entered a nolo contendere plea to one charge of trafficking in excess of ten thousand pounds of cannabis in Hernando County, Florida. Adjudication of guilt and imposition of sentence was withheld by the court. Petitioner was placed on probation for twelve years.

   
   

3. On August 1, 1983, in Pinellas County, Florida, Petitioner entered pleas of nolo contendere to the offenses of aggravated assault with the use of a firearm and carrying a concealed weapon on or about his person. The court accepted Petitioner's pleas. Adjudications of guilt were withheld on August 1, 1983. Petitioner was placed on probation for a period of five years, to run concurrent with his probation in Hernando County, Florida.

   
   

4. Petitioner's probation in the trafficking case was terminated early in Hernando County, Florida, on March 14, 1985.

   
   

5. Petitioner's probation for the aggravated assault and the concealed weapon was terminated early in Pinellas County, Florida, on December 11, 1985.

   
   

6. Petitioner was never adjudicated guilty of the charges the Division used as the basis for the denial of his application. As a result, he has not been convicted of any of these crimes as the term "conviction" is defined in Subsection 493.6101(8), Florida Statutes.

7. Petitioner submitted eleven letters of good moral character from people in the community who have known him throughout the years and are aware of the prior criminal charges.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter, pursuant to Section 120.57(1), Florida Statutes.

   
   

9. At issue in this proceeding is whether the grounds given by the Department for the preliminary denial of Petitioner's application were factually accurate and legally sufficient.

   
   

10. For purposes of this hearing, Section 493.6118, Florida Statutes, provides as follows, in pertinent part:

    
    

    1. The following constitute grounds for which disciplinary action specified in subsection (2) may be taken by the department against any . . . applicant regulated by this chapter . . .

       * * *

       (j) Commission of an act of violence or the use of force on any person except in the lawful protection of one's self or another from physical harm.

       * * *

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

       5. Suspend or revoke a license.

    3. The department may deny an application for licensure citing lack of good moral character only if the finding by the department of lack of good moral character is supported by clear and convincing evidence. In such cases, the department shall furnish the applicant a statement containing the findings of the department, a complete record of the evidence upon which the determination was based, and a notice of the rights of the applicant to an administrative hearing and subsequent appeal.

       
       

11. As the terms are used in Chapter 493, Florida Statutes, "good moral character" and "conviction" are defined as follows in Subsections 493.6101(7) and 493.6101(8), Florida Statutes:

    
    

    1. "Good moral character" means a personal history of honesty, fairness, and respect for the rights and property of others and for the laws of this state and nation.

    2. "Conviction" means an adjudication of guilt by a federal or state court resulting from plea or trial, regardless of whether imposition of sentence was suspended.

    
    

12. In the Amended Denial, the Department based its decision to deny Petitioner's application for a Class "CC" Private Investigator Intern License on two separate grounds. Either ground, if proven, would result in licensure denial.

    
    

13. The first ground asserted was that Petitioner had committed acts of violence or unlawful use of force which could disqualify him from licensure pursuant to Subsection 493.6118(1)(j), Florida Statutes. The acts cited by the Department as the basis for this determination were the August 1, 1983 felony charges in Pinellas County, Florida, for aggravated assault with a firearm and carrying concealed weapon.

    
    

14. The evidence adduced at hearing was that Petitioner entered nolo contendere pleas to these charges. The court withheld adjudications of guilt or innocence after the pleas were accepted. Therefore, there have been no convictions. The Department's sole reliance at hearing on the fact that the nolo contendere pleas were accepted by the court is misplaced because such pleas are insufficient to establish that the events alleged by the Department occurred. See Section 90.410 and Subsection 493.6118(4), Florida Statutes. Additional evidence or legal presumptions which state that nolo contendere pleas are sufficient to establish that the events occurred for licensure purposes, regardless of conviction, would be necessary before the pleas could be afforded the interpretation or weight the Department seeks to grant them in this case. As a result, the first ground for denial has not been supported by competent evidence.

    
    

15. The second ground for denial stated by the Department was Petitioner's lack of good moral character. To support its claim, the Department cited the 1975 dealing in stolen property charge, the 1982 marijuana trafficking charge and the aforementioned 1983 aggravated assault with a firearm and carrying concealed weapon charges. In all cases of licensure denial by the Department for lack of good moral character, such findings must be supported by clear and convincing evidence.

    
    

16. The 1975 dealing in stolen property charge was either dismissed or never filed by the State Attorney based upon Petitioner's successful completion of the Pretrial Intervention Program. As a result, clear and convincing evidence was not presented to show such a crime ever took place.

    
    

17. The 1982 marijuana trafficking charge was not proved by clear and convincing evidence because the documents entered into evidence reveal only that the court withheld adjudication after Petitioner's nolo contendere plea was submitted. The accuracy of the charges was never established at hearing, and the nolo contendere pleas cannot be given the weight the Department wishes to afford them as a matter of law. Section 90.410, Florida Statutes.

    
    

18. The same legal conclusions apply to 1983 aggravated assault and concealed weapon charges as were previously discussed as adjudications were withheld after Petitioner entered nolo contendere pleas.

    
    

19. The Department's sole reliance on the documentary evidence in this case to prove lack of good moral character did not meet the required standard of

    proof mandated by statute. In all of the charges presented, with one exception, adjudication was specifically withheld by each court. In the exception, the charges were either dropped or never filed by the State Attorney. Accordingly, the Petitioner's application for licensure should not be denied for lack of good moral character based upon the documents presented at formal hearing.

    
    

20. Ultimately, the burden of proof in this case is on Petitioner, as the applicant, to prove entitlement to licensure. Florida Department of Transportation v. J.W.C. Co., 396 So.2d 788 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). In this case, Petitioner placed numerous written character references into evidence in lieu of live testimony upon agreement of the Department. Based upon this agreement, Petitioner's evidence was sufficient to prove that his application for licensure should be granted.

RECOMMENDATION

Based upon the foregoing, it is RECOMMENDED: Petitioner's application for a Class "CC" Private Investigator Intern License should be granted.

ENTERED this 17th day of June, 1992, in Tallahassee, Florida.

VERONICA E. DONNELLY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 1992.

APPENDIX TO RECOMMENDED ORDER

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

1. Accepted. See Preliminary Statement.

   
   

2. Accepted. See Preliminary Statement.

   
   

3. Accepted. See Hearing Officer finding #7.

The Department's proposed findings of fact are addressed as follows:

1. Accepted. See Preliminary Statement.

   
   

2. Rejected. Contrary to prehearing stipulation. See Preliminary Statement.

   
   

3. Accepted. See Hearing Officer finding #1.

   
   

4. Reject. Contrary to fact only one charge of trafficking in the Information and only one nolo contendere plea on a charge of trafficking. As

   the basis given for licensure denial was alleged trafficking charges, the importation of cannabis charge and nolo contendere plea were not considered by the Hearing Officer pursuant to Subsection 493.6118(3), Florida Statutes. See Hearing Officer finding #2.

   
   

5. Accepted. See Hearing Officer findings #3 and #5.

   
   

6. Accepted. See Hearing Officer finding #7.

   
   

   
   

   COPIES FURNISHED:

   
   

   Joseph H. Ficarrotta, Esquire 600 Madison Street

   Tampa, Florida 33602

   
   

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

   The Capitol, MS #4

   Tallahassee, Florida 32399-0250

   Phyllis Slater, Esquire

   Honorable Jim Smith General Counsel

   Secretary of State Department of State

   The Capitol The Capitol

   Tallahassee, Florida 32399-0250 Tallahassee Florida 32399

   
   

   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.

   
   

   =================================================================

   AGENCY FINAL ORDER

   =================================================================

   
   

   STATE OF FLORIDA

   DIVISION OF ADMINISTRATIVE HEARINGS

   
   

   ROBERT E. RODRIGUEZ,

   
   

   Petitioner,

   
   

   vs. CASE NO. 91-6442S

   DEPARTMENT OF STATE, DIVISION OF LICENSING,

   
   

   Respondent.

   /

   
   

   FINAL ORDER

   
   

   This cause came before the Department of State for consideration and final agency action. A formal administrative hearing was conducted pursuant to Section 120.57(1), Florida Statutes, on April 24, 1992, in Tampa, Florida, before a Hearing Office of the Division of Administrative Hearings. Without the benefit of a hearing transcript, a Recommended Order was submitted by the Hearing Officer on June 17, 1992. The Division of Licensing filed Exceptions to the Recommended Order on August 4, 1992, along with the hearing transcript.

   Petitioner then filed a response on August 19, 1992. RULING ON EXCEPTIONS FILED BY RESPONDENT

   1. Respondent first excepts to the Hearing Officer's findings in the Preliminary Statement that Petitioner's 1970

      misdemeanor conviction would be removed as a ground for denial of the license applied for. Respondent cites to the transcript to demonstrate that the parties agreed that the 1970 conviction for selling liquor after hours would be struck as a ground for denial only as it relates to Section 493.6118(1)(a), Florida Statutes, fraud or willful misrepresentation in applying for a license. A review of the entire record reveals that the 1970 conviction may be properly considered for purposes of determining whether Petitioner is of good moral character pursuant to Section 493.6118(3), F.S. (T 18-19, 40-41, 47)

      
      

      Respondent's first exception is granted.

      
      

   2. Respondent excepts to paragraph 2 in the Findings of Fact wherein the Hearing Officer does not mention Petitioner's nolo contendere plea and 12 year probationary sentence on a charge of importing cannabis. A review of joint exhibit 3 and page 7 of the transcript reflects such a plea and sentence in Hernando County Circuit Court Case No. 81-115CF.

      
      

      Respondent's second exception is granted to the extent that the Hearing Officer did not appear to consider this factor.

      
      

   3. Respondent also excepts to paragraph 2 in the Findings of Fact claiming that the Hearing Officer erroneously omitted Petitioner's admission to his "participation" and "involvement" in the crimes of trafficking in excess of ten thousand pounds of cannabis and importation of cannabis (T 7-9). While the Hearing Officer may have been unclear as to what Petitioner's "participation" and "involvement" in the importation and trafficking of marijuana may have been, the record supports Respondent's assertion that Petitioner stipulated to his criminal involvement in those crimes. Though Petitioner emphasizes throughout the hearing that he pled nolo contendere and had adjudication withheld on the charges, at no time does he claim his innocence. He did not present any exculpatory evidence that would lead the Hearing Officer to conclude that he was mistakenly arrested or that he lacked the intent to commit the crimes. The only mitigation presented related to his cooperation with the authorities, early termination of probation, and the time which has passed since the crime was committed (T 8; 41-43; 48-50). It is apparent that, without the benefit of a

      transcript, the Hearing Officer did not fully understand the import of the parties' stipulation and based her Findings of Fact solely upon the documents submitted into evidence. It is significant that Petitioner's response to the exceptions does not take issue with any of the facts asserted in Respondent's Exceptions to the Recommended Order.

      
      

      Respondent's third exception is granted.

      
      

   4. Respondent excepts to paragraph 3 in the Findings of Fact in that the Hearing Officer omitted any reference to Petitioner's admission to committing aggravated assault in 1983. Here, it is clear from the transcript that Petitioner admitted his "criminal involvement" in the crime to which he pled nolo contendere in Pinellas County Circuit Court Case No. 83-2184CFANO (T 12-22, 38, 49-50).

      
      

      Respondent's fourth exception is granted.

      
      

      FINDINGS OF FACT

      
      

      1. The Department of State hereby adopts and incorporates herein by reference the Findings of Fact in the Recommended Order. However, to the extent that the facts are incomplete, additional findings follow.

         
         

      2. In February, 1970, in Hillsborough County Florida, Petitioner was convicted of selling liquor after hours, a misdemeanor (T 40-41).

         
         

      3. In May, 1981, in Hernando County Florida, Petitioner imported and trafficked in excess of ten thousand pounds of cannabis (T 8-9; Joint Ex. 3).

         
         

      4. On January 18, 1982, Petitioner pled nolo contendere to a charge of trafficking in excess of ten thousand pounds of cannabis and a charge of importation of cannabis, and was sentenced to two concurrent probationary terms of twelve years and ordered to pay one hundred thousand dollars. Charges of conspiracy to traffic in excess of ten thousand pounds of cannabis and conspiracy to import in excess of ten thousand pounds of cannabis were nolle prossed. His probation was terminated early after the fine was reduced and paid (Joint Ex. 3).

         
         

      5. In March, 1983, in Pinellas County, Florida, Petitioner committed three counts of aggravated assault with the use of a firearm (T 12-22, 38, 49-50; Joint Ex. 2).

         
         

      6. On August 1, 1983, in Pinellas County, Florida, after pleading nolo contendere to three counts of aggravated assault and one count of carrying a concealed weapon, Petitioner was sentenced to five years probation to run concurrent with Hernando County Case No. 81-115CF and Case No. 81-128CF. His probation was terminated early on December 11, 1985 (Joint Ex. 2).

         
         

      7. Eleven people signed letters vouching for Petitioner's good character as it relates to his qualifications to be a licensed private investigator (Respondent's Composite Exhibit 1).

         
         

         CONCLUSIONS OF LAW

         
         

      8. The Department of State rejects the Conclusions of Law in the Recommended Order.

      9. By having committed the aggravated assaults in 1983, Petitioner is in violation of Section 493.6118(1)(j), Florida Statutes, the commission of an act of violence or the use of force on any person except in the lawful protection of one's self or another from physical harm. Pursuant to Section 493.6118(2)(a), F.S., these are sufficient grounds to deny Petitioner's application for a Class "CC" Private Investigator Intern License. Petitioner lacks good moral character as defined in Section 493.6101(7), F.S., in that his criminal record indicates a personal history of a lack of respect for the laws of this state and nation. Though the 1970 conviction for sale of alcohol after hours is remote in time and would not by itself be grounds for license denial, Petitioner's criminal acts of 1981 and 1983 demonstrate his inability to respect the law. Such a history cannot be countenanced in a licensed private investigator who may be placed in a position of public trust. The letters of good character submitted by Petitioner are insufficient to establish his good moral character in light of his criminal history, and do not mitigate against the 1983 aggravated assaults.

WHEREFORE, based upon the Foregoing, it is ORDERED that Petitioner's application for a Class "CC" Private Investigator Intern License be and is hereby DENIED.

NOTICE OF RIGHTS

This Order constitutes final agency action. Any party who is adversely affected by this Order may seek judicial review under Section 120.68, Florida Statutes. Such proceedings are commenced by filing a Notice of Appeal, pursuant to Rule 9.110, Florida Rules of Appellate Procedures, with the Clerk of the Department of State, Division of Licensing, The Capitol, Mail Station #4, Tallahassee, Florida 32399-0250; and by filing a copy of the Notice of Appeal, accompanied by the applicable filing fees, with the First District Court of Appeals, or with the District Court of Appeal in the appellate district where the party resides. The Notice of Appeal must be filed within thirty (30) days of the day this Order is filed with the Clerk of the Department.

DONE AND ORDERED this 2nd day of September 1992.

John M. Russi, Director Division of Licensing

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing has been furnished by U.S. Mail to Joseph H. Ficarrotta, Esquire, 600 Madison Street, Tampa, Florida 33602, this 2nd day of September, 1992.

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

The Capitol, M.S. #4 Tallahassee, Florida 32399-0250

Docket for Case No: 91-006442

Orders for Case No: 91-006442