STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LYMAN S. BRADFORD, )

)

Petitioner, )

)

vs. ) CASE NO. 92-3631S

) DEPARTMENT OF STATE, DIVISION ) OF LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in West Palm Beach on August 13, 1992 before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For the Petitioner: Thomas C. Gano, Esquire

Lubin & Gano, P.A.

2nd Floor, Flagler Building 1217 S. Flagler Drive

West Palm Beach, Florida 33401

For the Respondent: Henri C. Cawthon, Esquire

Department of State Division of Licensing The Capitol, MS #4

Tallahassee, Florida 32399 STATEMENT OF THE ISSUES

The issue for consideration in this case is whether the Petitioner's applications for Class "A" and a Class "C" investigative licenses should be denied based on a lack of good moral character.

PRELIMINARY MATTERS

By letter dated May 13, 1992, Marilyn Thompson, Assistant Director of the Department of State's Division of Licensing, denied Mr. Bradford's application for Class "A" and "C" investigative licenses based on conduct which, it was concluded, indicated he was not of good moral character. On May 27, 1992, Mr. Bradford executed an Election of Rights form on which he disputed the facts upon which the Division's denial action was based, and requested a formal hearing.

Thereafter, on June 15, 1992, the file was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer and by Notice of Hearing dated June 21, 1992, entered after Petitioner's attorney, on behalf of both sides, had, on June 20, 1992, responded to the Initial Order entered

herein, the undersigned set the matter for hearing in West Palm Beach on August 13, 1992, at which time it was held as scheduled.

At the hearing, Petitioner presented its Composite Exhibits 1 - 3.

Respondent presented the testimony of Marcos Martinez, a deputy with the Palm Beach County Sheriff's Office, and introduced Respondent's Composite Exhibits A

- C. A transcript was provided and subsequent to the receipt thereof, both counsel submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Department of State, Division of Licensing, (Division), was the state agency responsible for the licensing of private investigators in Florida.

   
   

2. On or about February 26, 1992, Petitioner herein, Lyman S. Bradford submitted to the Division an application for a Class "A" Private Investigative Agency license. On the same day, he also submitted an application for a Class "C" Private Investigator's license. In Section 12(a) of the former application and Section 7(a) of the latter, Petitioner indicated he had been convicted of attempted possession of cocaine, a misdemeanor, in 1988. He further indicated probation had been completed.

   
   

3. On the basis of her analysis of Petitioner's applications, on March 12, 1992, Joni Rozur, the Division's reporting representative, recommended both applications be approved based on Petitioner's previous licensure as a Class "C" licensee, and noted that his experience met or exceeded the statutory requirements. She also noted, however, that approval was pending receipt of a criminal history report.

   
   

4. When that record was received by the Division, it reflected that Petitioner had been arrested in September, 1988 for failure to appear for trial on the attempted possession charge and when brought before the court on October 20, 1988, pleaded not guilty. In November, 1988, however, Petitioner changed his plea of not guilty to nolo contendere and as a result, adjudication of guilt was withheld and he was placed on probation for 6 months with 15 hours community service, and ordered to pay costs.

   
   

5. On January 5, 1989, Mr. Bradford failed to meet with his probation officer as ordered and he was brought before the court on February 15, 1989 for a preliminary hearing on a charge of violation of probation. Bond was set at

   $2,000.00. When he appeared in court on April 12, 1989 on the violation of probation charge, Petitioner pleaded not guilty and hearing was set for May 10, 1989. On that date, Petitioner did not appear and after several other hearings, on June 2, 1989, the judge released Petitioner from his bond on his own recognizance. At a hearing on the violation of probation charge held on August 2, 1989, Petitioner was found guilty and his prior probation was revoked. By way of sentence, he was placed on an additional 6 months probation with conditions.

   
   

6. Court action, mostly involving Petitioner's motions for continuance, was periodic for a while, but after a motion to set aside his prior plea to the charge was denied, on December 27, 1990 Petitioner entered a plea of guilty to and was found guilty of violation of probation. He was placed on a new period of probation for 1 year with 300 hours of community service; ordered to undergo drug evaluation and treatment as necessary; ordered to be subjected to random

   urine testing; and ordered to serve 1 year in jail (suspended). His prior probation was revoked.

   
   

7. The criminal information relative to Petitioner which Ms. Rozur relied on to change her recommendation to denial also included Petitioner's arrest on September 14, 1989 on a charge of trafficking in cocaine. Petitioner was tried before a jury in circuit court on that charge on August 21, 1991, and after a trial on the merits, pursuant to his plea of not guilty, was found not guilty.

   
   

8. The evidence put before the jury during that trial consisted of the testimony of the two arresting officers who indicated they had observed the transaction and seized a substance at the scene later identified as cocaine; that of the Petitioner's co-actor in the supposed sale; and that of the confidential informant who set up the controlled buy.

   
   

9. The evidence, as proffered through the testimony of Deputy Martinez who was present at the scene, indicated that a confidential informant had reported that a sale of cocaine, involving the Petitioner, would take place on an evening in September, 1989. After the confidential informant was given authority to set it up, the Petitioner did not appear and the officers left. Supposedly, Petitioner did appear later and when the informant called the officers again, he was told to set the buy up again another time.

   
   

10. The second buy, at which Petitioner was allegedly the broker between the dealer and the confidential informant, took place in the parking lot of a motel in West Palm Beach on September 14, 1989. The informant was fitted with a radio transmitter for recording the conversations among the parties but it failed to work. Nonetheless, Martinez claims he saw Petitioner and his partner meet with the informant outside the motel room and the other officer purportedly overheard their conversation through the closed window. When the parties moved around to the side of the building out of sight and hearing, the two officers, accompanied by a drug detection dog, came out and arrested Petitioner and his associate. During the course of the arrest, cocaine was found both on the associate and wrapped in a pillow case in the back seat of the associate's car. Petitioner had no cocaine in his possession.

    
    

11. On the basis of the above information relating to the Petitioner's original conviction, the subsequent violation of probation charge, and the arrest for but acquittal of a charge of trafficking in cocaine, the Division, on May 13, 1992, denied both applications by the Petitioner alleging that his criminal record, as cited, was clear and convincing evidence of a lack of good moral character.

    
    

12. The Hearing Officer, however, over strenuous objection of counsel for Respondent, declined to consider as evidence any matters relating to the Petitioner's arrest for trafficking in cocaine on the basis that the acquittal of that offense came after a trial on the merits before a jury subsequent to a plea of not guilty. Under those circumstances, the Hearing Officer would not permit the Division to present evidence regarding the alleged commission of an offense of which the Petitioner had been found not guilty. In retrospect, however, there is some question as to whether or not that evidence should have been considered.

    
    

13. At the hearing, Petitioner presented 4 letters from prominent attorneys in practice in southeast Florida going back to 1982 and 1987 through 1991, commenting on his excellent investigative work. In addition, Petitioner also presented 9 letters of recent date from various individuals including a

    detective with the Palm Beach County Sheriff's Office, the Directress of his church's outreach ministry, the Chief of Police for Palm Beach Gardens, attorneys, a retired highway patrolman, a recovery agent, the assistant manager of the local American Cancer Society unit, and a fire battalion chief, all of whom have known the Petitioner for several years. In these letters, he is described as professional and thoroughgoing, capable, progressive, charitable, efficient, competent, trustworthy, conscientious, and possessed of good moral values and integrity.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

15. Section 493.6118(3), Florida Statutes, provides that the Department may deny an application for licensure citing lack of good moral character only if the finding by the Department of such lack is supported by clear and convincing evidence.

    
    

16. The term, "good moral character is defined at Section 493.6101(7), Florida Statutes, as "a personal history of honesty, fairness, and respect for the rights and property of others and for the laws of this state and nation."

    
    

17. Even excluding the evidence of the alleged trafficking in cocaine offense of which Petitioner was acquitted in Circuit Court, the other unquestioned evidence of his misconduct clearly establishes a lack of respect for the laws of this state and cannot help but convince the undersigned that Petitioner does not possess that good moral character which is a precondition for the issuance of the licenses sought. This is so notwithstanding the evidence of his excellent investigative successes and his willingness to work for and within the community. His prior disregard of the laws of this state regarding controlled substances and his obvious disregard of and contempt for the conditions of his probation for his earlier offense establish without question little, if any, respect for the laws of this state, laws under which all citizens are required to operate, and indicate that he will, when he deems it to his advantage, disregard them. Petitioner has not yet demonstrated sufficient rehabilitation subsequent to the completion of his most recent term of probation to justify issuance of the requested licenses.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that a Final Order be entered by the Division of Licensing denying Petitioner's applications for a Class "A" Private Investigative Agency License and a Class "C" Private Investigator License at this time.

RECOMMENDED this 30th day of September, 1992, in Tallahassee, Florida.

ARNOLD H. POLLOCK

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 30th day of September, 1992.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-3631S

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

FOR THE PETITIONER:

1. Accepted and incorporated herein.

2. Accepted and incorporated except for the last sentence which is rejected.

3. Accepted and incorporated herein.

4. Accepted but as a comment on the evidence.

5. Accepted.

FOR THE RESPONDENT:

1. & 2. Accepted and incorporated herein.

3. & 4. Accepted and incorporated herein.

5. - 8. Rejected.

1. Accepted.

2. Accepted.

COPIES FURNISHED:

Henri C. Cawthon, Esquire Department of State Division of Licensing

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

Thomas C. Gano, Esquire Lubin & Gano, P.A.

Second Floor, Flagler Plaza 1217 South Flagler Drive

West Palm Beach, Florida 33401

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 consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.

Docket for Case No: 92-003631

Orders for Case No: 92-003631