STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, DIVISION OF ) LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5217

)

DANIEL D. GOLDBERG, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on December 8, 1995, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Michele Guy, Esquire

Department of State Division of Licensing

The Capitol Mail Station 4 Tallahassee, Florida 32399-0250

For Respondent: Did not appear and was not represented

STATEMENT OF THE ISSUE

The issue presented is whether Respondent is guilty of the allegations contained in the Amended Administrative Complaint, as amended, filed against him, and, if so, what disciplinary action should be taken against him, if any.

PRELIMINARY STATEMENT

On October 11, 1995, Petitioner issued an Administrative Complaint against Respondent, and Respondent timely requested a formal hearing regarding the allegations contained in that Administrative Complaint. Thereafter, this cause was transferred to the Division of Administrative Hearings to conduct that formal proceeding.

On November 28, 1995, Petitioner filed a Motion for Leave to File an Amended Administrative Complaint and a copy of Petitioner's proposed Amended Administrative Complaint. At final hearing, Petitioner moved, ore tenus, to further amend Petitioner's proposed Amended Administrative Complaint to clarify that Petitioner was seeking to take disciplinary action only against Respondent's Class "B" security agency license for the reason that Petitioner has already revoked all other licenses previously issued to Respondent by Petitioner. Petitioner's Motion for Leave to File an Amended Administrative

Complaint, as amended by Petitioner's ore tenus motion, was granted. Accordingly, the only license at issue in this proceeding is Respondent's Class "B" security agency license.

Petitioner presented the testimony of Penn Farrington. Additionally, Petitioner's Exhibits numbered 3, 6, and 7 were admitted in evidence.

Only Petitioner submitted post-hearing proposed findings of fact in the form of a proposed recommended order. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent has been the holder of a Class "B" security agency license, number B 0001057.

   
   

2. On July 27, 1995, Respondent was tried, was found guilty, and was adjudicated guilty of grand theft, a third-degree felony, in violation of Section 812.014(1)(a), Florida Statutes.

   
   

3. On July 27, 1995, Respondent was tried, was found guilty, and was adjudicated guilty of perjury not in an official proceeding, a first-degree misdemeanor, in violation of Section 837.012, Florida Statutes.

   
   

4. In the foregoing proceeding, the Circuit Court of the 17th Judicial Circuit in and for Broward County, Florida, placed Respondent on probation for terms of five years and one year to run concurrently, and ordered Respondent to pay restitution in the amount of $15,783.67 to the victim.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

   
   

6. Count I of the Amended Administrative Complaint, as amended, alleges that Respondent's conviction of grand theft, a felony, makes him ineligible for licensure pursuant to Section 493.6118(4), Florida Statutes. That Section requires Petitioner to revoke the license of a licensee who has been convicted of a felony unless and until the licensee's civil rights have been restored and a period of ten years has expired since the licensee's final release from supervision. There is no evidence in this record that Respondent's civil rights have been restored. Further, since Respondent was placed on probation for a period of five years commencing July 27, 1995, it is evident that ten years have not elapsed since his release from supervision. Accordingly, Petitioner has met its burden as to Count I.

   
   

7. Count II of the Amended Administrative Complaint, as amended, alleges that Respondent was convicted of perjury, a crime directly related to the business for which Respondent's license is held, in violation of Section 493.6118(1)(c), Florida Statutes. That Section authorizes disciplinary action against a licensee for conviction of such crimes, regardless of whether imposition of sentence was suspended. Respondent holds a license to engage in the business of providing security services to the public. His conviction for perjury, taken together with his conviction for grand theft, make Respondent's

   honesty and basic moral character questionable. Good moral character and honesty are directly related to the business of providing security services to the public.

   
   

8. No evidence in mitigation of the penalty to be imposed has been offered. On the other hand, Section 493.6118(4), Florida Statutes, makes mandatory the revocation of a license where the licensee has been convicted of a felony.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the

allegations contained in the Amended Administrative Complaint, as amended, and

revoking Respondent's Class "B" security agency license number B 0001057.

DONE and ENTERED this 21st day of February, 1996, at Tallahassee, Leon County, Florida.

LINDA M. RIGOT, 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 February, 1996.

APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 95-5217

Petitioner's proposed findings of fact numbered 1-4 have been adopted either verbatim or in substance in this Recommended Order.

COPIES FURNISHED:

Michele Guy, Esquire Department of State Division of Licensing The Capitol MS-4

Tallahassee, Florida 32399-0250

Mr. Daniel D. Goldberg 2812 Southwest 65th Avenue Miramar, Florida 33023

Honorable Sandra B. Mortham Secretary of State 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: 95-005217

Orders for Case No: 95-005217