STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, DIVISION ) OF LICENSING, )

)

Petitioner, )

)

vs. ) Case No. 97-5690

)

LOUIS PALMIERI, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this case was heard by the Division of Administrative Hearings, through its Administrative Law Judge David M. Maloney, on March 31, 1998, in Viera, Florida.

APPEARANCES

For Petitioner: Douglas D. Sunshine

Assistant General Counsel Department of State Division of Licensing

The Capitol, Mail Station 4 Tallahassee, Florida 32399-0250

For Respondent: Cathleen B. Clarke, Esquire

Melbourne Financial Centre, Suite 102 1990 West New Haven Avenue Melbourne, Florida 32904

STATEMENT OF THE ISSUE

Whether Petitioner entered a plea of nolo contendere to a felony thereby triggering the statutory mandate that the

Department of State revoke his Security Officer's license for a period set by statute?

PRELIMINARY STATEMENT

By Administrative Complaint dated October 9, 1997, the Division of Licensing in the Department of State charged Respondent, Louis Palmieri, with having had adjudication withheld on the felony of a lewd and lascivious act in the presence of a child. As the holder of Class "D" Security Officer license No. D91-04959, Respondent was charged under Count I of the complaint to be "ineligible for licensure pursuant to Section 493.6118(4)(c), Florida Statutes, until a period of three years has expired since final release from supervision." Administrative Complaint, p. 2. The complaint further informed Respondent of the Division of Licensing's intention to take disciplinary action pursuant to other statutory provisions.

In response, Mr. Palmieri's attorney filed a motion for formal hearing. Respondent denied the allegations in Count I and demanded "strict proof thereof" and a formal hearing before this tribunal.

On December 5, 1997, a letter from the Department was received at the Division of Administrative Hearings. Dated three days earlier, there was attached to it both the complaint

and the request for hearing. The letter requested that the two be reviewed for assignment of an Administrative Law Judge.

The documents were reviewed and placed in a newly opened DOAH file assigned Case No. 97-5690. The case was transferred to the undersigned from the Administrative Law Judge initially designated to conduct the proceeding. Final hearing was conducted in Viera, Florida, on the last day of March 1998.

At final hearing, Petitioner called one witness, Robert Ritter. Offered into evidence in Petitioner's case-in-chief was one exhibit which was admitted. In defense, Respondent presented the testimony of three witnesses and offered a letter from his employer for the purpose of evidence of good job performance. Over the objection of the Division, Respondent's Exhibit was admitted. It corroborated competent testimony about Mr. Palmieri's job performance and so was admitted solely for the limited purpose with which it was offered. Petitioner presented no case in rebuttal.

The Department and Mr. Palmieri filed timely proposed recommended orders on April 9 and 10, 1997, respectively. A transcript of the final hearing was not filed.

FINDINGS OF FACT

1. Chapter 493, Florida Statutes, governs the private security, investigative and recovery industries. The industries were found by the Legislature when it passed Chapter 90-364,

   Laws of Florida, in 1990, to be "rapidly expanding fields that require regulation to ensure that the interests of the public will be adequately served and protected." Section 493.6100, Florida Statutes. Among the findings announced by the Legislature in the enactment of the chapter was that "persons who are not of good moral character engaged in the private security, investigative or recovery industries are a threat to the welfare of the public if placed in positions of trust." Id.

2. Petitioner, the Department of State, (the "Department") is the agency of the State of Florida conferred with administrative authority under Chapter 493, Florida Statutes. Among its duties are the receipt of applications for Security Officer licenses and their processing (including a background investigation) ultimately culminating in either issuance of the license or denial of the application. After issuance of a license to a new licensee, the Department has authority based on certain grounds to take disciplinary action against the licensee ranging from a reprimand to revocation of the license.

3. Respondent, Louis Palmieri, holds a Class "D" Security Officer License issued by the Department. Bearing the license number D91-04959, the current license has been effective since March 25, 1997.

4. On or about April 7, 1994, in Duval County, Florida, Respondent entered a plea of nolo contendere to the offense of

   "lewd and lascivious act upon a child," in the Circuit Court of Duval County, Florida, in Case No. 94-2507CF. An order of probation was rendered under which adjudication of guilt was withheld in favor of probation for five years under the supervision of the Department of Corrections.

5. Neighbors and long-time friends of the family of Mr. Palmieri are aware that he entered the plea of nolo contendere to a felony. They are also aware of the nature of

   the felonious charges and his status as with regard to the criminal case as being "on probation." Still, they hold him in high regard. He is seen as reliable and a good worker. Those who occasionally drive him to work or have seen his workplace were quick to point out that there are no children present at the place where he is currently employed as a security officer.

6. Mr. Palmieri has not shielded his neighbors from his misdeed. In fact, he has confided in them that the circumstances leading to his nolo plea involved exposing himself in public in the presence of a twelve-year old girl. Nonetheless, one of his neighbors, the grandmother of a five year-old girl who frequently cares for the child, stated that she would not hesitate to invite Mr. Palmieri over to her house for dinner in the presence of her granddaughter so long as Mr. Palmieri and the child were never left alone. Despite his neighbor's willingness to issue such an invitation, and to his

   credit, Mr. Palmieri informed his neighbor that he could not be in the child's presence consistent with the terms of his probation.

7. Mr. Palmieri remains under the supervision of the Department of Corrections to this day. Absent a violation of probation, April 6, 1999, will be the last day of probationary supervision.

   CONCLUSIONS OF LAW

   
   

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

9. Just as other licensing authorities, the Department has the burden of proving by clear and convincing evidence the violations alleged in a license disciplinary action. Department of Banking and Financing v. Osbourne Stern, 670 So. 2d 932 (Fla.

   1966).

   
   

10. The catchline of the statute mainly at issue in this proceeding, Section 493.6118 (the "statute") is "[g]rounds for disciplinary action." There are several subsections of the statute that relate to pleas of nolo contendere.

11. The first is subsection (1)(c) which states in pertinent part, "[a] plea of nolo contendere shall create a rebuttable presumption of guilt to the underlying criminal charges, and the department shall allow the individual being

    disciplined . . . to present any mitigating circumstances surrounding his or her plea." The same subsection provides that entering a plea of nolo, regardless of adjudication to a crime that directly relates to the business for which the license is held constitutes grounds for disciplinary action.

12. The range of disciplinary action is spelled out in Subsection (2) of the statute. Penalties range from denial of an application to reprimand to revocation.

13. Notwithstanding the provisions of subsections (1)(c) and (2), however, the statute addresses nolo pleas for a second time. It is this provision of the statute upon which the Department relies in its position that there is no choice once a nolo plea has been established but to revoke the license:

    If the applicant or licensee has . . . entered a plea of nolo contendere to a felony and adjudication of guilt is withheld, the department shall . . . revoke the license until a period of 3 years has expires since final release from supervision.

    
    

    Section 493.6118(4)(c), Florida Statutes, (emphasis supplied). This provision is clearly mandatory and withdraws all discretion from the agency. (The mandatory nature of the provision is in all probability the legislature's response to case law preceding 1990 which draws distinctions between cases where guilt has been adjudicated and where not.) See Kinney v. Department of State,

    Division of Licensing, 501 So. 2d 129 (Fla. 5th DCA 1987).

14. While one would assume that subsection (4)(c) of the statute would be the last word on action the Department should take when presented with a nolo plea to a felony by one of its licensee, it is not. In subsection (4)(d), the provision immediately following (4)(c), the statute addresses again (for the third time) the subject of nolo pleas. It states,

    A plea of nolo contendere shall create a rebuttable presumption of guilt to the underlying criminal charges, and the department shall allow the person being disciplined . . . to present any mitigating circumstances surrounding his or her plea.

    
    

    Section 493.6118(4)(d), Florida Statutes. Subsection (4)(c), therefore, when it comes to nolo pleas as distinguished from guilty pleas and convictions, is tempered by subsection (4)(d). In other words, Mr. Palmieri, a pleader of nolo with

    adjudication withheld, was afforded the opportunity by subsection (4)(d) to present explanation of the charges underlying his criminal case as mitigation in this proceeding through which the Department seeks to revoke his license.

15. Mr. Palmieri's case consisted of no more than character testimony and high marks for job performance. No evidence was offered to explain the criminal charges underlying his criminal case. None of the witnesses gave any indication that they were present to know any of the facts of the criminal case and

    Mr. Palmieri did not testify himself. Of course, no negative inference is drawn from exercise of his prerogative not to testify in this proceeding concerning license discipline. But, that does nothing to cure the omission of any explanation of the underlying charges.

16. Had Mr. Palmieri chosen to testify to explain the circumstances underlying the felony to which he pled nolo or had he presented other evidence in explanation of those circumstances, such evidence would have been allowed. Any objection on the basis that the exculpatory evidence was irrelevant or immaterial in light of subsection (4)(c) of the statute, the provision on which the Department relies for its position that it has no discretion to take any action other than revocation, would have been overruled. In other words, in this case, Mr. Palmieri had the option of offering explanation of the underlying charges and that explanation would have been considered.

17. As it is, Mr. Palmieri did not take the opportunity afforded by subsection (4)(d) of the statute to offer exculpatory evidence on the charges underlying his plea to a serious felony: a lewd and lascivious act on a child. Quite simply, no evidence was offered on this point.

18. The testimony of the high regard with which

    Mr. Palmieri is held by his neighbors does nothing to overcome the mandate of subsection (4)(c) of the statute. And without any explanation offered in Respondent's case, moreover, as mitigation of the charge, the way is cleared for unfettered application of subsection (4)(c) of the statute.

    
    

19. In the end, the legislature has made the decision that the Department in this case has no discretion to take but one course: Respondent's license must be revoked.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, its is RECOMMENDED:

That the Department of State enter a final order revoking the Class "D" Security Officer License of Louis Palmieri, License No. D91-04959, and that he not be able to reapply for a license pursuant to Chapter 493, Florida Statutes, until a period of three years has expired since his final release from supervision, whenever that may be.

DONE AND ENTERED this 30th day of April, 1998, in Tallahassee, Leon County, Florida.

_

DAVID M. MALONEY

Administrative Law Judge

Hearings

Division of Administrative

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative

Hearings this 30th day of April, 1998.

COPIES FURNISHED:

Douglas D. Sunshine Assistant General Counsel

Office of the General Counsel Department of State

The Capitol, Mail Station 4 Tallahassee, Florida 32399-0250

Cathleen B. Clarke, Esquire

Melbourne Financial Centre, Suite 102 1990 West New Haven Avenue

Melbourne, Florida 32904

Honorable Sandra B. Mortham Secretary of State

The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0250

Don Bell, General Counsel Department of State

The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0250

John M. Russi, Director Division of Licensing Department of State

The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0250

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order must be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 97-005690

Orders for Case No: 97-005690