STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LINDA MARIE IADEROSA, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1760S

)

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Respondent. )

)

)

RECOMMENDED ORDER

Pursuant to notice an administrative hearing was held in Fort Lauderdale, Florida on September 23, 1981 before Delphene C. Strickland, Hearing Officer of the Division of Administrative Hearings, Department of Administration.

APPEARANCES

For Petitioner: William D. Ricker, Jr., Esquire

1415 East Sunrise Boulevard Post Office Drawer 7028

Fort Lauderdale, Florida 33338

For Respondent: James V. Antista, Esquire

Assistant General Counsel Department of State

The Capitol

Tallahassee, Florida 32301 ISSUE

Whether Petitioner is entitled to a detection of deception intern license under Chapter 493, Part II, Florida Statutes.

PRELIMINARY STATEMENT

In October of 1980 Petitioner Linda Marie Iaderosa applied for a detection of deception license. Respondent Division of Licensing notified her in November that her application had been approved and requested that she forward a fee and certificate of insurance for the issuance of the license. In April of 1981 the fee and certificate were received. In June of 1981 Petitioner was notified that her application for licensure was denied. She requested an administrative hearing.

Petitioner and Respondent submitted proposed findings of fact, memoranda of law and proposed recommended orders which were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in or are inconsistent with the factual findings of this order, they have been

specifically rejected as being irrelevant or not having been supported by the evidence.

FINDINGS OF FACT

1. Stipulated facts:

   
   

   1. Respondent Division of Licensing received Petitioner Iaderosa's application of a Class "P" intern license on October 7, 1980. By letter to Petitioner dated November 13, 1980 Respondent stated "Your application for a Class "P" Detection of Deception Examiner/Intern license has been approved. This license will be issued upon submitting the items listed below. However, should your fingerprint card be returned by the FBI indicating that you have a previous arrest record, the Department of State reserves the right to revoke your license. Please forward the following for the issuance of your license: Fee $30 [and] Certificate of Insurance.

      
      

      Respondent received the requested license fee and certificate of insurance on or before April 14, 1981.

      
      

      Respondent notified Petitioner on June 4, 1981: "Your application for the above referenced license [Administrative Denial/Detection of Deception Intern Class 'P' license] has been denied pursuant to Chapter 493.575, Florida Statutes which states: ... 'The Department of State may take the same disciplinary actions based upon the same grounds as set forth in Chapter 493.319, Florida Statutes...'."

      
      

   2. Petitioner conducted polygraph examinations without a license.

   
   

2. Petitioner Iaderosa was employed by the Southern Institute of Polygraph on October 10, 1980 immediately subsequent to graduation from its accredited detection of deception examiner's school. She had applied for an intern license prior thereto but had not been licensed by Respondent or received notification that her application had been approved. Her sponsor for the compulsory year of internship was Joseph M. Matthews, a licensed detection of deception examiner and the Director of the Southern Institute of Polygraph, who remained Petitioner's sponsor until April 17, 1981 when he notified Respondent of his withdrawal as her sponsor.

   
   

3. The next month after her employment, on November 13, 1980, Petitioner received notification that her license application had been approved and would be issued upon receipt of a fee and a certificate of insurance. There was no mention of deficiencies under Section 493.565 or 493.566 relative to her application or license requirements:

   
   

4. Petitioner commenced her employment, mistakenly believing her employer and sponsor would pay the required fee and send it to Respondent together with her certificate of insurance which had become effective September 8, 1980 (Respondent's Exhibit #4). She was provided business cards indicating that she was an examiner and account executive. She conducted polygraph examinations scheduled by her employer at the direction of and under the supervision of Matthews until she became familiar with the operation of the equipment and then conducted examinations without supervision. Petitioner left her employment with the Southern Institute in February or March of 1981 and interviewed for a job at three (3) other polygraph schools. It was brought to her attention through the search for other employment that she must have a license in her possession to conduct polygraph examinations. At that time she realized that neither she nor

   her employer had complied with the request to furnish the certificate and fee requested on November 13, 1980. Prior to April 14, 1981 Petitioner sent to Respondent the detection of deception intern fee of $30 together with a certificate of insurance previously requested.

   
   

5. Petitioner gained employment with Deception Control, Inc., a business owned and operated by Charles G. Michaels, who notified Respondent on March 26, 1981 that he would sponsor Petitioner. Later, he emphasized by letter that Petitioner would not be administering examinations until she received her intern license from the Department of State.

   
   

6. Subsequent to receipt of the fee and certificate of insurance on or before April 14, 1981 allegations were made to respondent Division of Licensing that Petitioner had removed confidential materials from the Southern Institute Of Polygraph at the time she left her employment. These allegations, together with the allegation that Petitioner had conducted polygraph examinations without a license, caused Respondent Division of Licensing to reverse its former approval of her application for licensure. On June 4, 1981 Respondent rescinded its letter of approval dated November 13, 1980 in which it had requested a fee and certificate of insurance and notified Petitioner that her application for licensure had been denied. Respondent contends that the request for license fee and certificate of insurance was a request to "supply additional information" which was not timely supplied and therefore the letter of denial was appropriate.

   
   

7. At the hearing no evidence was produced to show that Petitioner removed materials from her former employer's offices or that she betrayed professional secrets and she denied the allegations.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. Section 493.569, Florida Statutes, Polygraph intern license.-- provides:

   
   

   An internship license shall be issued for a period of 1 year to an applicant who has met all the qualifications set forth in ss. 493.565 and 493.566 and who has paid the license fee for the purpose of permitting the applicant to receive training as a detection of deception examiner under the supervi- sion of a licensed examiner.

   
   

10. Section 120.60, Florida Statutes, Licensing.-- provides in pertinent part:

    
    

    (2) When an application for a license is made as required by law, the agency shall conduct the proceedings required with reasonable dispatch and with due regard to the rights and privileges of all affected parties or aggrieved per- sons. Within 30 days after receipt of

    an application for a license, the agency shall examine the application, notify the applicant of any apparent errors or omissions, and request any additional information the agency is permitted by law to require. Failure to correct an error or omission or to supply addi- tional information shall not be grounds for denial of the license unless the agency timely notified the applicant within this 30-day period. Every

    application for license shall be approved or denied within 90 days after receipt of the original application or receipt of the timely requested addi- tional information or correction of errors or omissions unless a shorter period of time for agency action is provided by law. ... Any application for a license not approved or denied within the 90-day or shorter time period, ... shall be deemed approved and, ...- the license shall be issued. (Emphasis supplied.)

    
    

11. It was conceded by stipulation that the Respondent agency failed to act within the thirty (30) day period required in the foregoing statute. Petitioner was not notified within the required 30 days that there were apparent errors or omissions on her application that she must correct and she was not requested to "supply additional information" within that 30-day period. Thirty- six (36) days after receipt of Petitioner's application Respondent notified her that her application had been approved and she was requested to furnish a fee and certificate of insurance. Petitioner waited approximately 121 days before she furnished the requested materials but there is no statutory time limitation in the foregoing statute which requires an applicant to pursue an application with reasonable dispatch. The agency however has only 30 days to "examine the application, notify the applicant of any apparent errors and request additional information the agency is permitted to require." The agency in this type of case then had 90 days after the original application or receipt of the timely requested information or corrections, to approve or deny the license and, if either approved or deemed approved, issue the license. No action was taken at all within 30 days, therefore failure to provide a fee and certificate of insurance would not have been grounds for denial of the license even if such items could be considered "additional information the agency is permitted by law to require." The foregoing statute allowed the respondent agency only 90 days after receipt of the original application or receipt of timely requested information or corrections, to approve or deny Petitioner's application. Respondent approved the application within 36 days without reference to ss.

    493.565 or 493.566 and therefore when the requested fee was paid as required in Section 493.569, supra, it was incumbent on the Respondent agency to issue the license. Cf. World Bank, et al. v. Gerald Lewis, Comptroller of State of Florida, Dept. of Banking & Finance, DCA, 1st, Case No. AD-473 (November 17, 1981).

    
    

12. It is concluded that Respondent had no alternative under the facts of this case and must issue a polygraph intern license to Petitioner. It had no authority to rescind its prior approval.

RECOMMENDATION

Officer recommends that the Respondent agency issue a detection of deception intern examiner's license to the Petitioner.

County, Florida.

Hearing Officer

Division of Administrative Hearings

2009 Apalachee Parkway

Tallahassee, Florida 32301

Filed with the Clerk of the Division of Administrative Hearings

COPIES FURNISHED:

William D. Ricker, Jr., Esquire Post Office Drawer 7028

Fort Lauderdale, Florida 33338

Assistant General Counsel Department of State

R. A. Gray Building, Room 106 Tallahassee, Florida 32301

Department of State The Capitol

Docket for Case No: 81-001760

Orders for Case No: 81-001760