STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES BARNETT, )

)

Petitioner, )

)

vs. ) CASE NO. 81-3175S

)

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on February 22, 1982, in Tallahassee, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose from the denial of Petitioner's applications for Class "A" and Class "C" licenses as a private investigative agency and private investigator by the Department of State, Division of Licensing ("Department"). The grounds for denial were the Petitioner's failure to demonstrate good moral character as required by Section 493.306(2), Florida Statutes. At the conclusion of the hearing the Petitioner was given added time to file exhibits relating to his service as a special patrolman with the Pittsburgh Police Department. Petitioner filed a letter, which was received by the Division of Administrative Hearings on March 5, 1982.

APPEARANCES

For Petitioner: James Barnett, pro se

758 Woodville Road

Milton, Florida 32570

For Respondent: James V. Antista, Esquire

Assistant General Counsel Division of Licensing

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

ISSUES

At the commencement of the hearing, the parties stipulated that Petitioner had filed applications for Class "A" and Class "C" licenses and was qualified except for the failure to demonstrate good moral character. The bases for the dispute over Petitioner's character were:

1. Petitioner's arrest record;

   
   

2. Petitioner's alleged falsification of his applications as to his employment with the Pittsburgh Police Department; and

3. Petitioner's check for the application fee was dishonored for insufficient funds.

FINDINGS OF FACT

1. The Petitioner duly filed applications with the Department of State, Division of Licensing for Class "A" and Class "C" licenses.

   
   

2. Except for matters related to Petitioner's good moral character, Petitioner is qualified for licensure.

   
   

3. Petitioner's application reflects that he answered the question whether he had been arrested affirmatively with the following comment:

   
   

   The Courts of the Commonwealth of Pennsylvania in all five cases from 1965 to 1974 - ruled that as a Police Officer, I acted within the scope of my authority - These cases stem from being an undercover Narcotics Officer.

   
   

4. The Petitioner's arrest records as maintained by the Federal Bureau of Investigation reveal several juvenile offenses, not considered by the Department and not at issue. This record also reveals the following arrests of Petitioner as an adult:

   
   

   Date Place Charge Disposition 06/09/66* Pittsburgh VDD & CA Not guilty 08/15/66* Pittsburgh VUFA Not guilty 08/20/66* Allegheny County VDDCA

   06/24/67* Allegheny County VUFA Unavailable

   per contra 06/30/70

   *Only one offense with different charges made on different dates

   
   

   09/05/74 Allegheny County Theft, VUFA Discharged

   09/23/74

   05/07/75 Allegheny County Fraud - imper-

   sonating a public servant

   12/19/79 Office of Provost No charge No charge Martial

   
   

5. Petitioner presented testimony and supporting documentary evidence that the arrests reported on the FBI criminal history for the dates 06/09/66 through 06/24/67 were all related to the same offense, and that these charges were resolved in favor of the Petitioner by a verdict of not guilty. See Petitioner's Exhibit #1.

   
   

6. The judge arrested judgment of the two years' probation for the charge of 05/07/75. See Respondent's Exhibit #2. Petitioner stated that based upon his status as a capital police officer he was not guilty of fraud or impersonation of a public servant.

   
   

7. The Petitioner's remaining arrest was on 09/05/74, and was discharged.

8. Petitioner's explanation of these arrests is not consistent with the explanation stated on his application form.

   
   

9. According to the resume accompanying his application, Petitioner was employed on the indicated dates in the following positions:

   
   

   Date Position

   
   

   1963	to	1965	Globe Security
   1965	to	1970	Pittsburgh Police Department, special patrolman
   1970	to	1973	NAACP special investigator and Bucci Detective Agency
   1972	to	1976	Commonwealth Property Police with State of Pennsylvania
   1973	to	1974	Part-time security guard in addition to employment listed above

   
   

   May, 1976

   January, 1977 Federal Civil Service guard

   
   

   March, 1977

   September, 1977 Part-time security guard with A&S Security

   
   

   December, 1978 Sears, Roebuck and Company as

   to June, 1980 undercover security investigator

   
   

   February, 1979 Security guard to June, 1980

   
   

   September, 1979 VA, guard at VA Hospital GS5 to June, 1980

   
   

   June, 1980 Came to Florida

   
   

10. Petitioner stated that his check for the application fee bounced because of his travel back and forth to Pennsylvania to try to develop the data to support his application, which depleted his bank account. He has since made the check good and paid the fees by money order.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction to hear this cause and enter this Recommended Order pursuant to Section 120.57(1), Florida Statutes. The Department of State, Division of Licensing is charged with the regulation of private investigators and private investigative agencies pursuant to Chapter 493, Florida Statutes. Section 493.306, Florida Statutes, sets forth the criteria for licensure as a Class "A" or Class "C" licensee. The criteria for licensure specifically at issue are as follows:

    (2)(b) The department may refuse to license an applicant for lack of good moral character only if:

    1. There is a substantial connection between the lack of good moral character of the applicant and the business for which the license is sought.

       * * *

       (4) In addition to the above require- ments, an applicant for a Class "C" license must have 2 years' experience

       or training in one, or a combination of more than one, of the following:

       1. Private investigative work

          or related field of work that provided equivalent experience or training;

       2. College course work and seminars related to private investiga- tion, except that no more than 1 year may be used from this category; or

       3. Work as a Class "CC"-licensed intern.

       
       

12. The sole ground for denial of Petitioner's application was lack of good moral character. There are four matters reflecting on his good moral character:

    
    

    1. Petitioner's record of arrests;

    2. Petitioner's statements concerning his arrest record made in his applications;

    3. Petitioner's statements concerning his employment and lack of substantiation of that employment; and

    4. Petitioner's check for the application fees was dishonored for insufficient funds.

    
    

13. The record of Petitioner's arrests and their disposition does not establish that Petitioner lacked good character. More complicated is Petitioner's less-than-truthful explanation of his arrest record. None of the arrests were involved with Petitioner's alleged activities as an undercover narcotics agent. This casts doubt on Petitioner's veracity and indicates a propensity to exaggerate the truth. In this case it is unfortunate, because Petitioner has presented no documentary substantiation of his duties in the various positions he has held.

    
    

14. As indicated above, an applicant for a Class "C" license must have two years' qualifying experience in private investigation or related fields. While the record indicates Petitioner's employment by several private and governmental agencies in the general area of security work, the only explanation of Petitioner's duties is his own testimony, which is discounted because of his earlier exaggerations, inconsistencies and other matters. For example, it is fairly uniform for police agencies to fingerprint applicants and submit these records to the FBI prior to employment. A similar process is used by the State of Florida to screen security guards. Yet the only set of fingerprints submitted by a police agency as part of a national agency check for employment

    on the Petitioner was in 1979, by the Office of the Provost Martial. Presumably, this was in conjunction with Petitioner's employment with the Veterans Administration. In addition, the records of Petitioner's service as a special patrolman with the Pittsburgh Police Department cannot be produced, and the employment with Sears is related to a store that is closed.

    
    

15. Lastly, Petitioner's check for the application fees was dishonored for insufficient funds. This is the one check most persons want to ensure is honored. Petitioner's explanation does not excuse this violation of law and departure from good business practices.

    
    

16. Taken as a whole, the Petitioner has failed to present sufficient concrete data upon which his qualifications can be judged. If Petitioner is truly qualified for licensure as a private investigator, then he should be able to obtain satisfactory documentary evidence of his employment and his duties in support of his application. However, at this time the record contains too little substantiation and too many inconsistencies.

    
    

17. The burden of proof lies with an applicant for licensure to establish his qualifications. The Petitioner in this cause has not met that burden.

RECOMMENDATION

The Petitioner has failed to establish that he has the requisite good character for licensure; therefore, it is recommended that the Petitioner's applications for Class "A" and Class "C" licensure be denied.

DONE and ORDERED this 19th day of April, 1982, in Tallahassee, Leon County, Florida.

COPIES FURNISHED:

Mr. James Barnett 758 Woodville Road

Milton, Florida 32570

James V. Antista, Esquire Assistant General Counsel Department of State Division of Licensing

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

STEPHEN F. DEAN, Hearing Officer Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1982.

George Firestone, Secretary Department of State

The Capitol

Tallahassee, Florida 32301

Docket for Case No: 81-003175

Orders for Case No: 81-003175