STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HIGHWAY SAFETY AND ) MOTOR VEHICLES DIVISION OF )

DRIVER LICENSES, )

)

Petitioner, )

)

vs. ) CASE NO. 86-3654

)

SANTIAGO BAEZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on October 1, 1986 in Miami, Florida.

APPEARANCES

For Petitioner: Suzanne G. Printy, Esquire

Neil Kirkman Building, Room A-432 Tallahassee, Florida 32301

For Respondent: Malcolm Lewis Kneale, Esquire

1341 Southwest First Street Miami, Florida 33135

INTRODUCTION

This matter began when petitioner Department of Highway Safety and Motor Vehicles Division of Driver Licenses, issued an Order of Summary Suspension Notice and Administrative Complaint on August 19, 1986 which suspended commercial driving instructor certificate card number 6498 issued to respondent, Santiago Baez. The emergency suspension was based upon respondent's alleged violation of Rules 15A-2.09(2)(a) and (c), and 15A-2.11(2), Florida Administrative Code. The violation stemmed from respondent allegedly participating with a Division driver license examiner in the acquisition of a fictitious driver license for another individual. On September 29, 1986 an Amended Order of Summary Suspension was issued and charged that respondent's conduct also violated Rule 15A-2.11(1)(j), Florida Administrative Code.

Respondent disputed the agency's accusations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes (1985). 1/ The matter was forwarded by petitioner to the Division of Administrative Hearings on September 17, 1986 with a request that a Hearing Officer be assigned to conduct a hearing.

By notice of hearing dated September 23, 1986 the final hearing was scheduled on October 1, 1986 in Miami, Florida. 2/ At final hearing petitioner presented the testimony of Juanita Ventura, a Florida Department of Law

Enforcement (FDLE) special agent; Lt. Gregory Edwards, a Florida Highway Patrol special investigator; and Jose A. Valdes an FDLE special agent. It also offered petitioner's exhibits A-E. All were received into evidence except exhibit A upon which a ruling was reserved. Respondent testified on his own behalf and presented the testimony of Jose Colmenaro, the operator of a driving school.

There is no transcript of hearing. Proposed findings of fact and conclusions of law were filed by respondent and petitioner on October 10 and 15, 1986, respectively. A ruling on each proposed finding has been made in the Appendix attached to this Recommended Order.

The issue is whether respondent's commercial driving instruction certificate card should be disciplined for the alleged violation set forth in the agency's order of August 19, 1986.

Based upon all of the evidence the following findings of fact are determined:

FINDINGS OF FACT

1. At all times relevant thereto, respondent Santiago Baez, held commercial driving instructor certificate card number 6498 issued by petitioner, Department of Highway Safety and Motor Vehicles, Division of Driver Licenses (Division). Baez who is fifty-eight years old, has been an instructor for at least eight years and was last employed at the Fajardo Driving School in Hialeah, Florida.

   
   

2. Acting upon a tip received on July 14, 1986 from an informant that a driving instructor at Fajardo Driving School could obtain fraudulent drivers' licenses, the Florida Department of Law Enforcement (FDLE) undertook an investigation of the Division's driver license examination facility in Hialeah, Florida to ascertain if such licenses were being fraudulently issued by Division personnel. To assist in the investigation, the FDLE employed the services of a paid informant named Orlando Zirio. He was instructed to call "Jorge" at a particular telephone number and attempt to obtain a Florida driver's license.

   In actuality Jorge was the respondent.

   
   

3. After telephoning respondent, Zirio and respondent agreed to meet on August 8 in the parking lot of the La Fonda Restaurant on West 60th Street in Hialeah. The restaurant shared a parking lot with the Division's driver license examination facility. Pursuant to instructions from the FDLE, Zirio told Baez that he was a drug smuggler, that he had lost all identification documents, and that he needed a Florida driver's license with a name different from his own to evade law enforcement officials. Zirio apparently had no luck with respondent that day.

   
   

4. A series of meetings between Zirio and Baez took place during the next few weeks with Zirio repeatedly asking Baez to help him procure a driver's license. During such meetings, the FDLE orchestrated all of Zirio's communications with Baez. At some point in their meetings, Zirio told Baez he only had one identification card issued by the City of Key West. When Baez informed Zirio that he must have at least two identification documents to obtain a driver's license, Zirio replied he could not obtain the necessary documents. Zirio was then told to meet one Felix Aravjo who could provide false identification documents. After obtaining a Puerto Rican birth certificate and an American social security card in the name of Orlando Perez from Aravjo, Zirio met again with Baez on August 12 in the restaurant parking lot and handed the

   two identification documents to Baez. The two then entered the examination facility. With the assistance of a Division license examiner named Peralta, Zirio was issued a driver's license under the name of Orlando Perez. For their services, respondent received $250 and Peralta and Aravjo were each paid $300. Zirio was compensated $500 plus expenses by the FDLE for his undercover activities.

   
   

5. Baez was arrested by FDLE agents on August 12, the day the license was issued by Peralta. He was charged with violating Subsection 322.212(2), Florida Statutes, which prohibits certain unlawful acts in relation to a driver's license. After being given a statement of his rights, Baez voluntarily answered in Spanish a series of questions posed by FDLE agents Valdes and Ventura. The interview was tape recorded by Valdes. It was later transcribed into English and reduced to writing by an unknown person. However, Agent Valdes reviewed the transcript and stated it accurately represented the questions asked and answers given during the interview. Baez later pled nolo contendere to criminal charges in September. Adjudication of guilt was withheld by the court. Unlike Peralta and Aravjo, Baez was not incarcerated or placed on probation, but was merely required to cooperate with officials in any further proceedings.

   
   

6. Baez desires to continue as a driving instructor since it is the only livelihood that he knows. He has a pending job offer as an instructor if his license is reactivated. He did not deny that he committed the illicit conduct, was arrested and pled nolo contendere but stated that he agreed to help Zirio only after Zirio had made repeated requests for his assistance.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1985).

   
   

8. The agency has cited Baez for violating Rules 15A- 2.09(2)(a) and (c) and 15A-2.11(1)(j) and (2), Florida Administrative Code. The former rule prescribes the qualifications for persons holding instructor certificates. More specifically, Subsection (2)(a) provides that:

   
   

   Every instructor in a school shall be a bonafide resident of the State of Florida at least eighteen (18) years of age and a person of good moral character.

   
   

   Rules 15A-2.11(1)(j) and (2) prescribe the basis upon which a certificate card may be revoked or suspended. They read in pertinent part as follows:

   
   

   1. Any ... certificate ... may be sus- pended or revoked by the Director when such action shall be for the purpose of enforcing the safety requirements essential to the purpose of Chapter 488, Florida Statutes. The following acts or conditions shall be considered violations of the safety require- ments essential to effect the purpose of Chapter 488, Florida Statutes.

      * * *

      (j) Aiding or assisting a person in obtaining a driver's license by fraudulent

      procedures.

      * * *

   2. Emergency Suspensions. The Department may take emergency suspension or revocation action without preliminary hearing whenever any school or instructor has knowingly been involved by assisting anyone to obtain a driver's license fraudulently ...

      
      

9. Initially it is noted that Rule 15A-2.11(2), Florida Administrative Code, is irrelevant to this proceeding since it merely sanctions the actions already taken by the agency in its emergency Order of Summary Suspension. In other words, it authorizes the Division to take emergency action prior to a final hearing but does not constitute a ground for discipline once an emergency order has been entered. Accordingly, the undersigned shall consider only Rules 15A-2.09(2)(a) and 15A-2.11(1)(j) and whether the record established that they were violated. 3/

   
   

10. As a preliminary matter, respondent's objection to the admissibility of petitioner's exhibit A must be resolved. Exhibit A is a transcript (in English) of a statement given by Baez in Spanish to FDLE agents on August 12, 1986 after being arrested. The statement was tape recorded by FDLE agent Valdes, and the tape itself has been received in evidence as petitioner's exhibit C. Respondent objects to its admissibility on various grounds, most of which deal with its reliability. In view of the fact that the statement simply corroborates other competent testimony of record including respondent's admission that the illicit conduct occurred, exhibit A is received under Subsection 120.58(1)(a), Florida Statutes (1985), to the extent it supplements or explains other evidence.

    
    

11. The evidence is clear and convincing that Baez aided a person (Zirio) in obtaining a driver's license by fraudulent procedures. This constitutes a violation of Rule 15A- 2.11(1)(j) which proscribes such conduct. By doing so he has also violated Rule 15A-2.09(2)(a) which requires an instructor to have "good moral character." Therefore, it is concluded the charges in the administrative complaint have been proven, and that disciplinary action under Rule 15A-2.11 is warranted.

    
    

12. Rule 15A-2.11 authorizes the Division to suspend or revoke a certificate if a licensee has violated any agency rule or statute. In its proposed order, petitioner suggests that respondent's instructor certificate be permanently revoked. Conversely, respondent points that this is his only profession and means of providing support, and that he desires to continue working as an instructor. Based upon the facts in this case, it is concluded that respondent's instructor certificate card should be suspended for one year from the date of the emergency suspension and that it thereafter be reissued to respondent.

    
    

13. Finally, respondent raises the defense of entrapment contending that he was "entrapped and ensnared by (FDLE) into committing a wrongful act in order to secure a pretext to punish him." In support of this, he cites the case of Peters v. Brown, 55 So.2d 334 (Fla. 1951), an early decision involving the use of paid informants by the State Board of Dental Examiners to induce the commission of a wrong by a dental technician licensee. But Peters is distinguishable since it involved an administrative agency using paid informants to entrap a licensee for the purpose of enjoining the licensee from performing

certain dental work. In contrast, Baez was the subject of a criminal investigation to end a specific criminal activity, namely the selling of illegal driver licenses. Therefore, the test of entrapment as enunciated by the supreme court in Cruz v. State 465 So.2d 516 (Fla. 1985), is applicable and will be used. In Cruz the court set forth the following threshold test of an entrapment defense:

Entrapment has not occurred as a matter of law where police activity (1) has as its end the interruption of a specific ongoing criminal activity; and (2) utilizes means reasonably tailored to apprehend those involved in the ongoing criminal activity.

Id. at 522.

Here FDLE agents had targeted for interruption a specific ongoing criminal activity, to wit, the illicit sale of fictitious Florida driver licenses. Moreover, the FDLE agents did not employ "methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it." Id. at 522. Therefore, the threshold test to successfully employ the entrapment defense has not been met and respondent's contention must accordingly fail.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law it is Recommended that respondent be found guilty of violating Rules 15A-

2.09(2)(a) and 15A-2.11(1)(j) Florida Administrative Code, and that his

commercial driving instructor certificate card be suspended for one year from date of the emergency suspension.

DONE AND ORDERED this 28th day of October, 1986 in Tallahassee Florida.

DONALD R. ALEXANDER

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 28th day of October, 1986.

ENDNOTES

1/ Respondent's Florida driver's license was also apparently suspended at the same time. In his request for hearing respondent requested that he be given a formal hearing on that suspension as well. However that matter is being addressed in a separate proceeding before the agency.

2/ An expedited hearing was held since respondent's license (and livelihood) had been suspended on an emergency basis by petitioner.

3/ The original agency order also cited Rule 15A-2.09(2)(c) as being violated. But this assumes respondent's driver license is permanently suspended or revoked a fact not yet established since respondent's hearing on this issue has not yet been held.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-3654 PETITIONER:

1. Rejected as being unnecessary.

2. Rejected as being hearsay which does not supplement or explain other competent evidence.

3. Rejected as being a conclusion of law rather than a finding of fact.

RESPONDENT:

1. Partially covered in findings of fact 1 and 6.

2. Covered in finding of fact 6.

3. Partially covered in findings of fact 3 and 4. The remainder has been considered unnecessary to a resolution of the issues.

4. Covered in finding of fact 6.

5. Essentially covered in finding of fact 4.

6. Rejected as being a conclusion of law rather than a finding of fact.

7. Rejected for the reasons set forth in conclusion of law 7.

8. Rejected for the reasons set forth In conclusion of law 7.

9. Rejected as being a conclusion of law rather than a finding of fact.

COPIES FURNISHED:

Suzanne G. Printy, Esquire Room A-432

Neil Kirkman Building Tallahassee, Florida 32301

Malcolm Lewis Kneale, Esquire 1341 S.W. First Street Miami, Florida 33135

Leonard R. Mellon Executive Director Neil Kirkman Building

Tallahassee, Florida 32301

Enoch Jon Whitney General Counsel

Neil Kirkman Building Tallahassee Florida 32301

Docket for Case No: 86-003654

Orders for Case No: 86-003654