Petitioner: DENNIS B. PARKER
Respondent: DEPARTMENT OF STATE, DIVISION OF LICENSING
Judges: WILLIAM R. CAVE
Agency: Department of Agriculture and Consumer Services
Locations: Clermont, Florida
Filed: Sep. 29, 1989
Status: Closed
Recommended Order on Friday, March 16, 1990.
Latest Update: Mar. 16, 1990
Summary: Whether, under the facts and circumstances of this case, Respondent should deny Petitioner's application for licensure as a Class R Repossessor in the state of Florida.Failure to timely notify applicant, application deemed approved.
Microsoft Word - 89-5306.docSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DENNIS B. PARKER, )
)
Petitioner, )
)
vs. ) CASE NO. 89-5306S
)
DEPARTMENT OF STATE, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, an administrative hearing was held before William R. Cave, Hearing Officer, with the Division of Administrative Hearings, on January 8, 1990 in Clermont, Florida.
APPEARANCES
For Petitioner: Dennis B. Parker, Pro se
1655 5th Street
Clermont, Florida 34711
For Respondent: Henri C. Cawthon, Esquire
Assistant General Counsel Department of State
The Capitol, Mail Station #4 Tallahassee, Florida 32399-0250
STATEMENT OF THE ISSUE
Whether, under the facts and circumstances of this case, Respondent should deny Petitioner's application for licensure as a Class R Repossessor in the state of Florida.
PRELIMINARY STATEMENT
Petitioner filed an application with the Respondent for licensure under Chapter 493, Florida Statutes as a Class E Repossessor in the state of Florida. On August 4, 1989, the Respondent, through Marilyn D. Thompson, Assistant Director, Division of Licensing, Florida Department of State, advised Petitioner that his application had been denied and cited a violation of Section 493.319(1)(a) and (c), FLorida Statutes as the basis for denial. This letter also advised Petitioner of his right to a formal hearing, and in accordance with the letter he requested a hearing. The matter was referred to the Division of Administrative Hearings and this proceeding ensued.
At the hearing, the Petitioner testified on his own behalf and Petitioner's exhibit 1 was received into evidence. Respondent presented the testimony of John Matlock, Judi Kay Savoie and Cynthia Miller. Respondent's exhibits 1 through 3
were received into evidence. Respondent's file of petitioner's application was received into evidence as Joint Exhibit 1.
A transcript of this proceeding was filed with the Division of Administrative Hearings on February 7, 1990. The parties timely submitted their respective Proposed Findings of Fact and Conclusions of Law. A ruling on each Proposed Finding of Fact has been made as reflected in the Appendix to this Recommended Order.
FINDINGS OF FACT
Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:
Around April 1, 1989, Petitioner made application for licensure as a Class E Repossessor which was received by the Respondent on April 7, 1989. Although Respondent's file of Petitioner's application (Joint exhibit 1) does not show any request by Respondent for additional information from Petitioner as allowed by Section 120.60(2), Florida Statutes, it appears that Petitioner filed an additional section A, I and J of the application which was received by Respondent on May 5, 1989.
By letter dated August 4, 1989, 118 days from receipt of the first application and 91 days from receipt of the submission of the second section A, I and J, Respondent denied Petitioner's application for licensure as a Class E Repossessor in the state of Florida. The basis for the denial was an alleged violation of Section 493.319(1)(a) and (c), Florida Statues. No other reasons were given for the denial, and there is no evidence that Petitioner was given any other notice, written or verbal, by the Respondent that his application was denied before August 4, 1989.
Petitioner was working as manager of Armand's Jewelry, d/b/a Hock It To Me Pawn (Armand's), Winter Garden, Florida from sometime in 1986 until November 1988.
On several occasions between August 1987 and February 1988, while managing Armand's, Petitioner allowed a black female confidential informer (CI) working for the Orange County Sheriff's Department (OCSD) and posing as a customer to pawn several items of personal property, including several VCR's, with Armand's.
Although Petitioner testified that he was told later that the property came from the OCSD evidence room, there was insufficient evidence to show from whom or how the CI obtained this property.
On each occasion that Petitioner allowed the CI to pawn property with Armand's, a police report, as required by law, was completed and, among other information, the serial number of the property was written on the police report. Although not required by law, the Petitioner required the CI, as he did with others pawning property, to place her thumbprint on the police report. The requirement of placing the thumbprint on the police report had been suggested by the Winter Garden Police Department (WGPD) as an additional means of identification (ID) in case the person pawning the property used a false ID.
The WGPD had advised the Petitioner that even if he suspected the property being pawned to be stolen it would be helpful to law enforcement if he allowed the person to pawn the property, provided he prepared and filed the
police report with the thumbprint because this would allow law enforcement to check the police reports against their lists of stolen property.
Two copies of each police report prepared by Armand's, including those prepared on the property pawned by the CI, were filed with the OCSD so that the property pawned could be checked against the OCSD's lists of stolen property. Likewise, the WGPD was permitted to review the police reports at Armand's on a regular basis to determine if any of the property pawned was on its lists of stolen property.
While Petitioner may have had some suspicions about the CI, there is insufficient evidence to show that the CI told him the property was stolen or that he had knowledge of the property being stolen.
Likewise, there is insufficient evidence to show that Petitioner was aware that the CI was using more than one ID during the time she was pawning property at Armand's. Cynthia Miller, daughter of Judi Kay Savoie who owned Armand's, clerked in Armand's between August 1987 and January 1988 and was aware that the CI was using more than one ID card. However, there is insufficient evidence to show that Cynthia Miller made Petitioner aware of the CI using more than one ID card.
As a result of the CI pawning this property to Armand's, Petitioner was arrested and charged with 8 felony counts of dealing in stolen property. However, the 8 felony counts were dismissed and Petitioner pled nolo contendere to one count of petit theft on November 1, 1988. The court imposed a $400 fine, plus $90 court cost and withheld adjudication of guilt. In addition, it was understood that Petitioner's file in this case would be expunged and sealed in accordance with Section 943.058, Florida Statutes and Rule 3.692, Florida Rules of Criminal Procedure.
Due to a misunderstanding, Petitioner's file in the criminal case was not expunged and sealed until November 17, 1989.
It was not until Petitioner was advised of his denial by Respondent that he became aware that his criminal record had not been expunged and sealed as was his understanding at the time he entered the plea of nolo contendere to petit theft.
While Respondent had denied Petitioner's application for a Class E Repossessor license before the Petitioner's criminal records were expunged and sealed by court order on November 17, 1989, Respondent's exhibit 2 obtained on January 10, 1990 from the OCSD and Respondent's exhibit 3 obtained on January 3, 1990 from the Orange County Clerk of the Circuit Court, respectively, were furnished by these agencies to Respondent notwithstanding the Order To Seal Records Pursuant To Florida Statutes 943.058 and FRCP 3.692, Case No. CR 88- 1236, In The Circuit Court of the Ninth Judicial Circuit In And For Orange County, Florida, dated November 17, 1989, requiring these records to be expunged and sealed.
Petitioner's plea of nolo contendere to petit theft was a plea of convenience which was a consequence of the lack of funds necessary to continue paying his attorney for his defense of this case. Under the facts and circumstances of this case, there is insufficient evidence to show the necessary intent required under Section 812.014(1), Florida Statutes, to prove the Petitioner committed petit theft.
There is insufficient evidence to show that Petitioner's failure to advise Respondent at the time of his application or any time before he became aware that the files were not expunged or sealed of his plea of nolo contendere to petit theft was fraudulent or willful misrepresentation of the facts concerning his application.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes (1989).
An applicant for licensure has the burden of establishing entitlement to the license. Rule 28-6.08(3), Florida Administrative Code; See Department of Transportation v. J. W. C., 396 So.2d 778 (1 DCA Fla. 1981). The Petitioner has sustained his burden of proof.
Section 120.60(2), Florida Statute, provides in pertinent part as follows:
...Every application for license shall be approved or denied within 90 days after receipt of the original application or receipt of the timely requested additional 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 which is not approved or denied within the 90-day or shorter time period shall be deemed approved....
Respondent, having failed to notify the Petitioner of its denial of his application either by written or verbal notice until after the 90-day time period, is deemed to have approved the application. Sumner v. Department of Professional Regulation, Board of Psychological Examiners, (15 FLW D183, January 19, 1990); Lin v. Department of Professional Regulation, Board of Psvchological Examiners, 444 So.2d 1105 (1 DCA Fla. 1984).
Assuming that Respondent timely denied Petitioner's application, there still has been no showing that Petitioner violated Section 493.319(1)(c), Florida Statutes. Section 493.319(2)(a), Florida Statutes, empowers the Department of State (department) to deny an application for licensure when it finds any violation of the acts enumerated in Section 493.319(1)(a) through (p), Florida Statutes. The department denied the Petitioner licensure based on an alleged violation of Section 493.319(1)(a) and (c), Florida Statutes, which provides as follows:
Fraud or willful misrepresentation in applying for or obtaining a license;
* * *
(c) Conviction of a crime which directly relates to the business for which the license is held or sought, regardless of whether adjudication was withheld or whether im- position of sentence was suspended. A con- viction based on a plea of nolo contendere
shall create a presumption of guilt to the underlying criminal charges, and the depart- ment shall allow the person being disciplined to present any evidence relevant to the under- lying charges and the circumstances surround- ing his plea.
Section 493.30(15), Florida Statutes, defines conviction to mean "...*a determination of guilt* resulting from a plea or trial, regardless of whether adjudication was withheld or imposition of sentence was suspended." (e.s. between *). In the instant case there has been no "determination of guilt" because acceptance by the Court of a nolo contendere plea without adjudication of guilt is insufficient to prove Petitioner guilty of the commission of petit theft. See Holland v. Florida Real Estate Commission, 352 So.2d 914 (2 DCA Fla. 1977; Cf. Vinson v. State, 345 So.2d 711 (Fla. 1977). Therefore, Petitioner is not in violation of Section 493.319(1)(c), Florida Statutes.
However, assuming arguendo that Respondent timely denied Petitioner's application and that there has been a determination of guilt in the instant case, the underlying facts and circumstances of Petitioner's nolo contendere plea to petit theft show that Petitioner was not guilty of petit theft, Kinney
v. Department of State, Division of Licensing, 501 So.2d 129 (5 DCA Fla. 1987), and therefore, there was no violation of Section 493.319(1)(c), Florida Statutes. Likewise, there has been no showing of a violation of Section 493.319(1)(a), Florida Statutes since Petitioner was under the false impression at the time he filed his application that his records in the criminal case were expunged and sealed by the court and in fact the records were later sealed and expunged in accordance with his understanding at the time of his plea. See: Section 943.058(6), Florida Statutes.
RECOMMENDATION
Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the circumstances surrounding this case, it is, therefore,
RECOMMENDED that the Department of State enter a Final Order granting Petitioner, Dennis B. Parker a Class E Repossessor license.
DONE AND ENTERED this 16th day of March, 1990, in Tallahassee, Leon County, Florida.
WILLIAM R. CAVE
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 1990.
APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 87-0893
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the Proposed Findings of Fact submitted by the parties in this case.
Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner
Petitioner presented his proposed findings of fact in four different headings with separate numbered paragraphs under each heading. For purposes of clarity I have renumbered the paragraphs consecutively and will respond accordingly.
1-2. Rejected as not being material or relevant since this was not the basis for denying the application.
3-4. Adopted in Findings of Fact 12 and 14 as modified.
5-6. Adopted in Findings of Fact 6 through 8 as modified.
Rejected as not being material or relevant.
Rejected as not being material or relevant, except that portion identifying Cindy Miller as the daughter of Judi Savoie which is adopted in Finding of Fact 10.
9-10. Adopted in Finding of Fact 6 through 8 as modified.
11-12. Rejected as not being material or relevant since this was not the basis for denial of the application.
Specific Rulings on Proposed Findings of Fact Submitted by the Respondent
Adopted in Finding of Fact 2 as modified.
Covered in the Preliminary Statement.
Adopted in Finding of Fact 12.
4-5. Not material or relevant to this case since this was not the basis for denial of the application.
Adopted in Finding of Fact 4 as modified.
Adopted in Finding of Fact 4 as modified, except for the portion that the CI told Petitioner the merchandise was stolen which is rejected as not being supported by suubstantial competent evidence in the record.
Rejected as not being material or relevant.
9-10. Rejected as not being supported by substantial competent evidence in the record.
11. Adopted in Finding of Fact 11.
COPIES FURNISHED: |
|
Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida |
32399-0250 |
Ken Rouse, Esquire General Counsel Department of State The Capitol, LL-10 Tallahassee, Florida |
32399-0250 |
Dennis B. Parker, Pro se 1655 5th Street
Clermont, Florida 34711
Henri C. Cawthon, Esquire Assistant General Counsel Department of State
The Capitol, Mail Station #4 Tallahassee, Florida 32399-0250
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AGENCY FINAL ORDER
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STATE OF FLORIDA DEPARTMENT OF STATE
DENNIS B. PARKER,
Petitioner,
CASE NO. 89-5306S
DEPARTMENT OF STATE, DIVISION OF LICENSING,
Respondent.
/
STIPULATION AND SETTLEMENT
The parties to this action, Department of State, Division of Licensing, (hereinafter "Respondent"), and Dennis B. Parker, (hereinafter "Petitioner"), do hereby stipulate and agree to the following:
This action arose as a result of Respondent's notice of intent to deny Petitioner's application for a Class "E" repossessors license issued pursuant to Chapter 493, Florida Statutes.
Pursuant to notice, a formal administrative hearing was held before William R. Cave, a duly appointed Hearing Officer of the Division of Administrative Hearings, on January 8, 1990, in Clermont, Florida.
On March 21, 1990, a Recommended Order was entered which recommended that Petitioner's license be granted.
Respondent agrees to issue Petitioner a Class "E" repossessor license upon the execution of this agreement. Petitioner agrees to a one year term of probation, the terms of which are attached hereto and incorporated by reference.
Each party shall be responsible for its own costs and fees.
Henri C. Cawthon Dennis B. Parker
Assistant General Counsel 1655 5th Street
Counsel for Appellee Clermont, Florida 34711 Department of State
Division of Licensing
The Capitol, Mail Station #4 Tallahassee, Florida 32399-0250
(904) 488-3492
Executed on this 23
day Executed on this 29
day
of May , 1990. of May, 1990.
DENNIS B. PARKER,
STATE OF FLORIDA DEPARTMENT OF STATE
Petitioner,
CASE NO. 89-5306S
DEPARTMENT OF STATE, DIVISION OF LICENSING,
Respondent.
/
TERMS OF PROBATION
Pursuant to the Stipulation and Settlement dated May 29, 1990, the Class `E" Repossessors license issued to Respondent pursuant to Chapter 493, Florida Statutes, has been placed on probation under the supervision of the Department of State, Division of Licensing. The Terms of Probation are as follows:
The Department shall appoint an individual who will be known as the "Probation Manager." It shall be the responsibility of the Probation Manager to monitor the probationary period.
The Probation Manager shall conduct any necessary on-site inspections of the Respondent's place of business to ensure compliance with the requirements delineated in Chapter 493, Florida Statutes.
No later than the tenth of each month beginning July 10, 1990, and for eleven consecutive months thereafter, the Respondent will make a full and truthful written report to the Probation Manager. The report shall include: a) a list of Respondent's clients for whom he provided repossession services in the previous month; b) a list of repossessor employees who were newly appointed or terminated from employment during the previous month; c) any change in business address or association, including changes in corporate officers or owners.
The Respondent shall make available such documents which may be necessary to determine if the terms of probation have been followed.
If the Respondent violates any of the conditions of probation, or any provisions of Chapter 493, the Department may take further administrative action as is deemed appropriate and may consider Respondent's probationary status in imposing disciplinary action against Respondent's Class "E" Repossessor's license.
DONE AND ORDERED THIS 12 day of April , 1990.
JOHN M. RUSSI
Director
cc: Orlando Regional Office
Docket for Case No: 89-005306
Orders for Case No: 89-005306
