STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONALD RAY BALLARD, )

)

Petitioner, )

)

vs. ) CASE NO. 90-1563S

)

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, buy is duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on January 22, 1991, in West Palm Beach, Florida. 1/

APPEARANCES

For Petitioner: Donald Ray Ballard, pro se

5335-48 North Military Trail #705 West Palm Beach, Florida 33407

For Respondent: Henri Cawthon, Esquire

Assistant General Counsel Division of Licensing

The Capitol, MS 4

Tallahassee, Florida 32399-0250 STATEMENT OF THE ISSUES

At issue in this proceedings is whether petitioner's application for a Class "A" private investigative agency license and Class "C" private investigator's license should be approved.

PRELIMINARY STATEMENT

By letter of February 8, 1990, respondent denied petitioner's application for a Class "A" private investigative agency license and Class "C" private investigator's license. The predicate for respondent's denial was its contention that petitioner had been convicted in Palm Beach County, Florida, on April 28, 1980, of sale of cocaine, possession of cocaine, possession of a short barreled rifle, and possession of narcotics paraphernalia; that he had failed to reveal such convictions on his application; and that he was therefore ineligible for licensure under the provisions of Section 493.319(1)(a) and (c), and Section 493.319(3), Florida Statutes (1989). Such statutory references are now codified at Sections 493.6118(1)(a) and (c) and Section 493.6118(4), Florida Statutes (1990 Supp.). The respondent likewise premised its denial on its contention that petitioner lacked the requisite experience or training for licensure; however, at hearing, the respondent withdrew such assertion, and predicated its

denial solely on its contention that petitioner had been convicted of the felonies, discussed supra, and had further failed to disclose such convictions on his application. 2/

At hearing, petitioner testified on his own behalf, and called George Y. deRandich as a witness. Petitioner's exhibits 1-8, 10, 11 and 14 were received into evidence. Respondent called Steven Lobeck, a sergeant with the Riviera Beach Police Department, and Melanie Eggleston, a former state probation and parole officer with the Florida Department of Corrections, as witnesses.

Respondent's exhibits 1-5 were received into evidence. 3/

The transcript of hearing was filed February 25, 1991, and the parties were granted leave to file proposed findings of fact within 10 days of the date the transcript was filed. At petitioner's request, filed March 7, 1991, and with no objection from respondent, the time for filing proposed findings of fact was extended to March 17, 1991. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 22I-6.031, Florida Administrative Code. The parties' proposed findings of fact are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. On September 13, 1989, petitioner, Donald Ray Ballard, filed an application with respondent, Department of State, Division of Licensing (Department) for a Class "A" private investigative agency license and Class "C" private investigator's license. Pertinent to this case, the application, which was attested to by petitioner, averred that he had never been convicted for any violation of the law.

   
   

2. By letter of February 8, 1990, the Department timely denied petitioner's application predicated on its contention that petitioner had been convicted of four felonies on April 28, 1980, to wit: sale of cocaine, possession of cocaine, possession of a short barreled rifle, and possession of narcotics paraphernalia. Petitioner filed a timely request for formal hearing, which contested the fact that he had ever been so convicted, and the matter was referred to the Division of Administrative Hearings to conduct a hearing pursuant to Section 120.57(1), Florida Statutes.

   
   

3. At hearing, the Department introduced into evidence certified copies of a judgment, order and commitment entered by the Circuit Court for Palm Beach County, Florida, on April 28, 1980, and bearing Case No. 79-2970 CF B 02. Those documents reflect that one Donald Ballard entered a plea of guilty to the offense of sale of cocaine (Count I), possession of cocaine (Count II), possession of a short barreled rifle (Count III), and possession of narcotics paraphernalia (Count IV). The documents further reflect that such person was found guilty on Counts I and II and that imposition of sentence was withheld, and that adjudication of guilt and imposition of sentence was withheld as to Counts III and IV. As to each count, such person was placed on probation for a period of 5 years, to run concurrently with each other, under the supervision of the Florida Department of Corrections. Petitioner denies that he and the Donald Ballard so charged and convicted are the same person.

   
   

4. Officer Stephen Lobeck, the officer who arrested the person charged and convicted, as heretofore discussed, identified petitioner within a 90 percent degree of certainty as the same person he arrested. Melanie Eggleston, who was employed as a probation parole officer with the Florida Department of Corrections from 1980 until April 1985, positively identified petitioner as the

   same Donald Ballard she supervised as a probationer following his conviction for drug dealing. Given such credible identification, and the fact that the term of probation for the person she supervised was due to terminate in April 1985, it is more likely than not that the respondent is the same Donald Ballard who was convicted on April 28, 1980, as heretofore discussed.

   
   

5. In concluding that respondent was so convicted on April 28, 1980, it has been unnecessary to consider the arrest record of the Sheriff's Office, Palm Beach County, Florida, for August 3, 1979 (Respondent's exhibit 3, page 2) or Officer Lobeck's arrest report (Respondent's exhibit 2). These documents are hearsay, as discussed supra at footnote 3, but due to the provisions of Section 120.58(1)(a), Florida Statutes, are, nevertheless, admissible in administrative proceedings to supplement or explain competent evidence. Harris v. Game and Fresh Water Fish Commission, 495 So.2d 806 (Fla. 1st DCA 1986).

   
   

6. Here, the persuasive testimony of Officer Lobeck and Ms. Eggleston, provided competent proof of petitioner's identity as the Donald Ballard who was convicted on April 28, 1980. Were the arrest record considered, as supplementing that proof, it would be supportive of the ultimate conclusion reached. In this regard, the arrest record identifies the subject as Donald Ray Ballard; his local address as 149 Granada Drive, Palm Springs, Florida; his occupation as disabled veteran; his date of birth as December 2, 1931; his social security number as 240-40-4932; and his general description as that of a white male, height 5'7", weight 144 pounds, black hair, brown eyes, and medium complexion.

   
   

7. Petitioner's general description is grossly consistent with the description contained in the arrest record, his residence address at the time was 149 Granada Drive, Palm Springs, Florida, and he is a disabled veteran. Further, while the identification petitioner produced at hearing referenced a date of birth of December 3, 1931, the proof also reflects that he had, on other occasions, been attributed with a date of birth of December 2, 1931. Specifically, the two DD214 forms he attached to his application to evidence his military service, as well as his transcript from Indiana Technical College, reflect a date of birth of December 2, 1931. Finally, petitioner's social security number has been variously reported as 240-40-4937 and 240-40-4937A.

   But for the last digit, petitioner's social security number is consistent with the social security number contained on the arrest record. 4/ On balance, the arrest record is supportive of the competent proof which identified petitioner as the Donald Ballard convicted on April 28, 1980.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. At issue in this proceeding is whether the petitioner's application for a Class "A" private investigative agency license and Class "C" private investigator's license should be approved. As the applicant, petitioner has the burden of demonstrating his entitlement to licensure. Florida Department of Transportation v. J.W.C. Co., 396 So.2d 788 (Fla. 1st DCA 1981), and Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

10. Pertinent to this case, Section 493.6118, Florida Statutes (1990 Supp.), provides: 5/

    
    

    493.6118 Grounds for disciplinary action. --

    1. The following constitute grounds for which disciplinary action specified in subsection (2)

       may be taken by the department against any licensee, agency, or applicant regulated by this chapter, or any unlicensed person engaged in activities regulated under this chapter.

       1. 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 imposition of sentence was suspended...

          
          

    2. When the department finds any violation of subsection (1), it may do one or more of the following:

       1. Deny an initial or renewal application for license.

       2. Issue a reprimand.

       3. Impose an administrative fine not to exceed $1,000 for every count or separate offense.

       4. Place the licensee on probation for a period of time and subject to such conditions as the department may specify.

       5. Suspend or revoke a license.

          
          

          (4) Notwithstanding the provisions of paragraph (1)(c) and subsection (2), if the applicant or licensee has been convicted of a felony in any state or of a crime against the United States which is designated as a felony, or convicted of an offense in any other state, territory, or country punishable by imprisonment for a term exceeding 1 year, the department shall deny the application or revoke the license unless and until civil rights have been restored by the State of Florida or by a state acceptable to Florida and a period of 10 years has expired since final release from supervision....

          
          

11. Here, the proof demonstrates that petitioner was convicted of two felony charges on April 28, 1980, in Palm Beach County, Florida, that reflect adversely upon his respect for the laws of the State of Florida, and that he failed to disclose such fact on his application. It further demonstrates that the term of probation on which he was placed did not expire until April 1985 and therefore, a period of 10 years has not expired since his final release from supervision. Accordingly, petitioner has been shown to have violated the provisions of Section 493.6118(1)(a) and (c), and Section 493.6118(4), Florida Statutes.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying petitioner's application

for a Class "A" private investigative agency license and Class "C" private investigator's license.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of March 1991.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of March 1991.

ENDNOTES

1/ This case was originally heard on June 15, 1990, by Hearing Officer Claude

B. Arrington. Following that hearing, the court reporter, who had been entrusted to record the proceedings and preserve the exhibits, could not be located. Therefore, the parties being unable to reconstruct the record, a new hearing was ordered. Subsequently, at the request of petitioner, Hearing Officer Arrington disqualified himself.

2/ At hearing, respondent's motion for leave to amend was denied as untimely. Petitioner's application for injunctive relief was also denied.

3/ At hearing, the admissibility of petitioner's exhibits 1, 12, 13, and 14, and respondent's exhibit 2 was taken under advisement. Upon consideration of the record, and respondent's post-hearing response to such offer, petitioner's exhibits 1 and 14 were admitted. It is, however, noted that petitioner's exhibit 14 is hearsay. Petitioner's exhibit 12 was rejected since there was no adequate foundation laid as to the manner or means employed to "send" such letter to respondent (i.e.: no showing that it was placed in the United States Mail, postage prepaid, and addressed to respondent) to raise a presumption of receipt, no direct evidence that respondent ever received such letter, and no competent proof from the author of such letter (Mr. deRandich) concerning the matters therein stated. Petitioner's exhibit 13 was rejected, and petitioner's testimony regarding the contents of the letter that purportedly accompanied such document is not credited (TR. pp 27-28), since it was not persuasively demonstrated that respondent sent any such letter to petitioner. Respondent's exhibit 2 was admitted. It is, however, noted that respondent's exhibit 2, as well as its exhibit 3, constitute hearsay which was not shown to qualify under the public records or business records exception to such rule. See: Juste v.

Department of Health and Rehabilitative Services, 520 So.2d 69 (Fla. 1st DCA 1988), and Sikes v. Seaboard Coast Line Railroad Co., 429 So.2d 1216 (Fla. 1st

DCA 1983). It is further noted that while respondent's exhibit 5 has been certified as being part of the respondent's file on petitioner's application, that the information contained on pages 20-22 and objected to by petitioner, constitute hearsay of unknown dimensions, that the manner or means by which such data was acquired was not addressed by any witness to these proceedings, and that it is found to be unreliable and unpersuasive.

4/ The accuracy of the arrest record with respect to date of birth and social security number is suspect in light of the rough draft of the arrest record attached to respondent's exhibit 3. That draft reflects a date of birth of December 3, 1931, and a social security number of 240-40-4937A.

5/ At the time petitioner filed his application, and the Department denied it, these provisions were codified as Sections 493.319(1)(a) and (c), and Section 493.319(3), Florida Statutes (1989).

APPENDIX

Petitioner's proposed findings of fact contained at pages 22-23 of his proposed recommended order are addressed as follows:

1. Addressed in the preliminary statement.

2. Rejected as contrary to the record and the credible proof.

3. Rejected as contrary to the proof. See paragraphs 4-7.

4. First sentence rejected as contrary to the record. Petitioner was provided the opportunity to acquire such evidence. Second sentence addressed in paragraph 4.

5. Rejected as contrary to the credible proof.

The remainder of petitioner's proposed recommended order is a mixture of case history, recitation of exhibits and witnesses' testimony, and argument, which do not constitute findings of fact or lend themselves to being addressed. They have, however, been considered and, to the extent pertinent and supported by the record, are addressed in the recommended order.

Respondent's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 2.

2. Addressed in paragraph 1.

3. Addressed in paragraph 3.

4. Addressed in paragraphs 5-7.

5-7. Addressed in paragraphs 4 and 5.

Copies furnished:

Donald Ray Ballard

5335-48 North Military Trail #705

West Palm Beach, Florida 33407

Henri Cawthon, Esquire Assistant General Counsel Division of Licensing

The Capitol, MS 4

Tallahassee, Florida 32399-0250

The Honorable Jim Smith Secretary of State

The Capitol

Tallahassee, Florida 32399-0250

Phyllis Slater General Counsel Department of State The Capitol

Tallahassee, Florida 32399-0250

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-001563

Orders for Case No: 90-001563