STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, DIVISION ) OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 90-1862

)

CESAR A. IDUATE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on July 13, 1990, in Miami, Florida, before J. Stephen Menton, a duly designated Hearing Off icer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ann Cowles-Fewox, Esquire

Henri Cawthon, Esquire Department of State Division of Licensing The Capitol, MS #4

Tallahassee, Florida 32399-0250

For Respondent: Anthony J. Scremin, Esquire

37 N.E. 26th Street Miami, Florida 33137

STATEMENT OF THE ISSUES

The issue in this case is whether Petitioner's Class "D" Watchman, Guard or Patrolman's License and Class "G" statewide gun permit should be revoked based upon the allegations contained in the Administrative Complaint.

PRELIMINARY STATEMENT

In an Administrative Complaint dated February 9, 1990, the Division of Licensing, Department of State charged Respondent, Cesar A. Iduarte, with a violation of Section 493.391(3), Florida Statutes as a result of having been convicted of a felony. In an Election of Rights Form dated May 2, 1990, Respondent timely requested a formal hearing regarding the allegations. The case was referred to the Division of Administrative Hearings which noticed and conducted the hearing.

At the hearing, Petitioner offered four exhibits into evidence, all of which were accepted. Those exhibits established that Respondent was licensed by the State, that Respondent was arrested in connection with an incident which occurred on June 16, 1988 and charged with conspiracy and grand theft, that

Respondent entered a plea of nolo contendere to the charges and was sentenced to eighteen months probation with adjudication withheld. Based upon those documents, Petitioner rested. During the hearing, Petitioner objected to Respondent's attempt to offer "exculpatory" evidence. Petitioner contended that the statute only permits a licensee who has pled nolo contendere to a felony to offer "mitigating" evidence. Ruling on this issue was reserved at the hearing. For the reasons set forth in the conclusions of law below, this objection to Respondent's evidence is hereby overruled.

Respondent testified on his own behalf and also presented the testimony of his wife. Respondent offered four exhibits into evidence during the hearing, all of which were accepted. Three additional exhibits were identified for the record and the parties agreed to confer after the hearing to resolve certain authenticity problems with respect to those exhibits. Respondent's Exhibits 5 and 6 were statements given in Spanish by Carlos Diaz, a former co-worker with Respondent at Wells Fargo. Respondent's Exhibit 7 was a composite English translation of those two statements. In its proposed recommended order, the Petitioner withdrew its prior objection to those exhibits. Therefore, Respondent's Exhibits 5, 6 and 7 are accepted.

After Respondent presented his case, Petitioner called three rebuttal witnesses: Vince Fragno, the director of security at Miami-Dade Community College and a witness to the robbery which is the subject of Petitioner's criminal case; Lloyd Plummer, an FBI agent who was involved in the investigation of the criminal case; and Eduardo Santiago, a detective with the Miami Beach Police Department who worked for Wells Fargo at the time of the robbery.

The Petitioner has timely filed a Proposed Recommended Order. No post- hearing submittals have been received from the Respondent. A ruling on each of the proposed findings of fact contained in Petitioner's submittal is included in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent has been the holder of license numbers Dal-06l98 and GOO-25l67 issued by the Division of Licensing, Department of State.

   
   

2. During the summer of 1988, Respondent was employed by Wells Fargo as a security guard. He had been working for Wells Fargo for approximately four years. Part of his duties included serving as a "messenger guard" on armored trucks.

   
   

3. On June 10, 1988, Respondent was serving as a "messenger guard" on a Wells Fargo armored truck in Dade County, Florida. In that role, he was required to deliver and pick up money from various customers. Carlos Diaz was the driver of the truck that day. Respondent had been assigned to this route for approximately one year and he was more familiar with the route than Carlos Diaz was.

   
   

4. During a stop at a Western Union Check Cashing Service, Respondent was robbed of approximately two hundred thousand dollars.

   
   

5. The robbery took place as Respondent exited the - truck. A car approached him and the occupant pulled a gun on Respondent and forced him to turn over the money.

6. There are indications that there was some internal complicity at Wells Fargo with the robbery. On the day of the incident, the keys to the armored truck typically used for this route were not in the truck where they were usually kept. In addition, the spare key that was supposed to be kept in the office could not be located. As a result, Respondent and his driver, Diaz, were required to take an older truck which did not have a radio. Therefore, they were not in contact with the police or the Wells Fargo office at the time the robbery took place.

   
   

7. While Wells Fargo has a fleet of approximately thirty trucks, all but two of them have radios. The truck used on the day of the robbery was one of the two without a radio and was the only truck available for use as a substitute.

   
   

8. Several of the usual procedures required by Wells Fargo for deliveries were not followed at the stop where the robbery occurred.

   
   

9. Wells Fargo procedures require the trucks to be parked so that the door to the cargo area opens towards the building to which deliveries are made and away from the street and traffic. This procedure was not followed and Respondent, as the messenger guard, was required to exit the truck into the parking lot on the side of the truck oppositite the delivery point entrance. In addition, Wells Fargo policies require a guard to pull his gun from the holster when exiting the truck with money. In this case, the evidence established that the Respondent's gun was either in his holster or in his waistband when the robbery took place.

   
   

10. Subsequent to the robbery, the driver of the armored truck, Carlos Diaz, confessed to being a conspirator in the robbery. He also implicated Respondent. Diaz had initially denied any involvement in the robbery. However, he subsequently signed a statement confessing his role and accusing Respondent of coordinating the crime. Diaz was apparently never arrested for his role in the robbery. However, as noted below, no evidence was presented to explain why Diaz was not charged.

    
    

11. Carlos Diaz did not testify at the hearing. Several sworn statements given by Diaz and a deposition of him were introduced into evidence. As noted above, Diaz originally denied any involvement with the robbery. However, he subsequently claimed that Respondent approached him about participating in the crime. Diaz said that he was instructed by Respondent to provide a misleading description of the getaway car and otherwise deny any knowledge of the event. In return, he was to receive a portion of the proceeds of the robbery. Diaz originally informed investigators that the robbers were driving a dark, late- model sedan with dark, tinted windows. Later, after he admitted his involvement, he told investigators that the robbers were driving a light colored, older car. This later description is consistent with the description of the getaway car provided by at least one other eyewitness.

    
    

12. Respondent advised the investigators that the robbers were driving a relatively new, dark colored car. This description was consistent with the initial description provided by Diaz, but inconsistent with Diaz' later description provided after he confessed and the descsription provided by another eyewitness to the incident.

13. One uninvolved eyewitness who observed the robbery from a distance of approximately 200 feet confirmed that the getaway vehicle was a lighter colored vehicle that was several years old. The witness is director of security at a local community college who is trained to be observant. His testimony is credited. The witness also commented on the rather casual nature in which the money was transferred to the getaway vehicle. At the time, he did not realize that a robbery had taken place.

    
    

14. The F.B.I. agent who interviewed Respondent and attempted to obtain a description of the suspect noted that the Respondent provided only a general description of the alleged perpetrator. This F.B.I. agent did not feel comfortable with the composite that was produced as a result of his discussions with Respondent.

    
    

15. Respondent was arrested on charges of conspiracy and grand theft. On January 22, 1990, Respondent entered into a plea agreement whereby he entered a plea of nolo contendere to the charges, adjudication was withheld and he was placed on probation for a period of eighteen months.

    
    

16. While Respondent suggests that Diaz implicated him in the crime in order to obtain favorable treatment, no competent evidence was presented to establish that Diaz had an agreement with the police or state attorney. The evidence did not present sufficient explanation as to why Diaz would unjustifiably implicate Respondent.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

18. Under Chapter 493.319, Florida Statutes, the Petitioner has the authority to take disciplinary action against a person who has been licensed under Chapter 493 for certain specified violations.

    
    

19. Section 493.319(3), Florida Statutes provides:

    
    

    The Department shall deny an application or revoke a license when the person or licensee has been convicted of a felony regardless of whether adjudication was withheld or whether imposition of sentencing was suspended, unless and until civil rights have been restored and a period of ten years has expired.

    A conviction based upon a plea of nolo contendere shall create a presumption of guilt to the underlying criminal charges, and the Department shall allow the person being disciplined to present any evidence relevant to the underlying charges and the circumstances surrounding his plea.

20. There is no dispute in this case that Respondent entered a plea of nolo contendere to a felony and that adjudication of guilt was withheld. Under Section 493.319(3), Respondent has an opportunity to present evidence to rebut the presumption of guilt created by his plea of nolo contendere.

    
    

21. Pursuant to this statute, Respondent is required to revoke Respondent's license unless Respondent can provide sufficient evidence to overcome the presumption of guilt.

    
    

22. Petitioner contends that the statute is only intended to provided a licensee an opportunity to submit "mitigating" evidence as opposed to "exculpatory" evidence. In support of this position, Petitioner points to newly enacted Section 493.6118(4), Florida Statutes which reenacts the prior statute in all pertinent parts, but adds the adjective "mitigating" before the word evidence. However, even the new statute allows the person being disciplined to present evidence of the circumstances surrounding the plea. In this context, the term "mitigating" should not be read to exclude exculpatory evidence. In any event, the distinction in this case is inconsequential because the Respondent has not presented sufficient evidence to overcome the presumption of guilt created by his plea of nolo contendere.

    
    

23. At the hearing in this case, Respondent testified under oath and denied any involvement in the robbery. He claims that he only entered into the plea agreement after his wife and his attorney convinced him that it was the easiest way to get out of a very difficult situation. At the time of the plea agreement, Respondent's wife was eight months pregnant. Under the terms of the arrangement, Respondent was only placed on probation for eighteen months. Respondent's contends that his attorney convinced him that entering a plea of nolo contendere under the conditions offered was better than the risk of going to trial and facing a jail term, criminal fines and/or an order of restitution. His attorney did not advise him that the plea could impact upon his license. While Respondent may not have understood the effect a plea of nolo contendere would have on his licensure status, his lack of knowledge is not grounds for relief. Under Section 493.319 such a plea clearly creates a presumption of guilt and Respondent has not presented sufficient evidence to overcome it.

    
    

24. The evidence indicates there was some internal complicity in the robbery. While Respondent denies any involvement in the crime, no explanation has been provided to explain the discrepancies between his description of the getaway vehicle and the descriptions provided by Carlos Diaz and the uninvolved eyewitness. Providing a misleading description was a key element in the conspiracy outlined by Carlos Diaz. The eyewitness confirmation of the revised description provided by Diaz after he confessed to the crime is given substantial weight in rejecting Respondent's denial of any involvement.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a Final Order revoking Respondent's Class "D" Security Guard license and Class "G" gun permit.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 1st day of October, 1990.

J. STEPHEN MENTON 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 1st day of October, 1990.

APPENDIX TO RECOMMENDED ORDER CASE NO. 90-1862

The Respondent has submitted a Proposed Recommended Order. The following constitutes my rulings on the proposed findings of fact submitted by the Respondent.

The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection.

1. Adopted in substance in Findings of Fact 3 and 15.

2. Adopted in relevant part in Findings of Fact 12.

3. Rejected as irrelevant. A related subject is addressed in Finding of Fact 9.

4. The first two sentences are adopted in substance in Findings of Fact 9. The third sentence is rejected as constituting argument rather than a finding of fact.

5. Adopted in relevant part in Findings of Fact 15.

6. Adopted in substance in Findings of Fact

7. Adopted in substance in Findings of Fact 6 and 7.

8. Adopted in substance in Findings of Fact

9. Adopted in relevant part in Findings of Fact 3.

10. Rejected as hearsay that was not corroborated by competent substantial evidence. The only testimony on this issue was the deposition testimony of Carlos Diaz.

11. Rejected as not established by competent substantial evidence. See ruling on proposed Finding of Fact 10 above.

12. Rejected as not established by competent substantial evidence. The only specific evidence of conversations between Respondent and Carlos Diaz is the uncorroborated deposition testimony of Carlos Diaz.

13. Rejected as irrelevant.

14.-17. Rejected as not established by competent substantial evidence. See ruling on proposed Finding of Fact 10 above.

1. Adopted in relevant part in Findings of Fact 13.

2. The first sentence is adopted in relevant part in Findings of Fact 10. The remainder is rejected as hearsay that it

   was not corroborated by competent substantial evidence.

3. Adopted in substance in Findings of Fact 12.

4. Rejected as irrelevant.

5. Rejected as not established by competent substantial evidence. The only evidence of conversations between Respondent and Carlos Diaz is the uncorroborated deposition testimony of Carlos Diaz.

6. Rejected as not established by competent substantial evidence.

COPIES FURNISHED:

Anthony J. Scremin, Esquire

37 N.E. 26th Street Miami, Florida 33137

Ann Cowles-Fewox, Esquire Henry Cawthon, Esquire Department of State, Division of Licensing

The Capitol, MS #4

Docket for Case No: 90-001862

Orders for Case No: 90-001862