STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES J. DICK, )

)

Petitioner, )

)

vs. ) CASE NO. 91-0365S

) DEPARTMENT OF STATE, DIVISION OF ) LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on May 3, 1991, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Henri C. Cawthon, Esquire

Assistant General Counsel Department of State Division of Licensing

The Capitol, MS #4

Tallahassee, Florida 32399-0250

For Respondent: Norman Elliott Kent, Esquire

The 110 Tower

110 Southeast Sixth Street, Suite 1400

Fort Lauderdale, Florida 33301 STATEMENT OF THE ISSUE

Whether Petitioner is entitled to licensure as a Class "CC" Private Investigator Intern and as a Class "EE" Repossessor Intern.

PRELIMINARY STATEMENT

Petitioner applied to Respondent for licensure in the State of Florida as a Class "CC" Private Investigator Intern and as a Class "EE" Repossessor Intern.

On January 8, 1991, Respondent denied Petitioner's application for licensure based on two alleged violations of the provisions of Section 493.6118(1)(j), Florida Statutes, which provides that applications for licensure may be denied if the applicant has engaged in the "[c]ommission of assault or battery, false imprisonment, kidnapping, or the use of force on any person except in the lawful protection of one's self or another from physical harm". The two alleged violations of this provision occurred on June 3, 1983, in Broward County, Florida, and on October 5, 1988, in Palm Beach, County. Petitioner timely

requested a formal administrative hearing following the denial, and this proceeding followed.

At the formal hearing, Petitioner presented the testimony of two witnesses and introduced ten exhibits, each of which was accepted into evidence.

Respondent presented the testimony of two witnesses and introduced three exhibits, each of which was accepted into evidence. (Pursuant to the agreement of the parties, and to facilitate the presentation of the evidence, Respondent presented its case first.

A transcript of the proceedings has been filed. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. On August 10, 1990, Petitioner filed an application for licensure with the Respondent as a Class "CC" Private Investigator Intern and as a Class "EE" Repossessor Intern.

   
   

2. On January 8, 1991, Respondent notified Petitioner, in an amended denial letter, that his application for licensure had been denied. The grounds for the denial were based on Petitioner's alleged violations of Section 493.6118(1)(j), Florida Statutes, on two separate occasions.

   
   

3. On June 11, 1982, the Petitioner and Donald Olkewicz became engaged in an altercation in Pompano Beach, Florida. Petitioner fired a 12 gauge flare gun through the screened apartment window of Mr. Olkewicz and later, in the parking lot of the apartment complex, Petitioner again discharged the flare gun which resulted in injuries to the face of Mr. Olkewicz. Petitioner was not acting in self-defense. Petitioner was arrested by Officer R. D. Cracraft who detected the odor of alcohol on the Petitioner and on Mr. Olkewicz. On July 1, 1982, an Information was filed against Petitioner in the Circuit Court in and for Broward County, Florida, for the felony charges of (1) Discharging a firearm into an occupied dwelling and of (2) aggravated battery. The charges contained in this Information were assigned Case No. 82-6213 CF10.

   
   

4. On April 15, 1983, Petitioner entered a plea of nolo contendere in Case No. 82-6213 CF10 to the charge of aggravated battery. 1/ On June 3, 1982, an order was entered by the Circuit Court in and for Broward County, Florida, withholding adjudication of guilt on the charge of aggravated battery and placing Petitioner on probation for a period of four years. Petitioner's term of probation was terminated early due to his good behavior.

   
   

5. On July 30, 1988, in Palm Beach County, Florida, Officer Edward T. Sileo of the Boca Raton Police Department was dispatched to Petitioner's apartment to supervise the removal of personal items by Petitioner's ex- girlfriend, Marie Rochay. Officer Sileo escorted Ms. Rochay from the parking lot to the apartment, and upon opening the door saw Petitioner standing in the hallway with a spear gun pointed at the door. Petitioner dropped the spear gun upon seeing Officer Sileo. Petitioner and Ms. Rochay began to argue and at some point Petitioner accidentally hit Officer Sileo in the chest and indicated in a profane manner that he wanted Officer Sileo to leave the premises. When Ms. Rochay began removing her clothes from a walk-in closet, Petitioner began to argue with her and attempted to keep her from leaving by physically restraining her. When Officer Sileo stepped in to separate Petitioner and Ms. Rochay Petitioner began to wrestle with Officer Sileo. Petitioner physically resisted

   Officer Sileo after being advised that he was under arrest. Petitioner was not acting in self-defense. There was no evidence that Petitioner was criminally prosecuted based on this incident.

   
   

6. At the time of the formal hearing, Petitioner was employed by Marine Recovery International. Mr. Joe Dinardo, the owner, testified that he considered Petitioner to be a valuable employee, and of good moral character. Marine Recovery International is willing to sponsor Petitioner's application and to supervise him during his internship.

   
   

7. Petitioner was honorably discharged from the U.S. Army on June 11, 1982.

   
   

8. Petitioner is licensed by the United States Coast Guard as a Merchant Marine Officer with the designation "Master of Near Coastal Steam or Motor Vessels of Not More Than 100 Gross Tons" and is a member in good standing of the American Professional Captains Association, an organization for U.S. Coast Guard Licensed Captains.

   
   

9. Petitioner presented several letters from individuals who know him and who consider him to be responsible, professional, and of good moral character. These letters recommend licensure for Petitioner.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

    
    

11. Section 493.6118(1), Florida Statutes, provides, in pertinent part:

    
    

    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.

       
       

       (j) Commission of assault or battery, false imprisonment, kidnapping, or the use of force on any person except in the lawful protection of one's self or another from physical harm.

       
       

    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 licensure.

          
          

12. Petitioner contends that the mitigating factors in this case entitle him to licensure. Petitioner argues the following mitigating factors:

    
    

    1. The length of time that has passed since the incidents.

    2. The absence of a recurring pattern of misbehavior.

    3. The early and successful completion of his probation.

    4. His experience.

    5. His employer's willingness to keep him on the job and the favorable recommendations from his employer and others.

    6. His financial responsibility, honesty, and his good faith corrective measures.

    
    

13. Petitioner also contends that there was insufficient evidence to establish the allegations related to the incident of July 30, 1988, involving Officer Sileo since there was no evidence that he was prosecuted criminally as a result of that incident. This contention is rejected since Section 493.6118(1)(j), Florida Statutes, does not require a criminal conviction, only evidence of the commission of the named offenses. Respondent established by the greater weight of the evidence that Petitioner physically resisted Officer Sileo during the course of an arrest in violation of Section 493.6118(1)(j), Florida Statutes.

    
    

14. Respondent correctly asserts the position that it is within its discretion to deny licensure based on the incident that occurred in 1982 and the incident that occurred in 1988.

    
    

15. As the party seeking licensure, Petitioner has the burden of establishing by a preponderance of the evidence his entitlement to licensure. While Petitioner has established that there exist mitigating circumstances, the Petitioner has failed to establish that Respondent has abused its discretion in denying Petitioner's application for licensure. Petitioner has also failed to established that he is entitled to licensure notwithstanding the incidents in 1982 and 1988.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which denies Petitioner's

application for licensure as a Class "CC" Private Investigator Intern and as a

Class "EE" Repossessor Intern.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 21st day of June, 1991.

CLAUDE B. ARRINGTON

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 21st day of June, 1991.

ENDNOTES

1/ There was no evidence as to the disposition of the charge of discharging a firearm into an occupied dwelling.

APPENDIX TO THE RECOMMENDED ORDER

Petitioner's only post-hearing submittal was in the form of a letter addressed to the Hearing Officer that was filed May 20, 1991. This letter consists primarily of argument. The proposed findings of fact contained in the letter are adopted in material part.

The proposed findings of fact submitted on behalf of the Respondent are adopted in material part by the Recommended Order.

Copies furnished:

Henri C. Cawthon Assistant General Counsel Department of State Division of Licensing

The Capitol, MS #4

Tallahassee, Florida 32399-0250

Norman Elliott Kent, Esquire The 110 Tower

110 Southeast Sixth Street, Suite 1400 Fort Lauderdale, Florida 33301

Honorable Jim Smith Secretary of State The Capitol

Tallahassee, Florida 32399-0250

Phyllis Slater General Counsel The Capitol, PL-02

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: 91-000365

Orders for Case No: 91-000365