STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARCO A. SANCHEZ, )

)

Petitioner, )

)

vs. ) CASE No. 91-2275S

)

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a formal hearing in this case on June 27, 1991, in Tampa, Florida.

APPEARANCES

For Petitioner: Marco A. Sanchez, pro se

Post Office Box 151334 Tampa, Florida 33684

For Respondent: Henri C. Cawthon, Esquire

Assistant General Counsel Department of State, Licensing The Capitol, Mailstation #4 Tallahassee, Florida 32399-0250

STATEMENT OF THE ISSUE

Whether or not Petitioner's application for a Class "D" security officer's license should be approved.

PRELIMINARY STATEMENT

By letter dated March 4, 1991, Petitioner, Marco A. Sanchez, challenged Respondent, Department of State, Division of Licensing, administrative denial of his application for a Class "D" license as a security officer. On March 18, 1991, Respondent forwarded to Petitioner an amended denial of his application for a Class D security officer license. Petitioner thereafter timely requested a formal hearing and on April 10, 1991, the matter was transferred to the Division of Administrative Hearings for the assignment of a hearing officer to conduct a formal hearing. Following responses from the parties, on May 3, 1991, the matter was noticed for hearing for June 27, 1991, and was heard as scheduled.

At the hearing, Petitioner testified on his behalf and introduced exhibits

1 and 2 which were received in evidence at the hearing. Respondent introduced exhibit 1, a copy of Petitioner's application and documents submitted and/or

compiled by Respondent, which were utilized (by Respondent) in processing Petitioner's application and was received in evidence at the hearing.

On July 9, 1991, Respondent submitted a proposed recommended order which is substantially incorporated in this Recommended Order.

FINDINGS OF FACT

1. On November 8, 1990, the Respondent, Department of State, Division of Licensing, received Petitioner, Marco A. Sanchez' application for a Class "D" security officer's license. The application was signed by Petitioner on October 24, 1990.

   
   

2. In Section five of Petitioner's application, Petitioner indicated he had never been convicted of a crime regardless of whether adjudication was withheld or imposition of sentence was suspended.

   
   

3. By amended denial letter dated June 11, 1991, Respondent advised Petitioner that his application for licensure would be denied for alleged violation of Section 493.6118(1)(a), to wit, fraud or willful misrepresentation in applying for a license; and Section 493.6118(3), lack of good moral character.

   
   

4. On March 1, 1990, in Hillsborough County Circuit Court, Case No. 89- 20164, Petitioner pled guilty and had adjudication of guilt withheld on the charge of petit theft. The initial charge was strong arm robbery but was reduced at trial. Petitioner was placed on probation for a period of six months, however, he successfully performed his community service within two (2) weeks of sentencing and the probationary period was suspended following his completion of the community service.. The guilty plea resulted from an incident in which Petitioner attempted to steal a dress shirt from a local department store. Petitioner became angry when he was unsuccessful in his effort to exchange a shirt that he received as a gift. Petitioner was ultimately able to have the shirt exchanged at a different department store of the same chain. Following the exchange, Petitioner attempted to steal another shirt. Petitioner was observed by the store's security officers who followed him and apprehended him as he left the store. Petitioner and the officers engaged in a scuffle when they detained him. Based on Petitioner's confrontation with the store clerk at the first store, he was motivated to attempt to take the shirt from the second store. On December 9, 1989, Petitioner was originally charged with strong arm robbery on the basis that one of the security officers was injured on the lip. At hearing, Petitioner credibly testified that the security officer in question was not involved in his apprehension in December 1989.

   
   

5. Petitioner is remorseful for attempting to steal the shirt from the department store in December 1989.

   
   

6. During November 1988, in Miami, Florida, Petitioner was arrested and charged with the possession of cocaine and marijuana. The charges were nolle prossed. Petitioner credibly testified that the drugs in question belonged to a female companion in his car at the time of his arrest and he was unaware that she had any contraband on her person.

   
   

7. Petitioner completed his application for a Class "D" security officer and was aware of his requirement to truthfully respond to the inquiry in Section Five of the application. Petitioner failed to credibly explain his omission of

   the March 1, 1990 disposition of the charges filed against him in Hillsborough County Circuit Court, Case No. 89-20164.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. The parties were duly noticed pursuant to Chapter 120, Florida Statutes.

   
   

10. The authority of the Respondent is derived from Chapter 493, Florida Statutes.

    
    

11. Petitioner intentionally misrepresented his criminal record when he completed his license application filed with Respondent on or about October 24, 1990. As such, Petitioner engaged in proscribed conduct within the purview of Subsection 493.6118(1)(a), Florida Statutes.

    
    

12. Based on Petitioner's misrepresentation in completing his license application on or about October 24, 1990, Petitioner lacks good moral character and he has failed to demonstrate that his character has been rehabilitated since completing his application. Of particular significance is the recency of the charge and disposition of the fact that it relates to the field of work which Petitioner is seeking licensure to be employed, to wit: to protect merchant's property from theft. Although Petitioner was candid and remorseful about the retail theft, he was not as forthright and candid as regards his completion of his license application. For that reason, I shall recommend that Petitioner's application for licensure be denied at this time. 1/

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that:

Respondent enter a Final Order denying Petitioner's application for licensure as a Class "D" security officer.

DONE and ENTERED this 29th day of August, 1991, in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

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 29th day of August, 1991.

ENDNOTES

1/ This recommendation does not prevent Petitioner from reapplying for licensure once his character has been rehabilitated and he possesses the requisite "good moral character" as defined in Section 493.6101(7), Florida Statutes.

Copies furnished:

Henri C. Cawthon, Esquire Assistant General Counsel Department of Legal Affairs The Capitol, Mailstation #4

Tallahassee, Florida 32399-0250

Marco A. Sanchez

Post Office Box 151334 Tampa, Florida 33684

Honorable Jim Smith Secretary of State The Capitol

Tallahassee, Florida 32399-0250

Phyllis Slater, Esquire General Counsel Department of State

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: 91-002275

Orders for Case No: 91-002275