STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES M. HEGARTY, II, )

)

Petitioner, )

)

vs. ) CASE NO. 92-3329S

)

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on September 4, 1992, in West Palm Beach, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Raymond M. Masciarella, II, Esquire

840 U.S. Highway 1, Suite 340 North Palm Beach, Florida 33408

For Respondent: Henri C. Cawthon, Esquire

Assistant General Counsel Department of State Division of Licensing

The Capitol, M.S. #4 Tallahassee, Florida 32399-0250

STATEMENT OF THE ISSUE

Whether Petitioner's application for a Class "CC" (private investigator intern) license should be denied on the grounds set forth in the Department of State, Division of Licensing's (Department's) May 4, 1992, denial letter to Petitioner?

PRELIMINARY STATEMENT

By letter dated May 4, 1992, the Department notified Petitioner of its intention to deny his application to be licensed as a private investigator intern. The letter alleged that Petitioner (1) had been guilty of "[f]raud or willful misrepresentation in applying for [the] license," in violation of Section 493.6118(1)(a), Florida Statutes; (2) had committed "an act of violence or the use of force on any person except in the lawful protection of one's self or another from physical harm," in violation of Section 493.6118(1)(j), Florida Statutes; and (3) lacked "good moral character." Petitioner requested a formal administrative hearing on the matter. On May 29, 1992, the case was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct the formal administrative hearing Petitioner had requested.

At the outset of the formal hearing held in this case, the Department was granted leave, without objection from Petitioner, to amend its May 4, 1992, denial letter to eliminate the allegation that Petitioner had violated Section 493.6118(1)(a), Florida Statutes, in applying for his license and to delete the references to the 1979 "charges" of "Carrying Concealed Weapon-Firearm," "Firing Weapon-Firearm in Public" and "Marijuana Poss. Under 5 gms" and to the 1981 "charge" of "Carrying Concealed Weapon-Firearm." The 1981 "charges" of "Resist Arrest w/Violence" and "Battery on Police Officer", the 1984 charges of "Drugs- Possess-Marijuana" and "Prob. Viol.-Ref. Resist Arrest w/Violence," and the 1989 charges of "Robbery," "Burglary," "Battery," and "Contempt of Court-Violation Injunction" referenced in the denial letter were unaffected by the amendment and Petitioner reaffirmed its reliance on these remaining "charges."

Five witnesses testified at the formal hearing: Juan Oliva, a detective with the Palm Beach County Sheriff's Office who investigated an incident that occurred in 1989 between Petitioner and the woman to whom Petitioner was then married which resulted in Petitioner's arrest; Frank A. Kreidler, an attorney who practices in Palm Beach County; John E. Brewer, another Palm Beach County attorney; James M. Hegarty, Jr., a licensed private investigator who is both Respondent's father and his sponsor for the private investigator intern license he is seeking; and Respondent. In addition to the testimony of these witnesses, a total of seven exhibits were offered and received into evidence.

At the close of the evidentiary portion of the hearing on September 4, 1992, the Hearing Officer advised the parties on the record that post-hearing submittals had to be filed no later than 15 days following the Hearing Officer's receipt of the hearing transcript. The Hearing Officer received the hearing transcript on September 18, 1992. Petitioner timely filed a proposed recommended order on September 22, 1992. The proposed findings of fact set forth in this timely filed proposed recommended order have been carefully considered and are specifically addressed in the Appendix to this Recommended Order. The Department also filed a proposed recommended order containing proposed findings of fact. Its proposed recommended order, however, was untimely filed at 4:27 p.m. on Friday, October 9, 1992, and therefore its contents have not been taken into account in the formulation of this Recommended Order.

FINDINGS OF FACT

Based upon the record evidence, the following Findings of Fact are made:

1. Petitioner is 31 years of age and has resided in Palm Beach County his entire life.

   
   

2. He is now, and has been for the last few years, self-employed as certified process server in Palm Beach County.

   
   

3. After receiving his certification, he applied for and obtained a State of Florida license to carry a concealed firearm.

   
   

4. Petitioner has been married to his present wife for approximately a year. He and his wife have an infant daughter and are expecting another child.

   
   

5. This is Petitioner's second marriage. His first marriage ended in a bitter divorce.

6. Petitioner has had several brushes with the law in the past, all of which occurred prior to the termination of his first marriage.

   
   

7. In 1980, Petitioner was arrested for, and subsequently charged in Palm Beach County Circuit Court Case No. 80-5141CF with, carrying a concealed firearm, resisting arrest with violence and battery on a police officer.

   
   

8. Pursuant to the terms of a plea bargain agreement, Petitioner pled guilty to the charge of resisting arrest with violence and the remaining charges against him were dropped. Adjudication of guilt on the resisting arrest charge was withheld and Petitioner was placed on three years probation.

   
   

9. In 1984, while still on probation, Petitioner was arrested for, and charged in Palm Beach County Circuit Court Case No. 84-4810MM with, possession of under 20 grams of marijuana, a misdemeanor. He was adjudicated guilty of this offense after entering a guilty plea to the charge and sentenced to time served.

   
   

10. Petitioner's commission of this misdemeanor marijuana possession offense also resulted in a finding that he had violated the conditions of his probation in Case No. 80-5141CF. Based upon this finding, Petitioner's probation was extended an additional two years.

    
    

11. In accordance with the recommendation of his probation officer, Petitioner was discharged from his probation on January 9, 1986, more than five months prior to the date it was due to expire.

    
    

12. In 1989, Petitioner was separated, but not yet divorced, from his first wife, Theresa.

    
    

13. Theresa was living in the home she and Petitioner had shared prior to their separation.

    
    

14. Petitioner was living in a trailer on his parent's property.

    
    

15. Theresa had changed the locks on the doors in an effort to prevent Petitioner from entering the marital home.

    
    

16. She had also obtained a court order enjoining Petitioner from harassing her.

    
    

17. In late June or early July of 1989, Petitioner and Theresa reconciled.

    
    

18. Theresa gave Petitioner a key to the marital home and invited him to move back in and live with her again. Petitioner accepted the invitation.

    
    

19. The couple lived together peaceably and without incident for approximately a week.

    
    

20. On the morning of July 8, 1992, however, Petitioner and Theresa had an altercation that abruptly put an end to their reconciliation.

    
    

21. The altercation began when, using the key Theresa had given him the week before, Petitioner opened the front door to their home and went inside.

22. Petitioner was tired inasmuch as he had spent a sleepless night in the hospital room of his ill grandmother. He intended to go directly to his bedroom to try to get some sleep.

    
    

23. Theresa was home, but she was not alone. She was with another man.

    
    

24. As Petitioner walked through the doorway and into the home, Theresa confronted him. She had a firearm in her hand. The gun was pointed in Petitioner's direction and was very close to his face.

    
    

25. Petitioner pushed the firearm aside and headed upstairs to his bedroom. Theresa followed close behind Petitioner, threatening to shoot him.

    
    

26. In the bedroom was a jewelry box that contained a wedding ring that Petitioner had given Theresa to wear. 1/ Petitioner took the box. He then exited the bedroom, walked downstairs and went out the front door with the jewelry box still in his possession. Theresa unsuccessfully attempted to prevent Petitioner from getting into his car by pulling his hair and trying to choke him.

    
    

27. As Petitioner drove off, Theresa shot at his car.

    
    

28. Based upon erroneous information provided by Theresa about this incident, Petitioner was arrested for strong armed robbery, breaking and entering by forced entry, battery on a spouse and violating the terms of the injunction that Theresa had obtained against him. 2/ No formal charges, however, were filed against Petitioner as a result of the incident.

    
    

29. The aforementioned injunction was subsequently vacated retroactive to the day before the incident.

    
    

30. It appears that, although he may have run afoul of the law when he was younger, Petitioner has since matured and transformed himself into a responsible, honest and law-abiding citizen.

    
    

    CONCLUSIONS OF LAW

    
    

31. Petitioner is seeking a Class "CC" (private investigator intern) license.

    
    

32. An applicant for such a license must, among other things, "[b]e of good moral character." Section 493.6106(1)(b), Fla. Stat.

    
    

33. "Good moral character," as that term is used in Chapter 493, Part I, Florida Statutes, "means a personal history of honesty, fairness, and respect for the rights and property of others and for the laws of this state and nation." Section 493.6101(7), Fla. Stat.

    
    

34. "The [D]epartment may deny an application for licensure citing lack of good moral character only if the finding of the [D]epartment of lack of good moral character is supported by clear and convincing evidence." Section 493.6118(3), Fla. Stat. "The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

35. In those cases where the Department is relying upon lack of good moral character as a ground for licensure denial, it must "furnish the applicant a statement containing the findings of the [D]epartment, a complete record of the evidence upon which the determination was based, and a notice of the rights of the applicant to an administrative hearing and subsequent appeal." Section 493.6118(3), Fla. Stat.

    
    

36. Lack of good moral character is among the reasons given by the Department for its proposed denial of Petitioner's licensure application. The record evidence, however, does not clearly and convincingly support such a finding. While Petitioner has engaged in criminal conduct in the past, most recently in 1984, taking into account the length of time that has passed since Petitioner engaged in such conduct and the successful efforts he has made to rehabilitate himself in that time, it cannot be said with firm belief and conviction and without hesitancy that, because of these past transgressions, Petitioner is not now of "good moral character," within the meaning of Section 493.6118(3), Florida Statutes. Accordingly, the Department may not deny his application for licensure based upon lack of "good moral character."

    
    

37. In its May 4, 1992, letter to Petitioner advising him of its proposed denial of his application for licensure, the Department, in support of its proposed action, also cited Section 493.6118(1)(j), Florida Statutes.

    
    

38. Section 493.6118(1)(j), Florida Statutes, authorizes, but does not require, the Department to deny an application for licensure for the following:

Commission of an act of violence or the use of force on any person except in the lawful protection of one's self or another from physical harm.

Petitioner's resisting arrest with violence, for which he was placed on probation in Palm Beach County Circuit Court Case No. 80-5141CF, is the act that, the Department alleges, warrants the denial of Petitioner's application for licensure under this statutory provision. It is beyond dispute that Petitioner resisted arrest with violence as alleged by the Department and that such conduct is the type of activity proscribed by Section 493.6118(1)(j), Florida Statutes. However, given that Petitioner engaged in such conduct more than a decade ago when he was a teenager and far less mature and responsible than he is today and that the record does not reveal that he has engaged in any similar type of activity since, his commission of this single act of unjustified force and violence should not serve to deprive him of the private investigator intern license for which he has applied.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Department enter a final order finding that Petitioner should not be denied licensure as a private investigator intern on the grounds cited in the Department's May 4, 1992, denial letter, as amended at hearing.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of October, 1992.

STUART M. LERNER

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 12th day of October, 1992.

ENDNOTES

1/ The evidence does not establish that Theresa had an ownership interest in the ring superior to that claimed by Petitioner.

2/ Petitioner did not commit any of the crimes for which he was arrested.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-3329S

The following are the Hearing Officer's specific rulings on the findings of facts proposed by Petitioner:

1. Rejected because it is more in the nature of argument regarding the proof submitted by the parties at hearing than a finding of fact.

   
   

2. First sentence: To the extent that this proposed finding states that the offense to which Petitioner pled guilty in Palm Beach Circuit Court Case No. 80-5141CF was resisting arrest without (not with) violence, it has been rejected because it is contrary to the greater weight of the evidence. Otherwise, it has been rejected because it is more in the nature of argument concerning the proof submitted by the Department at hearing than a finding of fact; Second sentence: Rejected because it is contrary to the greater weight of the evidence;

Remaining sentences: Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

COPIES FURNISHED:

Raymond M. Masciarella, II, Esquire 840 U.S. Highway 1, Suite 340

North Palm Beach, Florida 33408

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

The Capitol, M.S. #4 Tallahassee, Florida 32399-0250

Honorable Jim Smith Secretary of State The Capitol

Tallahassee, Florida 32399-0250

Phyllis Slater 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 OF TIME 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: 92-003329

Orders for Case No: 92-003329