STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DENNISE WYLIE, )

)

Petitioner, )

)

vs. ) CASE NO. 96-0204

) DEPARTMENT OF AGRICULTURE ) AND CONSUMER SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Administrative Law Judge, Joyous D. Parrish, held a telephone conference formal hearing in the above-styled case on July 8, 1996, from Tallahassee, Florida.

APPEARANCES

For Petitioner: Allen S. Kaufman, Esquire

2900 North Dixie Highway, Suite 201 Oakland Park, Florida 33334

For Respondent: Linton Eason, Esquire

Department of Agriculture and Consumer Services

Room 515, Mayo Building Tallahassee, Florida 32399-0800

STATEMENT OF THE ISSUE

Whether Petitioner is entitled to approval of her application for licensure as a telephone salesperson.

PRELIMINARY STATEMENT

This case began on October 25, 1995, when the Department of Agriculture and Consumer Services (Department) issued a letter to Petitioner, Dennise Wylie, which advised that her application for telephone salesperson license had been denied. The basis for the denial was Petitioner's failure to disclose information on the application. Through her attorney Petitioner requested a hearing, and the matter was forwarded to the Division of Administrative Hearings for formal proceedings on January 8, 1996.

At the hearing, Petitioner testified on her own behalf and offered no exhibits. The Department presented the testimony of Thomas Kenny, a consumer services consultant employed by the Department's Division of Consumer Services. The Department offered no exhibits.

The transcript of the proceeding was filed on July 26, 1996. Specific rulings on the parties' proposed findings of fact are included in the appendix at the conclusion of this order.

FINDINGS OF FACT

1. Petitioner is an applicant for licensure as a telephone salesperson.

   
   

2. On October 25, 1995, the Division of Consumer Services, by its employee Thomas Kenny, issued a letter denying Petitioner's application for licensure.

   
   

3. According to such letter, the basis for the denial was Petitioner's failure to disclose information on the application related to an arrest for larceny including an outstanding warrant for her arrest based upon a failure to appear for trial. In consideration of those charges and Petitioner's failure to disclose the information in her application, the license was denied.

   
   

4. Petitioner timely requested an administrative hearing.

   
   

5. Petitioner admitted that she had been arrested and charged with shoplifting. [Transcript, page 16]

   
   

6. Petitioner did not disclose the shoplifting arrest on her application for licensure. [Transcript, page 22]

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

8. Section 501.602, Florida Statutes, provides:

   
   

   The provisions of this part shall be construed liberally to promote the general welfare of the public and the integrity of the telemarketing industry.

   
   

9. Section 501.607, Florida Statutes, provides, in part:

   
   

   1. An applicant for a license as a sales- person must submit to the department, in such form as it prescribes, a written application for a license. The application must set forth the following information:

      * * *

      1. Whether the applicant has previously been arrested for, convicted of, or is under indictment or information for, a felony and, if so, the nature of the felony. Conviction includes a finding of guilt where adjudication has been withheld.

      2. Whether the applicant has previously been convicted of, or is under indictment or information for, racketeering or any

         offense involving fraud, theft, embezzlement, fraudulent conversion, or misappropriation

         of property. Conviction includes a finding

         of guilt where adjudication has been withheld.

         
         

10. Section 501.612, Florida Statutes, provides, in part:

    
    

    1. The department may deny licensure to any applicant who:

       (a) Has been convicted of racketeering or any offense involving fraud, theft, embezzlement, fraudulent conversion, or misappropriation of property, or any other

       crime involving moral turpitude. Conviction includes a finding of guilt where adjudication has been withheld;

       * * *

       (g) Falsifies or willfully omits any material information asked for in the application;

       
       

11. In this case, the Department has established that the Petitioner falsified the application for licensure by omitting information related to her shoplifting arrest. Petitioner offered no credible explanation for the charge or other information to support the applicant's request for licensure. In response to all other questions regarding Petitioner's arrest history, Petitioner was only able to respond "I don't recall" or "I don't remember." Such responses are inadequate to support Petitioner's entitlement to licensure.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That the Department of Agriculture and Consumer Services enter a final order denying Petitioner's request for licensure.

DONE AND ENTERED this 1st day of October, 1996, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0204

Rulings on the proposed findings of fact submitted by Petitioner:

1. Paragraphs 9, 10, 12, 13 are accepted.

2. Paragraphs 14 through 18 are rejected as irrelevant.

Rulings on the proposed findings of fact submitted by the Respondent:

1. Paragraphs 1 through 3 are accepted.

COPIES FURNISHED:

Richard Tritschler General Counsel Department of Agriculture

and Consumer Services Room 515, Mayo Building

Tallahassee, Florida 32399-0810

Hon. Bob Crawford Commissioner of Agriculture The Capitol, PL-10

Tallahassee, Florida 32399-0810

Linton B. Eason, Esquire Department of Agriculture

and Consumer Services Room 515, Mayo Building

Tallahassee, Florida 32399-0800

Allen S. Kaufman, Esquire 2900 North Dixie Highway Suite 201

Oakland Park, Florida 33334-2666

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-000204

Orders for Case No: 96-000204