STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
NELLA GARAFOLO, d/b/a )
SEMINOLE ANTIQUES AND PAWN, )
)
Petitioner, )
)
vs. ) Case No. 97-0865
) DEPARTMENT OF AGRICULTURE AND ) CONSUMER SERVICES, )
)
Respondent. )
)
RECOMMENDED ORDER
An administrative hearing was conducted in this proceeding on April 28, 1997, in Clearwater, Florida, before Daniel Manry, Administrative Law Judge, Division of Administrative Hearings.
APPEARANCES
For Petitioner: Louis Kwall, Esquire
Kwall and Showers, P.A.
133 North Fort Harrison Avenue Clearwater, Florida 34615
For Respondent: Lawrence J. Davis, Esquire
Department of Agriculture and Consumer Services
Mayo Building, Room 515 Tallahassee, Florida 32399
STATEMENT OF THE ISSUE
The issue in this case is whether Petitioner lacks good moral character in violation of Section 539.001(4)(a)1., Florida Statutes (Supp. 1996). 1/
PRELIMINARY STATEMENT
By letter dated December 4, 1996, Respondent denied Petitioner's application for a pawnbroker license. Petitioner timely requested an administrative hearing.
At the hearing, the parties submitted four joint exhibits for admission in evidence. Petitioner called no witnesses and submitted two exhibits for admission in evidence. Respondent presented the testimony of two witnesses and submitted seven exhibits for admission in evidence.
The identity of the witnesses and exhibits, and the rulings regarding each, are set forth in the transcript of the hearing filed with the undersigned on May 14, 1997. Respondent timely filed its proposed recommended order on May 22, 1997. Pursuant to an unopposed extension of time granted to Petitioner, Petitioner timely filed her PRO on June 10, 1997.
FINDINGS OF FACT
Petitioner and her husband own and operate Seminole Antiques and Pawn ("Seminole Antiques") at 6115 Seminole Boulevard in Seminole, Florida. The business of Seminole Antiques includes pawnbroking.
Petitioner first engaged in the business of pawnbroking in 1990. On November 28, 1995, officers from the Pinellas County Sheriff's Office (the "Sheriff's Office") arrested Petitioner on charges of dealing in stolen property and failing to maintain adequate records. On March 4, 1995, Petitioner entered a plea of nolo contendere to both charges.
The court accepted Petitioner's plea, withheld
adjudication of guilt, assessed costs of $144, and placed Petitioner on probation for two years. On March 14, 1997, the court entered an order terminating Petitioner's probation.
Registration And License
Prior to October 1, 1996, pawnbrokers had been required by former Chapter 538, Part I, Florida Statutes (1995). 2/ to register with the Department of Revenue ("DOR") as secondhand dealers. From 1990 through 1996, Petitioner was continuously registered with DOR as a secondhand dealer.
In relevant part, former Section 538.09(4) provided:
. . . registration may be denied . . . or any registration granted may be revoked, restricted, or suspended . . . if the applicant or registrant:
(f) Has, within the preceding 5-year period, been convicted of, or has entered a plea of guilty or nolo contendere to, a crime . . . which relates to registration as a secondhand dealer or which involves . . . dealing in stolen property. . . .
The registration provisions in former Section 538.09 did not include a requirement that a pawnbroker be of good moral character.
Effective October 1, 1996, Section 539.001 transferred responsibility for licensing and regulating pawnbrokers from DOR to Respondent and prescribed license eligibility requirements. 3/
The license eligibility requirements in Section 539.001 include a requirement that an applicant be of good moral character.
On October 1, 1996, the eligibility requirements in Section 539.001 did not prohibit a plea of nolo contendere to a
criminal charge of dealing in stolen property within a five year period. However, Sections 539.001(4)(a)3. and 4. did prohibit a conviction in the last 10 years of any felony or any other crime that directly relates to the duties and responsibilities of a pawnbroker ( a "related crime").
In 1997, the legislature amended Sections 539.001(4)(a)
and 4. to prohibit a plea of nolo contendere to a felony or related crime. The amendments took effect on June 3, 1997, approximately 36 days after the hearing in this case.
As amended, Section 539.001 provides inter alia:
(4) ELIGIBILITY FOR LICENSE--
(a) To be eligible for a pawnbroker's license, an applicant must:
1. Be of good moral character;
Not have been convicted of, entered a plea of . . . nolo contendere to, or had an adjudication withheld for a felony within the last 10 years . . . .
Not have been convicted of, entered a plea of nolo contendere to, or had
adjudication withheld for a crime that involves dealing in stolen property
. . . within the last 10 years.
* * *
(6) SUSPENSION, REVOCATION, AND SURRENDER OF LICENSE . . .
(a) The agency may, after notice and a hearing, suspend or revoke any license upon a finding that:
The licensee . . . has violated this section . . . .
A condition exists that, had it existed when the original license was issued, would
have justified the agency's refusal to issue a license. . . . (emphasis supplied)
The underlined provisions became effective June 3, 1997.
Pawnbrokers already in business had six months from the date Section 539.001 became effective to comply with the "registration . . . provisions" of Section 539.001. 4/ Section 539.001(21) provides, in relevant part:
(21) TRANSITION PERIOD FOR LICENSING--Each pawnbroker operating a pawnshop in business of the effective date of this section shall have 6 months from the effective date of this section to comply with the registration . . . provisions before the agency may initiate any administrative . . . action. (emphasis supplied)
Section 539.001 became effective on October 1, 1996. Petitioner, had until April 1, 1997, to comply with the registration provisions in Section 539.001. Prior to April 1, 1997, Respondent was statutorily prohibited from initiating any administrative action against Petitioner.
On October 8, 1996, Petitioner applied for a pawnbroker license. On December 4, 1996, Respondent initiated administrative action by denying the application.
Notice
In the letter of denial dated December 4, 1996, Respondent stated several grounds for denying Petitioner's application. In relevant part, the letter stated:
Section 539.001(4) . . . provides that to be eligible for a pawnbroker's license, an applicant must be of good moral character and must not have been convicted of a felony within the last 10 years . . . that directly relates to the duties and responsibilities of a pawnbroker. Our
background investigation has revealed that you were found guilty of or pleaded nolo contendere to dealing in stolen property and failure to maintain records, case number CRC9519648CFANOB in 1996 (sic). Based upon these findings, your application for a pawnbroker license is
hereby denied for failure to meet the eligibility requirements of s. 539.001(4)
. . . . (emphasis supplied)
Consistent with Section 539.001(4), Respondent's letter of denial listed as separate and distinct requirements the requirement for good moral character and the requirement of no felony conviction within the last 10 years. However, Respondent's letter of denial deviated from the statute that was in effect at the time, by expanding the definition of a conviction to include a plea of nolo contendere.
Petitioner timely requested an informal hearing with Respondent. Respondent conducted the informal hearing by telephone conference.
During the telephone conference, Petitioner testified that she was not guilty of dealing in stolen property. She testified that law enforcement officers, posing as consumers, had tried, unsuccessfully, to get her husband to purchase a watch. The transaction was not completed, and Petitioner was not present at the time. Nevertheless, Petitioner was charged with dealing in stolen property and failure to maintain records. Petitioner further testified that she chose to enter a plea of nolo contendere in order to quickly resolve the issue.
Respondent disregarded Petitioner's testimony. On January 13, 1997, Respondent issued a letter overruling
Petitioner's objections and denying Petitioner's application. Respondent based its administrative action on the ground that Petitioner was not of good moral character.
Respondent did not make an independent determination that Petitioner was guilty of dealing in stolen property. Respondent determined that Petitioner lacked good moral character solely on the basis of the criminal charge and plea of nolo contendere. In relevant part, Respondent's letter of January 13, 1997, stated:
The facts set forth in the . . . denial letter dated December 4, 1996, are undisputed. As
part of the . . . review of your application, a criminal background check . . . by the Florida Department of Law Enforcement . . . revealed that you pled nolo contendere to dealing in stolen property and failure to maintain records.
Adjudication was withheld.
During the proceeding, you stated that law enforcement officers, posing as consumers, had tried, unsuccessfully, to get your husband to purchase a watch. Although according to your testimony the transaction was not completed and your were not present at the time, you were charged. Subsequently, you chose to enter a plea in order to quickly resolve the issue.
. . . Pursuant to Section 539.001(4) to
be eligible for a pawnbroker license the applicant must be of good moral character. Based upon your criminal arrest and plea discussed herein, you fail to meet the eligibility requirements set forth in the Florida Pawnbroking Act. Therefore, your objections to the denial of your application for a license are hereby overruled. (emphasis supplied)
Petitioner retained counsel. On February 5, 1997, Petitioner's counsel sent a letter to Respondent requesting a
formal hearing. In relevant part, the letter stated:
. . . my client . . . received a letter indicating that she had been turned down for her license because of a criminal matter where she had been charged with dealing in stolen property and received a withhold of adjudication and probation. It is my understanding that her probation is now complete. . . . Mrs. Garafolo received a letter from Geoffrey G. Luckemann informing her that she was not eligible for a pawn broker's license because she was not of good moral character. . . . I . . . believe that the ends of justice would be honestly met by allowing . . . a Formal Hearing. . . .
(emphasis supplied)
On February 24, 1997, Respondent referred the matter to the Division of Administrative Hearings for assignment of an Administrative Law Judge to conduct the administrative hearing. From February 24 through April 28, 1997, Petitioner's counsel did not file a request for discovery. On April 11, 1997, Respondent voluntarily served Petitioner's counsel with a copy of its administrative file. The administrative file contained numerous exhibits, including the exhibits Respondent submitted for admission in evidence at the administrative hearing.
On April 15, 1997, the parties entered into a Prehearing Stipulation that included a list of Respondent's witnesses. The only witnesses listed by Respondent were the two undercover investigators Respondent called at the hearing.
The Prehearing Stipulation stated that the issue for determination at the administrative hearing was whether Petitioner lacked good moral character. The parties did not stipulate that Respondent was limited to evidence of Petitioner's
". . . criminal arrest and plea . . .".
In relevant part, the Prehearing Stipulation stated:
. . . the application for a pawnbroker license was denied by respondent on the basis petitioner did not have good moral character.
* * *
The issue of fact to be determined is the good moral character or lack thereof by Nella Garafolo.
At the administrative hearing, Respondent stated, for the first time, that it intended to prove Petitioner's lack of good moral character by evidence other than evidence of her
". . . criminal arrest and plea . . .". Respondent sought to prove that Petitioner actually dealt in stolen property and failed to keep adequate records.
Petitioner's counsel objected to the admissibility of any evidence other than the ". . . criminal arrest and plea
. . ." and moved to suppress any other evidence. Petitioner's counsel stated numerous grounds for the objection and motion, including due process requirements for adequate notice.
The objections by Petitioner's counsel were overruled, and the motion was denied. Petitioner's counsel had adequate notice of the nature and scope of evidence Respondent intended to present at the administrative hearing.
Even if Respondent had been required to file an administrative complaint in this case, due process would not require the complaint to satisfy the technical niceties of a legal pleading. 5/ Due process requires a specific accusation
in the charging document or a procedure for disclosure, but not both. 6/
Respondent's letters of denial specifically charged that Petitioner lacked good moral character. Petitioner's counsel had adequate time from January 13, 1997, through April 28, 1997, to seek disclosure of the nature and scope of the evidence Respondent intended to adduce at the hearing. Petitioner's counsel declined to avail himself of the benefit of any procedure for disclosure.
Petitioner's counsel had notice that Respondent intended to call the undercover investigating officers as witnesses in the administrative hearing. Neither Petitioner's arrest nor her plea were disputed issues of fact.
The testimony of the undercover investigators was unnecessary to prove the criminal arrest and plea. It was reasonable to conclude that the undercover investigators were going to testify to facts other than Petitioner's ". . . criminal arrest and plea . . .".
The notice to Petitioner's counsel was timely. On April 11, 1997, Respondent served Petitioner's counsel with a Notice of Filing Discovery. The notice listed the two undercover investigators as Respondent's only witnesses.
On April 15, 1997, Petitioner's counsel signed the Prehearing Stipulation with a list of Respondent's witnesses attached as Exhibit 1. The Prehearing Stipulation identified the undercover investigators as Respondent's only witnesses.
Petitioner's counsel had approximately 17 days from April 11, 1997, until the hearing on April 28, 1997, to inquire into the scope of the witnesses' testimony and to either prepare his case accordingly or to request a continuance to allow him time to do so. Petitioner's counsel chose not to avail himself of that opportunity prior to the hearing.
There was no material error in procedure that impaired the correctness of Respondent's action. Respondent followed prescribed procedure. 7/
Good Moral Character
In support of the allegation that Petitioner lacked good moral character, Respondent submitted evidence of an investigation and arrest that took place in November, 1995. On November 7, 1995, two undercover investigators for the Sheriff's Office began an investigation of Seminole Antiques. They were supported by four more officers at remote locations who monitored the conversations of the two undercover investigators.
One or both of the undercover investigators visited Seminole Antiques on November 7, 14, 17, 20, 22, and 28. The investigation concluded on November 28, 1995, when Sheriff's deputies arrested Petitioner and her husband.
The evidence submitted by Respondent consisted of the testimony of two undercover investigators, their arrest reports, tapes of visits they made to Seminole Antiques on November 14 and 17, 1995, transcripts of those two tapes, and transcripts of the tapes of the other visits. The evidence also included other
miscellaneous documents.
The tapes and transcripts purport to evidence conversations between the investigators, Petitioner's husband, and Petitioner. The two tapes submitted by Respondent are copies of the original tapes made by Sheriff's office personnel who monitored the conversations of the undercover investigators from outside Seminole Antiques.
The original tapes were destroyed by the Sheriff's Office in accordance with department policy for cases in which a nolo contendere plea is entered. One of the undercover investigators made copies of the original tapes for November 14 and 17, 1997. Both copies are in evidence in this proceeding, without objection.
Transcripts exist for the original tapes for each of the six visits that the undercover investigators made to Seminole Antiques. None of the transcripts are verbatim transcriptions.
Each transcript is a summary prepared by one or the other of the two undercover investigators. Each summary contains only that portion of the recorded conversations which, in the opinion of the author of the transcript, are inculpatory. 8/
Respondent did not provide Petitioner with the notice of intent to use summaries that is required in Section 90.956. Similarly, Respondent did not make available to Petitioner the data from which the summaries were prepared because the data had been destroyed by the Sheriff's Office.
The undercover investigators did not conduct business transactions every time they visited Seminole Antiques. On each occasion that the undercover investigators did conduct business, they used stolen property that the Sheriff's Office had recovered, inventoried in its log books, and stored.
For the initial transaction conducted on November 7, 1995, the undercover investigators used two rings. One ring was a 14 karat gold ring with an onyx stone. The investigators placed a wholesale value of approximately $30 on the ring.
The other ring was a gold ring with four diamond chips. The investigators placed a wholesale value of $35 on the second ring.
On November 7, 1995, the undercover investigators pawned the two rings to Petitioner for $30. 9/ Petitioner completed the required paperwork evidencing the transaction.
One of the undercover investigators returned to Seminole Antiques on November 14, 1995. He carried a bag containing two gold rings, two gold bracelets, and a gold necklace.
One ring was a 10 karat gold ring with one sapphire stone flanked by two small diamond chips. The undercover investigator estimated its retail value at $40.
The other ring was a 14 karat gold ring. The undercover investigator estimated its retail value at $39.
One bracelet was a seven inch, 14 karat, bracelet. The undercover investigator estimated its retail value at $27.
The other bracelet was also a seven inch, 14 karat, bracelet. The investigator estimated its retail value at $54.
The necklace was an 18 inch, 14 karat, necklace. The undercover investigator estimated its retail value at $108.
When the undercover investigator presented the bag of items to Petitioner, she and her husband were standing behind the counter at Seminole Antiques. Petitioner opened the bag and appraised the items inside while the undercover investigator conducted simultaneous conversations with Petitioner and her husband.
Petitioner did not agree with the value placed on the goods by the undercover investigator. Petitioner gave the undercover investigator $30 for all of the items. She completed the required forms. The investigator terminated the transaction and returned to the Sheriff's Office.
The same undercover investigator returned to Seminole Antiques on November 17, 1995. He did not conduct a transaction. He described to Petitioner and her husband a fictitious transaction on the previous day in which the investigator said he sold a gold Rolex watch to a competing pawn shop for $600.
Petitioner was upset and told the investigator she would have given him more money. The investigator stated that Seminole Antiques was closed and that he needed the money.
On November 20, 1995, both investigators returned to Seminole Antiques with unopened video cassettes. The investigators placed an aggregate value on the cassettes of $340.
The investigators conducted a transaction with Petitioner's husband and agreed to take $60 for the cassettes. Petitioner paid the investigators $60 and completed the required forms. The investigators returned to the Sheriff's Office.
On November 22, 1995, the two undercover investigators returned to Seminole Antiques with a video cassette recorder and remote control. They valued the two items at $149.
The investigators conducted a transaction with Petitioner's husband and agreed to $55 for both items. Petitioner paid the investigators $55 and added the VCR to the pawn ticket for the previous transaction.
On November 28, 1995, the two undercover investigators returned to Seminole Antiques with two Rolex watches. One watch was a stainless and gold watch. The other was an 18 karat gold watch with a 14 karat gold band. The undercover investigators valued each watch, respectively, at $2,995 and $6,995.
The investigators first offered to sell the watches to Petitioner for $300 each. The investigators conducted the balance of the transaction with Petitioner's husband. The investigators agreed to accept $600 for the watches.
Law enforcement officers from the Sheriff's Office arrested Petitioner and her husband. They took Petitioner and her husband to the Sheriff's Office and questioned them.
Petitioner stated that she did not know any of the items had been stolen. She said that she was going to do the paper work on the watches and then resell them in the store.
Petitioner did not have actual knowledge that the items she purchased were stolen. The investigators never represented to Petitioner that the items were stolen. As one of the investigators explained during his testimony:
. . . at some time . . . it has to be represented as stolen. And that's hard to do sometimes because a lot of stores and pawn shops are fully aware of the law, and once you say something is stolen, they'll throw you right on out.
* * * I did not say stolen.
Transcript ("TR") at 40, 68.
Respondent failed to show that Petitioner should have known that the items were stolen. Much of the evidence submitted by Respondent consisted of opinion testimony by the undercover investigators and hearsay statements by Petitioner's husband.
The investigators opined that Petitioner paid them amounts far below the fair market value of the property. When asked how he determined the fair market value for each item, one investigator testified:
. . . we've been taught by jewelers how to appraise and pawn brokers, and we give, at the Sheriff's Office, an incredibly low retail value. Wholesale and retail very low so that this way there's never no error.
TR at 41.
The investigators are not qualified experts in appraising property as diverse as jewelry, video equipment, VCRs, and watches.
Respondent offered evidence that the investigators were
dressed to portray someone who, in the opinion of the investigators, Petitioner should have known was of bad character. When questioned on this issue, one investigator testified:
I had a goatee. I would wear a hat that I've got that's a very scrubby hat. I've got several of them that are scrubby. Holes in my pants. . . . I cut my grass. I don't shower. I get real sweaty. You can see the sweat stain on my shirt, and I walk in looking crummy. Pretty crummy. . . [t]o portray someone of bad character.
TR at 42.
Respondent offered evidence that the investigators conducted themselves in a manner which, in the opinion of the investigators, Petitioner should have known was typical of bad guys. When questioned on this issue, one investigator testified:
I pulled the second [ring out of my pocket], which is typical of bad guys because they want to see how much money they can get for an item.
TR at 47.
The transactions conducted with Petitioner on November
7 and 14, 1997, do not show that Petitioner should have known she was dealing in stolen property. The investigators did not conduct a transaction on November 17.
The transactions of November 20, 22, and 28, 1997, were conducted primarily with Petitioner's husband. Respondent relied on hearsay statements allegedly made by Petitioner's husband in the same room with Petitioner. Those statements are not competent and substantial evidence that Petitioner should have known she was dealing in stolen property.
Petitioner maintained adequate records. The investigator who was at Seminole Antiques on each occasion originally testified that Petitioner did not complete the required records. He later testified that Petitioner completed the required paperwork after every transaction but did not give the investigator a copy of the paperwork.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and parties. The parties were duly noticed for the administrative hearing.
Burden of Proof
Petitioner asserts that Respondent refused to renew an existing license. Respondent asserts that it denied an initial application for a new license.
If Respondent refused to renew Petitioner's privilege to conduct business as a pawnbroker, the administrative action would be penal in nature. Dubin vs. Department of Business Regulation, 262 So. 2d 273, 275 (Fla. 1st DCA 1972); Wilson vs. Pest Control Commission of Florida, 199 So. 2d 777, 781 (Fla. 4th DCA 1967). It would result in the deprivation of Petitioner's livelihood or would degrade Petitioner's livelihood. State ex rel Vining vs. Florida Real Estate Commission, 281 So. 2d 487,
491 (Fla. 1973). Respondent would have the burden of proving by clear and convincing evidence that Petitioner is not of good moral character in violation of Section 539.001(4)(a)1. Department of Banking and Finance, Division of Securities and
Investor Protection vs. Osborne Stern and Company, 670 So. 2d 932, 935 (Fla. 1996); Ferris vs. Turlington, 510 So. 2d 292, 294-
295 (Fla. 1987).
If Respondent denied an initial application for a pawnbroker license, Respondent's action would not be penal in nature. Osborne, 670 So. 2d at 934. Petitioner would have the initial burden of showing by a preponderance of the evidence that she is fit for a pawnbroker license. Osborne, 670 So. 2d at 934. Respondent would then have the burden of going forward with a preponderance of the evidence that Petitioner was not of good moral character. Id. While the burden may shift between the parties, Petitioner would have the ultimate burden in an application denial proceeding to prove by a preponderance of the evidence that she is entitled to a license. Id.
At the hearing, the undersigned reserved ruling on the issue of whether Respondent denied an application for a license or refused to renew an existing license to allow time for each attorney to brief the issue in his respective PRO. Neither attorney availed himself of the opportunity to do so.
A license, such as the pawnbroking license sought by Petitioner, is a privilege, granted by the appropriate governmental authority, to engage in business. Wilson, 199 So. 2d at 779. A privilege to engage in business is a license irrespective of statutory labels that characterize the privilege as a "license" or a "registration" and irrespective of the government agency that is statutorily authorized, from time to
time, to grant the privilege.
In Osborne, an individual applied for a registration required to sell securities and the state agency denied the application. The court found that the state agency denied an application for a license. Osborne, 670 So. 2d at 934.
The issue of whether Respondent denied an application for a license or refused to renew a license is not resolved by statutory labels that characterize the privilege of conducting business as either a registration or a license. The fulcrum of determination is whether the privilege to engage in the business of pawnbroking had been granted by the appropriate governmental authority and was in effect at the time that Petitioner applied to Respondent.
If the privilege did not exist, then Respondent denied an application for a license because Respondent did not deprive the applicant of an existing livelihood or degrade the applicant's livelihood. If the privilege did exist at the time of the application, then administrative action that takes the form of an application denial is, in substance, a refusal to renew an existing license. It deprives the applicant of an existing livelihood or degrades her livelihood. Vining, 281 So. 2d at 491; Wilson, 199 So. 2d at 781.
In Osborne, the applicants were not licensed prior to their application. No privilege to conduct the business of selling securities had been granted by the appropriate governmental authority prior to the application. The court
found:
. . . the respondents had violated several provisions of chapter 517 . . . without being registered. (emphasis supplied)
Osborne, 670 So. 2d at 934-935.
Unlike the unlicensed applicants in Osborne, the appropriate governmental authority had granted Petitioner the privilege of engaging in the business of pawnbroking prior to Petitioner's application to Respondent. That privilege was in effect at the time Petitioner applied to Respondent.
The court resolved a similar issue in Rod's Recovery Agency vs. Department of State, Division of Licensing, 606 So. 2d
458 (Fla. 1st DCA 1992). In Rod's, statutory changes to Chapter
493 required certain recovery agencies to replace their Class E licenses with Class R licenses. A statutory savings clause provided:
All licenses valid on October 1, 1990, shall remain in full force and effect until expiration or revocation by the department.
Rod's, 606 So. 2d at 460.
Although not identical, the language of the savings clause in Rod's is sufficiently similar to the savings clause in Section 539.001(21) for the holding in Rod's to serve as analogous precedent in this case. In relevant part, Section 539.001(21) provides:
(21) TRANSITION PERIOD FOR LICENSING -- Each pawnbroker . . . in business on . . . [October 1, 1996] shall have 6 months . . . to comply with the registration and security provisions . . . .
Petitioner's authority to operate under its registration with DOR continued during the period of the savings clause in Section 539.001(21). As the court explained in Rod's:
The contrary interpretation . . . would . . . improperly divest . . . appellant of valuable rights prior to the expiration of a properly obtained license. We decline to construe the statute in such a manner.
Rod's, 606 So. 2d at 460.
Respondent refused to renew Petitioner's privilege to engage in the business of pawnbroking. The administrative action initiated by Respondent was penal in nature. Dubin, 262 So. 2d at 275; Wilson, 199 So. 2d at 781. Respondent sought to deprive Petitioner of her livelihood or degrade her livelihood. Vining,
281 So. 2d at 491. Respondent has the burden of proving by clear and convincing evidence that Petitioner is not of good moral character in violation of Section 539.001(4)(a)1 and the reasonableness of any penalty to be imposed. Osborne, 670 So. 2d at 935; Ferris, 510 So. 2d at 294-295.
The Statutory Prohibition
As a threshold matter, Section 539.001(21) prohibits Respondent from initiating any administrative action against Petitioner before April 1, 1997. In relevant part, Section 539.001(21) provides:
(21) TRANSITION PERIOD FOR LICENSING -- Each pawnbroker . . . in business on . . . [October 1, 1996] shall have 6 months . . . before the agency may initiate any administrative . . . action.
The refusal to renew Petitioner's privilege of engaging
in the business of pawnbroking was an administrative action initiated by Respondent within six months of October 1, 1996. As the court explained in Wilson:
. . . the decision . . . not to renew petitioner's license was tantamount to imposing upon petitioner a penalty.
Wilson, 199 So. 2d at 781.
Respondent can not shift the burden and standard of proof applicable to penal proceedings by refusing to renew a license and calling the administrative action an application denial. Respondent must wait six months, file an administrative complaint, and prove by clear and convincing evidence that Petitioner is guilty of the allegations in the complaint and the reasonableness of any proposed penalty. As the court stated in Dubin:
Before the respondent . . . may refuse to renew a license, charges must be filed against the licensee setting forth with a reasonable degree of specificity the grounds upon which it bases its action . . . .
Dubin, 262 So. 2d at 275. 6. Good Moral Character
Assuming arguendo that Section 539.001(21) does not prohibit the administrative action initiated by Respondent, Respondent failed to show by clear and convincing evidence that Petitioner lacks good moral character in violation of Section 539.001(4)(a)1. As a threshold matter, the evidence shows that Petitioner did not fail to maintain adequate records.
The remaining allegation is that Petitioner dealt in
stolen property. Respondent failed to show by clear and convincing evidence that Petitioner dealt in stolen property.
The crime of dealing in stolen property is defined in Section 812.019. In relevant part, Section 812.019 provides that a person is guilty of dealing in stolen property if he or she:
. . . traffics in, or endeavors to traffic in, property that he knows or should know was stolen . . . .
Respondent cited no authority construing the essential elements of the alleged crime. Respondent cited no statute, rule, or case law that defines such terms as "traffics", "endeavors", or "should know."
Aside from the lack of some intelligible standard for applying the essential elements of a crime in Section 812.019 to the facts in an administrative proceeding, Respondent's evidence is inadequate. The evidence consists of summaries prepared by the undercover investigators, some of the tapes of the investigation, the testimony of the undercover investigators, and their arrest reports.
The summaries are not in evidence. Respondent failed to provide both the notice and the underlying data required in Section 90.956.
There is no competent and substantial evidence that Petitioner had actual knowledge that the items involved in the transactions were stolen. The undercover investigators never represented to Petitioner that the property was stolen. There is no competent and substantial evidence that Petitioner had any
independent knowledge that the property was stolen.
The two tapes made by one of the undercover investigators for November 14 and 17, 1997, do not show by clear and convincing evidence that Petitioner should have known that the property was stolen. No tapes of her conversations on four other occasions are in evidence.
Material parts of the testimony of the undercover investigators were not credible or persuasive. They were either unqualified opinions or inconsistent with other evidence such as the two tapes, the arrest reports, and facts established during cross examination.
Material parts of Respondent's other evidence consisted of hearsay statements by Petitioner's husband and uncorroborated or inconclusive admissions attributed to Petitioner during testimony. The admissions attributed to Petitioner were sometimes missing from the tapes and documents or made in a form or context that was either ambiguous or different from that described by the investigators during their
testimony. 10/
From that portion of Respondent's evidence that was not unqualified opinion, inconsistent, hearsay, uncorroborated, or inconclusive, it was less than clear and convincing that Petitioner should have known she was dealing in stolen property. Even if Petitioner should have known that she was dealing in stolen property, Respondent failed to show by clear and convincing evidence how a single incident in 1995 means that
Petitioner currently lacks good moral character in violation of Section 539.001(4)(a)1.
Respondent cited no statute or rule that defines good moral character for the purposes of Section 539.001(4)(a). Similarly, Respondent did not cite any case law that defines good moral character for such purposes.
Respondent did cite one case that defines good moral character for the purpose of licensing attorneys. In that case, the Florida Supreme Court stated inter alia:
In our view, a finding of a lack of "good moral character" should not be restricted to those acts that reflect moral turpitude. A more appropriate definition of the phrase requires an inclusion of acts and conduct which would cause a reasonable man to have substantial doubts about an individual's honesty, fairness, and respect for the rights of others and for the laws of the state and nation.
Florida Board of Bar Examiners vs. G.W.L., 364 So. 2d 454, 458 (Fla. 1978).
In G.W.L., the court recognized that a requirement for good moral character can easily be applied in an arbitrary and discriminatory manner. The court authorized reasonable restrictions to prevent the arbitrary and discriminatory application of such a standard. In G.W.L., the court limited denials of admission to the bar for lack of good moral character to conduct rationally related to the applicant's fitness to practice law. G.W.L., 364 So. 2d at 458.
At the federal level, the Supreme Court has held for
over 40 years that good moral character is a vague test that can easily be abused to deny a person the right to pursue his or her chosen profession. In 1957, the Court held that good moral character can be defined in an almost unlimited number of ways:
. . . for any definition will necessarily reflect the attitudes, experiences, and prejudices of the definer. Such a vague qualification, which is easily adapted to fit personal views and predilections, can be a dangerous instrument for arbitrary and discriminatory denial of the right to . . . [pursue one's chosen profession].
Koningsberg vs. State Bar Of California, 353 U.S. 252, 262-263, 77 S. Ct. 722, 728 (1957).
The potential for abuse inherent in the requirement for good moral character has been recognized by the highest state and federal courts. Given the vagueness of the requirement and its inherent potential for abuse, the standard should be applied precisely and carefully to facts established by clear and convincing evidence rather than in broad, glittering generalities supported by inferences drawn from inconsistent or ambiguous evidence.
The requirement for good moral character in Section 539.001(4)(a)1. and the prohibitions against a plea of nolo contendere in Sections 539.001(4)(a) 3. and 4. are separate and distinct requirements enacted by the legislature. They are not redundant requirements that can be used interchangeably by Respondent to initiate or prove up an administrative action against Petitioner.
Separate provisions within a statute must be accorded significance in order to give effect to the statute as a whole. Villery vs. Florida Parole and Probation Commission, 396 So. 2d 1107 (Fla. 1980); Topeka Inn Management vs. Pate, 414 So. 2d 1184, 1186 (Fla. 1st DCA 1982). It should never be presumed that the legislature intends an enactment to be a nullity. Sharer vs. Hotel Corporation of America, 144 So. 2d 813, 817 (Fla. 1962).
Evidence that in 1995 Petitioner violated Sections 539.001(4)(a) 3. and 4., as they were enacted in 1997, does not mean, a fortiori or ipso facto, that Petitioner currently lacks good moral character. Respondent does not satisfy its burden of proof that Petitioner lacks good moral character with shibboleths or inferences that bootstrap Respondent from Sections 539.001(4)(a)3. and 4. to Section 539.001(4)(a)1. A contrary conclusion would reduce separate statutory requirements to distinctions without a difference.
If Respondent had proved that Petitioner committed a crime in 1995, in violation of Sections 539.001(4)(a)3. and 4., it is merely one factor to be considered in the determination of whether Petitioner currently lacks good moral character in violation of Section 539.001(4)(a)1. See, e.g., Tenbroeck v. Castor, 640 So. 2d 164, 167 (Fla. 1st DCA 1994) (holding that premarital sex between a teacher and her student is merely one factor to be considered in determining whether the teacher is not of good moral character). Prior acts, standing alone:
. . . are not sufficient justification for [the] conclusion that the petitioner
currently lacks good moral character. . . .
In Re Application of VMF for Admission to the Florida Bar, 491 So. 2d 1104, 1107 (Fla. 1986).
The requirement for good moral character does not bar the licensing of:
. . . previously convicted persons if they demonstrate that they currently meet the standards of conduct and fitness.
Florida Board of Bar Examiners re D.M.J., 586 So. 2d 1049, 1050 (Fla. 1991).
If Respondent had proved that Petitioner dealt in stolen property in 1995, the issue of whether Petitioner currently meets the requirement for good moral character is determined by weighing the nature and seriousness of the offense against the evidence of rehabilitation. In 1991, the Florida Supreme Court considered the moral character of an applicant for admission to the Florida Bar who, in 1979, had been found guilty of: knowingly participating in a criminal conspiracy to import cocaine; giving false testimony; failing to disclose such information on an employment application; falsifying his application for admission to law school; and failing to display financial responsibility. The court determined that the applicant currently satisfied the requirement for good moral character by weighing:
The nature and seriousness of the offense
. . . against the evidence of rehabilitation.
D.M.J., 586 So. 2d at 1050.
The time between the last offense in D.M.J. and the court's determination may have been longer than the time between the alleged offense by Petitioner in 1995 and this Order. However, the gravity of the single offense with which Petitioner is charged in this case is less, both quantitatively and qualitatively, than the multiple offenses actually committed by the applicant in D.M.J.
When the nature and seriousness of the offense Petitioner is alleged to have committed is weighed against the evidence of rehabilitation, Petitioner currently satisfies the requirement for good moral character in Section 539.001(4)(a)1. Petitioner was not convicted of a crime. She was not imprisoned and received no significant fine.
The court placed Petitioner on probation. Petitioner satisfied her probation.
Petitioner has conducted the business of pawnbroking since 1990. During seven years of operation Petitioner has allegedly committed one transgression.
The alleged transgression is an isolated exception to an otherwise exemplary record. The alleged exception did not involve egregious circumstances, acts, or property of significant value. Compare, D.M.J., 586 So. 2d at 1050 (involving the importation of cocaine, giving false testimony, and falsifying applications for employment and law school).
There has been no transgression since 1995. Both before and after the single incident in 1995:
. . . there is no evidence of further transgressions; it appears the petitioner has
. . . led an exemplary life.
VMF, 491 So. 2d 1107.
The Plea Again: Back To Square One
On June 4, 1997, Respondent filed Respondent's Motion To Submit Supplementary Legal Authority (the "motion"). The motion cites the 1997 amendments which prohibit a plea of nolo contendere in Sections 539.001(4)(a)3. and 4. The motion also cites Lavernia vs. Department of Professional Regulation, 616 So. 2d 53 (Fla. 1st DCA 1993) for the proposition that the undersigned must apply the law in effect at the time that final agency action is taken. Since final agency action will not be taken until Respondent enters a final order in this case, Respondent argues that the 1997 amendments should apply to the facts in this case.
The holding in Lavernia is not controlling. Lavernia involved an application denial. This case involves a penal proceeding in which Respondent refused to renew a license.
The amendments to Sections 539.001(4)(a) 3.and 4. are inapposite to this case. Respondent did not charge Petitioner with entering a plea of nolo contendere in violation of Sections 539.001(4)(a)3. and 4.
Respondent's denial letters of December 4, 1996, and January 13, 1997, both mentioned the plea of nolo contendere as a basis for refusing to renew Petitioner's license. Apparently, Respondent then checked the statute and discovered there was no
prohibition in 1996 against a plea of nolo contendere.
After the informal hearing, Respondent nevertheless devised a way to use the plea of nolo contendere against Petitioner. Respondent decided to base its charge that Petitioner lacks good moral character on Petitioner's "criminal arrest and plea." See, e.g., Joint Exhibit 2 (Respondent denial letter dated January 13, 1997, last paragraph).
As the administrative hearing approached, Respondent decided not to limit the evidence to Petitioner's arrest and plea, presumably because Respondent lacked statutory authority to support such a position. Respondent sought to prove that Petitioner was guilty of the crime itself. Accordingly, Respondent supplied a list of witnesses and exhibits suggesting the expanded scope of evidence.
Just before the hearing, Respondent stipulated that the only charge against Petitioner is that Petitioner lacks good moral character in violation of Section 539.001(4)(a)1. Even if the prohibition in Sections 539.001(4)(a)3. and 4. against a plea of nolo contendere had been included in Section 539.001 as it was originally enacted, Respondent can not obviate its stipulation by amending its charges after the hearing to include a charge that Petitioner violated Sections 539.001(4)(a)3. and 4.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that Petitioner enter a Final Order granting
Petitioner's application for a pawnbroker license.
DONE AND ENTERED this 7th day of August, 1997, in Tallahassee, Leon County, Florida.
DANIEL MANRY
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 7th day of August, 1997.
ENDNOTES
1/ All references to chapters and sections are to Florida Statutes (Supp. 1996), unless otherwise stated.
2/ All references to chapter 538 and its sections are to Florida Statutes (1995), unless otherwise stated.
3/ Chapter 96-242 Laws of Florida, Section 3.
4/ Section 539-001(21). Former Section 538.09 prescribed requirements for "registration" by secondhand dealers. Section 539.001(3) prescribes requirements for a "license." Section 539.001(21) gives each pawnbroker operating a pawnshop in business on the effective date of this section:
. . . 6 months from the effective date of this section to comply with the registration . . . provisions before the agency may initiate any administrative civil action.
5/ Cf. Seminole County School Board of County Commissioners vs. Long, 422. So. 2nd 938 (Fla. 5th DCA 1982) (involving an administrative complaint).
6/ Cf. Hickey vs. Wells, 91. So. 2nd 206, 209, (Fla. 1957) (discussing the requirements for an administrative complain in a license discipline proceedings).
7/ Section 120.68(8); Cohen vs. Department of Business Regulation, Division of Pari-mutuel Wagering, 584 So. 2d 1083, 1085 (Fla. 1st DCA 1991).
8/ Transcript ("TR") at 59.
9/ The transcript is s ambiguous in describing the nature of the transaction that occurred. In relevant part, the transcript states:
. . . she insisted on buying it straight out several times, and [we] would say, "No, I do not want toe sell it outright. I want to pawn it." She finally – then we bickered over prpice. We accepted . . . $30, $35.
. . . TR at 47.
10/ Other inconsistancies also exist. For example, statements attributed to Petitioner by the investgators during their testimony at the hearing do not appear in the summaries as statements whichthe investigators considered to be inculparoty. However, these inconsistencies did not form part of the basis for assessing the credibility of the testomoney of the investigators.
COPIES FURNISHED:
Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture
and Consumer Services
The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
Richard Tritschler, General Counsel Department of Agriculture
and Consumer Services
The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
Brenda Hyatt, Chief
Bureau of Licensing and Bond Department of Agriculture
and Consumer Services
508 Mayo Building
Tallahassee, Florida 32399-0800
Louis Kwall, Esquire Kwall and Showers, P.A.
133 North Fort Harrison Avenue Clearwater, Florida 34615
Lawrence J. Davis, Esquire Department of Agriculture
and Consumer Services Mayo Building, Room 515 Tallahassee, Florida 32399
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.
| Issue Date | Proceedings |
|---|---|
| Aug. 29, 1997 | Final Order filed. |
| Aug. 12, 1997 | Letter to B. Crawford from Judge Manry enclosing cassette tapes that were inadvertently left out when the Recommended Order was mailed on August 7, 1997 sent out. |
| Aug. 07, 1997 | Recommended Order sent out. CASE CLOSED. Hearing held 04/28/97. |
| Jun. 10, 1997 | Petitioner`s Proposed Recommended Order filed. |
| Jun. 04, 1997 | Order Granting Extension of Time sent out. (Petitioner`s PRO due by 6/10/97) |
| Jun. 04, 1997 | Respondent`s Motion to Submit Supplementary Legal Authority filed. |
| Jun. 02, 1997 | Petitioner`s Consented to Motion for Extension of Time to File Proposed Recommended Order filed. |
| May 28, 1997 | Petitioner`s Consented to Motion for Extension of Time to File Proposed Recommended Order (filed via facsimile). |
| May 22, 1997 | Respondent`s Proposed Recommended Order filed. |
| Apr. 28, 1997 | CASE STATUS: Hearing Held. |
| Apr. 16, 1997 | (Joint) Prehearing Stipulation (filed via facsimile). |
| Apr. 11, 1997 | (Respondent) Notice of Filing Discovery; Exhibits filed. |
| Mar. 14, 1997 | Prehearing Order sent out. |
| Mar. 14, 1997 | Notice of Hearing sent out. (hearing set for 4/28/97; 1:00pm; Clearwater) |
| Mar. 10, 1997 | Joint Response to Initial Order filed. |
| Mar. 07, 1997 | Certificate of Service of Petitioner`s Second Interrogatories to Respondent filed. |
| Mar. 04, 1997 | Initial Order issued. |
| Feb. 24, 1997 | Petition for Formal Proceeding form; Agency Action Letter; Agency referral letter; Request for Formal Administrative Proceeding, letter form filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 29, 1997 | Agency Final Order | |
| Aug. 07, 1997 | Recommended Order | Agency action in the form of application denial was in substance refusal to renew and agency failed to prove basis of refusal. |
