STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GARY A. PAPPAS, )

)

Petitioner, )

)

vs. ) Case No. 00-2318

) DEPARTMENT OF AGRICULTURE AND ) CONSUMER SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on August 4, 2000, by teleconference between Clearwater and Tallahassee, Florida, before Administrative Law Judge Carolyn S. Holifield of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Gary A. Pappas, pro se

2555 Oak Trail North, Number 114

Clearwater, Florida 33764

For Respondent: William N. Graham, Esquire

Department of Agriculture and Consumer Services

Mayo Building, Room 515

407 South Calhoun Street Tallahassee, Florida 32399-0800

STATEMENT OF THE ISSUES

Whether Petitioner's application for a telephone salesperson license should be approved.

PRELIMINARY STATEMENT

By letter dated February 10, 2000, Respondent, the Department of Agriculture and Consumer Services, denied Petitioner's application for a telephone salesperson license. Petitioner challenged the denial and timely requested a formal administrative hearing. On May 31, 2000, the matter was forwarded to the Division of Administrative Hearings (Division) for assignment of an administrative law judge to conduct the hearing and issue a recommended order.

At hearing, Petitioner testified on his own behalf and offered and had one exhibit received into evidence. Respondent presented the testimony of one witness, Thomas Kenney, a regulatory consultant with the Department of Agriculture and Consumer Services. Respondent offered and had four exhibits received into evidence. Following presentation of the evidence, the undersigned agreed to leave the record open until August 14, 2000, to allow Petitioner to file his exhibit with the Division. Petitioner's exhibit was never filed and, thus, is not a part of the record in this case.

The Transcript of the proceeding was filed on August 16, 2000. At the conclusion of the hearing, the time set for submitting proposed recommended orders was ten days from the filing of the transcript. Respondent timely filed a Proposed Recommended Order which has been considered in preparation of the

recommended order. Petitioner did not file a proposed recommended order.

FINDINGS OF FACT

1. Respondent, the Department of Agriculture and Consumer Services (Department), is the state licensing and regulatory agency charged with the responsibility of administering and enforcing Chapter 501, Part IV, Florida Statutes, the Florida Telemarketing Act.

2. On or about November 29, 1999, Petitioner, Gary A. Pappas (Petitioner), applied for licensure as a telephone salesperson.

3. By letter dated February 10, 2000, the Department issued a letter denying Petitioner's application for licensure. According to the letter, the basis for denial of the license was Petitioner's felony conviction and his failure to disclose information relative to the felony conviction on his licensure application.

4. As a part of the Department's application review process, a background investigation is conducted on each applicant. In this case, the Department had such an investigation done on Petitioner.

5. The results of the background investigation of Petitioner revealed that he had been charged and convicted of a felony offense. According to the background investigation report, on October 17, 1988, in Pinellas County, Florida,

   Petitioner was convicted of a felony offense, constructive possession of an illegal substance. The report further indicated that adjudication was withheld.

6. The Department's application form for licensure as a telephone salesperson contained Question 3 which requested information concerning the applicant's criminal history. In pertinent part, the question is as follows:

   3. Please complete this section if you:

   a. Have previously been arrested for, convicted of or are 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.

   
   

   * * *

   
   

   If you have not been subject to any charge set forth above and are not subject to any current or restrictive order, then mark your initials in the [preceding] box.

   
   

   Your true name at the time of the action:

   
   

   
   

   Court or administrative agency rendering the decision, judgement [sic] or order:

   
   

   
   

   Date of conviction, judgement [sic] or order:

   / / Docket#

   
   

   Name of governmental agency which brought the action:

   
   

   Nature of conviction, judgement [sic], order or action:

   
   

7. In response to Question 3, Petitioner initialed the box next to the statement, "If you have not been subject to any charge set forth above and are not subject to any current or

   restrictive order, then mark your initials in the box. The term "charge set forth above" referred to the offenses described in subsections a, b, c, d, and/or e of Question 3. In this case, only subsection a of Question 3 is relevant.

8. By initialing the box mentioned in paragraph 7 above, Petitioner was indicating that he had never been convicted of a felony.

9. On November 29, 1999, Petitioner signed his completed application for licensure as a telephone salesperson. On the application, immediately above the applicant signature line, the following statement was printed in bold letters:

   I DECLARE UNDER PENALTY OF PERJURY THAT ALL OF THE INFORMATION PROVIDED IN QUESTIONS 1-3, AND IN THE EXHIBITS ATTACHED HERETO, IS TRUE AND CORRECT.

   
   

10. At the formal hearing, Petitioner admitted that in 1988, he had been convicted of a felony and adjudication had been withheld. He also testified that the conviction was for the sale and possession of marijuana.

11. Although Petitioner had been convicted of a felony, he failed to disclose the conviction on his application for licensure as a telephone salesperson. Petitioner testified that he was misinformed and had misread and misinterpreted Question 3. Petitioner also testified that because the incident occurred more than ten years ago and adjudication was withheld, he thought the conviction did not have to be disclosed on the application.

12. Petitioner's stated justification for failing to disclose his 1988 felony conviction lacks credibility given the clear wording of Question 3 on the application for licensure. Notwithstanding Petitioner's statements to the contrary, his testimony established that he was capable of reading and interpreting the questions on the application, including Question 3.

13. Petitioner has had no felony convictions since the aforementioned conviction in 1988.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Chapter 120.57, Florida Statutes.

15. Petitioner has the burden of establishing that he is eligible for licensure as a telephone salesperson. In this case, Petitioner has failed to meet his burden.

16. The Department is charged with the administration and enforcement of Chapter 501, Part IV, Florida Statutes, the Florida Telemarketing Act. Section 501.601, Florida Statutes. Pursuant to that part, the Department is authorized to issue a telephone salesperson license to each approved applicant and to deny, revoke, or suspend such license to any applicant or licensee on the basis of the grounds set forth in Section 501.612 (1), Florida Statutes. Sections 501.607(1) and 501.612(2), Florida Statutes.

17. Section 501.607, Florida Statutes, provides in relevant part:

    1. An applicant for a license as a salesperson 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:

       
       

       * * *

       
       

       (d) Whether the applicant, regardless of adjudication, has previously been arrested for, convicted or found guilty of, has entered a plea of guilty or a plea of nolo contendre to, or is under indictment or information for, a felony and, if so, the nature of the felony.

       
       

18. An applicant's failure to include on the application form the information prescribed by Section 501.607, Florida Statutes, may result in the Department's denying that applicant's request for a license. Section 501.612, Florida Statutes, provides in part:

    1. The department may enter an order directing that one or more of the actions set forth in subsection (2) be taken if the department finds that a commercial telephone seller or salesperson or any person applying for licensure as a commercial telephone seller or salesperson . . .

       
       

       * * *

       
       

       (b) Has regardless of adjudication, been convicted or found guilty of, or has entered a plea of guilty or a plea of nolo contendre to, any felony;

       
       

       * * *

       
       

       (h) Falsifies or willfully omits any material information asked for in any

       application, document, or record required to be submitted or retained under this part;

       
       

    2. Upon a finding as set forth in subsection (1), the department may enter an order:

       
       

       * * *

       
       

       (d) Refusing to issue or renew or revoking or suspending a license.

       
       

19. In this case, Petitioner failed to establish that he is eligible for licensure as a telephone salesperson. The evidence established and Petitioner admitted that he had been convicted of a felony and that he failed to disclose this conviction on his application for licensure as a telephone salesperson. Furthermore, the evidence showed that Petitioner falsified the application by initialing the box in Question 3, indicating that he had never been convicted of a felony.

20. Petitioner offered no evidence to support his assertion that he is entitled to licensure as a telephone salesperson. Petitioner's testimony that he is a taxpayer, has served on a jury, and has had no criminal convictions since 1988, is insufficient evidence to prove his entitlement to licensure, particularly in light of his failure to disclose information required on the application.

RECOMMENDATION

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

RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order denying Petitioner's request for licensure as a telephone salesperson.

DONE AND ENTERED this 13th day of September, 2000, in Tallahassee, Leon County, Florida.

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 13th day of September, 2000.

COPIES FURNISHED:

Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture

and Consumer Services

The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810

Richard D. Tritschler, General Counsel Department of Agriculture

and Consumer Services

The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810

Brenda D. Hyatt, Bureau Chief Department of Agriculture

and Consumer Services Mayo Building, Suite 508

407 South Calhoun Street Tallahassee, Florida 32399-0800

William N. Graham, Esquire Department of Agriculture

and Consumer Services Mayo Building, Room 515

407 South Calhoun Street Tallahassee, Florida 32399-0800

Gary A. Pappas

2555 Oak Trail North, Number 114

Clearwater, Florida 33764

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: 00-002318

Orders for Case No: 00-002318