STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STANLEY SARENTINO, JR.,

Petitioner,

vs.

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES,

Respondent.

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) Case No. 01-1920

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RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge, Florence Snyder Rivas, held a formal hearing in the above-styled case on July 17, 2001, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: James Curran, Esquire

633 Southeast Third Avenue, Suite 201 Fort Lauderdale, Florida 33301

For Respondent: William N. Graham, Esquire

Department of Agriculture and Consumer Services

Room 515, Mayo Building Tallahassee, Florida 32399-0800

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent should grant Petitioner's application for a commercial telephone seller's license.

PRELIMINARY STATEMENT

By letter dated April 2, 2001, Respondent denied Petitioner's application for a commercial telephone seller's license.

Petitioner timely invoked his right of review and the matter was transferred to the Division of Administrative Hearings (DOAH) to conduct a formal hearing pursuant to Section 120.57, Florida Statutes.

At the hearing, Petitioner testified in his own behalf and presented the testimony of five additional witnesses, as well as seven exhibits. Respondent presented the testimony of two witnesses, and offered five exhibits. Official recognition was taken of the Florida Telemarketing Act, Chapter 501, Part IV, Florida Statutes (2000).

The transcript of the final hearing was provided to the parties on or about August 22, 2001, and the original transcript including exhibits was filed with DOAH on September 17, 2001.

The parties were given until September 15, 2001, to file proposed recommended orders, which have been carefully filed and considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Stanley Sarentino, Jr. (Sarentino) is the owner and president of the The A/C Guy, Inc. (The A/C Guy) an air-conditioning service business based in Pompano Beach,

   Florida. The A/C Guy was incorporated in 1996, and serves residential and business customers in Broward and Palm Beach Counties.

2. Respondent Department of Agriculture and Consumer Services (the Department) is the state agency charged with the enforcement of state regulation of telemarketing businesses in accordance with the provisions of the Florida Telemarketing Act, Chapter 501, Part IV, Florida Statutes (2000) (the Telemarketing Act).

3. Sarentino has worked in the air-conditioning business in South Florida for over ten years. Both as an employee of other companies and since he formed The A/C Guy, Sarentino works exclusively as an air-conditioning mechanic.

4. Sarentino has no expertise in, and has never been involved with, the daily running of the business, nor in the marketing of services, at the A/C Guy. Neither has Sarentino worked in the business side of any of the prior companies in which he was employed.

5. Sarentino is assisted in managing The A/C Guy by his wife of 10 years.

6. The Sarentinos have three children, and the family is well regarded in the community.

7. Prior to the marriage, Sarentino's life was less exemplary. In 1991, Sarentino was charged with felony

   transportation of stolen stock certificates. Close in time to the stock charges, Sarentino was charged with unlawfully purchasing cocaine. Both incidents were disposed of by plea agreements which spared Sarentino a jail sentence.

8. Since then, Sarentino has devoted himself to “turning his life around” by attending church, providing for his growing family, and otherwise occupying himself with lawful pursuits.

9. Recently, Sarentino has made efforts to grow his small business. Those efforts included hiring John Frank Aiello, Jr. (Aiello) as full-time General Manager of The A/C Guy in the spring of 2001.

10. Sarentino and Aiello came to believe that The A/C Guy had grown about as much as it could via word of mouth and print media advertising. They desired to expand the customer base for the business through telemarketing.

11. Under the provisions of the Telemarketing Act, individuals who wish to have their business engage in telemarketing are required to be licensed (the Department).

12. Aiello prepared a telemarketing license application for Sarentino in accordance with the instructions contained in the application package provided by the Department.

13. Before commencing to prepare the application, Sarentino and Aiello carefully reviewed the licensing criteria. They paid special attention to the requirement that any criminal

    background be disclosed, and acted in good faith to disclose Sarentino’s history with as much precision as Sarentino’s 10-year-old memory would allow.

14. The Department’s independent investigation corroborated that Sarentino had truthfully provided all requested information.

15. Since his successful completion of probation for the decade-old incidents revealed on his telemarketing application, Sarentino has been a law abiding citizen.

16. All applications for a telemarketer's license must be accompanied by a non-refundable $1500 processing fee. Applicants must also provide proof that they have paid the premium and have otherwise fulfilled the requirements to obtain

    a $50,000 bond from a private bonding company. The bond premium in this case was $1000.00.

17. It is also necessary for applicants to provide extensive information about the business in whose name telemarketing will be conducted, along with information about individuals affiliated with the business, so that the Department may investigate their backgrounds for the public’s protection. Sarentino spent in excess of $350.00 in accounting fees for the preparation of financial statements required for the application.

18. Prior to investing the time and incurring the expense associated with the application process, both of which are considerable, Sarentino carefully considered the question of whether he had a realistic chance to obtain a license.

19. At the time he submitted his application, Sarentino reasonably believed, based upon the information provided by the Department itself, that his application would not be automatically rejected on account of his decade-old legal difficulties.

20. After Sarentino’s application was submitted, Aiello, in his capacity as The A/G Guy general manager, had telephone conversations with the Department’s Regulatory Consultant Tom Kenny (Kenny) to follow-up on the status of the application. During the course of such conversations, Kenny revealed that the plea to the stock charge as well as the plea to the cocaine charge---each, by itself---would trigger the denial of the license application once the Department had independently confirmed that Sarentino had indeed truthfully disclosed the pleas.

21. The evidence established and the Department conceded that there is an informal, unwritten practice enforced by Kenny's supervisor, James R. Kelly (Kelly), the Department’s Director of the Division of Consumer Services, that a plea of guilty to a felony charge, no matter what the felony, no matter

    how remote in time, no matter whether the applicant was rehabilitated or not will automatically result in the denial of a license application.

22. The Department has no written rules, policies, or guidelines to which a citizen may refer in order to be apprised that the applications of individuals like Sarentino, and those similarly situated, are, in fact, dead on arrival.

23. The Department's interpretation of the law is directly contrary to the discretionary language of the statute, which plainly does not foreclose all possibility that mitigating factors would be taken into account by Department officials in evaluating an applicant's criminal history.

24. Sarentino has fulfilled all the statutory criteria for licensure. The Department would have granted the license were it not for its unwritten policy that the statute requires that any plea to a criminal charge mandates automatic denial.

    CONCLUSIONS OF LAW

    
    

25. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57, Florida Statutes.

26. To prevail in these proceedings, Sarentino must establish his entitlement to a telemarketing license by a preponderance of the evidence. Department of Banking and Fin.,

    Div. of Securities and Investor Protection v. Osborne Stern and

    
    

    Co., 670 So. 2d 932, 933 (Fla. 1996).

    
    

27. Section 501.612 of the Telemarketing Act states that the Department may deny licensure to an applicant who has pled guilty to [a] felony charge[s].

28. The Department has converted the grant of discretion inherent in the word "may" into an inflexible policy. Had the Legislature intended that anybody and everybody who had ever pled guilty to a felony be barred from holding a telemarketing license, Section 501.612 would mandate that the Department shall deny licensure to an applicant who has pled guilty to [a] felony charge[s]. See Harper v. State, 217 So.2d 591 (Fla. 4th DCA 1968); Palm Springs General Hospital, Inc. of Hialeah v. State

    Farm Mutual Insurance Company, 218 So.2d 793 (Fla. 3d DCA 1969); Department of Health & Rehabilitative Services v. Johnson, 504 So 2d 423, (Fla. 5th DCA 1987).

29. Here the facts reveal that an appropriate exercise of agency discretion would be to grant the applicant his commercial telephone seller's license, all other requirements of law having been satisfied.

RECOMMENDATION

Based on the foregoing, it is hereby recommended that a Final Order be entered by the Department granting a commercial telephone seller's license to Stanley Sarentino, Jr.

DONE AND ENTERED this 28th day of September, 2001, in Tallahassee, Leon County, Florida.

FLORENCE SNYDER RIVAS

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 28th day of September, 2001.

COPIES FURNISHED:

James Curran, Esquire

633 Southeast Third Avenue Suite 201

Fort Lauderdale, Florida 33301

William N. Graham, Esquire Department of Agriculture

and Consumer Services Mayo Building, Room 515

407 South Calhoun Street Tallahassee, Florida 32399-0800

Brenda D. Hyatt, Bureau Chief Bureau of License and Bond Department of Agriculture and

Consumer Services

541 East Tennessee Street India Building

Tallahassee, Florida 32308

Honorable Terry L. Rhodes 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

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: 01-001920

Orders for Case No: 01-001920