RICHARD JOHN MCGRAW, APPELLANT,
v.
DEPARTMENT OF STATE, DIVISION OF LICENSING, APPELLEE

Fla. 1st DCA | 1986-07-15
No. BJ-281
MILLS and WENTWORTH, JJ., concur.
491 So. 2d 1193 Florida District Court of Appeal, First District (1986) Caution
Cited by 9 cases

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Holding

The court held that the Department of State did not err in revoking the appellant's private investigator's license without a formal hearing, as the appellant failed to raise disputed issues of fact material to the agency action.


Headnotes

[1] A licensee found guilty of a crime directly related to the business for which the license is held is subject to disciplinary action, regardless of adjudication.

[2] A licensee is entitled to a formal administrative hearing under Section 120.57(1), Florida Statutes, only if they dispute the facts upon which a proposed agency action is…

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Facts & Procedural History

Appellant's private investigator's license was subject to revocation after he was found guilty of tampering with a witness. The Department of State in…

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Opinion of the Court
NIMMONS, Judge.

NIMMONS, Judge.

Richard John McGraw appeals from an order of the Department of State, Division of Licensing (“Department”) revoking his Class C private investigator’s license. We affirm.

Appellant was found guilty of the felony offense of tampering with a witness under Section 914.22(1), Florida Statutes. Adjudication of guilt was withheld and he was placed on probation for three years. Subsequent thereto, the Department initiated administrative proceedings to revoke appellant’s license by filing an administrative complaint alleging as grounds that he had been found guilty of the above offense. The complaint relied upon Section 493.-319(1), Florida Statutes, which expressly authorizes disciplinary action where the licensee has been “found guilty of the commission of a crime which directly relates to the business for which the license is held, regardless of adjudication.”

At the time that it served the complaint upon appellant, the Department also advised him in writing of his rights under Sections 120.60 and 120.57, Florida Statutes, to an administrative hearing. Appellant was specifically advised that he had a right to a formal hearing under Section 120.57(1) if he disputed the facts upon which the proposed action was based, or an informal hearing under Section 120.57(2) if he did not dispute the facts upon which the proposed agency action was based but wished to “make an explanation of those facts or to submit a written statement or speak on [his] behalf at an informal hearing.” Appellant was further advised that he must submit his written request for hearing on the enclosed election of rights form within the required period and that failure to make a timely request for hearing would result in the Department’s disposition of the complaint by final order. Appellant’s attorney timely returned the election of rights form specifically requesting a formal hearing under Section 120.-57(1).

Along with such form appellant’s attorney submitted his “Request for Formal Hearing and Statement of Disputed Issues of Fact.” That document specifically requested a “formal hearing pursuant to Section 120.57(1), Florida Statutes.” Further, the request for hearing essentially admitted that appellant had, as alleged, been found guilty of the above-referred crime and that the “appellate court has affirmed the Respondent’s conviction, but a motion for rehearing of the decision is presently pending.” The request for hearing went on to allege an exculpatory version of appellant’s communications with the witnesses whom he allegedly threatened and that his conduct was not such as to justify revocation of his license.

Finally, he listed eight witnesses he. intended to call at the requested formal hearing.

Thereafter, the Department entered a final order denying the request for a formal hearing and revoking appellant’s license. The order found that appellant was not entitled to administrative relitigation of the prior judicial determination of his guilt of the subject felony and further found that appellant “fail[ed] to raise any disputed issue of fact as to the conviction that is material to the agency action proposed here, so as to warrant a formal administrative hearing.” Appellant asserts on appeal that the Department erred in entering its final order of revocation without permitting him a formal 120.57(1) hearing.

We disagree. To the extent that appellant sought to relit-igate the question of his guilt regarding the subject offense, such is improper. To the extent that appellant’s petition for hearing sought to present mitigation, an informal hearing under Section 120.57(2), would have provided a forum more than adequate for such purpose.

Appellant has not asserted, either in the proceedings below or on appeal, that the Department erred in failing to provide appellant with a Section 120.57(2) informal hearing. Rather, he has asserted, both below and on appeal, only an entitlement to a formal hearing. For the reasons expressed above, we cannot agree with appellant. The cases relied upon by appellant, exemplified by Gonzalez v. Department of Health and Rehabilitative Services, 418 So. 2d 1128 (Fla. 1st DCA 1982) and Larson v. Florida Real Estate Commission, 227 So. 2d 886 (Fla. 1st DCA 1969), are inapposite.

We have also considered and reject appellant’s assertion that the final order should be reversed because, appellant says, the order was based solely on hearsay.

AFFIRMED.

MILLS and WENTWORTH, JJ., concur.


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Citator

Cited By

  • Michael Spuza, M.D. v. Dep't OF Health & Bd. of Med., 838 So. 2d 676 (Fla. 2d DCA 2003)
    …iction, in itself, was sufficient to prove a violation of section 458.331(l)(c), that there were no disputes of fact, and that a formal hearing under section 120.57(1) was; not required. It cited McGraw v. Department of State, Division of Licensing, 491 So. 2d 1193 (Fla. 1st DCA 1986), in support of its position. The McGraw court held that “[t]o the extent that appellant sought to relitigate the question of his guilt regarding the subject offense,” a formal hearing was unnecessary. But Spuza was not attempting…
  • Kelly v. Dep't of Health & Rehabilitative Servs., 610 So. 2d 1375 (Fla. 2d DCA 1992)
    …ered by a confirmed report of abuse in the abuse registry. Facts established in a criminal prosecution may not be relitigated in an administrative forum. Lora v. Department of State, 569 So. 2d 840 (Fla. 3d DCA 1990); McGraw v. Department of State, 491 So. 2d 1193 (Fla. 1st DCA 1986); The Florida Bar v. Vernell, 374 So. 2d 473 (Fla.1979). Pursuant to chapter 402, a no contest plea to child abuse, alone, disqualifies one from licensure or employment as a caretaker — irrespective of whether the alleged perpetr…
  • Castleman v. Off. of Comptroller, 538 So. 2d 1365 (Fla. 1st DCA 1989)
    …forts he has made since entry of the orders to demonstrate that he is not unworthy to transact securities business in the state of Florida and is not a person of bad repute. The Department cites McGraw v. Department of State, Division of Licensing, 491 So. 2d 1193 (Fla. 1st DCA 1986) as authorizing exclusion of the subject evidence. McGraw’s private investigator’s license was revoked by the Division of Licensing upon his adjudication of guilt of the felony offense of tampering with a witness in violation of s…

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