01-001920 Stanley Sarentino, Jr. vs. Department Of Agriculture And Consumer Services Status: Closed Recommended Order on Friday, September 28, 2001.

Summary: Petitioner satisfies all requirements for issuance of a telemarketer`s license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STANLEY SARENTINO, JR., )

)

Petitioner, )

)

vs. ) Case No. 01-1920

)

DEPARTMENT OF AGRICULTURE AND )

CONSUMER SERVICES, )

)

Respondent. )

)

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 [phone]

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.