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03/13/1996 ADMINISTRATIVE HEARING Occupational License Appeal -- Jeralne C. Burt March 13, 1996 -- 10:30 a.m. Present: Kathy S. Rice, Deputy City Manager Robert J. Surette, Assistant City Attorney/Police Legal Advisor Sergeant Paul Reese, Clearwater Police Department Detective Robert Pease, Clearwater Police Department Janet McMahan, City Customer Service Representative Gwen Legters, Board Reporter Also Present: Greg Showers, Attorney representing Appellant Jeralne C. Burt, Appellant Basis for Denial: Applicant failed to mention a 1978 arrest for aggravated assault on an application for occupational license to operate a teen club. Appellant Exhibits: 1. Copies of Circuit Court records relating to 1989 charges involving appellant 2. Copies of Circuit Court records relating to 1978 charges involving appellant 3. Copies of 15 letters with approximately 20 signatures in support of appellant’s proposed business 4. Occupational license to operate rental units, issued to appellant on January 4, 1996 5. State Nursing Assistant Certificate and transmittal letter 6. Miscellaneous personal documents, including a current United States passport, and an expired insurance agent license, issued to appellant City Exhibits: 1. Composite occupational license application containing Personal Data Report and Background Information Report on appellant 2. Certified copy of occupational license categories, fees, rates and charges from Clearwater Code of Ordinances Appendix A 3. Certified copy of Circuit Court documents relating to 1989 charges involving appellant 4. Offense Incident Report relating to 1989 charges involving appellant 5. Certified copy of Circuit Court documents relating to 1978 charges involving appellant 6. Crime Against Person Report relating to 1978 charges involving appellant 7. Certified copy of Clearwater Code of Ordinances Section 29.41 regarding the City’s right to revoke or deny licenses Deputy City Manager Rice called the meeting to order at 10:30 a.m. and explained the rules governing the procedures. Witnesses were sworn in by Ms. Legters. In response to questions from Attorney Greg Showers, appellant Jeralne C. Burt testified, as follows. She lives at 816 North Betty Lane and has been a Clearwater resident since 1961. She signed the application for an occupational license to operate a teen club. Because she did not have her glasses, her daughter read the application and filled in the form as Ms. Burt directed, listing the date of one arrest on the application. Ms. Burt said she did not list the previous arrest because adjudication was withheld and it was her understanding she was not convicted of a crime. She acknowledged she signed the mah03.96 1 03/13/96 application forms as copied in composite City Exhibit 1. She said she was told of the City code regarding making a false statement on the application and, according to her understanding, did not make a false statement. Upon cross examination by Assistant City Attorney Rob Surette, Ms. Burt indicated she did not have her glasses today and could not be sure it was her signature on the documents as copied in composite City Exhibit 1. She acknowledged she had signed application forms. Mr. Showers summarized that Ms. Burt wishes to start an establishment to assist people in the Greenwood area. She does not deny the arrest charges from 1978 and 1989. He stated he counsels his clients having adjudication withheld is the same as no formal conviction and they may answer applications accordingly. He did not feel she would endanger the public. He said Ms. Burt was not adequately aware of code section 29.41, and it was not her intent to withhold information from the application. He stated these charges did not come to light as a result of Ms. Burt’s passport, realtor or nursing applications. Ms. Burt interjected she wishes to open her establishment as a service to the community, not to make money. Assistant City Attorney Surette called Customer Service Representative Janet McMahan as a witness. In response to questions, Ms. McMahan testified, as follows. She has worked in the City’s Occupational License section for 12 years and has processed thousands of applications. She had discussed with Ms. Burt her initial application for a license to operate a teen club. Ms. McMahan stated the City does not have a license category for teen club, so this type of business historically has been placed either in the nightclub, or miscellaneous unclassified category. Both categories require police background checks. In response to cross examination by Mr. Showers, Ms. McMahan said she was not present when Ms. Burt came to the office to complete the license application. A cross-trained City employee from another division of the same department inadvertently inserted an incorrect code classification, erroneously categorizing Ms. Burt’s proposed business as indoor entertainment, which does not require a police background check. Ms. McMahan stated the City has not received Ms. Burt’s application fee yet. In response to further questions, Ms. McMahan listed classifications of several activities involving young people and indicated which require police background checks. She said Bobbie Eigenmann is the employee who processed the application. Mr. Surette requested clarification of Ms. McMahan’s testimony. She restated, based on experience, she would have classified the appellant’s proposed business in the nightclub license category, which requires a police background check. A cross-trained City employee was filling in on the day Ms. Burt applied for a license. A Commercial/Entertainment license category was applied to the proposed business in error. The Commercial/Entertainment category does not require a police background check. No application fee has been paid yet. Mr. Surette called Clearwater Police Detective Robert Pease as the next witness. Det. Pease testified City Exhibit #1 is a composite of documentation involved in a police background check. He reviews applications for completeness, criminal histories, and verifies routine background information. He acknowledged he arranged to obtain the copies of the 1989 arrest and criminal offenses submitted as City Exhibits #3 and #4. It was noted Ms. Burt had entered a plea of Not Guilty, later changing the plea to No Contest. The court withheld adjudication of guilt and ordered a $100 fine. Det. Pease said her application lists a battery mah03.96 2 03/13/96 charge without a date, and later refers to an assault arrest in “90," which he interpreted as referring to the same charge. Mr. Surette referred to City Exhibits #5 and #6 regarding 1978 charges of aggravated assault, resisting arrest without violence, and criminal mischief. Det. Pease said he was aware of both the 1978 and 1989 charges when he placed a routine follow-up call to Ms. Burt on February 8, 1996 to go over her application. He said, during that conversation, she admitted being arrested in connection with a landlord/tenant problem, but stated that was her only arrest. In response to further questions from Mr. Surette, Det. Pease said the application form states clearly that false statements or misrepresentation can result in denial of the application. He said applicants are contacted routinely to provide them an opportunity to correct conflicting information. Under the circumstances, Det. Pease recommended denial of the occupational license. Upon cross examination by Mr. Showers, Det. Pease said during routine follow-up calls, he asks applicants if they are sure they reported everything requested on the application. He does not question specific events involving felonies. He said she cooperated by answering his questions and did not seem to be trying to withhold information. He declined to comment on his definition of withholding adjudication, stating he recommends denial based on City code regarding withholding evidence. He did not handle Ms. Burt’s application differently than any other he processes. In response to further questions, Det. Pease said Ms. Burt’s occupational license application would not have been denied if she had listed information regarding both arrests on her application. He said he has reviewed applications and done background checks for eight years and the appellant was not treated any differently than any other applicant. Without reviewing the records, he did not know details of the 1978 incident. Mr. Surette asked Det. Pease to review City Exhibit #6, regarding the 1978 arrest. Det. Pease verified the report states Ms. Burt was placed under arrest, a struggle ensued, she was loud and disorderly, and wrestled with the officers before and after they put handcuffs on her. Mr. Surette called Sergeant Paul Reese as the next witness. In response to questions, Sgt. Reese stated he supervises Det. Pease in the Criminal Investigation Division of the Clearwater Police Department. Sgt. Reese stated he spoke with Ms. Burt for the first time in late February, after her license application was rejected. He advised her the 1978 arrest was revealed in the background check. When Det. Pease had asked her if she wished to include any additional information, Ms. Burt had said she just awakened from a nap and had forgotten the incident because it was 18 years ago. Ms. Burt interrupted the questioning with details of the 1978 arrest, involving a disturbance at her house, being taken to jail and being put in a holding cell. In closing, Mr. Surette submitted City Exhibit #7 and read City Code Section 29.41.5(c), grounds for denial, into the record. Summarizing the exhibits, he said the appellant entered a plea of No Contest to the 1989 charges and was sentenced to pay a fine. She entered a plea of No Contest to the 1978 charges, and was sentenced to two years probation and other consequences. The application clearly states failure to report all requested information is grounds for denial. The appellant was given more than one opportunity to provide requested information. Mr. Surette did not feel the circumstances of the 1978 arrest and detainment would be forgotten. He referred to the code as submitted in City Exhibit #7, that indicated the mah03.96 3 03/13/96 central permitting director shall not issue a license if the director finds the applicant has knowingly made any false statement. Mr. Surette stated Ms. Burt was not forthcoming with pertinent information and code mandates the hearing officer to uphold denial. In closing, Mr. Showers stated the appellant was given contradictory information about the need for a background check. It was not her intent to withhold anything. She was forthcoming with the detective. She is trying to provide a public service to get kids off the streets. He said minority business owners would love to see this establishment started. He felt the denial should be overturned and Ms. Burt should be given the opportunity to open her establishment. He submitted a certificate of insurance to be included with appellant’s Exhibit #6. Ms. Rice said she would take the testimony under advisement and respond with her decision in writing within ten days. Mr. Surette stated the burden of listing conclusions of law and supporting facts is on the City. Ms. Rice requested the appellant’s personal documents be copied, marked for the record, and returned to the appellant. The meeting adjourned at 11:40 a.m. Respectfully submitted: Board Reporter mah03.96 4 03/13/96