STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BENNIE M. O'KELLEY, )

)

Petitioner, )

)

vs. ) CASE NO. 78-2169S

)

DIVISION OF LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice in Miami, Florida, on February 7, 1979, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

This case was presented upon the petition of O'Kelley for a formal hearing on the denial of his application for licensure as a Class F Unarmed Guard by the Division because of his falsification of his application and alleged assault or battery.

Evidence was presented that O'Kelley had applied for a Class F, Unarmed Guard, license and on his application stated that he had never been arrested. O'Kelley admitted that he had been arrested approximately 15 times, the last time being in 1969, when he was sentenced to 90 days in the Dade County Stockade for assault. Evidence was introduced that O'Kelley had been licensed as an Unarmed Guard by the Division approximately two years ago. O'Kelley stated that he had answered "no" to the question on the application regarding his arrest because he assumed an applicant did not have to report misdemeanors because only felonies would be considered by the Division as disqualifying an applicant for licensure.

The issue presented is whether O'Kelley falsified his application by failing to report his arrest and conviction for assault and batter in 1969, and his other misdemeanor arrests.

APPEARANCES

For Petitioner: Bennie M. O'Kelley, pro se

4711 South West 38th Street Hollywood, Florida 33023

For Respondent: Gerald Curington

Division of Licensing The Capitol

Tallahassee, Florida 32304

FINDINGS OF FACT

1. Bennie M. O'Kelley submitted an application to the Division of Licensing, Department of State, for licensure as a Class F, Unarmed Guard. O'Kelley indicated on his application that he had never been arrested, although he had been arrested some 15 times, the last time having been for assault and battery in 1969. In 1969, O'Kelley served 90 days in the Dade County Stockade for assault and battery.

   
   

2. O'Kelley introduced evidence that he had been licensed by the Department of State earlier as an Unarmed Guard and stated that he had revealed his misdemeanor arrests on that application. O'Kelley stated that he knew that he could not be licensed if he had been arrested for a felony and assumed that misdemeanors were not disqualifying, and that therefore he did not have to report his misdemeanor conviction and arrests on his application.

   
   

   CONCLUSIONS OF LAW

   
   

3. Section 493.08(2)(f) provides that the grounds for denial of a license shall be falsifying application for a license. The evidence presented in this cause reveals that O'Kelley failed to reveal his misdemeanor arrests. However, the language of the statute indicates there must be intent to conceal information on the application. In the instant case O'Kelley had been licensed earlier by the Department of State pursuant to an application in which he had revealed his arrests. O'Kelley stated that he knew he could not be licensed if he had been arrested for a felony, but that all of his arrests had been misdemeanors which he assumed did not disqualify him for licensure. O'Kelley stated that this was the reason he had not reported his arrests on his latest application.

   
   

4. Although O'Kelley's assumptions are not necessarily valid, his failure to reveal his arrests does not indicate an attempt to falsify his application in light of the fact that he had been licensed prior as an Unarmed Guard after reporting his arrests on his application, and he had not had any additional arrests in the intervening period between his first application and licensure and the application which is now in issue.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, and considering the fact that O'Kelley has had a clean record for the past ten years, the Hearing Officer would recommend that his application for a Class F, Unarmed Guard, license be granted; however, because of O'Kelley's admitted history of being arrested for fighting, the Hearing Officer recommends that favorable consideration not be given to O'Kelley's application for a Class G, Armed Guard, license.

DONE and ORDERED this 19th day of February, 1979, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Gerald Curington Division of Licensing The Capitol

Tallahassee, Florida 32304

Bennie M. O'Kelley 4711 SW 38th Street

Hollywood, Florida 33023

Docket for Case No: 78-002169

Orders for Case No: 78-002169