STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CURLEY LEE WALKER, )

)

Petitioner, )

)

vs. ) CASE NO. 80-2298S

)

SECRETARY OF STATE, )

DIVISION OF LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice an administrative hearing in this cause was held before

P. Michael Ruff, the duly designated Hearing Officer of the Division of Administrative Hearings, on June 4, 1981, in Pensacola, Florida.

APPEARANCES

For Petitioner: Curley Lee Walker, pro se

Post Office Box 519 Century, Florida

For Respondent: James V. Antista, Esquire

Assistant General Counsel Department of State

Room 1901, The Capitol Tallahassee, Florida 32301

In July of 1980 the Petitioner perfected his application for a Class "F" unarmed security guard license and a Class "G" armed security guard license with the Respondent. By letter dated October 27, 1981, the Respondent denied those applications and advised the Petitioner of his right to a hearing pursuant to Section 120.57, Florida Statutes, on the denial and his opportunity to present evidence in support of his applications. The Petitioner timely requested a hearing on the denial and availed himself of that opportunity - The issue to be determined is thus whether the Petitioner's application for licensure should be approved. The Petitioner testified on his own behalf and introduced evidence of his prior licensing as a security guard (Petitioner's Composite Exhibits 1 and

1. - The Respondent introduced Exhibits 3 through 9 consisting of the applications, the letter of denial, and documents from various law enforcement agencies, and the Escambia County Clerk of Circuit Court's records. The Respondent presented no witnesses and at the conclusion of tee hearing agreed that there was no legal impediment to the Petitioner's licensing as an unarmed security guard, but reserved its objection to his licensing as an armed security guard.

   FINDINGS OF FACT

   
   

   1. The Petitioner seeks licensure as both an armed and an unarmed security guard ("F" and "G" licenses). In support of his applications he submitted the required health certificate for a "Statewide Gun Permit" as well as his "Certificate of Firearms Proficiency" and the required affidavit attesting to his character and to his experience as a security guard. A "Temporary Gun License," No. 18279, was issued to the Petitioner on August 25, 1980. On October 27, 1980, the Respondent ultimately, by letter of that date, denied his application for licensure and informed him of his right to an administrative hearing pursuant to Chapter 120, Florida Statutes. The Petitioner timely elected to exercise that right and to adduce evidence supportive of his petition. The grounds for the denial were respectively that there was a substantial connection between an alleged lack of good moral character on the part of the Petitioner and the business for which he sought the license and that he fraudulently or willfully misrepresented his status in answering questions on the applications specifically the question regarding his prior arrest record. Additionally, the application was denied on the grounds that the Petitioner had in the past been found guilty of a crime which directly related to the business for which he seeks the license. The Petitioner, in answering the question regarding past arrests, admitted that he had been arrested for armed robbery in 1959. The Petitioner did not complete the answer regarding the disposition of that arrest, but candidly admitted at the hearing that he was confined in the state prison at Raiford, Florida for five years after being convicted of armed robbery and also candidly admitted a record for various other petty offenses in 1941, 1945 and 1946, none of which three incidents involved a sentence of longer than three months. On December 23, 1947, in Bartow, Polk County, Florida he was sentenced to three years in the state prison at Raiford for grand larceny. He was discharged from confinement on May 4, 1950. The uncontroverted testimony of the Petitioner at the hearing established that, although he was convicted and sentenced for grand larceny, the articles which he was convicted of stealing were: a watermelon, a cinnamon roll and a can of sardines.

      
      

   2. The Petitioner's only other conviction and confinement occurred in 1959 when he was convicted for armed robbery. The Petitioner served out this sentence and was discharged and has had no altercations with the law since that time. Give the basis upon which the application was denied, some elaboration of the circumstances surrounding that armed robbery conviction are appropriate.

      The Petitioner's stepson was employed by a trucking company as a driver and periodically made collections of large amounts of cash from freight customers of the truck line. Due to their dire financial circumstances at the time the Petitioner, his stepson, and the Petitioner's wife apparently entered into an arrangement whereby the stepson would alert them of the day and time on which he would be making collections of large amounts of cash so that the trio could convert the company receipts to their own use. According to the Petitioner's uncontroverted testimony, the Petitioner, armed with a lead pipe instead of a gun, as the charge had indicated, in conspiracy with his stepson and wife staged an apparent robbery to cover the actual theft of the company's funds. In any event, the trio were apprehended and in the subsequent negotiations or the trial, the Petitioner elected to assume sole responsibility for the "robbery" in order to protect the freedom and record of his wife and stepson. Consequently, the Petitioner was sentenced to five years for armed robbery and served out his sentence. The Petitioner thus established with credible, uncontroverted testimony that this armed robbery conviction actually did not stem from the forceable taking of the property of another with a firearm, but rather was a staged, "phony" robbery to cover a simple theft of the funds in question. The Hearing Officer is impressed with the obvious candor and forthrightness of the

      Petitioner in describing the events surrounding this and his other miscreant conduct in his distant past and with his continued remorse at its having occurred.

      
      

   3. Since his release from the state penitentiary in 1962, Mr. Walker has had no legal difficulties whatever. Per the last fifteen years or so he has been employed as a security guard for various security agencies in the Dade County area, primarily as an unarmed security guard, but serving at least one stint for an agency as an armed security guard, apparently by local authority. The Petitioner presented evidence at the hearing of a previously valid unarmed security guard license he has held, as well as the temporary gun license issued August 28, 1980. He also presented evidence in the form of identification cards and a badge establishing his employment as a security guard in the past, pursuant to Chapter 493, by a number of private security firms in the Dade County area. He has worked in a number of large department stores and warehouses wherein valuable merchandise was stored or kept and has never been involved in any incident involving theft of such goods. Escambia County recently saw fit to employ him temporarily as a security guard at Pensacola High School. He has had good working relationships with law enforcement authorities in his capacity as a security guard both in Dade and Escambia Counties and offered to bring to the hearing members of law enforcement agencies and the clergy in both counties to attest to his good conduct since his release from prison, nineteen years ago.

      
      

   4. The Petitioner freely acknowledged at the hearing that his answer to Question 13 on his applications did not disclose his entire arrest record, however, he states that he does not write well and had the secretary at the security firm where he was working at the time, in Dade County, fill out the applications for him. He maintains that he told the secretary all information about his criminal record and assumed that she had put it down, but signed the application hurriedly because he had to report for work and signed it as he was leaving the firm's office. He repeatedly demonstrated at the hearing that he had nothing to hide regarding his criminal record and was genuinely remorseful for its existence. He described in detail the various convictions and stipulated to the evidence of his criminal record which the Respondent offered. The Petitioner also demonstrated that during those times when he has worked as an armed security guard, primarily in Dade County, he has never had to use or display his gun to anyone and only wishes the use of a gun now for his own protection, since in his experience at his last job with the Ford Detective Agency in Dade County, the position became too dangerous for a security guard to occupy without having a firearm for protection.

      
      

   5. The Petitioner is now in his sixties and due to a slight heart condition is living entirely on Social Security disability income. He expressed the desire to go hack into security guard work in order to provide enough income to support himself, his wife and his young grandson whom he is helping to rear and who accompanied him to the hearing. He obviously has a keen desire to be able to support himself and his family without, as he put it, having to "live on the County" or the public treasury. He feels that security guard work is a duty he can readily fulfill despite his age since lie is of otherwise robust health, has substantial experience as a security guard, and the job is not a strenuous one. He has job offers with the St. Regis Paper Company and the Exxon Oil Company as well as the local newspaper. He is now working part-time collecting money for the local newspaper which is a dangerous job in his view in that he sometimes carries large amounts of cash in "high crime areas" of the county. He feels that he needs the right to possess a firearm for his own protection.

   6. Since his release from prison Mr. Walker has obviously undergone a profound change in his way of life away from repetitive confrontations with the law. He has become an exemplary family man, a church man and a Mason. He does not use alcohol or drugs whatever. He demonstrates significant independence and responsibility of character at his rather advanced age in wanting to obtain another job to support is family, rather than relying on relatives or the public treasury for subsistence.

      
      

      CONCLUSIONS OF LAW

      
      

   7. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57, Florida Statutes.

      
      

   8. In arriving at a determination whether to license an applicant such as the Petitioner as an armed or unarmed security guard, the Respondent is charged with the responsibility generally of ascertaining if the applicant is of good moral character. Section 493.006(1)(b), Florida Statutes [now codified as Section 493.006(2)(b)(1), Florida Statutes], provides, in its materiality, that good moral character is a personal history of honesty, fairness and respect for the rights of others and for the laws of the state and nation. The Respondent is authorized to refuse a license to an applicant pursuant to this section for lack of good moral character only when there is shown to be a substantial connection between a lack of good moral character of the applicant and the business for which he is seeking a license. Although the Petitioner's conviction in 1959 for a crime involving the willful, permanent deprivation of the property rights of another clearly indicates on its face a lack of good moral character, as defined in this licensing statute, such that ordinarily the denial of licensure would be proper, the "substantial connection" between his lack of good moral character at that time and the business for which he now seeks licensure is no longer extant. The Petitioner has demonstrated, as described in the above Findings of Pact, that he has completely rehabilitated his character and life-style and has maintained himself as an exemplary citizen and indeed a positive aid to law enforcement for more than fifteen years since his last altercation with the criminal justice system. The incidents of good character and responsible citizenship demonstrated by the Petitioner and described in the above Findings of Fact, which have been maintained for many years since the only serious conviction on his record, clearly are the antitheses of the type of character and conduct resulting many years ago in that conviction as well as the more minor convictions on his record. Clearly, in view of the evidence in this record of the longstanding rehabilitation of the Respondent's character and reputation for honesty and fair dealing, and the lack of any evidence in the record to refute that showing of rehabilitation, there is simply no basis for a denial of licensure on this statutory ground.

      
      

   9. Section 493.017(1)(c), Florida Statutes (now codified as Section 493.319(1)(c), Florida statutes], permits the Respondent to deny licensure to such a petitioner who, regardless of adjudication, has been found guilty of the commission of a crime which directly relates in its nature to the nature of the business for which a license is sought. Thus, since the Petitioner had previously been convicted of a crime against the property of another, and the protection of property being a primary purpose of security guards such as the Petitioner seeks to become, the Respondent felt that denial of the application was proper. In view of the Findings of Fact as well as the conclusions made hereinabove related to the fact that the Petitioner has amply demonstrated his rehabilitation of character, lifestyle and course of conduct in the long years since his last conviction of a crime and especially in view of the fact the

      Respondent has already indicated on the record that this is no longer a reason for denial of licensure at least as an unarmed security guard, the undersigned concludes that it has also been demonstrated that this statutory basis for denial should no longer apply to his application for an armed security guard license.

      
      

   10. The final alleged justification upon which the Respondent based its denial of the Petitioner's application for licensure relates to the commission of fraud or willful misrepresentation in completing and filing the application for the license. Section 493.017(1)(a) [now codified as Section 493.319(1)(a)], Florida Statutes. The Petitioner's testimony throughout the proceeding was quite candid and forthright in admitting that he had been convicted of various minor offenses generally many years prior to the "armed robbery" conviction. He disclosed the armed robbery conviction on his application and in view of the passage of a great many years (twenty-five to forty) since the other much less serious offenses, it is reasonable to conclude, especially since no evidence was adduced in this record to refute the Petitioner's position, that his failure to include those petty offenses in answer to Question 13 was an oversight by either the Petitioner or the secretary who assisted in completing his application. There is also no reason shown on this record, especially in view of the obvious sincerity of the Petitioner's position and testimony, to disbelieve the Petitioner's demonstration that he disclosed verbally his entire arrest record to the best of his memory to the secretary for the security firm where he worked who filled out his application for him and that in filling out the application she simply did not include it all. Certainly no evidence was introduced to the contrary.

       
       

   11. The undersigned is thus thoroughly persuaded by the Petitioner's testimony and evidence in this cause that his criminal record depicts mistakes in the very distant past and that the unrefuted evidence adduced by the Petitioner demonstrates that the majority of the convictions were not of the serious nature the Respondent initially believed them to be. Certainly a conviction of grand larceny for the theft of a watermelon, a cinnamon roll and a can of sardines did not in and of itself indicate that the perpetrator of such a misdeed is clothed with an irretrievably reprehensible moral character, nor does the conviction of "armed robbery," which this record reveals was committed with a pipe and in conspiracy with the supposed victim of the robbery, indicate a propensity by the Petitioner to use firearms for illegal purposes or in a manner dangerous to the life or safety of another. Finally, it has been approximately nineteen years since the Petitioner's last unfortunate business with the criminal justice system. The long passage of time as well as the other uncontroverted evidence of a reformed, consistent intent to abide by and respect the laws of this state and the nation, as well as the Petitioner's demonstrated rehabilitated responsibility and citizenship in rearing and supporting a family establishes that the Petitioner has fully rehabilitated himself. He has, in the time intervening since his last conviction, consistently relied upon honesty as an unwavering personal policy in his dealings with individuals, businesses and the legal authorities of this state which he has come into contact with from time to time in everyday life.

RECOMMENDATION

In consideration of the foregoing Findings of Fact and Conclusions of Law, the candor and demeanor of the witness and the arguments of the parties it is, therefore

RECOMMENDED:

That a final order be entered by the Department of State, Division of Licensing, granting the Petitioner's application for licensure, both as an armed and an unarmed security guard.

RECOMMENDED this 7th day of August, 1981, in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 1981.

COPIES FURNISHED:

James V. Antista, Esquire Assistant General Counsel Department of State

Room 1801, the Capitol Tallahassee, Florida 32301

Mr. Curley Walker Post Office Box 619

Century, Florida 32535

Docket for Case No: 80-002298

Orders for Case No: 80-002298