STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RALPH L. LEIGHTON, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1617S

)

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, WILLIAM B. THOMAS, held a formal hearing in this case on October 16, 1981, in West Palm Beach, Florida. The parties reserved the right to submit proposed findings of fact and conclusions of law; they were accorded ten days within which to file the same. None were received from the Respondent. Those submitted by the Petitioner consist primarily of argument, and comments concerning the credibility and availability of the Respondent's witnesses, but such findings of fact as were proposed have been considered.

Where not adopted, they were found to be contrary to the weight of the credible evidence.

APPEARANCES

For Petitioner: Earl R. Boyce, Esquire

120 South Alive Avenue

West Palm Beach, Florida 33401

For Respondent: James V. Antista, Esquire

Room 106, R.A. Gray Building Tallahassee, Florida 32301

This matter was referred to the Division of Administrative Hearings on the Petitioner's request for a formal hearing to determine his eligibility for a Class B Private Guard or Patrol Agency license under Chapter 493, Florida Statutes. By letter dated April 8, 1981, the Licensing Division of the Department of State had notified the Petitioner that his application for a Class B license was denied for failure of the Petitioner to meet the requirement prescribed in subsection 493.306(2), Florida Statutes. Specifically, this provision permits the Department of State to refuse to license an applicant who is found to lack good moral character, under certain stated circumstances.

The Petitioner testified in his own behalf, and presented five other witnesses to support his contention that he meets the statutory requirements for a Class B license. Three additional witnesses, as well as the Petitioner, presented rebuttal evidence. The Division of Licensing presented two witnesses, and offered three exhibits which were received in evidence.

FINDINGS OF FACT

1. The Petitioner, Ralph L. Leighton, age 41, holds a Class A license issued by the Department of State, authorizing him to engage in the business of operating a private investigative agency. He has also been licensed in Tennessee, and has never been convicted of a crime. The bulk of the Petitioner's investigative work has been in the area of domestic disputes.

   
   

2. During the course of this domestic investigative work, the Petitioner was hired to do surveillance of a wife in connection with the husband's suit for divorce. Some of the facts surrounding the Petitioner's work on this case were related by a Family Conciliation Counselor for the Palm Beach County Juvenile Court, and by the wife's attorney. These facts were corroborated by the findings of the circuit court judge as recited in the final judgment of dissolution, a certified copy of which was received in evidence in this proceeding. Specifically, the court found that the Petitioner's testimony at the divorce trial was totally discredited, and that the Petitioner gave "false and misleading information" to the juvenile counselor "in an attempt to discredit the wife" whom the Petitioner had under surveillance.

   
   

3. Subsequently, the Petitioner placed an ad in a newspaper for full time and part time investigators. One of the persons who responded to this ad and was hired, testified in this proceeding. The Petitioner provided a uniform, a badge, and the work assigned was as a security guard at a local shopping mall. There were no investigative duties involved; instead, a routine patrol of the mall area was to be performed. The Petitioner himself paid the wages for the first four weeks, then another individual made the payments.

   
   

4. Another former employee of the Petitioner testified. This individual performed security guard and patrol work for the Petitioner at a local residential area. Although not uniformed, a full 100 percent of the duties assigned was spent patrolling the area, and a badge was provided by the Petitioner, as well as an identification card.

   
   

5. Both of these individuals were initially hired by the Petitioner, paid by the Petitioner, assigned security guard or patrol duties by the Petitioner, issued badges and in one case a uniform by the Petitioner. Since no investigative duties were assigned or performed, and the wearing of a uniform is inconsistent with the normal work of an investigator, but routine for a security guard or patrolman, there is sufficient evidence to support a finding that the Petitioner was engaged in the business of providing security guards. This is not authorized by a Class A license.

   
   

6. The Petitioner presented numerous character witnesses who testified generally that he is of good moral character, and other witnesses who had hired him as a private investigator and were satisfied with his work. The Petitioner himself denies that he has engaged in any work not authorized by his Class A license. However, this evidence is not sufficient to overcome the specific testimony of the Petitioner's two former employees, and the findings of the circuit court judge as recited in the divorce judgment.

   
   

   CONCLUSIONS OF LAW

   
   

7. The requirements for issuance of the Class B license sought by Petitioner are set forth in Section 493.306, Florida Statutes. Subsection (1)(b) requires each individual to be of good moral character. Subsection (2)(a) provides that good moral character "means a personal history of honesty,

   fairness, and respect for the rights of others, and for the laws of this state and nation." Subsection (2)(b)(1) permits the Department of State to refuse to license an applicant who lacks good moral character only if there is a substantial connection between the lack of good moral character and the business for which the license is sought. Subsection (2)(b)(2) of this statute further provides that the finding by the Department of lack of good moral character must be supported by clear and convincing evidence.

   
   

8. The Respondent had put the Petitioner on notice that the license sought had been denied on grounds of lack of good moral character. At the hearing, the evidence presented by the Respondent in support of its finding that the Petitioner lacked good moral character (detailed above) is clear and convincing. The evidence presented by the Petitioner did not have sufficient weight or credibility to support a contrary finding. There is also a substantial connection between the lack of good moral character and the guard or patrol agency business for which the Class B license is sought.

   
   

9. Section 493.319(1) and (2), Florida Statutes, further authorizes the Department of State to deny a license application where an applicant has been conducting business without a license. The Petitioner's Class A license permits him to operate a private investigative agency, not a guard or patrol agency for which a Class B license is required. Section 493.30(1), Florida Statutes, specifies that a private investigative agency means and includes the business of furnishing for-hire investigations. Subsection (2) of this statute states that a guard or patrol agency means and includes the business of furnishing for-hire watchman, guard or patrolman services.

   
   

10. The evidence presented by the Respondent is sufficient to demonstrate that the Petitioner has been engaged in the business of providing guard or patrol agency services not authorized by his Class A license. Thus, these services have been provided without a license, and the Department of State acted properly when it denied the Petitioner's application.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED that the application of Ralph L. Leighton for a Class B Private

Guard or Patrol Agency license, be denied.

THIS RECOMMENDED ORDER entered on this 6 day of November, 1981, in Tallahassee, Florida.

WILLIAM B. THOMAS, 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 6 day of November, 1981.

COPIES FURNISHED:

Earl R. Boyce, Esquire

120 South Alive Avenue

West Palm Beach, Florida 33401

James V. Antista, Esquire Room 106, R.A. Gray Building Tallahassee, Florida 32301

Docket for Case No: 81-001617

Orders for Case No: 81-001617