STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES A. DETZEL, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2847S

)

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 January 14, 1982, in Tampa, Florida.

APPEARANCES

For Petitioner: Richard S. Blunt, Esquire

112 South Armenia Avenue Tampa, Florida 33609

For Respondent: James V. Antista, Esquire

R.A. Gray Building, Room 106 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 E (Repossessor) License under Chapter 493, Florida Statutes. By letter dated September 30, 1981, the Licensing Division of the Department of State had notified the Petitioner that his application for a Class E 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 circumstances.

The Petitioner testified in his own behalf, and presented four other witnesses to support his contention that he presently meets the statutory requirements for a Class E license, including the Parole and Probation Officer to whom the Petitioner's case had been assigned, the Petitioner's present employer and one of his former employers, and the Petitioner's wife. The Division of Licensing presented no witnesses. Twelve exhibits were offered and received in evidence, two on behalf of the Petitioner and ten on behalf of the Division of Licensing.

FINDINGS OF FACT

1. The Petitioner, James A. Detzel, age 40, was born in Miami, Florida, and he lived there until sometime during his junior high school years when he went into the United States Marine Corps. He subsequently earned and received a GED diploma from high school.

   
   

2. At age 19 the Petitioner began to get into trouble with the law. He was arrested and convicted in Atlanta, Georgia, for armed robbery in 1960, and served a two year sentence. Between this occurrence and the year 1968 he was arrested and convicted three more times, for robbery, escape while serving the robbery sentence, and for possession of burglary tools. In 1968 the Petitioner was arrested for breaking and entering-grand larceny in Dade County, Florida, and sentenced to 15 years. He served nine and one-half years, and received a conditional release in 1976. A conditional release is the same as parole, but the Petitioner had previously violated parole and was not again eligible to receive parole. Thus, he received the conditional release. In October of 1981, the Petitioner's conditional release was terminated, after it had been satisfactorily completed.

   
   

3. During the years, the Petitioner has also been arrested and convicted of breaking and entering-petit larceny, receiving stolen property, and larceny of an automobile. At the present time, however, he has paid his debts to society on all of these charges. Nevertheless, the Petitioner has not yet had his civil rights restored, although he is apparently eligible to apply therefor.

   
   

4. The Petitioner contends that he has been rehabilitated, and thus is now eligible to be licensed as a repossessor. He is married and has two children. He is buying a home in Tampa. He has been steadily employed since 1976, and is now working as repossessor in Tampa. His employers have found him to be reliable and trustworthy employee. The Petitioner has not been in any trouble with the law since 1968, and he has a satisfactory work record since his release from prison.

   
   

5. The Petitioner has been honest and loving with his wife and family. He is a changed man now, his wife contends, and is a good family provider. The Petitioner's Parole Officer confirms that his life seems to have become stabilized now.

   
   

   CONCLUSIONS OF LAW

   
   

6. The requirements for issuance of the Class E license sought by the 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.

7. The Respondent had put the Petitioner on Notice that the license sought had been denied on ground of lack of good moral character. At the hearing, the totality of the evidence presented by the Petitioner, and by the exhibits offered and received in evidence, demonstrate that, until the year 1976 or 1977, the Petitioner had a disrespect for the law and for the rights of others. This constitutes clear and convincing evidence of the Petitioner's lack of good moral character up to approximately 1977. Moreover, there is a substantial connection between this lack of good moral character and the business of repossessing private property, due to the opportunity to violate personal and property rights during the course of this work.

   
   

8. Since 1977, however, the evidence demonstrates a significant change in the Petitioner's life. If he were to be restored to his full civil rights, he might be considered to now be eligible for the Class E license he seeks. However, licensure under the provisions of Chapter 493, Florida Statutes, is a privilege, not a right, and the Petitioner is not eligible to receive all the privileges of citizenship while the disabilities of a felony conviction remain unremoved.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED that the application of James A. Detzel for a Class E

(Repossessor) License, be denied.

THIS RECOMMENDED ORDER entered on this 5 day of February, 1982.

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 5th day of February, 1982.

COPIES FURNISHED:

Richard S. Blunt, Esquire

112 South Armenia Avenue Tampa, Florida 33609

James V. Antista, Esquire Room 106

1. Gray Building Tallahassee, Florida 32301

   ================================================================= AGENCY FINAL ORDER

   =================================================================

   
   

   STATE OF FLORIDA DEPARTMENT OF STATE

   
   

   JAMES A. DETZEL,

   
   

   Petitioner,

   
   

   vs. DOAH CASE NO. 81-2847S

   
   

   DEPARTMENT OF STATE, DIVISION OF LICENSING,

   
   

   Respondent.

   /

   
   

   FINAL ORDER

   
   

   This cause was heard by a duly designated Hearing Officer of the Division of Administrative Hearings pursuant to Chapter 120, Florida Statutes. As a result of said hearing, the Hearing Officer submitted a Recommended Order which included Findings of Fact and Conclusions of Law. Furthermore, in accordance with Section 120.57(1)(b)(8), Florida Statutes, the Department of State has allowed each party at least ten days in which to submit written exceptions to the Recommended Order; Exceptions were filed by the Petitioner.

   
   

   Petitioner excepts to the Hearing Officer's Conclusions of Law that:

   
   

   1. Petitioner showed disrespect for the law until 1976 or 1977, and

      
      

   2. Petitioner is not entitled to receive a license under Chapter 493, Florida Statutes, until his civil rights are restored.

The first point is well taken in that Petitioner's last infraction of the law was his 1972 parole violation. The time spent incarcerated on that account is not necessarily time during which he had no respect for the law. A finding that he had a bad prison record might support this conclusion, but not such finding was made.

The second point is likewise well taken. The loss of civil rights occasioned by a felony conviction does not automatically prohibit the issuance of a permissive license by the State (See Fla. Jur. 2d, Criminal Law, Section 1627), although the conviction may be grounds to deny such a license. The Department has never and does not now take the position that restoration of civil rights is a prerequisite to being issued any class of license under Chapter 493, Florida Statutes, except a Class "G" license (gun permit). See Section 790.23, Florida Statutes (1981).

Accordingly, the Department adopts as its own the Findings of Fact contained in the Recommended Order; rejects the conclusion that Petitioner showed disrespect for the law until 1976 or 1977 and the conclusion that the

Department may deny a Class "E" license because the applicant has not had his civil rights restored after a felony conviction; and adopts as its own the remaining Conclusions of Law in the Recommended Order.

However, the Department nevertheless concludes that Petitioner's criminal history prior to 1972 is directly related to the license sought [Section 493.319(1)(c), Florida Statutes (1981)], in that his convictions involved crimes against property, particularly automobiles, which are the mainstay of a repossessor's business.

Wherefore, based upon the Findings of Fact and modified Conclusions of Law, IT IS ORDERED THAT:

The denial of Petitioner's Class "E", Repossessor's, License be upheld. DONE AND ORDERED at Tallahassee, Florida, this 30th day of March 1982.

Thomas E. Gardner

Assistant Secretary of State

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of this Final Order has been sent by U. S. Mail this 30th day of March 1982 to Mr. James A. Detzel, 3613 Whisperbreath Lane, Tampa, Florida 33619 and to Richard S. Blunt, Esquire, 112 South Armenia Avenue, Tampa, Florida 33609.

Stephen Nall, General Counsel Department of State

The Capitol

Tallahassee, Florida 32301

(904) 488-3680

Docket for Case No: 81-002847

Orders for Case No: 81-002847