STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KARL HARRY WILSON, )

)

Petitioner, )

)

vs. ) CASE NO. 82-825S

)

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for administrative hearing before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings on April 28, 1982, in Ft. Lauderdale, Florida.

APPEARANCES

For Petitioner: No Appearance

For Respondent: Stephan Nall, Esquire

General Counsel State of Florida Department of State The Capitol

Tallahassee, Florida 32301

This proceeding was initiated on the Petitioner's application for a class "G" armed security guard license filed January 15, 1982. By letter of February 15, 1982, the Respondent informed the Petitioner of its intent to deny the application for license and advised him of his right to seek a hearing pursuant to Section 120.57(1), Florida Statutes. The Petitioner availed himself of that right and the instant proceeding was noticed and scheduled. The hearing convened as scheduled. The undersigned, as well as counsel for the Respondent and Respondent's witness, remained at the hearing room for approximately one hour and the Petitioner failed to appear. The Undersigned entered the fact of the Petitioner's default in the record and the hearing was adjourned. On July 7, 1982, the undersigned received a letter from the Petitioner in which he expressed the view that he had been "invited" to attend a hearing which he thought was scheduled apparently anytime between 2:00 p.m. and 5:00 p.m. on the date in the notice and maintained that he had arrived at the hearing room at 3:35 p.m., after the hearing's adjournment. The letter was treated by the undersigned as a motion to reopen the proceeding and indeed in the letter the Petitioner requested another hearing. The Respondent has filed a response to the "motion" which will be disposed of hereinbelow.

FINDINGS OF FACT

1. The proceeding came on for hearing on the Petitioner's application for an armed security guard license. The Respondent, Department of State/Division of Licensing, is an agency of the State of Florida having jurisdiction over the licensing and regulation of security guards. The Respondent, on February 15, 1982, served notice on the Petitioner that it intended to deny his application for license, the Petitioner requested a hearing and the cause was set for hearing as delineated in the notice.

   
   

2. Upon timely convening the hearing at 2:00 p.m. on April 28, 1982, the Petitioner failed to appear. The undersigned and the Respondent and the Respondent's witness remained in the hearing room for approximately one hour in hopes that the Petitioner might appear. The Petitioner failed to appear. The undersigned entered on the record the fact of the Petitioner's default and the fact that all concerned remained in the hearing room awaiting the Petitioner's arrival for approximately one hour. Thereupon the hearing was adjourned.

   
   

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

   
   

4. In view of the above findings of fact concerning the Petitioner's failure to appear at the hearing, his failure to request a continuance or otherwise inform the undersigned and the Respondent that the time and date set in the notice for hearing, which he clearly had adequate knowledge of, was inconvenient, it is concluded by the undersigned that the Petitioner has defaulted and that the petition should be dismissed. This is particularly appropriate inasmuch as the Petitioner failed for longer than a month subsequent to the scheduled hearing to request a reopened proceeding.

   
   

5. On approximately June 4, 1982, a "motion" in the form of a letter to reopen the proceeding was filed by the Petitioner alleging that he had arrived at the hearing room at 3:35 p.m. He maintained that he felt that anytime between 2:00 p.m. and 5:00 p.m. on that day would be appropriate to appear at the hearing. The Petitioner acknowledged in that letter motion, as he had previously, that he had notice of the hearing. The notice unequivocally states that the hearing would be held at 2:00 p.m., April 28, 1982. The Petitioner, in his motion alleges no good cause for his failure to appear at the hearing, other than his work schedule, and the undersigned received no correspondence, motion or other communication from the Petitioner prior to the hearing requesting that it be set at a later time or a different date. In response to the motion by the Petitioner, the Respondent argues that it is unreasonable and an undue burden on the public treasury to repeat the hearing process when no good cause for the Petitioner's failure to appear has been shown and when there is no question that the Petitioner had adequate and timely notice of the hearing.

   
   

6. Accordingly, it is concluded that since the Petitioner failed to appear at the hearing and present evidence that the petition should he dismissed and further that the motion to reopen the proceeding should be denied for the above enunciated reasons. Rule 28-5.211 and Rule 22I-2.22, Florida Administrative Code.

RECOMMENDATION

Having considered the foregoing findings of fact and conclusions of law, it is therefore

RECOMMENDED:

That the petition of Karl Harry Wilson be DISMISSED.

DONE and ENTERED this 22nd day of July, 1982 at Tallahassee, 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 22nd day of July, 1982.

COPIES FURNISHED:

Mr. Karl Harry Wilson Aquarius Restaurant Aquarius Condominium Route A1A

2751 South Ocean Drive Hollywood, Florida 33019

Stephan Nall, Esquire General Counsel Department of State The Capitol

Tallahassee, Florida 32301

Donald Hazelton, Director Division of Licensing Department of State Winchester Building Tallahassee, Florida 32301

The Honorable George Firestone Secretary of State

Department of State The Capitol

Tallahassee, Florida 32301

Docket for Case No: 82-000825

Orders for Case No: 82-000825