STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

) CASE NO: 83-2659

vs. )

)

CARLOS HERNAN GARCIA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Sharyn L. Smith, held a formal hearing in this case on January 26, 1984, in Miami, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: James V. Antista, Esquire

Department of State, The Capitol Tallahassee, Florida 32301

For Respondent: Carlos Hernan Garcia, pro se

9380 West Flagler Street, Number 120

Miami, Florida 33130

At the final hearing, Petitioner's Exhibits 1-5 were offered and admitted into evidence. Shelly Bradshaw, testified for the Petitioner and the Respondent testified on his own behalf.

Proposed Recommended Orders containing findings of fact have been submitted by the parties and considered in the preparation of this Recommended Order. To the extent that the proposed findings of fact were consistent with the weight of the credible evidence introduced at final hearing, they were adopted and are reflected in this Recommended Order. To the extent that the findings were not consistent with the weight of the credible evidence, they have been either rejected, or when possible, modified to conform to the evidence. Additionally, proposed findings which were subordinate, cumulative, immaterial or unnecessary have not been adopted.

FINDINGS OF FACT

1. The Respondent filed a license application with the Division of Licensing, Department of State for a Class "D" Unarmed Guard License on January 27, 1983.

   
   

2. The Division of Licensing did not approve or deny the license application of Carlos Hernan Garcia within the 90-day period from the date of receipt of the application and, accordingly, by operation of Section 120.60(2),

   Florida Statutes, the Division issued to Respondent a Class "D" Unarmed Security Guard License which expires on May 14, 1983.

   
   

3. But for the operation of the 90-day rule, the Division of Licensing would not have issued the Respondent an Unarmed Security Guard License.

   
   

4. On July 17, 1983 the Division of Licensing issued an administrative complaint to revoke the license on grounds that the Respondent willfully misrepresented his criminal record in his application in violation of Section 495.319(1)(a), Florida Statutes, committed an assault and battery other than in self defense and committed criminal acts which directly relate to the business for which the license was sought in violation of Sections 493.319(1)(c) and (j), Florida Statutes.

   
   

5. On May 19, 1979, the Respondent (while intoxicated) struck a police officer who was investigating a traffic accident in which the Respondent was involved. The Respondent was convicted of assault and battery upon a police officer and received six months probation and adjudication was withheld.

   
   

6. On August 5, 1980, the Respondent was responsible for a fire which occurred in the bathroom of a restaurant during business hours for which he was convicted of criminal mischief.

   
   

7. On or about October 29, 1982, the Respondent was carrying a concealed firearm, a 25-caliber pistol, without a license or permit required by Sections

   790.05 and 790.06, Florida Statutes (1981). Following an argument which took place outside an apartment house, the Respondent shot and injured another person with the pistol. No criminal charges were brought and there was no prosecution as a result of this incident.

   
   

8. The Respondent, who reads and writes English, failed to complete question number 13 on his security guard application, pertaining to past criminal arrests and convictions, by omitting any reference to the assault and battery and criminal mischief convictions, since the Respondent knew that he could be denied a license for having committed such crimes, and knowing that the omission, if discovered, would be grounds for denial of his license.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. The Respondent Garcia has been charged with violating Sections 493.319(1)(a) and 493.319(1)(c) and (j), Florida Statutes, which set forth the grounds for disciplinary action against a licensee:

    
    

    1. The following constitute grounds

       for which disciplinary action specified in subsection (2) may be taken:

       (a) Fraud or willful misrepresentation in applying for or obtaining a license;

       * * *

       (c) Having been found guilty of the commission of a crime which directly relates to the business for which the license is held, regarless of adjudication;

       * * *

       (j) Commission of assault, battery, or kidnapping or use of force or violence on any person except in self-defense or in the defense of a client;

       
       

11. The Petitioner established by clear and convincing evidence that the Respondent violated the provisions set forth above and pursuant to Section 493.319(2)(b), Florida Statutes, the Department is authorized to, inter alia, revoke or suspend the Respondent's license.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That a Final Order be entered revoking the Class "D" license of the Respondent Carlos Hernan Garcia.

DONE and ENTERED this 15th day of March, 1984, in Tallahassee, Florida.

SHARYN L. SMITH

Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301 904/480-9675

Filed with the Clerk of the Division of Administrative Hearings this 15 day of March, 1984.

COPIES FURNISHED:

James V. Antista, Esquire Department of State

The Capitol

Tallahassee, Florida 32301

Carlos Hernan Garcia

9380 West Flagler Street, #120

Miami, Florida 33130

George Firestone Secretary of State The Capitol

Tallahassee, Florida 32301

Mary Gast, Director Division of Licensing The Capitol

Tallahassee, Florida 32301

Docket for Case No: 83-002659

Orders for Case No: 83-002659