STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 84-0831

)

STUART PHILLIP COON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal evidentiary bearing was held in this case on August 23, 1984, in Miami, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances at the hearing were as follows:

For Petitioner: James V. Antista, Esquire

Senior Attorney

Department of State, The Capitol Tallahassee, Florida 32301

For Respondent: Mr. Stuart Phillip Coon, pro se

134-64 Southwest 90th Terrace Miami, Florida 33186

INTRODUCTION

This is a license revocation case in which the Department of State, Division of Licensing, seeks to revoke the Class "D" and Class "G" licenses issued to Stuart Phillip Coon on the basis of the licensee's having been convicted of larceny.

At the commencement of the hearing the Respondent made an oral request for a continuance on the grounds that he wished to retain legal counsel and that two witnesses he wished to call were not available. The Petitioner objected to the motion for continuance on the grounds that the Respondent had recently agreed to the withdrawal of his counsel of record and that the Respondent had not shown the existence of any extreme emergency to justify a request for a continuance of the case on the day of the hearing, citing Rule 28-5.210, Florida Administrative Code. The Petitioner also agreed to permit the Respondent to file post-hearing written statements signed by the two absent witnesses, inasmuch as the Respondent intended to call those witnesses solely as character witnesses and not to dispute the fact that Respondent had been convicted of larceny. The request for continuance was denied and the hearing proceeded as scheduled.

At the hearing the Petitioner offered six exhibits and the Respondent offered one exhibit. All of the exhibits were received in evidence. The Petitioner presented the testimony of one witness, Pam Pingree. The Respondent presented the testimony of one witness, Norma S. Coon (his mother).

Subsequent to the hearing the Petitioner filed proposed findings of fact and conclusions of law and the Respondent filed a statement signed by one of his character witnesses. The post-hearing submissions of the parties have been given careful consideration in the formulation of the findings of fact and conclusions of law which follow.

FINDINGS OF FACT

1. Based on the exhibits received in evidence and the testimony of the witnesses, I make the following findings of fact.

   
   

2. The Respondent holds a Class "D", unarmed security guard license, No. GD-0106713, which was most recently renewed on July 3, 1983. The Respondent also holds a Class "G", statewide gun permit (armed security guard license) , No. GG-0025231, which was issued on July 3, 1983.

   
   

3. The Division of Licensing of the Department of State did not approve or deny the Respondent's application for a Class "G" license within a 90-day period from the date of receipt of the application and, accordingly, by operation of Section 120.60(2), Florida Statutes, the Division was required to, and in fact did, issue a Class "G" license to the Respondent.

   
   

4. Except for the operation of the 90-day provision in Section 120.60(2), Florida Statutes, the Division of Licensing would not have issued the Respondent a statewide gun permit because of the Respondent's criminal record. For the same reason, it was a mistake for the Division of Licensing to renew the Respondent's Class "D" license in 1983.

   
   

5. On February 28, 1977, the Respondent was arrested on the roof of a department-store and charged with burglary, to which he entered a plea of nolo contendre. Adjudication was withheld and the Respondent was placed on probation for 5 years.

   
   

6. During the summer of 1980, the Respondent and two of his friends apprehended two thieves who had stolen some personal property from a vehicle. Later, the Respondent appeared in court to testify against the two thieves.

   
   

7. On April 15, 1981, the Respondent was arrested for grand larceny. On November 9, 1981, the Respondent entered a plea of guilty to a larceny charge of failing to redeliver a hired motor vehicle. Adjudication was withheld and the Respondent was placed on probation for one year.

   
   

   CONCLUSIONS OF LAW

   
   

8. Based on the foregoing findings of fact, applicable statutory provisions, and legal principles, I make the following conclusions of law.

   
   

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

10. Section 493.319, Florida Statutes, provides as follows in pertinent part:

    
    

    (1 ) The following constitute grounds for which disciplinary action specified in sub- section (2) may be taken:

    * * * * * * * * *

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

    * * * * * * * * *

    1. When the department finds any violation of subsection (1), it may do one or more of the following:

       1. Deny an application for licensure.

       2. Revoke or suspend a license.

       3. Impose an administrative fine not to exceed $1,000 for every count or separate offense.

       4. Issue a reprimand.

       5. Place the licensee on probation for a period of time and subject to such conditions as the department may specify.

    2. Upon revocation or suspension of a license, the licensee shall forthwith return the license which was suspended.

    
    

11. The crime of larceny by failure to return a hired motor vehicle is a form of theft and therefore is a crime which directly relates to the business for which a security guard license is held. A security guard licensee is entrusted with the responsibility of guarding persons and property. The Respondent's conviction for theft indicates a disrespect for the property rights of others which renders him unfit and unqualified to hold a security guard license.

    
    

12. For the reasons which follow, the evidence offered in mitigation of Respondent's conviction for larceny is insufficient to support a conclusion that Respondent is nevertheless fit and qualified to hold a security guard license. First, the testimony of Respondent's mother was insufficient to support her contention that Respondent was not guilty of the larceny charges for which he was convicted. Second, the written statement by H. O'Neal, which concludes that Respondent "... had become a good citizen," is based on a single good deed performed by Respondent prior to Respondent's arrest and conviction for larceny. Finally, the mitigation evidence offered by Respondent is outweighed by the background evidence offered by Petitioner, which establishes,

inter alia, that Respondent has also been convicted for burglary.

RECOMMENDATION

Based on the foregoing it is recommended that the De- partment of State issue a Final Order which (a) Would revoke Respondent's Class "D" and Class "G" licenses and (b) would order Respondent to forthwith return such licenses to the Department of State.

DONE and ORDERED this 25th day of September, 1984, at Tallahassee, Florida.

MICHAEL M. PARRISH

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of September, 1984

COPIES FURNISHED:

Honorable George Firestone Secretary of State Department of State

1801 The Capitol

Tallahassee, Florida 32301

James V. Antista, Esquire Senior Attorney Department of State

The Capitol

Tallahassee, Florida 32301

Mr. Stuart Phillip Coon 12824 Southwest 114 Terrace

Miami, Florida 33183

Docket for Case No: 84-000831

Orders for Case No: 84-000831