STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN R. EKBERG, )

)

Petitioner, )

)

vs. ) CASE NO. 85-0680S

) FLORIDA DEPARTMENT OF STATE, ) DIVISION OF LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was conducted on July 9, 1985, at Miami, Florida, before, Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

For Petitioner: Daniel A. Wick, Esquire

2720 W. Flagler Street Miami, Florida 33135

For Respondent: James V. Antista, Esquire

Senior Attorney

Florida Department of State LL-10, The Capitol Tallahassee, Florida 32301

INTRODUCTION

This is a case in which the Department of State initially proposed to deny Mr. Ekberg's application for a Class "D" unarmed guard license and a Class "G" armed guard license. The reasons for the proposed denials were that Mr. Ekberg had engaged in fraud or willful misrepresentation in the applications and had been found guilty of the commission of a crime which directly relates to the business for which the licenses were sought.

Specifically, the Department of State believed that Mr.

Ekberg had been convicted of the crime of extortion and that Mr. Ekberg had willfully misrepresented in the application that he had never been convicted of a crime.

Following the formal hearing the parties were given 30 days within which to file proposed recommended orders with the Hearing Officer. Mr. Ekberg filed a timely proposed recommended order. The Department of State has apparently waived its right to file any post-hearing submissions to the Hearing Officer.

FINDINGS OF FACT

Based on the stipulations and admissions of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, I make the following findings of fact.

1. When Mr. John R. Ekberg applied for Class "D" and a Class "G" licenses, the only reason the Department of State proposed to deny the licenses was its belief, on the basis of records it had obtained, that Mr. Ekberg had been convicted of extortion and had failed to disclose the conviction on the application. Mr. Ekberg meets all of the requirements for issuance of the subject licenses if he has not been convicted of a crime.

   
   

2. In October of 1957 the State Attorney in Dade County filed a criminal information charging Mr. Ekberg with the crime of extortion. On March 6, 1958, Judge Ben

   O. Willard signed a judgment document which stated that Mr. Ekberg was convicted of the crime of extortion. That document also stated that "the passing of sentence be and the same is hereby suspended from day to day and term to term until the further order of this Court."

   
   

3. On September 8, 1959, Judge Willard vacated the judgment which had been previously entered and on that same date the State Attorney announced "Nolle Pros" and the information against Mr. Ekberg was dismissed. Mr. Ekberg was not convicted of extortion on the 1957 criminal information because that case was dismissed. Mr. Ekberg has never been convicted of any other crime.

   
   

4. On February 14, 1985, Mr. Ekberg filed a Defendant's Motion To Expunge and Seal Court Record in the Circuit Court in and for Dade County, in which he requested

that all of the court and police records regarding his arrest for extortion be expunged and sealed. On April 15, 1985, the motion was granted and an order was entered expunging and sealing the court and police records regarding Mr. Ekberg's arrest for extortion.

CONCLUSIONS OF LAW

Based on the foregoing findings of fact and on the applicable statutes, rules, and court decisions, I make the following conclusions of law.

1. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sec. 120.57, Fla. Stat.

   
   

2. Section 943.058(6)(b), Florida Statutes, states, in pertinent part (with exceptions not relevant here):

   
   

   When all criminal history records, except for records retained under seal by the courts or the Department of Law Enforcement, have been expunged, the subject of said records may lawfully deny or fail to acknowledge the events covered by the expunged or sealed records. . . .

   
   

3. The above-cited statutory provision goes on to state:

   
   

   [N]o person as to whom an expunction or sealing has been accomplished shall be held thereafter under any provision of law of this state to be guilty of perjury or to be otherwise liable for giving a false statement by reason of such person's failure to recite or acknowledge expunged or sealed criminal history records.

   
   

4. By reason of his having obtained the order expunging and sealing the court and police records regarding the extortion charge, and by operation of the foregoing statutory provisions, it was proper and lawful for Mr. Ekberg to state on the applications for the subject licenses that he had never been arrested or convicted of a crime. Such being the case, Mr. Ekberg is eligible for and should be issued the subject licenses.

RECOMMENDATION

Based on all of the foregoing, I recommend the entry of a Final Order granting to Mr. Ekberg the Class "D" and Class "G" licenses he has applied for.

DONE AND ORDERED this 14th day of August, 1985, at Tallahassee, Florida.

Hearings

Hearings

MICHAEL M. PARRISH

Hearing Officer

Division of Administrative

The Oakland Building 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative

this 14th day of August, 1985.

COPIES FURNISHED:

James V. Antista, Esquire Senior Attorney Department of State

LL-10, The Capitol, Tallahassee, Florida 32301

Daniel A. Wick, Esquire 2720 W. Flagler Street Miami, Florida 33135

Honorable George Firestone Secretary of State

The Capitol

Tallahassee, Florida 32301

Docket for Case No: 85-000680

Orders for Case No: 85-000680