STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CURTIS DORMAN, )

)

Petitioner, )

)

vs. ) CASE NO. 85-2242S

)

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in this case on August 22, 1985, in Miami, Florida before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented as follows:

For Petitioner: Joseph C. Brannen, Esquire

6371 Southwest 36th Street Miami, Florida 33155

For Respondent: James V. Antista, Senior Attorney

Department of State, The Capitol Tallahassee, Florida 32301

At the hearing, Petitioner testified on his own behalf, and also late-filed two exhibits which have been received in evidence. Respondent introduced three exhibits. No transcript of the hearing has been filed. Petitioner applied for a Class "D" unarmed security guard license, which was denied by Respondent based upon the provisions of Section 493.319(1), Florida Statutes, and Petitioner has requested this hearing on Respondent's denial of his application.

The parties have submitted posthearing proposed findings of fact pursuant to Section 120.57(1)(b)4, Florida Statutes. A ruling on each proposed finding of fact has

been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial, or unnecessary.

FINDINGS OF FACT

1. Curtis Dorman, Petitioner, submitted his application for a Class "D" unarmed security guard license to the Department of State, Respondent, on or about March 13, 1985. The application sought information about arrests, and Petitioner indicated on the application that he had been arrested in 1961 for driving under the influence, in 1963 for buying stolen property and in 1972 for carrying a weapon. It is further shown on his application that a fine was imposed for the arrest in 1961, but that he was found not guilty of the 1972 offense, and that adjudication was withheld in the 1963 incident involving buying stolen property.

   
   

2. Respondent denied Petitioner's application based upon information it received indicating that Petitioner had been arrested twelve times between 1949 and 1982. These arrests were enumerated in a letter of denial dated May 23, 1985, and included three arrests for driving under the influence, one for drunkenness, one for prowling, two for assault, one for contempt of court, one for resisting arrest, two for carrying or possessing a concealed firearm, and one for possession of stolen property. The most recent arrest listed in the letter of denial was on March 30, 1982, for possession of stolen property. Prior to this arrest, Petitioner had not been arrested since 1974 when it was indicated that he had been arrested once each for resisting arrest and possession of a firearm. Respondent offered no evidence to support all of the matters asserted in the letter of denial, and the letter itself is not sufficient to establish the truth of the matters asserted therein.

   
   

3. Evidence received as a result of the hearing shows that Petitioner was acquitted of a 1963 charge of aggravated assault, found not guilty of carrying or possessing a concealed firearm in 1974, adjudication was withheld in 1970 on a similar charge, and he was placed on unsupervised probation for six months in 1982 resulting from his arrest for the possession of stolen property. These are the only arrests established in the record. Concerning the 1982 offense, Petitioner bought four cartoons of stolen cigarettes and was charged with grand theft, second degree. This charge was then reduced to petit theft, adjudication was withheld, and he was placed on six month's non-reporting probation.

   
   

4. Petitioner did not indicate his 1982 arrest on his application, but instead showed this offense as occurring in 1963 and that adjudication had been withheld. He testified that it was not his intent to conceal this offense when he completed his application, but that he simply made a mistake about the date. Based upon his demeanor at the hearing, Petitioner's testimony in this regard is credible. It is unlikely he would have intentionally misrepresented the date of this offense and still correctly revealed the offense itself and its disposition.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case.

   
   

6. Respondent cited the following provisions of Section 493.319(1), Florida Statutes, as grounds for denial of Petitioner's application for licensure:

   
   

   493.319 Grounds for disciplinary action.

   1. The following constitute grounds for which disciplinary action specified in subsection (2) may be taken:

      1. Fraud or willful misrepresentation in applying for or obtaining a license;

   * * *

   (c) Having been found guilty of the commis- sion of a crime which directly relates to

   the business for which the license is held, regardless of adjudication;

   * * *

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

   
   

   Subsection (2) of Section 493.319, Florida Statutes, authorizes Respondent to deny a license application based upon any violation of subsection (1). Therefore if the evidence shows that any one of the violations enumerated above occurred, Respondent may deny Petitioner's application.

7. However, the evidence does not show that Petitioner violated any of the provisions of Section

493.319 cited by Respondent. There is no evidence that Petitioner fraudulently or willfully misrepresented information on his application. He did make a mistake about the date of his most recent arrests hut this was unintentional. He did not list all of the arrests which Respondent set forth in its letter of denial, but Respondent offered no evidence to support or establish all of these additional arrests and therefore no finding of fact has been made regarding them. Similarly, there is no evidence that he actually committed an assault, battery or used force or violence on any person, other than that he was charged with, and acquitted of, assault and fighting. However, arrest alone does not constitute a violation of Section 493.319(1)(j). Adjudication of guilt was withheld in 1982 with regard to the four cartons of stolen cigarettes that Petitioner purchased, but no evidence was presented that Petitioner was ever found guilty of a crime which "directly relates" to the business for which he now seeks a license.

RECOMMENDATION

Based upon the foregoing it is recommended that Petitioner's application for a Class "D" unarmed security guard license be granted.

DONE and ENTERED this 13th day of September 1985, at Tallahassee, Florida.

DONALD D. CONN

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 13th day of September, 1985.

COPIES FURNISHED:

James C. Brannen, Esquire 6371 Southwest 36th Street Miami, Florida 33155

James V. Antista, Esquire Department of State

The Capitol

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AGENCY FINAL ORDER

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STATE OF FLORIDA DEPARTMENT OF STATE

CURTIS DORMAN,

Petitioner,

vs. DOAH Case No. 85-2242S

DEPARTMENT OF STATE DIVISION OF LICENSING,

Respondent.

/

ORDER

This cause was heard by Hearing Officer Donald D. Conn on August 22, 1985 and a Recommended Order was entered on September 13, 1985. The purpose of the hearing was to resolve disputed issues of fact regarding the Petitioner's Criminal History record and the agency's denial of Petitioner's application for license as an unarmed guard.

Accordingly, pursuant to Section 120.57(9), Florida Statutes, the Hearing Officer's Findings of Fact are adopted and incorporated herein. The Hearing Officer's Conclusions of Law are adopted except as modified herein.

The record in this case reveals that the Petitioner's most serious criminal offense is a petty theft conviction in 1982, not a grand theft charge as previously set forth in the agency's denial letters. Although the Department generally considers any offense involving the theft or misappropriation of property to be directly related to licensure as a security guard, we find here under the circumstances set forth in this record that denial of license is not warranted. Petitioner's involvement in the petty theft offense was ancillary and incidental and does not preclude licensure as a security guard.

Wherefore, the Hearing Officer's Recommendation to grant the Petitioner's application for a Class "D" unarmed security is adopted and the Division of Licensing shall approve the application and issue the license.

It is so ordered on this 9th day of December, 1985.

State

Thomas E. Gardner Assistant Secretary of

Filed with Agency Clerk

on this 9th day of December, 1985.

LIZ CLOUD

Agency Clerk

Docket for Case No: 85-002242

Orders for Case No: 85-002242