STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LUTHER B. ROSS, )

)

Petitioner, )

)

vs. ) CASE NO. 85-3585S

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

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided, and on February 4, 1986, a formal hearing was held in this cause. The location of the hearing was Jacksonville, Florida. Counsel for the parties were afforded an opportunity to offer proposed recommended orders. They have not availed themselves of that opportunity.

APPEARANCES

For Petitioner: G.E.B. Williams, I, Esquire

1628 San Marco Boulevard, Suite 2

Jacksonville, Florida 32207

For Respondent: James V. Antista, Esquire

Senior Attorney Department of State The Capitol

Tallahassee, Florida 32301 ISSUES

The issues concern the question of whether Petitioner should be granted a Class "M" license, manager of a watchman, guard or patrol agency, as envisioned by Chapter 493, Florida Statutes.

FINDINGS OF FACT

1. Petitioner made application to the Respondent for the grant of a Class "M" license related to service as an office manager. Consideration of this application was in accordance with Chapter 493, Florida Statutes.

   
   

2. Having reviewed the application, Respondent decided to deny the request. The stated authority for denial included Section 493.319(1)(f), Florida Statutes, through the contention that the Petitioner was guilty of fraud or deceit, or of negligence, incompetency, or misconduct in the practice of his business for which a license was held. Further, the decision to deny was based upon an alleged problem with Section 493.306(2)(b), Florida Statutes, in that Petitioner was said to be lacking in good moral character, on the belief that there was a substantial connection between the reputed lack of good moral character and the business for which the license was being sought and based upon the opinion that the denial for reasons of lack of good moral character was supported by clear and convincing evidence. In particular, the alleged factual basis for this denial was:

   
   

   1. The records of the Respondent indicated that Petitioner had an outstanding debt, an administrative fine which was owed to the Department in the claimed amount of $1,600.

      
      

   2. The Petitioner's Class "A" and "B" agencies, Ross Detective Agency and Ross Security Patrol Agency, respectively, had been closed by the Internal Revenue Service and the Florida Workman's Compensation agency and the Internal Revenue Service had filed liens against the applicant's bank account and/or assets.

      
      

3. Petitioner did not accept the denial and requested a formal 120.57(1), Florida Statutes, hearing. The matter was transmitted to the Division of Administrative Hearings and a hearing officer was assigned. On February 4, 1986, the formal hearing was conducted to consider the dispute between the parties.

   
   

4. While Respondent held Class "A," "B" and "C" licenses issued pursuant to Chapter 493, Florida Statutes, an administrative complaint was brought against him by the Respondent. The allegations of the complaint dealt with alleged conduct on the part of employees of the Respondent in the licensed business, having to do with being on duty without possession of identification cards within the meaning of Section 493.311(4), Florida Statutes; the failure of certain security guards employed by the Respondent to possess Class "G" licenses while on duty; certain security guards being employed by the Respondent not having possession of Class "D" licenses while on duty; and the

   failure of the Respondent to have a disclosure notice posted in a conspicuous place in his principal place of business. In the face of this complaint, Respondent requested an informal hearing by completion of an election of rights form on February 24, 1984.

   This request was in accordance with the terms of Section 120.57(2), Florida Statutes. The informal hearing was held on July 6, 1984, in Jacksonville, Florida. Respondent was represented by counsel in that matter. Following the conduct of the informal hearing, a final order was entered by the Respondent in this cause fining the Petitioner in this action $2,200 for the several violations found. That final order dates from February 22, 1985. A copy of the final order may be found as Respondent's Exhibit 2 admitted into evidence.

   
   

5. Prior counsel to the Petitioner in this cause was provided a copy of the February 22, 1985 final order. Although Petitioner is aware that he fines are outstanding, he has yet to pay the fines.

   
   

6. Having not received payment of the fines, the Respondent in this action brought a case against the present Petitioner related to Petitioner's Class "A," "B," "C" and "G" licenses seeking the suspension of those licenses pending the payment of the $2,200 in fines which had been imposed. The date of this complaint is April 5, 1985. A copy of the complaint is found as Respondent's Exhibit 1 admitted into evidence.

   
   

7. Petitioner requested a formal hearing in the matter of the suspension case of April 5, 1985. The Respondent agency being of the opinion that the present Petitioner had not made a timely request for hearing, on April 30, 1985, it entered a final order suspending the various categories of licenses held by the Petitioner pending the payment of the outstanding $2,200 in fines. That suspension would end upon the expiration of the present Petitioner's license terms, provided the payment of the fines had not occurred in the interim. A copy of this final order may be found as Respondent's Exhibit 3 admitted into evidence.

   
   

8. Effective February 22, 1985, the present Petitioner owed the Respondent $2,200 in fines. No appeal was taken from that final order and the fines remain in force and effect. Whether the present Petitioner made a timely request for formal hearing in the action seeking his suspension for nonpayment of the fines and whether the suspension should have been imposed by final order are not relevant to the questions raised by the present application for Class "M" license. It is the failure to render payment for the fines that forms the basis of denial of the application, not

   the idea of suspension. The imposition of the fines relates to Petitioner's conduct in the practice of his business associated with the licenses he held under Chapter 493, Florida Statutes. The violations for which he was fined shows the Petitioner to be lacking in good moral character and this lack of good moral character continues with the nonpayment of the administrative fines.

   
   

9. Petitioner's Class "B" license has been voluntarily placed in an inactive status pending the collection of taxes by the Internal Revenue Service. The exact status of the Class "A" license is not apparent. Petitioner at present works for the New Dawn security agency, a Class "B" agency. He has worked there since bay 1985 dealing with contractual matters of that agency and going to job sites, coordinating and supervising and filling in for security guards. New Dawn is an agency owned by the Petitioner's son. The evidence does not reveal that the Internal Revenue Service has closed down the Ross Detective Agency and Ross Security Patrol Agency related to the Petitioner's Class "A" and "8" licenses.

   
   

10. Petitioner has made an arrangement with the Internal Revenue Service to use funds which his various businesses had earned in government jobs, totaling some $106,000, to satisfy obligations which the Petitioner has with the Internal Revenue Service. The amount of money owed to the Internal Revenue Service is $48,000. Some of that obligation has been satisfied. This collection process may have been instituted following the placement of a lien, but that is not clear from the facts in this record.

    
    

11. The record does not reveal that the Petitioner had liens placed against his businesses by the Florida Workman's Compensation agency. In his testimony, Petitioner indicated that he did not owe the Workman's Compensation agency any money.

    
    

12. Petitioner's involvement with the Internal Revenue Service and Florida Workman's Compensation agency has not been proven to constitute any form of fraud or deceit, negligence, incompetency or misconduct in the practice of his business or does not reveal lack of good moral character, based upon the hearing record in this case.

    
    

13. Petitioner had otherwise qualified to gain licensure, but for the concerns expressed in the statement of denial.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

15. Petitioner has requested the grant of a Class "M" license as contemplated by Section 493.304(10), Florida Statutes. Respondent has stated its intent to deny the license application because Petitioner is said to have violated provisions related to grounds for disciplinary action. See Section 493.19(2)(a), Florida Statutes. In this instance, Respondent believes that Petitioner has been found to be in violation of Section 493.319(1)(f), Florida Statutes, related to proof that the applicant is guilty of fraud or deceit, negligence, incompetency, or misconduct in the practice of business for which he has held a license. Moreover, the Respondent feels that Section 493.319(1)(p), Florida Statutes, has been violated and can be used as a basis for denying the license. That latter provision relates to violation of other sections of Chapter 493, Florida Statutes. The Respondent has in mind Section 493.308(2)(b)1. and 2., Florida Statutes. It describes the ability of the Department to refuse to license persons lacking in good moral character in those instances in which there is some substantial connection between the lack of good moral character of the applicant and the business for which he is seeking licensure, wherein lack of good moral character can be shown by clear and convincing evidence.

    
    

16. In his capacity as a license holder related to Class "A" and "8" and "C" licenses, the present Petitioner was fined administratively. Some of those fines specifically pertain to violations of Section 493.3l9(1)(f), Florida Statutes. Those events are compounded by the circumstance in the present case in which his failure to pay the administrative fines totaling $2,200 magnifies the quality of the misconduct. This past violation of Section 493.3l9(1)(f), Florida Statutes, and recalcitrance in paying the fines form a sufficient basis for denying Petitioner's application for license as envisioned by Section 493.319.(2)(a), Florida Statutes. Violations by the Petitioner while operating under the aforementioned licenses and the failure to pay the fines levied also demonstrate his lack of good moral character in a clear and convincing way, per Section 493.306(2)(b)1. and 2., Florida Statutes. However, reference by the Respondent to Section 493.319(1)(p), Florida Statutes, dealing with the violation of any provision of the chapter as forming a basis for denial of the license contemplated in Section 493.319(2)(a), Florida Statutes, does not pertain to Section 493.306(2)(b)1. and 2., Florida Statutes. This latter provision speaks to requirements for

    licensure separate and apart from disciplinary matters. Section 493.306(2)(b)1. and 2., Florida Statutes, is self effectuating in that, by its own terms, it allows the Respondent to refuse licensure in those instances in which the applicant was found to be lacking in good moral character.

    
    

17. Petitioner's involvement with the Internal Revenue Service and Florida Workman's Compensation agency is not deemed to be such that his application for licensure should be denied.

Based upon the facts found and the conclusions of law reached, it is,

RECOMMENDED:

That the Petitioner's request for licensure as a Class "M" license holder within the meaning of Chapter 493, Florida Statutes, be denied.

DONE AND ENTERED this 25th day of March, 1986, at Tallahassee, Florida.

COPIES FURNISHED:

G.E.B. Williams, I, Esquire 1628 San Marco Boulevard Suite 2

Jacksonville, Florida 32207

James V. Antista, Esquire Senior Attorney Department of State

The Capitol

Tallahassee, Florida 32301

Honorable George Firestone Secretary of State

State of Florida The Capitol

Tallahassee, Florida 32301

CHARLES C. ADAMS

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 March, 1986.

Docket for Case No: 85-003585

Orders for Case No: 85-003585