STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 88-1404

)

JAMES E. MEADE, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held on July 5, 1988, in Orlando, Florida, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

The parties were represented as follows:

For Petitioner: R. Timothy Jansen, Esquire

Assistant General Counsel Department of State Division of Licensing

The Capitol

Tallahassee, Florida 32399-0250

For Respondent: James E. Meade, Jr., pro se

8425 Mattituck Circle

Orlando, Florida 32825

On February 25, 1988, Petitioner served an Administrative Complaint alleging that Respondent allowed an unlicensed individual, Enrique Bonet, to conduct a firearm training class and sign Respondent's name to the ensuing certificate of completion in violation of Section 493.319(1)(f) and (p), Florida Statutes.

By letter dated March 15, 1988, Respondent requested a formal hearing.

At the hearing, Petitioner presented three witnesses and offered into evidence three exhibits. Respondent presented one witness, himself, and offered no exhibits. All exhibits were admitted, except Petitioner's Exhibit 2, which, together with Mr. Chastain's testimony concerning the statements of Mr. Bonet, are inadmissible as hearsay.

Petitioner filed a proposed recommended order. The transcript was filed on August 3, 1988. Treatment accorded Petitioner's proposed recommended order is detailed in the Appendix.

FINDINGS OF FACT

1. Through October 1, 1987, Respondent held a Class "K" license number K- 00-00347 for the instruction of persons seeking a Class "G" license to bear a firearm.

   
   

2. While working at a security guard service, Respondent met Enrique Bonet, who asked Respondent if he would be interested in teaching firearm classes to students solicited by Mr. Bonet.

   
   

3. Respondent agreed. After teaching not more than 25 students supplied by Mr. Bonet, Respondent terminated the arrangement with Mr. Bonet shortly after it began.

   
   

4. Thereafter, Mr. Bonet continued to train persons seeking a Class "G" license, even though Mr. Bonet was not licensed to do so. Following each training session, Mr. Bonet forged Respondent's signature to the certificate that was submitted to Petitioner on behalf of each applicant.

   
   

5. Respondent was unaware of Mr. Bonet's unlawful actions until one of Petitioner's employees contacted Respondent and informed him that scores were missing on one certificate bearing Respondent's signature. When asked for these scores, Respondent promptly stated that he had not trained anyone during the period of training shown on the application. After a copy of the application was provided to Respondent, he promptly identified his signature as a forgery.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. Petitioner is responsible for the licensing of firearm instructors. Sections 493.304(12) and 493.305(1), Florida Statutes.

   
   

8. Petitioner may discipline a licensee upon proof that the licensee is guilty of fraud or deceit, negligence, incompetency, or misconduct in the practice of the business to which the license pertains. Section 493.319(1)(f), Florida Statutes.

   
   

9. Petitioner may discipline a license for violation of any provision of Chapter 493, Florida Statutes. Section 493.319(a)(p), Florida Statutes.

   
   

10. Petitioner must prove the allegations of the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

11. Petitioner has not proven by clear and convincing evidence that Respondent was aware of or consented to Mr. Bonet's unlawful acts.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that Petitioner enter a Final Order dismissing the Administrative Complaint.

Entered this 26th day of August, 1988, in Tallahassee, Florida.

ROBERT E. MEALE

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 26th day of August, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1404

Treatment Accorded Petitioner's Proposed Findings of Fact

1. Adopted.

2. Adopted in substance.

3. Adopted in substance although there is insufficient evidence as to when Respondent conducted the classes with students supplied by Mr. Bonet.

4. Rejected as contrary to the greater weight of the evidence. Mr. Purcell's identification was uncertain and was not clear and convincing evidence.

5. Rejected as contrary to the greater weight of the evidence. Petitioner's case can be largely reduced to the word of Respondent against the word of Mr. Bonet. Respondent attended the hearing, testified candidly, and assisted Petitioner's investigation by promptly identifying a fraudulent certificate. Respondent's demeanor was good. On the other hand, Mr. Bonet has vanished, leaving behind a trail of fraud and deceit by his own admission. In a statement not subject

to cross-examination, Mr. Bonet asserted that Respondent was involved in Bonet's fraudulent activity. This assertion does not qualify as an admission against interest so as to be admis- sible under the hearsay exception. Nor does

Mr. Bonet's hearsay statement supplement or explain other admissible evidence.

Even if Mr. Bonet's statement were admissible, it would be rejected as against the greater weight of the evidence. Mr. Bonet's absence and admitted deceit militate against taking his testimony over Respon- dent's. Moreover, Petitioner produced only one person to corroborate Mr. Bonet's testimony concerning the involvement of Respondent in Mr. Bonet's unlawful activities. This witness's testimony was vague and uncertain. Petitioner should have produced one of

the 60-65 other persons who took classes from Mr. Bonet while improperly supervised by Respondent.

Even such testimony, however, would somehow have had to link Respondent with Mr. Bonet's unlawful activities.

COPIES FURNISHED:

R. Timothy Jansen, Esquire Assistant General Counsel Department of State Division of Licensing

The Capitol

Tallahassee, Florida 32399-0250

James E. Meade, Jr., pro se 8425 Mattituck Circle

Orlando, Florida 32829

Honorable Jim Smith Secretary of State The Capitol

Tallahassee, Florida 32399-0250

Ken Rouse General Counsel

Department of state 1801 The Capitol

Tallahassee, Florida 32399-0250

Docket for Case No: 88-001404

Orders for Case No: 88-001404