STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) Case NO. 89-0982

) TIMOTHY VINCENT JIRGENS, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Pensacola, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on August 10, 1989. The parties filed proposed recommended orders on September 20 and October 6, 1989, but the hearing transcript only reached the Division of Administrative Hearings on November 17, 1989. The attached appendix addresses proposed findings of fact by number.

APPEARANCES

For Petitioner: Mimi Daigle

Assistant General Counsel Department of State

The Capitol, MS-4

Tallahassee, Florida 32399-0250

For Respondent: Stephen J. Baker

Baker & Duke, P. A. Post Office Box 66

Pensacola, Florida 32591 STATEMENT OF THE ISSUES

Whether petitioner should revoke or deny renewal of respondent's license to carry a concealed weapon?

PRELIMINARY STATEMENT

On October 5, 1987, Timothy Vincent Jirgens filed an application for a license to carry concealed weapon or firearm, which the Department granted in due course, issuing license No. WC 87-00606, in accordance with Section 790.06, Florida Statutes (1987). By its terms, this license was to have expired on January 27, 1989. In anticipation of its expiration, petitioner filed an application for renewal of the license, which the Department received on November 9, 1988.

By administrative complaint filed November 30, 1988, petitioner alleged licensure as of October 21, 1987, and sought revocation because "[i)nformation

received by this department indicates Respondent was committed to a mental institution under the provisions of Chapter 394, Florida Statutes on 11/07/88." By amended administrative complaint filed on August 4, 1989, petitioner indicated its intention to deny respondent's application for renewal of license number CW 87-00606 on the same grounds.

FINDINGS OF FACT

1. At all pertinent times, Timothy Vincent Jirgens has been licensed to carry a concealed weapon, holding license number CW 87-00606. He has made timely application for renewal of the license originally issued to him.

   
   

2. Since September of 1988, Thomas E. Potts, doing business as Corporate Special Services, has employed respondent as an insurance investigator. Although Mr. Jirgens has not concealed weapons on his person in performing his assignments, he has kept a concealed weapon in his car.

   
   

   Mother Concerned

   
   

3. On November 2, 1988, even though it was still early in the morning when he spoke by telephone to his mother in Ohio, Mr. Jirgens was already in his cups. Nor was he in a cheerful mood. The conversation alarmed his mother.

   
   

4. Afraid her son might do himself harm, she telephoned the Pensacola Police Department, who dispatched Sgt. Cassidy and Officer Gardner to respondent's home on Barcia Street for a "welfare check."

   
   

5. One of the two policemen Mr. Jirgens found when he answered the knocking at his apartment door asked him whether he had any weapons. A gun collector, he told them he had a "small arsenal." With the exception of a single, unloaded revolver lying on a coffee table, however, all of respondent's guns were locked in a safe, unloaded.

   
   

6. The police officers did not ask for the guns, or make any request with which respondent failed to comply. Aware of his inebriation, they decided nevertheless that Mr. Jirgens would be all right. "[A]ssured that he was okay," (T.24) they left the premises.

   
   

   Police Return

   
   

7. Perhaps because of a superior's reaction to their report, the policemen set out again, this time with the objective of gaining possession of the weapons in Mr. Jirgens' apartment. They stopped about a block away, where they set up a "command center."

   
   

8. From their parked patrol car, they contacted Mr. Jirgens' girl friend, whose disaffection had perhaps inspired the drinking bout. They also got up with his roommate, who teaches music in an elementary school, called his mother and sister in Ohio, and enlisted other friends of Mr. Jirgens, in an effort to separate respondent from his gun collection, so that they could take possession of the weapons.

   
   

9. As requested by the police officers, none of respondent's friends or relatives let on to Mr. Jirgens that the police were in any way involved in their concerted efforts to induce him to leave his apartment. The music teacher

   and other friends were in and out, talking to Mr. Jirgens then reporting to the policemen. But Mr. Jirgens "[h]ad absolutely no idea that the police were outside." T.74.

   
   

10. Part of the time this was going on the front door to the apartment stood a quarter of the way open. At no time did Mr. Jirgens brandish a weapon. He never refused a direct request from any policeman to leave his apartment. None was made. In response to his friends' suggestions that he go outside, he eventually did.

    
    

    Twice Arrested

    
    

11. As Mr. Jirgens left his apartment, Messrs. Cassidy and Gardner (one of whom handcuffed him) confronted him for the first time since their initial conversation. After seizing the guns in his apartment, they took him to University Hospital and left him in the custody of staff in the hospital's mental health ward, known as the Pavilion.

    
    

12. About an hour later, the respondent left the ward, possibly through a broken window. Within an hour of the escape, Sgt. Cassidy found him leaving his apartment with a bag full of clothes, took him into custody again, and returned him to University Hospital's psychiatric ward.

    
    

13. Judicial proceedings to accomplish involuntary placement were never initiated. After a two-day stay at the Pavilion, respondent was discharged. Later the Pensacola Police Department gave him hid guns back. At no time was respondent adjudicated incompetent.

    
    

14. At least the second arrest occurred under the apparent authority of a certificate a clinical psychologist had executed. During their efforts to get Mr. Jirgens to leave his apartment, the police had summoned the psychologist, misinforming him that Jirgens had barricaded himself in his apartment.

    
    

    CONCLUSIONS OF LAW

    
    

15. Because the Department of State has referred this matter to the Division of Administrative Hearing, in accordance with Section 120.57(1)(b)3., Florida Statutes (1987), "the division has Jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1987).

    
    

16. Where, as here, annual license renewal is ministerial, a licensing agency cannot convert revocation proceedings into application proceedings by holding up renewal. "[R]efusal to renew a license to a person who has once demonstrated that he possesses the statutory prerequisites to licensure cannot be used as a substitute for a license revocation proceeding." Dubin vs. Department of Business Regulation, 262 So.2d 273 (Fla. 1st DCA 1972); Wilson v. Pest Control Commission of Florida, 199 So.2d 777 (Fla. 4th DCA 1967)

    
    

17. License revocation proceedings have been said to be "`penal' in nature, "State ex rel. Vining vs. Florida Real Estate Commission, 281 So.2d 487,

    491 (Fla. 1973); Kozerowitz vs. Florida Real Estate Commission, 289 So.2d 391 (Fla. 1974); Bach vs. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979)(reh. den. 1980), at least where a licensee's livelihood is at stake. Strict procedural protections apply in disciplinary cases, and the prosecuting agency's burden is to prove its case clearly and convincingly. Ferris vs. Turlington, 510 So.2d 292 (Fla. 1987). See Addington vs. Texas, 441 U.S. 426 (1979); Ferris vs. Austin, 487 So.2d 1163 (Fla. 5th DCA 1986); Anheuser- Busch,

    Inc. vs. Department of Business Regulation, 393 So.2d 1177 (Fla. 1st DCA 1981); Walker vs. State Board of Optometry, 322 So.2d 612 (Fla. 3rd DCA 1975); Reid vs. Florida Real Estate Commission, 188 So.2d 846, 851 (Fla. 2nd DCA 1966).

    
    

18. A licensee's breach of duty justifies revocation only if the duty has a "substantial basis," Bowling vs. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981) in the evidence, unless applicable statutes and rules create a clear duty, which the evidence shows has been breached. Even though there has been no showing that respondent's livelihood depends on his continuing to hold a license to have a concealed weapon, petitioner has the burden to establish grounds for revocation, at least by a preponderance of the evidence.

    
    

19. As authority for ending respondent's licensure, petitioner invokes the Jack Hagler Self Defense Act, Section 790.06(2), Florida Statutes (1987), which provides:

    
    

    The Department of State shall issue a license if the applicant: . . .

    (j) Has not been committed to a mental institution under Chapter 394, unless he possesses a certificate from a psychiatrist licensed in this state that he has not suffered from disability for a period of 3 years.

    
    

    The Act authorizes revocation of licenses issued under Section 790.06, Florida Statutes (1987) whenever a licensee "[b]ecomes ineligible under the criteria set forth in Subsection (2) . . . [or is] committed to a mental institution under Chapter 394." Section 790.06(10)(a) and (h), Florida Statutes (1987).

    
    

20. Petitioner contends that Mr. Jirgens was "committed to a mental institution under Chapter 394," within the meaning of the statute, while respondent takes the position that neither his original arrest nor his rearrest and two-day hold on the authority of a psychologist's certificate constitutes "commitment." The parties are in substantial agreement about what transpired early last November, but join issue on the legal significance.

    
    

21. Petitioner argues that the statutory reference to "commit[ment] to a mental institution under Chapter 394," Section 790.06(2), Florida Statutes (1987) should be read broadly to include even voluntary admissions to mental hospitals, when contrasted with precise statutory references occurring in the immediately previous subsection, viz.:

    
    

    1. Has not been adjudicated an

       incompetent under s. 744.331, or has waited 3 years from the date his competency was restored by court order under s. 744.464 . .

       
       

       Section 790.06(2), Florida Statutes (1987). But respondent counters that the term "commitment" or "civil commitment" has such a well understood meaning that precise statutory references (of the kind necessary to specify which "competency" determination is meant) would be superfluous.

       
       

22. The Department also relies on the legislative history of Section 790.06(2), Florida Statutes, (1987) which once authorized licensure if an applicant

    has not been committed to a mental institution as being dangerous to himself or others, unless he possesses a certificate of a medical doctor licensed in this state that he no longer suffers from disability.

    
    

    Section 790.06(2), Florida Statutes (1985). (Emphasis supplied.) Chapter 87-24, Laws of Florida (1987) amended this provision to disqualify applicants who had been committed to mental institutions, whatever the grounds, but did not enlarge the definition of commitment or otherwise broaden the statutory disqualification.

    
    

23. Before the amendment, the Department was required to issue licenses even to applicants who had, after a full, judicial hearing, been committed to mental institutions by court order, unless their commitment was on grounds of dangerousness. Then, as now, nondangerous persons were subject to civil commitment only if they were

    
    

    manifestly incapable of surviving alone or with the help of willing and responsible family or friends, including available alternative services, and, without treatment

    . . .likely to suffer from neglect or refuse to care for [themselves], and such neglect or refusal poses a real and present threat of substantial harm to [their] well being;

    
    

    Section 394.467(1)(a)2.a., Florida Statutes (1985). Enactment of Chapter 87-24, Laws of Florida (1987), did not disqualify any applicant or licensee who had not been "committed to a mental institution under Chapter 394." Section 790.06(2), Florida Statutes, (1987), or in any way alter the import of the statutory term "committed."

    
    

    Examination vs. Placement

    
    

24. Respondent was taken to a receiving facility, initially under Section 394.463(2)(a) 2. or 3., Florida Statutes (1987) and subsequently under the provisions of Section 394.463(2)(a)3., Florida Statutes (1987). Entitled "Involuntary examination," Section 394.463, Florida Statutes (1987) authorizes taking a person "to a receiving facility for involuntary examination if there is reason to believe that he is mentally ill," Section 394.463(1), Florida Statutes (1987), and certain other conditions are met. In pertinent part, the law reads:

    
    

    1. A law enforcement officer shall take

       a person who appears to meet the criteria for involuntary examination into custody and deliver him or have him delivered to the nearest receiving facility for examination.

       The officer shall execute a written report. . .

    2. A physician, psychologist licensed pursuant to Chapter 490, psychiatric nurse, or clinical social worker may execute a certificate stating that he has examined a person within the proceeding 48 hours and finds that the person appears to meet the criteria for involuntary examination and stating the observations upon which that

    conclusion is based. If other less restrictive means are not available, . . . a law enforcement officer shall take the person named in the certificate into custody and deliver him to the nearest available receiving facility for involuntary examination. The law enforcement officer shall execute a written report . . .

    
    

    Neither of these provisions require more than a good faith belief on the part of a single individual that the person to be evaluated suffers from a mental illness and meets the other criteria for civil commitment.

    
    

25. In contrast, Section 394.467, Florida Statutes (1987), entitled "Involuntary placement," requires "a finding of the court by clear and convincing evidence." Section 394.467(1), Florida Statutes (1987). In the general index to the Florida Statutes, under the heading "Mental Health," appears the entry: "Commitment proceedings, see MENTAL HEALTH subtitle, Involuntary placement." Black's Law Dictionary defines "commit" to include "send[ing] a person . . . to an asylum . . . by authority of a court or magistrate." (Emphasis supplied; citations omitted.)

    
    

26. The Florida Supreme Court has used the phrase "civil commitment" in discussing proceedings for involuntary placement. In Re Beverly, 342 So.2d 481 (Fla. 1977). In the Beverly case the Court said

    
    

    the standard of proof to be applied in civil commitment proceedings is "clear and convincing evidence" which shall be applied in this and all future civil commitment proceedings.

    
    

    342 So.2d at 488. The Court's language implicitly equates "involuntary placement" with commitment. This pronouncement by the State's highest court undermines the petitioner's contention here that an involuntary hold for observation amounts to commitment.

    
    

27. A decision of the United States Court of Appeals for the Eighth Circuit also supports the view that examination and observation, even if involuntary, do not amount to "commitment." United States v. Hansel, 474 F.2d 1120 (8th Cir. 1973). On appeal from a conviction under the Gun Control Act of 1968, the "principal question . . . [was] whether the defendant had in fact been

`adjudicated as a mental defective' and `committed to any mental institution' within the meaning of . . . the Gun Control Act of 1968." 474 F.2d at 1121. Even though Hansel had been held for two weeks against his will, the court concluded,

There is nothing in 18 U.S.C. s 922(h) which indicates an intent to prohibit the possession of firearms by persons who have been hospitalized for observation and examination, where they were found not to be mentally ill. The statute makes it clear that a commitment is required.

474 F.2d at 1123. "[I]n license revocation proceedings, case law requires strict construction of statutes . . . ," Davis v. Department of Professional Regulation, 457 So.2d 1074, 1078 (Fla. 1st DCA 1984), the proof adduced in the present case must be said to show only that respondent was held "for observation and examination," not that a commitment within the meaning of section 790.06, Florida Statutes (1987), took place.

RECOMMENDATION

It is, accordingly, RECOMMENDED:

That petitioner dismiss the administrative complaint filed against respondent and renew respondent's license.

DONE and ENTERED this 28th day of November, 1989, at Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of November, 1989.

APPENDIX

With respect to petitioner's proposed finding of fact No. 1, respondent filed the application on or about October 5, 1988.

Petitioner's proposed findings of fact Nos. 2, 3, 4, 7 and 10 through 14 have been adopted, in substance, insofar as material.

With respect to petitioner's proposed finding of fact No. 5, nobody in authority asked him to leave.

With respect to petitioner's proposed finding of fact No. 6, respondent had only one, unloaded gun not under lock and key.

Petitioners proposed finding of fact No. 8 is rejected.

With respect to petitioner's proposed finding of fact No. 9, the evidence did not show that respondent agreed to be transported to a receiving facility.

Respondent's proposed findings of fact have been adopted, in substance, insofar as material, except that it was not clear when Howell executed the certificate.

COPIES FURNISHED:

STEVEN J. BAKER, ESQUIRE BAKER & DUKE

POST OFFICE BOX 66

15 WEST LARUA STREET PENSACOLA, FL 32591

MIMI DAIGLE, ESQUIRE ASSISTANT GENERAL COUNSEL DEPARTMENT OF STATE DIVISION OF LICENSING

THE CAPITOL, MAIL STATION #4 TALLAHASSEE, FL 32399-0250

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF STATE

FLORIDA DEPARTMENT OF STATE, DIVISION OF LICENSING,

Petitioner,

1. CASE NO. 89-0982

   
   

   TIMOTHY VINCENT JIRGENS,

   
   

   Respondent.

   /

   
   

   FINAL ORDER

   
   

   This cause came before the Department of State, Division of Licensing, for consideration and final agency action. A formal administrative hearing was conducted pursuant to section 120.57(1), Florida Statutes, on August 10, 1989, before Robert T. Benton, II, a duly assigned Hearing Officer of the Division of Administrative Hearings. A Recommended Order was submitted by the Hearing Officer on November 29, 1989.

   
   

   FINDINGS OF FACT

   
   

   The Department of State, Division of Licensing (hereafter "Division") hereby adopts and incorporates herein by reference the Findings of Fact in the Recommended Order, with the exception of the first Finding of Fact.

   The Hearing Officer's first Finding of Fact States:

   
   

   1. At all pertinent times, Timothy Vincent Jirgens has been licensed to carry a concealed weapon, holding license number WC 87-00606. He has made timely application for renewal of the license originally issued to him."

After a complete review of the record the Division modifies the Hearing Officer's first finding of fact and finds as follows:

1. Timothy Vincent Jirgens was originally licensed by Escambia County to carry a concealed weapon, and subsequently applied for and was issued state conversion license number 87-00606 which expired January 27, 1989. Respondent made timely application as an initial applicant for a state concealed weapons license on October 28, 1988. Application as an initial applicant is required by Section 790.06(13), Florida Statutes, which states:

"Notwithstanding any other provision of this section, each person who is duly licensed to carry a concealed weapon or firearm on October 1, 1987, shall be entitled to carry a concealed weapon or firearm under the provisions of the county ordinance under which such license was issued until such time as the license expires. However, such person may obtain a statewide concealed weapon or firearm license for the unexpired period of the current county license upon submission

of proof of a current county concealed weapon or firearm license and payment of

$15 to the Department of State. Whenever

a license issued pursuant to this subsection expires, a statewide concealed weapon or firearm license shall not be issued until the person complies with the requirements

of this section as an initial applicant" (emphasis supplied).

Modification of this finding of fact alters the conclusions of law.

CONCLUSIONS OF LAW

In accordance with Section 120.57(1)(b)3, and Chapter 790 Florida Statutes, the Department of State, Division of Licensing has jurisdiction.

Because Respondent Jirgens' October 28, 1988 application was an initial (not a renewal) application, pursuant to Section 790.06(13), he was subject to the investigation required by Section 790.06. That investigation revealed that Respondent had been hospitalized under Chapter 394, Florida Statutes.

The issue in this case is whether Respondent should have been denied licensure pursuant to Chapter 790.06(2)(j), Florida statutes, as a result of his hospitalization for mental impairment.

In order to protect the citizens of this state from the dangers posed by concealed weapons in the hands of unfit persons, the Florida Legislature deemed certain events disabling for the purpose of licensure under Chapter 790, Florida

Statutes. A person is not eligible to possess a concealed weapon if he has been convicted of a felony; adjudicated incompetent; found guilty or a crime of violence; or, as is the case here, committed to a mental institution pursuant to Chapter 394, Florida Statutes.

Chapter 394, Florida Statutes, commonly known as the Baker Act, authorizes three types of commitment: 1) Voluntary admissions under Section 394.465, Florida Statutes, for the purpose of observation, diagnosis, or treatment; 2) Involuntary placement under Section 394.467, Florida Statutes, for the purpose of treatment; and 3) Involuntary examination under Section 394.463, Florida Statutes. Having been committed to a receiving facility under the latter provision, Respondent is statutorily ineligible to hold a concealed weapon license.

Section 790.06(2)(j), Florida Statutes, provides that an applicant shall not be issued a concealed weapon license if he has been "committed to a mental institution under Chapter 394." Nowhere in Chapter 790, Florida Statutes, is the term "committed" defined; nor has a Florida court construed Section 790.06(2)(j), Florida Statutes. Yet, it is clear that if the Legislature had intended "committed" to mean "involuntary placement by court order pursuant to Section 394.467," Florida Statutes, it would have so specified. It did not.

Instead, the Legislature made any type of commitment under Chapter 394, Florida Statutes, disabling for the purpose of concealed weapon licensure. Adjudication of incompetency, a more specific disabling act is separately enumerated in subparagraph (2)(i) of 790.06.

This conclusion is reinforced by the legislative history of Section 790.06, Florida Statutes. Prior to the 1987 legislative session, a person could be issued a concealed weapon license if, among other things, he

has not been adjudicated a mental incompetent or has not been committed to a mental institution as being dangerous to himself or others, unless he possesses a certificate of a medical doctor licensed in this state that he no longer suffers from disability.

Section 790.06(2), F.S. (1985).

Section 790.06(2), Florida Statutes was amended in 1987, separating adjudication of incompetency and commitment to a mental institution. In relevant part it reads as follows:

1. The Department of State shall issue a license if the applicant:

   * * *

   1. Has not been adjudicated an incompetent under s. 744.331, or has waited 5 years from the date his competency was restored by court order under s. 744.464,

   2. Has not been committed to a mental institution under Chapter 394, unless he possesses a certi-

ficate from a psychiatrist licensed in this state that he has not suffered from disability for a period of 5 years.

Thus, at the same time the Legislature disqualified--with specificity--a person for having been "adjudicated an incompetent under Section 744.331" it also disqualified a person for having been generally "committed to a mental institution under Chapter 394." This distinction leaves no doubt that the Legislature intended for Section 790.06(2)(j), Florida Statutes, to be read as broadly as it was written, since the Department of State, Division of Licensing's responsibilities under Chapter 790 are regulatory, not penological, in nature. To adopt a narrow construction of Section 790.06(2)(j), Florida Statutes, would eviscerate, not effectuate, the intent of the Legislature. The result would mean concealed firearms in the hands of mentally unstable persons, a chilling prospect certainly not envisioned by the Legislature.

The evidence establishing that Respondent was involuntarily committed to a receiving facility pursuant to Section 394.463, Florida Statutes, went unrebutted at the formal hearing held in this case. Grounds for denial were therefore clearly proven.

Because broad construction of Chapter 790 is allowed in denying concealed weapons licenses, the Hearing Officer's conclusions of law are substituted with these here written. The Division relies on the finding of fact here written; the Legislative history of Chapter 790; Legislative intent of Chapter 790 with regard to the public safety; a complete review of the record and file; and testimony of Dr. William Howell at formal hearing (T.36-52).

Further, the Division finds that this is not a revocation proceeding and that it has not converted a revocation proceeding into an application proceeding.

IT IS, THEREFORE, ORDERED THAT Respondent's application for a concealed weapons license is hereby denied until the Division receives a certificate from a psychiatrist licensed in this state stating Respondent has not suffered from disability for a period of 5 years.

NOTICE OF RIGHTS

This Order constitutes final agency action. Any party who is adversely affected by this Order may seek judicial review under Section 120.68, Florida Statutes. Such proceedings are commenced by filing a Notice of Appeal, pursuant to Rule 9.110, Florida Rules of Appellate Procedures, with the Clerk of the Department of State, Office of Legal Affairs, The Capitol, Room LL-10, Tallahassee, Florida 32399-0250; and by filing a copy of the Notice of Appeal, accompanied by the applicable filing fees, with the First District Court of Appeals, or with the District Court of Appeals in the appellate district where the party resides. The Notice of Appeal must be filed within thirty (30) days of the date this Order is filed with the Clerk of the Department.

ORDERED this 18th day of January, 1990.

John M. Russi Director

Division of Licensing

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing has been sent by U.S. Mail to Steven J. Baker, Attorney at Law, Baker & Duke, Post office Box 66, 15 West LaRua Street, Pensacola, Florida 32591 on this 18th day of January, 1990.

Henri C. Cawthon Assistant General Counsel Department of State

The Capitol, Mail Station 4 Tallahassee, Florida 32399-0250

(904) 488-3492

Docket for Case No: 89-000982

Orders for Case No: 89-000982