STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

JAMES L. POSEY, )

)

Petitioner, )

)

vs. ) CASE NO. 89-4700

)

FLORIDA GAME AND FRESH )

WATER FISH COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was scheduled in the above-styled cause on November 9, 1989, in LaBelle, Florida, before Veronica E. Donnelly, a duly designated hearing officer with the Division of Administrative Hearings. Prior to hearing, the parties agreed to provide the hearing officer with a joint stipulation of facts resolving the factual disputes in these proceedings. The joint stipulation was filed with the Division on December 8, 1989.

APPEARANCES

For Petitioner: James D. Sloan, Esquire

Elver and Sloan

Post Office Drawer 2280 LaBelle, Florida 33935

For Respondent: James T. Knight, III, Esquire

Assistant General Counsel Florida Game and Fresh Water

Fish Commission

620 South Meridian Street Tallahassee, Florida 32399-1600

STATEMENT OF THE ISSUES

Whether the Respondent's decision to deny renewal of Petitioner's Alligator Farming License and Alligator Farming Agent's License was proper under the following circumstances: After the entry of the Petitioner's nolo contendere plea to the charges that he committed a violation of Rule 39-25.042, Florida Administrative Code, the trial court withheld an adjudication of guilt as to the charges filed against Petitioner.

PRELIMINARY STATEMENT

By letter dated August 2, 1989, the Respondent informed the Petitioner that his Alligator Farming License and Alligator Farming Agent's License would not be renewed because the Petitioner was found guilty of violating Rule 39-25.042, Florida Administrative Code, on February 21, 1989. The Petitioner disputes the legal conclusion that he was convicted of a violation of Florida Law. It is the

Petitioner's contention that he continues to remain eligible for licensure because a conviction has not occurred. A request for a formal administrative hearing was timely filed by Petitioner in order to resolve the licensure matter.

In lieu of a formal administrative hearing, the parties entered into a joint stipulation of facts on the material facts involved in this proceeding. The stipulation was filed on December 8, 1989, and memoranda of law was timely filed by the parties.

STIPULATED FINDINGS OF FACT

1. On September 9, 1988, Petitioner was arrested and charged with Possession of Untagged Alligators, a misdemeanor, and a violation of Rule 39- 25.042, Florida Administrative Code.

   
   

2. Petitioner pleaded nolo contendere to the charge on February 22, 1989. Adjudication of guilt was withheld by the court and Petitioner was fined

   $357.50.

   
   

3. Petitioner applied for a renewal of his alligator farming license and alligator farming agent's license on June 20, 1989.

   
   

4. Respondent denied Petitioner's application on June 21, 1989.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter pursuant to Sections 120.57 and 120.60, Florida Statutes.

   
   

6. In this case, the Petitioner was informed that his applications for renewal of his licenses were denied because the Petitioner was "found guilty of violating F.A.C. 39-25.042 . . . and fined a total of $357.50." The Petitioner disputes the reason given for denial of his renewal application as an adjudication of guilt was withheld by the court, and the Petitioner's guilt was never factually determined.

   
   

7. Essentially, the Respondent contends that the withholding of a ruling on the issue of guilt by the court is immaterial as Rule 39-5.004(3), Florida Administrative Code, provides:

   
   

   The licensee or permittee shall forfeit any license or permit issued by the Commission if that person . . . is convicted of a violation of . . . the rules of the Commission, or if such violation is disposed of under Section 921.187, F.S. with or without an adjudication of guilt.

8. A review of alternatives for the disposition of criminal cases found in Section 921.187, Florida Statutes, reveals that the disposition applicable to the Petitioner is located in Section 921.187(1), Florida Statutes, which states:

   
   

   1. The following alternatives for the disposition of criminal cases shall be used

      in a manner which serves the needs of society, which will punish criminal offenders, and which will provide the opportunity for rehabilitation. A court may:

      * * *

      (l) Make any other disposition that is authorized by law.

      
      

9. Violation of Rule 39-25.042, Florida Administrative Code, which contains the regulations governing statewide alligator trapping; permitting, taking and sale, is a misdemeanor pursuant to Section 372.662, Florida Statutes. Accordingly, the court was authorized to dispose of the criminal charges by sentencing the Petitioner to pay a fine under Section 775.083, Florida Statutes.

   
   

10. Based upon the foregoing, the Respondent is correct in its determination that the Petitioner does not need to be adjudicated guilty in order to apply Rule 39-5.004(3), Florida Administrative Code to the facts of this case.

    
    

11. Once a determination is made by the Department that Petitioner's licenses can be revoked based upon the trial court's disposition of the misdemeanor, the Department must treat its decision not to renew the licenses as a revocation proceeding.

    
    

12. In Vocelle v. Riddell, 119 So.2d 809 (Fla. 2d DCA 1960), the court held:

    
    

    . . . that once an applicant becomes licensed, the annual renewal of his license follows as a ministerial duty of the Commission and a matter of right; and that if violations occur, the Commission is required to resort to the provisions for revocation.

    
    

13. When the Petitioner was given notice of the Department's decision not to renew the licenses, he was made aware of the facts or conduct which warrant the intended action. An opportunity to dispute the material issues of fact and the conclusions of law in a formal administrative hearing was given to the Petitioner. After an independent review, the Department met its burdens in this case regarding the disputed facts and law by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

RECOMMENDATION

Based upon the foregoing, it is RECOMMENDED:

1. That the Petitioner's application to renew its licenses be denied.

DONE and ORDERED this 3rd day of January, 1990, in Tallahassee, Leon County, Florida.

VERONICA E. DONNELLY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 1990.

COPIES FURNISHED:

Colonel Robert H. Brantly Executive Director Florida Game and Fresh

Water Fish Commission Bryant Building

620 South Meridian Street Tallahassee, FL 32399-1600

James Antista, Esquire General Counsel Florida Game and Fresh

Water Fish Commission Bryant Building

620 South Meridian Street Tallahassee, FL 32399-1600

James D. Sloan, Esquire LUCKY ELVER & SLOAN

461 Highway 29 South Post Office Drawer 2280 LaBelle, FL 33935

James T. Knight, III, Esquire Assistant General Counsel Florida Game and Fresh

Water Fish Commission Bryant Building

620 South Meridian Street Tallahassee, FL 32399-1600

Docket for Case No: 89-004700

Orders for Case No: 89-004700