STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GEORGE NEGRON, )

)

Petitioner, )

)

vs. ) CASE NO. 90-4446S

) DEPARTMENT OF STATE, DIVISION ) OF LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on October 1, 1990, in Tallahassee, Florida.

APPEARANCES

For Petitioner: No Appearance

For Respondent: Henri C. Cawthon, Esquire

Department of State Division of Licensing The Capitol, MS #4

Tallahassee, Florida 32399-0250 STATEMENT OF THE ISSUES

Whether Petitioner's application for a Class "D" and "G" Watchman, Guard, or Patrolman, Statewide Gun Permit should be granted.

PRELIMINARY STATEMENT

Petitioner applied for licensure with Respondent for a Class "D" and "G" Watchman, Guard, or Patrolman, Statewide Gun Permit. On May 24, 1990, Petitioner was notified that his application was denied. The letter of denial set forth the reasons for the denial. On June 27, 1990, Petitioner executed an Election of Rights form by which he disputed the facts upon which the Respondent based its denial of his application and which requested a formal hearing.

Notice of Hearing, scheduling the formal hearing for October 1, 1990, was mailed to the parties on August 21, 1990. Petitioner made no appearance at the formal hearing. Efforts to reach Petitioner by telephone at the numbers Petitioner had provided Respondent were unsuccessful because both numbers had been disconnected.

At the formal hearing, Respondent introduced two exhibits. Respondent Composite Exhibit 1 is a copy of the documents that were received by Respondent or prepared by Respondent while processing Petitioner's application for

licensure. Respondent's Exhibit 2 is a certified copy of an order entered July 24, 1989, in a criminal proceeding brought against George Negron.

No transcript of the proceedings was prepared and no post-hearing submittal has been filed.

FINDINGS OF FACT

1. On March 28, 1990, Petitioner filed an application with Respondent for a Class "D" and "G" Watchman, Guard, or Patrolman, Statewide Gun Permit. On May 24, 1990, Respondent, through Marilyn D. Thompson, denied the application based on the provisions of Section 493.319, Florida Statutes.

   
   

2. On July 24, 1989, Petitioner entered pleas of nolo contendere of the following charges in a proceeding brought against him in the Circuit Court in and for Dade County, Florida: Battery On A Law Enforcement Officer; Tampering With Or Fabricating Physical Evidence; and Resisting An Officer Without Violence To His Person. Adjudication of guilt was withheld by the court and he was sentenced to time served with statutory costs being imposed.

   
   

3. Petitioner's application did not reflect having entered the nolo contendere pleas to these charges.

   
   

4. Petitioner did not appear at the formal hearing to present any evidence in support of his application.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

6. Section 493.319, Florida Statutes, provides, in pertinent part, as follows:

   
   

   1. The following constitutes 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) Conviction of a crime which directly relates to the business for which the license is held or sought, regardless of whether adjudication was withheld or whether imposition of sentence was suspended. A conviction based on a plea of nolo contendere shall create a presumption of guilt to the underlying criminal charges, and the department shall allow the person being disciplined to present any evidence relevant to the underlying charges and the circumstances surrounding his plea.

         * * *

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

         * * *

   2. When the department finds any violation of subsection (1), it may do one or more of the following:

      (a) Deny an application for licensure.

      * * *

   3. Notwithstanding the provisions of paragraph (1)(c) and subsection (2), the department shall deny an application ... when the person ... has been convicted of a felony, regardless of whether adjudication was withheld or whether imposition of sentence was suspended, unless and until civil rights have been restored and a period of 10 years has expired. A conviction based on a plea of nolo contendere shall create a presumption of guilt to the underlying criminal charges, and the department shall allow the person being disciplined to present any evidence relevant

      to the underlying charges and the circumstances surrounding his plea.

      
      

7. Petitioner, as the applicant, has the burden of proving by a preponderance of the evidence that he is entitled to the licensure he seeks. Rule 28-6.08(3), Florida Administrative Code. See also, Florida Department of Transportation v. J.W.C., Co., 396 So.2d 778 (Fla. 1st DCA 1981). Petitioner has failed to meet that burden.

   
   

8. Although it was not required to present evidence at the formal hearing, Respondent established that it was statutorily required to deny Petitioner's application.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered which denies the subject application for licensure.

RECOMMENDED this 19th day of October, 1990, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Hearing Officer

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550 904/488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 1990.

COPIES FURNISHED:

Honorable Jim Smith Secretary of State The Capitol

Tallahassee, Florida 32399-0250

Ken Rouse General Counsel

Department of State The Capitol, LL-10

Tallahassee, Florida 32399-0250

Mr. George Negron

1311 Sharazad Boulevard Opa Locka, Florida 33054

Henri C. Cawthon, Esquire Department of State Division of Licensing

The Capitol, MS #4

Tallahassee, Florida 32399-0250

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-004446

Orders for Case No: 90-004446