STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN P. FLETCHER, )

)

Petitioner, )

)

vs. ) CASE NO. 90-6581S

)

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

On January 16, 1991, a formal administrative hearing was held in this case in Tampa, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: John P. Fletcher, pro se.

Post Office Box 281 Dover, Florida 33527

For Respondent: Henri C. Cawthon, Esquire

Assistant General Counsel Department of State Division of Licensing

The Capitol, MS #4

Tallahassee, Florida 32399-0250 STATEMENT OF THE ISSUE

The issue in this case is whether the Respondent, the Department of State, Division of Licensing, should grant the application of the Petitioner, John P. Fletcher, for a Class "D" Unarmed Security Officer license.

PRELIMINARY STATEMENT

By letter dated May 1, 1990, the Respondent denied the Petitioner's application for a Class "D" Unarmed Security Officer license. The denial letter cited the Petitioner's conviction of a felony in Lakeland, Florida, in 1963, and charged violations of: Section 493.319(1)(a), Fla. Stat. (1989), fraud or willful misrepresentation in applying for a license; Section 493.319(1)(c), Fla. Stat. (1989), conviction of a crime directly related to the business for which the license is sought; and Section 493.319(3), Fla. Stat. (1989), conviction of a felony and failure to have civil rights restored.

On or about July 2, 1990, the Petitioner requested an informal administrative proceeding to determine his application, but at the informal proceeding convened on August 17, 1990, it was determined that material facts

were in dispute, and the Petitioner requested formal administrative proceedings under Section 120.57(1), Fla. Stat. (1989).

During the pendency of this proceeding, the Florida Statutes were amended, and the Department moved to amend the grounds on which it was taking the position that the application should be denied to reflect the current statutory provisions and some additional factual bases for denial of the application.

Factually, the Department contended that the application should be denied on grounds of: (1) a 1957 arrest in West Union, West Virginia, on charges of fraudulent procurement; (2) the 1963 arrest in Lakeland, Florida, on charges of burglary and contributing to the delinquency of a minor; (3) a 1965 arrest in Hillsborough County, Florida, on charges of aggravated assault with a deadly weapon; and (4) a 1983 arrest in Hillsborough County on charges of aggravated assault. Legally, the Department asserted that the facts showed violations of: Section 493.6118(1)(a), Fla. Stat. (Supp. 1990), misrepresentation in applying for a license; Section 493.6118(1)(j), Fla. Stat. (Supp. 1990), commission of assault or battery, or the unlawful use of force; and Section 493.6118(3), Fla. Stat. (Supp. 1990), lack of good moral character. The Petitioner did not oppose the amendments, and leave to amend was granted. 1/

During the course of this proceeding, the Department sometimes was referred to as the Petitioner, and Fletcher sometimes was referred to as the Respondent. Since Fletcher applied for licensure and requested administrative proceedings, he properly should be designated the Petitioner, and the Department should be designated as the Respondent, as reflected in this Recommended Order.

At the final hearing in this case, the Petitioner testified in his own behalf, called one other witness, and had four exhibits admitted in evidence without objection. The Department had two exhibits admitted in evidence without objection.

Explicit rulings on the proposed findings of fact contained in the Department's proposed recommended order may be found in the attached Appendix to Recommended Order, Case No. 90-6581S. (The Petitioner did not submit a proposed recommended order.)

FINDINGS OF FACT

1. On or about January 31, 1990, the Petitioner, John P. Fletcher, applied for a Class "D" Unarmed Security Officer license. In Section 13 of the application, the Petitioner represented that he never had been arrested.

   
   

2. In 1957, when the Petitioner was about 21 years old, he was arrested in West Union, West Virginia, with a brother and another man, and the three were charged with stealing gasoline from a filling station. The Petitioner denies that he stole the gasoline, saying that he and his brother did not know that the third man had not paid for the gasoline for the car they were riding in. The Petitioner's mother paid restitution, and the charges were dropped.

   
   

3. In November, 1963, when the Petitioner was about 27 years old, he was arrested for, and adjudicated guilty of, contributing to the delinquency of a minor. In fact, he was teaching a minor to drive a car against the wishes of the minor's parents. He served 60 or 90 days in jail in Lakeland on the charges.

4. Two years later, in August, 1965, while he was working for the Peninsula Lumber Company, the Petitioner was arrested for alleged aggravated assault with a deadly weapon and was put in jail for seven to 14 days while awaiting trial. The charges arose out of an altercation with a fellow employee. The Petitioner was upset about his pending divorce, and the other man kept picking at him about it. Three times, the Petitioner asked the man to stop, but he persisted. At one point, the man came at him in a threatening manner with a hammer in his hand, and the Petitioner cut him with a knife. In court proceedings, the other man admitted the truth of the Petitioner's version of the altercation, and the judge dismissed the charges.

   
   

5. In January, 1983, the Petitioner was visiting at the home of his elderly mother, who was living alone in East Hillsborough County. The Petitioner was told that a bad-mannered neighborhood youth was vandalizing his mother's property and generally terrorizing her. The Petitioner was very angry about this. During the visit, he went out to his truck and found a firecracker, with fuse burned but not ignited, that he believed had been placed there by the youth of whom his mother had spoken. He sought out the youth, about twenty-one years old, grabbed him, and was going to "put a whipping on him" but did not. Instead, he threatened to do so if the youth did not stop his bad behavior, particularly towards the Petitioner's mother. As a result, the Petitioner was arrested and charged with aggravated assault. The Petitioner was placed on a pretrial intervention program on March 11, 1983, and he successfully completed the program on September 11, 1983. The charges were dismissed.

   
   

6. The evidence did not explain why the Petitioner represented in Section

   13 of his application that he never had been arrested. Although he conceivably could have forgotten about the 1957 arrest, it is not likely that he forgot about the others, and it is found that the misrepresentation was intentional.

   
   

7. In the late 1960s and early 1970s, the Petitioner had occasion to work as a licensed armed security guard for Foley Security and Detective Agency and for United Security Agency in Tampa. The Petitioner worked for each of them for about a year, until each went out of business. He also worked for Securex and later Bedway as an unarmed security officer from January 29, 1990, until he voluntarily quit pending the resolution of his license application. The Petitioner also has worked as a truck driver and has operated heavy equipment.

   
   

   CONCLUSIONS OF LAW

   
   

8. Section 493.6118(1), Fla. Stat. (Supp. 1990), provides in pertinent part:

   
   

   1. The following constitute grounds for which disciplinary action specified in subsection (2) may be taken by the department against any . . . applicant regulated by this chapter . . ..

      1. Fraud or willful misrepresentation in applying for or obtaining a license.

         
         

         (j) Commission of assault or battery, false imprisonment, kidnapping, or the use of force on any person except in the lawful protection of one's self or another from physical harm.

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

      1. Deny an initial or renewal application for license.

         
         

         (d) Place the licensee on probation for a period of time and subject to such conditions as the department may specify.

         
         

9. The evidence was that the Petitioner has not been convicted of assault or battery, false imprisonment, kidnapping, or the use of force on any person except in the lawful protection of one's self or another from physical harm. The evidence was that the Petitioner has been convicted of only one crime-- contributing to the delinquency of a minor in 1963 by teaching her to drive without her parents' consent. Although arrested for other crimes, including twice for aggravated assault, the Petitioner was not convicted of these other crimes. On the 1965 charge of aggravated assault with a deadly weapon, the Petitioner was acting in self defense. On the 1983 charge of aggravated assault, the Petitioner was reacting in large part to the alleged victim's terrorizing his elderly mother. According to the evidence, there is no basis for denying licensure under Section 493.6118(1)(j).

   
   

10. The Petitioner misrepresented on his application for licensure that he never had been arrested. In fact, he had been arrested several times. It was found to be unlikely that the Petitioner forgot all of his arrests. It must be concluded that the misrepresentation was intentional. This is ground to deny the Petitioner's application under Section 493.6118(1)(a).

    
    

11. Section 493.6118(3), Fla. Stat. (Supp. 1990), provides:

    
    

    (3) The department may deny an application

    for licensure citing lack of good moral character only if the finding by the department of lack of good moral character is supported by clear and convincing evidence. In such cases, the department shall furnish the applicant a statement containing the findings of the department, a complete record of the evidence upon which the determination was based, and a notice of the rights of the applicant to an administrative hearing and subsequent appeal.

    
    

12. Section 493.6101(7), Fla. Stat. (Supp. 1990), provides:

    
    

    (7) "Good moral character" means a personal history of honesty, fairness, and respect for the rights and property of others and for the laws of this state and nation.

    
    

13. In this case, the evidence calls into question the Petitioner's good moral character. The Petitioner intentionally misrepresented on his application for licensure that he never had been arrested. He also has been convicted of a crime--contributing to the delinquency of a minor in 1963 by teaching her to drive without her parents' consent. But the totality of the evidence is not clear and convincing that, taken as a whole, the Petitioner lacks a personal history of honesty, fairness, and respect for the rights and property of others and for the laws of this state and nation. Accordingly, the Petitioner's

    application for licensure should not be denied for lack of good moral character, as that term is defined in Section 493.6101(7). See Albert v. Dept. of Law Enforcement, 16 F.L.W. D239 (Fla. 3d DCA 1991) (ordinarily, the question as to what constitutes good moral character is a question of fact).

    
    

14. The burden of proof in this case in on the Petitioner, as the applicant, to prove entitlement to licensure. See Dept. of Transp. v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). The evidence proved grounds to deny licensure under Section 493.6118(1)(a). The Petitioner's evidence was not sufficient to prove that his application for licensure should be granted.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent, the Department of State, Division of Licensing, enter a final order denying the application of the Petitioner, John P. Fletcher, for licensure as a Class "D" Unarmed Security Officer.

RECOMMENDED this 11th day of February, 1991, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 11th day of February, 1991.

ENDNOTES

1/ Hereafter in this Recommended Order, the statutory citations are to the current statutes, Florida Statutes (Supp. 1990).

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-6581S

To comply with the requirements of Section 120.59(2), Florida Statutes (1989), the following rulings are made on the Respondent's proposed findings of fact (the Petitioner not having filed any):

1. Accepted and incorporated.

2.-4. Subordinate and unnecessary. (This information is related in the Preliminary Statement.)

1. Accepted and incorporated.

2. Second and fourth sentences, rejected as subordinate to facts not proven.

3. Last sentence, rejected as contrary to facts found and to the greater weight of the evidence. (The alleged victim did not just refuse to testify against the Petitioner; the evidence is that the alleged victim testified in support of the Petitioner's version of the events.) The rest is accepted and incorporated.

8.-9. Accepted and incorporated.

10. First sentence, accepted; second sentence, rejected. On cross-examination, the Petitioner attempted to answer questions regarding the circumstances that would justify the use of force by an unarmed security officer. Some of the answers were unclear, but it cannot be found based on those answers that the Petitioner is uncertain as to which circumstances would justify the use of force. The Petitioner successfully has completed the State of Florida eight-hour pre-assignment training program for security officers. Besides, the Petitioner's knowledge as to these matters is not in issue in this case, and the proposed finding is irrelevant and unnecessary.

COPIES FURNISHED:

John P. Fletcher Post Office Box 281 Dover, Florida 33527

Henri C. Cawthon, Esquire Assistant General Counsel Department of State Division of Licensing

The Capitol, MS #4

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT TO THE DEPARTMENT OF STATE, DIVISION OF LICENSING, WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST TEN DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONSULT WITH THE DEPARTMENT OF STATE, DIVISION OF LICENSING, CONCERNING ITS RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER.

Docket for Case No: 90-006581

Orders for Case No: 90-006581