STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICK STEPHEN SEAVER, )

)

Petitioner, )

)

vs. ) CASE NO. 91-0947S

)

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Bradenton, Florida on March 27, 1991, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For the Petitioner: Rick Stephen Seaver, pro se

4411 21st Ave., West Bradenton, Florida 34209

For the Respondent: Henri C. Cauthon, Esquire

Division of Licensing The Capitol, M.S.#4

Tallahassee, Florida 32399-0250 STATEMENT OF THE ISSUES

The issue for consideration in this case is whether the Respondent should be denied a Class "D" license as an unarmed security guard because of the matters outlined in the Department's amended letter of denial dated January 24, 1991.

PRELIMINARY STATEMENT

By letter dated January 24, 1991, the Assistant Director of the Department of State's Division of Licensing, (Division), advised the Petitioner herein, Mr. Seaver, that his application for a Class "D" license as an unarmed security guard had been denied because of three violations of the provisions of Section 493.6118, Florida Statutes. On January 31, 1991, the Petitioner requested a formal hearing and by letter dated February 12, 1991, the case was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer.

By Notice of Hearing dated February 25, 1991, after counsel for Respondent submitted his response to the Initial Order filed herein, the undersigned set the case for hearing in Bradenton on March 27, 1991, at which time the case was held as scheduled.

At the hearing, Petitioner testified in his own behalf and presented the testimony of Linda Kay Seaver, his wife. He also joined with the Division in the introduction of Joint Composite Exhibit 1, and subsequent to the hearing, submitted a statement from his previous employer which was considered.

Respondent presented no witnesses, but introduced Respondent's Exhibits A and B.

No transcript was submitted. Respondent submitted a Proposed Recommended Order which contained Findings of Fact which have been accepted and are incorporated in this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the allegations contained herein, the Department of State, Division of Licensing, was the state agency responsible for the licensing of security guards in Florida.

   
   

2. On September 19, 1990, Petitioner, Rick Stephen Seaver, submitted an application for an unarmed security guard license and statewide gun permit to the Division. In Part V of the application, dealing with criminal history, Petitioner indicated he had not ever been convicted of a crime, and further stated he had not been convicted of any felonies. In reality, however, Respondent had been convicted of possession of marijuana in Johnson City, Tennessee, on February 19, 1981, and on October 23, 1986, was convicted of one charge of simple assault and one charge of carrying a firearm. This latter series of offenses also took place in Johnson City.

   
   

3. When this information was made available to the Department, by a letter dated January 24, 1991, an Amended Letter of Denial, the Division denied the Petitioner's application for an unarmed security guard license, alleging that he had been guilty of fraud or willful misrepresentation in applying for or obtaining a license, in violation of Section 493.6118(1)(a), Florida Statutes; had been convicted of crimes which directly relate to the business for which the license was sought, in violation of Section 493.6118(1)((c), Florida Statutes; and failed to have the requisite good moral character called for under the provisions of Section 493.6118(3), Florida Statutes.

   
   

4. At the hearing, Respondent withdrew as a basis for denial the allegation of fraud or willful misrepresentation and further stipulated that none of the offenses of which the Petitioner had been found guilty were felonies. It is so found.

   
   

5. Petitioner has been married to his wife for five years. Though he did not adopt her son by a previous marriage, he has provided the sole support and guidance to the boy since the marriage, and in Mrs. Seaver's opinion, has been a good father and good husband. For the five months prior to his dismissal from employment with Jewell Security Agency, as a result of the Division's action denying him a license, Mr. Seaver worked as an unarmed security guard in Bradenton. He worked as an outdoor guard at night, unarmed, at various establishments throughout the City of Bradenton, and during his term of employment, only one business where he was on guard, was ever robbed. That one occasion took place before he came on duty the day in question and the police were able to identify the perpetrators.

   
   

6. According to James E. Jewell, owner of the agency and Petitioner's employer, Petitioner was an outstanding employee who was always on time, never called in sick, and performed his duties in a manner felt to be a credit to the company. Jewell found Petitioner to be completely honest and trustworthy.

7. Before working with Jewell, Petitioner worked as a baker in Sarasota for 2 1/2 years after his move from Tennessee. He left that job only because of a dispute he had with the manager over some vacation time which previously had been approved, but which was later denied him. He quit and was not discharged.

   
   

8. Before coming to Florida he also worked as a baker in Tennessee for about 13 to 14 years without difficulty and without any criminal record other than the offenses forming the basis for the denial here. The assault charge occurred just before he and his wife were married when he used a firecracker to blow out the window of the house of an individual, then under charges for rape, who was harassing and annoying his intended wife. The charge of carrying a weapon arose out of an unloaded gun which was found under the passenger seat of a vehicle in which he was riding as a passenger when he was stopped for the assault. The assault did not involve the use of the weapon, but as a result of his plea, he was convicted and sentenced to 11 months and 29 days in jail, all of which was suspended. Prior to the trial on those offenses, from the time of his arrest, he was free on bond.

   
   

9. The possession of marijuana charge took place in 1981 at which time Petitioner was approximately 24 years old. At that time, he was found guilty of possession of less than an ounce of marijuana and was sentenced to pay a fine of

   $250.00.

   
   

10. Mr. Seaver has not had any other infractions and according to his wife, has not been cited with so much as a traffic ticket in the five years they have been married. No evidence to the contrary was presented.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

12. Under the provisions of Sections 493.6105 and 493.6121, Florida Statutes, the Division has the authority to receive applications for licenses as a security officer and to conduct investigations into the background of the applicant to insure he or she meets the requirements for licensure outlined in Section 493.6106.

    
    

13. One of those requirements, found at subsection 493.6106(1)(b), is that the applicant "be of good moral character." That phrase is defined in Section 493.6101(7), as:

    
    

    ... a personal history of honesty, fairness, and respect for the rights and property of

    others and for the laws of this state and nation.

    
    

14. Section 493.6118, Florida Statutes, also lists, as grounds for discipline against a licensee or applicant, at subsection (c):

    
    

    Conviction of a crime which directly relates to the business for which the license is held or sought ....

15. In this case, the Division seeks to deny Mr. Seaver licensure based upon his 1981 Tennessee conviction at the age of 24 for the possession of less than an ounce of marijuana, and his 1986 conviction of assault of an individual who had been harassing his fiance, and possession of a handgun.

    
    

16. The statute specifically permits one convicted of an offense to present evidence in mitigation regarding the underlying charges. Here, that evidence indicates that the marijuana conviction was for mere possession of a small amount of the substance ten years ago, and the circumstances surrounding the assault charge, which came about when Mr. Seaver threw a firecracker at the window of the house of an individual, previously charged with rape in an unrelated case, who had been harassing his finance are not of a serious nature. The weapons charge related to having an unloaded pistol in his automobile. It was not used in the commission of an offense, and none of the offenses directly relate to the security guard business.

    
    

17. Taken together, these offenses, which occurred so long ago, and which have been followed by five years of exemplary behavior, do not constitute such serious misconduct as to render Mr. Seaver not "of good moral character." To the contrary, the evidence shows him to be a good husband and a good father to his wife's child by a prior marriage, and his work record has been creditable.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that a Final Order be entered in this case granting Petitioner, Rick Stephen Seaver, a Class "D" Unarmed Security Officer License.

RECOMMENDED this 23rd day of April, 1991, in Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 23rd day of April, 1991.

Copies furnished:

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

The Capitol, MS #4

Tallahassee, Florida 32399-0250

Rick Stephen Seaver 4411 21st Avenue West

Bradenton, Florida 34209

Hon. Jim Smith Secretary of State The Capitol

Tallahassee, Florida 32399-0250

Phyllis Slater General Counsel Department of State The Capitol

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 which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.

Docket for Case No: 91-000947

Orders for Case No: 91-000947