) CASE NO. 91-7784S
Respondent. )
Notice was provided and on March 12, 1992, in the Offices of the Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida, a formal hearing was held in this case. The authority for conducting the hearing is set forth in Section 120.57(1), Florida Statutes.
Charles C. Adams was the Hearing Officer.
For Petitioner: Ronald L. Jones, Esquire
Respondent: Henri C. Cawthon, Esquire
At issue is the Petitioner's request to have Respondent grant him a Class "C" Private Investigator License.
Petitioner applied for a Class "C" Private Investigator License.
Respondent denied that license. Petitioner requested a formal hearing to dispute the decision to deny. The case was then forwarded to the Division of Administrative Hearings to conduct a hearing. The hearing was held on the date previously mentioned.
The grounds for denial had originally been set forth in the October 30, 1991 letter from Respondent to Petitioner. Through a motion to dismiss the Petitioner challenged the adequacy of that letter in apprising the Petitioner as to reasons for the denial. Respondent offered its response to the motion by setting forth an amended statement of denial with supporting documentation.
Under those circumstances, having concluded that the amended notice of denial sufficiently explained the reasons, the motion to dismiss was denied.
Petitioner testified at hearing. Respondent's exhibits 1 through 3 were admitted into evidence. This together with a limited factual stipulation between the parties constituted the evidential presentation.
The parties did not request a transcript. Proposed recommended orders by the parties have been submitted. The proposed fact finding by the parties is subordinate to the facts found in the recommended order. By granting Petitioner's request to file his proposed recommended order more than 10 days beyond the hearing date the requirement for entering the recommended order within 30 days of that date was waived. See Rule 22I-6.031, Florida Administrative Code.
Petitioner completed an application for issuance of a Class "C" Private Investigator License. That license request was denied on October 30, 1991. On November 20, 1991, Petitioner challenged the denial leading to the formal hearing held pursuant to Section 120.57(1), Florida Statutes. The statement of denial was amended on December 23, 1991. The reasons in the amendment are associated with Petitioner's criminal law history. The amended statement of denial frames the dispute.
Petitioner was charged in the case of United States of America v. Hugh Mattingly Padgett, Jr., No. 63-230-CR-J, in the United States District Court for the Middle District of Florida, Jacksonville Division, with having in his possession and custody, and under his control, a still and distilling apparatus set up, which had not been registered as required by law, in violation of Title
26 U.S.C., Section 5601(a)(1). He was convicted in that case upon a plea of guilty and fined $500. He was given a nineteen month sentence with was suspended upon service of probation for three years under supervision. The judgement and order of probation was entered on January 31, 1964. The probation was terminated after two years of service. That action by the Court shortening the probationary period was by order drawn on January 17, 1966.
On May 8, 1981, in Hunterton County, New Jersey, Petitioner was convicted of distributing a controlled substance, methaqualone; possession of that controlled substance; possession of that controlled substance with intent to distribute and conspiracy to distribute that controlled substance. For this conviction he received a prison term totalling ten years and a $45,000 fine. Petitioner served the prison sentence in New Jersey.
There was a Florida criminal law case which was basically the factual counterpart to the New Jersey prosecution. That case was State of Florida v. Hugh M. Padgett, Jr., No. CF880-2813A2-XX, in the Circuit Court, Tenth Judicial Circuit, in and for Polk County, Florida. On June 27, 1989, Petitioner plead guilty to the Florida case. That plea pertained to a violation of the Florida Racketeering Influence and Corrupt Organization Act, Section 943.462(3), Florida Statutes, and trafficking in methaqualone more than five kilograms but less than
25 kilograms, a lesser included offense, Section 893.135(1)(e)3, Florida Statutes. Part of the sentence which Petitioner was given in the Florida case involving the controlled substance methaqualone was a five year mandatory minimum sentence pursuant to Section 893.135(1), Florida Statutes. For entering his plea the court sentenced the Petitioner to a period of eight years concurrent time with 192 days credit for jail time served. Later by order of
February 14, 1990, in connection with the case, Petitioner was given credit for 894 days of jail time served, reflecting credit for time spent in New Jersey awaiting return to Florida.
The two cases involving controlled substances stem from activities by the Petitioner in 1980 in both Florida and New Jersey.
Concerning the 1964 Federal conviction, Petitioner acknowledges that he knew of the operations of what he referred to as a "moonshine still" but denies that he received any money from that operation beyond rent money from the person to whom he had rented a house and upon which property the still had been found.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action pursuant to Section 120.57(1), Florida Statutes.
As the party attempting to obtain a license Petitioner must prove his entitlement to that license. See Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). Petitioner has completed the license application. That application was met with denial based upon Petitioner's criminal history. If Respondent's perception concerning that criminal history is correct, Petitioner is not entitled to the Class "C" license which he has applied for. Respondent is convincing in its proof concerning Petitioner's criminal history.
Section 493.6118(4), Florida Statutes (1991), states:
Notwithstanding the provisions of paragraph (1)(c) and subsection (2), if the applicant or licensee has been convicted of a felony in any state or of a crime against the United States which is designated as a felony, or convicted of an offense in any other state, territory, or country punishable be imprisonment for a term exceeding 1 year, the department shall deny the application or revoke the license unless and until civil rights have been restored by the State of Florida or by a state acceptable to Florida and a period of 10 years has expired since final release from supervision. Additionally, a Class "G" applicant who has been so convicted shall also have had the specific right to possess, carry, or use a firearm restored by the State of Florida. A conviction based on a plea of nolo contendere shall create a rebuttable presumption of guilt to the underlying criminal charges, and the department shall allow the person being disciplined or denied an application for a license to present any mitigating evidence relevant to the reason for, and the circumstances surrounding, his plea. The department shall deny the application of any applicant who is currently serving a suspended sentence on a felony charge, or is on probation on a felony charge. The grounds for discipline or denial cited in this subsection shall be applied to any disqualifying criminal history regardless of the date of commission
of the underlying criminal charge. Such provision shall be applied retroactively and prospectively.
As the above-referenced section contemplates, Petitioner has been convicted of a felony for his involvement with the controlled substance methaqualone and has been convicted in this state and another state for an offense punishable by imprisonment by a term exceeding one year. Pertaining to the methaqualone incident, it has not been shown that Petitioner's civil rights have been restored by the State of Florida or by a state acceptable to Florida, nor has it been shown that a period of ten years has expired since the final release from supervision associated with those convictions. Under the circumstances, the Respondent should deny the application for the Class "C" license.
In reaching the conclusion concerning the significance of Section 493.6118(4), Florida Statutes (1991), the case of Middlebrooks v. Department of State, 565 So.2d 727 (Fla. 1st DCA 1990) has been taken into account. The Middlebrooks case discussed language associated with the significance of conviction of a felony under the then existing statement found within Chapter 493, Florida Statutes. The law under discussion was reported as Section 493.319(1)(p), Florida Statutes (1987). The language in that section, which had been renumbered, stated:
Notwithstanding the provisions of paragraph (1)(c) and subsection (2), the department shall deny an application or revoke a license when the person or licensee 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 created 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.
Significantly, the Middlebrooks court was speaking to the Department of State's attempt to discipline Middlebrooks for his Class "D" license, as contrasted with a matter involving a license application. The court reversed the agency action because the agency attempted to retroactively employ the disciplinary aspects of the above-cited language to a felony conviction against Middlebrooks which had occurred in 1979. The Middlebrooks court cited to State
v. Lavazzoli, 434 So.2d 321, (Fla. 1983), in which it was held that unless there is a clear expression of legislative intent that the law be applied retroactively, it is presumed to operate prospectively, meaning that it would only have application to conduct which occurs subsequent to the effective date of the statutory amendment. Ordinarily in a license application case the law in effect at the time that the application is made shall control. Unlike the Middlebrooks case, Petitioner as applicant is held accountable for conduct which predates the effective date of Section 493.6118(4), Florida Statutes (1991). Also, Section 493.6118(4), Florida Statutes (1991), emphasizes that the legislature had in mind retroactive application of the Section thus overcoming the Middlebrooks court's concern that the law existing at that time did not make clear that it was to be applied retroactively. Finally, in this case the problem that a statute that has been amended to allow disciplinary action against an occupational license already held should be construed strictly and
prospectively is not presented in that the license has yet to be issued. See Lewis v. Criminal Justice Standards and Training Commission, 462 So.2d 528 (Fla. 1st DCA 1985).
Respondent has offered two additional grounds for denying the license application. These are found at Sections 493.6118(1)(c) and 493.6118(3), Florida Statutes, which state respectively:
(1)(c) Conviction of a crime which directly relates to the business for which the license is held or sought, regardless of whether imposition of sentence was suspended. A conviction based on a plea of nolo contendere shall create a rebuttable presumption of guilt to the underlying criminal charges, and the department shall allow the individual being disciplined or denied an application for a license to present any mitigating evidence relevant to the reason for, and the circumstances surrounding, his plea.
* * *
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.
Although it would not appear necessary to resort to an analysis of these reasons for denying the license in deciding the issue, as supplemental authority, Petitioner does not qualify for licensure in that the crimes involving methaqualone are seen to relate directly to the business he would conduct under his Class "C" license and these crimes are an indication of a lack of good moral character which is clear and convincing.
