STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM F. WATTS, )

)

Petitioner, )

)

vs. ) CASE NO. 92-2656S

)

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on July 9, 1992, in West Palm Beach, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: William F. Watts, pro se

423 Cypress Drive Apartment 10

Tequesta, Florida 33469

For Respondent: Henri C. Cawthon, Esquire

Assistant General Counsel Department of State Division of Licensing

The Capitol, M.S. #4 Tallahassee, Florida 32399-0250

STATEMENT OF THE ISSUE

Whether Petitioner's application for licensure as a Class "D" Security Officer should be denied on the grounds set forth in the Department of State, Division of Licensing's (Department's) March 26, 1992, letter to Petitioner?

PRELIMINARY STATEMENT

By letter dated March 26, 1992, the Department notified Petitioner of its intention to deny his application to be licensed as a Class "D" Security Officer. The letter alleged that Petitioner (1) had been guilty of "[f]raud or willful misrepresentation in applying for [the] license," in violation of Section 493.6118(1)(a), Florida Statutes; (2) had been convicted of "a crime which relate[d] to the business for which the license [was being sought]," in violation of Section 493.6118(1)(c), Florida Statutes; and (3) lacked "good moral character." Petitioner requested a formal administrative hearing on the matter. On April 28, 1992, the case was referred to the Division of

Administrative Hearings for the assignment of a Hearing Officer to conduct the formal administrative hearing Petitioner had requested.

Petitioner was the only witness to testify at the final hearing held in this matter. In addition to his testimony, five exhibits were offered and received into evidence. 1/

At the close of the evidentiary portion of the hearing on May 27, 1992, the Hearing Officer advised the parties on the record that post-hearing submittals had to be filed no later than 14 days following the Hearing Officer's receipt of the hearing transcript. The Hearing Officer received the hearing transcript on July 30, 1992. The Department filed a proposed recommended order on August 12, 1992. The proposed findings of fact set forth in the Department's proposed recommended order have been carefully considered and are specifically addressed in the Appendix to this Recommended Order. To date, Petitioner has not filed any post-hearing submittal.

FINDINGS OF FACT

Based upon the record evidence, the following Findings of Fact are made:

1. Petitioner is 56 years of age.

   
   

2. He has had numerous brushes with the law, many of them alcohol-related, dating back to 1956, but he has never been convicted of a felony.

   
   

3. In June of 1956, Petitioner attempted to purchase a beer in Sacramento, California. He was 19 years old at the time and, although in the military, under the legal drinking age. Petitioner was arrested and charged with a misdemeanor violation of California's alcoholic beverage control law. He received a ten-day suspended sentence.

   
   

4. In November of 1956, when Petitioner was stationed on a military base in Amarillo, Texas, he and friend, without authorization, went into a room on the base where weapons were stored. They took possession of a .38 calibre firearm and started "playing with it." Petitioner was arrested and charged with the misdemeanor offenses of unlawful entry and wrongful appropriation. He received a bad conduct discharge, which was suspended. After attending a rehabilitation training program, he returned to active military service.

   
   

5. In May of 1962, Petitioner was arrested for operating a motor vehicle under the influence of alcohol, a misdemeanor. He was subsequently convicted of the offense. His license was suspended for ten days and he was ordered to pay

   $25 in court costs.

   
   

6. In the early part of 1964, Petitioner, along with several others, charged $700 worth of merchandise in a department store in Indianapolis, Indiana using credit card slips they had forged. Petitioner was arrested and charged with the felony offense of uttering a forged instrument. Adjudication of guilt on this charge was withheld and Petitioner was placed on three years probation.

   
   

7. In October of 1968, while in Anderson Indiana, Petitioner was arrested and charged with theft by deception for having written checks in amounts that exceeded the balance of his checking account. The checks were actually written by Petitioner's estranged wife without his knowledge. The charge against Petitioner was dropped after restitution was made.

8. In January of 1969, Petitioner was again arrested in Anderson, Indiana and charged with theft by deception for having written bad checks. These checks were written by Petitioner, but he did not realize at the time he wrote them that, because of his wife's check writing, he had insufficient funds in his account. Adjudication of guilt on this charge was withheld and Petitioner was placed on probation for a year.

   
   

9. In February of 1970, Petitioner stayed in a Naples, Florida hotel for approximately three or four days. When he checked out, he did not have enough money to pay his bill. Petitioner was arrested and charged with the misdemeanor offense of defrauding an innkeeper. Less than a week later, Petitioner made restitution and the charge against him was dropped.

   
   

10. The following month, while in Miami Beach, Florida, Petitioner was again unable to pay a hotel bill and, as a result, arrested and charged with defrauding an innkeeper. This charge was also dropped after Petitioner made restitution.

    
    

11. In May of 1970, Petitioner was arrested and charged with breaking and entering a Naples, Florida restaurant with intent to commit grand larceny. The charge was unfounded and it was subsequently dropped.

    
    

12. In January of 1971, Petitioner was driving a motor vehicle in Fort Myers, Florida that had an expired inspection sticker affixed to it. He was stopped by the police and a firearm belonging to a passenger was discovered in the vehicle. Petitioner was arrested and charged with unlawful possession of a firearm and driving a vehicle with an expired inspection sticker. The former charge was dropped. With respect to the latter charge, Petitioner was fined $30 or $35.

    
    

13. In October of 1971, Petitioner was arrested in Naples, Florida and charged with writing a worthless check. The check was in the amount of $20 or

    $25. At the time he wrote the check, Petitioner was unaware that he did not have enough money in his account to cover the check. Petitioner subsequently made restitution and the charge was dropped.

    
    

14. In February of 1976, in Lauderhill, Florida, Petitioner was arrested and again charged with writing a worthless check. The amount of this check was less than $50. Petitioner pled guilty to this misdemeanor offense and was fined

    $10. In addition to paying the fine, Petitioner made restitution.

    
    

15. That same month, Petitioner was arrested in Sunrise, Florida and charged with battery on his wife. The charge was unfounded and it was subsequently dropped.

    
    

16. In July of 1976, in Fort Lauderdale, Florida, Petitioner was arrested and charged with aggravated assault, assault and battery and petty larceny. All of these charges were unfounded; however, as a matter of convenience and pursuant to a plea agreement, Petitioner pled no contest to the assault and battery charge. Adjudication of guilt on this charge was withheld. Petitioner received a 90-day suspended sentence and a $352 fine, which was also suspended. The remaining charges against Petitioner were dropped.

    
    

17. In December of 1977, Petitioner was again arrested in Fort Lauderdale, Florida. On this occasion, he was charged with two counts of writing worthless checks under $50. Petitioner subsequently made restitution and the charges were dropped.

18. In February of 1980, in Jasper, Florida, Petitioner was arrested and charged with driving while intoxicated, speeding, driving without a valid drivers license and refusing to sign a summons. The latter charge was dropped. Petitioner pled guilty to the remaining charges and was adjudicated guilty on these charges by the trial court. For speeding and driving without a valid drivers license, he was fined. For driving while intoxicated, he was also fined and, in addition, his drivers license was suspended and he was ordered to attend DWI school.

    
    

19. In May of 1985, in West Palm Beach, Florida, Petitioner was arrested on a Dade County, Florida warrant that had been issued in 1980, when he had been charged with two felony counts of writing worthless checks. The checks had actually been written by Petitioner's daughter. After his arrest, Petitioner made restitution and the charges against him were dropped.

    
    

20. In November of 1985, Petitioner was arrested in West Palm Beach, Florida and charged with driving while intoxicated. He pled guilty to this misdemeanor charge. The trial court adjudicated Petitioner guilty and suspended his license for six months and ordered him to attend DWI school.

    
    

21. Petitioner has not been in trouble with the law since. He is now a law-abiding citizen, who is better able to control is intake of alcohol.

    
    

22. In filling out Section 5 of his application for licensure, which addressed the subject of criminal history, Petitioner did not intentionally make any misrepresentations or omit any required information. It was his understanding that he was required to disclose information relating only to felony convictions in this section of the application.

    
    

    CONCLUSIONS OF LAW

    
    

23. Petitioner is seeking a Class "D" Security Officer license.

    
    

24. An applicant for such a license must, among other things, "[b]e of good moral character." Section 493.6106(1)(b), Fla. Stat.

    
    

25. "Good moral character," as that term is used in Chapter 493, Part I, Florida Statutes, "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." Section 493.6101(7), Fla. Stat.

    
    

26. "The [D]epartment may deny an application for licensure citing lack of good moral character only if the finding of the [D]epartment of lack of good moral character is supported by clear and convincing evidence." Section 493.6118(3), Fla. Stat. "The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

    
    

27. In those cases where the Department is relying upon lack of good moral character as a ground for licensure denial, it must "furnish the applicant a statement containing the findings of the [D]epartment, 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." Section 493.6118(3), Fla. Stat.

28. Lack of good moral character is among the reasons given by the Department for its proposed denial of Petitioner's licensure application. The record evidence, however, does not clearly and convincingly support such a finding. While Petitioner has engaged in criminal conduct in the past, taking into account the nature of these offenses, the circumstances surrounding their commission and the length of time that has passed since Petitioner engaged in such conduct, it cannot be said with firm belief and conviction and without hesitancy that, because of these past transgressions, Petitioner is not now of "good moral character," within the meaning of Section 493.6118(3), Florida Statutes. Accordingly, the Department may not deny his application for licensure based upon his lack of "good moral character."

    
    

29. In its letter to Petitioner advising him of its proposed denial of his application for licensure, the Department, in support of its proposed action, also cited Section 493.6118(1)(a) and (c), Florida Statutes.

    
    

30. An applicant for a Class "D" Security Officer license may be denied licensure pursuant to Section 493.6118(1)(a), Florida Statutes, if he has been guilty of "[f]raud or willful misrepresentation in applying for [the] license." The evidence in the instant case, however, does not establish that Petitioner knowingly provided inaccurate or incomplete information in his application for licensure with the intent to defraud or deceive the Department about his past. To the contrary, it appears that he made every effort to be honest and truthful in completing the application. 2./ Accordingly, the Department may not deny Petitioner licensure on the ground that he is guilty of having violated Section 493.6118(1)(a), Florida Statutes, as alleged by the Department.

    
    

31. Section 493.6118(1)(c), Florida Statutes, authorizes, but does not require, the Department to deny an application for licensure for the following:

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 contendre 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 crime that, the Department alleges, warrants the denial of Petitioner's application for licensure under this statutory provision is that described in Finding of Fact 6 of this Recommended Order, which was committed more than 28 years ago. Petitioner was never convicted of this crime, however. Adjudication of guilt was withheld. Accordingly, the Department's allegation that Petitioner's application should be denied because he violated Section 493.6118(1)(c), Florida Statutes, is without merit. See Kinney v. Department of State, 501 So.2d 129, 133 (Fla. 5th DCA 1987).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Department enter a final order finding that Petitioner should not be denied licensure as a Class "D" Security Officer on the grounds cited in the Department's March 26, 1992, denial letter.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of August, 1992.

STUART M. LERNER

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 18th day of August, 1992.

ENDNOTES

1/ Petitioner's application for licensure was not among these exhibits.

2/ The application itself was not offered into evidence at the final hearing held in this cause. The only evidence regarding the contents of the application and why Petitioner filled it out as he did was Petitioner's own testimony on the matter, which the Hearing Officer has credited.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-2656S

The following are the Hearing Officer's specific rulings on the findings of fact proposed by the Department:

1-6. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

7. To the extent that this proposed finding asserts that Petitioner was ordered to pay restitution, it has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance.

8-15. Accepted and incorporated in substance.

16. To the extent that this proposed finding asserts that Petitioner pled guilty, as opposed to no contest, to the assault and battery charge, it has been rejected because it is contrary to the greater weight of the evidence. Otherwise, it has been accepted and incorporated in substance.

17-20. Accepted and incorporated in substance.

21-22. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

COPIES FURNISHED:

William F. Watts

423 Cypress Drive Apartment 10

Tequesta, Florida 33469

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

The Capitol, M.S. #4 Tallahassee, Florida 32399-0250

Honorable Jim Smith Secretary of State The Capitol

Tallahassee, Florida 32399-0250

Phyllis Slater General Counsel Department of State The Capitol, PL-02

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 OF TIME WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY 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: 92-002656

Orders for Case No: 92-002656