STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES J. KILLACKY, )

)

Petitioner, )

)

vs. ) CASE NO. 92-5416S

) 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 December 9, 1992, in Miami, Florida.

APPEARANCES

For Petitioner: James J. Killacky, pro se

1660 Northeast 150th Street, #206 North Miami, Florida 33181

For Respondent: Henri C. Cawthon, Esquire

Assistant General Counsel Division of Licensing

The Capitol MS 4

Tallahassee, Florida 32399-0250 STATEMENT OF THE ISSUES

Whether Petitioner is entitled to licensure as a Class D Security Officer.

PRELIMINARY STATEMENT

Petitioner's application for licensure as a Class D Security Officer was denied by Respondent based on an FBI criminal background check and based on an alleged misrepresentation by Petitioner on his application. After it was learned that Petitioner received a pardon following his conviction for certain felonies, Respondent determined that there was no felony conviction that would mandate denial of the application, but asserts that the Petitioner's application should nevertheless be denied based on his lack of good moral character as evidenced by his criminal history.

At the formal hearing, Petitioner testified on his own behalf and called as his only witness his employer. Petitioner presented seven exhibits, each of which was accepted into evidence. Photocopies were made of three of Petitioner's exhibits so that the original could be returned to him. Respondent presented no witnesses, but introduced five exhibits, each of which was accepted into evidence. Respondent's Exhibit Four is a stipulation of the parties. An

amendment was made to this exhibit during the course of the hearing. This amendment can be found at page 42 of the transcript.

A transcript of the proceedings has been filed. The proposed findings of fact submitted by Respondent are adopted in material part by this Recommended Order. Petitioner did not submit a proposed recommended order.

FINDINGS OF FACT

1. On February 6, 1992, Respondent received Petitioner's application for a Class "D" Security Officer License. In processing the application, Respondent conducted a criminal background check on Petitioner and received his criminal history as compiled by the Federal Bureau of Investigation (FBI).

   
   

2. By letter dated July 24, 1992, Respondent informed Petitioner of its intent to deny his application for licensure based upon grounds cited in the letter. On August 17, 1992, Respondent received Petitioner's request for a formal hearing and his explanation for the various arrests cited in the denial letter.

   
   

3. On August 14, 1992, Respondent mailed Petitioner an amended denial letter citing additional grounds for the denial of his application. Respondent asserts that it is within its discretion to deny Petitioner's application because his criminal history reflects a lack of good moral character. All other grounds for denial of licensure of Petitioner were abandoned by Respondent at the formal hearing. The following arrests are cited by Respondent as justifying its denial of licensure to Petitioner.

   
   

   CHARGE ONE

   
   

4. On August 21, 1968, Petitioner was arrested on charges of aggravated assault and forgery in Dyersburg, Tennessee. In 1968, Petitioner was discharged from the Army after having served in Viet Nam. He accompanied a friend he had met in the Army to Dyersburg, Tennessee, where he became involved in an altercation with someone who tried to run him off the road while he was riding his motorcycle. The person who tried to run Petitioner off the road stopped and attempted, without success, to hit Petitioner with a tire iron. Petitioner took the tire iron away from this person and hit the person on the head with the tire iron. Petitioner was arrested for aggravated assault and placed in the county jail. At the same time, he and two companions were charged with forgery for purchasing beer with worthless bank checks. Petitioner was told that he would not be tried until after the grand jury convened, and that he would have to wait in the county jail in the interim, a period of four months. Petitioner escaped from the county jail with the help of two other inmates and made his way to Chicago, Illinois. He was subsequently arrested and returned to Tennessee after he waived extradition. Petitioner was thereafter tried and convicted of aggravated assault, forgery, and grand theft and sentenced to three years imprisonment. On January 30, 1970, Petitioner's grand larceny conviction was reduced to a misdemeanor charge of attempt to commit a felony. His three year sentence was commuted and he was granted parole and immediately released after having served eighteen months in jail. Petitioner received a pardon from the governor of Tennessee for the felony convictions resulting from the 1968 arrests.

   CHARGE TWO

   
   

5. In 1973, Petitioner was arrested and convicted of drunk driving in California and placed on probation. On August 2, 1974, in Palm Springs, California, Petitioner was arrested and charged with suspicion of burglary, a violation of California Penal Code 459. His probation from the 1973 conviction was violated, and he was sentenced to sixty days in jail and given two years of probation. The charge of suspicion of burglary was reduced to trespassing. Petitioner was intoxicated and was trespassing when arrested in August 1974. Petitioner testified without contradiction that he was not attempting to steal anything.

   
   

   CHARGE THREE

   
   

6. In September 1980 in Riverside, California, Petitioner was arrested and charged with possession of a device for arson. Petitioner had been threatened by a gang after he identified a gang member as having stabbed a member of another gang. When three carloads of gang members came to his place of residence to threaten him, Petitioner made a Molotov cocktail and threw it in the street to disperse the gang members and to get the attention of the police. This charge was subsequently dismissed.

   
   

   CHARGES FOUR AND FIVE

   
   

7. On May 13, 1988, Petitioner was arrested in Chicago, Illinois, and charged with unlawful use of a weapon and aggravated assault. On July 26, 1988, he was charged with aggravated assault; unlawful use of a weapon/gun; unlawful use of a weapon/tear gas; unlawful use of a weapon/blackjack; and failure to register a firearm. These arrests resulted from Petitioner's attempts to reduce drugs and prostitution in his neighborhood as a pro-active vigilante. On May 13, he fired two warning shots from a .25 caliber pistol into the ground to discourage three would-be attackers. Though the assailants left, an eyewitness filed a complaint with the police which resulted in Petitioner's arrest. On July 26, 1988, Petitioner was arrested while again acting as a vigilante by the same officer who had arrested him on May 13. He had on his person at the time of his arrest an unregistered firearm, a blackjack, and mace. These charges were dismissed when the arresting officer failed to appear in court.

   
   

   CHARGE SIX

   
   

8. Petitioner heard threats against himself and his family because of his efforts to cleanup his neighborhood. On February 3, 1989, Petitioner went to a bar which the people who had been threatening him frequented. He confronted these persons and fired four shots from a .357 firearm into the ceiling. Petitioner was charged with criminal damage to property, reckless conduct, and unlawful use of a weapon. The charge of criminal damage to property was dismissed, but he was found guilty on the other two charges. Petitioner was given a conditional discharge and ordered to pay $264.00. The conditional discharge was revoked in June 1990.

   
   

   CHARGE SEVEN

   
   

9. On May 18, 1989, Petitioner was arrested in Chicago on a traffic violation and charged with resisting or eluding an officer. Petitioner was intoxicated and was driving around setting off firecrackers in the street when the police attempted to pull him over. Because he could not find a place to

   stop, he circled the block a few times before stopping the car. He was adjudicated guilty and had his driver's license revoked for three years.

   
   

   REHABILITATION

   
   

10. Petitioner is an alcoholic, and his arrests can be attributable, in part, to the influence of alcohol. Petitioner has been an active participant in the Miami, Florida, Veterans Affairs (VA) Medical Center Substance Abuse Clinic since October 11, 1989, and has consistently abstained from alcohol since September 7, 1989. Since 1989, Petitioner has lived and worked in Florida. Petitioner has no criminal record since moving to Florida in 1989 and enrolling in the VA substance abuse program. Petitioner has worked for Kent Security since January of 1991, and his employer considers Petitioner to be an outstanding employee.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

    
    

12. As the applicant, Petitioner has the burden of establishing by a preponderance of the evidence his entitlement to the subject license. 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).

    
    

13. Section 493.6118(3), Florida Statutes, provides, in pertinent part, as follows:

    
    

    (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.

    ...

    
    

14. Section 493.6101(7), Florida Statutes, provides the following definition pertinent to this proceeding:

    
    

    (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.

    
    

15. In this proceeding, Respondent abandoned all grounds for denial of licensure to Petitioner except for the assertion that Petitioner lacks good moral character. In the absence of evidence as to the underlying circumstances of these arrests and the evidence as to his rehabilitation, Petitioner's arrest record would provide a sufficient basis for Respondent's determination that Petitioner's licensure should be denied.

    
    

16. Respondent has failed to cite the undersigned to any rules that pertain to the evidence of rehabilitation that an applicant must demonstrate or to the amount of time that must pass before an applicant who has a criminal record can be licensed. Respondent did not introduce any evidence that would serve to explicate such policies. Consequently, it is concluded that the dispositive issue is whether Petitioner produced sufficient evidence of his rehabilitation and of his present good moral character.

17. Petitioner's testimony as to the underlying circumstances of each arrest cited by Respondent for denial of licensure is found to be credible. From that testimony, it is concluded that Petitioner acted with bad judgment, frequently under the influence of alcohol, but that he did not act with malice or out of greed. The evidence of Petitioner's rehabilitation is persuasive and unrebutted. His personal history prior to his coming to grips with his alcoholism justifies denial of his licensure. His personal history since he moved to Florida in 1989 and enrolled in the VA alcoholism program establishes that he is a person of good moral character and that he is entitled to licensure. Notwithstanding such evidence, Respondent argues that Petitioner should be denied licensure until some undetermined point in the future when sufficient time will have passed for Respondent to grant licensure, assuming that Petitioner continues to avoid arrest. In the complete absence of any evidence to justify such a position, it is concluded that Respondent's argument would result in an arbitrary application of the licensure statute and should be rejected.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which grants Petitioner's

application for licensure as a Class D Security Officer.

DONE AND ORDERED this 3rd day of February, 1993, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 3rd day of February, 1993.

COPIES FURNISHED:

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

The Capitol MS 4

Tallahassee, Florida 32399-0250

Mr. James J. Killacky #206

1660 Northeast 150th Street North Miami, Florida 33181

Honorable Jim Smith Secretary of State The Capitol

Tallahassee, Florida 32399-0250

Phyllis Slater, General Counsel 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 ten days in which to submit written exceptions. Some agencies allow a larger period 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: 92-005416

Orders for Case No: 92-005416