STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ULRICK JEAN-BAPTISTE )

)

Petitioner, )

)

vs. ) CASE NO. 94-5463S

)

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Respondent. )

) DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 94-6872

)

ULRICK JEAN-BAPTISTE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was held in these consolidated cases before Patricia Hart Malono, Hearing Officer of the Division of Administrative Hearings, on February 1, 1995, at Miami, Florida.

APPEARANCES

For Petitioner: Frantz Olivier

The Causeway Professional Building 777 Northeast 79th Street, Causeway Suite 104

Miami, Florida 33138

For Respondent: Kristi Reid Bronson

Assistant General Counsel Department of State Division of Licensing

The Capitol, Mail Station Number 4 Tallahassee, Florida 32399-0250

STATEMENT OF THE ISSUES

At issue in Case No. 94-5463S is whether the Petitioner's application for a Class 'G' Statewide Firearm License should be granted or denied. At issue in Case No. 94-6872 is whether the Respondent's Class 'D' Security Officer License should be revoked or otherwise disciplined based upon the violations of Chapter 493, Florida Statutes, alleged in the Amended Administrative Complaint filed by the Department.

PRELIMINARY STATEMENT

In Case Number 94-5463S, the Department of State, Division of Licensing (the 'Department'), notified Petitioner, Ulrick Jean-Baptiste ('Jean-Baptiste'), in a letter dated August 15, 1994, that it had denied his application for a Class 'G' Statewide Firearm License. The grounds for denial referenced in the letter were that (1) he failed to qualify for such a license under Section 493.6118(1)(a), Florida Statutes, because he allegedly committed fraud or willful misrepresentation by failing to list an alias, Ulrick Baptiste, on his application; (2) he failed to qualify for such a license under Section 493.6118(1)(c) because he allegedly was convicted of a crime related to the business for which his license was sought; and, (3) he failed to qualify under Section 493.6118(1)(s) because he allegedly violated the provisions of Chapter

493. With regard to all of these grounds for the license denial, the Department referenced the date of February 29, 1992, and noted a charge of 'obstruct/disguise' in Dade County.

In Case Number 94-6872, the Department filed a one-count Administrative Complaint dated September 26, 1994, in which it sought to impose disciplinary action against Jean-Baptiste's Class 'D' Security Officer License on the grounds that he was in violation of Section 493.6118(1)(c), Florida Statutes. The complaint was based on his alleged conviction of the crime of obstruction while in disguise.

Jean-Baptiste timely requested a formal hearing with respect to each of these matters, disputing the allegations stated in the letter of denial and in the Administrative Complaint. The cases were referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct formal hearings pursuant to Section 120.57(1), Florida Statutes.

By Notice of Hearing dated October 26, 1994, Case Number 94-5463S was scheduled for hearing on February 1, 1994. By Order dated December 28, 1994, Case Number 94-5463S was consolidated with Case Number 94-6872, as requested in the Department's uncontested Motion to Consolidate filed December 6, 1994. Case Number 94-6872 was likewise scheduled for hearing on February 1, 1995.

On January 25, 1995, the Department filed a Motion for Leave to File an Amended Administrative Complaint and Amended Denial Letter. In the proposed Amended Denial Letter attached to the motion, the Department (1) added a second alias, Joseph Jean Pierre, to the ground for denial based on Jean-Baptiste's having committed fraud or willful misrepresentation in his application for licensure under Section 493.6118(1)(a); (2) deleted the ground that he had violated a provision of Chapter 493; and (3) added a ground that the Department had received criminal history indicating that Jean-Baptiste lacked respect for the laws of this state, in violation of Section 493.6118(3).

In a Stipulation and Settlement filed January 27, 1995, counsel for Jean- Baptiste agreed not to oppose the motion to amend the letter of denial, and the

Department agreed to drop as a basis for its denial of the application for a Class 'G' Statewide Firearm License Jean-Baptiste's alleged conviction of a crime relating to the business for which he held the license. Pursuant to the stipulation, the parties agreed to proceed in Case No. 94-5463S on the remaining two grounds stated in the Amended Denial Letter dated January 25, 1995.

In the proposed Amended Administrative Complaint attached to the Department's motion, the Department retained Count I from the original complaint and added a second count seeking to take disciplinary action against Jean- Baptiste's Class 'D' Security Officer License on the ground that he 'lacks respect for the rights and property of others or for the laws of this state and nation and is not qualified for licensure pursuant to Section 493.6106(1)(b), 493.6118(1)(s), and 493.6101(7), Florida Statutes.' Count II is based on the allegation that Jean-Baptiste committed obstruction of justice on February 29, 1992.

In the Stipulation and Settlement filed January 27, 1995, counsel for Jean- Baptiste agreed not to oppose the motion to amend the Administrative Complaint, and the Department agreed to dismiss Count I of the Amended Administrative Complaint (conviction of the crime of obstruction of justice) and to proceed solely on the allegations in Count II (lack of respect for the laws of this state).

At the hearing, the Department presented the testimony of one witness, Trooper Talton B. Dunn of the Florida Highway Patrol. Jean-Baptiste testified on his own behalf, and his Exhibit 1, a copy of a Florida Driver License issued to Ulrick Jean-Baptiste on February 25, 1993, was received into evidence without objection.

At the conclusion of the hearing, the Department stated that a transcript would be provided. Counsel for both parties agreed to submit proposed findings of fact and conclusions of law within ten days of the date the transcript was filed. The transcript was filed on February 13, 1995. The Department filed a Proposed Recommended Order in each case on February 27, 1995, to which were attached responses to Respondent's First Request for Admissions in Case No. 94- 5463S. Jean-Baptiste did not file any post-hearing submission. The proposed findings of fact contained in the Department's Proposed Recommended Orders are addressed in the appendix to this Recommended Order.

FINDINGS OF FACT

1. On or about March 15, 1994, Jean-Baptiste submitted to the Department an application for a Class 'G' Statewide Firearm License pursuant to Chapter 493, Florida Statutes. At all times material to this case, Jean-Baptiste held Class 'D' Security Officer License Number D91-05252, issued by the Department pursuant to Chapter 493, Florida Statutes.

   
   

2. On February 29, 1992, Jean-Baptiste was the driver of an automobile involved in a minor traffic accident in Homestead, Florida.

   
   

3. The accident was investigated by Trooper Talton B. Dunn of the Florida Highway Patrol.

   
   

4. When, in the course of his investigation, Trooper Dunn asked Jean- Baptiste for his driver's license, Jean-Baptiste replied that he did not have a license in his possession. Trooper Dunn asked his name, and Jean-Baptiste gave

   the name 'Joseph Jean Pierre.' Trooper Dunn was unable to obtain confirmation that a Florida driver's license had been issued to anyone by that name.

   
   

5. Trooper Dunn then asked one of the small children who were passengers in the car driven by Jean-Baptiste if she knew the driver's name. The child, who identified herself as the driver's daughter, stated that his name was 'Jimmy Baptiste,' and Jean-Baptiste agreed that this was his name when asked by Trooper Dunn. Trooper Dunn was unable to obtain confirmation that a Florida driver's license had been issued to anyone by the name of 'Jimmy Baptiste.'

   
   

6. When Trooper Dunn again asked for his name, Jean-Baptiste stated that his correct name was the first name he had given, 'Joseph Jean Pierre.' At some point in the discussion, Jean-Baptiste told Trooper Dunn that his license had been suspended.

   
   

7. Trooper Dunn arrested Jean-Baptiste for, among other infractions, giving false information on an accident report and obstructing justice. Jean- Baptiste gave his correct name to the authorities at the jail when he was being fingerprinted.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.57(1), Fla. Stat.

   
   

9. Sections 493.6105 and 6106, Florida Statutes, give the Department the authority to issue licenses pursuant to Chapter 493. The Department also has the authority to take disciplinary action against licensees and applicants for licenses regulated by Chapter 493 based on any of the grounds stated in Section 493.6118(1), Florida Statutes. Section 493.6118(2), Florida Statutes, specifies that permissible discipline includes denial of an initial application for a license, imposition of an administrative fine not to exceed $1,000, placement of the licensee under probation for a specified period of time, or suspension or revocation of the license.

   
   

10. The first ground for denial of Jean-Baptiste's application for a Class 'G' Statewide Firearm License alleged in the Department's Amended Denial Letter is that Jean-Baptiste committed fraud and willful misrepresentation by failing to list two aliases on his application for licensure. Neither party introduced the application into evidence at the hearing. It cannot, therefore, be determined from this record whether Jean-Baptiste failed to list the aliases as alleged in the Amended Denial Letter. The Department failed to address this ground in its Proposed Recommended Order, and this ground is considered abandoned by the Department.

    
    

11. Generally, where an applicant is seeking licensure, it is the applicant's burden to prove entitlement to the license by a preponderance of the evidence. Florida Department of Transportation v. J.W.C., Inc., 396 So. 2d 778, 788 (Fla. 1st DCA 1981). However, Section 493.6118(3) provides that, if the Department denies an application for licensure on the grounds of lack of good moral character, the Department must support its finding by clear and convincing evidence. Cf. Osborne Stern & Co. v. Department of Banking & Finance, 19 Fla.

    L. Weekly D882 (Fla. 1st DCA April 19, 1994)(when agency denies application on grounds of misconduct, agency bears burden of proving misconduct by clear and convincing evidence).

12. With regard to disciplinary actions, the Department has the burden of proving the allegations against a licensee. When the Department is seeking, as here, to revoke a license, the allegations must be proven by clear and convincing evidence, see Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987), and disciplinary action may be based only on violations specifically alleged in the administrative complaint. See Kinney v. Department of State, 501 So. 2d 129,

    133 (Fla. 5th DCA 1987).

    
    

13. In the remaining ground for denial of Jean-Baptiste's application for a Class 'G' Statewide Firearm License, the Department alleged that Jean-Baptiste 'lacks respect for the laws of this state and nation.' Similarly, in Count II of the Amended Administrative Complaint the Department seeks to impose disciplinary action on Jean-Baptiste's Class 'D' Security Officer License on the ground that he allegedly violated Section 493.6118(1)(s), which allows the Department to take disciplinary action if a licensee has violated 'any provision of this chapter [Chapter 493].' The specific violation of Chapter 493 charged in the complaint is that Jean-Baptiste has shown a lack of respect for the laws of this state in violation of Section 493.6106(1)(b) and Section 493.6101(7).

    
    

14. In Section 493.6106(1)(b), the legislature has specified that 'good moral character' is required of all persons licensed under Chapter 493. The term 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.' Thus, the basis for the denial of Jean-Baptiste's application for a Class 'G' Statewide Firearm License and for the proposed disciplinary action against Jean-Baptiste's Class 'D' Security Officer License is the Department's determination that Jean-Baptiste lacks good moral character.

    
    

15. The Department has proven by clear and convincing evidence that, on February 29, 1992, Jean-Baptiste gave a false name to a law enforcement officer investigating a minor traffic accident in which Jean-Baptiste was involved. Such an act has been held to fall within the scope of section 843.02, Florida

    Statutes, which makes it a misdemeanor to resist an officer without violence. In the Interest of J.H., 559 So. 2d 702 (Fla. 4th DCA 1990).

    
    

16. However, without more, the Department cannot reasonably conclude from this February 29, 1992, incident that Jean-Baptiste lacks a personal history of honesty and respect for the laws of this state and, therefore, that he lacks good moral character as defined in Section 493.6101(7). In Zemour, Inc. v. State of Florida, Division of Beverage, 347 So. 2d 1102, 1105 (Fla. 1st DCA 1977), the court stated:

    
    

    An isolated unlawful act [when not one included in the prohibitions specifically enumerated in the relevant statutes] or acts of indiscretion wherever committed do not necessarily establish bad moral character. But . . . repeated acts

    in violation of the law wherever committed and generally condemned by law abiding people, over a long period of time, evinces the sort of mind and establishes the sort of character that the legislature . . . has determined should not be entrusted with a liquor license.

    
    

17. The Department did not introduce any evidence to establish Jean- Baptiste's lack of good moral character other than the evidence related to the February 29, 1992, incident. Under the standard set out in Zemora, Jean-

Baptiste's isolated act of giving a false name to Trooper Dunn is not sufficient to establish as a matter of law that Jean-Baptiste lacks good moral character for the purpose of the denial of his application for a Class 'G' Statewide Firearm License or for the purpose of revoking or otherwise disciplining his Class 'D' Security Officer License. See also Wash & Dry Vending Co. v. State, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, 429 So. 2d 790 (Fla. 3d DCA 1983).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that:

1. In Case Number 94-5463S, the Department of State, Division of Licensing, enter a Final Order finding that the evidence is insufficient to establish that Petitioner lacks good moral character and granting his application for a Class 'G' Statewide Firearm License; and,

   
   

2. In Case Number 94-6872, the Department of State, Division of Licensing, enter a Final Order finding that the evidence is insufficient to establish that Respondent lacks good moral character and dismissing the Amended Administrative Complaint.

DONE AND ENTERED this 17th day of March 1995, in Tallahassee, Leon County, Florida.

PATRICIA HART MALONO

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 17th day of March 1995.

APPENDIX

The proposed findings of fact included in the Department's Proposed Recommended Orders submitted in Case Nos. 94-5463S and 94-6872 are virtually identical, differing only in paragraph one to reflect the different licenses at issue. The following are my specific rulings on these proposed findings of fact:

Paragraphs 1 through 9: Accepted as true and incorporated in substance though not repeated verbatim.

COPIES FURNISHED:

Kristi Reid Bronson Assistant General Counsel Department of State Division of Licensing

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

Frantz Olivier

The Causeway Professional Bldg. 777 Northeast 79 St., Causeway

Suite 104

Miami, Florida 33138

Don Bell General Counsel

Department of State The Capitol

Tallahassee, Florida 32300-0250

The Honorable Sandra B. Mortham Secretary 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 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: 94-005463

Orders for Case No: 94-005463