STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 96-4343

)

RONALD J. BURGESS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a Section 120.57(1) hearing was conducted by video teleconference (at sites in West Palm Beach and Tallahassee, Florida) on January 9, 1997, before Stuart M. Lerner, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kristi Reid Bronson

Assistant General Counsel

Department of State, Division of Licensing The Capitol, Mail Station 4

Tallahassee, Florida 32399-0250

For Respondent: Ronald J. Burgess

215 Castlewood Drive, Number 3 North Palm Beach, Florida 33408

STATEMENT OF THE ISSUE

Whether the Department of State, Division of Licensing, should revoke Respondent's license to carry concealed weapons or firearms for the reason set forth in the Administrative Complaint, to wit: that "Respondent is ineligible for licensure pursuant to Sections 790.06(2)(d) and 790.23, Florida Statutes."

PRELIMINARY STATEMENT

On August 14, 1996, the Department of State, Division of Licensing, (Department) issued an Administrative Complaint alleging that Respondent, the holder of a concealed weapons or firearms license, "is ineligible for [such] licensure pursuant to Sections 790.06(2)(d) and 790.23, Florida Statutes," because "[o]n or about September 21, 1981, in Sierra Vista, Arizona, Respondent was convicted of forgery, a felony, and has not had the right to own or possess firearms restored in Florida." Respondent denied that he was ineligible for licensure and requested a formal hearing. On September 16, 1996, the case was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer 1/ to conduct a formal hearing on the matter.

As noted above, the hearing was held on January 9, 1997. At the hearing, the Department offered seven exhibits (Petitioner's Exhibits 1 through 7) into evidence. All seven of the Department's exhibits were received into evidence without objection. The Department presented no other evidence. Respondent testified on his own behalf. He also presented the testimony of Nina Brown and offered one exhibit (Respondent's Exhibit 1), which was admitted into evidence without objection.

At the conclusion of the evidentiary portion of the hearing, the undersigned, on the record, announced that proposed recommended orders had to be filed no later than 20 days following the conclusion of the hearing. The Department filed its proposed recommended order on January 29, 1997. The Department's proposed recommended order has been carefully considered by the undersigned. To date, Respondent has not filed any post-hearing submittal.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:

1. Respondent currently holds a concealed weapons or firearms license (license number W96-09874, effective June 14, 1996).

   
   

2. On September 21, 1981, in the Superior Court of Cochise County, Arizona, Respondent was adjudicated guilty (based upon a guilty plea that he had previously entered) of two counts of forgery, a class 4 felony under the laws of the State of Arizona, and placed on probation for a period of three years under the supervision of the Cochise County Adult Probation Department.

   
   

3. He had no prior criminal record at the time of his convictions.

   
   

4. As a condition of his probation, Respondent was required to "pay restitution through the Adult Probation Department in the amount of $1,617.19, less the $350.00 payment he ha[d] already made, such amount payable in monthly installments of $100.00, beginning with the month of October 1981."

   
   

5. On September 11, 1984, Respondent's probation was "extended for three

   (3) years to provide additional time for full payment of restitution."

   
   

6. Respondent made such "full payment of restitution" on or about September 8, 1987.

   
   

7. By court order issued September 24, 1987, Respondent was "discharged absolutely" from his probation. The order contained the following advisement:

   
   

   The defendant is advised that rights may be restored as provided in the following statutes:

   13-912 Restoration of civil rights; automatic for first offenders. 2/

   13-905 Restoration of civil rights; persons completing probation

   13-907 Setting aside judgment of convicted person upon discharge; making of application; release from disabilities; exceptions.

   13-908 Restoration of civil rights in the discretion of the Superior Court Judge.

8. Because he was a "first offender," Respondent was under the impression that, following his discharge from probation, he enjoyed the same rights that he had enjoyed prior to his convictions.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Department has been vested with the statutory authority to issue licenses to those qualified applicants seeking to carry concealed weapons or firearms in the State of Florida. Section 790.06(1), Fla. Stat.

   
   

10. A person who is "ineligible to possess a firearm pursuant to [Section] 790.23[, Florida Statutes] by virtue of having been convicted of a felony" is not qualified to receive a concealed weapons or firearms license from the Department. Section 790.06(2)(d), Fla. Stat.

    
    

11. Section 790.23, Florida Statutes, provides, in pertinent part, as follows:

    
    

    1. It is unlawful for any person to own or to have in his or her care, custody, possession, or control any firearm or electric weapon or device, or to carry a concealed weapon, including a tear gas gun or chemical weapon or device, if that person has been: . . .

       (d) Found guilty of an offense that is a felony in another state, territory or country and which was punishable by imprisonment

       for a term exceeding 1 year.

    2. This section shall not apply to a person convicted of a felony whose civil rights and firearm authority have been restored. . . .

       
       

       Because subsection (2) of Section 790.23, Florida Statutes, constitutes an exception to the prohibition described in subsection (1) of the statute, it must be strictly and narrowly construed. See Samara Development Corp. v. Marlow, 56 So.2d 1097, 1100 (Fla. 1990)("it is a well-recognized rule of statutory construction that exceptions . . . should be narrowly and strictly construed"); State v. Nourse, 340 So.2d 966, 969 (Fla. 3d DCA 1976)("[b]eing an exception to a general prohibition, any such statutory provision is normally construed strictly against the one who attempts to take advantage of the exception;" "unless the right to the exception is clearly apparent in the statute, no benefits thereunder will be permitted").

       
       

12. A concealed weapons or firearms license issued to person subsequently "found to be ineligible [for licensure] under the criteria set forth in subsection (2)" of Section 790.06, Florida Statutes, is subject to suspension or revocation by the Department. Section 790.06(9)(a), Fla. Stat.

    
    

13. In the instant case, the Department has alleged that Respondent is ineligible, "pursuant to Sections 790.06(2)(d) and 790.23, Florida Statutes," for a license to carry concealed weapons or firearms because, "[o]n or about September 21, 1981, in Sierra Vista, Arizona, Respondent was convicted of forgery, a felony, and has not had the right to own or possess firearms restored in Florida."

14. The evidence adduced at hearing clearly and convincingly establishes that, on September 21, 1981, in the Superior Court of Cochise County, Arizona, Respondent was adjudicated guilty of two counts of forgery, a class 4 felony under the laws of the State of Arizona punishable by imprisonment for a term exceeding one year.

    
    

15. Accordingly, Respondent is ineligible for licensure to carry concealed weapons or firearms unless the record affirmatively establishes that his "civil rights and firearm authority have been restored," within the meaning of Section 790.23(2), Florida Statutes. See State v. Thompson, 390 So.2d 715, 716 (Fla. 1980)(where statute proscribed possession of certain firearms and further provided that "this section shall not apply to antique firearms, "whether a prescribed weapon is an antique is a matter or defense [and] the state is not required to prove the negative as an element of the offense"); Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778, 788 (Fla. 1st DCA 1981)("[i]n accordance with the general rule, applicable in court proceedings, 'the burden of proof, apart from statute, is on the party asserting the affirmative of an issue before an administrative tribunal").

    
    

16. Pursuant to Section 944.292(1), Florida Statutes, the civil rights of a convicted felon are "suspended in Florida until such rights are restored by a full pardon, conditional pardon or restoration of civil rights granted pursuant to s. 8, Art. IV of the State Constitution," which provides, in pertinent part, as follows:

    
    

    Except in cases of treason and in cases where impeachment results in conviction, the governor may, by executive order filed with the secretary of state, . . . and with the approval of three members of the cabinet, grant full or conditional pardons, [and] restore civil rights . . . .

    
    

17. Although Respondent's civil rights may have been automatically restored in the State of Arizona upon his discharge from probation, there is no indication in the record that his "civil rights and firearm authority have been restored" in the State of Florida inasmuch as the record does not reflect that he has received a full or conditional pardon or that an executive order has been issued pursuant to Article IV, Section 8, of the Florida Constitution restoring his civil rights in this state, including the right to possess firearms.

    
    

18. Because Respondent is a convicted felon who has not shown that his "civil rights and firearm authority have been restored" in the State of Florida, he is ineligible for a license authorizing him to carry concealed weapons or firearms in this state and the concealed weapons or firearms license previously issued to him by the Department should be revoked.

RECOMMENDATION

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

RECOMMENDED that the Department enter a final order revoking Respondent's concealed weapons or firearms license.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of February, 1997.

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1997.

ENDNOTES

1/ At the time of his assignment to this case, the undersigned's title was "Hearing Officer." It was not until October 1, 1996, that the title of the undersigned (and of all other Hearing Officers of the Division of Administrative Hearings) was changed to "Administrative Law Judge" (pursuant to Chapter 96-159, Laws of Florida).

2/ The statutory provision referenced in this portion of the court order reads as follows:

Upon completion of the term of probation,

or upon absolute discharge from imprisonment, and upon the completion of payment of any fine or restitution imposed, any person who

has not previously been convicted of any other felony shall automatically be restored any civil rights which were lost or suspended by the conviction.

COPIES FURNISHED:

Kristi Reid Bronson Assistant General Counsel

Department of State, Division of Licensing The Capitol, Mail Station 4

Tallahassee, Florida 32399-0250

Ronald J. Burgess

215 Castlewood Drive, Number 3 North Palm Beach, Florida 33408

Honorable Sandra B. Mortham Secretary of State

The Capitol

Tallahassee, Florida 32399-0250

Don Bell 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 within 15 days from the date of 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: 96-004343

Orders for Case No: 96-004343