STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) Case No. 97-3368

)

LOUIS LUPOLD, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, William R. Cave, an Administrative Law Judge for the Division of Administrative Hearings, held a formal hearing in this matter on November 4, 1997, in Wauchula, Florida.

APPEARANCES

For Petitioner: Kristi Reid Bronson, Esquire

Department of State, Division of Licensing

The Capitol, Mail Station No. Four Tallahassee, Florida 32399-0250

For Respondent: Louis Lupold, pro se

Post Office Box 865

Zolfo Springs, Florida 33890 STATEMENT OF THE ISSUE

Should Respondent's Concealed Weapon or Firearm License, Number W97-01073 be revoked?

PRELIMINARY MATTERS

By an Administrative Complaint dated June 12, 1997, and filed with the Division of Administrative Hearings (Division) on August 7, 1997, the Department of State, Division of Licensing

(Department) is attempting to revoke Respondent's Concealed Weapon or Firearm License. As grounds therefor, the Department alleges that Respondent, on about September 21, 1962, was convicted of burglary/larceny, a felony, in West Chester, Pennsylvania, and has not had the right to own or possess firearms restored in the State of Florida.

By an Election of Rights, Respondent denied the allegations of the Administrative Complaint, and requested an administrative hearing pursuant to Chapter 120, Florida Statutes.

By letter dated July 15, 1997, the Department referred the matter to the Division for the assignment of an Administrative Law Judge and for the conduct of a formal hearing.

At the hearing, the Department offered the deposition of Constance N. Crawford in lieu of her live testimony at the hearing which was received as Department's Exhibit Five. The Department offered no other testimony. Department's Exhibits One through Four were also received as evidence. Respondent testified on his own behalf and presented the testimony of Mary Anna Lupold. Respondent's Exhibits One through Six were received as evidence. During the hearing, Respondent requested that he be allowed to take the deposition of Constance N. Crawford. The request was granted and Respondent was to late file Crawford's deposition as Respondent's Exhibit Seven. Subsequently, Respondent decided against taking Crawford's deposition.

The transcript of Department's deposition of Crawford was filed with the Division on November 18, 1997. The transcript of this proceeding was filed with the Division on November 19, 1997. After being advised by Respondent that he had decided against taking Crawford's deposition, the undersigned entered an order on December 19, 1997, setting January 2, 1998, as the date for filing proposed findings of fact and conclusions of law. The parties timely filed their proposed findings of fact and conclusions.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. Respondent Louis R. Lupold was born in the State of Pennsylvania on February 22, 1941, and lived in the State of Pennsylvania until the late 1960's.

2. On January 8, 1997, Respondent Louis R. Lupold filed an Application for a Concealed Weapon or Firearm License with the Department. As part of the application, Respondent was required to file a completed fingerprint card. Respondent filed one complete fingerprint card and one incomplete fingerprint card.

3. The Department submitted the completed fingerprint card to the Florida Department of Law Enforcement (FDLE) for state and federal processing for any criminal justice information.

4. Upon the expiration of 90 days from the date of application, the Department had not received any criminal justice information from either the FDLE or the Federal Bureau of Investigation (FBI) concerning Respondent's criminal justice information. Therefore, since there was no other basis for denial, the Department in accordance with Section 790.06(6)(c), Florida Statutes, issued Respondent a Concealed Weapon or Firearm License, Number W97-01073.

5. Subsequently, the Department received the criminal justice information from the FBI on Respondent indicating that he had been arrested for disqualifying offenses.

6. The match made by the FBI was a fingerprint identification in that the FBI was able to match all of Respondent's fingerprints with those of the person identified with the criminal charges, as opposed to a demographic match, where only a portion of the fingerprints match, but with other available information the FBI believes the applicant to be the same person as the person identified with the criminal charges.

7. Upon request, the Department received certified copies of Louis Roy Lupold's criminal record as it appeared in the files of the Pennsylvania State Police, Records and Identification Division.

8. The records received from the Pennsylvania State Police indicate that Louis Roy Lupold, was born on February 22, 1940, and had been arrested on July 25,

   1962, for burglary and larceny, both a felony in the State of Pennsylvania at that time. The records further indicate that Louis Roy Lupold had been found guilty of burglary and larceny and placed on two years county probation.

9. There is sufficient evidence to show that Respondent Louis R. Lupold is the same person identified as Louis Roy Lupold in the files of the Pennsylvania State Police, notwithstanding the one year difference in the date of birth.

10. Respondent has not had his civil rights and firearm authority restored in the State of Florida.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Sections 120.57(1), Florida Statutes.

12. Sections 790.06(2)(d) and (10)(a) and (c), Florida Statutes provide:

    (2) The Department of State shall issue a license if the applicant:

    * * *

    (d) Is not ineligible to possess a firearm pursuant to s.790.23 by virtue of having been convicted of a felony;

    * * *

    1. A license issued under this Section shall be suspended or revoked pursuant to chapter 120 if the license:

       1. Is found to be ineligible under the criteria set forth in subsection (2);

    * * *

    (c) Is convicted of a felony which would make the licensee ineligible to possess a firearm pursuant to s.790.23;

13. Sections 790.23(1)(a)and (d) and (2), Florida Statutes, provide:

    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:

       1. Convicted of a felony or found to have committed a delinquent act that would be a

          felony if committed by an adult in the courts of this state.

          * * *

          (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, or to a person found to have committed a delinquent act that would be a felony if committed by an adult with respect to which jurisdiction of the court pursuant to chapter 39 has expired.

1. In 1962, the commission of a burglary in the State of Pennsylvania was, upon conviction, punishable by imprisonment for a term up to 20 years. Title 18, Pennsylvania Statutes, Section 4901.

2. In a disciplinary proceeding, the burden is upon the regulatory agency to establish facts upon which its allegations of misconduct are based. Balino vs. Department of Health and Rehabilitative Services, 348 So. 2d 349 (1st DCA Fla. 1977). The Department must prove the material allegations of the Administrative Complaint by clear and convincing evidence. Department of Banking and Finance, Division of Securities and Investor Protection vs. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996); Ferris vs. Turlington, 510 So. 2d 292 (Fla. 1987). The Department has shown by clear and convincing evidence that Respondent committed a felony in the State of Pennsylvania in 1962 which is a disqualifying offense, notwithstanding the testimony of Respondent's wife that he had never been arrested during the period in question in the State of Pennsylvania or the

uncertified documents indicating that Respondent had no criminal record in either Chester or Lancaster County, Pennsylvania and that Respondent was a special police officer in Phoenixville, Pennsylvania. Furthermore, the Department has shown by clear and convincing evidence that Respondent has not had his civil rights and firearm authority restored in the State of Florida.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order revoking Respondent's Concealed Weapon and Firearm License, Number W97-01073.

DONE AND ENTERED this 3rd day of February, 1998, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6947

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1998.

COPIES FURNISHED:

Honorable Sandra Mortham Secretary of State

The Capitol

Tallahassee, Florida 32399-0250

Don Bell General Counsel

The Capitol, Plaza Level 02 Tallahassee, Florida 32299-0250

Kristi Reid Bronson, Esquire Department of State,

Division of Licensing

The Capitol, Mail Station No. 4 Tallahassee, Florida 32399-0250

Louis R. Lupold, pro se Post Office Box 865

Zolfo Springs, Florida 33890

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: 97-003368

Orders for Case No: 97-003368