STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, DIVISION OF ) LICENSING, )

)

Petitioner, )

)

vs. ) Case No. 98-5572S

)

KENNETH DUNNING, )

)

Respondent. )

) DEPARTMENT OF STATE, DIVISION OF ) LICENSING, )

)

Petitioner, )

)

vs. ) Case No. 99-0153

)

KENNETH DUNNING, )

)

Respondent. )

)

RECOMMENDED ORDER

On March 4, 1999, a formal administrative hearing in this case was held in Tampa, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings. The hearing was conducted by videoconference from Tallahassee, Florida.

APPEARANCES

For Petitioner: Steve Bensko, Esquire

Division of Licensing Department of State

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

For Respondent: Kenneth Dunning, pro se

806 Walker Drive

Tampa, Florida 33613 STATEMENT OF THE ISSUE

The issues in the case are whether the Respondent’s application for a Class G Firearms license should be approved and whether his existing Concealed Weapons license should be revoked.

PRELIMINARY STATEMENT

By letter dated November 5, 1998, the Department of State, Division of Licensing notified Kenneth Dunning that his application for a Class “G” license had been denied. Mr. Dunning requested a formal administrative hearing. The Department forwarded the request to the Division of Administrative Hearings, which assigned Case No. 98-5572S.

On December 23, 1998, the Department filed an Administrative Complaint against Mr. Dunning, seeking to revoke his Concealed Weapons license. Mr. Dunning requested a formal administrative hearing. The Department forwarded the request to the Division of Administrative Hearings, which assigned Case No. 99-0153.

The cases were consolidated by order dated February 3, 1999.

At the hearing, the Department presented no witnesses and had Exhibits numbered 1-2 admitted into evidence. Mr. Dunning presented the testimony of three witnesses, testified on his own behalf, and had a composite exhibit of pages numbered 1-33 admitted into evidence. A Joint Prehearing Stipulation and

attachments was admitted as an Administrative Law judge’s exhibit.

No transcript of the hearing was filed. Neither party filed a proposed recommended order.

FINDINGS OF FACT

1. The Petitioner is the agency charged with regulating the licensure and sale of weapons in the State of Florida.

2. By letter dated November 5, 1998, the Department of State, Division of Licensing, notified Kenneth Dunning that his application for a Class “G” license had been denied. The grounds for the proposed denial are as follows:

   Failure to qualify under Section 493.6118(4), Florida Statutes, in that you were convicted of a felony and your civil rights, including the specific right to possess firearms, have not been restored by the State of Michigan.

   For information, please contact the state (sic) of Michigan.

   
   

3. In 1960, Mr. Dunning was convicted of attempted armed robbery, a felony, in the State of Michigan.

4. On December 23, 1998, the Department filed an Administrative Complaint against Mr. Dunning, seeking to revoke his Concealed Weapons license, number W98-00504. As grounds for the proposed revocation, the Complaint states as follows:

   On or about June 17, 1960, in the State of Michigan, Respondent was convicted of attempted armed robbery, a felony, and has not had the right to own or possess firearms restored in the State of Michigan.

   Respondent is ineligible for licensure pursuant to Sections 790.06(2)(d) and 790,23, Florida Statutes.

5. There is no evidence that Mr. Dunning’s civil rights were lost as a result of his 1960 conviction.

6. The evidence, including Mr. Dunning’s uncontradicted testimony and available documents, establishes that Mr. Dunning’s civil rights, if impacted at all by his 1960 conviction, have been restored without reservation.

7. By Order dated May 23, 1997, from the Office of Executive Clemency, Mr. Dunning was granted a restoration of civil rights “except the specific authority to possess or own a firearm” by the Governor of the State of Florida with the concurrence of the requisite members of the State Cabinet. The Certificate of Restoration indicates it is valid “in the State of Florida for any and all felony convictions in the state other than Florida, or in any United States court or military court. .

   . .”

   
   

8. By Executive Order dated September 10, 1998, and signed by the Governor of the State of Florida, Mr. Dunning was granted “the right to own, possess or use firearms.”

9. Department Exhibit numbered 1 is a letter dated September 28, 1998, from “Anthony P. Gledhill” who is identified as “Division Counsel, Detroit” for the Federal Bureau of Alcohol, Tobacco and Firearms to John P. Booth, Assistant General Counsel, Florida Department of Law Enforcement (FDLE). The letter is a legal analysis of case law related to restoration of an individual’s civil rights after conviction. The exhibit does not

   establish that Mr. Dunning’s conviction resulted in a loss of his civil rights. The letter does not establish that his civil rights, if impacted by the conviction, were not completely restored.

10. Department Exhibit numbered 2 is a letter dated September 24, 1998, to Mr. Dunhill from Mr. Booth. The letter identifies as the reason for FDLE’s nonapproval of Mr. Dunning's attempt to purchase a firearm under Section 790.065, Florida Statutes, “the determination by the Bureau of Alcohol, Tobacco, and Firearms that your civil rights have not been fully restored by Michigan. . . .” The exhibit does not establish that Mr. Dunning’s conviction resulted in a loss of his civil rights. The letter does not establish that his civil rights, if impacted by the conviction, were not completely restored.

CONCLUSIONS OF LAW

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

2. The November 5, 1998, letter denying Mr. Dunning’s application for a Class “G” license cites Section 493.6118(4), Florida Statutes, which provides as follows:

   1. Notwithstanding the provisions of paragraph (1)(c) and subsection (2):

      
      

      1. If the applicant or licensee has been convicted of a felony, the department shall deny the application or revoke the license unless and until civil rights have been restored by the State of Florida or by a

         state acceptable to Florida and a period of

         10 years has expired since final release from supervision.

         
         

      2. A Class "G" applicant who has been convicted of a felony shall also have had the specific right to possess, carry, or use a firearm restored by the State of Florida.

         
         

      3. If the applicant or licensee has been found guilty of, entered a plea of guilty to, or entered a plea of nolo contendere to a felony and adjudication of guilt is withheld, the department shall deny the application or revoke the license until a period of 3 years has expired since final release from supervision.

         
         

      4. A plea of nolo contendere shall create a rebuttable presumption of guilt to the underlying criminal charges, and the department shall allow the person being disciplined or denied an application for a license to present any mitigating circumstances surrounding his or her plea.

         
         

      5. The grounds for discipline or denial cited in this subsection shall be applied to any disqualifying criminal history regardless of the date of commission of the underlying criminal charge. Such provisions shall be applied retroactively and prospectively.

         
         

3. Mr. Dunning has had his civil rights restored by the State of Florida as required by Section 493.6118(4)(a), Florida Statutes. Mr. Dunning has been granted the specific right to possess, carry, or use a firearm restored by the State of Florida as required by Section 493.6118(4)(b), Florida Statutes.

4. The Administrative Complaint that seeks to revoke Mr. Dunning’s current concealed weapons license cites Sections 790.06(2)(d) and 790,23, Florida Statutes.

5. Section 790.06, Florida Statutes, provides that the Department of State is authorized to issue concealed weapons permits. Section 790.06(2)(d), Florida Statutes, provides the Department of State "shall” issue a license if the applicant “is not ineligible to possess a firearm pursuant to s. 790.23 by virtue of having been convicted of a felony.”

6. Section 790.23, Florida Statutes, provides as follows:

   
   

   790.23 Felons and delinquents; possession of firearms or electric weapons or devices unlawful.—

   
   

   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;

         
         

      2. Convicted of or found to have committed a crime against the United States which is designated as a felony;

         
         

      3. Found to have committed a delinquent act in another state, territory, or country that would be a felony if committed by an adult and which was punishable by imprisonment for a term exceeding 1 year; or

         
         

      4. 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 the jurisdiction of the court pursuant to chapter 985 has expired.

      
      

   3. Any person who violates this section commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

   
   

7. According to Section 790.23, subsection (2), Florida Statutes, the statutory disqualification based on Mr. Dunning’s felony conviction is inapplicable because he either never lost his civil rights, or if he did, they were restored without reservation.

8. The Petitioner has the burden of proving by clear and convincing evidence the allegations of the Administrative Complaint. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). As to the allegations of the complaint, the burden has not been met.

9. In the application case, Mr. Dunning has the burden of establishing entitlement to the permit. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). The sole issue identified by the Department as the reason for the denial of his application is unsupported by, and contradicted by, credible evidence. Mr. Dunning has met the burden of establishing entitlement to the permit.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business and Professional Regulation enter a final order granting the

application of Kenneth Dunning for a Class “G” firearms license and dismissing the Administrative Complaint addressed herein.

DONE AND ENTERED this 29th day of April, 1999, in Tallahassee, Leon County, Florida.

WILLIAM F. QUATTLEBAUM

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) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1999.

COPIES FURNISHED:

Steve Bensko, Esquire Division of Licensing Department of State

The Capitol, Mail Station 4 Tallahassee, Florida 32399-0250 Kenneth Dunning

806 Walker Drive

Tampa, Florida 33613

Honorable Katherine Harris Secretary of State Department of State

The Capitol, Plaza Lever 01 Tallahassee, Florida 32399-0250

Deborah K. Kearney, General Counsel Department of State

The Capitol, Lower Level 10 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 must be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 98-005572

Orders for Case No: 98-005572