STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES LEWIS SHELTON, )

)

Petitioner, )

)

vs. ) CASE NO. 79-2390S

)

DIVISION OF LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on February 5, 1980, in Tampa, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose on the denial by the Department of State of the application of Shelton for licensure as a Class "F" unarmed guard on the grounds that Shelton had falsified his application contrary to Section 493.08(2)(f), Florida Statutes, and that he misrepresented himself in obtaining a license contrary to Section 493.14(1)(a), Florida Statutes.

APPEARANCES

For Petitioner: James Lewis Shelton, pro se

8894 68th Street, North Pinellas Park, Florida

For Respondent: W. J. Gladwin, Jr., Esquire

Assistant General Counsel Department of State

The Capitol

Tallahassee, Florida 32301 ISSUES

The parties stipulated to the following:

1. Shelton applied for a license as a Class "F" unarmed guard, and that his application, Exhibit 1, be made a part of the record;

   
   

2. The Department of State denied Shelton's application by letter dated November 13, 1979, which contained a listing of the applicant's criminal charges;

   
   

3. The listing of Criminal Charges is true and correct, and that the letter, Exhibit 2, be made a part of the record; and

   
   

4. The applicant is otherwise qualified for licensure.

The sole issue presented is whether the applicant falsified and misrepresented facts in his application.

FINDINGS OF FACT

1. The Petitioner, James Lewis Shelton, applied for licensure as a Class "F" unarmed guard. Shelton answered Question 13 on the application yes, reporting an arrest for disorderly (conduct) in 1968.

   
   

2. The records check of the Department of State revealed that Shelton had been arrested for the offenses listed in the denial letter, Exhibit 2. Shelton admitted that this record was true and accurate.

   
   

3. Shelton's supervisor on his security job, who is also his minister, Dr. Robert A. Plank, testified regarding his knowledge of Shelton. Plank had been Shelton's minister for approximately two years, and for the last five months Shelton has worked for him as a security guard. Plank stated that when he became aware of the charges against Shelton he investigated them as thoroughly as he could. He then questioned Shelton about the arrests. He found that Shelton could only remember these events vaguely after Plank refreshed his memory with facts from documents Plank had obtained from the authorities. Plank had found in working with Shelton as his minister and his supervisor that Shelton was mentally slow. Shelton is an orphan with a sixth grade education, who has been an itinerate for much of his life. Shelton only was able to remember his marriage to a woman after Plank refreshed his memory with facts from the letter of denial. Shelton is currently employed as a dishwasher and as a guard with the company by which Plank is employed. Shelton works hard, follows his instructions and is a good worker. Plank concluded that because of his mental slowness Shelton had not remembered these arrests, and had not willfully misrepresented the information on his application. Plank's wife, who is the shift supervisor for whom Shelton works, substantiated her husband's testimony.

   
   

4. Shelton has lived in St. Petersburg for 12 years, the the records there reflect no arrests.

   
   

5. Shelton is mentally slow and has difficulty recalling past events. This finding is based upon the testimony of the Planks and observations of Shelton's demeanor at the hearing.

   
   

   CONCLUSIONS OF LAW

   
   

6. Section 493.08, Florida Statutes, provides that a license may be denied for falsification of an application for licensure. Section 493.14 provides that a license may be denied for fraud or willful misrepresentation in applying for a license. Both of these provisions require an element of intent by the applicant not to reveal pertinent information. A record of arrest is pertinent to consideration of hiring a security guard.

   
   

7. The facts reveal that Shelton is mentally slow. He lacks the ability to recall past events clearly and then requires prompting to assist him. Shelton's failure to report his prior arrests from 1954 until 1966 was not intentional but arose from his inability to recall those events. None of the offenses for which he was arrested would be a bar to his licensure. The only arrest which would generally involve an act of violence was an assault and battery in Gulfport, Florida, in 1966. This was a complaint made by Shelton's wife.

8. Both Shelton's supervisors testified that he could and did perform the duties of an unarmed security guard well, he is punctual, dresses neatly and follows instructions well.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department of State issue a license as an unarmed guard to James Shelton; however, the Hearing Officer would recommend that this applicant's records be annotated that an armed guard license not be issued without rehearing, and this his employer be directed not to employ Shelton as an armed guard without licensure as such.

DONE and ORDERED this 15th day of February, 1980, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

W. J. Gladwin, Jr., Esquire Assistant General Counsel Department of State

The Capitol

Tallahassee, Florida 32301

Mr. James Lewis Shelton 8894 68th Street, North Pinellas Park, Florida

Docket for Case No: 79-002390

Orders for Case No: 79-002390