STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDWARD S. NARBUT, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1473S

) SECRETARY OF STATE, DIVISION OF ) LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on September 26, 1980, in Fort Lauderdale, Florida.

The Petitioner, Edward S. Narbut, appeared on his own behalf; and W. J. Gladwin, Jr., Esquire, Tallahassee, Florida, appeared on behalf of the Respondent, Secretary of State, Division of Licensing.

Petitioner's application for licensure as a class "F" Unarmed Security Guard was denied on the grounds that Petitioner has been convicted of a felony in this or any other state where his civil rights have not been restored, has been convicted of a crime involving moral turpitude or dishonest dealings, fails to meet character qualifications, committed fraud or willful misrepresentation in his application for a license, and is guilty of conduct against the interest of the general public. The issue to be determined is whether Petitioner's application for a Class "F" Unarmed Security Guard License should be approved.

Petitioner testified on his own behalf, and the Respondent introduced into evidence a copy of a report of the Federal Bureau of Investigation, Identification Division.

FINDINGS OF FACT

1. Petitioner filed an application for licensure as a Class "F" Unarmed Security Guard. Question numbered 13 on that application form is as follows: "Have you ever been arrested? If yes, list any and all arrests and dispositions." Petitioner replied affirmatively and advised that in April, 1962, he had been charged with breaking and entering in Broward County and had served a three and one-half year sentence. He further advised that he had received a pardon from Governor Askew with permission to bear firearms. Petitioner did not report any other arrests or charges, since he believed that only felonies were required to be reported.

   
   

2. The report moved into evidence by the Respondent lists various governmental entities as contributors of fingerprints at times when Petitioner was either "arrested or received" on several charges and the disposition of each. According to that report, Petitioner was either "arrested or received" by

   the police department in Youngstown, Ohio, in 1952 for carrying concealed weapons. Petitioner never knew he was charged with that crime, although he does recall that at that time he was working for a railroad and there was some type of incident with the police due to the fact that he and other railroad employees were carrying mace and blackjacks. The report further reflects that in 1961 Petitioner was "arrested or received" on several breaking and entering charges by law enforcement entities in St. Petersburg, West Palm Beach, and Raiford, Florida, and that he was sentenced to a prison term. Respondent presented no evidence to indicate that any of the breaking and entering charges were other than the crime(s) for which Petitioner has received a pardon. The report further indicates that Petitioner was "arrested or received" by the police department in Fort Lauderdale, Florida, in 1968 for contempt of court, for which he was fined, and in 1970 for a "worthless check (warr)," for which he was also fined. Regarding the contempt of court charge, Petitioner was in a different courtroom on a different case, but the record is devoid of any evidence as to the type of matters involved. As to the worthless check, Petitioner attempted to redeem the check the following day, but found that he was too late.

   
   

   CONCLUSIONS OF LAW

   
   

3. Section 493.08, Florida Statutes (1979), lists several statutory grounds upon which Respondent shall deny an application for licensure and further permits Respondent to deny a license application for any of those grounds which would constitute a basis for revocation pursuant to Section 493.14, Florida Statutes (1979), if an applicant has already been licensed. In denying Petitioner's application for licensure, Respondent relied upon the following statutory grounds for denial: (1) conviction of a felony in this or any other state where civil rights have not been restored, (2) conviction of a crime involving moral turpitude or dishonest dealings, (3) failure to meet character qualifications, (4) fraud or willful misrepresentation in application for or in obtaining a license, and (5) guilt of conduct against the interest of the general public. Insofar as the Petitioner advised the Respondent regarding his convictions for breaking and entering, and insofar as Petitioner has received a pardon for that offense, such conduct is not to be considered in determining whether Petitioner should be licensed.

   
   

4. The record contains no evidence of a conviction of a felony in this or any other state where civil rights have not been restored, and Respondent cannot, accordingly, rely upon the first ground for denial. Likewise, the record is devoid of evidence regarding a conviction of a crime involving moral turpitude or dishonest dealings. The charge of carrying concealed weapons, according to the FBI report, appears to have resulted in a suspended sentence, and no testimony was presented to show that Petitioner was convicted. Moreover, the lack of testimony regarding the circumstances of the charge of contempt of court and the charge of worthless check (without any indication of which of Florida's worthless check statutes is involved) affords no basis upon which the undersigned can determine that Petitioner was convicted of a crime involving moral turpitude or dishonest dealings. Therefore, the second ground for denial of Petitioner's application must also fall.

   
   

5. Regarding the fourth ground for denial, Petitioner specifically denied that he fraudulently or willfully misrepresented his arrest record in making application to the Respondent. His explanation that he believed only felonies were required to be reported is believable, logical, and in accordance with normal legal requirements of disclosing felony convictions. No evidence was presented by Respondent to controvert Petitioner's testimony. Additionally,

   there was no showing that any of the charges appearing on the FBI report was accompanied by an arrest.

   
   

6. The similarity between the third and fifth grounds for denial require their disposition jointly. There is no statutory definition for either failure to meet character qualifications, or for conduct against the interest of the general public. Accordingly, it is necessary that evidence be presented to show the conduct upon which Respondent relies in making such a determination once an applicant makes an affirmative showing that he is entitled to licensure. As discussed above, there is no evidence in the record regarding Petitioner's conduct or the factual circumstances surrounding the three charges which can be considered other than Petitioner's testimony that he never knew he was charged with carrying concealed weapons resulting from an incident between railroad employees and the police, that the contempt of court charge was unavoidable, and that he attempted to redeem the worthless check on the following day. Most importantly, there is no showing in this record by the Respondent that Petitioner has had any encounter whatsoever with the legal system for more than the last ten years. Accordingly, even if the Respondent had shown the conduct upon which it takes the position that Petitioner fails to meet character qualifications and is guilty of conduct against the interest of the general public, it would still be necessary for Respondent to show that such conduct happened during a time which would still be relevant to Petitioner's good character, competency or integrity at or near the time of making application for licensure. Section 493.08(1), Florida Statutes (1979). Therefore, Petitioner has affirmatively demonstrated his entitlement to licensure, and Respondent has failed to substantiate the grounds upon which it based its denial.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED THAT:

A Final Order be entered approving Petitioner's application for an Unarmed Security Guard License.

RECOMMENDED this 3rd day of December, 1980, in Tallahassee, Florida.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1980.

COPIES FURNISHED:

Mr. Edward S. Narbut

317 South East 12th Avenue, Apt. 2 Pompano Beach, Florida 33060

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

The Capitol

Tallahassee, Florida 32301

The Honorable George Firestone Secretary of State

The Capitol

Tallahassee, Florida 32301

Docket for Case No: 80-001473

Orders for Case No: 80-001473