STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JUDGE L. WILLIAMS, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1486S

)

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, WILLIAM B. THOMAS, held a formal hearing in this case on July 30, 1981, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Stephen O. Parker, Esquire

607 Florida Theatre Building

128 East Forsyth Street Jacksonville, Florida 32202

For Respondent: James V. Antista, Esquire Room 1801

The Capitol

Tallahassee, Florida 32301

This matter was referred to the Division of Administrative Hearings on the Petitioner's request for an administrative hearing to determine his eligibility for a Class G Security Guard License under Chapter 493, Florida Statutes. By letter dated May 4, 1981, the Licensing Division of the Department of State had notified the Petitioner that his application for a Class G License, or statewide gun permit, was denied for failure of the Petitioner to meet the qualification prescribed in subsections 493.306(2)(h)(1), 493.306(6)(h), 493.319(1)(j) and 493.319(1)(p) Florida Statutes. Respectively, these provisions relate to moral character, (2) fitness to carry a firearm (3) use of force or violence, and (4) violation of provisions of Chapter 493, Florida Statutes.

Judge Williams testified in support of his contention that he meets the statutory requirements for a statewide gun permit and offered two exhibits, essentially character references, which were received in evidence. The Division of Licensing presented no witnesses, but offered five exhibits, two of which were received in evidence, two which were not received, and one which was withdrawn.

FINDINGS OF FACT

1. The Petitioner, Judge L. Williams, age 58, has been a resident of Florida for approximately 40 years, except for employment related intervals. He has a high school education, received an honorable discharge from the U.S. Navy after more than three years of service, was employed in the merchant marine service for approximately 11 years, and retired from Exxon Company, U.S.A., after almost 20 years. Since the Petitioner retired in 1975, he has held various jobs in Jacksonville. Some of his employers have been Southland Corporation (7-11 Stores), Oxford Security, and Pinkertons of Florida. The Petitioner admits having an arrest record going back to the year 1949, and continuing to June of 1979, for various charges, but he has never been convicted of a felony. He has never been arrested for an offense involving the use of a firearm, or for a crime relating to property such as burglary or larceny, and he has never lost his civil rights.

   
   

2. However, the Petitioner has had a sexual problem. In 1951 be was arrested in Los Angeles, California, for sex perversion involving a minor, and convicted on his guilty plea. He served 30 days, after which his mother convinced him to be hospitalized to treat his sexual problem. Nevertheless, in 1954 the Petitioner was arrested in Las Vegas, Nevada, on a charge of sodomy, and paid a fine. Again, in 1956, the Petitioner was arrested in Jacksonville, Florida, on a charge of molesting minors, and convicted. He served 30 days. Finally the Petitioner's record of sex related offenses concluded in Norfolk, Virginia, in 1971 when he was arrested on a charge of soliciting for immoral purposes. He posted bond which was forfeited when he failed to appear for trial.

   
   

3. The Petitioner also has had a problem with alcohol, stemming back to 1949 when he was arrested for driving while intoxicated in San Francisco, California. Other alcohol related offenses occurred in 1956 in Las Vegas, and in Jacksonville, Florida, in 1958, 1962, 1968, and as recently as 1979 when he was arrested on a driving while intoxicated charge. The Petitioner admits to having been affected by a social problem which he describes as drinking too much. However, he asserts that this problem, as well as his former sexual problem, are not present in his life now.

   
   

4. The Division of Licensing has issued a Class D Unarmed Security Guard License to the Petitioner, which permits him to secure employment as an unarmed guard. The Petitioner, however, contends that even with the problems be has had in the past, and in spite of his arrest record, there is nothing in his background to demonstrate violence, and he is completely rehabilitated now from both sexual and alcohol problems. Without a gun permit, he contends that employment as a security guard is difficult to find, hard to keep, and pays less than an armed guard.,

   
   

5. The only evidence presented by the Petitioner was his own self-serving testimony, and two letters relating to his character. This is insufficient and unconvincing proof of rehabilitation from his admitted problems related to sex and alcohol, in view of the recentness of the recurrence of these problems. The charge in 1971 in Norfolk is 10 years old, but some 15 years elapsed between the sex related arrest in 1956 and the 1971 occurrence. The 1979 arrest for driving while intoxicated is only 2 years old. The totality of the evidence does not support the Petitioner's uncorroborated assertion that he is now fully rehabilitated, and does not support a finding that the Petitioner is of good moral character, or that he is fit to be licensed to carry a firearm.

   CONCLUSIONS OF LAW

   
   

6. The Licensing Division of the Department of State has regulatory authority over security guard licenses pursuant to the provisions of Chapter 493, Florida Statutes. Section 493.306 (1)(b) of this chapter requires that each individual licensed by the Department of State be of good moral character, which by subsection (2)(a) of this statute is defined as "a personal history of honesty, fairness, and respect for the rights of others and for the laws of this state and nation". Section 493.306(2)(b)(1) Florida Statutes, authorizes the Department of State to refuse to license an applicant for a security guard license for lack of good moral character only if there is a substantial connection between the lack of good moral character and the business for which the license is sought. Subsection (2)(b)(2) of this statute requires that the finding of lack of good moral character be supported by clear and convincing evidence.

   
   

7. In addition, Section 493.306(6)(h), Florida Statutes, provides that an applicant for a Class G License (statewide gun permit) must demonstrate fitness to carry a firearm based upon a complete background investigation by the Department of State of the individual's police record and general character. Section 493.309(1), Florida Statutes, requires the Department of State to individually investigate an applicant for a security guard license prior to issuance of same. This investigation must include a thorough background investigation of the individual's good moral character by fingerprint records and police records, among other means. Subsection (2) of this statute requires that in the case of a Class G license applicant the Department of State make an investigation of the general mental and physical fitness of the applicant to carry a firearm, in addition to the investigation relative to good moral character.

   
   

8. The Petitioner's sexual and alcohol related problem, which have persisted over a period of 30 years, and which have been manifest as recently as

10 years ago in the case of the sexual problem, and 2 years ago in the case of the alcohol problem place his good moral character directly in issue. Although not demonstrative of a violent nature, these problems are sufficiently idiosyncratic to also place in issue the Petitioner's general fitness to carry a firearm under the auspices of the State. Without the presentation of sufficient rebuttal evidence by the Petitioner to demonstrate good moral character and fitness to carry a firearm, his application for a statewide gun permit should not be granted. On the limited quantity and quality of the Petitioner's proof, the Department of State properly denied his application.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Judge L. Williams for a Class G

security Guard License, be denied.

THIS RECOMMENDED ORDER entered on this 13th day of August, 1981, in Tallahassee, Florida.

WILLIAM B. THOMAS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1981.

COPIES FURNISHED:

Stephen O. Parker, Esquire 607 Florida Theatre Building

129 East Forsyth Street Jacksonville, Florida 32202

James V. Antista, Esquire Room 1501

The Capitol

Tallahassee, Florida 32301

Docket for Case No: 81-001486

Orders for Case No: 81-001486