STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL J. QUINN, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1531S

)

DIVISION OF LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on July 9, 1981, in Fort Lauderdale, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Michael J. Quinn, pro se

4601 Northwest Second Avenue, Number 801 Boca Raton, Florida 33431

For Respondent: James V. Antista, Esquire

Assistant General Counsel Department of State

The Capitol

Tallahassee, Florida 32301

This case arose from the denial of Petitioner's application for licensure as an unarmed and armed guard by the Department of State by its letters dated May 15, 1981, and June 4, 1981. In summary, the Petitioner's applications were denied because he had answered "no" to Question #13 on the application, "Have you ever been arrested?" A check of the FBI's records revealed that Petition was arrested on July 9, 1975, in Brevard County, Florida, for possession of cocaine, possession of marijuana, sale of cocaine and aggravated assault. The records also indicated that all charges were dropped except that for possession of cocaine, and that adjudication on that charge was withheld.

The parties stipulated to the introduction of Petitioner's Exhibits 1 and 2, and Respondent's Exhibits 1 through 3 as follows:

(P-1) Application for Armed Guard License (P-2) Application for Unarmed Guard License (R-1) Letter denying Application for Armed

Guard License

(R-2) Letter denying Application for Unarmed Guard License

(R-3) FBI Criminal History Record

ISSUES

The issue is whether Petitioner falsified information on his application.

FINDINGS OF FACT

1. Michael James Quinn made application to the Department of State for licensure as an unarmed security guard in February of 1981, and for licensure as an armed security guard in May 1981.

   
   

2. Quinn answered "no" to Question #13 on the applications, "Have you ever been arrested?"

   
   

3. Quinn admitted, and his FBI record also revealed, that he was arrested on July 9, 1975, for possession of cocaine, sale of cocaine, possession of marijuana and aggravated assault.

   
   

4. Quinn admitted, and his FBI record also revealed, that all of the charges were dismissed except that for possession of cocaine, to which adjudication was withheld, and he was placed on five years' probation.

   
   

5. Quinn was advised by his attorney and his probation officers that upon satisfactory completion of his probation his record would be expunged.

   
   

6. Quinn satisfactorily completed his five years' probation.

   
   

7. Quinn was just over 18 years of age when he was arrested. During probation Quinn satisfactorily completed four years of college and received a Bachelor's degree in Criminal Justice.

   
   

8. Quinn included with his initial application the affidavit of Lola A. Alston to his good character. Alston was Quinn's last probation officer.

   
   

9. Quinn has had no arrests since July 9, 1975.

   
   

   CONCLUSIONS OF LAW

   
   

10. Section 493.08, Florida Statutes, provides that the Department of State shall deny licenses to applicants who have been convicted of a felony, convicted of a crime involving moral turpitude, or have falsified an application for licensure. The facts reveal that Quinn has never been convicted of an offense, adjudication having been withheld. If he is to be denied, it must be for falsification of his application.

    
    

11. Petitioner was arrested for several serious offenses in 1975, when he was 18 years old. He was placed on five years' probation without adjudication. He was advised by his attorney and his probation officers that upon satisfactory completion of his probation his record would be expunged. He understood that his record would be completely clean as a result of expunging of his record. He completed his probation satisfactorily, during which time he completed a four- year college program and obtained a Bachelor's degree in Criminal Justice. He included with his application the character affidavit completed by his last probation officer.

12. Although Petitioner did not reveal his arrest on his application, it is questionable whether he falsified his application. Given the representations of his attorney and his probation officers that his record would be expunged, his failure to reveal his arrest does not appear to be a willful falsification. The purpose of permitting probation without adjudication and expungement of records is to permit an individual the committing court feels may be rehabilitated to complete a period of supervised probation without having a criminal record to retard his future success. Any individual who has successfully completed the period of probation is in an unusual position when filling out applications asking for arrest records because he can never be certain whether he should report the incident or not. The inclusion of the affidavit of good character completed by his probation officer indicates that Petitioner was not willfully falsifying his application but responding to Question #13 in a manner consistent with the representations made to him about expunging his record, and in a manner consistent with public purpose in permitting the courts to place persons on probation without adjudication.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the Petitioner's applications for unarmed and armed guard licenses be approved.

DONE AND ENTERED this 22nd day of July 1981 in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

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 22nd day of July 1981.

COPIES FURNISHED:

Mr. Michael J. Quinn

4601 Northwest Second Avenue, #801 Boca Raton, Florida 33431

James V. Antista, Esquire Assistant General Counsel Department of State

The Capitol

Tallahassee, Florida 32301

George Firestone, Secretary Department of State

The Capitol

Tallahassee, Florida 32301

Docket for Case No: 81-001531

Orders for Case No: 81-001531