STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEONARD P. TUNSTALL, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1538S

)

DIVISION OF LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on July 9, 1981, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, in Miami, Florida. Although noticed for hearing in Fort Lauderdale, Florida, Mr. Tunstall called the Hearing Officer in Fort Lauderdale and advised he did not have transportation there. It was mutually agreed between the parties that the case would be heard in Miami, Florida, immediately before the Hearing Officer's afternoon hearing involving another agency.

APPEARANCES

For Petitioner Leonard P. Tunstall, pro se

12555 Biscayne Boulevard, Suite 996 North Miami, Florida 33181

For Respondent James V. Antista, Esquire

Assistant General Counsel Department of State, The Capitol Tallahassee, Florida 32301

The parties stipulated to introduction of Respondent's Exhibits l and 2 as follows:

(1) Tunstall's application for unarmed and armed guard licensure; and (2) Letter of denial of licensure dated April 7, 1981.

ISSUES

The issues are whether Tunstall has ever been convicted of a felony, whether Tunstall has ever been convicted of a crime involving moral turpitude, and whether Tunstall falsified his application.

FINDINGS OF FACT

1. Leonard P. Tunstall made application for licensure as an unarmed and armed security guard to the Department of State. His application was received by the Department in February of 1981. The application indicates it was signed by Tunstall on October 29, 1980.

2. Question #13 on the application was answered "no," as indicated by a check mark.

   
   

3. When he originally received the application, Tunstall filled it out up to Question #13. He had not completed that question because he lacked all the data. Subsequently, Albert Simmons, his supervisor, stopped by Tunstall's residence and picked up the application, which Simmons completed with assistance from Tunstall's girlfriend. Neither Simmons nor Tunstall's girl friend had knowledge of Tunstall's record. Subsequently, Tunstall advised Simmons about his arrests, and Simmons told him that his arrests would not disqualify him. Tunstall signed the application with the understanding that his arrests would be disclosed. However, Simmons was subsequently fired, and Tunstall's application was found by Simmons' successor who submitted it with the arrests undisclosed.

   
   

4. Tunstall's application, Respondent's Exhibit 1, indicates that answers to Questions #1 through #12 were hand-written, Question #13 was answered by placing a check mark in the "no" block, and answers to Questions #14 through #17 were type-written. Simmons was the notary who authenticated Tunstall's signature.

   
   

5. Tunstall further testified that he began work for Florida Merchant Police in June of 1979, as a uniformed rail crossing guard. In approximately January of 1980, he was assigned to work at an unarmed security guard post. It was after this that he was given an application for licensure by the company.

   
   

6. Tunstall's FBI records reveal the following arrests and convictions:

   
   

   1939	- Disorderly conduct, NJ (Fined)
   1940	- Disorderly conduct, NJ (Fined)
   1947	- Burglary and attempted larceny, NJ
   	(Felony conviction, sentenced to 1 to
   	2 years - served 8 months)
   1958	- Assault and battery, NJ (Fined)
   1958	- Disorderly conduct, NJ (Fined)
   1960	- Burglary, NJ (Felony conviction,
   	sentenced to 2 to 3 years)
   1975	- Keeping a house of ill fame, FL
   	(Dismissed)

   
   

7. Tunstall testified that his civil rights had been restored in New Jersey, but he could not introduce any documentation to support his testimony.

   
   

   CONCLUSIONS OF LAW

   
   

8. Section 493.08, Florida Statutes, provides that the Department of State may deny application for a guard license because of conviction of a felony, conviction of a crime involving moral turpitude, or falsification of an application for licensure.

   
   

9. Tunstall's application did not indicate his arrests; however, the manner in which the application was filled out and the dates of its preparation and submission are consistent with Tunstall's account of the events. It is concluded that Tunstall did not falsify his application. Therefore, if Tunstall is to be denied licensure it must be because of conviction of a felony or of a crime involving moral turpitude.

10. The facts reveal that Tunstall was convicted of a felony, burglary, in 1947, and convicted again of the same felony in 1960. This constitutes grounds for denial of Tunstall's application for both licenses in the absence of a showing of substantial rehabilitation. In the absence of a showing that Tunstall has had his civil rights restored, he is not eligible for an armed guard license. Given the questionable status of the restoration of Tunstall's civil rights, his application for an armed guard's license should be denied. However, in consideration of the fact that Tunstall's last conviction was more than 20 years ago, and that he has been employed as an unarmed guard since June of 1979, without incident, to include approximately three months when he possessed a temporary gun permit, he has shown substantial rehabilitation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, and considering the factors in mitigation, the Hearing Officer recommends that Leonard Tunstall's application for licensure as an armed guard be denied, and recommends that Tunstall's application for licensure as an unarmed guard be granted.

DONE and ORDERED this 24th 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 24th day of July, 1981.

COPIES FURNISHED:

Mr. Leonard P. Tunstall Suite 996

12555 Biscayne Boulevard North Miami, Florida 33181

George Firestone, Secretary Department of State

The Capitol

Tallahassee, Florida 32301

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

The Capitol

Tallahassee, Florida 32301

Docket for Case No: 81-001538

Orders for Case No: 81-001538