STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN C. RODRIGUEZ, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1852S

)

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held before the Division of Administrative Hearings, by its duly designated Hearing Officer, DONALD R. ALEXANDER, in Miami, Florida, on August 26, 1981.

APPEARANCES

For Petitioner: John C. Rodriguez in pro se

9174 North 30th Court Miami, Florida 33147

For Respondent: James V. Antista, Esquire

Assistant General Counsel Department of State

The Capitol

Tallahassee, Florida 32301 BACKGROUND

By application dated March 31, 1981, Petitioner, John C. Rodriguez, sought the issuance of Class D and C security guard licenses from Respondent, Department of State. By letter dated June 4, 1981, the Respondent denied the application on the grounds (1) Petitioner had failed to demonstrate fitness to carry a firearm, (2) there was a substantial connection between the lack of good moral character of applicant and the business for which the license was sought,

1. Petitioner had made a willful misrepresentation on his application, and (4) Petitioner had violated a provision of Chapter 493, Florida Statutes.

   
   

   Petitioner disputed the allegations set forth in the letter of denial and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. On July 16, 1981, Respondent transmitted this request to the Division of Administrative Hearings and asked that a Hearing Officer be assigned to conduct a hearing. By Notice of Hearing dated July 28, 1981, the final hearing was scheduled for August 26, 1981, in Miami, Florida.

   At the final hearing Petitioner testified on his behalf and called Gladys Rodriguez as a character witness and offered Petitioner's Exhibit 1 which was received into evidence. Respondent presented the testimony of Ralph Gisbert and offered Respondent's Exhibits 1-4, each of which was received into evidence.

   
   

   Based upon all the evidence the following facts are determined:

   
   

   FINDINGS OF FACT

   
   

   1. Petitioner, John C. Rodriguez, is a 27 year old male whose current mailing address is 9174 Northwest 30th Court, Miami, Florida.

      
      

   2. Petitioner filed an application on March 31, 1981, for licensure as an unarmed/armed security guard (Class D and G) with Respondent, Department of State. Question 13 on the application asks if the applicant has ever been arrested. Petitioner answered that he had not (Respondent's Exhibit 1). A subsequent Federal Bureau of Investigation check revealed Petitioner had been arrested on January 22, 1976, for attempted larceny, loitering and prowling and was con victed of attempted larceny and loitering (Respondent's Exhibit 3). For this he paid a $254 fine but was not incarcerated. Petitioner explained that he answered the question in the negative since he believed he was not guilty of the charges although he was ultimately convicted by the courts.

      
      

   3. Petitioner is now unemployed. His employment record in the past has been spotty, and has consisted primarily of part-time jobs or jobs on a one-time basis. He has no permanent domicile and has lived for a number of years with friends or acquaintances.

      
      

   4. A background investigation of the applicant by an investigator reached the conclusion that applicant has insufficient stability and emotional maturity to carry a firearm. This conclusion was based upon applicant's failure to hold a job for any period of time, or to maintain a permanent domicile. Moreover, applicant has access to attack dogs which the Department believes may be used improperly if a license is granted.

      
      

      CONCLUSIONS OF LAW

      
      

   5. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Section 120.57(1), Florida Statutes.

      
      

   6. Subsection 493.306(6). Florida Statutes (Supp. 1980) provides in part:

      
      

      (6) In addition to other requirements,

      an applicant for a Class "G" license must:

      * * *

      (b) Demonstrate fitness to carry a firearm based upon a complete background investigation by the department of the individual's police record and general character.

      
      

   7. Section 493.319(1), Florida Statutes (Supp. 1980) enumerates the grounds upon which the Department may deny an application for licensure. They include, inter alia:

      
      

      (1)(a) Fraud or willing misrepresentation in applying for or obtaining a license:

      * * *

      (1)(c) Having been found guilty of the commission of a crime which directly relates to the business for which the

      license is held regardless of adjudication;.

      
      

   8. The burden of proof is upon the applicant to prove his entitlement to the requested licenses. This includes a requirement that he "[d]emonstrate fitness to carry a firearm based upon a complete background investigation. . .of the individual's. . .general character." Section 493.305(6)(b), supra. Here a showing of fitness to carry a firearm has not been shown, particularly in light of applicant's sporadic employment history, lack of permanent domicile, and absence of independent testimony or other evidence as to his character and temperament to carry a firearm. Accordingly, the denial of applicant's request for a Class G license was justified, and should be affirmed.

      
      

   9. The Petitioner has also requested a Class D license for a security guard position not requiring the use of a firearm. A violation of Subsections 493.319(1)(a) and (c), supra, constitutes grounds for denial of the application. Although Petitioner pled guilty to the charge of attempted larceny of a lug nut off a tire, and loitering, these charges in themselves are not so serious as to warrant a denial of the application, given the passage of time since the offenses (January, 1976), and Petitioner's good record since that time.

However, Petitioner did knowingly answer question 13 in a false manner notwithstanding his maintaining of innocence to the prior charges. Moreover, he has no firm employment opportunities at the present time if the license is granted as required by the Department. Therefore, the Department was justified in denying this portion of the application. However, such denial should be without prejudice to Petitioner refiling the application with a proper response to question 13 and the signature of an employer who has approved the applicant for hiring.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Petitioner, John C. Rodriguez, for a

Class G license (statewide gun permit) be DENIED. It is further

RECOMMENDED that the application of Petitioner for a Class D license (watchman, guard or patrolman) be DENIED without prejudice to Petitioner submitting an amended application with a proper response to question 13 and the signature of an employer who has approved the applicant for hiring.

DONE and ORDERED this 28th day of August, 1981, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 28th day of August, 1981.

COPIES FURNISHED:

Mr. John C. Rodriguez 9174 Northwest 30th Court Miami, Florida 33147

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

The Capitol

Tallahassee, Florida 32301

Mary L. Gast, Chief

Bureau of License Issuance Department of State

The Capitol

Tallahassee, Florida 32301

Docket for Case No: 81-001852

Orders for Case No: 81-001852