STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FREDDIE A. HORTON, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1854S

)

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above captioned matter before the Division of Administrative Hearings, by its duly designated Hearing Officer, DONALD R. ALEXANDER, in Fort Lauderdale, Florida, on August 25, 1981.

APPEARANCES

For Petitioner: Freddie A. Horton in pro Se

58 Tortuga Road

Palm Springs, Florida 33461

For Respondent: James V. Antista, Esquire

Assistant General Counsel Department of State

The Capitol

Tallahassee, Florida 32301 BACKGROUND

By application dated December 9, 1980, Petitioner, Freddie A. Horton, sought the issuance of a Class G license (statewide gun permit) from Respondent, Department of State. On April 20, 1981, Respondent denied the application on the grounds (1) there was a substantial connection between the lack of good moral character of applicant and the business for which the license was sought,

1. Respondent failed to demonstrate fitness to carry a firearm, (3) a fraudulent or willful misrepresentation had been made on the application, (4) Respondent had been found guilty of the commission of a crime that directly related to the business for which the license would be held, and (5) Respondent had violated a provision of Chapter 493, Florida Statutes.

   
   

   Respondent disputed the allegations contained in the Department's letter of denial and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. The matter was referred to the Division of Administrative Hearings on July 16, 1981, with a request 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 25, 1981, in Fort Lauderdale, Florida.

   At the final hearing Petitioner testified on his own behalf and presented Phillip F. Hooker as his witness, and offered Petitioner's Exhibits 1 and 2, each of which was received into evidence. Exhibit 2 contains six letters from former employers attesting to Petitioner's character, honesty and trustworthiness. Respondent offered Respondent's Exhibits 1-3, each of which was received into evidence.

   
   

   The parties were given the opportunity to file proposed findings of fact and conclusions of law; however, none were filed.

   
   

   Based upon all the evidence, the following findings of fact are determined.

   
   

   FINDINGS OF FACT

   
   

   1. Petitioner, Freddie A. Horton, is a 46 year old male who presently resides at 58 Tortuga Road, Palm Springs, Florida.

      
      

   2. On or about December 9, 1980, Petitioner filed an application for a Class G license with Respondent, Department of State. Said license authorizes the holder to carry a firearm while employed in a security guard capacity.

      
      

   3. Question 13 on the application required that the applicant state whether he had ever been arrested. Petitioner answered he had not (Respondent's Exhibit 1). A subsequent investigation of Petitioner's record by the Federal Bureau of Investigation revealed that Petitioner was arrested by the United States Army for desertion in June, 1955, for which he was confined to the U.S. Disciplinary Barracks at Camp Gordon, Georgia, for almost two years. Horton was also given a dishonorable discharge from the service. Petitioner has had no other arrests or convictions since that time.

      
      

   4. Question 12 on the application asks the type of discharge received from the Armed Forces. Petitioner answered he had been given an honorable discharge, which was obviously not true.

      
      

   5. Petitioner initiated inquiries with the U.S. Army in late 1980 to upgrade his dishonorable discharge to an honorable discharge (Petitioner's Exhibit 1). The request is still being considered at this time. Petitioner readily acknowledged his troubles with the Army but stated that he answered questions 12 and 13 in the manner that he did because (1) he thought the upgrading of the discharge would be resolved by the time the application was acted upon, and (2) he did not know that a military arrest was part of the law enforcement record contemplated by question 13.

      
      

   6. Petitioner is currently employed by Armour Industrial Security, Inc. in Fort Lauderdale, Florida. In May, 1981, he was issued a temporary permit by the Department to carry a firearm and has most recently held the position of sergeant of the guard with supervising authority over eight employees at the Port of Palm Beach, Florida. A Class G license is necessary in order for him to retain this position on a permanent basis.

      
      

   7. Petitioner's record since 1955 has been exemplary. This was corroborated by letters of recommendation prepared by no less than six past employers who each gave him high marks for good character, honesty and trustworthiness. His present employer rates him equally high and would entrust him with supervisory responsibilities if the license is granted.

      CONCLUSIONS OF LAW

      
      

   8. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties thereto pursuant to Section 120.57(1), Florida Statutes (1979).

      
      

   9. Subsection 493.306(2)(b), Florida Statutes (Supp. 1980) provides in part that:

      
      

      (2)(b) The Department may refuse to license an applicant for lack of good moral character only if:

      1. There is a substantial connection between the lack of good moral character of the applicant and the business for which the license is sought.

         
         

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

       
       

       (6) In addition to any other requirements, an applicant for a Class "G" license must:

       * * *

       (b) Demonstrate fitness to carry a firearm. . .

       
       

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

       
       

       (a) Fraud or willful misrepresentation in applying for or obtaining a license.

       * * *

       (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.

       (p) Violating any provision of this chapter.

       
       

   12. The burden of proof of entitlement to the requested license rests upon the applicant. Having made a prima facie showing of entitlement, the burden then shifts to Respondent to counter that preliminary showing. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981). Here by testimony and documentary evidence the applicant has presented a prima facie case demonstrating his good moral character and fitness to carry a firearm within the meaning of the law. Subsections 493.306(1)(b) and (6)(b), Florida Statutes (Supp. 1980).

       
       

   13. In an effort to controvert this preliminary showing of entitlement to the license, the Department has relied upon five statutory deficiencies in the application, as set forth in its letter of April 20, 1981, and a sixth ground raised at the final hearing. Each will be discussed separately hereinafter.

       
       

   14. First, the Department contends "[t]here is a substantial connection between the lack of moral character of the applicant and the business for which the license is sought." Subsection 493.306(2)(b)1, supra. However, Subsection 493.306(2)(b)2, Florida Statutes (Supp. 1980) requires that if such a determination is made by the Department, it must be supported by "clear and

       convincing evidence". Other than an arrest for desertion some 25 years ago, there was no evidence to support this contention, and it is concluded that this statutory ground a a basis for denying the license is without merit.

       
       

   15. The Department also contends that applicant did not demonstrate "fitness" to carry a firearm as required by Subsection 493.306(6)(b), supra. But the totality of the evidence suggests a contrary conclusion, and it is concluded that this portion of the statutory requirements has been made.

       
       

   16. The Department next asserts that the crime (desertion) committed by Petitioner has a direct relationship to the security guard business for which the license will be held, and as such, licensure may be denied. However, being absent without leave from the Army for 2 or 3 months at an age of 19 or 20, as Petitioner was, has no bearing upon his present ability to perform security guard services in an honest and efficient manner. Moreover, the passage of time (26 years) since the offense and the subsequent good behavior of applicant more than offset any relationship that may exist between the offense and the business that Petitioner is engaged in. Accordingly, it is concluded that this statutory element has no application to the factual situation herein.

       
       

   17. The next ground for denial is based upon Petitioner's failure to correctly answer questions 12 and 13 on his application. It is charged that such answers constituted "willful misrepresentation" on the part of applicant, and as such, are grounds for denying the application. Subsection 493.319(1)(a), supra. Petitioner acknowledged that such answers were incorrect but explained that he was unaware that military arrests were to be included in the response to question 13. Such explanation appears to be plausible and negates any finding that his answer was intended to deceive. The response to question 12 concerning the type of discharge received from the Armed Forces, while obviously incorrect, is not of such materiality as to war rant denial of the application if an amended response is provided.

       
       

   18. The Department's final contention in its letter of April 20, 1981, is that a violation of Chapter 493 has occurred (Subsection 493.319(1)(p), supra). However, the "violation' was not explained or shown, and it need not be considered in the resolution of this matter.

       
       

   19. At the final hearing Respondent contended that Petitioner's civil rights were taken away when he was adjudicated guilty of desertion and, absent a restoration of those rights, it is without authority to permit him to carry a firearm. In reaching this conclusion, it asserted that the crime of desertion is comparable to a felony, for which a less of civil rights is automatic. Petitioner responded that he was never advised by the Army that his civil rights were taken away, but was merely given discharge papers after his confinement period had been served. By personal choice, he has not registered to vote and the issue has never arisen prior to this time (See Section 97.041(3)(b) , Florida Statutes; Art. VI, 4, Fla. Const.)

       
       

   20. A felony is defined in Article X, Section 10, Florida Constitution as follows:

       
       

       The term "felony" as used herein and in the laws of this state shall mean any criminal offense that is punishable under the laws of this state, or that would be punishable if committed in this state, by death or by imprisonment in the state penitentiary.

       Petitioner was convicted of desertion from the Armed Forces, and was confined for almost two years in a military facility. Since his confinement was in excess of a year, as authorized by the Uniform Code of Military Justice, it constituted a felony. See 18 USCA 1; 40 Op Comp Gen 600 (1961).

       
       

   21. There is no criminal offense in the State of Florida that is comparable to desertion. Therefore, the commission of this offense by an individual in Florida would not subject him to punishment "by death or imprisonment in the state penitentiary". Because of this, Horton has committed an offense made a felony by the United State Code though not by Florida Statutes. Accordingly, he has not committed a felony as defined by the Florida Constitution. Rotstein v. Department of Professional and Occupational Regulation, 397 So.2d 305 (Fla. 1st DCA 1981)

       
       

   22. Section 944.292, Florida Statutes, provides that:

       
       

       Upon conviction of a felony as defined in s.10, Art. X of the State Constitution, the civil rights of the person convicted shall be suspended in Florida until such rights are restored by full pardon, conditional pardon, or restoration of civil rights granted pursuant to s.8, Art. IV of the State Constitution.

       
       

       Because Horton was net convicted of a felony as defined by the Florida Constitution, his Florida civil rights were never suspended. However, the conviction of a felony while serving in the armed Forces has resulted in the loss of Petitioner's federal civil rights, which apparently have never been restored. 1/

       
       

   23. Section 790.23, Florida Statutes, is also pertinent for it provides in part that:

1. It is unlawful for any person who has been convicted of a felony in the courts of this State or of a crime against the United States which is designated as a felony or convicted of an offense in any other state, territory, or country punishable by imprisonment for a term exceeding 1 year to own or to have in his care, custody, possession, or control any firearm. . . .

2. This section shall not apply to a person convicted of a felony whose civil rights have been restored.

Petitioner clearly is subject to the restrictions imposed by this law, and absent the restoration of his civil rights, cannot qualify for licensure to carry a firearm. Unlike Section 944.292, supra, this law merely requires that the person be convicted of a crime designated as a felony in the other jurisdiction in order to be subject to its constraints. Accordingly, because Petitioner was convicted of desertion, which is designated as a felony by the United States Code, he is ineligible to carry a firearm until his civil rights are restored. In this regard, it is suggested that Respondent advise Petitioner

as to the proper procedure to be followed in gaining a restoration of his rights.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Petitioner, Freddie A. Horton, for a

Class G license to carry a firearm be DENIED.

DONE and ENTERED this 23rd day of September, 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 23rd day of September, 1981.

ENDNOTE

1/ Presumably, the loss of federal civil rights would include such items as forfeiture of federal retirement benefits, 5 USCA 8312, ineligibility for public office, 8 USCA 1425 and ineligibility for federal jury service, 28 OSCA 5 1865. In Florida, the civil rights which are suspended by conviction of a felony are the rights to vote, hold office, and to serve on a jury. In re Advisory Opinion of the Governor Civil Rights, 306 So.2d 520 (Fla. 1975)

COPIES FURNISHED:

Mr. Freddie A. Horton

58 Tortuga Road

Palm Springs, Florida 33461

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

The Capitol

Tallahassee, Florida 32301

Mary L. Gast Department of State Division of Licensing The Capitol

Tallahassee, Florida 32301

Docket for Case No: 81-001854

Orders for Case No: 81-001854