STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RUDOLPH T. AYLWIN, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1896S

) FLORIDA DEPARTMENT OF STATE, ) DIVISION OF LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by its designated Hearing Officer, MICHAEL PEARCE DODSON, held the final hearing in this case on Apr11 8, 1982, in Pompano Beach, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Rudolph T. Aylwin, pro se

321 C SE 11 Street

Pompano Beach, Florida 33060

For Respondent: James V. Antista, Esquire

Department of State Division of Licensing The Capitol

Tallahassee, Florida 32301 BACKGROUND

These proceedings began on June 18, 1981 when Petitioner Rudolph T. Aylwin, sent a letter to Respondent Department of State (Department) to request a hearing on the denial of his application for a "D" and "G" Class Security Guard License. On July 30, 1981, the case was forwarded to the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a final hearing. On August 6, 1981, the parties were ordered to inform the Hearing Officer of dates they preferred for the final hearing. No response was made to that Order.

The hearing was therefore set for Apr11 8, 1982. During the hearing Petitioner did not introduce any exhibits but did present his own testimony. Respondent offered Exhibits 1, 2 and 3 which were received into evidence.

At the conclusion of the hearing, the parties were informed of their right to submit proposed Findings of Fact and proposed Recommended Orders. Section 120.57(1)(b)4. Florida Statutes (1981). Neither party indicated a desire to make such submissions.

ISSUE PRESENTED

Has Mr. Aylwin demonstrated that he possesses the requirements of Section 493.306, Florida Statutes (1981) to be licensed as a security guard by the Department?

FINDINGS OF FACT

1. On March , 1981, Mr. Aylwin applied for a Class "D" and "G" Security Guard License from the Department.

   
   

2. Question 13 of the application form submitted by Petitioner asked if he had ever been arrested. Mr. Aylwin checked the box marked "No."

   
   

3. On May 5, 1981, the Department sent a letter to Mr. Aylwin which stated in part:

   
   

   Your application for the above referenced license has been denied pursuant to the Florida Statutes as cited, and facts stated, in the attachment (applicable portions of the statutes are indicated with an "X").

   
   

   The items checked included:

   
   

   X Chapter 493.306(2)(b)(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."

   
   

   X Chapter 493.306(6)(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.

   
   

   X Chapter 493.309(1)(c) "Such other investigation of individual as the department may deem necessary."

   
   

   Chapter 493.319:

   
   

   X (1)(a) "Fraud or w11lful misrepresentation in application for or in obtaining

   a license;"

   
   

   X (1)(c) "Having been found gu11ty of the commission of a crime which directly relates to the business for which the license is held, regardless of adjudication;"

   X (1)(j) "Commission of assault, battery, or kidnapping or use of force or violence on any person except in self-defense or in the defense of a client;"

   
   

   x (1)(p) "Violating any provision of this chapter."

   
   

4. On September 4, 1971, Petitioner was convicted of assault and battery on a police officer in Fort Lauderdale, Florida. He was sentenced to a fine of

   $202 or thirty-three days in ja11.

   
   

5. In 1976 Petitioner was arrested for driving while intoxicated. The charged was later reduced to reckless driving and he was convicted.

   
   

6. Petitioner admits to a drinking problem and stated at the final hearing that his use of alcohol was part of the cause for his conviction for assault and battery and for the current loss of his driver's license for traffic violations.

   
   

7. No credible evidence other than the lapse of time was presented to establish the rehab11itation of Petitioner from the effects of his assault and battery conviction.

   
   

8. Petitioner's explanation of why he did not truthfully answer question #13 on his application is not accepted as credible. It is found that he w11lfully gave a false answer to question #13.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Section 120.57(1), Florida Statutes (1981).

   
   

10. An applicant for licensure as a security guard must have good moral character as required by Section 493.306(1)(b), Florida Statutes (1981). Good moral character means "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)(a), Florida Statutes (1981). It is a requirement of that statute however, that before the Department may refuse to license an applicant for a lack of good moral character the Department's findings must be supported by clear and convincing evidence. That requirement is adequately met here. At the final hearing Petitioner made no attempt to controvert the Department's evidence of his conviction of assault and battery on a police officer. His conviction demonstrates a lack of good moral character and that conviction has a substantial connection to the duties of a licensed security guard.

    
    

11. Section 493.319(2)(a), Florida Statutes (1981) provides that "when the Department finds any violation of subsection (1) [of the statute], it may deny an application for licensure". Subsection (1) includes:

    
    

    1. Fraud or w11lful misrepresentation in applying for or obtaining a license;

       * * *

       (c) Having been found gu11ty of the commission of a crime which directly relates

       to the business for which the license is held, regardless of adjudication;

       * * *

       (j) Commission of assault, battery, or kidnapping or use of force or violence on any person except in self-defense or in the defense of a client;

       
       

12. Mr. Aylwin w11lfully misrepresented in his license application that he had not been arrested. Additionally, his conviction for assault and battery on a police officer disqualifies him for licensure pursuant to subparagraphs (c) and (j) above. For these reasons the Department should deny Mr. Aylwin a security guard license pursuant to Section 493.319, Florida Statutes (1981).

    
    

13. In light of the foregoing, I conclude Mr. Aylwin does not meet the requirements for licensure as either an armed (Class "G") or unarmed (Class "D") security guard. Lawrence v. Department of State, Division of Licensing, 4 FALR 811A, Case No. 1181-053 (Florida, Department of State, Final Order February 19, 1982); Skinner v. Department of State, Division of Licensing, 4 FALR 1440A, Case No. 1281-089 (Florida, Department of State, Final Order, May 18, 1982).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Department of State, Division of Licensing enter a Final Order denying the application of Rudolph T. Aylwin for both a Class "G" and a Class "D" Security Guard License.

DONE and RECOMMENDED this 24th day of August, 1982, in Tallahassee, Florida.

MICHAEL P. DODSON

Hearing Officer

Division of Administrative Hearings The Oakland Bu11ding

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

F11ed with the Clerk of the Division of Administrative Hearings this 24th day of August,1982.

COPIES FURNISHED:

Rudolph T. Aylwin

321 C SE 11 Street

Pompano Beach, Florida 33060

James V. Antista, Esquire Department of State Division of Licensing The Capitol

Tallahassee, Florida 32301

George Firestone Secretary of State The Capitol

Tallahassee, Florida 32301

Don Hazelton, Director Division of Licensing Department of State The Capitol

Tallahassee, Florida 32301

Docket for Case No: 81-001896

Orders for Case No: 81-001896