STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HERBERT BERKSHIRE, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2017S

)

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Orlando, Florida, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter, on October 29, 1981. The parties were represented by:

For Petitioner: Herbert Berkshire

4455 Edgewater Drive

Orlando, Florida 32804

For Respondent: Stephen Nall, Esquire

Department of State

106 R. A. Gray Building Tallahassee, Florida 32301

This matter arose on the Respondent's denial of Petitioner's application for a Class "E" Repossessor license. Petitioner requested hearing on this denial, and the matter was referred to the Division of Administrative Hearings by Respondent pursuant to Section 120.57(1), Florida Statutes (F.S.).

FINDINGS OF FACT

1. Petitioner has been employed as a repossessor 1/ by Statewide Detective Agency, Inc., in Orlando for the past year and one half. He applied for the Class "E" license in February, 1981, when he and his employer became aware that such license was required. Prior to statutory revision effective July 1, 1980, repossessors were not licensed. 2/

   
   

2. In 1979, Petitioner committed two separate offenses which resulted in his receiving five-year probationary sentences. The Circuit Court orders, issued on July 25, 1980 (Orange County), and May 12, 1981 (Seminole County), both withheld adjudication of guilt. The offenses involved carrying a concealed firearm and theft of a television set.

   
   

3. Neither of these acts were committed in the course of Petitioner's employment as a repossessor, and no complaints have been filed against him in this capacity. Petitioner's supervisor has found him to be honest and highly reliable. His probation officer characterized his conduct since being placed on probation as "exemplary."

4. Petitioner is married and the father of four children. He was born on January 4, 1955, and was about 24 years old at the time he committed the above offenses. He has since completed a drug and alcohol dependency treatment program and is demonstrating acceptance of responsibility for his conduct and care of his family.

   
   

   CONCLUSIONS OF LAW

   
   

5. Subsection 493.304(6), F.S. (Supp. 1980), provides: "Any person who performs the services of a repossessor shall have a Class 'E' license."

   
   

6. Section 493.306, F.S. (Supp. 1980), provides in part:

   
   

   1. Each individual licensed by the department shall:

      1. Be at least 18 years of age.

      2. Be of good moral character. (2)(a) As used in this chapter, "good moral character" means a personal history of honesty, fair- ness, and respect for the rights of others and for the laws of this state and nation.

      1. The department may refuse to license an applicant for lack of good moral character only if:

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

         2. The finding by the department of lack of good moral character is supported by clear and convincing evidence.

         * * *

         (5) In addition to any other requirements, an applicant for a Class "E" license must have 1 year of work experience performing repossessing, 1 year as a Class "EE" repossessor intern, or a combination of 1 year of work experience and internship.

         
         

7. The above statutory provisions require repossessors to be licensed and establish qualifications for such licensing. Petitioner's moral character is the only qualification at issue.

   
   

8. The above provisions require that Respondent exercise discretion as to grant or denial of a license. This discretionary authority arises from the permissive term, "may refuse" rather than the mandatory, "shall refuse." As a condition of denial, Respondent must find a substantial connection between the lack of good moral character and the duties of a repossessor. The evidence of this deficiency must be clear and convincing.

9. Section 493.319, F.S. (Supp. 1980), provides in part:

   
   

   1. The following constitute

      grounds for which disciplinary action specified in subsection (2) may be taken:

      * * *

      1. 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;

      * * *

   2. When the department finds

      any violation of subsection (1), it may do one or more of the following:

      1. Deny an application for licensure.

         * * *

         (e) Place the licensee on pro- bation for a period of time and subject to such conditions as the department may specify.

         
         

10. The above provisions apply to license denial as a disciplinary measure and must be read in pari materia with Section 493.306, F.S., previously quoted. Here, the standard for denial of a license is one of direct relationship between the offense and the business of repossessing. The companion statute requires a Substantial connection between a demonstrated lack of good character and the business of repossessing. The legislative purpose of these provisions is the identification of persons who are likely to misuse their license or position to engage in illegal activity. For example, an individual with a history of automobile theft would be ineligible for licensing as a repossessor

    
    

11. Respondent argues that Petitioner's theft of a television set was a crime against property, and therefore relates to the business of repossessing. However, this theft occurred prior to Petitioner's employment as a Repossessor and, additionally, before the enactment of the statute requiring him to be licensed. By itself, this incident does not provide sufficient grounds for license denial.

    
    

12. Respondent further argues that a repossessor risks confrontation and that Petitioner has demonstrated a propensity to carry illegally a concealed weapon, thereby increasing the likelihood of violence. Since Petitioner has no history of violence or aggressive behavior, this offense does not establish the connection Respondent suggests. Furthermore, Petitioner's concealed weapon arrest preceded his employment as a repossessor and enactment of the licensing requirement. This offense, therefore, has no immediate relationship to the business for which the license is sought.

    
    

13. Arguably, Petitioner's commission of two separate crimes during a relatively recent period strengthens the connection between the illegal acts or character deficiency and the business of repossessing. Petitioner is currently serving probationary sentences for the separate offenses and is making excellent progress toward establishing himself as trustworthy. Therefore, outright denial of the license application is not warranted. However, grant of the license on a probationary basis is appropriate and reasonable. See Subsection 493.319(2)(e),

F.S. (Supp. 1980), quoted above. 3/

RECOMMENDATION

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

That the Secretary of State enter a Final Order granting Herbert Berkshire a Class "E" Repossessor License on a probationary basis, providing that said license be revoked for any violation of his Court-ordered probation which results in his imprisonment, or for any violation of Chapter 493, F.S., during the period of his Court-ordered probation. It is further

RECOMMENDED:

That Petitioner's license probation be removed upon satisfactory evidence to be submitted by Petitioner that the Circuit Courts of both Orange and Seminole counties have released him from probation.

DONE AND ENTERED this 25th day of November, 1981, in Tallahassee, Florida.

R. T. CARPENTER, 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 25th day of November, 1981.

ENDNOTES

1/ "'Repossessor' means any person who, for compensation, recovers motor vehicles, as defined in s. 320.01(1), and motorboats, as defined in s.

371.021(2), as a result of default in payment for such motor vehicle." Subsection 493.30(6), F.S. (Supp. 1980).

2/ Chapter 80-268, Laws of Florida.

3/ This provision is considered applicable since Petitioner was a repossessor at the time the licensing statute became effective and is, therefore, subject to discipline to the same extent as a licensee.

COPIES FURNISHED:

Herbert Berkshire 4455 Edgewater Drive

Orlando, Florida 32804

Stephen Nall, Esquire Department of State

106 R.A. Gray Building Tallahassee, Florida 32301

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF STATE

HERBERT BERKSHIRE,

Petitioner,

vs. CASE NO. 81-2017S

DEPARTMENT OF STATE, DIVISION OF LICENSING,

Respondent.

/

FINAL ORDER

This cause was heard by a duly designated Hearing Officer of the Division of Administrative Hearings pursuant to Chapter 120, Florida Statutes. Pursuant to said hearing, the Hearing Officer submitted a Recommended Order which included Findings of Fact and Conclusions of Law. Furthermore, in accordance with Section 120.57(1)(b)(8), Florida Statutes, 1/ the Department of State has allowed each party at least ten days in which to submit written exceptions to the recommended Order: The Respondent, Division of Licensing, filed timely written exceptions which will be addressed herein.

Upon review of the record, the Department concludes that there is competent substantial evidence to support the Hearing Officer's Findings of Fact.

Accordingly, the Hearing Officer's Findings of Fact are adopted as the Department's Findings of Fact.

Respondent's Exception 1 challenges the Hearing Officer's conclusion that "[P]etitioner's moral character is the only qualification at issue." The Division of Licensing's letter of June 30, 1981 denied the Petitioner's application for a Class "E", Repossessor's license under the authority of Section 493.319(1)(c) and (2)(a), Florida Statutes, which permits the Division to deny a license to one: "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." Thus, the disputed issue at the hearing was whether the Petitioner was disqualified from licensure because of certain criminal offenses. Moral character was not a disputed issue.

Exception 2 challenges the Hearing Officer's conclusion that Sections 493.306, regarding moral character and 493.3l9(1)(c), regarding criminal offenses, must be read in pari materia. However, the Petitioner's moral character was not a disputed issue. The Petitioner was denied a license because he is on probation for two separate felony criminal offenses. Therefore, Section 493.306, Florida Statutes, is inapplicable and in this case should not be read in pari materia with Section 493.319, Florida Statutes.

Exceptions 3 and 4 have merit. All criminal acts, even these committed before the enactment of the repossessor license provision, outside the course of a repossessor's duties, or before filing an application for license, are material to the license determination. A review of the applicant's complete criminal history record is a necessary part of the Division's responsibility to thoroughly investigate all applicants for license. All criminal conduct, no matter when it occurred, may be considered by the Division. Section 493.309, Florida Statutes.

Exception 5 correctly challenges the Hearing Officer's conclusion that the Division has the authority to issue a probationary license. There is no statutory authority to issue probationary licenses under Chapter 493, Florida Statutes.

While I credit testimony about the Petitioner`s efforts at rehabilitation, he has not completed a five year probation for felony criminal offenses and therefore rehabilitation is not complete. Neither the circuit court nor the Department of Offender Rehabilitation has yet moved to discharge the Petitioner from probation. The Petitioner is still under the close supervision of his probation officer in Orlando. Until the probation period is successfully completed and civil rights restored, issuance of a Class "E" license to the Petitioner is inappropriate.

IT IS ORDERED THAT:

The Findings of Fact of the Recommended Order of the Hearing Officer are hereby adopted but the Conclusions of Law addressed in the Respondent's Exceptions are rejected for the above-state reasons. Accordingly, the Petitioner's application for a Class "E", Repossessor's license is denied.

DONE AND ORDERED at Tallahassee, Florida this 17 day of February 1982.

THOMAS E. GARDNER

Assistant Secretary of State

ENDNOTES

1/ All references are to Florida Statutes (1981) unless otherwise indicated.

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Final Order has been sent by

U. S. Mail to Mr. Herbert Berkshire, 4455 Edgewater Drive, Orlando, Florida 32804 this 17 day of February 1982.

JAMES V. ANTISTA

Assistant General Counsel Department of State

Room 106, R. A. Gray Building Tallahassee, Florida 32301

(904) 488-1780

Docket for Case No: 81-002017

Orders for Case No: 81-002017