Judges: SHARYN L. SMITH
Agency: Department of Agriculture and Consumer Services
Latest Update: May 11, 1982
Summary: Petitioner Cuban refugee couldn't produce past clean criminal record. On probation for US weapon conviction. Recommended Order: grant Class D license.
81-2625STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ISIDRO R. CRUCET, )
)
Petitioner, )
)
vs. ) CASE NO. 81-2625S
)
DEPARTMENT OF STATE, )
DIVISION OF LICENSING, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Sharyn L. Smith, held a formal hearing in this case on December 11, 1981, in Miami, Florida. The following appearances were entered:
For Petitioner: Jorge Luis Fernandez, Esquire
221 Southwest 22nd Avenue, Suite 200 Miami, Florida 33135
For Respondent: James V. Antista, Esquire
Assistant General Counsel Department of State
Room 106, R. A. Gray Building Tallahassee, Florida 32301
The issue presented at the final hearing was whether the Petitioner, Isidro
R. Crucet, should be issued a license for a Class "D" and "G" unarmed/armed security guard.
At the final hearing, the Petitioner Crucet testified on his own behalf.
Petitioner's Exhibits 1(a)-(d), 2(a)-(e) and 3(a)-(h), were offered and admitted into evidence. At the close of the hearing, counsel for Petitioner moved that post-hearing character affidavits be submitted and made a part of the record.
Without objection from the Respondent, the character affidavits received by the Division of Administrative Hearings are admitted as Petitioner's Exhibits 4, 5,
6 and 7.
FINDINGS OF FACT
On March 23, 1981, the Petitioner, Isidro R. Crucet, applied to the Respondent, Department of State, for licensure as a Class "D" (unarmed) and Class "G" (armed) security guard. The application for Class "D" and "G" licensure was denied on September 23, 1981, by the Director of the Division of Licensing pursuant to Section 493.306(2)(b)(1), 493.309(1)(e), 493.319(1)(a), (c), (g) and (p), Florida Statutes.
On October 6, 1981, the Petitioner Crucet requested a hearing on the licensure denial.
The basis for the Department's denial was the Petitioner's guilty plea on April 24, 1981, on a charge of carrying a concealed weapon following an information being filed against him in Dad County Circuit Court on April 5, 1981, which alleged violations of Section 790.01, Florida Statutes, carrying a concealed firearm, and Section 790.10, Florida Statutes, improper exhibition of a dangerous weapon.
Following his guilty plea, the Petitioner Crucet was sentenced to eighteen months probation beginning April, 1981, and adjudication and sentence were withheld.
At the final hearing, the Petitioner Crucet, through his interpreter, explained the events which led to his being charged and convicted of carrying a concealed firearm.
Since early 1981, the Petitioner has been employed by Minutemen Security Patrol. In April, 1981, he was working the 6:00 p.m.-6:00 a.m. shift guarding a warehouse located at 3050 North River Drive in Miami. Adjacent to the warehouse area which he was guarding was a bar. A patron of the bar wanted to park his car in the warehouse area which the Petitioner was guarding since the bar parking area was full. When the Petitioner refused to allow the bar patron to park in the warehouse parking area, the patron became abusive and threatening. After the bar patron grabbed his neck and shoved him aside, the Petitioner went to his car and returned carrying a 33 caliber gun retrieved from the glove compartment which was lawfully purchased and for which he had received a temporary gun permit. When he reached the area where the bar patron had threatened him and the individual saw the gun, he left in his car. Although the gun was loaded, the Petitioner did not point the gun at anyone nor did he leave the area he was responsible for guarding. Approximately one hour after the incident the police arrived at the warehouse and asked the Petitioner if he had a gun. The Petitioner replied that he did and turned the gun over to the police. He was then arrested and booked on April 5, 1981.
The Petitioner arrived in the United States from Cuba on May 1, 1980. He testified that while in Cuba he had worked on trains. He is presently working as an unarmed security guard for the same company which employed him when the incident in question occurred.
Since the Petitioner arrived from Cuba, it is impossible at this time for the Respondent Department of State to ascertain from official records his criminal history in that country, if any. In this regard, the Petitioner is not unique and this is a situation that confronts all entrants from countries with whom the United States does not maintain formal or informal diplomatic relations.
The Petitioner Crucet produced affidavits from individuals who were friends and neighbors in Cuba and who now reside in the United States. All of these individuals, who include an auto store clerk, a grocery store owner, a Community Service Agency owner and a supermarket owner, attest to his good moral character in Cuba and in the United States since his arrival in 1980. Additionally, the Petitioner's attorney, Jorge Fernandez, testified at the formal hearing that he knew the Petitioner, his family and his employer and would vouch for the good moral character and reputation of the Petitioner.
Counsel for the Petitioner informed the Hearing Officer at the close of the final hearing that one of the conditions of his probation prohibit him from receiving a license as an armed security guard without the permission of his probation officer. However, once the Petitioner's probationary period has ended, it is the intention of Mr. Fernandez to attempt to expunge the Petitioner's record and reapply for a license as an armed security guard.
The Respondent Department of State offered no evidence to refute the Petitioner's account of the incident which resulted in his guilty plea for carrying a concealed weapon or the character affidavits filed following the close of the final hearing.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Florida Statutes.
Pursuant to Section 493.306, Florida Statutes, each individual licensed by the Department shall be of "good moral character," which is defined as ". . . a personal history of honesty, fairness, and respect for the rights of others and for the laws of this state and nation." The Department may refuse to license an applicant for good moral character only if:
There is a substantial connection between the lack of good moral character
of the applicant and the business for which the license is sought.
The finding by the department of lack of good moral character is supported by clear and convincing evidence.
Additionally, an applicant found to have violated any of the provisions of Section 493.319(1)(a)-(p), Florida Statutes, may, inter alia, be denied licensure as a security guard.
In security licensing cases, the burden is on the Department to demonstrate that a finding of lack of good moral character is supported by clear and convincing evidence and that such lack of good moral character is substantially connected to the business for which the license is sought. In the instant case, the Department's denial of licensure is based upon the Petitioner's plea of guilty to a charge of carrying a concealed weapon and the Department's inability to verify his conduct and reputation prior to his arrival in the United States. The Petitioner, however, has produced statements attesting to his good character and reputation both in Cuba and the United States. Additionally, he explained the events which led to his guilty plea for carrying a concealed weapon. No testimony or evidence was produced that contradicted the Petitioner's version of the incident at the warehouse or cast doubt on the statements submitted concerning the Petitioner's character and reputation. Under these circumstances, the Department has failed to carry its burden of producing clear and convincing evidence that the Petitioner lacks good moral character.
The Department's denial of licensure based upon Section 493.309(1)(c), Florida Statutes, ". . . the department shall make . . . such other investigation . . . as the department may deem necessary" is without merit. There was no indication at the final hearing that the Department had any information upon which it based its denial other than the Petitioner's guilty plea. While it is true that under ordinary circumstances prior criminal history would be required, there was no indication that such information could realistically be secured by the Department insofar as entrants from Cuba were concerned or that any additional background investigation of Petitioner was actually contemplated.
Due to the Petitioner's present probationary status and the representations made by counsel at the final hearing concerning the Petitioner's reapplication for licensure following the completion of his probationary period and expungement of his criminal record, it is not necessary to consider the denial of licensure as a Class "G" security guard.
RECOMMENDATION
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED:
That the application of Petitioner Isidro R. Crucet for licensure as a Class "D" unarmed security guard be granted.
DONE AND ENTERED this 6th day of April, 1982, in Tallahassee, Florida.
SHARYN L. SMITH
Hearing Officer
Division of Administrative Hearings Department of Administration Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
FILED with the Clerk of the Division of Administrative Hearings this 6th day of April, 1982.
COPIES FURNISHED:
Jorge Luis Fernandez, Esquire
221 S.W. 22nd Avenue Suite 200
Miami, Florida 33135
James V. Antista, Esquire Assistant General Counsel Department of State
Room 106, R. A. Gray Building Tallahassee, Florida 32301
Honorable George Firestone R. Stephen Nall, Esquire
Secretary of State General Counsel
The Capitol Department of State
Tallahassee, Florida 32301 The Capitol
Tallahassee, Florida 32301
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF STATE
ISIDRO R. CRUCET,
Petitioner,
vs. CASE NO. 81-2625S
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, the Department of State has allowed each party at least ten days in which to submit written exceptions to the Recommended Order; no such written exceptions were filed. Therefore, based upon said Recommended Order, the evidence presented and a review of the complete record
IT IS ORDERED THAT:
The Findings of Fact and Conclusions of Law of the Hearing Officer be adopted.
An additional Conclusion of Law must, however, also be entered. The Department's denial letter, which was received into evidence as Petitioner's Exhibits 2A and B, stated as a separate ground for denial of Petitioner's "D" and "G" licenses Subsection 493.319(1)(c), Florida Statutes, in that Petitioner was found guilty of the commission of a crime which directly relates to the business for which the license would be held regardless of adjudication.
Petitioner's counsel specifically acknowledged this as one of the grounds for denial during his closing argument.
The commission of a criminal offense involving a firearm while on guard post represents a severe departure from the standards of training and judgment that the department feels should be exhibited by a security guard who seeks licensure by the State, even if that license would not permit the carrying of a firearm. The crime of which Mr. Crucet was convicted, having been committed on post, was clearly in connection with the business for which licensure is sought. Therefore, in addition to the Conclusions of Law contained in the Recommended Order, the Department finds that its denial of licensure based upon Section 493.319(1)(c), Florida Statutes, was justified. It is, therefore,
FURTHER ORDERED THAT:
Isidro R. Crucet's application for a Class "D", unarmed security guard, license and a Class "G", armed security guard, license be denied without prejudice to reapply at the time that he has successfully completed his period of supervised probation in connection with the subject criminal charges.
DONE AND ORDERED at Tallahassee, Florida this 7th day of May 1982.
THOMAS E. GARDNER
Assistant Secretary of State
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Final Order has been sent by
U.S. Mail to Jorge Luis Fernandez, Attorney for Petitioner, 221 Southwest 22 Avenue, Suite 200, Miami, Florida 33135 this 7th day of May 1982.
Stephen Nall, General Counsel Department of State
The Capitol
Tallahassee, Florida 32301
(904) 488-3680
Docket for Case No: 81-002625
Orders for Case No: 81-002625
| Issue Date |
Document |
Summary |
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May 07, 1982 |
Agency Final Order
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Apr. 06, 1982 |
Recommended Order
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Petitioner Cuban refugee couldn't produce past clean criminal record. On probation for US weapon conviction. Recommended Order: grant Class D license.
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