STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HERBERT L. LAMBERT, )

)

Petitioner, )

)

vs. ) CASE NO. 83-140S

)

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on March 4, 1983, in Miami, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This dispute arose when the Department of State denied the application of the Petitioner, Herbert L. Lambert, for an unarmed guard license. The Petitioner timely initiated his request for administrative relief, and the matter was referred by the Department of State to the Division of Administrative Hearings to conduct a formal hearing on whether Lamberts application for licensure should be granted.

APPEARANCES

For Petitioner: Herbert Lambert, Jr., pro se

8600 East Dixie Highway Miami, Florida 33138

For Respondent: Stephen Nall, Esquire

Office of General Counsel Department of State

The Capitol

Tallahassee, Florida 32301 ISSUES

The Department of State denied Lambert's application on two grounds as follow:

1. Fraud or misrepresentation by Lambert on his application by failing to report his arrests on March 26, 1981, for larceny, and burglary of a conveyance on April 9, 1982; and

   
   

2. Having been found guilty of petit larceny on April 17, 1981, an offense which relates to the business for which the license is held.

FINDINGS OF FACT

1. Herbert L. Lambert is a 24-year-old whit male. He is a high school graduate and able to read and write.

2. On August 18, 1982, Lambert applied for licensure as an unarmed guard.

   
   

3. On November 18, 1982, the Department of State denied Lamberts application for licensure: (a) because of fraud and misrepresentation on his application by failing to report his arrests on March 26, 1981, for larceny, and on April 9, 1982, for burglary of a conveyance; and (b) because he was found guilty of petit larceny on April 17, 1981, an offense which relates to the business for which the license is sought.

   
   

4. The Department's denial was on the 92nd day after Lambert applied for licensure.

   
   

5. Lambert was arrested on March 26, 1981, for petit larceny, and on April 9, 1982, for burglary of a conveyance, in Dade County, Florida. On April 17, 1981, he was convicted in Dade County, Florida, of petit larceny in March of 1981 and placed on 12 months probation. The offense of which Lambert was found guilty directly relates to the license which he seeks. The charges relating to his second arrest were nolle prossed.

   
   

6. Lambert did not report these arrests because he was afraid it would prejudice his application for licensure as an unarmed guard.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Department of State has authority under Chapter 493, Florida Statues, to license unarmed guards. The Division of Administrative Hearings has authority to enter this Recommended Order pursuant to Section 120.57, Florida Statutes.

   
   

8. The Department of State denied Lambert's application on the basis of Section 493.319(1)(a) and (c), Florida Statutes. The first section cited provides that a license can be denied or revoked for fraud or misrepresentation on an application. The second section cited provides that a license can be denied or revoked if the person has been convicted of a crime which directly relates to the business for which the license is issued.

   
   

9. Section 120.60, Florida Statutes, provides that an agency must make a decision on an individual's application within 90 days, or it is deemed that the license has been issued. The time limit provided in the statutes is 90 days, not three months. The record reflects that the decision of the Department of State to deny Lambert's application was dated on the 92nd day after receipt of his application. Therefore, by statute, Lambert is deemed to have been licensed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is found that Herbert L. Lambert was licensed as an unarmed guard by operation of law.

The agency must issue the license and, if it feels it necessary, proceed to revoke it.

DONE and RECOMMENDED this 15th day of April, 1983, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, 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 15th day of April, 1983.

COPIES FURNISHED:

Mr. Herbert Lambert, Jr. 8600 East Dixie Highway Miami, Florida 33138

Stephen Nall, Esquire Office of General Counsel Department of State

The Capitol

Tallahassee, Florida 32301

The Honorable George Firestone Department of State

The Capitol

Tallahassee, Florida 32301

Docket for Case No: 83-000140

Orders for Case No: 83-000140