STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FREDERICK D. CROWLEY, )

)

Petitioner, )

)

vs. ) CASE NO. 88-1403

) DEPARTMENT OF STATE, DIVISION ) OF LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this case on May 17, 1988, in Tampa, Florida, before Diane A. Grubbs, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Frederick D. Crowley, pro se

6801 Robinswood Lane

Tampa, Florida 33634

For Respondent: R. Timothy Jansen, Esquire

Division of Licensing

The Capitol, Mail Station 4 Tallahassee, Florida 32399-0250

ISSUE

Whether petitioner's application for a Class "G" license, statewide gun permit, should be granted.

BACKGROUND

By letter dated February 16, 1988, the petitioner was advised that his application for a Class "G" license, statewide gun permit, had been denied based on his battery conviction of April 16, 1987, and his conviction on April 7, 1969, for breaking and entering an automobile and petty larceny. Petitioner was advised that his license had been denied based on Section 493.319(1)(c) which provides for denial of licensure for "conviction of a crime which directly relates to the business for which the license is held or sought . . ."; Section 493.319(1)(j) which permits denial of the license for "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," and Section 493.319(3) which states that the Department shall deny an application for licensure when the person has been convicted of a felony "unless and until civil rights have been restored and a period of ten years has expired."

Petitioner disputed that he had been convicted of a crime on the grounds that battery is a misdemeanor, and he also asserted that the battery was in the defense of a client. As to his convictions in 1969, petitioner noted that ten years had expired, and claimed that his civil rights had never been taken away as he was never convicted of any crime. Petitioner requested a formal hearing, and on March 257 1988, the respondent forwarded this matter to the Division of Administrative Hearings for further proceedings. In the transmittal letter, the Department of State, Division of Licensing was listed as the petitioner and Notice of Hearing followed that style. However, Frederick D. Crowley is the petitioner in this action, and the style of the case has been corrected to reflect the proper status of the parties.

At the hearing, the parties stipulated that petitioner's application was properly filed and that the only grounds for the denial of the license were as stated in the denial letter. Petitioner presented the testimony of Daniel Sievers, a Florida Marine Patrol law enforcement officer, and testified on his own behalf. Respondent presented the testimony of Frederick Crowley, the petitioner; Diane Imschweiler, Cheryl Spalding, Margaret Ryan, and Samuel Valez. Respondent's Exhibits 1 through 3 were admitted into evidence.

A transcript of the hearing has not been filed. Both petitioner and respondent have filed proposed findings of fact and conclusions of law, and a ruling on each of the proposed findings of fact has been made in the Appendix to this order.

FINDINGS OF FACT

1. The parties stipulated that petitioner's application for a Class G" statewide gun permit was properly filed with the Department of State, Division of Licensing. The application was not entered into evidence; however, the parties stipulated that the only bases for the denial of the license were those stated in the letter of February 16, 1987.

   
   

2. On April 7, 1969, petitioner was adjudicated guilty of the offenses of breaking and entering an automobile and petty larceny. Petitioner was placed on probation for a period of five years. On April 16, 1987, petitioner entered a plea of nolo contendere to the offense of battery and was placed on probation for a period of six months.

   
   

3. Respondent testified that between 1969 and 1974, while he was on probation, he tried to get his civil rights restored but that he has never been able to determine the status of his civil rights. Petitioner presented no evidence establishing that his civil rights had been restored.

   
   

4. No evidence was presented at this hearing regarding the factual circumstances surrounding petitioner's arrest and conviction for breaking and entering an automobile. In his proposed findings of fact, petitioner describes facts from a document he describes as "listed as Item 4, Case Number 85-67 in a hearing held in 1985 on file with the Division of Administrative Hearings." However, no evidence regarding the breaking and entering conviction was submitted at this hearing, and a document submitted during the course of some prior hearing cannot be used to establish factual findings in this proceeding.

   
   

5. Petitioner is the owner of Sun Coast Securities, Inc. His company provides security for major events needing crowd control, and a primary employer is the Florida State Fairgrounds. Petitioner has a Class "D" license and an agency license.

6. On the night of October 31, 1986, petitioner was hired by the owner of Yesterday's Lounge to provide security at a Halloween party. Samuel Valez was one of the customers at the Halloween party. The Halloween party was supposed to start at about 9:00 p.m. However, Mr. Valez and a few of his friends got to the bar about 7:00 or 7:30 p.m. Mr. Valez had several drinks during the course of the evening. At some time after 10:00 p.m., Mr. Valez got into a dispute with a bartender. Petitioner thought he saw Mr. Valez take a swing at the bartender. However, Ms. Spalding, who was sitting at the bar, did not see any incident with the bartender. Ms. Ryan observed the dispute with the bartender and stated that Mr. Valez did not hit anyone but was having a disagreement over the service of the drinks. In any event, Mr. Valez was asked to leave the premises by the owner. Mr. Valez was intoxicated.

   
   

7. Petitioner and the owner escorted Mr. Valez outside. After they got outside, petitioner and Mr. Valez exchanged a few words. Petitioner pushed Mr. Valez and then hit him in the face. Ms. Imschweiler, Ms. Spalding, and Ms. Ryan all observed the incident. None of the three saw Valez attempt to hit anyone, either petitioner or the owner of the lounge. Ms. Ryan testified that petitioner hit Valez more than once. After Mr. Valez had fallen, petitioner grabbed Valez by his ankle and dragged him across the parking lot ground. Mr. Valez kept stating he didn't want to fight, but every time he tried to get up petitioner pushed him to the ground again. Mr. Valez was bleeding. Ms. Ryan described Valez as having been beaten to a pulp.

   
   

8. Petitioner contended that he was merely protecting the owner, that Mr. Valez had taken a swing at the owner, and that petitioner grabbed Valez' arm to prevent the owner from being hit. He also testified that Mr. Valez tried to hit him, and he hit Mr. Valez in self-defense. However, none of the witnesses saw Mr. Valez swing at anyone. The witnesses characterized petitioner's attack on Mr. Valez as unprovoked. Petitioner is 5'10" and weighs 300 pounds. Petitioner does power lifting and holds state and national records. He can squat lift 830 pounds. Mr. Valez is approximately 5'7" tall and weighs about 140 pounds.

   
   

9. As a result of the altercation with Mr. Valez, petitioner was arrested and charged with aggravated battery. Petitioner ultimately pleaded nolo contendere to simple battery. The evidence presented at the hearing established that petitioner's attack on Mr. Valez was not in self-defense or in the defense of his client.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida statutes.

    
    

11. Chapter 493, Part I, contains the provisions regulating investigative and patrol services. Section 493.304 sets forth the various classes of licenses. Any person who bears a firearm must have a Class "G" license. A Class "D" licensee, a person who performs the services of a watchman, guard or patrolman, is permitted to bear a firearm, but such licensee must also have a Class "G" license. Petitioner, who is a Class "D" licensee, applied for the Class "G" license.

    
    

12. Section 493.319(2), Florida Statutes (1987), provides that the Department may deny an application for licensure if it finds any violation of Section 493.319(1), Florida Statutes. Section 493.319(1), provides as follows:

    1. The following constitute grounds for which disciplinary action specified in Subsection (2) may be taken:

       * * *

       (c) Conviction of a crime which directly relates to the business for which the license is held or sought, regardless of whether adjudication was withheld or whether imposition of sentence was suspended. A conviction based on a plea of nolo contendere shall create a presumption of guilt to the underlying criminal charges, and the Department shall allow the person being disciplined to present any evidence relevant to the underlying charges and the circumstances surrounding the plea;

       * * *

       (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.

       
       

       Section 493.319(3) provides as follows:

       
       

       (3) Notwithstanding the provisions of paragraph (1)(c) and subsection (2), the Department shall deny an application or revoke a license when the person or licensee has been convicted of a felony, regardless of whether adjudication was withheld or whether imposition of sentence was suspended, unless and until civil rights have been restored and a period of ten years has expired. (e.s.)

       
       

13. Petitioner has violated Section 49.319(1)(c) in that he was convicted of a crime, 1/ battery, based on the incident which occurred at Yesterday's Lounge while petitioner was engaged in his employment as a security guard. Petitioner has violated Section 493.319(j) due to the commission of the battery and use of force or violence on Mr. Valez. The evidence established that the use of force and violence on Mr. Valez was not in self- defense or in the defense of petitioner's client.

    
    

14. In 1969 petitioner was convicted of breaking and entering an automobile, a felony. Section 810.051, Florida Statutes (1969). Section 493.319(3), Florida statutes clearly provides that an application for licensure submitted by a person who has been convicted of a felony must be denied unless ten years have expired since the conviction and the person's civil rights have been restored. Although ten years have expired since petitioner's felony conviction, petitioner presented no evidence establishing that his civil rights have been restored. Article IV, Section 8(1) of the Constitution of the State of Florida provides that the governor, with the approval of three cabinet members, may restore civil rights.

    
    

15. There is no question that petitioner could have had his civil rights restored after April of 1974 when petitioner's probationary period ended. Sections 940.05 and 940.06, Florida Statutes (1973) , read as follows:

1. Restoration of civil rights.--Any person who has been convicted of a felony may be entitled to the restoration of all the rights of citizenship enjoyed by him prior to his conviction if he complied with one of the following criteria:

   * * *

   (3) Has been granted his final release by the parole and probation commission.

   
   

2. Submission of names of qualified persons.--The parole and probation commission shall submit to the governor and cabinet the names of persons who qualify for the restoration of civil rights in accordance with s. 940.05

Petitioner testified that he attempted to have his civil rights restored between 1969 and 1974. However, during that time he was not eligible to have his civil rights restored. He apparently did not apply for restoration of his civil rights after he became eligible.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying petitioner's application

for a Class "G" license.

DONE AND ORDERED this 1st day of August, 1988, in Tallahassee, Leon County, Florida.

DIANE A. GRUBBS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 1988.

ENDNOTE

1/ The term "crime" means a felony or misdemeanor, Section 775.08(4), Florida Statutes.

APPENDIX

Rulings on Petitioner's Proposed Findings of Fact (petitioner's proposed findings of fact are included in the document entitled Respondents Proposed Recommended Order):

1. Accepted.

   
   

2. Rejected in that petitioner's application was not admitted into evidence.

   
   

3. Accepted.

4-5. Rejected as unnecessary in findings of fact.

1. Accepted generally to the degree relevant.

   
   

2. Accepted.

Additional Proposed Findings:

1-17. Rejected for lack of competent substantial evidence presented at this hearing.

18-19. Accepted.

20. Rejected for lack of evidence presented at this hearing.

Rulings on Respondent's Proposed Findings of Fact (included in "Petitioners Proposed Recommended Order")

1. Accepted.

   
   

2. Rejected in that the application was not admitted into evidence.

   
   

3. Accepted generally.

   
   

4. Unnecessary to findings of fact, but included in Background.

   
   

5. Unnecessary in finding of fact.

6-11. Accepted generally, however, Diane "Olds" is Diane "Imschweiler."

COPIES FURNISHED:

Mr. Frederick D. Crowley 6801 Robinswood Lane

Tampa, Florida 33634

R. Timothy Jansen, Esquire Division of Licensing

The Capitol, Mail Station 4 Tallahassee, Florida 32399-0250

Honorable Jim Smith Secretary of State The Capitol

Tallahassee, Florida 32399-0250

Kenneth Rouse, Esquire General Counsel Department of State 1801 The Capitol

Tallahassee, Florida 32399-0250

Docket for Case No: 88-001403

Orders for Case No: 88-001403