STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANGEL CORDERO, )

)

Petitioner, )

)

vs. ) CASE NO. 89-5303S

) DEPARTMENT OF STATE, DIVISION ) OF LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on February 6, 1990, in Miami, Florida.

APPEARANCES

For Petitioner: Angel Cordero, pro se

11301 Caribbean Boulevard

#208

Miami, Florida 33157

For Respondent: Henri C. Cawthon, Esquire

Assistant General Counsel Department of State

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

STATEMENT OF THE ISSUES

Whether petitioner's application for a concealed weapon or firearm license should be approved.

PRELIMINARY STATEMENT

By letter dated August 21, 1989, respondent denied petitioner's application for a concealed weapon or firearm license. The basis for respondent's denial was its contention that petitioner had been convicted of a felony on April 6, 1971. Petitioner filed a timely request for formal hearing to contest the respondent's decision, and the matter was referred to the Division of Administrative Hearings to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At final hearing, petitioner testified on his own behalf, and his exhibits 1-4 were received into evidence. Respondent called no witnesses, but its exhibit

1 was received into evidence.

The parties declined the opportunity to file a transcript of the hearing, and were granted leave until February 16, 1990, to file proposed findings of fact. Respondent's proposed findings are addressed in the appendix to this recommended order. Petitioner did not file proposed findings.

FINDINGS OF FACT

1. On May 22, 1989, petitioner, Angel Cordero (Cordero) filed an application with respondent, Florida Department of State, Division of Licensing (Department), for a concealed weapon or firearm license. Accompanying such application was Cordero's fingerprint card and a certificate of completion of the required safety course for a concealed weapon permit.

   
   

2. By letter dated July 19, 1989, the Department informed Cordero that it had received criminal justice information which indicated that he had been convicted of a felony, and that before processing his application further he would have to submit proof he had not been convicted of a felony or that his civil rights and firearm rights had been restored. The letter further advised Cordero that failure to submit the necessary documentation within thirty days would result in the denial of his application.

   
   

3. Following receipt of the Department's letter, Cordero wrote to the Federal Bureau of Investigation (FBI), the agency from which the Department had received the adverse criminal justice information. In his letter, Cordero denied ever having been convicted of a felony, and requested that the FBI provide him with the proof or documentation necessary to reflect such fact.

   
   

4. In response to Cordero's letter, the FBI sent a letter to the State of New York on August 16, 1989, which stated:

   
   

   Enclosed herewith is a copy of a communication questioning arrest data previously submitted by your agency, together with a copy of the subject's identification record, as it currently appears in our files. You are requested to verify or correct the challenged entry/entries submitted by your agency....

   
   

   To date there has been no resolution of this request. 1/

   
   

5. On August 21, 1989, the Department, having failed to receive the information from Cordero requested in its letter of July 19, 1989, wrote Cordero and informed him that his application for a concealed weapon license had been denied. Included with the letter was an election of rights form which advised Cordero of his right to a hearing pursuant to Section 120.57, Florida Statutes.

   
   

6. On September 20, 1989, Cordero filed a timely request for formal hearing with the Department, and denied that he had ever been convicted of a felony. The matter was referred to the Division of Administrative Hearings for the assignment of a hearing officer to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

   
   

7. At hearing, Cordero, whose testimony is credited, adamantly denied that he had ever been convicted of a felony. Cordero did, however, candidly divulge that in 1968 he was convicted, as a minor, of misdemeanor possession of drugs, sentenced to one year of confinement, and was released from custody after having

   served 8 months of his sentence. Following his release, Cordero moved to Puerto Rico where he remained until 1973 when he returned to the United States. On December 20, 1971, while living in Puerto Rico, Cordero was married.

   
   

8. To support its position that Cordero had been convicted of a felony, the Department introduced the criminal justice information it had received from the FBI. That document provided:

   
   

   Use of the following FBI record ... is REGULATED BY LAW. It is furnished FOR OFFICIAL USE ONLY and should ONLY BE USED FOR

   CONTRIBUTOR OF	NAME AND	ARRESTED OR	CHARGE	DISPOSITION
   FINGERPRINTS	NUMBER	RECEIVED

   PURPOSE REQUESTED. When further explanation of arrest charge or disposition is needed, communicate directly with the agency that contributed the fingerprints.

   NY City Reception Angel Cordero 4-6-71 CPDD 1 yr & Classification 771-2124

   Ctr East Elmhurst NY

   
   

   No proof was offered at hearing on behalf of the contributing agency, New York City, concerning or explaining any of the information it had apparently submitted to the FBI. 2/

   
   

9. Were the document submitted to the Department competent or persuasive proof that Cordero had been convicted in New York on April 6, 1971, which it is not, it is insufficient to demonstrate the offense charged or that such offense was punishable by imprisonment for a term exceeding one year. 3/

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 120.57(1), Florida Statutes.

    
    

11. As the applicant, Cordero has the ultimate burden to demonstrate, by a preponderance of the evidence, entitlement to licensure. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981). Here, Cordero has sustained his burden.

    
    

12. At hearing, the department agreed that, but for the issue of whether Cordero had suffered a felony conviction, he met the eligibility reguirements for licensure under Section 790.06, Florida Statutes. Therefore, the sole issue for resolution in these proceedings was whether Cordero was ineligible to possess a firearm under Section 790.23 by virtue of having been convicted of a felony. Section 790.06(2)(d), Florida Statutes.

    
    

13. Pertinent to this case, Section 790.22, Florida Statutes, provides:

    
    

    1. It is unlawful for any person who

       had been convicted of a felony in the courts of this state or of a crime against the United States which is designated as a felony

       or *convicted of an offense in any other state,* territory, or country *punishable by imprisonment for a term exceeding 1 year* to own or to have in his care, custody, possession, or control any firearm or electric weapon or device or to carry a

       concealed weapon .... (Emphases added between *)

       
       

14. Here, there is no competent or persuasive proof that Cordero has ever been convicted of a felony, an offense punishable by imprisonment for a term exceeding one year. Under such circumstances, Cordero's testimony that he has never been convicted of such an offense is credited.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Cordero `s application for a concealed weapon or firearm

license be approved.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of February 1990.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of February 1990.

ENDNOTES

1/ A copy of the FBI's letter of August 16, 1989, was sent to Cordero, with the following postscript for his attention:

All arrest data appearing on FBI identification records are supported by fingerprints which are a positive means of identification. Any request for the revision or removal of non-Federal arrest data in our fingerprint file, including the recording of dispositional information, must be received from either the law enforcement agency which originally submitted the information or from some other criminal justice agency of competent jurisdiction. In an effort to clarify this matter, we are corresponding with the above-named agency, since all requests for the expungement of New York

arrests must first be processed through its files. You will be advised of the results of our contact....

In its proposed recommended order, the Department apparently finds significant the FBI's statement that "all arrest data appearing on FBI records are supported by fingerprints which are a positive means of identification." Such statement is not, however, persuasive since it is apparent that the FBI is relying on data supplied by New York City and has no knowledge as to the reliability of that data.

2/ The document submitted to the Department by the FBI merely identified the charge as CPDD. As introduced at hearing, the document contained the following hand written notation after CPDD: "(criminal possession dangerous drug)." At hearing, counsel for the Department represented that such notation had been added by an employee of the Department after apparently speaking with some other agency. Under such circumstances, there is no competent proof of what CPDD actually means.

3/ The document submitted to the Department by the FBI is hearsay, and reiterates information it received from New York, which is further hearsay. It is, therefore, not competent proof to demonstrate anything adverse concerning Cordero.

APPENDIX

Respondent's proposed findings of fact are addressed as follows:

1. Adopted in substance in paragraph 1.

2. Adopted in substance in paragraph 2.

3. Adopted in substance in paragraph 3.

4&5. Adopted in substance in paragraph 4 and footnote 1.

1. Adopted in substance in paragraph 5.

2. Adopted in substance in paragraph 6.

COPIES FURNISHED:

Angel Cordero

11301 Caribbean Boulevard

#208

Miami, Florida 33157

Henri C. Cawthon Assistant General Counsel Department of State Division of Licensing

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

The Honorable Jim Smith Secretary of State

The Capitol

Tallahassee, Florida 32399-0250

Ken Rouse General Counsel

Department of State Division of Licensing The Capitol, LL-10

Tallahassee, Florida 32399-0250

Docket for Case No: 89-005303

Orders for Case No: 89-005303