STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT W. BARNARD, )

)

Petitioner, )

)

vs. ) CASE NO. 90-0738F

)

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Respondent. )

)

FINAL ORDER

Pursuant to stipulation of the parties, and as reflected in an Order entered on April 2, 1990, disposition of the issues in this case is being made on the pleadings and supporting documents and the record at the Division of Administrative Hearings, there being no material facts in dispute.

APPEARANCES

For Petitioner: Richard I. Wallsh, Esquire

2699 Lee Road, Suite 505 Winter Park, Florida 32789

For Respondent: Henri C. Cawthon, Esquire

Department of State Division of Licensing The Capitol

Tallahassee, Florida 32399-0250 STATEMENT OF THE ISSUE

Petitioner, Robert W. Barnard, is requesting attorney's fees and costs, pursuant to Section 57.111, F.S., as a "prevailing small business party", by virtue of Respondent's voluntary dismissal of its administrative complaint seeking to revoke his Class "D" Watchman, Guard or Patrolman License, Number D88605626.

The sole issues for determination are whether the actions of the agency were substantially justified or special circumstances exist which would make the award unjust.

PRELIMINARY STATEMENT

Robert W. Barnard's Petition for Costs and Fees was timely filed on February 5, 1990. The Department of State, Division of Licensing answered the petition and requested an evidentiary hearing on February 22, 1990.

The hearing was scheduled for March 29, 1990, but was cancelled when the parties agreed to resolve the factual issues by stipulation. The Petition for fees and costs was amended, without objection, to include fees incurred in this proceeding in pursuit of attorney's fees.

On March 28, 1990, the parties filed their stipulation of facts, resolving all issues but those legal issues described in the Statement of the Issues, above. The parties also stipulated that Petitioner would be entitled to an additional award for fees and costs, if he prevailed in this proceeding. The additional amount was to be determined by affidavits to be submitted after preliminary notification of award.

Petitioner and Respondent submitted memoranda supporting their respective positions on April 27, 1990 and May 1, 1990. Supplemental authority was sent by Respondent on May 3, 1990.

The parties were given preliminary notification of award in a telephone conference on June 18, 1990. On June 21, 1990, counsel for petitioner filed his supplemental affidavits of attorney's fees and costs; and on July 2, 1990, counsel for Respondent filed a stipulation to the reasonableness of the fees and costs.

FINDINGS OF FACT

1. Robert W. Barnard was initially issued a Class "D" security guard license on May 12, 1986, by the Florida Department of State, Division of Licensing. At the time of licensure the agency was aware that Barnard had been found guilty of the felony of aggravated assault by a jury verdict, but that adjudication of guilt was withheld and he was placed on probation for five years, on September 3, 1974. (Exhibit #1, Respondent's Memorandum in Response to Petition.

   
   

2. Effective October 1, 1986, the legislature added the following to Chapter 493, F.S., relating to licensing for investigative and patrol services:

   
   

   493.319 Grounds for disciplinary action.--

   * * *

   (1) The following constitutes grounds for which disciplinary action specified in subsection (2) may be taken:

   * * *

   (p) The department shall deny an applicant 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 10 years has expired:

   * * *

   Chapter 86-193, Laws of Fla.

3. This provision was renumbered and was amended in 1987, 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 10 years has expired. 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 his plea.

   
   

   Chapter 87-274, Laws of Fla.

   
   

4. The agency issued a renewal certificate to Robert Barnard on March 17, 1988. (Exhibit #1, Respondent's Memorandum in Response to Petition)

   
   

5. On September 19, 1989, the Department of State, Division of Licensing issued its Administrative Complaint, Case #89-01377, alleging that Robert W. Barnard's guard license should be revoked, based on his violation of Section 493.319(3), F.S.. Count I of the complaint alleges, "On September 3, 1974, Respondent was found guilty of one felony count of aggravated assault in Orange County, Florida." No other convictions or violations were alleged.

   
   

6. Through counsel, Robert Barnard requested a formal hearing in response to the complaint.

   
   

7. On November 1, 1989, Department of State Assistant General Counsel, Henri C. Cawthon, wrote to Richard Wallsh, Barnard's attorney, stating that it did not appear that material facts were in dispute and that an informal hearing would be more appropriate. The letter provided, in pertinent part:

   
   

   ... Because the Division will stipulate to the factual allegations in your petition, the only issue is a legal one: does Section 493.319(3), Florida Statutes (1987), require revocation when a licensee had adjudication withheld on a felony over ten years ago. It can also be stipulated that Mr. Barnard was licensed in spite of his criminal record, and that the Division is applying the statute retroactively.

   * * * (Attachment to Petition for Fees and Costs)

8. On November 3, 1989, Robert Barnard petitioned for an informal hearing based on Mr. Cawthon's letter.

   
   

9. On November 30, 1989, Robert Barnard filed his "suggestion of sealing of record", stating that on November 8, 1989, the ninth Judicial Circuit Court, in and for Orange County, entered its order sealing the pertinent criminal records pursuant to Section 943.058, F.S. and Fla. R. Criminal Procedure 3.692. (Attachment to Petition for Fees and Costs) Counsel for the agency claims that he had informed Petitioner's counsel that sealing the criminal record would result in dismissal of the administrative complaint, although the agency was under no obligation to inform Petitioner of this option. (Memorandum of Law in Response to Petition)

   
   

10. On December 11, 1989, in a letter from Assistant General Counsel, Henri Cawthon, to Richard Wallsh, the agency informed Robert Barnard that, based on the order sealing records, the administrative complaint was being withdrawn. The informal hearing scheduled for December 19, 1989, was cancelled.

    
    

11. Robert W. Barnard is a "prevailing small business party", as defined in Section 57.111(3)(c) and (d), F.S. (parties' Stipulation of Facts).

    
    

12. The agency was not a "nominal party" as provided in Section 57.111(4)(d), F.S. (parties' Stipulation of Facts)

    
    

13. In successfully defending the administrative complaint, Robert Barnard incurred reasonable attorneys fees and costs totalling $1,527.07. (parties' Stipulation of Facts)

    
    

14. In successfully pursuing fees and costs, Robert Barnard incurred additional reasonable fees and costs in the amount of $1,281.53, for a total of

    $2,808.60.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Section 57.111(4) (b), F.S. and Section 120.57, F.S.

    
    

16. Section 57.111(4) (a), F.S. provides:

    
    

    Unless otherwise provided by law, an. award of attorney's fees and costs shall be made to a prevailing small business party in any adjudicatory proceeding or administrative proceeding pursuant to Chapter 120 initiated by a state agency, unless the actions of the agency were substantially justified or special circumstances exist which would make the award unjust.

    
    

17. A proceeding is "substantially justified" if it had a reasonable basis in law and fact at the time it was initiated by a state agency. Section 57.111(3)(e), F..S.

18. The burden of proof is on the agency to establish that it was substantially justified in prosecuting the administrative complaint. Dept. of Professional Regulation v. Toledo Realty, 549 So2d 715 (Fla 1st DCA 1989)

    
    

19. The agency claims that its retroactive application of Section 493.319(3), F.S. was reasonable, and that the running of the 10 year period commences upon release from supervision, not upon conviction. Moreover, the agency claims that civil rights must be restored even though adjudication has been withheld.

    
    

20. Petitioner claims that the administrative complaint filed in 1989 was unreasonable because his criminal court proceedings were already more than ten year's old, "and that his civil rights could not be "restored" since his civil rights were not removed when adjudication was withheld. Petitioner also claims that he was re-licensed after the effective date of Section 493.319(3), F.S.

    and that if the agency were to apply that section at all, it should have applied it when his certificate was reissued in 1988.

    
    

21. It is not necessary to determine which interpretation of Section 493.319(3), F.S. is "right"; rather the agency's interpretation needs only to be "reasonable".

    
    

22. Retroactive application of licensing-statutes is a subject which has been thoroughly addressed by legal scholars and appellate courts. See, for example, Benton, Retroactivity in Licensing Cases, 59 Fla. Bar J. 81 (June 1985); Hector v. Department of Professional Regulation, Florida Real Estate Commission, 504 So2d 469 (Fla. 1st DCA 1987) (rejecting retroactive application); and Crane v. Department of State, Division of Licensing, 547 So2d

    266 (Fla 3rd DCA 1989) (approving retroactive application).

    
    

23. The plain, well-established general rule is that statutes operate prospectively, absent an expression of legislative intent to the contrary. Hector, supra; Norman Curtis Lewis v. Criminal Justice Standards Commission,

    462 So2d 528 (Fla 1st DCA 1985); St. John's Village I, Ltd. v., Department of State, Division of Corporations, 497 So2d 990 (Fla 5th DCA 1986).

    
    

24. In its memorandum in response to the petition, the agency cites specific authority for retroactive application of Section 790.06(2)(k), F.S., relating to revocation of concealed weapon licenses for persons convicted of felonies in the past three years (Chapter 88-183, Section 1, Laws of Florida). This is the statute construed in Crane, supra. The unequivocal language of the Legislature in its amendment to Chapter 790, F.S., directed the Department of State to review its files of existing licensees to determine whether any are subject to the new provisions, and to revoke the licenses of those who are no longer eligible. No such language nor any similar expression of intent is found in the amendments to Section 493.319, F.S.

    
    

25. The Appropriations Act references relied on by the agency also clearly relate to legislation governing concealed weapons, rather than Section 493.319,

    F.S. See Chapter 87-247, Laws of Florida, Section 58; and Chapter 88-557, Laws of Florida, Section 30.

    
    

26. At the time that Robert Barnard was licensed in 1986, he had to demonstrate good moral character as required in Section 493.306, F.S. A criminal background check was conducted and his felony history was exposed. He was determined eligible. The only basis for the agency's later attempted revocation was the provision enacted after his licensure, barring convicted

    felons, "...unless and until civil rights have been restored and a period of 10 years has expired...." Section 493.319(3), F.S. (1987).

    
    

27. Robert Barnard's circumstances are substantially different from those of the police officer in Cirnigliaro v. Florida Police Standards and Training Commission, 409 So2d 80 (Fla 1st DCA 1982). Mr. Cirnigliaro's certificate was revoked for a misdemeanor conviction occurring prior to his certification. However, the statute establishing the qualifications had been in effect at the time that he was certified. He had not met those qualifications and was certified in error. The Commission annulled and revoked his certificate, and the appellate court approved.

    
    

28. The agency does not argue, nor could it, that Barnard's license was improperly renewed in 1988. Renewal under Section 493.313, F.S. is granted upon timely application, payment of the fee, and proof of insurance coverage, where applicable. No background investigation is conducted.

    
    

29. In addition to retroactive application, the agency argues that Section 493.319(1)(p), F.S. (1936) and Section 493.319(3), F.S. (1987) require the passage of a period of ten years from release of supervision, and the restoration of civil rights.

    
    

30. The agency in its memorandum concedes that the basis is unclear for its interpretation regarding the running of the 10- year period. Certainly, the "release of supervision" language is not found in the statute. Assuming that the interpretation is correct, Barnard's probation would have been completed in September 1979, still ten years prior to the filing of the administrative complaint.

    
    

31. The agency's reliance on the need to have civil rights restored is only somewhat less peculiar, given its voluntary dismissal of the complaint without that patently redundant procedure. However, Section 493.319, F.S. considers a felony "conviction" an impediment even when adjudication is withheld, and there is some statutory justification for requiring restoration of civil rights.

    
    

32. The agency's good faith is not at issue, or this proceeding would be more appropriately brought under Section 120.57(1)(b)5., F.S. To its credit, the agency promptly fashioned what it considered to be a fair resolution of the complaint without the need for a protracted hearing. This clearly reduced its liability for fees, but does not exculpate it.

    
    

33. Nothing in the record of this proceeding, including the well- researched memorandum of agency counsel, rationally explains the agency's position that the 1986 and 1987 amendments to Section 493.319, F.S. compelled revocation of Robert Barnard's license. At the time that it revoked Barnard's license, the agency did not have the advantage of a case decided during the pendancy of this proceeding, and forthrightly disclosed by its counsel. Middlebrooks v. Department of State, Division of Licensing, 15 FLW D1564 (Fla 1st DCA, opinion filed June 7, 1990), held that Section 493.319(3), F.S. could not be applied retroactively to revoke a class "D" license or a class "G" permit based on a felony conviction which occurred prior to the effective date of the amendment. This holding, precisely on point here, relies on the simple principle of statutory construction addressed above. Its reasoning is neither complicated nor novel.

34. The agency failed to prove that it had a "reasonable basis in law and fact" to initiate its 1989 complaint against Robert Barnard's license. No evidence, nor any argument of "special circumstances" was presented.

RECOMMENDATION

Based on the foregoing, it is hereby, ORDERED:

That the Department of State, Division of Licensing pay Robert Barnard's attorney fees and costs in the amount of $2,808.60.

DONE AND ORDERED this 3rd day of July, 1990, in Tallahassee, Leon County, Florida.

MARY CLARK

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 3rd day of July, 1990.

COPIES FURNISHED:

Richard I. Wallsh, Esquire 2699 Lee Road, Suite 505 Winter Park, FL 32789

Henri C. Cawthon, Esquire Department of State Division of Licensing

The Capitol, Mail Station No. 4 Tallahassee, FL 32399-0250

Honorable Jim Smith Secretary of State The Capitol

Tallahassee, FL 32399-0250

Ken Rouse General Counsel

Department of State The Capitol, LL-10

Tallahassee, FL 32399-0250

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

================================================================= DISTRICT COURT OPINION

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

IN THE DISTRICT COURT DE APPEAL FIRST DISTRICT STATE OF FLORIDA

DEPARTMENT DE STATE, NOT FINAL UNTIL TIME EXPIRES TO DIVISION OF LICENSING, FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED.

Appellant,

ROBERT W. BARNARD,

Appellee.

/

CASE NO. 90-2266 DOAH CASE NO. 90-738F

Opinion filed February 18, 1991.

An Appeal from an Order of the Division of Administrative Hearings.

Henri C. Cawthon, Assistant Certeral Counsel, Department of State, Division of Licensing, Tallahassee, for Appellant.

Richard I. Wallsh of Troum & Wallsh, Winter Park, for Appellee.

PER CURIAM.

AFFIRMED.

JOANOS, ZEHMER and ALLEN, JJ., CONCUR.

Docket for Case No: 90-000738F

Orders for Case No: 90-000738F