STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ZEDEKIAH CLAYTON, )

)

Petitioner, )

)

vs. ) CASE NO. 90-1409S

) DEPARTMENT OF STATE, DIVISION ) OF LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, J. Stephen Menton, held a formal hearing in the above-styled case on April 18, 1990, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: James K. Green, Esquire

250 Australian Avenue Suite 1300

West Palm Beach, Florida 33401

For Respondent: Henri C. Cawthon, Esquire

Department of State Division of Licensing The Capitol (MS #4)

Tallahassee, Florida 32399-00250 STATEMENT OF THE ISSUES

The issue in this case is whether Petitioner's application for a Class "D" security guard license and Class "G" statewide gun permit should be approved.

PRELIMINARY STATEMENT

By letter dated January 31, 1990, the Respondent Department of State, Division of Licensing advised the Petitioner that his application for a Class "D" security guard license and Class "G" statewide gun permit was denied. In denying the application, the Respondent cited the following grounds: fraud or willful misrepresentation in applying for the license in contravention of Section 493.319(1)(a), Florida Statutes as a result of failing to list an alias name and the failure to list convictions of aggravated battery, kidnapping and false imprisonment on the application form; conviction of a crime which directly relates to the business for which the license is being sought in contravention of Section 493.319(1)(c); 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 in contravention of Section 493.319(1)(j); and conviction of a felony within the last ten years in contravention of Section 493.319(3).

The Petitioner timely requested a formal hearing on the matter and the case was referred to the Division of Administrative Hearings which noticed and conducted the hearing. At the commencement of the hearing, Respondent withdrew any claim that Petitioner violated Section 493.319(1)(a) by fraudulently or willfully failing to list an alias name.

At the hearing, Petitioner testified on his own behalf. Petitioner did not offer any exhibits into evidence. Respondent cross-examined the Petitioner, but did not present any other witnesses. Respondent offered three exhibits into evidence, all of which were accepted into evidence.

At the conclusion of the hearing, Petitioner was granted fifteen (15) days to file additional exhibits explaining the disposition of the criminal actions against him. No such exhibits have been submitted. No transcript of the proceeding has been provided. Both parties timely submitted proposed recommended orders including proposed findings of fact and conclusions of law. A ruling on each of the parties proposed findings of fact is included in the Appendix attached hereto.

FINDINGS OF FACT

1. On April 19, 1985, an Order Withholding Adjudication Of Guilt and Placing Defendant on Probation was entered in the Circuit Court for Palm Beach County in Case Number 84-5138CFA02, State of Florida vs. Zedekiah Clayton (hereinafter referred to as the "Felony Order".) The Petitioner was the defendant in that criminal case. According to the Felony Order, Petitioner entered a plea of guilty to aggravated battery without a firearm, a third degree felony. Adjudication of guilt was withheld and Petitioner was placed on three years probation and ordered to pay restitution and court costs.

   
   

2. Petitioner contends that he did not plead guilty as reflected in the Felony Order, but, instead, entered a plea of nolo contendere. His contention is supported by the Commitment Form which accompanied the Felony Order. This Commitment Form includes the handwritten notations of the deputy clerk who was apparently present at the time the plea was entered. According to this Form, the Petitioner entered a plea of nolo contendere. While the Commitment Form and Felony Order are in conflict, Petitioner's testimony is credited and it is found that he entered a plea of nolo contendere rather than guilty.

   
   

3. On May 22, 1986, Petitioner entered a plea of guilty to a misdemeanor battery count in Palm Beach County Circuit Court Case Number 86-4501CFA02, State of Florida vs. Zedekiah Clayton (the "1986 case"). The initial charge in this case was false imprisonment as reflected on the arrest record dated May 4, 1986. However, the charge was reduced to a misdemeanor battery count. Petitioner was adjudicated guilty and ordered to pay a fine of $125.00. The court specifically directed that Petitioner's probation from the earlier Felony Order should not be violated as a result of this charge.

   
   

4. On December 19, 1989, Petitioner filed an application with Respondent for a Class "D" security guard license and a Class "G" statewide gun permit. Section 13 of the application requires the applicant to list any and all arrests and informs the applicant that falsification of the answer "... may be grounds for denial of your license." In response to this question, Petitioner listed the arrest which led to the entry of the Felony Order. However, Petitioner did not list his arrest in the 1986 Case under this section of the application.

5. Petitioner contends that he did not know that he was ever formally placed under arrest in the 1986 Case because he voluntarily accompanied the police officer to the station. He also stated that his attorney advised him that he did not have to disclose the incident because it was a misdemeanor. However, the application form refers to all arrests, not just felony arrests. Petitioner clearly understood that he had to appear in court and he also paid the $125.00 fine assessed against him in that case. There is no acceptable excuse for Petitioner's failure to disclose the 1986 case on his application form.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to and subject of this proceeding. Section 120.57, Florida Statutes (1989).

   
   

7. In this proceeding, the Petitioner has the burden to prove that he is entitled to the licenses for which he has applied. Florida Department of Transportation vs. J.W.C. Company, Inc., 396 So.2d 728 (Fla. 1st DCA 1981).

   
   

8. The requirements for the issuance of the licenses involved in this case are set forth in Sections 493.306 and 493.319, Florida Statutes. The Petitioner did not present sufficient evidence to establish that he meets the requirements set forth in those statutes.

   
   

9. Under Section 493.319(3), the Respondent

   
   

   . . . 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. 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 surround- ing his plea".

   
   

10. The prohibition in 493.319(3) does not give the Respondent any discretion. Thus, if it is applicable in this case, Petitioner's application must be denied. Petitioner contends that this statute is not applicable to him because it was not in existence at the time the Felony Order was entered.

    
    

11. This statutory provision was first enacted in 1986 by Chapter 86-193, Laws of Florida, and became effective October 1, 1986. It was renumbered in 1987 pursuant to Chapter 87-35 and Chapter 87-274, Laws of Florida.

12. Petitioner cites Waldrup vs. Dugger, 15 Fla. Law Weekly S. 87 (Fla., Feb. 22, 1990) and argues that to deny him a license based upon Section 493.319(3) would constitute a bill of attainder or ex post facto law because the statutory provision in effect at the time of his conviction did not provide for a basis of denial of licensure where adjudication was withheld or where a plea of nolo contendere was entered.

    
    

13. It should be noted that the Division of Administrative Hearings has limited jurisdiction to resolve constitutional issues. See, Department of Environmental Regulation vs. Leon County, 344 So.2d 297 (Fla. 1st DCA 1977).

    
    

14. In any event, it does not appear that the Petitioner has raised any valid constitutional issues. Petitioner had no vested right to obtain the licenses at the time the statute was enacted. At most, he had an expectation based on anticipation of the continuance of existing law. That mere expectation does not entitle him to constitutional protection from retrospective impairment by the Legislature. The right must have become a title, legal or equitable, to present or future enforcement of a demand in order to be entitled to such protection. In re Will of Martel, 457 So.2d 1064 (Fla. 1st DCA 1984). In this case, it does not appear that Petitioner had a sufficient vested right in the license to be entitled to constitutional protection.

    
    

15. The evidence in this case established that Petitioner was convicted of a felony on April 19, 1985. Because ten years has not passed since his conviction, Section 493.319(3) precludes the Respondent from issuing him the licenses he seeks.

    
    

16. While Petitioner is entitled to present evidence relevant to the underlying charges and the circumstances surrounding his plea of nolo contendere, Petitioner has failed to present sufficient evidence to overcome the presumption of guilt to the underlying criminal charge.

    
    

17. Even if the provisions of Section 493.319(3) are deemed not apppplicable to Petitioner, Petitioner still has not established his entitlement to the licenses in question. Pursuant to Section 493.319(2)(a), the Respondent may deny an application for licensure whenever it determines that the applicant has violated any of the provisions of subsection 1 of Section 493.319. The pertinent portions of subsection 1 of Section 493.319 are subsubsections (a),

    1. and (j) which provide for a basis of action upon

       
       

       1. Fraud or willful misrepresentation in applying for or obtaining a license.

    * * *

    (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 his 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. (emphasis supplied between *)

    
    

18. Under these subsections, the Respondent has discretion as to whether or not to issue the license to an applicant. Section 493.319(2)(a), Florida Statutes (1989).

    
    

19. The evidence in this case established that Petitioner failed to mention his 1986 arrest on the application form. Therefore, Petitioner has violated Section 493.319(1)(a).

    
    

20. The evidence did not establish that Petitioner was convicted of a crime which directly relates to the business for which the license is held or sought. Kinney vs. Department of State, 501 So.2d 129 (Fla. 5th DCA 1987). Therefore, Petitioner has not violated 493.319(c).

    
    

21. The evidence did establish that Petitioner committed a battery and used force or violence against another person contrary to Section 493.319(1)(j). While Petitioner contends that his actions were undertaken in self defense, insufficient evidence was presented to overcome the presumption of guilt created by his plea of nolo contendere to the felony charge of aggravated battery as reflected in the Felony Order.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent enter a Final Order denying Petitioner's application for a Class "D" security guard license and a Class "G" gun permit.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 15th day of June, 1990.

J. STEPHEN MENTON 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 15th day of June, 1990.

APPENDIX

Case Number 90-1409S

Both parties have submitted Proposed Recommended Orders. To the extent tht the proposed findings of fact can be isolated, they are addressed below.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted

or Reason for Rejection.

1-5. Incorporated in the preliminary statement.

1. Subordinate to Findings of Fact 4 and 5.

   
   

2. Rejected as constituting legal argument. The subject matter of this proposal is covered in part in Findings of Fact 2 and 3.

   
   

3. Rejected as not supported by competent, substantial evidence.

   
   

4. Rejected as constituting legal argument.

   
   

5. Rejected as constituting a conclusion rather than a proposed Finding of Fact.

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted

or Reason for Rejection.

1. Adopted in substance in Finding of Fact 1.

   
   

2. Adopted in substance in Finding of Fact 3.

   
   

3. Incorporated in the preliminary statement and adopted in part in Finding of Fact 4.

   
   

4. Incorporated in the preliminary statement.

   
   

5. Adopted in part in Finding of Fact 5.

COPIES FURNISHED:

James K. Green, Esquire

250 Australian Avenue Suite 1300

West Palm Beach, Florida 33401

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

The Capitol (MS #4)

Docket for Case No: 90-001409

Orders for Case No: 90-001409