STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS FELTON, )

)

Petitioner, )

)

vs. ) CASE NO. 90-2210

) STATE OF FLORIDA, DEPARTMENT OF ) STATE, DIVISION OF LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on July 19, 1990 a formal hearing was held in this case. Authority for the conduct of the hearing is set forth in Section 120.57(1), Florida Statutes. The location of the hearing was Jacksonville, Florida. Charles C. Adams was the Hearing Officer.

APPEARANCES

For Petitioner: David B. Ferebee, Esquire

Tassone and Ferebee 1833 Atlantic Boulevard

Jacksonville, Florida 32207

For Respondent: Henri C. Cawthon, Esquire

Department of State The Capitol, MS #4

Tallahassee, Florida 32399-0250 STATEMENT OF THE ISSUES

The issues for consideration concern the question of whether the Petitioner is entitled to the issuance of class "D" and "G" licenses. The class "D" license permits the holder to serve as a watchman, guard or patrolman. The class "G" license would allow the Petitioner to have a statewide gun permit.

PRELIMINARY STATEMENT

This recommended order is being entered upon consideration of the testimony presented at hearing and those exhibits admitted as part of the record.

Petitioner testified in his own behalf and presented the testimony of his wife Mary Felton. Respondent offered the rebuttal testimony of Officer Kathy Evans of the Jacksonville Sheriff's Office, Jacksonville, Florida. Respondent's exhibits 1 through 3 were admitted. Respondent's exhibits 4 and 5 were admitted in part.

Joint exhibit number 1 was admitted.

No transcript was prepared in this case. The parties were granted 10 days from the close of the hearing to file proposed recommended orders. Respondent availed itself of the opportunity. Petitioner did not. The fact finding suggested by Respondent is commented on in an appendix to the recommended order.

FINDINGS OF FACT

1. As described in Respondent's exhibit 3, on May 18, 1987 Petitioner made application with Respondent for licensure. In response to question 13 about the number of arrests he had had, he noted that in 1947 that he had been arrested for the offense of "None (sic) tax liquor" and the outcome was said to be "six months". This is perceived as reference to the fact that the violation related to a liquor law in which Petitioner says he was given a six month sentence. A Federal Bureau of Investigation offense report, part of Respondent's exhibit 5, speaks to an arrest on February 3, 1949 related to violation of an Internal Revenue regulation of liquor laws and shows a jail commitment upon default of a

   $500.00 bond.

   
   

2. The application also stated that the Petitioner had been arrested several times for fighting, but the cases had been dismissed. Petitioner was licensed by Respondent based upon the 1987 application previously referred to.

   
   

3. Subsequent to his licensure he was arrested on November 8, 1987 for battery, in particular spouse abuse. This was an alleged violation of Section 784.03, Florida Statutes. The Florida Department Law Enforcement offense report, part of the Respondent's composite exhibit 3, shows the disposition of the offense by an adjudication of guilt. Petitioner through his testimony identified that he had pled nolo contendere to this offense. As a consequence of this incident he lost his license through revocation proceedings.

   
   

4. On May 8, 1989 Petitioner reapplied for licensure. A copy of his application may be found as part of Respondent's composite exhibit 2. In this instance in response to question 13 he indicates that he was arrested in 1958 for making moonshine whiskey and served five months and 29 days. Again this is perceived as an acknowledgment of the offense of February 3, 1949 previously described. In answer to question 13 he also referred to the 1987 offense related to his wife as "spousal abuse" and stated that he had stayed overnight in jail. The Florida Department of Law Enforcement offense report which is part of Respondent's exhibit 3 refers to "2D credit", taken to mean two days credit for the time he had served. In the 1989 application Petitioner sought the assistance of counsel in offering a supplemental answer to question 13 which gives a more complete explanation of the non-tax whiskey case and the 1987 battery. In the course of this explanation by counsel he states that adjudication of guilt was withheld on the plea of nolo contendere for the 1987 offense. Citation is made to the case of Kinney v. Department of State, 501 So.2d 129 (Fla. 5th DCA 1987). In addition a disclaimer is given about other offenses in 1971 for larceny; in 1985 for carrying a concealed weapon; in 1983 for loitering and the belief that these items must pertain to someone other than the present Thomas Felton. Given the close proximity in time of the 1989 application to the loss of the license issued in 1987 through revocation, Petitioner withdrew his request for licensure.

   
   

5. In the 1989 application the information that had been placed on the application form had been put there by Petitioner's wife.

6. On February 7, 1990 Petitioner submitted his present application for classes "D" and "G" licenses. On this occasion the form application was filled out by his employer in the person of a Ms. Ross. Petitioner doesn't know what Ms. Ross used as an information base for filling out the 1990 application. She was aware of the fact that he had spent the night in jail in 1987. This is related to the incident with his wife in which he was arrested for battery.

   
   

7. In the 1990 application, Respondent's exhibit 1, in answer to question

   13 Petitioner says that in April 1948 that he had been arrested for moonshine selling and was given six months. Again this is seen as a comment on the February 3, 1949 incident related to the liquor laws. In the 1990 application he also mentions that he had been arrested several times for fighting and that the cases had been dismissed. He makes no reference to the 1987 incident of battery against his wife.

   
   

8. Petitioner describes his omission of the 1987 arrest as that of someone who is careless as opposed to someone attempting to hide the facts. He accurately points out that the Respondent had a record of the 1987 battery offense against his wife. Having considered his explanation in the context of other facts presented, Petitioner is not found to have intended to misrepresent information concerning the 1987 battery offense against his wife when submitting the 1990 application.

   
   

9. On March 13, 1990 as shown in the joint exhibit 1, Petitioner rejected the request for licensure. It gave as reasons the existence of the battery charge of November 8, 1987 in that the failure to disclose information about that charge was seen as a fraudulent or willful misrepresentation in applying for the license, in violation of Section 493.319(1)(a), Florida Statutes. Further, the existence of that offense was seen as the conviction of a crime directly related to the business being sought for licensure, in a circumstance where a plea of nolo contendere had been entered, in violation of Section 493.319(1)(c), Florida Statutes. This matter was seen as being in violation of Section 493.319(1)(j), Florida Statutes in that Petitioner was alleged to have committed a battery or use of force or violence against his wife. There is the overall reference within this explanation of denial which allows the agency in certain instances to deny a license for violation of any provision within Chapter 493, Florida Statutes. In particular that reference is Section 493.319(1)(p), Florida Statutes. For all these statutory reasons the application was denied.

   
   

10. On March 27, 1990 Petitioner filed a formal petition requesting a hearing. This request was submitted to the Division of Administrative Hearings for consideration. The final hearing ensued.

    
    

11. According to Petitioner the incident of spousal abuse occurred as follows: On the night he was arrested he was awakened by his wife who said that their children were fighting and one of those children had a knife. He used a metal walking stick to stop the daughter with the knife and hit his wife on the left forearm which became swollen after that blow. At the time he hit her she was behind him. He was then taken to jail and spent the night. He pled no contest without benefit of consultation with counsel. The judge told him he could go home. At the time he entered his plea he told the judge that he had hit his wife accidentally. Petitioner didn't indicate that he was trying to restrain the wife at the time he struck her. He stated that he was unacquainted with what the wife may have told the police about the incident.

12. When cross-examined Petitioner said that he could not recall if he had been arrested for striking his wife before this incident, but that he didn't think so. He was then confronted with information concerning a 1969 incident of striking his wife and upon being reminded of that circumstance admitted that he had been fighting with his wife in that year. He also acknowledged that he could have been fighting with her in 1967. The wife in 1969 was the same wife as in 1987. The 1969 incident with his wife was felt by the Petitioner to have been another occasion of problems related to his children.

    
    

13. As part of Respondent's composite exhibit 5, the Federal Bureau of Investigation offense report, there are items related to "DC" taken to mean disorderly conduct. The disposition of the disorderly conduct case in 1967 is shown as being discharged from municipal court. The 1969 incident of disorderly conduct is one disposed by a fine of $20.00 in municipal court. Both the incident in 1967 and the incident in 1969 occurred in Jacksonville, Florida, as did the 1987 incident with his wife.

    
    

14. In her testimony Petitioner's wife says that she was hit on her right hand in the 1987 incident. She testified that the children called the police and that a lady officer took Petitioner to jail. She indicates in the testimony that the Petitioner and his wife were not fighting. She acknowledges that she was hit with a walking cane. She says she told the police that she was hit on her hand by her husband. She said she doesn't know whether she was hit intentionally. She does acknowledge that there was a scuffle of some sort. She states that in the past that she has called the police and that her husband was arrested when they have fought. In 1969 both she and her husband were arrested for that incident, according to the wife. She has no specific recollection about the incident in 1967. On the night that her husband was arrested in 1987 she did not attempt to stop the police from making the arrest.

    
    

15. According to Mrs. Felton, at a later time Petitioner told her that he didn't intend to hit her. She says that six or seven kids were involved in the incident from ages 16 to 25. She states that she forgave her husband for the incident on the next day following the November 8, 1987 fracas.

    
    

16. Kathy Evans offered testimony. She is an officer with the Jacksonville Sheriff's Department in Jacksonville, Florida. She responded to the incident on November 8, 1987 and arrested the Petitioner. By report that was given to her at the scene after she arrived, gathered from unidentified sources at the scene, she was led to believe that the Petitioner and his wife had had an argument about the children. This lack of identification of the reporters is associated with the officer's inability to recall at hearing who had made the report. By report, Petitioner sided with one of the daughters and the wife favored the other daughter's position. Petitioner got angry with his wife and hit her. In sequence, there had been a verbal argument between the daughters and the parents became involved and the wife was struck. As the officer recalls the nature of the injury, it was to the right arm of the wife and left a black and blue welt. The wife didn't object when the husband was arrested for spouse abuse. The officer observed four people at the scene of the event, two of these people being the Petitioner and his wife and the others the children.

    
    

17. Having considered the testimony of the three witnesses who appeared at hearing, the officers account of what she observed after the incident and recount of what she was told at the scene is credited. The explanations by the Petitioner and his wife are not credited. This decision is reached in consideration of the demeanor of those witnesses, their motives for truth and

    veracity and the fact that they were not forthcoming in the explanation of the incident. Nor has the Petitioner been convincing in any suggestion that the circumstance of his plea of nolo contendere to the offense of battery related to the 1987 incident was under circumstances less than proper. Petitioner through his proof has failed to overcome the presumption created by the nolo contendere plea to the offense. Under the circumstances Petitioner has not shown sufficient rehabilitation to allow licensure following the revocation.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action pursuant to Section 120.57(1), Florida Statutes.

    
    

19. Section 493.304, Florida Statutes identifies the classes of licenses issued by Respondent to include class "D" licenses for watchman, guards, or patrolmen and class "G" for the right to bear a firearm.

    
    

20. Section 493.305, Florida Statutes describes the application process. In subsection (3) it describes the fact that an applicant shall be ineligible to reapply for the same class of license for a period of one year following revocation of a license issued in the same class. This promoted the necessity of the Petitioner waiting until 1990 to reapply for the license that had been revoked.

    
    

21. Petitioner has the burden to prove his entitlement to licensure. See Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1stDCA 1981).

    
    

22. Section 493.319, Florida Statutes describes grounds for license denial. Among those grounds would be that reason set forth in Section 493.319(1)(a), Florida Statutes which would allow the Respondent to deny the license based upon a fraudulent or willful misrepresentation in the application. The failure to reveal the 1987 battery incident against his wife was not intentional and is not considered fraudulent or willful misrepresentation.

    
    

23. The second ground which the Respondent has reference to in denying the license application is based upon a violation of Section 493.319(1)(c), Florida Statutes which states:

    
    

    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 upon 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;

    
    

    The offense with Petitioner's wife is one that directly relates to the business for which he seeks licensure, in that it shows a propensity to commit acts of violence which cannot be countenanced in a person who acts as a watchman, guard or patrolman and who is armed. This construction of the statute is supported by the reference in Section 493.319(1)(j), Florida Statutes, a third ground for

    license denial which makes it a violation to commit the act of assault, or battery, or use of violence against another person. Since these offenses are specifically recognized within the statute as grounds for license denial, they are perceived as being the sort of crimes directly related to the business for which the license is held. Moreover, under Section 493.319(1)(c), Florida Statutes it matters not whether the Petitioner was adjudicated guilty of the battery offense in 1987 or whether a sentence was imposed and suspended. In this context there is a conviction based upon a plea of nolo contendere. It created a presumption of guilt. The Petitioner having been allowed to present evidence relative to the underlying charge and the circumstances of his plea in court has failed to persuade the trier of fact that the plea of nolo contendere to the battery offense was not warranted and appropriately acknowledged by the court which had jurisdiction in that matter. Again this was a plea related to the commission of battery and an offense of using force or violence. The consequence of violating Section 493.319(1)(c) and (j), Florida Administrative Code also is a violation of Section 493.319(1)(p) concerning violation of any provision of Chapter 493, Florida Statutes. For these reasons and based upon the fact that a limited period of time has passed since the 1987 offense and revocation of the prior license, Petitioner is not entitled to reissuance of the licenses applied for.

    
    

24. In reaching this decision the court opinion in Kinney, supra has been considered. Whereas the hearing officer in that instance was willing to attribute truth and veracity to the explanations concerning the facts that were underlying the plea in that case on the critical element of the intent to commit the crime, in the present case Petitioner and his witness were not credible. Petitioner may not have intended to commit the offense of battery against his wife but his true intentions are not gained from the explanations which he and his wife have made at hearing. This opinion is held based upon consideration of the demeanor and the explanation itself in the context of other relevant facts about their relationship and physical combativeness with each other. Their stories were sparse, elusive, different, and not to be believed. While the plea may have been one of convenience it is the only credible information about the battery charge and it is compelling.

    
    

25. This present case arose in Duval County which is served by the Florida First District Court of Appeal. The 1987 incident arose in that county and the criminal case was disposed of there. Therefore the decision in the Kinney case while it may be used as persuasive authority it is not controlling. To that extent, where it is suggested that the nolo contendere plea to the charge of aggravated battery, a second degree felony, is not related to the business for which the appellant in that instance was licensed, that point of view is rejected in this recommendation. An assault or battery against another person is found to be a crime directly related to the business for which Petitioner seeks licensure within the meaning of Section 493.319(1)(c), Florida Statutes. The significance in the Kinney case of the fact that the state had not referred to Section 493.319(1)(c), Florida Statutes as a basis for discipline and the fact that the case was an administrative disciplinary matter as contrasted with an application case and the influence this had on the court in deciding that the aggravated battery charge was not related to the business is unclear. Nonetheless, the court announced the holding that aggravated battery was not directly related to the business for which the license was held in that instance and by analogy that would mean that battery of a spouse is not directly related to the business for which the license is sought here. One other reason why the court may have decided as it did is associated with the existing language of Section 493.319(1)(c), Florida Statutes (1981) that controlled the decision. It said, "having been found guilty of the commission of a crime which directly

relates to the business for which the license is held, regardless of adjudication". This is a more abbreviated statement of that section than presently exists. On the other hand, notwithstanding the statement of the 1981 statute which said that adjudication was not significant, the Kinney court attached significance to the withholding of adjudication in that situation and seemed to say that you cannot be found guilty of the commission of a crime unless there has been an adjudication.

RECOMMENDATION

Based upon the findings of fact and conclusions of law reached it is recommended that a final order be entered which denies Petitioner's application for class "D" and "G" licenses.

RECOMMENDED this 8th day of August, 1990, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 1990.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2210

The following discussion is given concerning the proposed facts found in Respondents proposed recommended order.

Paragraphs 1-5 are subordinate to facts found.

Paragraph 6 is subordinate to facts found with the exception of the second sentence which is rejected.

Paragraph 7 is subordinate to facts found.

COPIES FURNISHED:

The 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

David B. Ferebee, Esquire Tassone and Ferebee

1833 Atlantic Boulevard

Jacksonville, FL 32207

Henri C. Cawthon, Esquire Department of State

The Capitol, MS #4 Tallahassee, FL 32399-0250

Docket for Case No: 90-002210

Orders for Case No: 90-002210