STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HERSHELL LEE JOHNSTON, )

)

Petitioner, )

)

vs. ) CASE NO. 90-5938S

) DEPARTMENT OF STATE, DIVISION ) OF LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on February 25, 1991, in Tallahassee, Florida.

APPEARANCES

For Petitioner: No Appearance

For Respondent: Henri C. Cawthon, Esquire

Department of State Division of Licensing The Capitol, MS #4

Tallahassee, Florida 32399-0250 STATEMENT OF THE ISSUES

Whether Petitioner's application for licensure as a Class "C" Private Investigator and as a class "E" Repossessor should be granted.

PRELIMINARY STATEMENT

Petitioner applied for licensure with Respondent as a as a Class "C" Private Investigator and as a class "E" Repossessor. On July 11, 1990, Petitioner was notified that his application was denied by a letter of denial which set forth the reasons for the denial. Thereafter, Petitioner executed an Election of Rights form by which he disputed the facts upon which the Respondent based its denial of his application and which requested a formal hearing. This matter was referred to the Division of Administrative Hearings with the Department of State, Division of Licensing, (Department) named as the Petitioner and with Hershell Lee Johnston named as the Respondent. An "Order Correcting Style of Case" has been entered to correctly reflect the respective positions of the parties. Notice of Hearing, scheduling the formal hearing for December 11, 1990, was mailed to the parties on October 30, 1990. On December 6, 1990, the Department filed a "Motion for Continuance and for Change of Venue" which represented that Mr. Johnston had indicated that he intended to leave the State of Florida, that he wished to withdraw his application for licensure, and that he would submit a letter of withdrawal prior to his departure. Mr. Johnston did

not submit a letter of withdrawal. Consequently, an Amended Notice of Hearing was entered which rescheduled the formal hearing for February 25, 1991, in Tallahassee, Florida. No appearance was made at the formal hearing by Mr.

Johnston or by anyone on his behalf. Efforts by counsel for the Department to reach Mr. Johnston by telephone at the numbers Mr. Johnston had provided the Department were unsuccessful.

At the formal hearing, the Department introduced two exhibits. Respondent Composite Exhibit 1 is a copy of the documents that were received by the Department or prepared by it while processing Mr. Johnston's application for licensure. Respondent's Exhibit 2 is a certified copy of an order entered July 9, 1984, in a criminal proceeding brought against Mr. Johnston.

No transcript of the proceedings was prepared and no post-hearing submittal has been filed.

FINDINGS OF FACT

1. On April 18, 1990, Hershell Lee Johnston filed an application with the Department of State, Division of Licensing, for licensure as a Class "C" Private Investigator and as a class "E" Repossessor. On July 11, 1990, Respondent, through Marilyn D. Thompson, denied the application based on the provisions of Section 493.319, Florida Statutes. The denial was based on Mr. Johnston's failure to list on his application certain aliases that he had allegedly used and on his failure to reflect that he had been charged and convicted of the crime of theft by taking in the State of Georgia in 1984.

   
   

2. No appearance was made at the formal hearing by Mr. Johnston or by anyone on his behalf, and no evidence in support of his application was presented at the formal hearing.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

4. Petitioner, as the applicant, has the burden of proving by a preponderance of the evidence that he is entitled to the licensure he seeks. Rule 28-6.08(3), Florida Administrative Code. See also, Florida Department of Transportation v. J.W.C., Co., 396 So.2d 778 (Fla. 1st DCA 1981). Petitioner has failed to meet that burden.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered which denies the subject application for licensure.

DONE AND ENTERED this 11th day of March, 1991, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Hearing Officer

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550 904/488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1991.

Copies furnished:

Honorable Jim Smith Secretary of State The Capitol

Tallahassee, Florida 32399-0250

Phyllis Slater General Counsel Department of State The Capitol, PL-02

Tallahassee, Florida 32399-0250

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

The Capitol, MS #4

Tallahassee, Florida 32399-0250

Hershell Lee Johnston Post Office Box 061479

Fort Myers, Florida 33906

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 consult with the agency that will issue the final order in this case concerning their 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.

Docket for Case No: 90-005938

Orders for Case No: 90-005938