STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICKY O. DAWES, )

)

Petitioner, )

)

vs. ) CASE NO. 93-2048S

)

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

On July 30, 1993, a formal administrative hearing was held in this case in Tampa, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ellis Faught, Jr., Esquire

206 Mason Street Brandon, Florida 33511

For Respondent: Henri C. Cawthon, Esquire

Assistant General Counsel Department of State,

Division of Licensing

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

STATEMENT OF THE ISSUES

The issues in this case are whether the Respondent, the Department of State, Division of Licensing, should grant the applications of the Petitioner, Ricky O. Dawes, for a Class "C" Private Investigator License and for a Class "G" Statewide Firearms License. Specifically, under Section 493.6118(3), Fla. Stat. (1991), the issue as to each application is whether there is clear and convincing evidence that the Petitioner lacks good moral character.

PRELIMINARY STATEMENT

The Petitioner applied for a Class "C" Private Investigator License and for a Class "G" Statewide Firearms License on or about December 14, 1992. On or about March 18, 1993, the Respondent gave notice of its intent to deny both licenses under Section 493.6118(3), Fla. Stat. (1991), on the ground that the Petitioner lacks the good moral character required by statute. Through counsel, the Petitioner requested formal administrative proceedings under Section 120.57(1), Fla. Stat. (1991).

The matter was referred to the Division of Administrative Hearings for assignment of a hearing officer on May 3, 1993, and the matter was scheduled for final hearing on July 14, 1993, by Notice of Hearing issued on May 5, 1993. The Petitioner moved for a continuance, which the Respondent did not oppose, and final hearing was continued to July 30, 1993.

Initially, the Respondent denied the Petitioner's applications on findings that the Petitioner's lack of good moral character was established by evidence:

1. that he criminally disclosed the existence of a substantial criminal investigation to the subjects of the investigation in June or July, 1992; and

2. that he committed perjury when asked about it under oath in July, 1992. Later, without objection, the Respondent was granted leave to amend its denial letter to add the ground that the Petitioner's lack of good moral character also is established by evidence that he was carrying a concealed firearm without a required permit on or about January 23, 1993.

   
   

   At the final hearing, the Respondent presented its case first and called five witnesses. It also had Respondent's Exhibits 1 through 6 admitted in evidence. When the Respondent rested, the Petitioner testified in his own behalf and then rested. There was no rebuttal.

   
   

   At the end of the hearing, the parties were given ten days in which to file proposed recommended orders. However, the parties moved to extend the time for filing proposed recommended orders, and the deadline was extended to August 13, 1993. Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended orders may be found in the attached Appendix to Recommended Order, Case No. 93-2048S.

   
   

   FINDINGS OF FACT

   
   

   1. The Petitioner, Ricky O. Dawes, was a municipal law enforcement officer from approximately 1975 through the middle of 1977. He was a deputy sheriff and, later, a detective with the Hillsborough County Sheriff's Office from approximately June, 1978, through April, 1979, and from May, 1980, through August, 1992. Background checks when he was employed with the Sheriff's Office revealed no evidence of facts that would establish a personal history of dishonesty, unfairness, or disrespect for the rights and property of others or for the laws of Florida or of the nation. Nor is there any evidence, during the course of his employment through approximately May, 1992, that the Petitioner had a personal history of dishonesty, unfairness, or disrespect for the rights and property of others or for the laws of Florida or of the nation.

      
      

   2. During the summer of 1992, and for some time before, the Hillsborough County Sheriff's Office was involved in a substantial multiple-law-enforcement- agency investigation. In approximately June or July, 1992, the law enforcement agencies involved learned that the subjects of the investigation not only knew about it but had been given copies of four pages of notes made by members of the Sheriff's Office involved in the investigation that listed, by name and in some cases additional identifying information, some 15 "suspects" and 22 "possible targets." The disclosure seriously compromised the investigation, to say the least.

      
      

   3. An internal investigation was launched to determine the source of the damaging disclosure. It was revealed that a copy of the notes had been in the copying room of the identification and records section of the Sheriff's Office for approximately six to eight weeks prior to the disclosure. An employee recalled: seeing it on a work table in the copying room at the beginning of

      that time period; looking at it and realizing it was something important that should not be made public; thinking that whoever put it there would be back for it soon; and finishing his business in the copying machine, leaving the notes where he had found them. He also recalled returning to the copying room the next day and not seeing the notes where he had left them. He assumed at the time that whoever had put them there had returned and removed them. But later, in July, 1992, he read in the local newspapers that copies of documents sounding much like what he had seen in the copying room had been given to the suspects under investigation. He returned to the copying room and found the notes in a stack of miscellaneous papers.

      
      

   4. Several people, including the Petitioner, were questioned under oath during the course of the internal investigation. The Petitioner was questioned in a deposition conducted by an assistant state attorney on or about July 30, 1992. During the deposition, the Petitioner was shown copies of the four pages of notes that were recovered from the copying room and was asked whether he had ever seen a copy of them. The Petitioner looked at all four pages carefully (the deposition transcript indicates a pause in the proceedings) and answered, "no."

      
      

   5. After the deposition, the four pages of notes recovered from the copying room were processed for latent fingerprints. The Petitioner's left thumb print appeared on the left side of one of the pages, labeled at the top "Possible Targets," about two-thirds of the way up the page. On the list of 14 "possible targets" on that page were the names Vincent Loscalzo, who the testimony indicates is reputed to be involved in organized crime in the Tampa area, and several others whom the Petitioner either knew personally or whose names he would have recognized. The Petitioner's left thumb print also appeared on the left side of the next page of the list of "possible targets," also about two-thirds of the way up the page. On the list of eight names on that page were at least two names the Petitioner would have recognized. One was the husband of the mayor of the City of Tampa.

      
      

   6. The Petitioner knows Vincent Loscalzo personally. While employed with the Hillsborough County Sheriff's Office, the Petitioner also was in business for himself distributing an oil re-refiner. The Petitioner is concentrating on that business now that he has "retired" from the Sheriff's Office. (The Petitioner tried to give the false impression that his "retirement" in August, 1992, had nothing to do with the internal investigation and that the Petitioner had been planning for some time to retire in August, 1992, to concentrate on his business.) The product was manufactured by a company in which Vincent Loscalzo has an ownership interest. Loscalzo has an office above a lounge he owns in Tampa, called the Brothers Lounge, and the Petitioner has had conversations with him there.

      
      

   7. It is found that the Petitioner testified falsely on his deposition that he had never before seen copies of the four pages of notes recovered from the copying room.

      
      

   8. Many people, besides the Petitioner, had access to the copying room during the six to eight weeks that the notes were there. Most had legitimate Sheriff's Office business to conduct, and they would not have been questioned or supervised. Others, not having legitimate Sheriff's Office business to conduct, also could have entered the copying room unquestioned and unsupervised during that time period. Two other person's fingerprints were identified on the notes-

      -the person who brought the notes into the copying room and left them, and the person who saw the notes and recovered them after reading about them in the

      newspaper. Not all people who touched the notes necessarily would have left fingerprints that could be lifted and identified. Many factors would enter into the question whether someone who touched the notes would leave prints that could be lifted and identified. In addition to those identified, some unidentifiable prints were left on the notes.

      
      

   9. Under these facts, the Respondent concedes in its proposed recommended order that it was unable to prove, by clear and convincing evidence, that the Petitioner criminally disclosed the existence of a substantial criminal investigation to the subjects of the investigation.

      
      

   10. On or about January 23, 1993, the Petitioner was stopped for driving a motor vehicle while impaired by alcohol consumption. As the arresting officer approached the Petitioner's vehicle, from the rear, the Petitioner opened the driver-side door and got out. As he did, his left pant leg got caught on an object that appeared to be under the pant leg at the Petitioner's ankle, and the pant leg bunched up and bulged. The Petitioner identified himself to the arresting officer as a retired deputy sheriff. Based on the arresting officer's experience and knowledge, particularly that off-duty law enforcement officers often concealed their firearms under the pant leg in an ankle holster, the arresting officer asked if the bulge he saw under the pant leg was a firearm. The Petitioner acknowledged that it was.

       
       

   11. In answer to the officer's question whether the Petitioner had a permit to carry a concealed firearm, told the officer that he did. In fact, the Petitioner did not even apply for a concealed firearm license until March 30, 1993, and one was not issued to him until April 6, 1993.

       
       

   12. It is found from the clear and convincing totality of the evidence in this case, taken as a whole, that the Petitioner lacks a personal history of honesty, fairness, and respect for the rights of others and for the laws of Florida.

       
       

       CONCLUSIONS OF LAW

       
       

   13. The burden of proof in an application case generally is on the applicant to prove entitlement to licensure. See Dept. of Transp. v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). But Section 493.6118(3), Fla. Stat. (1991), provides:

       
       

3. The department may deny an application for licensure citing lack of good moral char- acter only if the finding by the department of lack of good moral character is supported by clear and convincing evidence. In such cases, the department shall furnish the app- licant a statement containing the findings

of the department, a complete record of the evidence upon which the determination was based, and a notice of the rights of the applicant to an administrative hearing and subsequent appeal.

14. Section 493.6101(7), Fla. Stat. (1991),

provides:

"Good moral character" means a personal history of honesty, fairness, and respect for the rights and property of others and for the laws of this state and nation.

1. It has been held that, to be clear and convincing, "evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

   
   

2. In this case, the Respondent has taken the position that the Petitioner's lack of good moral character is established by evidence: (1) that he criminally disclosed the existence of a substantial criminal investigation to the subjects of the investigation during June or July, 1992; (2) that he committed perjury when asked about it under oath in July, 1992; and (3) that he was carrying a concealed firearm without a required permit on or about January 23, 1993. If proven, those facts would be clear and convincing evidence of the lack of a "personal history of honesty . . . and respect for the . . . laws of this state "

   
   

3. The Respondent concedes in its proposed recommended order that it was unable to prove, by clear and convincing evidence, that the Petitioner criminally disclosed the existence of a substantial criminal investigation to the subjects of the investigation.

   
   

4. However, it was found, by clear and convincing evidence, that the Petitioner committed perjury in violation of Section 837.02, Fla. Stat. (1991), when he testified falsely on his deposition on or about July 30, 1992, that he had never before seen copies of the four pages of notes recovered from the copying room.

   
   

5. The evidence also proved, by clear and convincing evidence, that the Petitioner was carrying a concealed firearm without a license on or about January 23, 1993. Section 790.01(2) Fla. Stat. (1991), makes it a third degree felony to carry a concealed firearm on one's person except in compliance with terms of a license issued under Section 790.06, Fla. Stat. (1991).

   
   

6. The Petitioner argues that, under the facts of this case, the firearm was not concealed. But absolute invisibility is not a necessary element to the offense of carrying a concealed weapon. State v. Pollock, 600 So. 2d 1313 (Fla. 3d DCA 1992); State v. Harrell, 588 So. 2d 54 (Fla. 3d DCA 1991). To be concealed, it only is necessary that the weapon be hidden from ordinary sight, i.e., from casual and ordinary observation of another in normal associations of life. State v. Pollock, supra; Boren v. State, 576 So. 2d 798 (Fla. 1st DCA 1991).

   
   

7. In this case, the weapon itself was not visible, but only detectable, and then only by the experienced eye of a law enforcement officer, and only by the happenstance that the Petitioner's pant leg got caught on the weapon as he got out of his car. There is no question but that the Petitioner was carrying, and was intending to carry, a concealed weapon. Indeed, at the scene, the Petitioner did not contend that his firearm was not concealed; rather, he falsely stated to the arresting officer that he had the required license.

8. It was found from the clear and convincing totality of the evidence in this case, taken as a whole, that the Petitioner lacks a personal history of honesty, fairness, and respect for the rights of others and for the laws of Florida. Ordinarily, the question as to what constitutes good moral character is a question of fact. Albert v. Dept. of Law Enforcement, 573 So. 2d 187 (Fla. 3d DCA 1991). Accordingly, the Petitioner's applications for licensure should be denied under Section 493.6118(3), for lack of good moral character, as that term is defined in Section 493.6101(7), Fla. Stat. (1991).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent, the Department of State, Division of Licensing, enter a final order denying the applications of the Petitioner, Ricky O. Dawes, for a Class "C" Private Investigator License and for a Class "G" Statewide Firearms License.

RECOMMENDED this 19th day of August, 1993, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2048S

To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1. Rejected as not proven that the resignation was totally voluntarily. Also, no party questioned about it at the hearing knew the procedures for licensure by a former law enforcement officer. In any event, the procedures are matters of law, not fact, and are set out in Section 790.06, Fla. Stat. (1991). Otherwise, accepted and incorporated to the extent necessary.

2. Rejected in part as not proven and as being conclusions of law. Fact of the pendency of criminal proceedings, a ruling suppressing evidence, and the State's appeal accepted but unnecessary.

3. Rejected as not proven and as contrary to facts found and as contrary to the greater weight of the evidence that the firearm was visible. (It was only detectable.) Part of the rest is rejected as being conclusions of law, and the other part of the rest is accepted and incorporated to the extent not subordinate or unnecessary.

4. Accepted but unnecessary that the Petitioner has been charged but not convicted. The rest is rejected as being argument and conclusions of law.

5. Accepted (the questions to the witnesses excluded reference to the charges leveled in this case) and subordinate to facts found.

6. Rejected in part as being argument and conclusions of law and in part as not proven and as contrary to facts found and to the greater weight of the evidence.

7. First sentence, accepted and incorporated. Second sentence, rejected in part as being argument but otherwise accepted but in part subordinate to facts contrary to those found and contrary to the greater weight of the evidence. Third sentence, rejected as being argument and not proven and contrary to facts found and contrary to the greater weight of the evidence. Fourth sentence, rejected for the same reasons as in 3., above.

Respondent's Proposed Findings of Fact.

1.-2. Accepted and incorporated.

3. Accepted and incorporated to the extent not subordinate or unnecessary. 4.-9. Accepted and incorporated to the extent not subordinate or

unnecessary.

10. Accepted but subordinate and unnecessary.

11.-13. Accepted and incorporated to the extent not subordinate or unnecessary.

14. Accepted but subordinate and unnecessary.

15.-16. Accepted and incorporated to the extent not subordinate or unnecessary.

17. Accepted but subordinate and unnecessary.

COPIES FURNISHED:

Ellis Faught, Jr., Esquire

206 Mason Street Brandon, Florida 33511

Henri C. Cawthon, Esquire Assistant General Counsel Department of State

Division of Licensing

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

Honorable Jim Smith Secretary of State The Capitol

Tallahassee, Florida 32399-0250

Phyllis Slater, Esquire General Counsel Department of State

The Capitol, PL-02

Tallahassee, Florida 32399-0250

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the Department of State, Division of Licensing written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the Department of State, Division of Licensing concerning its rules on the deadline for filing exceptions to this Recommended Order.

Docket for Case No: 93-002048

Orders for Case No: 93-002048