STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HASNAIN M. HANIF, )

)

Petitioner, )

)

vs. ) CASE NO. 94-0286S

) DEPARTMENT OF STATE, DIVISION ) OF LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on April 1, 1994, in Fort Lauderdale, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: No Appearance

For Respondent: Kristi Reid Bronson, Esquire

Assistant General Counsel Department of State Division of Licensing

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

STATEMENT OF THE ISSUE

Whether Petitioner's application for a license to carry concealed weapons or firearms should be granted by the Department of State, Division of Licensing (hereinafter referred to as the "Department")?

PRELIMINARY STATEMENT

By letter dated December 6, 1993, the Department advised Petitioner that a preliminary determination had been made to deny his application for a license to carry concealed weapons or firearms. The letter contained the following explanation for the Department's proposed action:

Failure to qualify under Section 790.06 (2)(d), Florida Statutes. Criminal history information received by this Department indicates you were convicted of a felony, Passport Fraud, on August 11, 1988, and have not had your civil rights and the specific

right to own, possess or use a firearm restored by the Florida Office of Executive Clemency.

Petitioner filed with the Department a completed Election of Rights form requesting a formal administrative hearing on the Department's proposed action. The completed form Petitioner sent to the Department contained the following handwritten insertion:

I would like the Dept. of State, State of Florida, to provide me with evidence of conviction (arrest report, judgment etc.). Otherwise, your grounds for denial is [sic] unacceptable.

Accompanying the completed Election of Rights form was a letter, dated December 8, 1993, in which Petitioner stated the following:

I dispute all of the facts presented by the State. The State must provide me with records as I outlined on Election of Rights form.

Otherwise, the State's position is arbitrary and unacceptable to me.

The matter was referred to the Division of Administrative Hearings (hereinafter referred to as the "Division") on January 19, 1994, for the assignment of a Division hearing officer to conduct the formal hearing Petitioner had requested. The undersigned Hearing Officer was assigned the case and, following his assignment, he furnished the parties with written notice of the date, starting time and location of the formal hearing.

On March 14, 1994, the Department filed a motion requesting leave to amend its December 6, 1993, denial letter to reflect that Petitioner was convicted of the federal crime referenced therein on November 24, 1988, not August 11, 1988. The motion was unopposed. On March 23, 1994, the Hearing Officer issued an order granting the motion.

The formal hearing in the instant case was conducted by the Hearing Officer on April 1, 1994. Although given written notice of the hearing in accordance with the provisions of Chapter 120, Florida Statutes, Petitioner did not make an appearance at the hearing, either in person or through an attorney or other qualified representative. The Department appeared through counsel and presented the testimony of one witness, Dave Todd, a federal probation officer. It also offered two exhibits into evidence, both of which were received by the Hearing Officer.

At the close of the evidentiary portion of the hearing on April 1, 1994, the Hearing Officer announced on the record that post-hearing submittals had to be filed no later than ten days following the conclusion of the hearing. On April 11, 1994, the Department timely filed a proposed recommended order containing what are labelled as "proposed findings of fact" and "conclusions of law." On April 18, 1994, Petitioner filed a written response to the Department's proposed recommended order in which he stated the following:

This is a response with respect to case no. 94-0286S.

I, HASNAIN M. HANIF, totally disagree with the findings of the Dept. of State, State of Florida. I have clearly stated that I have

never been convicted of a felony in this State

or in any State of this country. My civil rights were never curtailed in any form or fashion; therefore, there can be no question of the rights being restored. A convicted felon is not eligible to vote in this State. The matter described in #3 of the proposed findings of fact is groundless. I am enclosing a copy of my voter registration card to dispute the clause.

As I satisfy all sections of F.S. 790.06, there is no reason why the Dept. of State shall not issue me a concealed weapons permit.

The Department's proposed recommended order and Petitioner's response thereto have been carefully considered by the Hearing Officer. The "proposed findings of fact" set forth in the Department's proposed recommended order are specifically addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:

1. In November of 1988, following his entry of a guilty plea to the charge, Petitioner was convicted in the United States District Court for the Southern District of Florida of making a "false statement in obtaining a U.S. Passport, [in violation of] Title 18 USC 1542."

   
   

2. He was "committed to the custody of the Attorney General of the United States or his authorized representative for confinement for a period of five (5) years and [given] a fine of $1,000.00."

   
   

3. The "execution of said sentence of confinement," however, was suspended and Petitioner was "placed on probation for a period of two (2) years."

   
   

4. Dave Todd was Petitioner's probation officer.

   
   

5. Petitioner successfully completed his probation.

   
   

6. On September 17, 1993, Petitioner submitted to the Department an application for a license to carry concealed weapons or firearms.

   
   

   CONCLUSIONS OF LAW

   
   

7. "The Department of State is authorized to issue licenses to carry concealed weapons or concealed firearms to persons qualified as provided in [Section 790.06, Florida Statutes]." Section 790.06(1), Fla. Stat.

   
   

8. A person is not "qualified as provided in [Section 790.06, Florida Statutes]" to be so licensed if he or she is "ineligible to possess a firearm pursuant to s.790.23 by virtue of having been convicted of a felony." Section 790.06(2)(d), Fla. Stat.

9. Section 790.23, Florida Statutes, provides as follows:

   
   

   1. It is unlawful for any person who has been convicted of a felony in the courts of this state or of a crime against the United States which is designated as a felony or convicted of an offense in any other state, territory, or country punishable by imprisonment for a term exceeding 1 year to own or to have in his care, custody, possession, or control any firearm or electric weapon or device or to carry a concealed weapon, including all tear gas guns and chemical weapons or devices.

   2. This section shall not apply to a person convicted of a felony whose civil rights have been restored.

   3. Any person convicted of violating this section is guilty of a felony of the second degree, punishable as provided in s.775.082, s.775.083, or s.775.084.

      
      

10. In the instant case, the evidence establishes that in November of 1988, Petitioner was convicted in federal district court of making a "false statement in obtaining a U.S. Passport, [in violation of] Title 18 USC 1542," which is "a crime against the United States which is designated as a felony."

    
    

11. There has been no showing made that his civil rights have been restored. 1/

    
    

12. As a convicted felon who has failed to demonstrate that he has had his civil rights restored,2 Petitioner is "ineligible to possess a firearm pursuant to s.790.23," Florida Statutes, and therefore is not qualified to be issued the concealed weapons/firearms license he is seeking.

11. Accordingly, his application for such a license should be denied.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Department enter a final order denying Petitioner's application for a license to carry concealed weapons or firearms.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of April, 1994.

STUART M. LERNER

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 20th day of April, 1994.

ENDNOTES

1/ A person, like Petitioner, who has been convicted of "a crime against the United States which is designated as a felony" may seek to have his civil rights, including the right to carry concealed weapons and firearms, "restored by the federal government by whatever procedure obtains in the federal system or by the Governor of this State and three members of the cabinet pursuant to Article IV, Section 8, Florida Constitution." In re Florida Board of Bar Examiners, 361 So.2d 424, 425 (Fla. 1978).

2/ "In accordance with the general rule, applicable in court proceedings, 'the burden of proof, apart from statute, is on the party asserting the affirmative of an issue before an administrative tribunal.'" Florida Department of Transportation v. J.W.C., 396 So.2d 778, 788 (Fla. 1st DCA 1981).

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 94-0286S

The following are the Hearing Officer's specific rulings on the "findings of facts" proposed by the Department in its post-hearing submittal:

1-2. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

3. First Sentence: To the extent that this proposed finding states that a "violation of Title 18 USC 1542, . . . is punishable by a fine of not more than

$2,000.00 or imprisonment of not more than five years, or both," it has been rejected as a finding of fact because it is more in the nature of a statement of the law. Otherwise, it has been accepted and incorporated in substance; Second sentence: Rejected as a finding of fact because it is more in the nature of as statement of the law; Third and fourth sentences: Accepted and incorporated in substance.

COPIES FURNISHED:

Hasnain M. Hanif

420 Northeast 75th Street, #7 Miami, Florida 33138

Kristi Reid Bronson, Esquire Assistant General Counsel Department of State

Division of Licensing The Capitol, M.S. #4

Tallahassee, Florida 32399-0250

Honorable Jim Smith Secretary of State The Capitol

Tallahassee, Florida 32399-0250

Phyllis Slater, Esquire General Counsel

The Capitol, PL-02

Tallahassee, Florida 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 of time 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.

Docket for Case No: 94-000286

Orders for Case No: 94-000286