STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 94-4103

)

JOHN P. PINER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on October 12, 1994 in Orlando, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Richard R. Whidden, Jr.

Assistant General Counsel Department of State Division of Licensing

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

For Respondent: Donald R. Henderson, Esquire

Mateer Harbert & Bates Post Office Box 2854

Orlando, Florida 32802-2854 STATEMENT OF THE ISSUES

Whether the Petitioner may revoke the Concealed Weapon or Firearm License of Respondent based on an alleged prior felony conviction in the State of Georgia, pursuant to 760.06(10), Florida Statutes.

PRELIMINARY STATEMENT

On June 24, 1994, Petitioner charged Respondent with a violation of Section 790.06(10)(c), Florida Statutes in a one count Administrative Complaint.

Respondent denied the allegations in his Answer, filed his Election of Rights and sought a formal hearing before the Division of Administrative Hearings on July 11, 1994. This matter was referred to the Division and this hearing followed.

At the hearing, Petitioner called no witnesses but offered five exhibits which were received in evidence. Respondent offered one exhibit in evidence and rested his case. A transcript was not prepared. Each of the parties filed

proposed findings of fact, conclusions of law and argument which were filed on November 1 and November 4, 1994, respectively. Each of the proposals have been given careful consideration. My specific rulings on the parties' proposals are set forth in the Appendix attached hereto.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. At all times pertinent hereto, Respondent held a valid Class "W" Concealed Weapon or Firearm License issued by the Petitioner.

   
   

2. Petitioner alleges that Respondent was convicted of Assault with Intent to Murder on June 8, 1960 in the State of Georgia and his civil rights have not been restored.

   
   

3. A person by the name of John P. Piner was sentenced by the Superior Court of Richmond County, Georgia, on June 8, 1960, to serve a term of imprisonment at hard labor for a period of not less than three (3) years and not more that four (4) years for the crime of Assault with Intent to Murder. The sentence was suspended and the Defendant was placed on probation and fined.

   
   

4. Respondent, John P. Piner, during all relevant times was on active duty with the United States Army and remained so until his honorable separation from the service on June 23, 1969, after more than twenty years of service.

   
   

5. The evidence failed to show that the person named in the Sentencing document found in the records of Richmond County, Georgia was the same person as the Respondent named in the Administrative Complaint.

   
   

6. The evidence failed to show that the Respondent, John P. Piner, was adjudicated guilty of the felony of Assault with Intent to Murder in the State of Georgia by a court of competent jurisdiction.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

8. The Department of State is authorized to issue licenses to carry concealed weapons or firearms to qualified persons. Section 790.06(1), Florida Statutes.

   
   

9. A license issued by the Department shall be suspended or revoked if the licensee is convicted of a felony which would make the licensee ineligible to possess a firearm pursuant to Section 790.23. Section 790.06(10)(c), Florida Statutes.

   
   

10. Section 790.23, Florida Statutes provides that if a person is convicted of an offense, which is designated as a felony in any state, that person is not eligible for licensure unless that person's civil rights have been restored in Florida.

    
    

11. Respondent has held a concealed weapons license for several years and it is now up for renewal. Petitioner has filed an administrative complaint

    which seeks to revoke said license. Revocation of license proceedings are penal in nature. Therefore, Petitioner has the burden to prove, by clear and convincing evidence, the violation of Section 790.06(10)(c), Florida Statutes, as alleged in the complaint. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Hal Heifetz v. Dept. of Business Regulation, Division of Alcoholic Beverages and Tobacco, 475 So.2d 1277 (Fla. 1st DCA 1985).

    
    

12. Petitioner has failed to meet its burden of proof and the Administrative Complaint must be dismissed for the following reasons:

    
    

    1. The statute makes it "unlawful for any person who has been convicted of a felony" to possess a firearm. Therefore, the Petitioner has the burden to prove that Respondent was convicted of a felony. This requires that the trial court make an adjudication of guilt. In situations where adjudication has been withheld by the Court, the accused has not been deemed a convicted felon. Castillo v. State, 597 So.2d 458,461 (Fla. 1st DCA 1991); accord: Kelly

       v. Department of Health and Rehabilitative Services, 610 So.2d 1375 (Fla. 2d 1992). The document submitted by the Petitioner from the records of the Clerk of Court for Richmond County, Georgia indicates that a person named John P. Piner was sentenced to a term of probation. The record does not indicate that there was a adjudication of guilt.

       
       

    2. The Petitioner has failed to prove by affirmative evidence that the person listed on the document produced by the Clerk of Court is the same John P. Piner that is the Respondent herein. Killingsworth v. State, 584 So.2d 647 (Fla. 1st DCA 1991), Sinkfield v. State, 592 So.2d 322 (Fla. 1st DCA 1992).

       
       

    3. The Petitioner has failed to produce a certified copy of a judgment signed by a judge of competent jurisdiction that the Respondent was convicted of a felony. Accord: Sinkfield, supra.

       
       

    4. Since the Petitioner has not meet its initial burden to prove that Respondent was a convicted felon, Respondent had no obligation to refute Petitioner's evidence or to show that his civil rights were restored. Accord: Williams v. Davis, 459 So.2d 406 (Fla. 1st DCA 1984).

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Administrative Complaint filed against Respondent be

DISMISSED and that Petitioner's application for renewal of his concealed weapon or firearm license be GRANTED.

DONE and ENTERED this 30th day of November, 1994, in Tallahassee, Florida.

DANIEL M. KILBRIDE

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 30th day of November, 1994.

APPENDIX

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties.

Proposed findings of fact submitted by Petitioner.

Accepted in substance: paragraphs 1

Rejected as against the greater weight of evidence: paragraphs 2, 3, 4.

Proposed findings of fact submitted by Respondent.

Accepted in substance: Section 1.

COPIES FURNISHED:

Richard R. Whidden, Jr. Assistant General Counsel Department of State Division of Licensing

The Capitol, MS-4

Tallahassee, Florida 32399-0250

Donald R. Henderson, Esquire Mateer Harbert & Bates

Post Office Box 2854 Orlando, Florida 32802-2854

Honorable Jim Smith, Secretary of State Department of State The Capitol

Tallahassee, Florida 32399-0250

Phyllis Slater, 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 written exceptions to the 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: 94-004103

Orders for Case No: 94-004103