STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KEITH RAY DELANO, )

)

Petitioner, )

)

vs. ) Case No. 95-0822S

)

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on May 2, 1997, in Miami, Florida.

APPEARANCES

For Petitioner: C. Michael Cornely, Esquire

Hartman and Cornely, P.A.

10680 Northwest 25 Street, Suite 200

Miami, Florida 33172

For Respondent: Kristi Reid Bronson, Esquire

Department of State Division of Licensing

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

STATEMENT OF THE ISSUE

The issue presented is whether Petitioner's application for licensure should be granted.

PRELIMINARY STATEMENT

By letter dated December 27, 1994, the Department denied Petitioner's application for Class "C", "D", and "G" licenses,

and Petitioner timely requested an evidentiary hearing regarding that denial. This cause was thereafter transferred to the Division of Administrative Hearings to conduct the evidentiary proceeding.

This cause was thereafter held in abeyance while the criminal charges pending against Petitioner were tried and while Petitioner appealed his conviction. The Department's Motion for Leave to File Amended Denial Letter was granted by Order entered February 11, 1997.

Petitioner testified on his own behalf and presented the testimony of David Ryan Ward and Larry Perez. Additionally, Petitioner's Composite Exhibits numbered 1-4 were admitted in evidence. The Department presented no evidence and did not cross-examine Petitioner's witnesses.

The transcript of the final hearing has been filed. The Department filed post hearing a proposed recommended order, and Petitioner filed a brief and proposed order. Those documents have been considered in the entry of this Recommended Order.

FINDINGS OF FACT

l. Petitioner became a certified law enforcement officer and was employed by the Metro-Dade Police Department in 1981. He worked for that agency through 1994, and his employment was terminated in 1996.

1. During his employment with the Metro-Dade Police Department, he was trained as an investigator and was

   specifically trained in traffic accident investigation and reconstruction. He subsequently became an instructor for the Department and trained other police officers.

   
   

2. During his employment with that agency, he received 12 commendations for good deeds and heroism. Initially, he received above-satisfactory evaluations. During his last seven years, he was rated as an outstanding employee.

3. Although no longer employed by the Police Department, he continues to be used by the Metro-Dade Police Department, by the County Attorney's Office, and by the State Attorney's Office as a consultant on a regular basis and testifies on behalf of those agencies as an expert in traffic accident reconstruction.

4. In 1994 he was charged with several felonies in Broward County. The jury found him not guilty of those charges, but he was convicted of lewd and lascivious behavior on June 10, 1995. The convictions were for five misdemeanors. Petitioner has engaged in no criminal activity either before or after his conviction and continues to maintain his innocence regarding the activity for which he was convicted.

5. Petitioner was given six months' probation and has completed all conditions of that probation. None of the conditions of probation involved contact with people or restrictions on the employment in which he can engage.

6. For the past three years, Petitioner has been employed

   in an administrative capacity by an investigative and security agency licensed by the Department. For a while he worked there under temporary licensing by the Department without incident.

7. The agency which employs Petitioner performs a substantial amount of investigation and traffic accident reconstruction for insurance carriers. If licensed, Petitioner would perform that work in the field. Petitioner's ability to perform the duties of that employment is enhanced by his extensive educational background and experience. Petitioner even has a degree in photography, which further enhances his ability to perform surveillance, investigations, and traffic accident reconstruction.

8. Petitioner's employers, who are both certified law enforcement officers, rely on Petitioner's "outstanding" investigative abilities and guidance. He is considered very knowledgeable in the requirements of Chapter 493, Florida Statutes, the framework for investigative and security services administered by the Department. His skills are considered superior, and he is respectful to all with whom he comes in contact. He conducts himself with the utmost professionalism.

9. Petitioner respects the law and asserts that he has never knowingly broken it. He further respects the rights of others as evidenced by his testimony, the testimony of other law enforcement officers, and the many awards, letters of praise from citizens, and commendations from his superiors admitted in

   evidence.

   
   

10. There is no relationship between the misdemeanors for which Petitioner was convicted and the licenses for which he has made application.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Sections 120.569 and 120.57(1), Florida Statutes.

12. The Amended Administrative Denial letter denies Petitioner's application for a Class "C" Private Investigator license, a Class "D" Security Officer license, and a Class "G" Statewide Firearm license for two reasons. First, it alleges that Petitioner fails to qualify under Section 493.6118(1)(c), Florida Statutes, in that Petitioner was convicted of a crime which is directly related to the business for which the license is held or sought. Second, it alleges that the criminal history information received by the Department indicates that Petitioner fails to qualify under Section 493.6118(3), Florida Statutes, in that Petitioner lacks respect for the rights of others or the laws of this state or nation.

13. Section 493.6118(1)(c), Florida Statutes, authorizes, but does not require, the Department to deny licensure to an applicant who has been convicted of a crime that directly relates to the business for which the license is held. The evidence is uncontroverted that the misdemeanors for which Petitioner was

    convicted do not relate to the business for which Petitioner seeks licensure. Accordingly, there is no factual basis for denying licensure to Petitioner on the ground that his conviction directly relates to the license.

14. The Department relies solely on case law to support its denial on the basis that the conviction is directly related. Yet, none of the cases cited by the Department involved licenses which are issued by the Department; they involve other occupations and professions. Further, the Department's argument incorporates facts underlying the misdemeanors of which Petitioner was convicted, which facts were neither stipulated to nor tried by the parties in this proceeding. Accordingly, there is no legal basis for denying licensure to Petitioner on the ground that his conviction directly relates to the license.

15. Section 493.6118(3), Florida Statutes, authorizes, but does not require, the Department to deny an application for licensure for lack of good moral character only if such a finding is supported by clear and convincing evidence. The Department's Amended Administrative Denial letter does not allege that Petitioner lacks good moral character; rather, it alleges that Petitioner lacks respect for the rights of others or the laws of this state or nation. There is no such statutory basis for denial of licensure.

16. Even if such a statutory basis for denying licensure existed, the Department offered no evidence to support a finding

    that Petitioner lacks good moral character. On the other hand, Petitioner offered substantial evidence that he respects others and the law and that he is highly-respected by citizens, employers, supervisors, law enforcement personnel and agencies, and other governmental agencies. The only clear and convincing evidence in this cause is that Petitioner has met his burden of proving entitlement to licensure.

17. Lastly, the Department correctly argues that it is entitled to interpret the statutes it administers. However, there is no ambiguity in the statute requiring interpretation, and the Department offered no evidence of any Department rule or policy which might interpret the use of the word "may" in the statute to require denial of licensure.

RECOMMENDATION

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

RECOMMENDED THAT a Final Order be entered granting Petitioner's application and issuing to him a Class "C" Private Investigator license, a Class "D" Security Officer license, and a Class "G" Statewide Firearm license.

DONE AND ENTERED this 31st day of July, 1997, at Tallahassee, Leon County, Florida.

LINDA M. RIGOT

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1997.

COPIES FURNISHED:

C. Michael Cornely, Esquire Hartman and Cornely, P.A.

10680 Northwest 25 Street, Suite 200

Miami, Florida 33172

Kristi Reid Bronson, Esquire Department of State

Division of Licensing

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

Honorable Sandra B. Mortham Secretary of State

The Capitol

Tallahassee, Florida 32399-0250

Don Bell, General Counsel Department of State

The Capitol, Plaza 2 Tallahassee, Florida 32399-0250

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 95-000822

Orders for Case No: 95-000822