STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GEORGE S. BARNES, )

)

Petitioner, )

)

vs. ) CASE NO. 96-3178S

) DEPARTMENT OF STATE, DIVISION OF ) LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

On October 23, 1996, a formal administrative hearing was held in this case in St. Petersburg, Florida, before Richard Hixson, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ted J. Starr, Esquire

Post Office Box 12827

St. Petersburg, Florida 33733

For Respondent: Michelle Guy, Esquire

Department of State, Division of Licensing The Capitol, Mail Station No. 4 Tallahassee, Florida 32399-0250

STATEMENT OF THE ISSUE

Whether Petitioner is entitled to licensure as a Class "D" Security Officer.

PRELIMINARY STATEMENT

On May 22, 1996, Petitioner's application for licensure as a Class "D" Security Officer was denied by Respondent on the following grounds: 1) fraud or willful misrepresentation in applying for licensure under Section 493.6118(1)(a), Florida Statutes; 2) conviction of crimes directly related to the business for which licensure is sought under Section 493.6118(1)(c), Florida Statutes; 3) commission of an act of violence or use of force on another person under Section 493.6118(1)(j), Florida Statutes; and, 4) lack of respect for the laws of the state or the nation under Section 493.6118(3), Florida Statutes.

Specifically at issue are Petitioner's convictions for misdemeanor possession of marijuana on February 15, 1988, misdemeanor battery on December 30, 1994, and a second misdemeanor battery on February 7, 1995.

Petitioner timely challenged Respondent's notice of its intention to deny his application for licensure. On July 1, 1996, the matter was referred to the Division of Administrative Hearings, and this proceeding followed.

At formal hearing Petitioner testified in his own behalf. The parties presented five joint exhibits which were received in evidence. Respondent presented no witnesses, but presented one additional exhibit which was received in evidence.

A transcript of the proceedings was filed on November 6, 1996. Respondent filed a Proposed Recommended Order on November 21, 1996.

FINDINGS OF FACT

1. On December 11, 1995, Petitioner, GEORGE S. BARNES, filed an application for licensure as a Class "D" Security Officer with Respondent, DEPARTMENT OF STATE, DIVISION OF LICENSING. Petitioner has been employed in the security business since 1988. Petitioner is also an ordained minister and works with Earth Mission, Inc., a community organization assisting troubled juveniles. Petitioner currently resides in St. Petersburg, Florida. Petitioner's application was filed with the Respondent's Tampa Regional Office.

   
   

2. Respondent, DEPARTMENT OF STATE, DIVISION OF LICENSING, is the agency of the State of Florida having statutory authority for the administration of Chapter 493, Florida Statutes, including the licensure of Class "D" Security Officers.

   
   

3. Petitioner's application reflected that in October of 1993, Petitioner had previously been issued a license as a Security Officer in the State of Florida. The application stated that Petitioner was employed by Weisser Security beginning in 1993. Petitioner's application further reflected that Petitioner had been convicted of possession of marijuana in 1987 in Pinellas County, that Petitioner had been convicted of battery in 1994 in Pinellas County, and that Petitioner was currently on probation. Petitioner signed the application affirming that the information contained in the application was true and correct to the best of his knowledge. Petitioner's signature was notarized by Cyndi Lynn Cutchall, a Notary Public of the State of Florida, Commission No. CC511419.

   
   

4. Petitioner has a criminal record evidencing three misdemeanor convictions.

   
   

5. On February 15, 1988 Petitioner pled nolo contendere and was adjudicated guilty of misdemeanor possession of marijuana. Case No. CTC 87- 27269, County Court, Pinellas County, Florida. Petitioner was ordered to pay a

   $250 fine.

   
   

6. On May 25, 1995, Petitioner pled nolo contendere and was adjudicated guilty of misdemeanor battery. Case No. 94-33011MMF, County Court, Pinellas County, Florida. Petitioner was placed on probation for one year, ordered to participate in the Family Violence Program, pay a fine of $150, and to have no contact with the victim, or with his step-daughter Starleetha Williams.

   
   

7. On December 6, 1995, Petitioner pled nolo contendere and was adjudicated guilty of misdemeanor battery. Case No. CRC-95-021199CFANO-K, County Court, Pinellas County, Florida. Petitioner was placed on probation for one year, ordered to undergo mental health counseling, successfully complete all treatment, and to have no further contact with his step-daughter, Starleetha Williams.

8. Petitioner was at the time of the filing of his application for licensure, and is currently, on probation.

   
   

9. On December 11, 1995, Petitioner went to Tampa, Florida for the purpose of filing an application for licensure as a security officer with Respondent. Petitioner had obtained a computer printout of his criminal record from Pinellas County. The computer printout reflected his prior convictions for possession of marijuana and his first conviction for misdemeanor battery. The printout did not at that time reflect Petitioner's second conviction for misdemeanor battery which had occurred only five days earlier on December 6, 1995. Petitioner sought the assistance of Cyndi Lynn Cutchall in completing the application. The record indicates that Cyndi Lynn Cutchall was a Notary Public in the State of Florida. Petitioner assumed that Ms. Cutchall, who was located in the state office building, was employed by the Respondent; however, Ms. Cutchall was not called as a witness, and there is no evidence indicating that she was an employee of Respondent.

   
   

10. Petitioner partially completed the application himself; however Section V of the application was completed by Ms. Cutchall. Section V indicates that Petitioner was convicted of possession of marijuana in 1987, and battery in 1994. Petitioner testified that he informed Ms. Cutchall of his second conviction for battery, but that she instructed him that because his second battery conviction was not yet on the computer printout, it was not necessary to include the second battery conviction on his application. Petitioner knew that his application was inaccurate, but nonetheless signed his application affirming the truth and correctness of the information contained therein. Ms. Cutchall notarized Petitioner's signature.

    
    

11. Petitioner's misdemeanor conviction for possession of marijuana occurred in 1988. This conviction resulted from an incident in which Petitioner was stopped while driving a relative's car in which a marijuana cigarette was discovered. Petitioner paid the fine imposed by the court. It appears that Petitioner obtained a license as a security officer in October 1993, subsequent to this offense.

    
    

12. Petitioner's two convictions for misdemeanor battery in 1995 arose from family problems. The first incident resulted from a domestic dispute between Petitioner and his wife in which his wife slipped and fell on their kitchen floor during the dispute. The second incident initially involved very serious felony child sexual abuse charges; however, during Petitioner's trial, the charges were reduced to misdemeanor battery to which Petitioner pled nolo contendere. Petitioner denies both battery charges, and specifically denies any inappropriate contact with the child in question.

    
    

13. Petitioner and his wife are currently separated, and Petitioner has no contact with the child involved in the second battery case.

    
    

14. Although it appears that Petitioner may have had previous contact with the victim of the second battery, it now appears that Petitioner is complying with the terms of his probation in accordance with the order of the court.

    There is no evidence that Petitioner's probation was ever revoked for a violation.

    
    

15. Petitioner is not employed as a security officer, pending resolution of these proceedings.

    CONCLUSIONS OF LAW

    
    

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

    
    

17. Petitioner has the burden of proving by a preponderance of the evidence that he is entitled to the license 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); Department of Banking and Finance v. Osborne Stern and Co., 670 So.2d 932 (Fla. 1996).

    
    

18. Section 493.6118, Florida Statutes, provides in pertinent part:

    
    

    1. The following constitute grounds for which disciplinary action specified in subsection (2) may be taken by the department against any licensee, agency, or applicant regulated by this chapter, or any unlicensed person engaged in activities regulated under this chapter.

       1. Fraud or willful misrepresentation in applying for or obtaining a license.

          * * *

          (c) Conviction of a crime that directly relates to the business for which the license is held or sought, regardless of whether imposition of sentence was suspended. A conviction based on a plea of nolo contendere creates a rebuttable presumption of guilt to the underlying criminal charges, and the department shall allow the individual being disciplined or denied an application for a license to present any mitigating evidence relevant to the reason for, and the circumstances surrounding, his plea.

          * * *

          (j) Commission of an act of violence or the use of force on any person except in the lawful protection of one's self or another from physical harm.

          (3) The department may deny an application for licensure citing lack of good moral character only if the finding by the depart- ment of lack of good moral character is supported by clear and convincing evidence. In such cases, the department shall furnish the applicant 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.

          
          

19. When the Respondent finds that an applicant for licensure has violated any subsection of Section 493.6118(1), Florida Statutes, Respondent has the

    discretionary authority to take appropriate disciplinary action, including denial of licensure pursuant to Section 493.6118(2), Florida Statutes.

    
    

20. The evidence establishes that Petitioner violated the provisions of Section 493.6118(1)(a), Florida Statutes, in that at the time of Petitioner's application for licensure on December 11, 1995, Petitioner was aware of his second conviction for misdemeanor battery which occurred December 6, 1995, but Petitioner nonetheless did not list this conviction on his application. Moreover, Petitioner signed the application affirming the truth and correctness of the information contained therein when, in fact, he knew such attestation was a misrepresentation of the information on his application. Even assuming Petitioner relied on the direction of the notary public, Ms. Cutchall, Petitioner, by his own testimony at hearing, stated that he knew the information he was reporting was incorrect, and that he believed that the Respondent would eventually learn of the second conviction. Petitioner also testified that he was hesitant to follow Ms. Cutchall's suggestion that "they (Respondent) don't know anything about it," and "...just find out whether they (Respondent) learn about it." Under these circumstances, the evidence establishes that Petitioner made a willful misrepresentation in applying for licensure as a security officer.

    
    

21. Pursuant to Section 493.6118(1)(c), Florida Statutes, Petitioner presented his own mitigating testimony relating to the reasons for, and the circumstances of, his prior misdemeanor convictions. Petitioner's misdemeanor conviction for possession of marijuana is remote in time, and there is no evidence establishing that this conviction directly relates to the license which he seeks.

    
    

22. Petitioner's convictions for misdemeanor battery, however, involve the use of force on another person. Moreover, Respondent has previously adopted the legal conclusions of another Administrative Law Judge and determined that battery constitutes a crime that directly relates to licensure as a security officer. Ballard v. Department of State, Division of Licensing, case No. D95- 15008 (November 7, 1996). An agency's construction of the statute it administers is entitled to great weight. Pan American World Airways, Inc. v. Public Service Commission, 427 So.2d 716 (Fla. 1983).

    
    

23. Although Petitioner has three misdemeanor convictions, Petitioner is an ordained minister, works in a charitable community organization, and appears to now be in compliance with the terms of his probation. Section 493.6118(3), Florida Statutes, provides that a finding of lack of good moral character be supported by clear and convincing evidence. "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 allegation sought to be established. Slomowitz v. Walker, 429 So.2d 797 (Fla. 4th DCA 1983). The evidence presented fails to meet this standard with regard to establishing a violation of Section 493.6118(3), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent enter a final order denying Petitioner's application for licensure as a Class "D" Security Officer with leave for Petitioner to reapply for licensure upon successful completion of Petitioner's current probation.

RECOMMENDED this 11th day of December, 1996, in Tallahassee, Florida.

RICHARD HIXSON

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 11th day of December, 1996.

COPIES FURNISHED:

Ted J. Starr, Esquire Post Office Box 12827

St. Petersburg, Florida 33733

Michelle Guy, Esquire

Department of State, Division of Licensing The Capitol, Mail Station No. 4 Tallahassee, Florida 32399-0250

Honorable Sandra B. Wortham Secretary of State

The Capitol

Tallahassee, Florida 32399-0250

Don Bell, 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 within fifteen (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: 96-003178

Orders for Case No: 96-003178