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smoking357
Banned
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Posted: Thu Apr 23rd, 2009 07:33 pm |
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acrimsontide wrote: I will agree to answer your questions when you actually do the "default walk" as you call it in a location where it matters,
...to whom?
I bear arms for my benefit, not yours.
Last edited on Thu Apr 23rd, 2009 07:34 pm by smoking357
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acrimsontide
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Posted: Thu Apr 23rd, 2009 07:56 pm |
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smoking357 wrote:
I bear arms for my benefit, not yours.
Well, I have to admit, that's the first think that you have posted that I agree with.
Having said that, the same applies for the rest of us and just because we don't do things your way does not make us anti gun or un American.
Last edited on Thu Apr 23rd, 2009 07:57 pm by acrimsontide
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Gunslinger
Regular Member
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Posted: Thu Apr 23rd, 2009 08:38 pm |
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smoking357 wrote: Gunslinger wrote: You seem to have a hard time separating wishful thinking from legality.
When you pass a few more college classes, you'll learn that what the cops think is far from necessarily being the law.
You Liberals are so disappointing. From what low ranks do you hail that you
seek validation from the government? What socialistic place has formed you into a person who asks the government's permission prior to action and seeks the state's approval for your conduct? Pro-authoritariansim and anti-individual is as Leftists as it gets.
Your worldview is anathema to Americanism. Stop being a Commie.
Anyway, good thing I'm "official" after issuing myself my license.
I've "passed" enough college courses to have a JD. You need to seek professional help. Statutory laws aren't "validation from the government." Act anyway you like. Then get 'invalidated' into the joint. As I and others have said, show you're not a complete BS troll and go up to a cop and show him your block printed, self issued "license" and concealed weapon. Then when mommy comes to bail you out, let us know how it worked for you.
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acrimsontide
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Posted: Thu Apr 23rd, 2009 08:45 pm |
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Gunslinger wrote: smoking357 wrote: Gunslinger wrote: You seem to have a hard time separating wishful thinking from legality.
When you pass a few more college classes, you'll learn that what the cops think is far from necessarily being the law.
You Liberals are so disappointing. From what low ranks do you hail that you
seek validation from the government? What socialistic place has formed you into a person who asks the government's permission prior to action and seeks the state's approval for your conduct? Pro-authoritariansim and anti-individual is as Leftists as it gets.
Your worldview is anathema to Americanism. Stop being a Commie.
Anyway, good thing I'm "official" after issuing myself my license.
I've "passed" enough college courses to have a JD. You need to seek professional help. Statutory laws aren't "validation from the government." Act anyway you like. Then get 'invalidated' into the joint. As I and others have said, show you're not a complete BS troll and go up to a cop and show him your block printed, self issued "license" and concealed weapon. Then when mommy comes to bail you out, let us know how it worked for you.
His mommy might not get him out, she might let him stay so he can get an education and meet new "friends". 
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smoking357
Banned
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Posted: Thu Apr 23rd, 2009 08:56 pm |
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Gunslinger wrote: Statutory laws aren't "validation from the government."
OH.
MY.
GOD.
Dude, do you realize what you just said? Do you realize the implications of that statement?
Just what is the law, if not the law?
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fridaddy
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Posted: Fri Apr 24th, 2009 01:27 am |
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OneInThePipe wrote: fridaddy wrote: Sorry Glock you and whoever you talked to at DOACS is wrong. If you are entitled to a default license, of any type, under 120.60, you only need proof of notification to the agency. You do not have to wait for them to send you anything.
Fla. Stat. 120.60 is part of the Florida Administrative Procedures Act. While it applies to developers, it is not about developers. The Act is designed to prevent the bureaucracy from sitting on permit applications. It applies to all administrative agencies in the state regardless of subject matter. Once you send the default notice, it is the departments obligation to move to cancel the permit by a hearing before an agency hearing officer.
As for the requests to Smoking to put his actions where his beliefs are, I think you are all reacting to his charming manner. If any of you here really trust the police to know and follow the law you are living in fantasy land.
As you can read in another thread
http://opencarry.mywowbb.com/forum17/20492-2.html
I put my action where my mouth was, and I am doing it again this weekend by OC'ing on a camping trip. Before taking the action, I took steps to educate the local LEO's. Of 4 different LEOs I talked to, only 1 was aware of the law until I showed it to them. I also surprised 3 different Judges when I pointed out the statute to them.
Let me tell you, I really had to educate! During the process I learned that the abbreviated statute book given to Florida Fish and Wildlife Officers does not even include the complete version of Chapter 790, firearms crimes. Specifically, it omits 790.25 which says you can carry openly when hunting, fishing or camping. This is the State issued book for Fish and wildlife LEOs.
If the state is giving LEOs incomplete books to refer to when making an arrest would you trust them to know the law?
Yes Smoking will get arrested when he is caught, but that doesn't mean he is wrong. It just means the cops do not know the law. I wouldn't walk up to a LEO either to be arrested wrongfully. If they knew the law and followed it, I would be out of a job and we would not need a criminal court system.
Smoking, I really wish you could discuss these matters without losing your cool. I will probably get flamed for agreeing with your position not because I am wrong but because of your attitude. Until you can discuss these matters in a calm manner you are doing as much harm as those you accuse of not being strong on the 2nd amendment. Please spend more time educating and less agitating. Your initial posts was great and led to a potentially great discussion that instead became completely worthless.
THIS POST IS FOR THE DISCUSSION OF LEGAL ISSUES AND IS NOT LEGAL ADVICE. NO ATTORNEY CLIENT RELATIONSHIP IS INTENDED OR IMPLIED.
Doesn't that just mean that they will have to issue you a license by default? Meaning they are forced to issue it.
Doesn't it man that you still have to have them send it to you before you are legal?
I see nothing that gives you a "default right" to CC without having the license from the state. Nor does it allow you to print up your own CC license because they defaulted.
I'll read the OC carry thread you referenced. That is a slightly different topic that what we have been discussing but it does show the lack of knowledge of the law that some LEOs and state officials have.
The reference to the other thread was and attempt to prove my cred. I regularly advise clients of the option to default carry and explain the risk.
The state waives the right to require you to have a license on your person under 790.06 when they fail to follow the APA, 120.60. I would argue that you do have to carry proof of your default notice on you. Any arrest would be unlawful.
The APA is specifically designed to keep an administrativve agency from sitting on an application for anything, thereby denying you your right, whether to carry or to engage in a licensed ocupation, contractor, electrician, whatever. If they want to remove your license after a default they could issue an injunction and set your case for hearing before an administrative judge, which would invalidate your default license until a hearing.
THIS POST IS FOR DISCUSSION OF LEGAL ISSUES AND IS NOT LEGAL ADVICE. NO ATTORNEY CLIENT RELATIONSHIP IS INTENDED OR IMPLIED.
Last edited on Fri Apr 24th, 2009 01:28 am by fridaddy
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fridaddy
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Posted: Fri Apr 24th, 2009 01:41 am |
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JeepSeller wrote: fridaddy wrote: Sorry Glock you and whoever you talked to at DOACS is wrong. If you are entitled to a default license, of any type, under 120.60, you only need proof of notification to the agency. You do not have to wait for them to send you anything.
Fla. Stat. 120.60 is part of the Florida Administrative Procedures Act. While it applies to developers, it is not about developers. The Act is designed to prevent the bureaucracy from sitting on permit applications. It applies to all administrative agencies in the state regardless of subject matter. Once you send the default notice, it is the departments obligation to move to cancel the permit by a hearing before an agency hearing officer....
Now, finally, an actual logical INTELLIGENT way to have a discussion or debate. Now, I'm afraid I still have to disagree with you fridaddy, but, I'm guessing anyway, that you have the ability to either continue to try to convince me civilly, or to just accept that we don't agree. Something your counterpart there obviously doesn't have. He finally admits that his goals are to inflame. Sad waste of energy in my opinion. He's not serious about his gun rights. Sad. But, he does admit to having a problem and admitting one has a problem is usually the hardest step. I applaud him for his progress.
Now, to your post.
First of all, I don't disagree with points made before. I agree that we shouldn't have to ask permission to carry at all. But, currently, the laws of this state require I do. Just because I disagree with it, doesn't mean I can violate that law. Right? We should be working this hard to change the laws, not debating any action that could be construed as violating them. Right or wrong. It's just not good for our causes. It reflects poorly on our way of life.
I don't disagree with your post in the sense that the law, as I understand it, is that if the license isn't issued within the prescribed time period, currently 90 days, then you have the right to request a hearing on the subject forcing the state to either approve or deny at said hearing and back up their decision.
But, I still see nowhere, again, as I understand it, that gives you the right to simply strap on your hog leg at the 91 day point simply because you fired off a letter. As your counterpart has pointed out many times, perhaps the cops can't just make up laws, but, neither can we. We have a system in place for that. Good or bad, that's how it is. Violating that system or trying to circumvent it won't help things at all.
There are other laws, that have been stated here, that also require a licensed person to have that license on them at all times while exercising that licensed action. A licensed contractor is required to have on their person that license at all times when working in the performance of a contractor. If not, they are in violation of the law. A licensed driver is required to have that card with them at all times. A Private Investigator is required to have it at all times...etc...etc.. One is in violation of the law if any different. And yes, I know.... let's not split hairs here on semantics of rights vs. privileges, all of here know that road well. Currently, the state of Florida requires us to get permission to exercise our right. Right or wrong, That's the law. Just because it's wrong or we don't agree with it doesn't give us the right to just ignore it. That's not cowtoeing to anyone! That's protecting my right to keep and bear by remaining a law abiding citizen. That's being a good citizen and working within the law to exact change, not work against it.
I'm also afraid I don't share either of your disdain for LEO's and the judges. While, yes, some are rotten apples. To lump then all into one bad basked is just wrong and there's no excusing it, and it's just another form of bigotry.
Jeep, it is not a matter of disdain, it is a matter of their are entirely too many laws and they can't know them all. The disdain was the stupidity of the state/ LEO administration printing such an incomplete book for the LEOs to do their jobs with. Some of the judges are personal friends and are excellent lawyers.
There is no provision in the APA for requesting a hearing. The default action is to force the agency to take action not you. There is a provision at common law for a writ of mandamus, but the APA is designed to short circuit that and force the agency's hand. Have you read 120.60 yet. If not, I think it might answer some of your questions. It applies to give coontractors or PIs their license as well when thhe agency fails to act.
I am not arguing the right or wrong of the law, only what the law is and holding the agencies to what the legislature has ordered them to do.
NOT LEGAL ADVICE, DISCUSSION ONLY, I AM NOT YOUR LAWYER
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OneInThePipe
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Posted: Fri Apr 24th, 2009 01:45 am |
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fridaddy wrote: OneInThePipe wrote: fridaddy wrote: Sorry Glock you and whoever you talked to at DOACS is wrong. If you are entitled to a default license, of any type, under 120.60, you only need proof of notification to the agency. You do not have to wait for them to send you anything.
Fla. Stat. 120.60 is part of the Florida Administrative Procedures Act. While it applies to developers, it is not about developers. The Act is designed to prevent the bureaucracy from sitting on permit applications. It applies to all administrative agencies in the state regardless of subject matter. Once you send the default notice, it is the departments obligation to move to cancel the permit by a hearing before an agency hearing officer.
As for the requests to Smoking to put his actions where his beliefs are, I think you are all reacting to his charming manner. If any of you here really trust the police to know and follow the law you are living in fantasy land.
As you can read in another thread
http://opencarry.mywowbb.com/forum17/20492-2.html
I put my action where my mouth was, and I am doing it again this weekend by OC'ing on a camping trip. Before taking the action, I took steps to educate the local LEO's. Of 4 different LEOs I talked to, only 1 was aware of the law until I showed it to them. I also surprised 3 different Judges when I pointed out the statute to them.
Let me tell you, I really had to educate! During the process I learned that the abbreviated statute book given to Florida Fish and Wildlife Officers does not even include the complete version of Chapter 790, firearms crimes. Specifically, it omits 790.25 which says you can carry openly when hunting, fishing or camping. This is the State issued book for Fish and wildlife LEOs.
If the state is giving LEOs incomplete books to refer to when making an arrest would you trust them to know the law?
Yes Smoking will get arrested when he is caught, but that doesn't mean he is wrong. It just means the cops do not know the law. I wouldn't walk up to a LEO either to be arrested wrongfully. If they knew the law and followed it, I would be out of a job and we would not need a criminal court system.
Smoking, I really wish you could discuss these matters without losing your cool. I will probably get flamed for agreeing with your position not because I am wrong but because of your attitude. Until you can discuss these matters in a calm manner you are doing as much harm as those you accuse of not being strong on the 2nd amendment. Please spend more time educating and less agitating. Your initial posts was great and led to a potentially great discussion that instead became completely worthless.
THIS POST IS FOR THE DISCUSSION OF LEGAL ISSUES AND IS NOT LEGAL ADVICE. NO ATTORNEY CLIENT RELATIONSHIP IS INTENDED OR IMPLIED.
Doesn't that just mean that they will have to issue you a license by default? Meaning they are forced to issue it.
Doesn't it man that you still have to have them send it to you before you are legal?
I see nothing that gives you a "default right" to CC without having the license from the state. Nor does it allow you to print up your own CC license because they defaulted.
I'll read the OC carry thread you referenced. That is a slightly different topic that what we have been discussing but it does show the lack of knowledge of the law that some LEOs and state officials have.
The reference to the other thread was and attempt to prove my cred. I regularly advise clients of the option to default carry and explain the risk.
The state waives the right to require you to have a license on your person under 790.06 when they fail to follow the APA, 120.60. I would argue that you do have to carry proof of your default notice on you. Any arrest would be unlawful.
The APA is specifically designed to keep an administrativve agency from sitting on an application for anything, thereby denying you your right, whether to carry or to engage in a licensed ocupation, contractor, electrician, whatever. If they want to remove your license after a default they could issue an injunction and set your case for hearing before an administrative judge, which would invalidate your default license until a hearing.
THIS POST IS FOR DISCUSSION OF LEGAL ISSUES AND IS NOT LEGAL ADVICE. NO ATTORNEY CLIENT RELATIONSHIP IS INTENDED OR IMPLIED.
Thanks for the well reasoned out reply. It is refreshing compared to some of the other rhetoric being thrown around on this thread.
Has anyone made a test case out of the default license? Any precedents?
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JeepSeller
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Posted: Fri Apr 24th, 2009 02:51 am |
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Again, fridaddy, the logical, unemotional presentation is refreshing and what's required.
I'm not disputing that the law, as written, may possibly allow for an applicant to push for a default ruling and liscense after a given time. What I've questioned and desputed all along, is the practice, or even the proposed practice of simply strapping on your concealed weapon on day 91 and "issuing yourself' a permit or even carrying concealed without that permit on your person. It's still my feeling that you are not approved by the State to carry without it.
First of all, I have read the statutes. And to begin with, what junior here has ignored from day one and failed to mention in regards to "issuing himself a permit" is that 120.60 also states... "Any applicant for licensure seeking to claim licensure by default under this subsection shall notify the agency clerk of the licensing agency, in writing, of the intent to rely upon the default license provision of this subsection, and shall not take any action based upon the default license until after receipt of such notice by the agency clerk.." Meaning, by my read, one cannot just strap on their weapon of choice and walk around their neighborhood simply because it's day 91. There's still a bureaucratic process, like it or not.
What I see here is, maybe the possibility of a simple black hole in the state laws because I do not see or read anywhere that 120.60 trumps 790.06. In fact I don't see how the two can get along at all. 790.06 states very clearly.."The licensee must carry the license, together with valid identification, at all times in which the licensee is in actual possession of a concealed weapon or firearm and must display both the license and proper identification upon demand by a law enforcement officer" No where does it state "Unless operating on a "default" license" And no where in 120.60 does it state "A default license is exempt from 790.06.
So, again, based on MY read of it, while there may be a provision in the law to push for a default approval of a application, one is still required to abide by the provisions of 790.06, meaning, even if there is a provision in 120.60 for any kind of "default" action on teh part of the applicant, he or she will still have to wait for the actual PERMIT to be legal thus proving our contention that Junior's "default walk" is in violation of the law and should not be promoted, endorsed, and is dangerous to our second amendment rights as every time some goof ball screws around and gets caught doing something stupid with a firearm, with THIS administration and THIS media? We all lose in the end and it's our duty to protect that right at all costs, even if it means waiting those stupid extra few days to get our permit.
Last edited on Fri Apr 24th, 2009 02:52 am by JeepSeller
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smoking357
Banned
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Posted: Fri Apr 24th, 2009 12:27 pm |
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JeepSeller wrote: Again, fridaddy, the logical, unemotional presentation is refreshing and what's required.
(1) I'm not disputing that the law, as written, may possibly allow for an applicant to push for a default ruling and liscense after a given time. What I've questioned and desputed all along, is the practice, or even the proposed practice of simply strapping on your concealed weapon on day 91 and "issuing yourself' a permit or even carrying concealed without that permit on your person. It's still my feeling that you are not approved by the State to carry without it.
(2) First of all, I have read the statutes. And to begin with, what junior here has ignored from day one and failed to mention in regards to "issuing himself a permit" is that 120.60 also states... "Any applicant for licensure seeking to claim licensure by default under this subsection shall notify the agency clerk of the licensing agency, in writing, of the intent to rely upon the default license provision of this subsection, and shall not take any action based upon the default license until after receipt of such notice by the agency clerk.." Meaning, by my read, one cannot just strap on their weapon of choice and walk around their neighborhood simply because it's day 91. There's still a bureaucratic process, like it or not.
(3) What I see here is, maybe the possibility of a simple black hole in the state laws because I do not see or read anywhere that 120.60 trumps 790.06. In fact I don't see how the two can get along at all. 790.06 states very clearly.."The licensee must carry the license, together with valid identification, at all times in which the licensee is in actual possession of a concealed weapon or firearm and must display both the license and proper identification upon demand by a law enforcement officer" No where does it state "Unless operating on a "default" license" And no where in 120.60 does it state "A default license is exempt from 790.06.
(4) So, again, based on MY read of it, while there may be a provision in the law to push for a default approval of a application, one is still required to abide by the provisions of 790.06, meaning, even if there is a provision in 120.60 for any kind of "default" action on teh part of the applicant, he or she will still have to wait for the actual PERMIT to be legal thus proving our contention that Junior's "default walk" is in violation of the law and should not be promoted, endorsed, and is dangerous to our second amendment rights as every time some goof ball screws around and gets caught doing something stupid with a firearm, with THIS administration and THIS media? We all lose in the end and it's our duty to protect that right at all costs, even if it means waiting those stupid extra few days to get our permit.
(1) You still don't get it. There is no "default ruling." Default occurs in complete absence of any ruling. If you don't feel that this statute provides pocket approval, that speaks to your worldview and political philosophy, not the law.
(2) The agency WAS NOTIFIED, and I have the FedEx tracking number to prove it. I keep it with me when I default walk, along with the other papers that evidence that the default is official. Review the first post in this thread. The notification perfects the default. It's done. Official.
(3) I've already explained the canons of statutory interpretation. Review earlier posts in this thread. The only way the two statutes can be harmonized is to presume that the State issues licenses in due course, and upon such issue, the State document must be carried to ease record-keeping verification by police officers. All the other licenses that can be defaulted also have a requirement in their enabling statutes requiring that the state document be kept about the person of the applicant, yet courts see no tension, and no State attorney would even dare to raise the issue of the documentary requirement, because it is so obviously inapposite.
You absolutely must start reading what is provided. It's polemically impolite to ignore the other person's statements and then claim that the statements were never made. Such tactics are propaganda, not argument.
(4) One does not "push" for default approval. One Is default approved by taking the necessary steps under the statute. I've done them. I'm official, and I'm default walkin'.
Let's be honest about this: you don't like the default walk because it doesn't comport with your ranking of the individual in juxtaposition to the state. You're of the authoritarian "ask permission first" political bent, while I'm of the "all things are legal until made illegal" bent. People like you occasionally say things such as "people can't just do what they want." You probably didn't vote for Ron Paul.
It's now time for you to change your mind. Please don't post, again, until you have a compelling citation or you're apologizing.
Last edited on Fri Apr 24th, 2009 12:31 pm by smoking357
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smoking357
Banned
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Posted: Fri Apr 24th, 2009 02:21 pm |
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Henry,
Your letter inquires into matters not of public record, and I will defend my rights if you come anywhere near violating my privacy, which it appears you are doing or have done.
Further, I am not encouraging anyone to carry in any particular fashion.
Additionally, your letter is false as a matter of fact, since I refuse to post to your forum, so I have not said that I am carrying in any fashion in your forum.
It is good that you are issuing such a letter, but redraft your letter in the abstract, and redact all personal references that are overt or stated by implication and innuendo.
Further, you people need to get your mind around the law. An agency does not issue default licenses. The people issue their own default licenses.
You should, however, bear in mind that the Attorney General's Opinions bind state agencies. The AG has already spoken on this matter in AGO 077-41. Be sure to remind DOACS that there is a dispositive AG opinion on file. I have posted it below for your reference (emphasis added).
Fridaddy, take note of the substantive due process rights conferred by default licenses.
Number: AGO 77-41
Date: May 2, 1977
Subject: Waiver of time limits by licensee
Joseph W. Landers, Jr.
Secretary
Department of Environmental Regulation
Tallahassee
QUESTION:
Are the 30-day or 90-day time limits in subsection 120.60(2), F. S. (s. 10, Ch. 76-131, Laws of Florida), subject to waive by an applicant for a license?
SUMMARY:
The 90-day time limitation prescribed by s. 120.60(2), F. S. (s. 10, Ch. 76-131, Laws of Florida), for the approval or denial of license applicants is subject to waiver by the applicant for an environmental license. However, the 30-day time limitation and 30-day period cannot be waived by the applicant or the licensing agency.
You state that the staff of the Joint Legislative Committee on Administrative Procedure has suggested that these time limits are jurisdictional limitations on an agency and thus cannot be waived by the licensee. You suggest that these time limits establish certain rights for the benefit of license applicants to ensure an expeditious decision by the regulatory agencies and, therefore, may be waived by the applicant. Further, an applicant may find such waiver advantageous in a case involving a project where the licensing agency determines that the project cannot comply with applicable standards and the applicant desires to discuss any modifications with the licensing agency in order to avoid a denial of the application. You state that in complex cases there might not be enough of the 90-day time period left for the applicant and the licensing agency to discuss and evaluate possible modifications of the proposed project.
Section 120.60(2), F. S. 1975, provided that: When an application for a license is made as required by law, the agency shall conduct the proceedings required with reasonable dispatch and with due regard to the rights and privileges of all parties or aggrieved persons. . . . (Emphasis supplied.)
This provision, which operated on the agencies subject to s. 120.60, F. S., contained no specific time limitations for agency action and instead only required that proceedings be conducted with 'reasonable dispatch.' In 1976, the Legislature significantly amended s. 120.60(2), F. S., by s. 10, Ch. 76-131, Laws of Florida, and imposed the following specific limitations upon licensing agencies subject to the requirements contained therein: . . . Within 30 days after receipt of an application for a license the agency shall examine the application, notify the applicant of any apparent errors or omissions and request any additional information the agency is permitted by law to require. Failure to correct an error or omission or to supply additional information shall not be grounds for denial of the license unless the agency timely notified the applicant within this 30 day period. The agency shall notify the applicant if the activity for which he seeks a license is exempt from the licensing requirement and return any tendered application fee within 30 days after receipt of the original application or within 10 days after receipt of additional timely requested information, correction of errors or omissions. Every application for license shall be approved or denied within 90 days after receipt of the original application or receipt of the additional timely requested information, correction of errors or omissions. Any application for license not approved or denied within the 90 day period or within 15 days after conclusion of a public hearing held on the application, whichever is latest, shall be deemed approved and, subject to the satisfactory completion of an examination if required as a prerequisite to licensure, shall be issued. (Emphasis supplied.)
The effect of s. 10, Ch. 76-131, Laws of Florida, is to require the licensing agency to do certain things and to make certain decisions by a time certain. The law deems or considers the failure to so act the equivalent of an approval of the application and requires the issuance of the license forthwith. Section 10, Ch. 76-131, does not repose or vest any discretion in the licensing agency with respect to the issuance of the license in the statutorily specified circumstances.
An examination of s. 120.60(2), F. S., as amended by s. 10, Ch. 76-131, Laws of Florida, reveals that the 90-day time limitations contained therein are directed against the licensing agency and in favor of and for the benefit of the applicant for the license. However, s. 120.63, F. S., as amended, permits licensing agencies to avoid the requirements of s. 120.60(2) by applying to the Administration Commission for an exemption as provided for at s. 120.63. However, each exemption granted by the commission shall be for a single application only and shall not be renewable. Section 120.60(6), F. S. (1976 Supp.).
The obvious legislative intent in rewording s. 120.60(2), F. S., to impose additional requirements and time limitations associated therewith upon licensing agencies was to ensure that said agencies acted in a prescribed manner upon applications for licenses within specified time limitations or their authority to deny the license, subject to the designated exception with respect to the satisfactory completion of any required examination for licensing, would be foreclosed and, upon the agency's failure to so act, to require the license to be issued forthwith. This is apparent from the title of Ch. 76-131, Laws of Florida, which states in pertinent part: . . . amending s. 120.60(2), F. S., and adding a subsection; setting limits upon the time permitted an agency to request additional information and to make decisions on license applications; providing for automatic issue of licenses under specified circumstances and limited permissible exceptions. . . . (Emphasis supplied.)
Thus, as to the applicant, the limitations imposed upon the licensing agencies have the effect of also creating a substantive right for the benefit of the license applicant, and as to him the statute is a substantive law. Cf. Johnson v. State, 336 So.2d 93, 95 (Fla. 1976); In re Florida Rules of Criminal Procedure, 272 So.2d 65 (Fla. 1972) (Adkins, J., concurring); AGO 077-10.
However, the precise issue raised by your inquiry is whether the 90-day time limitations contained in s. 120.60(2), F. S., which seek to expedite the rights and privileges of the applicant can be intelligently, freely, and voluntarily waived by a beneficially interested applicant. This, of course, presupposes that no coercion or pressure, direct or indirect, will be placed upon the license applicant by the licensing agency to induce the waiver by the applicant.
The Department of Environmental Regulation issues a variety of environmental permits and licenses, dealing with such matters as pollution of the air and water by stationary installations and weather modification, see ss. 403.061(16), 403.087, 403.088, and 403.301, and regulation, disposal, and recycling of solid wastes, s. 403.707, F. S. Such permits and licenses involve the conduct and operation of commercial and utility businesses, manufacturing, mining, exploration and exploitation of natural resources, and recovery of natural resources. The privilege to develop and use property in order to conduct business or operate commercial and utility facilities involves certain property rights or interests which, while subject to reasonable regulation, may not be totally divested by the state.
The situation which your letter discusses is one in which the environmental licensing agency has the application under consideration during the course of the prescribed 90-day period and has provisionally determined that the project, as proposed in the application, cannot comply with the applicable and lawfully established standards, and, therefore, should be denied by the licensing agency unless modifications are made in the proposed project and the application for licensing thereof. In this circumstance, the waiver of the prescribed 90-day time limitations by the applicant is for the purpose of giving the applicant and the agency time to evaluate modifications to the proposed project and to negotiate and agree upon the requisite modifications so as to avoid a denial of the license or permit which would force the applicant to reapply for the license or permit or seek judicial review of the agency's final denial thereof.
As a general proposition, a person may waive any matter which affects his property or any alienable right which he owns, which belongs to him, or to which he is legally entitled, whether secured by contract, conferred by statute, or guaranteed by the Constitution, provided such rights and privileges rest in the individual, are intended for his sole benefit, to not interfere with the rights of others, and are not forbidden by law or public policy. Gilman v. Butzloff, 22 So.2d 263 (Fla. 1945); 92 C.J.S. Waiver, at 1066-1067.
Since an obvious purpose of s. 120.60(2), as amended, with respect to the 90-day time limitation for the approval or denial of the license application, is to create beneficial rights for the applicant, it would appear that, in conformity with the general rule, such rights can be waived when the applicant intelligently, freely, and voluntarily determines that such waiver is in his best interest. In circumstances such as those outlined by your letter, such waiver would serve the ultimate purpose of the statute, which is to expedite administrative environmental licensing and permitting procedures. A contrary conclusion would frustrate the legislative intent of attempting to more expeditiously and fairly deal with licensing procedures in environmental matters by encouraging denials and reapplications or litigation when certain circumstances are present. The 30-day time limitation, however, does not appear to raise the denial and reapplication problems which could exist under the 90-day time requirements and apparently instead was intended to operate on the agency to either perform certain functions and give certain notices to the applicant within 30 days or be estopped in the future from asserting such matters as grounds for the denial of the license applied for. It is not evident that the waiver of the 30-day requirement would in any way benefit an applicant or further the purposes of the statute. Therefore, the 30-day time limitation or requirement prescribed by s. 120.60(2), F. S. (1976 Supp.), cannot be waived by the applicant for a license or the licensing agency. Accordingly, unless judicially interpreted to the contrary, an applicant for an environmental license may intelligently, freely, and voluntarily and without any pressure or coercion by the licensing agency waive his rights under the 90-day time limitation prescribed by s. 120.60(2). F. S., in order to suspend the operation of the 90-day time limitation prescribed therein.
Prepared by:
Sharyn L. Smith
Assistant Attorney General
Last edited on Fri Apr 24th, 2009 02:29 pm by smoking357
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fridaddy
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Posted: Fri Apr 24th, 2009 02:30 pm |
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Exactly Jeep, once the clerk receives the notice that you are relying on their failure to act, you may take your action. If they want to stop you, they have to get off the pot and get a court order, or institute an administrative revocation proceeding. This is the same thing they would do to revoke your license if you committed a crime that made you ineligible for a CCW.
It didn't really issue himself a CCW, but he sent notice to the DOACS that based on their failure to act he was going to act as if they had issued it. Once he had proof of their reciept he was good to go. There is nothing in the statute requiring him to take action against the agency beyond giving notice of his intent to rely on the default
The part about being required to carry the issued license doesn't apply until they actually send you the license. The state is the state. One part of the state cannot punish you for the failure of another part of the state.
World Bank v. Lewis
425 So.2d 77 In the statute we construe, the legislature has made its intent as to the consequence of a violation abundantly clear: the application “shall be deemed approved ....” Approval by default has the effect of placing the applicants in the same position they would have enjoyed had the Department granted approval on the merits within the 180-day period.
Teacher could not be denied opportunity to pursue master teacher certification on basis that she failed to write her social security number on designated line in her application, where Commissioner of Education failed to notify her of reason for her rejection within 30 days, as required by this section. Lanier v. Turlington, App. 1 Dist., 488 So.2d 612 (1986)
THIS POST IS FOR THE DISCUSSION OF LEGAL ISSUES AND IS NOT LEGAL ADVICE NO ATTORNEY CLIENT RELATIONSHIP IS INTENDED OR IMPLIED.
Last edited on Fri Apr 24th, 2009 02:32 pm by fridaddy
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JeepSeller
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Posted: Fri Apr 24th, 2009 02:40 pm |
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Secondly, I base MY views and points on REAL FACTUAL data. Not what you or anyone else SAYS! Got it? I don't blindly believe everything I'm told, even by an attorney, as I've already established that there is no magical powers they hold that makes even THEM correct at all times.
What is correct and easily referred to, is the actual written law. That's where I base my opinion. I've already cited where I get my information. I copied directly from the statute as listed on line. And, 790.06 clearly states that any one who is carrying a concealed weapon MUST have their credentials on them at all times. There is no disputing this. It's clear as black and white. There is no stipulation in there that says "OH, but, Brian can carry concealed since he defaulted us". A home printed piece of paper saying "default license" isn't going to cut it, and since FedEx isn't an authority to issue licenses in the State of Florida, my guess is that won't either.
And 120.60 does not make any statements making any default issued license that trumps 790.06. It's plain and simple.
It is YOU who now has the burden of citing where you get your information that, and pay attention, this is important, that SPECIFICALLY STATES ANY THING RELATING TO A DEFAULT LICENSE BEING EXEMPT FROM 790.06. I want written statute! Not what my so-and-so said.
Last edited on Sat Apr 25th, 2009 04:23 am by JeepSeller
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smoking357
Banned
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Posted: Fri Apr 24th, 2009 03:04 pm |
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JeepSeller wrote:
First of all, it's been pretty well established that you are a NOBODY when it comes to having any authority over who can post and what. Give it up already.
Secondly, I base MY views and points on REAL FACTUAL data. Not what you or anyone else SAYS! Got it? I don't blindly believe everything I'm told, even by an attorney, as I've already established that there is no magical powers they hold that makes even THEM correct at all times.
What is correct and easily referred to, is the actual written law. That's where I base my opinion. I've already cited where I get my information. I copied directly from the statute as listed on line. And, 790.06 clearly states that any one who is carrying a concealed weapon MUST have their credentials on them at all times. There is no disputing this. It's clear as black and white. There is no stipulation in there that says "OH, but, Brian can carry concealed since he defaulted us". A home printed piece of paper saying "default license" isn't going to cut it, and since FedEx isn't an authority to issue licenses in the State of Florida, my guess is that won't either.
And 120.60 does not make any statements making any default issued license that trumps 790.06. It's plain and simple.
It is YOU who now has the burden of citing where you get your information that, and pay attention, this is important, that SPECIFICALLY STATES ANY THING RELATING TO A DEFAULT LICENSE BEING EXEMPT FROM 790.06. I want written statute! Not what my so-and-so said.
Otherwise, I'll be patiently waiting on YOUR apology.
Nothing can help you.
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JeepSeller
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Posted: Fri Apr 24th, 2009 08:29 pm |
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smoking357 wrote: JeepSeller wrote:
First of all, it's been pretty well established that you are a NOBODY when it comes to having any authority over who can post and what. Give it up already.
Secondly, I base MY views and points on REAL FACTUAL data. Not what you or anyone else SAYS! Got it? I don't blindly believe everything I'm told, even by an attorney, as I've already established that there is no magical powers they hold that makes even THEM correct at all times.
What is correct and easily referred to, is the actual written law. That's where I base my opinion. I've already cited where I get my information. I copied directly from the statute as listed on line. And, 790.06 clearly states that any one who is carrying a concealed weapon MUST have their credentials on them at all times. There is no disputing this. It's clear as black and white. There is no stipulation in there that says "OH, but, Brian can carry concealed since he defaulted us". A home printed piece of paper saying "default license" isn't going to cut it, and since FedEx isn't an authority to issue licenses in the State of Florida, my guess is that won't either.
And 120.60 does not make any statements making any default issued license that trumps 790.06. It's plain and simple.
It is YOU who now has the burden of citing where you get your information that, and pay attention, this is important, that SPECIFICALLY STATES ANY THING RELATING TO A DEFAULT LICENSE BEING EXEMPT FROM 790.06. I want written statute! Not what my so-and-so said.
Otherwise, I'll be patiently waiting on YOUR apology.
Nothing can help you.
I neither need nor want your help. But, thank you for offering.
Now, about that apology or STATUTE citing how you can skirt 790.06 by using anything in 120.60....I'm still waiting. That's STATUTE, not so-and-so-says-so..remember? Straight up, black and white LAW! Not hair brain interpretations, not stories about teachers or developers or what ever. Clear cut written LAW that can be pointed to, cited, and stood upon in a legal defense.
790.06 clearly states that anyone carrying a concealed weapon MUST have on their person their license at all times. It's very specific regarding concealed carry of a weapon. Nothing to do with teaching or developers, etc. It SPECIFICALLY makes carrying a concealed weapon without being in possession of a concealed weapons license a criminal offense and there is nothing that addresses your FedEx issued default license. The facts here are without dispute. The law is clear. End of argument unless you can specifically cite to me where the state of Florida has any thing within it's law books that allows you to carry a concealed weapon without that license on your person. Period!
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JeepSeller
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Posted: Fri Apr 24th, 2009 08:46 pm |
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I tell you what, the more I think about this, the more weary I've grown of it. I've said all I'm going to say for the moment. Until I see citation of book law that somehow superseedes the criminal violation of carrying a concealed weapon without an issued concealed weapon permit on your person, I'm done and I won't be swayed. I've done what I set out to do here. I've done my part to make sure that no one ever follows your advice on this. People come to places such as this looking for information. Hopefully, we've placed enough doubt in your ideas that no one, regardless of how naive will follow you.
Apparently, there is a very good letter being drafted by a group on another forum. If, by chance they get an answer from the authorities there in lieu of any citing of LAW here, confirming your claims, then, and only then, will I concede you are right and apologize for being wrong.
Last edited on Sat Apr 25th, 2009 04:38 am by JeepSeller
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OneInThePipe
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Posted: Fri Apr 24th, 2009 09:07 pm |
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According to the Jack Hagler Self Defense Act:
The Department of Agriculture and Consumer Services shall implement and administer the provisions of this section. The Legislature does not delegate to the Department of Agriculture and Consumer Services the authority to regulate or restrict the issuing of licenses provided for in this section, beyond those provisions contained in this section.
Doesn't that imply that other provisions such as the "default license" don't apply?
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smoking357
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Posted: Fri Apr 24th, 2009 09:22 pm |
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.
Last edited on Fri Apr 24th, 2009 09:30 pm by smoking357
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smoking357
Banned
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Posted: Fri Apr 24th, 2009 09:24 pm |
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OneInThePipe wrote: According to the Jack Hagler Self Defense Act:
The Department of Agriculture and Consumer Services shall implement and administer the provisions of this section. The Legislature does not delegate to the Department of Agriculture and Consumer Services the authority to regulate or restrict the issuing of licenses provided for in this section, beyond those provisions contained in this section.
Doesn't that imply that other provisions such as the "default license" don't apply?
It means the exact opposite, actually. The Legislature is keeping DOACS on a short leash.
Read it, again.
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smoking357
Banned
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Posted: Fri Apr 24th, 2009 09:30 pm |
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JeepSeller wrote: 790.06 clearly states that anyone carrying a concealed weapon
I have a question about your philosophy. No insult, just a fair question.
Since there appears to be two statutes which, at first blush, appear in contradiction, and since neither statute is ambiguous, why do you find the prevailing statute to be the one that works against Liberty?
You could have chosen the other statute. It's just as clear. Given your level of training, it should be a coin flip. Why did you take 790.06, which restricts the individual, instead of 120.60, which restricts the government?
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