STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 84-4359S

)

RALPH N. KINNEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an Administrative Hearing was held before William R. Cave, Hearing Officer with the Division of Administrative Hearings, on April 18, 1985 in Daytona Beach, Florida.

APPEARANCES

For Petitioner: H. James V. Antista, Esquire

Department of State LL 10, The Capitol

Tallahassee, Florida 32301

For Respondent: Henry P. Duffett

120 East Granada Boulevard Post Office Box 2633

Ormond Beach, Florida 32075

By an Administrative Complaint dated October 31, 1984 and filed with the Division of Administrative Hearings on December 12, 1984, Petitioner seeks to revoke the Class "A", private investigative agency License and Class "C", private investigator license issued to Respondents Ralph N. Kinney, on the basis that Respondent's arrest on September 9, 1982 and his subsequent plea of nolo contendere to aggravated battery, with the Court withholding adjudication of guilt and placing Respondent on 5 years probation was tantamount to a conviction for aggravated battery and thereby a violation of Section 493.319(1)(j), Florida Statutes (1981).

The Petitioner contended in its Prehearing Statement that the proposed disciplinary action was in conformance with Section 493.319(1)(c), Florida Statutes (1981), but at the hearing, Petitioner agreed that the Administrative Complaint only alleged a violation of Section 493.319(1)(j), Florida Statutes (1981). Petitioner did not file an oral or written motion at the hearing requesting an amendment to the Administrative Complaint to allow an allegation charging a violation of Section 493.319(1)(c), Florida Statutes (1981).

Respondent in his Prehearing Statement contended that paragraphs 2, 5, and

6 of his Request For Formal Hearing were tantamount to a Motion To Dismiss based upon (a) statutory defects and/or failure to set forth a cause of action against

Respondent. Argument of counsel was heard and a ruling was reserved to allow counsel opportunity to file written briefs along with their proposed findings of fact and conclusions of law. Having considered the oral and written argument of counsel and assuming Respondent had a proper Motion To Dismiss pending at the time of the hearing, the Motion To Dismiss is DENIED.

In support of the charges, Petitioner presented the testimony of Respondent. Petitioner's Exhibits Nos. 1-6 were received into evidence.

Respondent testified on his own behalf and presented the testimony of Dr.

Maximo Handel, William J. Rose, Robert K. Rouse, Jr., James O. Eubank, II, Terrill J. LaRue, Michael Falkowski; Joseph G. Will, J. David McFadden, John Doyle and Charles C. Ebbets. Respondent's documentary evidence was received into evidence as a supplement to Petitioner's Composite Exhibit 1(a)(e) by agreement of counsel.

The parties submitted posthearing proposed findings of fact and conclusions of law pursuant to Section 120.57(1)(b)(4), Florida Statutes (Supp. 1984). A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial or unnecessary.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing the following facts were found:

1. At all times material to this proceeding, Respondent held a Class "A", private investigative agency license Number GA 0002275 and a Class "C", private investigator license number GC 0001218.

   
   

2. Respondent has been actively engaged as a private investigator in the Daytona Beach/Volusia County area of the State of Florida for over 25 years. A substantial portion of Respondent's activities as a investigator, are performed for attorneys representing both Plaintiffs and Defendants who employ the Respondent to investigate accidents, locate and question witnesses, photograph vehicles and sites, serve subpoenas for trial and deposition, and on occasion to perform surveillance.

   
   

3. Records of the Circuit Court for Volusia County, Florida, reflect that Respondent was arrested on September 9, 1982 by the Ormond Beach, Florida, Police Department and charged with Attempted Murder. The State Attorney For The Seventh Judicial Circuit, by Information dated September 22, 1982, charged the Respondent with Attempted First Degree Murder and Aggravated Battery. By Order of August 10, 1982, the Circuit Court of Volusia County, Florida, accepted the Respondent's plea of nolo contendere to the charge of Aggravated Battery, a Second Degree Felony. The Court withheld adjudication of guilt and placed the Respondent on probation for a period of 5 years.

   
   

4. Respondent has no previous criminal record, although once arrested in 1974 on a complaint that was Nolle Prosequi by the State of Florida as a case of mistaken identity. Respondent's testimony that he was aware of only 1 complaint to the Department against him as a private investigator and that that complaint was disposed of as "unfound" went unrebutted.

   
   

5. The circumstances that led up to Respondent's arrest on September 9, 1982 were domestic in nature: The Respondent objected to a relationship that

   had developed between his 12-year-old daughter, Vicky, an eighth grade student, and Thomas Parker (Parker) a 17-year-old boy about a year before the shooting incident on September 9, 1982. The Respondent came to disapprove of Parker because of Respondent's view that Parker was too old for his daughter, did not go to work or school, had no parental supervision or discipline, and was of dubious character and reputation. Respondent's efforts to terminate the relationship were frustrated. Respondent became convinced that Parker had introduced his daughter to sex, alcohol and the use of marijuana and other drugs. Respondent forbade his daughter from seeing Parker but the relationship continued and caused friction and tension within the family. Within a year, Vicky went from an "A" student to a "drop-out".

   
   

6. Respondent sought advice and assistance from friends and public officials in regard to terminating this relationship but to no avail. Vicky was sent to live with Respondent's son in another part of the state but was brought back home when Parker began to pose a threat to the tranquility of the son's home.

   
   

7. During the evening of September 8, 1982, Respondent and his wife, Louise Kinney, discovered that Vicky was missing from her bedroom. Respondent proceeded to search for Vicky but to no avail. Respondent reported this to the Ormond Beach Police Department because he thought Vicky had run away and was in the accompany of Parker.

   
   

8. Sometime between 3:00 a.m. and 3:30 a.m on September 9, 1982, Respondent heard someone at Vicky's bedroom window and went outside to "check it out" with a .357 magnum pistol, a metal baseball bat and a flashlight. Respondent found Parker and a friend helping Vicky into her bedroom window. When Parker and his friend saw Respondent they ran and Respondent gave chase. While chasing Parker, Respondent tripped over a vent pipe to a storage tank and the pistol discharged hitting Parker in the lower back. Respondent's testimony

   that he did not intend to shoot Parker and that the shooting was accidental went unrebutted. These comments are consistent with Respondent's explanation to the police officers called to the scene of the shooting and consistent with his comments to Dr. Barnard, a psychiatrist. Respondent's testimony that it was his intent to only hold Parker at the scene for the police so that Respondent could charge Parker with trespassing and possibly relieve a bad situation at home went unrebutted. Neither Parker nor his friend were armed.

   
   

9. While Dr. Barnard's report indicates that Respondent was legally sane and competent at the time of the shooting, the testimony of Dr. Maximo Hancock, a psychiatrist and Dr. Barnard's initial and supplemental reports indicate that Respondent was under a tremendous emotional strain that could have resulted in Respondent reacting without knowing what he was doing at the time.

   
   

10. Parker has brought a civil suit against Respondent for damages predicated in the part upon allegations that Respondent's action constituted negligence in a deliberate assault or battery. Respondent homeowner's insurance carrier which insured Respondent for negligence but not for deliberate and willful acts, has "accepted the risk" and is furnishing Respondent with legal defense in this civil litigation.

    
    

11. Of the 10 witnesses to testify for Respondent, 8 of them were attorneys that had known Respondent for a period of time and had employed Respondent before and after the shooting incident to perform those services listed in paragraph 2 above. The general consensus of these witnesses was that the Respondent enjoyed an excellent reputation as an investigator for skill and

    competency, trustworthiness and high ethical standards, and for pursuit of his investigative duties without breach of the peace. None of these witnesses expressed any reservation or hesitancy about continuing to use Respondent's services because of any propensity toward violence. These witnesses viewed the shooting incident of which all were aware, as an isolated personal matter unrelated to and outside the scope of his activities as an investigator.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding.

    
    

13. Section 493.319, Florida Statutes (1981), empowers the Department of State (Department) to revoke, suspend, or otherwise discipline the license of Respondent if he is found to be guilty of any one of those enumerated acts listed in Section 493.319(1), Florida Statutes (1981).

    
    

14. The Administrative Complaint charges Respondent with a violation of Section 493.319(1)(j), Florida Statutes (1981), in that Respondent's plea of nolo contendere to the charge of aggravated battery, even though adjudication of guilt was withheld by the Court, is tantamount to being found guilty of the charge of aggravated battery and, therefore, proof of the commission of a battery.

    
    

15. Section 493.319(1)(j), Florida Statutes, provides as grounds for discipline the following:

    
    

    1. The following constitute grounds for which disciplinary action specified in subsection (2) may be taken:

       * * *

       (j) Commission of assault, battery or kidnapping or use of force or violence on any person except in self-defense or in self- defense of a client.

       
       

16. The Petitioner has alleged and proven that Respondent was arrested on September 9, 1982 and charged with attempted first degree murder and aggravated battery. In addition, Petitioner has proven that Respondent entered a plea of nolo contendere which was accepted by the Court, the Court withholding adjudication of guilt and placing Respondent on probation for 5 years. However, proof of the acceptance by the Court of a nolo contendere plea without the Court adjudicating guilt is insufficient to prove Respondent guilty of the commission of an aggravated battery. See Holland v. Florida Real Estate Commission, 352 So. 2d 914 (Fla. 2d DCA 1977); cf. Vinson v. State, 345 So. 2d 711 (Fla. 1977).

    
    

17. Without objection from the Respondent, Petitioner called Respondent as a witness to testify to the underlying facts leading up to the Respondents's arrest. Considering the Respondent's testimony, no other witnesses testified to the underlying facts, and the documentary evidence presented by the Petitioner the evidence is insufficient to show the necessary intent required under Sections 784.03(1)(a), (b) and 784.045(1)(a), (b), Florida Statutes (1981), to prove Respondent committed an aggravated battery on September 9, 1982.

    
    

18. In finding that a plea of nolo contendere with the Court withholding adjudication of guilt was insufficient to prove Respondent guilty of committing an aggravated battery, I am not unmindful of Petitioner's policy in this regard.

However, a policy cannot be in conflict with the statutes, rule or case law. Neither am I unmindful of Department of State, Division of Licensing v. Stuart Phillip Coon, F.A.L.R. (Final Order October 24, 1984) and Hahns v. Department of State, Division of Licensing, 7 F.A.L.R. 1185 (Final Order October 5, 1984) cited in Petitioner's proposed findings of fact and conclusions of law in support of Petitioner's policy. However, I find these cases distinguishable on the facts.

RECOMMENDATION

Based upon the findings of facts and conclusions of law recited herein, it is RECOMMENDED that the Department of State issue a final order finding the Respondent not guilty of the violations as charged in the Administrative Complaint and that the Administrative Complaint be DISMISSED.

Respectfully submitted and entered this 22nd day of July, 1985, in Tallahassee, Leon County, Florida.

COPIES FURNISHED:

H. James V. Antista, Esquire Department of State

LL 10, The Capitol Tallahassee, Florida 32301

Henry P. Duffett

120 E. Granada Boulevard Post Office Box 2633

Ormond Beach, Florida 32075

Honorable George Firestone Secretary of State

The Capitol

Tallahassee, Florida 32301

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

FILED with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1985.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF STATE

DEPARTMENT OF STATE, DIVISION OF LICENSING,

Petitioner,

1. CASE NO. 84-4359S

   
   

   RALPH KENNEY,

   
   

   Respondent.

   /

   
   

   ORDER

   
   

   This cause was heard in a formal proceeding pursuant to 120.57(1) before Hearing Officer, William R. Cave, Division of Administrative Hearings on April 18, 1985. A Recommended Order was issued on July 22, 1985. No exceptions to the Findings of Fact of the Recommended Order have been submitted.

   
   

   Having reviewed the complete record in this matter, including the recording of the hearing and all exhibits introduced at the hearing, the Department of State adopts the Findings of Fact in the Recommended Order, but rejects the Conclusion of Law that Respondent Mr. Kinney's plea of no contest to a charge of aggravated battery, and the withholding of adjudication on that charge, was an insufficient basis upon which to take administrative disciplinary action under Section 493.319(2), Florida Statutes.

   
   

   The Division of Licensing's complaint alleges that Mr. Ralph Kinney committed an assault and an improper use of force in a shooting incident on September 8, 1982, that he plead no contest to a charge of aggravated assault and that this conduct constituted a violation of Section 493.319(1)(j), Florida Statutes, which states as follows:

   
   

   1. The following constitutes grounds for which disciplinary action specified in subsection (2) may be taken:

* * *

(j) Commission of assault, battery, or kidnapping or use of force or violence on any person except in self-defense or in the defense of a client. (Emphasis added.)

Having reviewed the complete record of this matter, it is clear that Division of Licensing made a thorough investigation of all facts and circumstances surrounding the shooting incident and criminal prosecution. At hearing, the Hearing Officer found that Mr. Kinney used a firearm not in self-

defense and as a result of his conduct, a serious injury was inflicted upon another person. We conclude that Mr. Kinney's conduct warrants disciplinary action under Section 493.319(1)(j) Florida Statutes, whether it is characterized as a criminal assault or an unnecessary use of force or violence.

The Respondent rejects the Hearing Officer's legal conclusion that a no contest plea on a felony charge, without an adjudication of guilt, is insufficient to warrant disciplinary action under Chapter 493, Florida Statutes. The Florida Law on this subject does not support this conclusion. In Holland v. Florida Real Estate Commission, 352 So.2d 914 (2 DCA Fla. 1977), the case relied on by Hearing Officer, a realtor pled no contest to a felony charge of fraud and the Court withheld adjudication and placed the realtor on probation. The Real Estate Commission revoked his license. The District Court of Appeal reversed the Real Estate Commissioner's revocation; the sole legal issue before the Court was not whether a plea of no contest constituted guilt, but rather was stated as follows:

The legal question before us is whether the fact that the court made a finding that petitioner is guilty is equivalent to the guilt which is contemplated under

Section 475(1)(e), in spite of the fact that an adjudication of guilt was specifically withheld. (Emphasis added.)

Thus, in the Holland case lack of adjudication was the critical point. The governing statute in the Holland case, Chapter 475, Florida Statutes, did not permit disciplinary action unless there was an adjudication of guilt.

Subsequently, in 1979, Chapter 475 was amended and now permits disciplinary action if licensee "has been found guilty regardless of whether adjudication was withheld." Section 479.25(1)(f), Florida Statutes (1979). Now, when a crime has been committed by a real estate licensee, adjudication of guilt is no longer required to warrant disciplinary action Section 479.25(1)(f), Florida Statutes. See, Department of Professional Regulation v. Osburn, 5 FALR 76 (Order dated September 21, 1982).

Unlike the situation in Holland, the Legislature has clearly provided the Department of State, Division of Licensing with statutory authority to take disciplinary action when a person or licensee is guilty of a crime, regardless of adjudication. Section 493.319(1)(c), Florida Statutes. The Hearing Officer's Recommended Order recognized that this authority applies when disciplinary action is taken under Section 493.319(1)(j), Florida Statutes.

Thus, the Division of Licensing possesses the statutory authority to take disciplinary action where a licensee commits a violent crime whether or not adjudication is withheld or final judgment delayed.

Furthermore, the Division's policy is also consistent with the prevailing Florida Rules of Criminal Procedure, in which the term conviction means guilt established by any form of plea regardless of adjudication. Florida Rules of Criminal Procedure 3.700 and 3.701.

Even though the Department has the authority to revoke the Respondent's license, it has decided not to assert this authority based upon testimony about the good character and reputation of Mr. Kinney as a private investigator and citizen of Volusia County, his infraction free record as a private investigator and the fact that he has, thus far, satisfactorily served his probation for his criminal violation. While we reject the proposition that a person can evade

responsibility for his actions by merely pleading no contest, we believe that under these circumstances, revocation of Mr. Kinney's license to conduct private investigations is unnecessary; therefore, it is

ORDERED that the Findings of Fact of the Recommended Order be adopted and incorporated herein by reference, that the Conclusions of Law and Recommendation of the Hearing Officer be rejected, that Mr. Kinney be placed on probation pursuant to Section 493.319(2)(e), Florida Statutes, for a period to conform with the probation ordered by the Circuit Court of the Seventh Judicial Circuit and under the terms and conditions of the probation established by the Division of Licensing, attached herein.

DONE AND ORDERED in Tallahassee, Florida this 11th day of October, 1985.

THOMAS E. GARDNER

Assistant Secretary of State

Filed with Agency Clerk

on this 11th day of October

LIZ CLOUD

Agency Clerk

Docket for Case No: 84-004359

Orders for Case No: 84-004359