STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, DIVISION ) OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 88-0812

)

JAMES LOUIS GRAVES, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case before Arnold H. Pollock, Hearing Officer, in Tampa, Florida, on March 3, 1988.

The issue for consideration was whether Respondent's Class "D" Watchman, Guard or Patrolman License and his Class "G" Statewide Gun Permit should be disciplined because of the alleged misconduct outlined in the Notice of Emergency Suspension filed herein.

APPEARANCES

For Petitioner: R. Timothy Jansen, Esquire

Assistant General Counsel Florida Department of State The Capitol

Tallahassee, Florida 32399-0250

For Respondent: James L. Graves, Pro se

2002 North Armenia, Apartment 12

Tampa, Florida 33607 BACKGROUND INFORMATION

On January 12, 1988, the Director of the Division of Licensing, Florida Department of State, entered a Notice Of Emergency Suspension of the Respondent's Class "D" Watchman, Guard or Patrolman License and his Class "G" statewide Gun Permit because on November 5, 1987, Respondent was arrested and charged with aggravated assault and battery on two employees of Federal Armored Express, Inc., in Tampa, Florida. Respondent formally disputed the facts and requested a formal hearing.

At the hearing, Petitioner presented the testimony of Jerome E. Schwiegerath, Tampa Branch Manager of Federal Armored Express, Inc., and Malcolm

H. McLean, branch Assistant Operations Manager. Petitioner also introduced Petitioner's Exhibit 1. Respondent testified in his own behalf but called no witnesses and presented no documentary evidence.

A transcript of the proceedings was furnished. Petitioner submitted Proposed Findings of Fact which have been ruled on in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. On November 5, 1987, Respondent James Louis Graves, then serving as an armed guard with Federal Armored Express, Inc., in Tampa, placed a telephone call from the vault of a branch of the Sun Bank in Tampa to his supervisor, Jerome E. Schwiegerath. The Sun Bank of Florida is a customer of Federal Armored Express, Inc. During this call, Respondent asked Mr. Schwiegerath why he could not get his pay check early instead of waiting until the end of the business day. Mr. Schwiegerath explained the reason but Respondent did not accept it and called Mr. Schwiegerath an "ass hole".

   
   

2. After receiving this call, Mr. Schwiegerath told his superior what had happened and was instructed to fire Respondent for using abusive language in a customer's establishment. This conduct is a violation of company policy and grounds for dismissal.

   
   

3. When Respondent came into the company office later that afternoon and cleared his account, Mr. Schwiegerath called him into his office where he advised Respondent he was discharged because of the phone call that he had made. Mr. Schwiegerath indicated that the basis for the discharge was Respondent's use of abusive language in a customer's establishment, a violation of company policy. At that time, he furnished Respondent a copy of the company's regulations.

   
   

4. Respondent became violent and angry, cursing Mr. Schwiegerath and using profanity. When Mr. Schwiegerath turned away, Respondent swung at him and hit him two times, turning the desk behind which Schwiegerath was sitting over into his lap. When two other employees, Mr. McLean and Tom, came in, Respondent struck Tom as well.

   
   

5. There is some evidence that Respondent pulled his weapon after Mr. Scwiegerath fell. Witnesses saw him with his weapon out. Mr. Schwiegerath contends Respondent pulled his weapon and pointed it at him for no reason. Respondent, on the other hand, indicates that he pulled his weapon in self defense only when Mr. Schwiegerath reached for his own weapon which, Respondent contends, had been laying on the desk. There is no doubt that Respondent unholstered his weapon and had it in his hand at some time during the altercation.

   
   

6. When the police arrived, ten to twelve minutes later, Respondent, who had kept the weapon in his hand in the interim, holstered it before being told to do so by the police and was calm and cooperative with them. He was, nonetheless, arrested and, pursuant to his plea of nolo contendere to the offense of battery, found guilty in Hillsborough County Court on February 4, 1988. He was sentenced to pay $150 court costs, and was placed on six months probation. The offense of battery as tried in county court constitutes a first degree misdemeanor under provisions of Chapter 784.03, Florida Statutes.

   
   

7. Both Mr. Schweigerath and Mrs. McLean were of the opinion that, based on his violent temper, Respondent should not be licensed as an armed guard and neither would again hire him in that capacity.

8. Other than by reference in closing argument by counsel, which is not evidence, at no time did Petitioner, either by testimony or by documentation, establish that Respondent held either of the two licenses alleged in the order of emergency suspension.

   
   

   CONCLUSIONS OF LAW

   
   

9. Under the provisions of Section 493.319(1)(f) and (j), Florida Statutes, Petitioner seeks to revoke the licenses allegedly issued to the Respondent, which include a Class "D", Watchman, guard, or patrolman, license, and a Class "G", Statewide Gun Permit. Aside from the testimony of Mr. Schweigerath, to the effect that Respondent worked for his company as an armed guard, there was no evidence introduced by Petitioner to indicate that Respondent held either license in issue. At best the evidence raised an inference that he did, but before the state can take action to discipline a license holder, it must establish by clear and convincing evidence, (1) that it has jurisdiction to discipline, and (2) that adequate grounds exist to do so.

   
   

10. While Petitioner clearly established the grounds, it failed to establish its jurisdiction over the Petitioner.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that the Order of Emergency Suspension imposed upon Respondent be lifted and the action to revoke his permits as alleged be dismissed.

RECOMMENDED in Tallahassee, Florida this 19th day of April, 1988.

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0812

The following constituted my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

By Petitioner

1. Rejected as unsupported by competent evidence of record. 2.-7. Accepted.

8. & 9. Accepted but irrelevant to the issues. 10.-13. Accepted and incorporated herein.

COPIES FURNISHED:

R. Timothy Jansen, Esquire Assistant General Counsel Florida Department of State The Capitol

Tallahassee, Florida 32399-0250

James L. Graves 2002 North Armenia

Apartment 12

Tampa, Florida 33607

Honorable Jim Smith Secretary of State The Capitol

Tallahassee, Florida 32399-0250

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE DIVISION OF LICENSING,

Petitioner,

CASE NO. 88-0812

vs.

JAMES LOUIS GRAVES,

Respondent.

/

FINAL ORDER

This cause came before the Department of State, Division of Licensing (hereinafter Petitioner), for consideration and final agency action. A final administrative hearings was conducted pursuant to Section 120.57(1), Florida Statutes, on March 3, 1988 before Arnold H. Pollock, a duly assigned Hearing Officer of the Division of Administrative Hearings. A Recommended Order was submitted by the Hearing Officer on April 19, 1988.

FINDINGS OF FACT

The Department of State hereby adopts and incorporates herein by reference the Findings of Fact in the Recommended Order except for paragraph 8, which relates to the licenses held by Respondent.

Exception 1

On page eight of the official transcript prepared by Kathleen A. Sempert, Court Reporter and Notary Public for the State of Florida, the Hearing Officer took official notice of the Notice of Emergency Suspension filed by the Department of State against the Respondent. Moreover, the Hearing Officer read the Notice which stated Respondent had a Class "D" watchman, guard, or patrolman license.

The Notice of Emergency Suspension filed by the Department of State specifically listed the licenses held by the Respondent. The Notice listed Respondent's license at the top of the complaint. License number 6D85-06765 and GG85-01192. During the hearing, the Hearing Officer took official notice of the Administrative Complaint and read the case number 88-0812. In addition, the Hearing Officer also took official notice of Respondent's Election of Form which requested a formal hearing pursuant to Section 120.57(1), Florida Statutes.

Finally, the Hearing Officer stated "and this hearing is now here to determine what action, if any, should be taken against Mr. Graves' license. " At this point, the Hearing Officer asked if there were any matters or motions to dispose of preliminary.

The Respondent did not make any objection to the matters officially noted or to the purpose of the hearing. In addition, Respondent did not object in the Election of Rights form as to the type of licenses which he held. Moreover, Respondent did not at any time object or protest his presence at the hearing.

In fact, Respondent voluntarily requested the formal hearing. Furthermore, Respondent never at any time, objected to the license numbers listed in the Emergency Suspension. Moreover, Respondent did not object to Petitioner's authority to impose sanctions.

Therefore, the Hearing Officer's Finding of Fact contained in paragraph eight of the Recommended Order is hereby rejected.

CONCLUSIONS OF LAW

The Department of State hereby adopts and incorporates herein by reference the Conclusions of Law set forth in the Recommended Order concerning the grounds for discipline. However, the Department of State hereby rejects the Hearing Officer's Conclusions of Law regarding the Department's jurisdiction over Respondent.

Exception II

Pursuant to 120.57(1)(b)(8), Florida Statutes: "Findings of fact shall be based exclusively on the evidence of record and on matters officially recognized.

3. Pursuant to 120.57(1)(b)(6), Florida Statutes, the record in a case governed by this subsection shall consist of:

1. All notices, pleadings, motions, and intermediate rulings;

   
   

2. Evidence received or considered;

   
   

3. A statement of matters officially recognized;

   
   

4. The official transcript.

During the hearing, the Hearing Officer took official Notice of the Notice of Emergency Suspension Administrative Complaint. The Emergency Suspension listed the licenses held by the Respondent. Furthermore, the Hearing Officer read the Notice which became a permanent part of the transcript. At no time did Respondent object to the official Notice of Emergency Suspension Administrative Complaint. Moreover, Respondent never objected to the Hearing Officer's assertion that the license holder was the Respondent. Therefore, pursuant to Section 120.57(1)(b)(8) and Section 120(1)(b)(6)a, c, and i, Florida Statutes, the Petitioner has clearly and convincingly proven Respondent was licensed by the Department of State.

Exception III

Jurisdiction over the Defendant (or Property):

An objection to the basis of jurisdiction is waived if not raised in the defendant's first response to the complaint, whether that be his answer or pre- answer motion. In the instant case, Respondent has never filed an objection over the jurisdiction of the Petitioner. Moreover, Respondent elected for a formal hearing and voluntarily presented himself before the formal hearing. In fact, Respondent never, at any time during -the hearing objected to the Petitioner's jurisdiction over him or his license. Therefore, Respondent's appearance and lack of timely objection has waived any jurisdictional issues concerning himself or his licenses. Therefore, Petitioner rejects the Hearing Officer's Conclusions of Law in his Recommended Order dated April 19, 1988.

Accordingly, the Department of State, having reviewed the entire record and clearly delineated the reasons for rejecting the Hearing Officer's Recommended Order, the Department hereby SUSPENDS Respondent's Class "D" watchman, guard or patrolman and Class "G" Statewide Gun Permit.

NOTICE OF RIGHTS

This Order constitutes final agency action. Any party who is adversely affected by this Order may seek judicial review under Section 120.68, Florida Statutes. Such proceedings are commenced by filing a Notice of Appeal, pursuant to Rule 9.110, Florida Rules of Appellate Procedures, with the Clerk of the Department of State, Office of Legal Affairs, The Capitol, Room LL-10, Tallahassee, Florida 32399-0250; and by filing a copy of the Notice of Appeal, accompanied by the applicable filing fees, with the First District Court of Appeals, or with the District Court of Appeals in the appellate district where the party resides. The Notice of Appeal must be filed within thirty (30) days of the date this Order is filed with the Clerk of the Department.

ORDERED this 19th day of July, 1988.

David C. Register, Director Division of Licensing

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that one copy of the foregoing has been hand delivered to the Division of Administrative Hearings and one copy sent by U.S. Nail to James Louis Graves, 2002 North Armenia Avenue, Apartment 13, Tampa, Florida 33607 on this 19th of July, 1988.

R.Timothy Jansen Assistant General Counsel Department of State

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

Docket for Case No: 88-000812

Orders for Case No: 88-000812