STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CEBERT EMANUEL ROBERTS, )

)

Petitioner, )

)

vs. ) CASE NO. 92-1903S

)

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on June 10, 1992, in Miami, Florida.

APPEARANCES

For Petitioner: Cebert E. Roberts, pro se

1870 Northwest 187 Street

Miami, Florida 33056

For Respondent: Henri C. Cawthon, Esquire

Assistant General Counsel Division of Licensing

The Capitol, M.S. #4 Tallahassee, Florida

32399-0250

STATEMENT OF THE ISSUE

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

PRELIMINARY STATEMENT

Petitioner's application for licensure as a Class "D" Security Officer was denied by Respondent by letter dated March 3, 1992. The denial letter stated the following two reasons for the denial: fraudulent misrepresentation in applying for a license and the commission of an assault or battery or the use of force except in the lawful protection of one's self or another from physical harm. Petitioner challenged the denial and this proceeding followed.

At the formal hearing, Respondent presented the testimony of Phillip Frazin, a Metro Dade Police Officer, and of the Petitioner. Respondent presented four exhibits, each of which was accepted into evidence. Petitioner presented no additional testimony and offered no additional exhibits.

A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten

days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 22I-6.031, Florida Administrative Code. Rulings on Respondent's proposed findings of fact may be found in the Appendix to this Recommended Order. Petitioner did not file a timely proposed recommended order.

FINDINGS OF FACT

1. Respondent is the agency of the State of Florida charged with the licensing of Class "D" Security Officers.

   
   

2. On November 6, 1991, Respondent received Petitioner's application for a Class "D" Security Officer License.

   
   

3. By letter dated March 3, 1992, Respondent advised Petitioner that it was denying his application for two reasons. The first reason alleged that Petitioner had made a fraudulent or wilful misrepresentation in applying for his license and that the denial was pursuant to the provisions of Section 493.6118(1)(a), Florida Statutes. 1/ The second reason alleged that Petitioner had been guilty of the commission of an assault or battery or the use of force except in the lawful protection of one's self or another from physical harm and that the denial was pursuant to the provisions of Section 493.6118(1)(j), Florida Statutes.

   
   

4. On August 15, 1992, Officer Phillip Frazin of the Metro Dade Police Department was dispatched to Petitioner's home in Dade County, Florida, on a priority call. When Officer Frazin arrived at Petitioner's home, he observed that Petitioner's wife appeared shaken and that she had sustained a lacerated and swollen lip. Officer Frazin also observed that Petitioner had been drinking alcohol and was verbally abusive to his wife and uncooperative. Petitioner's wife told Officer Frazin that she had been struck, pushed, kicked, slapped, and punched in the face by Petitioner. Petitioner's wife also testified that she was afraid that Petitioner would shoot her. Consequently, Officer Frazin took into custody a firearm that Petitioner kept in his house in a locked briefcase. 2/

   
   

5. Petitioner testified at the formal hearing that he had pushed his wife, but denied that she had sustained a lacerated and swollen lip. Petitioner also asserted that he does not drink alcohol. The conflict in the testimony of Officer Frazin and Petitioner is resolved by finding that Officer Frazin is the more credible witness. Consequently, it is concluded that Petitioner had been drinking on the night in question and that he had battered his wife and caused her to sustain a lacerated lip.

   
   

6. On November 20, 1991, Petitioner was found guilty by Dade County Judge Cindy S. Ledderman of the charge of battery on his spouse following a bench trial. Adjudication of guilt was withheld and Petitioner was fined and placed on probation for a period of six months. Petitioner successfully completed his term of probation on May 11, 1992.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

   
   

8. Section 493.6301(5), Florida Statutes, provides as follows:

   (5) Any individual who performs the services of a security officer shall have a class "D" license.

   
   

9. Petitioner has the burden of proving by a preponderance of the evidence that he is entitled to licensure. 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). Petitioner has failed to meet that burden.

   
   

10. Section 493.6118, Florida Statutes, provides, in pertinent part, as follows:

    
    

    1. The following constitute grounds for which disciplinary action specified in subsection (2) may be taken by the department against any ... applicant regulated by this chapter ...

       * * *

       (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.

       * * *

    2. When the department finds any violation of subsection (1), it may do one or more of the following:

       1. Deny an initial or renewal application for license.

          
          

11. There was no evidence that Petitioner used an alias. Consequently, that allegation does not provide a basis for Respondent to deny the application.

    
    

12. By establishing that Petitioner committed an act of violence against his spouse, Respondent justified its denial of the subject application pursuant to the provisions of Section 493.6118(1)(j), Florida Statutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which denies Petitioner's

application to be licensed as a Class "D" Security Officer.

DONE AND ORDERED this 18th day of August, 1992, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1992.

ENDNOTES

1/ Prior to the beginning of the formal hearing, Respondent announced that it would present no evidence as to this first reason. Consequently, the only remaining issues pertained to the second reason for the denial.

2/ The only evidence that Petitioner threatened to shoot his wife was in the form of a statement, which is hearsay, that she made to Officer Frazin. There was no evidence that Petitioner displayed his firearm in a threatening or reckless manner.

APPENDIX TO RECOMMENDED ORDER

The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent.

1. The proposed findings of fact in paragraphs 1, 2, 4, 6, 7, 8, 9, and 10 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraphs 3 and 11 are rejected as being unnecessary as findings of fact, but are incorporated in the Preliminary Statement.

3. The proposed findings of fact in paragraph 5 are adopted in part by the Recommended Order. That Officer Frazin used his siren and carried emergency equipment is subordinate to the finding that this was a priority call.

COPIES FURNISHED:

Cebert E. Roberts

1870 Northwest 187 Street

Miami, Florida 33056

Henri C. Cawthon, Esquire Assistant General Counsel Division of Licensing

The Capitol, M.S. #4 Tallahassee, Florida 32399-0250

Honorable Jim Smith Secretary of State Department of State The Capitol

Tallahassee, Florida 32399-0250

Phyllis Slater, 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 to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to 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: 92-001903

Orders for Case No: 92-001903