STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS=

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 92-6342

)

MICHAEL ANTHONY DEGEL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was conducted in this proceeding on April 30, 1993, in Titusville, Florida before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Henri C. Cawthon, Esquire

Assistant General Counsel Florida Department of State Division of Licensing

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

For Respondent: Nicholas Lessey, Esquire

423 Brevard Avenue Cocoa, Florida 32922

STATEMENT OF THE ISSUE

The issue for determination in this proceeding is whether Respondent committed an act of violence in violation of Section 493.6118(1)(j), Florida Statutes.

PRELIMINARY STATEMENT

Petitioner filed a one-count Amended Administrative Complaint against Respondent on October 6, 1992. Respondent requested a formal hearing, and the matter was referred to the Division of Administrative Hearings on October 22, 1992, for assignment of a Hearing Officer. The matter was assigned to Hearing Officer Joyous D. Parrish on February 1, 1993. A formal hearing was scheduled for February 11, 1993, and then rescheduled for April 30, 1993. The matter was transferred to the undersigned on March 10, 1993.

At the formal hearing, the parties stipulated to certain facts set forth in the Findings of Fact. Neither party presented any exhibits. Petitioner presented the testimony of Mr. Thomas Friend, a security guard with Liberty Security. Respondent testified in his own behalf and presented the testimony of Ms. Jessica McCandless.

A transcript of the formal hearing was filed with the undersigned on May 28, 1993. Respondent and Petitioner timely filed a written waiver of their right to file proposed findings of fact and conclusions on July 21, 1993.

FINDINGS OF FACT

1. The parties stipulated that Respondent was licensed as an unarmed guard and held a license to bear a firearm pursuant to license numbers D91-11148 and G91-11148, respectively. Respondent objected to any disciplinary action against his "G" license on the ground that the "G" license is not at issue. Only the "D" license is at issue in the Amended Administrative Complaint. The parties further stipulated that Respondent was prosecuted and found not guilty of battery in a criminal trial based on facts substantially similar to those at issue in this proceeding.

   
   

2. Mr. Michael Friend and Respondent were both employed as security guards by Liberty Security. Mr. Friend and Respondent did not get along and had a history of confrontation.

   
   

3. Liberty Security had experienced problems with doors not being secured by the guard who regularly patrolled the Miracle City Mall. The regular guard apparently failed to properly secure the doors when closing each night.

   
   

4. Mr. Friend was asked by his supervisor at Liberty Security to observe the closing procedures followed by the guard at the Miracle City Mall and to make sure the doors were properly secured. On May 9, 1992, the regular guard was unable to attend his duties, and Respondent was asked by his supervisor at Liberty Security to fill in for the regular guard.

   
   

5. When Respondent was closing on the evening of May 9, 1992, he agreed to let two females into the Mall to retrieve some expensive jewelry one of them left in the Mall. Afterward, Respondent agreed to give Ms. Jessica McCandless, a third female, a ride home.

   
   

6. Respondent left the security office to let the two females into the Mall. While Respondent was away, Mr. Friend

   entered the security office pursuant to his instructions to observe and inspect the closing procedures used at the Mall.

   
   

7. When Respondent returned to the security office, Mr. Friend precipitated a confrontation. The confrontation continued at Mr. Friend's persistence and escalated outside of the security office.

   
   

8. Outside of the security office, the confrontation escalated into verbal obscenities and minor physical incidents. Respondent and Ms. McCandless got into Respondent's car. Respondent started his car and backed away from Mr. Friend.

   
   

9. When Respondent put his car in drive and attempted to drive forward, Mr. Friend grabbed Respondent through the driver's window. Respondent stopped the car and Mr. Friend rolled from the driver's side of the car to the hood of

   the car, landing on his feet. Respondent stopped the car and backed the car away from Mr. Friend again.

   
   

10. Respondent put his car in forward, drove the car in a figure eight and headed straight toward Mr. Friend at a rate of speed fast enough to collide with Mr. Friend. The front of Respondent's car struck Mr. Friend. Mr. Friend went up on the hood, rolled off, and fell to the ground. Mr. Friend did not land on his feet. The impact cracked the window of the car.

    
    

11. The confrontation that precipitated the act of violence committed by Respondent was precipitated and escalated by Mr. Friend. Respondent attempted to avoid Mr. Friend, avoid the incident, and extricate himself and Ms.

    McCandless from the scene

    several times. After every reasonable attempt to avoid the situation, Respondent committed the act of violence.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto. The parties were duly noticed for the formal hearing.

    
    

13. Petitioner has the burden of proof in this proceeding. The burden of proof in an administrative proceeding is on the party asserting the affirmative of the issue unless the burden is otherwise established by statute. Young v. State, Department of Community Affairs, 567 So.2d 2 (Fla. 3d DCA 1990); Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). Petitioner must demonstrate by clear an convincing evidence that Respondent committed the acts alleged in the Administrative Complaint and that Petitioner is entitled to the proposed disciplinary action. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

14. Petitioner satisfied its burden of proof in this proceeding. Respondent used his vehicle to commit an act of violence against Mr. Friend in violation of Section 493.6118(1)(j), Florida Statutes. The testimony of Respondent's witness was clear and convincing.

    
    

15. Respondent did not precipitate the confrontation with Mr. Friend.

Respondent exhausted every reasonable means to

terminate the confrontation and avoid Mr. Friend. Respondent has no disciplinary history.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty

of an act of violence in violation of Section 493.6118(1)(j), Florida Statutes,

and imposing a fine of $1,000 pursuant to Section 493.6118(2)(c).

RECOMMENDED this 27th day of July, 1993, in Tallahassee, Florida.

DANIEL MANRY

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 27th day of July, 1993.

COPIES FURNISHED:

Honorable Jim Smith Secretary of State The Capitol

Tallahassee, Florida 32399-0250

Phyllis Slater General Counsel The Capitol, PL-02

Tallahassee, Florida 32399-1250

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

The Capitol, MS #4

Tallahassee, Florida 32399-0250

Nicholas Lessey, Esquire

423 Brevard Avenue Cocoa, Florida 32922

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: 92-006342

Orders for Case No: 92-006342