STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, DIVISION ) OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 93-1382

)

TIMOTHY MICHAEL PRINCE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in Ft. Myers, Florida, on April 6, 1993, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Attorney Henri Cawthon

Division of Licensing

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

For Respondent: Steven DeWitt Holmes

Steven DeWitt Holmes, P.A.

1500 Colonial Boulevard, Suite 230 Ft. Myers, Florida 33907

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent is guilty of the commission of an act of violence or the use of force on any person except in the lawful protection of oneself or another from physical harm.

PRELIMINARY STATEMENT

By an Emergency Order of Suspension entered March 4, 1993, Petitioner immediately suspended all licenses of Respondent and alleged that he had been arrested on February 26, 1993, and charged with aggravated assault with a deadly weapon upon Kimo Little, such act not being in defense of self or another.

By letter dated March 5, 1993, Respondent requested a hearing.

At the hearing, Petitioner called four witnesses, and Respondent called five witnesses. Neither party offered into evidence any exhibits.

Neither party ordered a transcript or filed a proposed recommended order.

FINDINGS OF FACT

1. Respondent holds the following licenses: Class "D" Security Officer, Class "G" Statewide Firearm License, and Class "MB" Security Agency Manager. He has held the Class "D" and "G" licenses since September 22, 1992. He has held the Class "MB" license since January 22, 1993.

   
   

2. By an Emergency Order of Suspension entered March 4, 1993, Petitioner suspended all three licenses held by Respondent. The suspension was based on Respondent's arrest on February 26, 1993, for aggravated assault with a deadly weapon upon Kimo Little, such act not being in defense of self or another.

   
   

3. Respondent is employed by Castlewatch Security Company, where he has worked for one year and three months. For about one and one-half years, Respondent has been negotiating with the current owner of the company for the purchase of the company.

   
   

4. Respondent has an associates degree in business from Penn State University. He has been employed in the security business, in and outside Florida, for a little more than six years.

   
   

5. In the course of performing his security guard work, Respondent regularly uses a Citizens Band radio in order to maintain contact with security guards in the field, when Respondent is not in the field, or with the main office, when Respondent is in the field. Security guards with other companies also use the CB radio in this fashion, and frequently conversations among security guards take place during the evening hours.

   
   

6. On the evening of February 25, 1993, Respondent was on- duty, alone, at Roger Dean Chevrolet. At about 10:30 pm, he witnessed a bad car accident, which left him in an agitated state due to the seriousness of the injuries that he observed.

   
   

7. About one-half to one hour later, Respondent was on the CB radio when he overheard Kimo Little and another man engaged in a hostile conversation involving swearing and cutting off the conversations of other security guards. Respondent intervened, advising the main perpetrator, Mr. Little, to discontinue the conversation, or at least the swearing.

   
   

8. The conversation between Respondent and Mr. Little became heated. Eventually, they agreed to settle their differences 1/ by fisticuffs at the parking lot of a closed McDonald's.

   
   

9. Respondent had not previously arranged fights by way of CB radio. However, on at least two or three occasions, Mr. Little has detected differences of opinion between him and other users of the CB radio and determined the differences to be of such gravity as to require their settlement through combat.

   
   

10. While still on the radio with Respondent, Mr. Little stated that he intended to "kick [Respondent's] ass." Mr. Little also explicitly informed Respondent that the fight was to be a "fair fight" without guns. Mr. Little beckoned a friend, Paul LeClair, to drive Mr. Little to the McDonald's for the fight.

    
    

11. It is unclear why Respondent went to meet Mr. Little except to fight. At the time, Mr. Little neither knew Respondent's identity or where he worked.

12. When Respondent was relieved at about 11:30 pm, he drove his utility vehicle over to the dimly lit, empty parking lot of the McDonald's. After a quick tour of the parking area, Respondent saw no one and was driving toward the exit when Messrs. Little and LeClair appeared in the latter's truck.

    
    

13. In a clearly irritated tone, Mr. Little advised Respondent by radio, "I see you. I'm going to hunt you down like a dog." He then jumped out of Mr. LeClair's vehicle and ran toward Respondent's vehicle, waving his arms in an angry, beckoning fashion.

    
    

14. Although Respondent could have left the parking lot, he instead turned his vehicle around and drove toward Mr. Little. As he approached Mr. Little, he got a good view of his adversary. Mr. Little is six feet tall and a menacing

    270 pounds. Somewhat smaller than Mr. Little, Respondent quickly surveyed Mr. Little's superior size and enthusiasm, as evidenced by his shouting to the approaching Respondent: "I'm going to tear your fucking head off." Respondent also noted Mr. Little's potential ally, Mr. LeClair, who was standing beside his truck. Respondent quickly decided not to fight Mr. Little.

    
    

15. Instead, Respondent drew the 9 mm handgun that he keeps on hand for security work, aimed it at Mr. Little, and warned him, "Come any closer and I'll blow you away." He added for emphasis, "Back off, motherfucker." The distance between the two gentlemen was about three meters.

    
    

16. Undaunted by the weapon, Mr. Little implored Respondent, "Just get out of the truck and put the gun away. I'll whip your ass like a man."

    
    

17. However, Respondent chose instead to leave the parking area. As he drove away, he called the police and informed them of the situation.

    
    

18. Shortly thereafter, the Cape Coral police arrested Respondent, after determining that he had drawn his weapon but had not seen a weapon on Mr. Little. There is no evidence that any criminal case has been initiated or prosecuted.

    
    

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

    
    

20. Section 493.6118(1)(j) provides that Petitioner may impose discipline against a licensee engaged in the "[c]ommission 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."

    
    

21. Respondent is not guilty of a violation of Section 493.6118(1)(j), as charged by Petitioner. Respondent threatened violence or the use of force when he produced his weapon, but only to the extent necessary to allow him to peaceably leave the darkened parking lot.

    
    

22. The production of a weapon could constitute violence or the use of force, such as when a weapon is produced in a threatening fashion in order to coerce compliance with an unlawful action, such as a robbery. But in this case, the weapon was displayed to stop the advancing Mr. Little and prevent actual violence from taking place. Undoubtedly, Respondent recklessly accepted Mr.

Little's challenge to fight him and imprudently failed to leave the parking lot when he first had an opportunity to do so. But Respondent terminated the encounter before actual violence occurred. Mr. Little's undaunted reaction to the suddenly armed Respondent negates any inference that he was fearful of violence or force from the hands of Respondent.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Department of State, Division of

Licensing, enter a final order dismissing the Emergency Order of Suspension.

ENTERED on April 20, 1993, in Tallahassee, Florida.

ROBERT E. MEALE

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 on April 20, 1993.

ENDNOTE

1/ The exact nature of the differences never emerged from the record, but surely involved differing points of view as to the usage of the CB radio.

COPIES FURNISHED:

Hon. Jim Smith Secretary of State The Capitol

Tallahassee, FL 32399-0250

Phyllis Slater, General Counsel Department of State

The Capitol, PL-02 Tallahassee, FL 32399-0250

Attorney Henri Cawthon Division of Licensing The Capitol, MS #4

Tallahassee, FL 32399-0250

Steven DeWitt Holmes Steven DeWitt Holmes, P.A.

1500 Colonial Blvd., Ste. 230 Ft. Myers, FL 33907

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: 93-001382

Orders for Case No: 93-001382