STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, DIVISION ) OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 93-2566

)

ANGEL LUIS LUGO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on July 29, 1994, in Fort Lauderdale, Florida, before J. Stephen Menton, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Henri C. Cawthon

Assistant General Counsel Department of State Division of Licensing

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

For Respondent: James S. Benjamin, Esquire

Benjamin & Aaronson, P.A.

100 Northeast Third Avenue, Suite 850 Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent's Class "D" Security Officer License and/or Class "G" Statewide Firearm License should be revoked or otherwise disciplined based upon the alleged violations of Chapter 493, Florida Statutes, set forth in the Third Amended Administrative Complaint filed by Petitioner.

PRELIMINARY STATEMENT

In a four count Amended Administrative Complaint dated April 14, 1993, the Department of State, Division of Licensing (the "Department"), charged Respondent with violating various subsections of Section 493.6118, Florida Statutes. Respondent disputed the allegations contained in the Amended Administrative Complaint and timely requested a formal administrative hearing. The case was transferred to the Division of Administrative Hearings ("DOAH") which noticed and conducted a hearing pursuant to Section 120.57(1), Florida Statutes.

The case was initially assigned to Hearing Officer Michael M. Parrish. By Order dated January 14, 1994, Hearing Officer Parrish granted Petitioner's Motion For Leave To Amend The Administrative Complaint. Pursuant to that Order, a fifth count was added to the Amended Administrative Complaint. On April 1, 1994, Petitioner filed a second Motion For Leave To File Amended Administrative Complaint. Attached to that Motion was a "Second Amended Administrative Complaint" which did not include Counts IV and V of the earlier Amended Administrative Complaint. Petitioner sought to drop those charges because the allegations contained in those counts were the subject of an imminent criminal proceeding. The Motion was granted by Hearing Officer Michael Parrish by Order dated April 20, 1994.

By Notice of Hearing dated June 1, 1994, Hearing Officer Parrish scheduled a hearing on the Second Amended Administrative Complaint for July 29, 1994. On July 13, 1994, Petitioner filed another Motion For Leave To File Amended Administrative Complaint. Attached to that Motion was a "Third Amended Administrative Complaint." The Motion indicated that the pending criminal proceeding had been resolved and that Respondent did not object to reinstating in this administrative proceeding the previously dropped counts. No ruling was entered on the Motion prior to the hearing. At the commencement of the hearing on July 29, 1994, the pending Motion To Amend was granted and the Third Amended Administrative Complaint was accepted.

The Third Amended Administrative Complaint contains four counts. Count I alleges that Respondent violated Section 493.6118(1)(c), Florida Statutes, as a result of a conviction for shoplifting in North Carolina in 1986. Count II alleges that Respondent violated Section 493.6118(1)(a), Florida Statutes, by failing to list his arrest and conviction for shoplifting on his Class "D" Security Officer License application. Counts III and IV allege that Respondent violated Sections 493.611(8)(1)(j) and (f), Florida Statutes, by drawing his firearm and using deadly force during a confrontation with Jorge Ruiz on or about February 9, 1993. At the outset of the hearing, Respondent moved ore tenus to dismiss Counts III and IV on the grounds that they did not properly allege a violation of the cited statutes. That Motion was denied without prejudice to Respondent's ability to renew the legal arguments at the conclusion of the hearing.

At the hearing, Petitioner presented the testimony of five witnesses: Officer Joseph Vallejo of the Plantation Police Department; Detective Richard Barth of the Plantation Police Department; Jorge Ruiz; Michael Bernstein, an attorney who represents Jorge Ruiz; and Richard Railton, an investigator for the Department. During the hearing, Petitioner had seven exhibits marked for identification. Petitioner's Exhibits 1, 4, 5 and 6 were accepted without objection. Petitioner's Exhibits 2 and 3 were accepted over Respondent's objections. Petitioner's Exhibit 7 was not offered.

At the conclusion of the hearing, Petitioner sought to include in the record portions of a deposition of Respondent taken in a related civil proceeding. After listening to argument from the parties, Petitioner was granted an opportunity to supplement the record in this case with portions of Respondent's deposition. Respondent was granted an opportunity to submit any additional portions of the deposition which he wished to have included in the record. Petitioner submitted deposition excerpts with a letter from counsel for Petitioner dated August 4, 1994 which was filed with DOAH on August 5, 1994. In accordance with the ruling made at the hearing, those exerpts are hereby accepted as Petitioner's Exhibit 8. After these excerpts were filed by Petitioner, Respondent submitted additional portions of the deposition with a

letter from counsel for Respondent to counsel for Petitioner dated August 8, 1994, which was filed with the DOAH on August 17, 1994. The additional deposition excerpts submitted by Respondent are hereby accepted as Respondent's Exhibit 6. The excerpts submitted by both parties have been reviewed and considered in the preparation of this Recommended Order.

During the course of the hearing, Respondent testified on his own behalf and had five exhibits marked for identification. Respondent's Exhibits 1 and 2 were accepted into evidence without objection. Respondent's Exhibit 3 was never properly identified or offered into evidence. Respondent's Exhibits 4 and 5 were photos that were referred to during the testimony of certain witnesses, but the exhibits were never formally offered into evidence. As discussed above, Respondent has submitted portions of his deposition in a related civil proceeding as Respondent's Exhibit 6. During the hearing, Respondent requested the opportunity to supplement the record with portions of the transcript in a related criminal proceeding. Respondent was granted seven days from the completion of the hearing in this case to submit any portions of the transcript of that related criminal proceeding. A time frame was also established for Petitioner to submit any additional portions of that transcript which it wished to have included in the record. In a letter to counsel for Petitioner dated August 15, 1994 which was filed with DOAH on August 17, 1994, Respondent submitted portions of the transcript of the related criminal proceeding. The portions of the transcript submitted by Respondent are hereby accepted as Respondent's Exhibit 7. That Exhibit has been reviewed and considered in the preparation of this Recommended Order. Petitioner has not filed any additional excerpts from that transcript.

No transcript of the July 29 hearing in this case has been provided. Both parties submitted proposed recommended orders in accordance with the schedule established at the conclusion of the hearing. Petitioner's proposal did not include any proposed findings of fact. The section of Respondent's submittal entitled "Findings of Fact" consisted of unnumbered paragraphs that included factual assertions, argument and legal conclusions. Since separately identified proposed findings of fact have not been provided, no specific rulings are made on that submittal.

FINDINGS OF FACT

Based upon the oral and documentary evidence introduced at the final hearing and the entire record in this proceeding, the following findings of fact are made:

1. On or about June 7, 1989, Respondent filed an application for a Class "D" Security Officer License with the Department. The application form asked the applicant whether he had ever been arrested and to list any and all arrests. The application specifically provided that "falsification of this question may be grounds for denial of your license." Respondent answered affirmatively that he had been arrested. The only specific incident listed on the application was an arrest in 1979 for a charge of "asault [sic] with a deadly weapon intemp [sic] to kill Fay N.C. [sic]." The Application also required the applicant to set forth the outcome of all arrests. Respondent replied that the "charges was [sic] drop [sic]."

2. On or about July 17, 1990, Respondent submitted an application with the Department for a Class "G" Statewide Firearms License. The application form for this license included an identical request regarding prior arrests. In response, Respondent checked the box indicating he had never been arrested and wrote "N/A" where he was supposed to indicate the date, charge and outcome of the arrests.

   
   

3. Respondent has not provided any explanation for why his Class "D" Application disclosed an arrest in 1979, but his Class "G" Application did not reference this arrest. This discrepancy is not alleged in the Third Amended Administrative Complaint.

   
   

4. Petitioner has submitted a certificate from the Cumberland County, North Carolina Superior Court which indicates that a criminal summons was issued for "Angelo Louis Lugo" on or about May 5, 1987, for a charge of "M Assault By Pointing A Gun." It is not clear whether this summons is directed at Respondent nor is it clear whether the Summons was ever served and/or the subject was arrested. The ultimate disposition of this criminal case is not clear. Respondent denies ever being served with the summons referenced in this court record. The evidence was insufficient to establish that Respondent was ever arrested in connection with this matter.

   
   

5. Petitioner has submitted a second certified record from the Cumberland County, North Carolina Superior Court, which indicates that Respondent was issued a "Citation" on March 10, 1986, for the charge of "M Shoplifting Concealment Goods." No other evidence or explanation of this record has been provided. Respondent admits that he was issued a Notice to Appear in court after he was caught by store security personnel taking aspirin from a bottle.

   He testified that he did not list this matter on his applications because he was not "arrested." Instead, he claims that he was merely issued a citation to appear in court. The evidence presented in this case did not refute Respondent's version of the events surrounding this court record. In sum, the evidence was not clear and convincing that Respondent was ever formally "arrested" for this incident. The ultimate disposition of this criminal charge is not clear from the record in this proceeding.

   
   

6. Counts III and IV of the Third Amended Administrative Complaint are based upon an incident that occurred on February 9, 1993 between Respondent and Jorge Ruiz. There is a good deal of conflicting evidence regarding this incident. Both Respondent and Ruiz have testified and/or given statements on several occasions about the incident including statements to the police, testimony in a related criminal proceeding against Respondent and depositions taken in connection with a civil lawsuit filed by Ruiz against Respondent, Respondent's employer and the Bank where Respondent worked. It is impossible and unnecessary to resolve all of the conflicts in the differing accounts of the incident as described by Respondent and Ruiz at various times. After considering all of the evidence presented, including the credibility and demeanor of the witnesses, the findings in this Recommended Order are based upon the clear and convincing evidence presented.

   
   

7. On February 9, 1993, Respondent was working as an armed security guard at a Barnett Bank in Plantation, Florida. At approximately 1:30 p.m., Respondent was working outside the bank in the vicinity of the drive-thru lanes. He was there to direct traffic and monitor the area.

8. Around this time, Jorge Ruiz pulled into the paved area in front of the drive-thru booths. Ruiz had been to the Bank on numerous occasions in the past and he had often used the drive-thru windows.

   
   

9. Ruiz has a very powerful radio in his pick-up truck and he admits that he tends to play music at a loud volume. On at least one prior occasion, Ruiz had proceeded to the drive-thru station with his radio blasting. The tellers had complained about the noise coming through the intercom system.

   
   

10. During the week or so prior to February 9, 1993, Ruiz and Respondent had at least one minor confrontation. During this prior instance, Respondent advised Ruiz that he had to turn his radio down before he reached the drive-thru booth because the intercom system picked up the background noise and it interfered with the tellers' ability to communicate with the customers. Ruiz replied that he would turn down the radio when he got to the window.

    
    

11. When Ruiz entered the Bank's parking lot on February 9, 1993, his radio was playing loudly. Respondent approached the driver's side window of Ruiz' vehicle and asked Ruiz to turn his radio down. Ruiz responded with a number of obscenities.

    
    

12. Respondent told Ruiz that unless he turned his radio down, he could not use the drive-thru facility. Ruiz refused to comply. Respondent stood in front of Ruiz' vehicle and directed him away from the drive-thru lane.

    
    

13. Ruiz' vehicle moved forward and bumped into Respondent. Respondent drew his gun and shouted at Ruiz to stop the car and get out. Respondent claims that he intended to hold Ruiz while he called the police.

    
    

14. The parties exchanged words and Ruiz' truck again moved forward striking Respondent. Respondent was not knocked down or otherwise injured, however, his gun discharged. The bullet penetrated the windshield of Ruiz' truck and hit the steering wheel. A fragment from the steering wheel struck Ruiz in the neck or chest area, causing a minor wound.

    
    

15. Respondent contends that he was justified in drawing his weapon and/or using deadly force "to prevent the escape from custody of a person who committed a felony in his presence." This contention is rejected because there is no evidence that Ruiz was attempting to escape. Furthermore, it is not clear that Ruiz in fact committed a felony, nor does it appear that the use of force was reasonably necessary under the circumstances of this case.

    
    

16. Respondent also contends that he was justified in drawing his weapon in self-defense because he was being threatened by a deadly weapon, i.e. Ruiz' truck, and he had no reasonable means of escape. Respondent claims that he was boxed in by a vehicle in front of the truck and had no reasonable way to retreat from the "deadly force" that confronted him. Respondent's contention that he had no reasonable means of escape is rejected as not credible. Contrary to Respondent's claim, the evidence was clear that Respondent had reasonable means of escape. Moreover, there were alternate ways to handle the situation which would have diffused rather than exacerbated the tension and danger.

    
    

17. Respondent claims that the gun discharged accidently when the truck hit him. No persuasive evidence was presented to refute this contention. Indeed, in some of his statements, Ruiz admitted that the gun may have gone off by accident when his truck struck Respondent.

18. In sum, it is clear that Ruiz was belligerent and abusive and that his car bumped into Respondent twice. Nonetheless, Respondent's contention that he was justified in drawing his weapon and that he had no reasonable means of escape is rejected. While it can not be concluded from the evidence presented that Respondent deliberately shot at Ruiz, the evidence did establish that Respondent was guilty of negligence, misconduct and/or incompetency when he drew and pointed his loaded weapon at Ruiz. The circumstances did not justify Respondent pointing a loaded weapon at Ruiz. Without question, Respondent failed to demonstrate that level of discretion and caution that is expected of a person licensed to carry a firearm in the course of his employment.

    
    

19. After the gun went off, Respondent immediately jumped into the truck and took Ruiz to a nearby hospital where Ruiz' minor injury was treated and he was released.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Section 120.57(1), Florida Statutes.

    
    

21. The Department has the authority to revoke or suspend a license issued pursuant to Section 493.6121, Florida Statutes, upon determination that a licensee has violated any of the provisions of Section 493.6118(1), Florida Statutes.

    
    

22. The Department has the burden of proof in this license disciplinary proceeding and, since the Department has requested revocation or suspension of Respondent's licenses, the allegations against Respondent must be proven by clear and convincing evidence. See, Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Pic N' Save v. Department of Business Regulation, 601 So.2d 245 (Fla. 1st DCA 1992); Munch v. Department of Professional Regulation, 592 So.2d 1136 (Fla. 1st DCA 1992); Newberry v. Florida Department of Law Enforcement, 585 So.2d 500 (Fla. 3d DCA 1991). "The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

    
    

23. Disciplinary action may be based only upon the violations specifically alleged in the administrative complaint. See, Kinney v. Department of State,

    501 So.2d 129, 133 (Fla. 5th DCA 1987); Hunter v. Department of Professional Regulation, 458 So.2d 842, 844 (Fla. 2d DCA 1984).

    
    

24. The Third Amended Administrative Complaint in this case includes four counts. Counts I and II charge Respondent with violating Sections 493.6118(1)(a) and (c) Florida Statutes, as a result of his alleged conviction for shoplifting in North Carolina in 1986 and his failure to disclose that conviction in his application for a class "D" license. The application form required Respondent to detail any incidents in which he was arrested. Respondent claims that he did not list the shoplifting incident on his application because he was never formally arrested. Instead, he claims that he was issued a Notice To Appear after he was caught taking an aspirin from a bottle in a store. The only evidence presented regarding this incident was Respondent's testimony and a copy of a computer printout from a North Carolina court. The evidence presented was insufficient to refute Respondent's explanation of the incident and his contention that he was not arrested. The distinction between a Notice To Appear and an arrest may be hypertechnical and

    Respondent probably should have disclosed it on his application. However, it cannot be concluded based upon the evidence presented in this case that Respondent willfully or deliberately submitted a fraudulent application.

    Moreover, it cannot be concluded that Respondent has been convicted of a crime "which directly relates to the business for which the license is held or sought." Accordingly, Counts I and II should be dismissed.

    
    

25. While it appears that a criminal summons may have been issued for Respondent in connection with an incident in North Carolina in 1987 involving the alleged pointing of a gun at another individual, it is not clear that Respondent was ever served with that summons and/or arrested. Moreover, the Third Amended Administrative Complaint does not contain any allegations regarding this incident. Similarly, it appears that Respondent was involved in an incident in 1979 which was disclosed on his Class "D" Security Officer License Application, but not disclosed on his Class "G" Firearms License Application. The reasons for this inconsistency are not clear, but no allegations are contained in the Third Amended Administrative Complaint regarding this discrepancy.

    
    

26. Counts III and IV of the Third Amended Administrative Complaint charge Respondent with violating Sections 493.6118(1)(j) and (f), Florida Statutes. Those sections authorize the Department to take disciplinary action against the licensee on the following grounds:

    
    

    (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.

    * * *

    (f) Proof that the applicant or licensee is guilty of fraud or deceit, or of negligence, incompetency, or misconduct, in the practice of the activities regulated under this chapter.

    
    

27. The statute does not define "an act of violence or the use of force on any person." The evidence in this case was insufficient to overcome Respondent's contention that the discharge of his firearm was accidental. The Department has not presented any evidence or argument to establish that the improper display and accidental discharge of a firearm falls within the scope of Section 493.6118(1)(j), Florida Statutes. Accordingly, the Department has not proven that Respondent is guilty of an act of violence or the use of force as alleged in Count III of the Third Amended Administrative Complaint.

    
    

28. Rule 1C-3.106, Florida Administrative Code, refers to the Firearms Instructor's Training Manual which must be utilized by all licensed Firearms Instructors in this state. Section II of that Manual provides as follows:

    
    

    The security officer who is armed with a hand gun is depending on it as an instrument that may assure safety and protect life. It is expected that a security officer must be properly trained

    and knowledgeable of the principals of safe hand- ling and care of the hand gun. The following instruction is to provide the security officer the basic elements of hand gun safety and maintenance. . . .

    1. The general safety rules in handling firearms:

       * * *

       1. Never point a firearm, loaded or unloaded at anyone you do not intend to shoot, nor in a direction where unintentional discharge could cause injury or damage. . . .

       2. Keep the finger out of the trigger guard until you are ready to fire. . . . Even stumbling may cause an involuntary grip which could cause an accidental discharge. Remember . . . the trigger is for firing . . . the handle is for handling.

       3. Don't pull the hammer back to the cocked position unless you intend to fire. . . .

       
       

29. The clear and convincing evidence in this case established that Respondent did not comply with the above stated standards and was guilty of misconduct, negligence and/or incompetency in conducting regulated activities as alleged in Count IV of the Third Amended Administrative Complaint.

    
    

30. Upon a finding of a violation of any subsection of Section 493.6118, Florida Statutes, subsection (2) of that statute authorizes the Department to issue a reprimand, impose an administrative fine not to exceed $1,000.00 for every count or separate offense, place the licensee on probation for a period of time and subject to such conditions as the Department may specify and/or to suspend or revoke a license.

    
    

31. The disciplinary guidelines adopted by the Department are found in Rule 1C-3.113, Florida Administrative Code. Subsection (1)(b)20, 25 and 26, and provide that the penalty for misconduct, negligence or incompetence in violation of Section 493.6118(1)(f), Florida Statutes, will result in a fine of $1,000.00. Subsection (2) of that Rule provides that the Department can deviate from the recommended penalties "in an amount equal to 50 percent of the stated penalty" upon a consideration of certain enumerated aggravating or mitigating factors including the severity of the offense, the danger to the public, the actual physical, financial or emotional damage caused by the violation, the deterent effect of the penalty and the effect of the proposed penalty upon the licensee's livelihood. Subsection (3) of the Rule provides as follows:

    
    

    1. Penalties imposed by the Department pursuant to subsections (1) and (2) above may be imposed individually or in combination of the following when applicable:

       1. Denial of an application for licensure;

       2. Refusal of an application for renewal of a license;

       3. Revocation or suspension of a license;

       4. Imposition of an administrative fine not to exceed $1,000.00 for each count or separate offense;

       5. Issuance of a reprimand;

       6. Imposition of a probationary period for a specific period of time and subject to conditions specified by the Department.

32. Subsections (1) and (2) of the Rule considered in isolation would appear to indicate that the maximum penalty that could be imposed in this case for a violation of Section 493.6118(1)(f) would be an administrative fine of

    $1,500.00. However, the statute clearly authorizes a more severe penalty. In addition, subsection (3) of the Rule seems to be consistent with the statute and to authorize the imposition of a more severe penalty.

    
    

33. The violation in this case is quite serious. The inappropriate display and handling of a firearm by an armed security guard is a potentially life threating situation. In this case, Ruiz received only relatively minor injuries. However, a strong penalty is necessary to discourage Respondent and other licensees from future violations.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department of State, Division of Licensing enter a

Final Order dismissing Counts I, II, and III of the Third Amended Administrative

Complaint filed against Respondent and finding Respondent guilty of the allegations contained in Count IV of that Third Amended Administrative Complaint. As a penalty for the violation, Respondent should be fined

$1,500.00, his Class "G" Firearms License should be revoked and his Class "D" Security Guard License should be placed on probation for three years.

DONE AND ENTERED this 28th day of December, 1994, in Tallahassee, Leon County, Florida.

J. STEPHEN MENTON 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 28th day of December, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2566

Petitioner has not submitted any proposed Findings of Fact. Respondent's proposed recommended order included a section entitled Findings of Fact.

However, that section does not include any individually numbered proposed findings of fact and the paragraphs contained in this section of Respondent's proposal include a mixture factual assertions, argument and legal conclusions. The proposal has been fully reviewed and considered. However, because proposed findings of fact have not been separately identified, no rulings are made with respect to Respondent's proposal.

COPIES FURNISHED:

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

The Capitol, MS #4

Tallahassee, Florida 32399-0250

James S. Benjamin, Esquire Benjamin & Aaronson, P.A.

100 Northeast Third Avenue, Suite 850 Fort Lauderdale, Florida 33301

Honorable Jim Smith Secretary 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 ten 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: 93-002566

Orders for Case No: 93-002566