STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, DIVISION ) OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 94-2282

)

GEORGE ROGER HESS, )

)

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 October 21, 1994, in Fort Pierce, Florida.

APPEARANCES

For Petitioner: Henri C. Cawthon, Esquire

Assistant General Counsel Department of State Division of Licensing

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

For Respondent: Juan F. Torres, III, Esquire

Post Office Box 3269

Fort Pierce, Florida 34948-3269 STATEMENT OF THE ISSUES

Whether Respondent, who is licensed by Petitioner as a Class "D" Security Officer and as a Class "DI" Security Officer Instructor, committed the offenses set forth in the Administrative Complaint and the penalties, if any, that should be imposed.

PRELIMINARY STATEMENT

Respondent is licensed by Petitioner as a Class "D" Security Officer and as a Class "DI" Security Officer Instructor. Petitioner filed an Administrative Complaint that contained certain factual allegations and charged Respondent in three separate counts with violating certain statutes. Count I charged that on or about July 1, 1993, Respondent committed a sexual battery on a child and asserts that the sexual battery is an act of violence within the meaning of Section 493.6118(1)(j), Florida Statutes. The allegations of Count II were dismissed by the Petitioner at the formal hearing. Count III charged that during the period of July 1, 1993, to July 19, 1993, Respondent exhibited a lack of good moral character in that he paid for and engaged in sexual activity with children in violation of Section 493.6118(1)(s), Florida Statutes. Respondent

timely challenged the allegations of the Administrative Complaint, and this formal proceeding before the Division of Administrative Hearings followed.

At the formal hearing, Petitioner presented the testimony of one witness, Fort Pierce Police Detective Charles Wharton. Respondent testified on his own behalf. Neither party offered any exhibits.

No transcript of the proceedings has been filed. The proposed findings of fact submitted by both parties are adopted in material part by the Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to this proceeding, Respondent held Class "D" Security Officer License Number D00-26960 and Class "DI" Security Officer Instructor License Number DI89-00304. Both licenses were duly issued by Petitioner pursuant to the provisions of Chapter 493, Florida Statutes.

   
   

2. Respondent has held his Class "D" license since 1976 and has held his Class "DI" license since 1989. Respondent has no previous record of a felony or misdemeanor offense and was, at the time of the formal hearing, working at an adult community condominium complex as a security guard.

   
   

3. Officer Charles Wharton is a detective with the Fort Pierce Police Department who was, at the times pertinent to this proceeding, assigned to the juvenile division. T.G. is a female who was eleven years of age as of July 1993. F.S. 1/ is a female who was fourteen years of age as of July 1993. Both F.S. and T.G. were described by Officer Wharton as appearing their stated ages. Both of these girls were from what Officer Wharton referred to as "Fort Pierce's ghetto" and both were described by Officer Wharton as being "street wise".

   
   

4. On or about July 1, 1993, Respondent paid T.G. and F.S. to have sexual relations with him at his house in Fort Pierce. The sex with F.S. included the penetration of her vagina with his penis. The sex with T.G. included her having oral contact with his penis.

   
   

5. Officer Wharton questioned Respondent and read to him his Miranda rights. Respondent waived his Miranda rights and admitted to Officer Wharton that he had paid these two girls to have sex with him as described above.

   
   

6. Officer Wharton referred this matter to the State Attorney's Office, which subsequently dismissed all charges against Respondent.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

8. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So.2d 112 (Fla. 1st DCA 1989). Evans Packing, supra, 550 So. 2d 112, 116, fn. 5, provides the following pertinent to the clear and convincing evidence standard:

   That standard has been described as follows:

   [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the

   firm belief of (sic) 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).

   
   

9. Section 794.011(1)(h), Florida Statutes, defines the term "sexual battery", in pertinent part, as follows:

   
   

   (h) "Sexual battery" means oral, anal, or vaginal penetration by, or union with, the sexual organ of another ...

   
   

10. Petitioner established that Respondent committed a "sexual battery" against T.G. at a time she was less than 12 years of age. Pursuant to Section 794.011(2)(a), Florida Statutes, it is a capital felony for a person 18 years of age or older to commit a sexual battery upon a person less than 12 years of age.

    
    

11. Petitioner asserts that the sexual battery committed by Respondent is a violent act within the meaning of Section 493.6118(1)(j), Florida Statutes, which 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 licensee ... :

       * * *

       (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.

       
       

12. There was no evidence that there was any violence or force involved in the acts between Respondent and either of these girls. To the contrary, the evidence establishes that these acts were consented to by these girls in return for money. As reprehensible as these acts are, it is concluded that Petitioner failed to establish that Respondent committed "... an act of violence or the use of force on any person ..." within the meaning of Section 493.6118(1)(j), Florida Statutes. Consequently, it is concluded that Count I of the Administrative Complaint should be dismissed.

    
    

13. Section 493.6106(1)(b), Florida Statutes, requires that individuals licensed by the department must be of good moral character. Section 493.6101(7), Florida Statutes defines the term "good moral character" as follows:

    
    

    (7) "Good moral character" means a personal history of honesty, fairness, and respect for the rights and property of others and for the laws of this state and nation.

14. Respondent knew or should have known that his acts with these two young girls violate Florida criminal laws pertaining to solicitation of prostitution and to sexual acts with children. Petitioner established by clear and convincing evidence that Respondent demonstrated a lack of good moral character by paying these two young girls for sex on or about July 1, 1993, in violation of Section 493.6118(1)(s), Florida Statutes, which 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 licensee...

       * * *

       1. Violating any provision of this chapter.

          
          

15. Section 493.6118(2), Florida Statutes, provides, in pertinent part, as follows:

    
    

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

    * * *

    1. Issue a reprimand.

    2. Impose an administrative fine not to exceed

       $1,000 for every count or separate offense.

    3. Place the licensee on probation for a period of time and subject to such conditions as the department may specify.

    4. Suspend or revoke a license.

    
    

16. Petitioner has adopted penalty guidelines for violations of Section 493.6118(1)(s), Florida Statutes, that appear at Rule 1C-3.113(1)(b), Florida Administrative Code. Those guidelines have no specific recommended penalties that are pertinent to this proceeding, and Petitioner has pointed to no guidelines where the licensee has exhibited a lack of good moral character.

    
    

17. In making the recommendation that follows, the undersigned has considered the serious misconduct by Respondent. In addition, the undersigned has considered that Respondent has been licensed as a security officer since 1976, that he is gainfully employed, and that he has not been subject to prior discipline. The events on or about July 1, 1993, appear to be isolated and Respondent does not appear to be a danger to the public.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the findings of

fact and the conclusions of law contained herein, imposes an administrative fine

in the amount of $1,000, suspends Respondent's licensure for a period of three months, and thereafter places Respondent's licensure on probation for a period of one year.

DONE AND ENTERED this 10th day of November, 1994, 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 10th day of November, 1994.

ENDNOTE

1/ Petitioner does not assert in its post-hearing submittal any facts or conclusions pertaining to F.S. The evidence presented at the formal hearing established the facts contained in this Recommended Order pertaining to F.S. by clear and convincing evidence.

COPIES FURNISHED:

Honorable Jim Smith Secretary of State The Capitol

Tallahassee, Florida 32399-0250

Phyllis Slater, General Counsel Department of State

Division of Licensing The Capitol, PL-02

Tallahassee, Florida 32399-0250

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

The Capitol, MS #4

Tallahassee, Florida 32399-0250

Juan F. Torres, III, Esquire Post Office Box 3269

Fort Pierce, Florida 34948-3269

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: 94-002282

Orders for Case No: 94-002282