STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANGEL E. FIGUEROA, )

)

Petitioner, )

)

vs. ) CASE NO. 94-4066S

)

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Daniel M. Kilbride, held a formal hearing in the above-styled case on November 17, 1994, in Lakeland, Florida.

APPEARANCES

For Petitioner: Angel E. Figueroa (pro se)

5331 David Street

Lakeland, Florida 33813

For Respondent: Richard R. Whidden, Jr., Esquire

Department of State Division of Licensing

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

STATEMENT OF THE ISSUES

Whether on or about November 28, 1993, Petitioner committed an act of violence or used force on another person which was not for the lawful protection of himself or another and was sufficient grounds for denial of Petitioner's application for a Class "D" Security Officer and Class "G" Statewide Firearm Licenses, pursuant to Sections 493.6118(1)(j) and (2), Florida Statutes.

PRELIMINARY STATEMENT

By application dated February 10, 1994, Petitioner applied to Respondent for a Florida Security Officer license and a Statewide Firearm license. In an Amended Administrative Denial filed by the Department of State, Division of Licensing on July 29, 1994, Respondent informed Petitioner that his application had been denied based on a criminal records check and for committing an act of violence on another person. On July 7, 1994, Petitioner completed an Election of Rights in which he denied the allegations and requested a formal hearing before this tribunal. This matter was referred to the Division of Administrative Hearings on July 14, 1994 and this matter was set for hearing.

At the hearing, Respondent elected to proceed with the sole allegation that Petitioner committed an act of violence or used force on another person which was not for the lawful protection of himself or another on November 28, 1993 as the grounds for denial of a license by the Respondent. Petitioner testified himself, and offered no exhibits into evidence. Respondent presented one witness and offered into evidence three exhibits, including a video tape. All exhibits were admitted into evidence.

A transcript of the hearing was not prepared. Petitioner did not file proposed findings of fact. Respondent filed a proposed recommended order on November 28, 1994. Respondent's proposals have been given careful consideration and have been adopted where supported by the greater weight of evidence. My specific rulings on Respondent's proposals appear in the Appendix attached hereto.

FINDINGS OF FACT

1. By application dated February 10, 1994, Petitioner applied to Respondent for a Class "D" Security Officer license and a Class "G" Statewide Firearm license.

   
   

2. The applications prepared by Petitioner were complete, and included the required photos and copy of a certificate evidencing successful completion of security officer training as required by statute.

   
   

3. On November 28, 1993, the Petitioner met his estranged spouse in the Lakeland police station lobby to exchange custody of their baby daughter.

   
   

4. This transfer of custody was videotaped, allegedly by the Petitioner's mother-in-law.

   
   

5. As the transfer was ending, the Petitioner became agitated at the person holding the camera. Petitioner picked up the baby car seat and moved towards the camera.

   
   

6. The Petitioner swung the baby car seat, while the baby was in it, in the direction of the camera.

   
   

7. No competent evidence was produced which proved that the car seat, while being swung by Petitioner, struck another person or an object held by another person.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. The Department of State has jurisdiction over this matter pursuant to Chapter 493, Florida Statutes.

   
   

10. Respondent is responsible for granting and denying applications for licenses for Class "D" Security Officers and Class "G" Statewide Firearm. Section 493.6118, Florida Statutes.

    
    

11. Section 493.6118, Florida Statutes, in pertinent part, reads as follows:

    1. The following constitute grounds for

       which disciplinary action specified in subsection

    2. may be taken by the department against any licensee, agency, or applicant regulated by this chapter, or any unlicensed person engaged in activities regulated under 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 form physical harm.

       1. 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.

             
             

12. In a case where Petitioner seeks a license, the Respondent asserts that the Petitioner bears the burden of establishing his entitlement to the license by a preponderance of the evidence. Florida Department of Transportation v. J.W.C., Incorporated, 396 So.2d 778, 788 (Fla. 1st DCA 1981). However, the First District Court of Appeals has indicated a shift of this burden to the state agency in denial cases alleging the misconduct of the applicant. Osborne Stern and Company v. Department of Banking and Finance, 19 FLW D82 (Fla. 1st DCA 1994). This legal issue remains unresolved as the Florida Supreme Court has not accepted the certified question posed by the First District Court of Appeals in Osborne and the Second District Court of Appeals, where this case is located, has not yet addressed this new doctrine.

    
    

13. A battery is committed by the intentional touching of another against that persons consent. A battery is an act of violence as it is the unlawful use of force against another. A battery, however, may also be committed by striking some object, "other than the actual body of another person, if that object has such an intimate connection with the person so as to be regarded as an extension of the person, such as . . . an object held or carried by the person." 15A Fla. Jr. 2d. Crim. Law Section 3302.

    
    

14. Any relevant evidence is admissible if it is the sort of evidence on which reasonable prudent persons are accustomed to rely in the conduct of their affairs. However, hearsay evidence may be used to supplement or explain other evidence, but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. Section 120.58, Florida Statutes, and Rule 60Q-2.026(3), Florida Administrative Code. In this case, the Department chose to call as its sole witness a law enforcement officer who was in the room but did not witness the incident in question, nor did he produce the video tape. He merely viewed it after the fact. The video tape itself, offered in evidence as Respondent's Exhibit 3, is hearsay and its contents were not corroborated by other non-hearsay evidence.

    
    

15. Therefore, Petitioner cannot be denied licensure under either standard. Under the J.W.C. standard, Respondent has met his burden of establishing his entitlement to the license by the greater weight of admissible evidence. Under the Osborne standard, the Respondent has not presented clear and convincing evidence of an act of violence committed by Petitioner on November 28, 1993. Therefore, the Department may not deny the Petitioner's applications for licensure based on the alleged act of violence asserted in the amended denial letter.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered approving Petitioner's application for a Class "D" Security Officers license and a Class "G" Statewide Firearm license as provided for in Section 493.6118, Florida Statutes (1993).

DONE AND ENTERED this 11th day of January, 1995, in Tallahassee, Florida.

DANIEL M. KILBRIDE

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 11th day of January, 1995.

APPENDIX

Petitioner is eligible for licensure under either stand Petitioner did not submit proposed findings of fact.

Respondent proposed finding of fact:

Accepted in substance: paragraph 1, 2, 3, 4, 5, 6 (in part).

Rejected as not supported by the greater weight of competent (non-hearsay) evidence: paragraphs 6 (in part), 7.

COPIES FURNISHED:

Angel E. Figueroa 5331 David Street

Lakeland, Florida 33813

Richard R. Whidden, Jr., Esquire Department of State

Division of Licensing The Capitol, MS-4

Tallahassee, Florida 32399-0250

Honorable Jim Smith Secretary of State Department of State The Capitol

Tallahassee, Florida 32399-0250

Phyllis Slater, Esquire General Counsel

The Capitol

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.

================================================================= AGENCY FINAL ORDER

=================================================================

ANGEL E. FIGUEROA,

Petitioner,

STATE OF FLORIDA DEPARTMENT OF STATE

vs. CASE NO. G94-00453

DOAH CASE NO. 94-4066S

DEPARTMENT OF STATE, DIVISION OF LICENSING,

Respondent.

/

FINAL ORDER

This cause came before the Department of State, Division of Licensing, for consideration and final agency action. A formal administrative hearing was conducted pursuant to Section 120.57(1), Florida Statutes, on November 17, 1994, before Daniel M. Kilbride, a duly designated Hearing Officer of the Division of Administrative Hearings. A Recommended Order was submitted by the Hearing Officer on January 11, 1995, a copy of which is attached. Respondent timely filed exceptions.

RULINGS ON EXCEPTIONS FILED BY RESPONDENT

1. Respondent takes exception to Finding of Fact Number 7 of the Recommended Order which found that "(n)o competent substantial evidence was produced which proved that the car seat, while being swung by Petitioner, struck another person or an object held by another person". This exception is accepted and Finding of Fact Number 7 is rejected as a complete review of the record and transcript indicates that there is no competent substantial evidence to support

   that finding. To the contrary, the evidence is clear from the Petitioner's testimony that Petitioner committed an act of violence by striking the camera which the mother-in-law was holding as alleged in the denial letter. This testimony is corroborated by the Lakeland police officer's testimony and the videotape introduced as Respondent's Exhibit 3.

   
   

2. The Respondent also excepts to Conclusion of Law Number 14. This exception must be accepted as the Hearing Officer based this conclusion on the fact that there was nothing other than hearsay evidence to support the finding that Petitioner struck the camera which his mother-in-law was holding. That finding of fact, as discussed above, was rejected as Petitioner's testimony, which is non-hearsay evidence, clearly shows that Petitioner did strike the camera held by his mother-in-law. Thus, the videotape, although hearsay, was corroborated by Petitioner's non-hearsay testimony, and by the hearsay testimony of the law enforcement officer. Hearsay evidence may be used to supplement or explain other evidence. Section 120.58(1)(a), Florida Statutes and Rule 60Q- 2.026, Florida Administrative Code.

   
   

3. The exception to Conclusion of Law Number 15 is also accepted as there is competent substantial evidence to show Petitioner committed an act of violence and the Department may deny licensure per Section 493.6118(1)(j) Florida Statutes.

FINDINGS OF FACT

The Department of State hereby adopts and incorporates by reference the Findings of Fact in the Recommended Order with the exception of Finding of Fact Number 7, which is rejected.

CONCLUSIONS OF LAW

The Department of State hereby adopts and incorporates by referenCe the Conclusions of Law in the Recommended Order with the exceptions of Conclusions of Law Numbers 14 and 15 which are rejected. The Department of State makes an additional conclusion of law that further sufficient evidence was presented by Respondent to mitigate the denial of his application for licensure.

WHEREFORE, based upon the foregoing, it is ORDERED that the denial letter dated July 29, 1994, be RESCINDED and that the Division continue processing Petitioner's application for licensure in accordance with this order. The license may not be denied solely upon the grounds cited in the denial letter of July 29, 1994. If issued, Petitioner's license shall be placed on one (1) year non-reporting probation.

NOTICE OF RIGHTS

This Order constitutes final agency action. Any party who is adversely affected by this Order may seek judicial review under Section 120.68, Florida Statutes. Such proceedings are commenced by filing a Notice of Appeal, pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the Deputy Clerk of the Division of Licensing, Department of State, The Capitol, Mail Station #4, Tallahassee, Florida 32399-0250; and by filing a copy of the Notice of Appeal, accompanied by the applicable filing fees, with the First District Court of Appeal, or with the District Court of Appeal in the appellate district where the party resides. The Notice of Appeal must be filed within thirty (30) days of the day this Order is filed with the Clerk of the Department.

DONE AND ORDERED at Tallahassee, Florida this 3rd day of March, 1995.

John M. Russi, Director Division of Licensing

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing Final Order has been sent by

U.S. Mail this 3rd day of March 1995, to Angel E. Figueroa, 5331 David Street, Lakeland, Florida 33813.

Michele Guy

Assistant General Counsel Department of State Division of Licensing

The Capitol, MS #4

Tallahassee, Florida 32399-0250

(904) 488-3492

Copies Furnished To: Filed with Agency Clerk

License File Division of Administrative Hearings

/cf

Docket for Case No: 94-004066

Orders for Case No: 94-004066