STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 94-4482

)

EDWARD I SHUVALOV, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on February 9, 1995, in Largo, Florida. The Hearing Officer conducted the hearing telephonically.

APPEARANCES

For Petitioner: Richard Whidden, Jr., Esquire

Department of State Division of Licensing

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

For Respondent: Edward Shuvalov, pro se

Post Office Box 5057 Gulfport, Florida 33737

STATEMENT OF THE ISSUE

Whether the allegations of the Amended Administrative Complaint are correct and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Amended Administrative Complaint, the Petitioner alleges that the Respondent committed theft, resisted arrest without violence, and on three occasions committed battery. The Respondent denied the allegations and requested a hearing on the matter. The request was referred to the Division of Administrative Hearings which scheduled the case for hearing.

At the hearing, the Petitioner presented the testimony of six witnesses and had six exhibits admitted into evidence. The Respondent testified on his own behalf.

A transcript of the hearing was filed. The Petitioner filed a proposed recommended order. The Respondent filed a letter setting forth his position which was treated as a proposed recommended order. The proposed findings of fact are ruled upon either directly or indirectly as reflected in this

Recommended Order, and in the Appendix which is attached and hereby made a part of this Recommended Order.

In the Petitioner's Proposed Recommended Order, the Petitioner gives notice of the dismissal of Count I of the complaint. Accordingly, this Recommended Order includes no Findings of Fact related to the dismissed count.

FINDINGS OF FACT

1. The Respondent holds a Class "D" Security Officer license number D92- 03311. The license was issued in 1992.

   
   

2. Beginning in 1992, the Petitioner resided with his companion, Tiatiana Aleksandrova, and their children Ruth and Ilia Shuvalov.

   
   

3. On December 18, 1992, the Respondent and Tiatiana were arguing and he shoved Tiatiana. Daughter Ruth, 14 years old, was present and saw the incident occur.

   
   

4. Apparently attempting to protect her mother, Ruth became involved in the altercation. At the point of her involvement, the Respondent grabbed Ruth by the arm and throat, and pushed her into the kitchen wall.

   
   

5. Ruth, much younger and smaller than the Respondent, posed no threat of harm to him.

   
   

6. Immediately after the December 18 incident, Tiatiana, Ruth and 12 year old Ilia went to the Gulfport, Florida, Police Department where they discussed the incident with Officer Michael J. Bieluwka.

   
   

7. Officer Bieluwka went to the Respondent's home. The Respondent refused to cooperate in the investigation.

   
   

8. Based on the accounts of the events provided by Tiatiana and the children, Officer Bieluwka believed he had probable cause to arrest the Respondent. He attempted to effect the arrest at the Respondent's home.

   
   

9. As Officer Bieluwka placed the Respondent under arrest, the Respondent pulled his arm from the officer's grasp and attempted to get away from him. The Respondent was charged with resisting arrest without violence.

   
   

10. Eventually, the Respondent entered a plea of no contest and was convicted of resisting arrest without violence.

    
    

11. On June 22, 1993, Tiatiana and the children were asleep in the Respondent's home. Just before dawn, the Respondent entered the room where Tiatiana slept, kicked her, pulled her hair, and demanded that she get up.

    
    

12. Based on the June 22 event, the Respondent was charged with criminal battery. He entered a plea of no contest and was convicted of battery.

    
    

13. On July 20, 1993, the Respondent had shut off the water line to the house at the main valve. Tiatiana, attempting to bathe, went outside and turned the water back on. An argument ensued outside the house and continuing when they reentered the structure.

14. As Tiatiana stood in the kitchen, the Respondent entered through a screen door. The door closed on and broke a drinking glass he held in his hand. He threw the broken glass towards Tiatiana. The glass struck and cut her right leg just below the knee.

    
    

15. Based on the July 20 event, the Respondent was charged with criminal battery. He entered a plea of no contest and was convicted of battery.

    
    

16. There is no evidence that Tiatiana posed a threat of harm to the Respondent at any time or that she consented to the violence. There is no evidence that commission of violence or use of force on any person was required to protect the Respondent or another person from physical harm.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

18. The burden of proof is on the Petitioner to establish the truthfulness of the allegations of the Amended Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

19. As set forth in the Findings of Fact, the burden has been met as to counts II through V of the Amended Administrative Complaint. Count I of the Amended Complaint alleges a February 11, 1993 incident of petit theft and has been withdrawn by the agency.

    
    

20. Section 493.6118, Florida Statutes, in material part provides:

    
    

    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.

       * * *

       (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.

       * * *

       (t) Violating any provision of this chapter.

       
       

    2. 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.

       2. Issue a reprimand.

       3. Impose an administrative fine not to exceed

          $1,000 for every count or separate offense.

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

       5. Suspend or revoke a license.

21. Each individual licensed by the department must be of good moral character. Section 493.6106(1)(b), Florida Statutes. "Good moral character" is defined as a personal history of honesty, fairness and respect for the rights and property of others and for the law of this state and nation. Section 493.6101(7), Florida Statutes.

    
    

22. The evidence establishes that on December 18, 1992, the Respondent resisted arrest without violence, under section 843.02, Florida Statutes. The Respondent was convicted of the offense. The events of December 18, 1992 demonstrate disregard for the laws of Florida and displays a lack of good moral character.

    
    

23. The evidence also establishes that on three separate occasions, the Respondent committed acts of violence or the use of force. There is no evidence that his actions were required to lawfully protect himself or another person from physical harm. The respondent offered no explanation for his actions. The acts of violence towards his companion and child demonstrate disregard for the rights of others and for the law of this state.

    
    

24. Good moral character is a prerequisite for licensure under the provisions of Section 493.6106(1)(b), Florida Statutes. The evidence in this matter establishes that the Respondent is not of good moral character and is not entitled to licensure.

    
    

25. Rule 1C-3.113(1)(b), Florida Administrative Code, sets forth the appropriate range of penalties for certain violations identified therein. Commission of battery for other than the lawful protection of oneself or another is a violation of Section 493.6118(1)(j), Florida Statutes, for which a fine of

$500 will be imposed. Rule 1C-3.113(1)(b)10., Florida Administrative Code. In this case, the Respondent has a record of three separate battery convictions, each resulting in a minimum fine of $500.

RECOMMENDATION

Based on the foregoing, it is hereby RECOMMENDED that the Department Of State, Division Of Licensing, enter a Final Order revoking the Class "D" Security Officer license of Edward Shuvalov, license number D92-03311, and imposing a fine of $1,500.

DONE and RECOMMENDED this 13th day of March, 1995 in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM

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 13th day of March, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4482

To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties.

Petitioner

The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order.

Respondent

The Respondent's proposed recommended order is a statement of the financial hardship which will allegedly be imposed if he does not prevail in this case.

The Hearing Officer's responsibility is to determine whether the allegations of the Administrative Complaint are correct and, if so, what penalty should be imposed. The imposition of penalties is governed by the Rules cited herein.

The Respondent's proposed recommended order is rejected as legally irrelevant.

COPIES FURNISHED:

Honorable Sandra B. Mortham Secretary of State

The Capitol

Tallahassee, Florida 32399-0250

Don Bell General Counsel

Department of State The Capitol, PL-02

Tallahassee, Florida 32399-0250

Richard Whidden, Jr., Esquire Department of State

Division of Licensing The Capitol, M.S. #4

Tallahassee, Florida 32399-0250

Edward Shuvalov

Post Office Box 5057 Gulfport, Florida 33737

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: 94-004482

Orders for Case No: 94-004482