b

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

) CASE NO. 94-5987

vs. )

)

IVAN DREW MACHIZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on December 14, 1994, by videoconference. The parties, their witnesses and the court reporter participated from the videoconference center in Tampa, Florida; the hearing officer presided from Tallahassee, Florida.

APPEARANCES

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

Department of State

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

For Respondent: Ivan Drew Machiz

(representing himself) Post Office Box 95565 Atlanta, Georgia 30306

STATEMENT OF THE ISSUES

The Administrative complaint dated September 19, 1994, alleges that Respondent, a licensed class "D" security officer, violated section 493.6118(1)(j), F.S. by committing a battery on or about January 28, 1994.

The issue is whether that violation occurred and, if so, what discipline is appropriate.

PRELIMINARY STATEMENT

The case was referred to the Division of Administrative Hearings after Respondent filed his timely answer and request for formal evidentiary hearing.

At the hearing, Petitioner presented the testimony of Deputy Chris Williams, Hillsborough County Sheriff's Department; and Benjamin Dobrin. The testimony of Jameryl Curley was presented by transcript of her testimony at the related criminal trial, which transcript was received in evidence without

objection as Petitioner's exhibit #1. Also without objection, Petitioner's exhibit #2, a case disposition print-out, was received in evidence.

Respondent cross-examined the Petitioner's witnesses and testified in his own behalf. At close of hearing Respondent requested and was granted leave to late-file the remaining transcript of his criminal trial, as his exhibit #1.

This transcript was filed on February 2, 1995, several weeks after the parties filed their proposed recommended orders. By a notice issued February 8, 1995, the parties were given an opportunity to urge or to oppose the consideration of the trial transcript. Mr. Machiz responded to the notice, and the transcript has been considered with the other evidence in this proceeding.

The findings of fact proposed by Petitioner are substantially adopted here. Respondent's proposed findings (with the exception of paragraph #1, which is adopted) are substantially rejected as unsupported by weight of evidence.

FINDINGS OF FACT

1. At all times relevant to this action, Respondent, Ivan Machiz, was licensed as a class "D" security officer, license number D91-19035, by the Department of State, Division of Licensing, pursuant to chapter 493, F.S. The proceeding at issue is the only disciplinary action in evidence against Mr. Machiz' license.

   
   

2. On January 28, 1994, Mr. Machiz visited Jameryl Curley at her apartment in Tampa, Florida. Mr. Machiz and Ms. Curley had been roommates. Mr. Machiz sought to recover his claimed possessions, including some chairs and a French racing bicycle.

   
   

3. Ms. Curley told Mr. Machiz she had sold the items as payment for some delinquent bills and that he was not entitled to take them. He moved to take the bicycle and she hung on to it.

   
   

4. The couple argued and struggled over the bicycle. In the struggle Mr. Machiz grabbed Ms. Curley and pinned her left arm behind her back, twisting it and causing her to cry for help.

   
   

5. Benjamin Dobrin, who lived with his brother in the next door apartment and shared a back porch with Ms. Curley, answered the call and found Mr. Machiz on top of Ms. Curley, forcing her face-first into a couch or futon, and twisting her arm behind her back.

   
   

6. Mr. Dobrin immediately returned to his apartment and called "911" for help. He then went back to Ms. Curley's apartment. By then, she was up and was holding on to the bicycle and Mr. Machiz was dragging it with her. She was crying and yelling, "Help, you're hurting me. Stop!" Mr. Dobrin and his brother stopped the bicycle and Mr. Machiz left.

   
   

7. Deputy Chris Williams arrived shortly thereafter and found Ms. Curley upset and hyperventilating. After interviewing the Dobrins, Ms. Curley, and then Mr. Machiz (at his apartment in the next building), Deputy Williams arrested Mr. Machiz. He admitted that he put Ms. Curley in a wristlock because she was struggling against his attempts to recover what he claimed was his. He was not protecting himself or another from physical harm.

8. At the criminal trial on one count of a battery charge, on March 24, 2994, County Judge Cynthia A. Holloway heard the testimony of the Deputy, Mr. Dobrin, Ms. Curley, and Mr. Machiz, and admonished that Mr. Machiz had no right to "self-help" recovery of his property, to go to someone's apartment to remove property over objection, and to "pulverize anybody to get that property back". (Respondent's exhibit #1, p. 20)

   
   

9. The court withheld adjudication of guilt, and placed Mr. Machiz on six months probation, with the provision for termination after four months on the condition that he perform 25 hours of community service, pay court costs and write a letter of apology to Ms. Curley.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to section 120.57(1), Florida Statutes.

    
    

11. The Department of State may suspend or revoke a license, issue a reprimand, impose a fine not to exceed $1000 and place a licensee on probation for any of the violations described in section 493.6118(1), F.S., including this violation with which Mr. Machiz is charged:

    
    

    (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. In a license discipline case such as this, the agency must prove the allegations by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

13. The agency met its burden of proof in this case. The testimony of the agency witnesses was consistent, at the hearing and at trial, with the notion that Mr. Machiz, and not Ms. Curley, was the aggressor; and that even if she did strike him as he contended, he could have left, and he was not required to restrain her with the violence that was observed by witness Dobrin.

    
    

14. Counsel for the Petitioner recommends a penalty of revocation of Mr. Machiz' license. The agency, however, has adopted disciplinary guidelines found in rule 1C-3.113, F.A.C. More specifically, the relevant guideline appears to be rule 1C-3.113(1)(b)10:

10. Commission of battery for other than the lawful protection of oneself or another is a violation of s. 493.6118(1)(j), F.S. for which a fine of $500 will be imposed.

(emphasis added)

Neither party has presented evidence or argument for deviation from this prescribed penalty.

RECOMMENDATION

Based on the foregoing, it is hereby,

RECOMMENDED:

That the agency enter its Final Order finding that Ivan Drew Machiz violated section 493.6118(1)(j), F.S., and imposing a penalty of $500 fine.

DONE AND RECOMMENDED this 13th day of March, 1995, in Tallahassee, Leon County, Florida.

MARY CLARK

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.

COPIES FURNISHED:

Honorable Sandra B. Mortham Secretary of State

The Capitol

Tallahassee, Florida 32399-0250

Don Bell, Esquire General Counsel Department of State The Capitol, PL-02

Tallahassee, Florida 32399-0250

Richard R. Whidden, Jr., Esquire Dept. of State/Division of Licensing The Capitol MS-4

Tallahassee, Florida 32399-0250

Ivan Drew Machiz

481 Hardendorf Avenue Atlanta, Georgia 30307

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: 94-005987

Orders for Case No: 94-005987