STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALEJANDRO RODRIGUEZ, )

)

Petitioner, )

)

vs. ) CASE NO. 96-0194S

) DEPARTMENT OF STATE, DIVISION OF ) LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case in Miami, Florida, on April 18, 1996, before Patricia Hart Malono, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Lawrence E. Besser, Esquire

Samek and Besser

1925 Brickell Avenue, Suite D207 Miami, Florida 33129

For Respondent: Douglas D. Sunshine

Assistant General Counsel Department of State Division of Licensing

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

STATEMENT OF THE ISSUE

The issue in this case is whether the application for a Class "D" security officer license submitted by Alejandro Rodriguez should be granted or denied.

PRELIMINARY STATEMENT

In a letter dated November 27, 1995, the Department of State, Division of Licensing ("Department"), notified Alejandro Rodriguez that his application for a Class "D" security officer license was denied. Two bases for denial were identified in the letter. The first was failure to qualify for licensure pursuant to section 493.6118(1)(j), Florida Statutes, because Mr. Rodriguez allegedly "committed an act of violence or used force on another person which was not for the lawful protection of yourself or others," specifically that he committed battery on a police officer and resisted a police officer with violence in an incident occurring on July 16, 1994. 1/ The second basis for denial was failure to qualify for licensure pursuant to section 493.6118(4), Florida Statutes, because Mr. Rodriguez was "currently serving felony probation." Mr. Rodriguez timely requested a formal hearing, and the case was

referred to the Division of Administrative Hearings for proceedings under chapter 120, Florida Statutes. The final hearing was duly noticed and held on April 18, 1996.

At the hearing, Mr. Rodriguez testified in his own behalf and presented the testimony of Eliseo Figueroa, a friend of Mr. Rodriguez, and of Carmen Coto, Mr. Rodriguez's wife. He offered no exhibits at hearing. The Department presented the testimony of Anthony Hurst, Mr. Rodriguez's probation officer, and Officer Luis Ruiz. Respondent's Exhibits 1 through 3 were offered and received into evidence; respondent's Exhibit 4 was offered but rejected.

The Department did not order a transcript of the proceedings, and the parties timely submitted proposed recommended orders. Contemporaneously with the filing of his proposed recommended order, Mr. Rodriguez filed a transcript of excerpts from the proceedings.

FINDINGS OF FACT

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

1. The Department of State is the state agency responsible for regulating and licensing private security officers. Sections 493.6100 - .6126, Florida Statutes.

   
   

2. On July 15, 1994, Mr. Rodriguez and two friends, Eliseo Figueroa and Albert Gonzalez, went to the Miracle Center Movie Theater complex in Miami, Florida, to meet Albert's girlfriend and one of her friends. They telephoned one of the women to let her know that they were going to be late, and they arranged to meet in the theater showing the movie "True Lies."

   
   

3. When the men arrived at the theater complex, they were not able to buy tickets for "True Lies" because the theater was sold out; instead, they purchased tickets for the movie "Lion King."

   
   

4. When the men entered the theater complex, they began walking toward the theater showing "True Lies." They were intercepted by the theater manager, who told them they could not go into that theater because it was full. The men told the manager that they were meeting friends who were in the theater and needed to go into the theater just to make contact. Although they told the manager that they did not intend to watch the movie, he refused to let them go into the theater to find their friends, telling them that it would disturb the moviegoers. The manager also refused to go into the theater himself to locate the two women the men were to meet.

   
   

5. As this exchange was taking place, one of the women came out of the theater, saw the men, and returned to the theater to get her friend. The two women joined the three men, and they began walking across the theater lobby on their way out of the complex. Mr. Rodriguez and Mr. Figueroa were walking together, and the two women and Mr. Gonzalez were walking ahead of them. Mr. Gonzalez made a derogatory comment about the manager, which he overheard. The manager took offense, told the group that he was going to call the police because of the derogatory remark, and sent the assistant manager to find the off-duty police officer who was providing security at the theater.

6. Meanwhile, the two women went to the restroom, Mr. Gonzalez went to the concession stand, and Mr. Rodriguez and Mr. Figueroa went into the theater showing the movie "Lion King," where they stood in the back and watched the movie. After several minutes, the manager, the assistant manager, and Officer Luis Ruiz, the off-duty police officer providing security for the theater, entered the theater. The manager asked Mr. Rodriguez and Mr. Figueroa to step outside into the lobby, which they did.

   
   

7. Once they were in the lobby, Officer Ruiz told Mr. Rodriguez and Mr. Figueroa that they had to leave the theater complex, that "the party is over." Mr. Rodriguez demanded to know why they were being asked to leave since he and Mr. Figueroa had purchased tickets and had done nothing wrong. The manager told them they had to leave, without giving any explanation. Mr. Rodriguez again demanded to know why. Officer Ruiz repeated his order that they leave. Mr. Rodriguez refused and again demanded to know why. Officer Ruiz told him that he would be placed under arrest if he did not leave the theater complex.

   
   

8. During this exchange, Mr. Rodriguez used profanity and his protests became louder and louder. Several of the movies had ended, and patrons were crowding into the lobby area where the group was gathered. Officer Ruiz became more and more agitated, and the situation generally deteriorated. Even after Officer Ruiz threatened Mr. Rodgriguez with arrest, he still refused to leave. Officer Ruiz told him that he was under arrest and was going to jail, and he grabbed Mr. Rodriguez's wrist to restrain him so he could put on handcuffs.

   
   

9. When Officer Ruiz told Mr. Rodriguez he was under arrest and grabbed his wrist, Mr. Rodriguez panicked and his only thought was to get away. He yelled that he was not going to go to jail and swung the arm Officer Ruiz had grabbed, slamming him into the wall. A scuffle ensued, with the manager, the assistant manager, and another man trying to help Officer Ruiz subdue Mr. Rodriguez. The five men fell to the floor; Mr. Rodriguez was face down, and, with the manager and the other man holding Mr. Roeriguez down, Officer Ruiz straddled him as he was trained to do to gain the maximum advantage when trying to handcuff an unruly individual. Officer Ruiz was sitting on Mr. Rodriguez's back, facing his feet, and was just about to get the handcuffs around his wrists when Mr. Rodriguez managed to stand up, throwing off Officer Ruiz and the other men; he stopped and looked around, then proceeded to run out of the theater complex and down the street. He was apprehended several blocks away.

   
   

10. Officer Ruiz suffered bruises as a result of being slammed against the wall by Mr. Rodriguez, 2/ but there apparently was no damage done to theater property as a result of the incident.

    
    

11. On October 26, 1995, Mr. Rodriguez filed with the Department the application for a Class "D" security officer license which is the subject of this proceeding.

    
    

12. In his application for licensure, Mr. Rodgriguez disclosed that adjudication had been withheld in two criminal cases, case numbered F94-23888 and case numbered F94-38895, arising in Dade County, Florida, and that he was sentenced to probation in each case. The charges in case numbered F94-23888, arising out of the incident which occurred on July 15, 1994, were felonies. The terms of probation for both cases were concurrent and expired on May 31, 1996. 3/ Mr. Rodriguez is not, therefore, currently on probation on a felony charge.

    
    

13. Mr. Rodriguez gave his probation officer no problems during his term of probation, and one of the special conditions of his probation was that he

    participate in an anger control program. He expressed remorse and acknowledged that he was wrong to behave as he did at the theater complex; and he testified that he would behave differently if he ever found himself in a similar situation. On July 15, 1994, Mr. Rodriguez was one week away from his nineteenth birthday; he is now 21 years of age, married, and the father of a young son. Prior to this incident, Mr. Rodgriguez had never been arrested.

    
    

14. The Department has presented sufficient credible evidence to establish that Mr. Rodriguez committed an act of violence on Officer Ruiz which was not undertaken in the lawful protection of himself or others. However, the evidence is also sufficient to establish that, while Mr. Rodriguez showed very poor judgment in provoking the confrontation at the theater complex and in resisting arrest, he has matured and rehabilitated himself. Therefore, in light of the facts found herein, with consideration given to all of the evidence presented and to the demeanor of the witnesses, Mr. Rodriguez has carried his burden of persuasion and demonstrated his entitlement to a Class "D" security officer license by a preponderance of the evidence.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this administrative proceeding. Section 120.57(1), Florida Statutes (Supp. 1996).

    
    

16. An agency's decision to deny a license is regulatory, not penal, in nature, and the agency has "'particularly broad discretion in determining the fitness of applicants who seek to engage in an occupation the conduct of which is a privilege rather than a right.'" Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932, 934 (Fla. 1996)(quoting Osborne Stern and Co. v. Department of Banking and Finance, Division of Securities and Investor Protection, 647 So. 2d 245, 250 (Fla. 1st DCA 1994), Booth, J. dissenting). In a license denial proceeding, the applicant has the burden of persuasion regarding his or her fitness for licensure and must prove entitlement to a license by a preponderance of the evidence. The applicant first presents evidence as to his or her fitness for licensure; the agency may then present evidence as to the applicant's unfitness for licensure. The applicant always has the opportunity to present evidence in mitigation to establish that the agency should use its discretion to grant the license notwithstanding that there exist grounds for denial. Id.; see also Florida Department of Transportation v. J.W.C., 396 So. 2d 778, 787 (Fla. 1st DCA 1981).

    
    

17. The Department denied Mr. Rodriguez's application for licensure on two grounds, first, that he had committed an act of violence which was not in self- defense or in the defense of others, and, secondly, that he was "currently" on probation from a felony charge.

    
    

18. Taking the second charge first, section 493.6118(4) provides in part: "The department shall deny the application of any applicant who is currently serving a suspended sentence on a felony charge, or is on probation on a felony charge." This proceeding is a de novo proceeding leading to the issuance of a final order constituting final agency action granting or denying Mr. Rodriguez's application for licensure. See Florida Department of Transportation v. J.W.C.,

    396 So. 2d at 785. Consequently, it is not improper to consider the fact that, subsequent to submitting his application for licensure but before issuance of this recommended order, Mr. Rodriguez completed serving his term of probation. Cf. Lavernia v. Department of Profesional Regulation, Board of Medicine, 616 So.

    2d 53, 53-54 (Fla. 1st DCA 1993)("[C]hange in licensure statute that occurs during the pendency of an application for licensure is operative as to the application, so that the law as changed, rather than as it existed at the time the application was filed, determines whether the license should be granted.") Section 493.6118(4) requires that a license be denied if the applicant "is on probation for a felony charge." Mr. Rodriguez is not on probation at this time, and section 493.6118(4) does not require the Department to deny his application for a license.

    
    

19. With regard to the first ground for denying Mr. Rodriguez's application for licensure, sections 493.6118(1) and (2) give the Department the authority to deny applications for licensure when it finds, among other things, that an applicant has committed "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." Section 493.6118(1)(j).

    
    

20. Based on the facts found herein, the evidence is sufficient to support the conclusion that Mr. Rodriguez violated section 493.6118(1) when he attempted to avoid arrest at the movie theater complex. However, given all of the evidence of record, including the evidence offered in mitigation, Mr. Rodriguez has proven by a preponderance of the evidence his fitness for licensure as a Class "D" security officer. While it cannot be overlooked that Mr. Rodriguez's actions at the theater complex showed exceedingly poor judgment, he is now two years older and has assumed the responsibilities of marriage and fatherhood. He was required, as a condition of probation, to participate in an anger control program. He expressed remorse about his actions in July, 1994, at the theater complex, and he has acknowledged that his behavior was wrong.

    
    

21. Accordingly, the Department should grant Mr. Rodriguez's application for licensure as a Class "D" security officer. However, it is appropriate under the circumstances that he be placed on probation for a period of two (2) years, under such reasonable terms and conditions as may be imposed by the Department.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of State enter a final order granting the application of Alejandro Rodriguez for a Class "D" security officer license and placing Mr. Rodriguez on probation for a period of two (2) years under such reasonable terms and conditions as may be imposed by the Department.

DONE AND ENTERED this 11th day of Deecember, 1996, in Tallahassee, Leon County, Florida.

PATRICIA HART MALONO

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUMCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 1996.

ENDNOTES

1/ The incident actually occurred on July 15, 1994.

2/ Officer Ruiz testified that Mr. Rodriguez "flipped over" and hit him hard in the solar plexus with the flat of his hand to push him out of the way; he did not, however, include this in the Complaint/Arrest Affidavit he completed at the time of the arrest. Mr. Rodriguez recalls only that he was face down, that several people were holding him down, and that he got up and ran. Mr. Figueroa did not see Mr. Rodriguez hit or push Officer Ruiz with the flat of his hand or his fist; he just saw him get up, dislodging the men who were trying to hold him down, and run. It is difficult to discern from the testimony presented how Officer Ruiz could have been in a position relative to Mr. Rodriguez such that his solar plexus would have been exposed to Mr. Rodriguez in the split second it took for him to stand up and run. The testimony of Officer Ruiz on this point is rejected as not credible.

3/ Anthony Hurst, Mr. Rodriguez's probation officer, testified at the hearing on April 18, 1996, that Mr. Rodriguez's term of probation would expire on May 31, 1996, as long as he did not violate the terms of probation. On June 7, 1996, Mr. Rodriguez filed with the Division of Administrative Hearings the formal notice confirming that his probation had expired on May 31, 1996. The Department objected to the filing of this document, on the grounds that Mr.

Rodriguez did not formally request that the record be kept open for the receipt of this document, that there was no express ruling at the hearing that the record would be kept open, and that the document is inadmissible hearsay.

Counsel for Mr. Rodriguez stated at the hearing that he would provide confirmation that Mr. Rodriguez was released from probation as of May 31, 1996. There was no objection made by the Department, and the undersigned, while not stating that the record would be kept open for the purpose of receiving this document, indicated she would receive it.

Hearsay evidence is admissible in proceedings conducted pursuant to chapter 120, Florida Statutes (Supp. 1996), and it may be used to supplement or explain other evidence. Section 120.57(1)(c), Fla. Stat. (Supp. 1996). The document has been offered to supplement the testimony of Mr. Rodriguez's probation officer that Mr. Rodriguez's probation would expire May 31, 1996. Consequently, it is accepted as a late-filed exhibit to supplement the testimony given at hearing.

COPIES FURNISHED:

Lawrence E. Besser, Esquire 1925 Brickell Avenue

Suite D207

Miami, Florida 33129

Douglas D. Sunshine Assistant General Counsel Department of State Division of Licensing

The Capitol, MS Number 4 Tallahassee, Florida 32399-0250

Hon. Sandra B. Mortham Secretary of State

The Capitol

Tallahassee, Florida 32399-0250

Don Bell, General Counsel The Capitol, PL-02

Tallahassee, Florida 32399-0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALEJANDRO RODRIGUEZ,

Petitioner,

vs. DOAH Case No. 96-0194S

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 April 18,1996, before Patricia Hart Malono, a duly assigned Administrative Law Judge of the Division of Administrative Hearings. A Recommended Order was submitted by the Administrative Law Judge on December 11,1996, a copy of which is attached.

Respondent filed exceptions on December 20, 1996.

RULING ON EXCEPTIONS FILED BY RESPONDENT

Respondent excepts to the Administrative Law Judge's finding as a fact that Petitioner had carried his burden of persuasion and demonstrated entitlement to the Class "D" Security Officer license. Respondent argues that the Administrative Law Judge's Finding of Fact Number 14, although labeled a finding of fact, is a conclusion of law.

Respondent's exception is accepted as the question of whether the evidence sustains an administrative determination is one of law. 1 Fla. Jur.2d s 172 Administrative Law. As stated by the Administrative Law Judge, quoting the Florida Supreme Court in Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Sterne and Company, 670 So.2d 932, 934 (Fla. 1996), in Conclusion of Law Number 16, an agency has "particularly broad discretion in determining the fitness of applicants who seek to engage in an occupation the conduct of which a privilege rather than a right." It is within the Division's discretion to deny a license if an applicant is found to have committed an act of violence. See Sections 493.6118(1)(j) and 493.6118(2)(a), Florida Statutes. As the Administrative Law Judge found as fact that the Petitioner committed an act of violence pursuant to Section 493.6118(1)(j), Florida Statutes, the Division has the discretion to deny his application for licensure pursuant to the authority set forth in Section 493.611 8(2)(a), Florida Statutes. Decisions of administrative agencies as to matters committed by law to their discretion are entitled to great weight and will usually be accepted and upheld by the courts unless there is a violation of law or an abuse of discretion. 1 Fla. Jur.2d s 163 Administrative Law.

As further support for the Division's discretion to deny Petitioner's application for licensure, the Division has previously adopted the position that licensure for a Class "D" Security Officer license shall be denied to an applicant who has committed an intentional act of violence upon a uniformed officer as the act evidences a propensity for violence and a lack of respect for authority. See David T. Ballard v. Department of State, Division of Licensing, DOAH Case No. 96-2348S, which adopted the findings of fact and conclusions of law contained in the recommended order dated October 11, 1996.

FINDINGS OF FACT

The Department of State hereby adopts and incorporates herein by reference the Findings of Fact in the Recommended Order with the exception of the last sentence of Finding of Fact Number 14 which is rejected as discussed in the Rulings on Exceptions above.

The Division makes as an additional finding of fact, based on a complete review of the record, that Officer Ruiz was in his police uniform at the time of the incident on July 15, 1994. (See Transcript at page 66.)

CONCLUSIONS OF LAW

The Department of State hereby adopts and incorporates herein by reference the Conclusions of Law in the Recommended Order with the exception of the last four sentences of Conclusion of Law Number 20 and Number 21 in its entirety, which are rejected as discussed in the Rulings on Exceptions above. As the Administrative Law Judge found that Petitioner had committed an act of violence in violation of Section 493.6118(1)(j), Florida Statutes, the Division has the discretion to deny Petitioner's application for licensure. See Osborne Sterne.

WHEREFORE, based upon the foregoing, and a complete review of the record, it is ORDERED that Petitioner's application for Class "D" Security Officer license is DENIED for the reasons set forth in this Order. Further, is ORDERED that Petitioner shall CEASE AND DESIST engaging in activities regulated by Chapter 493, Florida Statutes, until such time as Petitioner has met the licensure requirements of Chapter 493, Florida Statutes.

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 he 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 13th day of January, 1997.

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 13th day of January, 1997, to Lawrence E. Besser, Esquire, Samek & Besser, Suite D207, 1925 Brickell Avenue, Miami, Florida 33129.

Michele Guy

Assistant General Counsel Department of State Division of Licensing

The Capitol, MS No. 4 Tallahassee, Florida 32399-0250

Docket for Case No: 96-000194

Orders for Case No: 96-000194