STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 96-2019

)

GILBERTO CORREA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Susan B. Kirkland, held a formal hearing in this case on June 28, 1996, by video teleconference.

APPEARANCES

For Petitioner: Douglas D. Sunshine

Assistant General Counsel Department of State

Division of Licensing

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

For Respondent: Gilberto Correa, Pro Se

1441 Southwest 2nd Street, Number 4

Miami, Florida 33135 STATEMENT OF THE ISSUES

Whether Respondent violated Section 493.6118(1), Florida Statutes, and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated February 5, 1996, Petitioner, Department of State (Department), notified Respondent, Gilberto Correa (Correa) that it intended to take disciplinary action against his Class "D" Security Officer license on the grounds that he violated Section 493.6118(1), Florida Statutes, by committing aggravated assault with a deadly weapon, which assault was not in self defense or defense of another.

Correa requested an administrative hearing and the case was referred to the Division of Administrative Hearings on May 2, 1996 for assignment to a hearing officer.

At the final hearing, the Department called Rafael Burgos and Ronald Alfaro as its witnesses. Petitioner's Exhibits 1 and 2 were admitted in evidence.

Correa testified in his own behalf.

No transcript was ordered. At the final hearing the parties agreed to file proposed recommended orders within ten days of the close of the hearing. A post hearing order was issued stating that the proposed recommended orders were to be filed on or before July 8, 1996. The Department filed its proposed recommended order on July 8, 1996. Correa did not file a proposed recommended order. The Department's proposed findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent, Alberto Correa (Correa) holds a Class "D" Security Officer License, Number D93-12073.

   
   

2. On March 23, 1995, Correa was employed at the Pan American Hospital in Miami, Florida, in the capacities of maintenance man, electrician, and mechanic.

   
   

3. On March 23, 1995, Rafael Burgos (Burgos) was an employee of Pan American Hospital. His duties included managing materials for the surgical department.

   
   

4. On March 23, 1995, Burgos entered a computer request to Correa to put up a bulletin board in the surgical department. The board was needed to post the schedules for the surgical staff.

   
   

5. Correa was the only mechanic on duty that day at the hospital. Correa had been assigned by his supervisor to perform tasks in the kitchen. After seeing the request on the computer, Correa telephoned the surgery room to determine if the request was an emergency.

   
   

6. Correa determined that the work in the kitchen was a higher priority than the installation of a bulletin board. Correa continued to work in the kitchen. Later, he went to the surgery room to see what needed to be done.

   
   

7. Burgos asked Correa to put up the bulletin board. Correa indicated that putting up the bulletin board was not an emergency which took precedence over the work in the kitchen. Correa refused to do the job and told Burgos that he would let his supervisor know that the bulletin board needed to be installed.

   
   

8. Burgos asked Correa to give him some tools so that he could install the bulletin board himself since Correa was not going to do the job. Correa refused to give Burgos any tools and began to raise his voice at Burgos.

   
   

9. At the time of the incident Correa was standing in the double-doorway leading into the surgical room. Correa asked Burgos to step out into the hallway.

   
   

10. Burgos went to the double doors. When he got to the doorway he observed Correa with an open knife in his hand. Correa told Burgos not to come any closer or he would cut him to pieces. Correa lunged the knife at Burgos.

    
    

11. Burgos never threatened Correa at any time before or during the incident. Burgos did not have a weapon at any time during the incident, and he

    made no threatening movements or gestures indicating that he was reaching for a concealed weapon.

    
    

12. Correa contends that a fellow coworker told Burgos to shoot Correa and then Burgos got up and started coming towards Correa. Having judged the credibility of the witnesses, I find that a coworker did not tell Burgos to shoot Correa.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

14. The Department of State, Division of Licensing, has authority to revoke or suspend a license pursuant to Section 493.6118(2)(e), Florida Statutes, upon a determination that a licensee has violated any of the provisions of Section 493.l6118(1), Florida Statutes.

    
    

15. In a license revocation and suspension action, the Division of Licensing has the burden to prove by clear and convincing evidence the violations alleged. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

16. The Department has alleged that Correa violated Section 493.6118(1)(j), Florida Statutes, by commiting aggravated assault without justification on Burgos.

    
    

17. Section 493.6118(1)(j), Florida Statutes, provides:

    
    

    1. The following constitute grounds for which disciplinary action specified in sub- section (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.

       
       

18. Section 493.6118(2), Florida Statutes, provides:

    
    

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

    1. Deny an application for the issuance or renewal of a 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.

19. Section 784.011(1), Florida Statutes, provides:

    
    

    An 'assault' is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do

    so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.

20. Section 784.021(1), Florida Statutes, provides: An 'aggravated assault' is an assault:

    1. With a deadly weapon without intent to kill; or

    2. With an intent to commit a felony.

    
    

21. The Department has established by clear and convincing evidence that Correa threatened to cut Burgos and lunged a knife at Burgos. Correa was not justified in threatening Burgos with a knife. Burgos make no threatening remarks or gestures toward Correa. Correa violated Section 493.6118(1)(j), Florida Statutes.

    
    

22. Pursuant to Rule 1C-3.113(2)(n), Florida Administrative Code, the Department's guideline penalty for a violation of Section 493.6118(1)(j), Florida Statutes, ranges from probation to suspension, revocation or denial of license.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Gilberto Correa

violated Section 493.6118(1)(j), Florida Statutes, and revoking his Class "D" Security Officer Licence.

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

SUSAN B. KIRKLAND

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 July, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-2019

To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1. Paragraphs 1-22: Accepted in substance.

COPIES FURNISHED:

Douglas D. Sunshine Assistant General Counsel

Department of State, Division of Licensing

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

Gilberto Correa

1441 Southwest 2nd Street, Number 4

Miami, Florida 33135

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 32399-0450

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: 96-002019

Orders for Case No: 96-002019