STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID T. BALLARD, )

)

Petitioner, )

)

vs. ) CASE NO. 96-2348S

) DEPARTMENT OF STATE, DIVISION ) OF LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, Claude B. Arrington, held a formal hearing in the above-styled case on July 29, 1996, via video between Tallahassee and West Palm Beach, Florida.

APPEARANCES

For Petitioner: Edward B. Galante, Esquire

Anderson and Galante

789 South Federal Highway, Number 103

Stuart, Florida 34994

For Respondent: Michele Guy, Esquire

Department of State, Division of Licensing The Capitol, Mail Station Number 4 Tallahassee, Florida 32399-0250

STATEMENT OF THE ISSUES

Whether Petitioner is entitled to licensure as a Class "D" Security Officer.

PRELIMINARY STATEMENT

Petitioner's application for licensure as a Class "D" Security Officer was rejected by Respondent on the grounds that Respondent had been convicted of misdemeanor battery, citing the provisions of Sections 493.6118(1)(c) and (j), Florida Statutes. Petitioner timely challenged Respondent's notification that it intended to deny his application for licensure, the matter was referred to the Division of Administrative Hearings, and this proceeding followed.

At the formal hearing, Petitioner testified on his own behalf, but presented no other witness and no exhibit. Respondent presented the testimony of Thomas Coburn, the person that was battered by Petitioner, and introduced five exhibits, each of which was admitted into evidence. Attached to the post- hearing submittal filed by Petitioner is a certified copy of an "Order of Certification" that purports to appoint Petitioner as a process server in the

Nineteenth Judicial Circuit of Florida. That Order of Certification was not properly offered as an exhibit in this proceeding and is not a part of the record.

A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 60Q-2.031, Florida Administrative Code.

FINDINGS OF FACT

1. Respondent is the agency of the State of Florida responsible for the administration of Chapter 493, Florida Statutes, including the licensure of Class "D" Security Officers.

   
   

2. Petitioner applied for licensure as a Class "D" Security Officer. Pending the processing of that application, Petitioner became employed as a security guard for approximately five months. By letter dated February 21, 1996, Petitioner was notified by Respondent that his application for a Class "D" license was, subject to his due process rights, going to be denied based on his conviction of battery in St. Lucie County in September 1993. Respondent asserted that the conviction was of a crime directly related to the business for which the license is sought within the meaning of Section 493.6118(1)(c), Florida Statutes. Respondent also asserted that the facts relating to that conviction establish that Petitioner had committed an act of violence or used force on another person which was not for the lawful protection of himself or another within the meaning of Section 493.6118(1)(j), Florida Statutes.

   
   

3. On September 14, 1993, Petitioner was convicted by a jury of a misdemeanor count of battery. The victim of the battery was Thomas Coburn. Petitioner was adjudicated guilty and sentenced to 15 days in the county jail, one year probation, and 50 hours of community service.

   
   

4. At all times pertinent to this proceeding, Thomas Coburn was employed by the City of Port St. Lucie, Florida, as a city code enforcement officer. The code enforcement division is administered by the City of Port St. Lucie Police Department. Mr. Coburn was not a sworn law enforcement officer.

   
   

5. On Sunday, May 16, 1993, Mr. Coburn was acting in his official capacity as a city code enforcement officer. He was wearing a badge, name plate, and collar pins with the initials P.S.L. He was in an official uniform that had patches with the inscription "Port St. Lucie, Fla. Police." He was driving a marked vehicle that reflected he was with the city code enforcement department.

   
   

6. Shortly after noon on May 16, 1993, Mr. Coburn went to the personal residence of the Petitioner for the purpose of serving upon Petitioner a notice to appear pertaining to several alleged code violations.

   
   

7. Petitioner was home with his wife, his teenage stepson, and his five year old son. When Mr. Coburn arrived, Petitioner was about to begin a barbecue. When the stepson came to the door in response to Mr. Coburn knock on the door, Mr. Coburn asked to speak to Petitioner. The teenage stepson went inside to get the Petitioner. Mr. Coburn did not see the stepson or another member of Petitioner's family after the Petitioner came to the door.

8. When Petitioner came to the door, Mr. Coburn identified himself as a code enforcement officer and told Petitioner he was there to deliver the notice to appear. Mr. Coburn's vehicle was parked on the street so that Petitioner could see the markings on the vehicle. Petitioner became irate and shouted profanities at Mr. Coburn. Petitioner told Mr. Coburn that he could not serve official papers on a Sunday and ordered him off his property.

   
   

9. There is a conflict in the evidence as to what next occurred. Petitioner testified that Mr. Coburn bumped him in the chest as the two of them argued. Mr. Coburn testified that he backed away from Petitioner and began to leave the premises. The more credible version of the events is that given by Mr. Coburn. Consequently, it is found that there was no physical contact initiated by Mr. Coburn.

   
   

10. As he was backing away and preparing to leave the premises, Mr. Coburn placed the notice to appear on the barbecue grill that was in the area where the two men were standing. After he placed the notice to appear on the barbecue grill, Mr. Coburn turned to walk away. Petitioner then kicked Mr. Coburn in the buttocks.

    
    

11. It was Petitioner's act of kicking Mr. Coburn that resulted in his subsequent arrest and conviction.

    
    

12. There was no one else in the area around Petitioner's front door at the time of this incident. There was insufficient evidence to establish that Petitioner was acting in defense of himself or of others when he kicked Mr. Coburn.

    
    

13. Petitioner has not been convicted of any other crime.

    
    

14. At the times pertinent to this proceeding, Petitioner was an approved process server within the Nineteenth Judicial Circuit of Florida.

    
    

15. Petitioner worked as a security guard for the five months preceding the denial of his application. There were no incidents of violence during that five month period.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

17. Petitioner has the burden of proving by a preponderance of the evidence that he is entitled to the license he seeks. Rule 28-6.08(3), Florida Administrative Code. See also, Florida Department of Transportation v. J.W.C., Co., 396 So.2d 778 (Fla. 1st DCA 1981).

    
    

18. Section 493.6118, Florida Statutes, provides, in pertinent part, as follows:

    
    

    1. The following constitutes grounds for which disciplinary action specified in subsection (2) may be taken by the department against any . . . applicant regulated by this chapter . . . :

       * * *

       (c) Conviction of a crime that directly relates to the business for which the license is held or sought . . .

       * * *

       (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.

       
       

19. When the Respondent finds that an applicant for licensure has violated any subsection of Section 493.6118(1), Florida Statutes, it may deny the application for licensure pursuant to Section 493.6118(2), Florida Statutes.

    
    

20. The record clearly established that Petitioner violated Section 493.6118(1)(j), Florida Statutes. The act of kicking Mr. Coburn was an act of violence at a time that Mr. Coburn had turned to leave the premises. This was an act of aggression. This was not an act that was necessary to protect the Petitioner or anyone else.

    
    

21. Petitioner asserts that the incident involving Mr. Coburn was a personal matter that did not directly relate to the business for which the license is sought within the meaning of Section 493.6118(1)(c), Florida Statutes. In support of that assertion, Petitioner cites the case of Kinny v. Department of State, Division of Licensing, 501 So.2d 129 (Fla. 5th DCA 1987), which involved a licensed investigator who battered a 17 year old boy who was in the process of running off with the investigator's 12 year old daughter. In Kinny, the applicant was charged only with a violation of Section 493.6118(1)(j), Florida Statutes, but he was not charged with a violation of Section 493.6118(1)(c), Florida Statutes. The language upon which Petitioner relies from the Kinny decision that the crime with which the applicant had been charged was not related to the business for which he was licensed is clearly dicta. The more persuasive rationale is that the misdemeanor battery of Mr. Coburn relates to the business for which Petitioner seeks licensure because it shows a propensity to commit acts of violence and an absence of respect for authority. These traits cannot be countenanced in a person who seeks to hold a Class "D" license. Compare the Final Order entered September 19, 1990, in Department of State, Division of Licensing v. Thomas Felton, DOAH Case 90-2210, which adopted the findings of fact and conclusions of law contained in the Recommended Order dated August 8, 1990. In that case, the finding of the Hearing Officer that a battery was directly related to the business for which the applicant sought licensure as a Class "D" watchman, guard, or patrolman was adopted in toto by the final order.

    
    

22. Respondent established that Petitioner violated subsection (c) and subsection (j) of Section 493.6118(1), Florida Statutes. Consequently, it is concluded that Respondent has the discretionary authority to deny Petitioner's application for licensure pursuant to Section 493.6118(2), Florida Statutes.

    
    

23. It is also concluded that this application should be denied because the underlying incident was intentional and was against a uniformed officer who was performing his official duties. This act evidences a propensity for violence and a lack of respect for authority. Petitioner should not be issued a Class "D" license, which has the potential to place him in a position of authority over members of the public, until he can establish that this incident was isolated and remote in time. While the incident appears to have been isolated, it should not be viewed as being remote in time since only three years

have passed since the incident and only two years have passed since Petitioner completed the term of probation that was imposed following his conviction.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order that adopts the

findings of fact and conclusions of law contained herein. It is further

recommended that the final order deny Petitioner's application for a Class "D" license.

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

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

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

COPIES FURNISHED:

Michele Guy, Esquire

Department of State, Division of Licensing The Capitol, Mail Station No. 4 Tallahassee, Florida 32399-0250

Edward B. Galante, Esquire

789 South Federal Highway, No. 103

Stuart, Florida 34994

Honorable Sandra B. Mortham Secretary of State

The Capitol

Tallahassee, Florida 32399-0250

Don Bell, General Counsel Department of State

The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0250

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.

Docket for Case No: 96-002348

Orders for Case No: 96-002348