STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

)

Petitioner, )

)

vs. ) Case No. 97-3383

)

RICHARD P. BUSHEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, Mary Clark, held a formal hearing in the above-styled case on January 29, 1998.

The hearing was conducted by video conference in centers located in Orlando and Tallahassee, Florida.

APPEARANCES

For Petitioner: Douglas D. Sunshine, Esquire

Division of Licensing Department of State

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

For Respondent: no appearance

STATEMENT OF THE ISSUES

An administrative complaint dated June 19, 1997, alleges that Respondent, Richard P. Bushey, committed aggravated assault and had adjudication withheld on a felony charge of carrying a concealed weapon, and therefore violated Section 493.6118(1)(j), Florida Statutes, and was not qualified for licensure, pursuant

to Sections 493.6106(1)(b), 493.6118(1)(f) and 493.6101(7),

Florida Statutes.

The issues for disposition in this proceeding are whether the allegations are true, and if so, what discipline is appropriate.

PRELIMINARY STATEMENT

In response to the administrative complaint, Respondent submitted an election of rights form indicating his request for a formal hearing. The case was referred to the Division of Administrative Hearings and proceeded to hearing as described above.

Petitioner presented a single witness, Joseph Howers, and a single composite exhibit (the prehearing statement and attachments A-D, consisting of responses to requests for admissions, Respondent's handwritten statement, and 2 police reports.)

Respondent did not appear at the hearing and has not been heard from in spite of attempts at contact by counsel for Petitioner. The notices of hearing and prehearing orders have not been returned as undelivered by the post office.

At the close of Petitioner's evidence, counsel moved to add a third count to the administrative complaint, to include a violation of Section 493.6118(4)(c), Florida Statutes (1997).

For reasons discussed in the Conclusions of Law, below, the motion is GRANTED.

FINDINGS OF FACT

1. At all times relevant to the matters at issue, Respondent, Richard Paul Bushey (Bushey), held a class "D" security license no. D94-16538.

2. Sometime around 9:30 p.m. on July 19, 1996, in Winter Garden, Florida, Joseph Howers was in a convenience store standing in line with his purchases when an individual, later identified as Respondent Bushey, entered the store swearing, waving his arms, and complaining about how people drive.

   Mr. Howers, who had never met Respondent Bushey before, commented something like, "Life is rough all over. I guess he'll get over it."

3. After paying for his purchases, Mr. Howers left the store and got into his truck which was parked near the door of the store. He leaned over to arrange his parcel on the floor of the passenger side of the vehicle, and as he sat back up, he heard mumbling and saw Respondent Bushey at the truck window on the driver's side. Respondent Bushey was swearing and inarticulate, and Mr. Howers thought there was something wrong with him. Mr. Howers said, "Listen, go away, leave me alone. I don't know what your problem is but it's not with me."

4. Respondent Bushey stepped back, lifted his t-shirt, and put his hand on a gun that was under the shirt. Afraid, but still under control, Mr. Howers said, "You don't want to do this-

   -I'm going to start my truck." Respondent Bushey pulled the gun out and extended it 2-3 feet from Mr. Howers' head.

5. Mr. Howers backed out slowly and Respondent Bushey walked along, following the truck. When he was close to the road, Mr. Howers leaned across the seat out of the range of his vehicle's windows and stepped on the gas pedal.

6. Once out of sight of Respondent Bushey, Mr. Howers called 911 on his cellular phone and reached the Winter Garden police dispatcher. He reported the incident and the police were sent to the convenience store. Mr. Howers continued to the police station where he was told that the arrest had already been made. He then returned to the convenience store to identify the individual who pulled the gun on him. The individual was Respondent Bushey, who by this time was in custody in the back of the patrol car.

7. It was apparent to Mr. Howers that Respondent Bushey, at the time of the incident, had the ability to pull the trigger and shoot him. Mr. Howers did not provoke or otherwise justify the attack and had a reasonable and well-founded fear for his safety.

8. As admitted in his response to requests to admit, on or about January 13, 1997, Respondent Bushey had adjudication withheld, in Orange County, Florida, on a felony charge of carrying a concealed weapon.

   CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Section 120.569 and 120.57(1), Florida Statutes.

10. The Department of State (Department) has the authority pursuant to Chapter 493, Florida Statutes, to license and regulate private investigators and security officers. In proceedings such as this, when discipline of a license is at issue, the Department must prove the violations it has alleged with proof that is clear and convincing. Dept. of Banking and Finance v. Osborne Stern, 670 So. 2d 932 (Fla. 1996).

11. Section 493.6106(1)(b), Florida Statutes, requires that individuals licensed by the Department must be "of good moral character," which is described in Section 493.6101(7), Florida Statutes, as ". . . a personal history of honesty, fairness, and respect for the rights and property of others and for the laws of this state and nation."

12. Section 493.6118(1), Florida Statutes, provides that disciplinary action, including reprimand, fine, suspension, or revocation of a license may be taken by the Department for the following relevant violations:

    (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. . . .

13. The Department presented ample clear and convincing evidence that Respondent Bushey violated the provisions with which he is charged in the administrative complaint. He has presented no evidence to rebut or mitigate the conclusion, based on the findings above, that he committed an unjustified act of violence by pulling a gun on Joseph Howers, and that he lacks respect for the rights of others and the laws of the state.

14. The Department seeks to amend its complaint to invoke this subsection that was added to 493.6118, Florida Statutes, effective October 1, 1997:

    (4) Notwithstanding the provisions of paragraph (1)(c) and subsection (2):

    * * *

    (c) If the applicant or licensee has been found guilty of, entered a plea of guilty to, or entered a plea of nolo contendere to a felony and adjudication of guilt is withheld, the department shall deny the application or revoke the license until a period of 3 years has expired since final release from supervision.

15. The request to amend was granted because no additional violations are included and the penalty described in the section added to the complaint is still entirely within the range of penalties described in Sections 493.6118(2) and (4), Florida Statutes (1995).

RECOMMENDATION

Based on the foregoing, it is hereby RECOMMENDED:

That the Department of State enter its Final Order revoking the Class "D" security license of Respondent Paul Bushey.

DONE AND ORDERED this 12th day of February, 1998, in Tallahassee, Leon County, Florida.

MARY CLARK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 1998.

COPIES FURNISHED:

Honorable Sandra B. Mortham Secretary of State

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

Don Bell, General Counsel Department of State

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

John M. Russi, Director Division of Licensing Department of State

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

Douglas D. Sunshine, Esquire Division of Licensing Department of State

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

Richard P. Bushey

1620 Cimarron Hills Drive Apopka, Florida 32703

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 must be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 97-003383

Orders for Case No: 97-003383