STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALFRED T. ROSE, )

)

Petitioner, )

)

vs. ) CASE No. 88-6454S

) DEPARTMENT OF STATE, DIVISION ) OF LICENSING, )

)

Respondent. )

) DEPARTMENT OF STATE, DIVISION ) OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE No. 89-0010

)

ALFRED T. ROSE, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this matter in Tampa, Florida on March 23, 1989, before Arnold H. Pollock, Hearing Officer. The issue for consideration is whether Mr. Rose's application for a renewal of his private investigator license was wrongfully denied and whether the existing licenses should be disciplined because of the misconduct alleged in the Administrative Complaint filed herein.

APPEARANCES

For Department R. Timothy Jansen, Esquire of State: Assistant General Counsel

Department of State

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

For Mr. Rose: Howard J. Shifke, Esquire

701 North Franklin street Franklin Street Mall Tampa, Florida 33602

BACKGROUND INFORMATION

By letter dated November 1, 1988, the Chief, Bureau of License Issuance, Florida Department of State, (Department) notified Mr. Rose that his application for a Class "MB" license for watchman, guard, or patrol agency manager had been denied because of certain misconduct alleged in the explanation portion of the letter of denial. On November 18, 1988, Mr. Rose requested a formal hearing

disputing the facts upon which the agency action was based and on December 28, 1988, the file was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer.

By Administrative Complaint dated October 31, 1988, the Department seeks to discipline Mr. Rose's Class "B", "D", "G", and "ZB" licenses because of misconduct alleged therein which paralleled that utilized by the department as grounds for denial of Mr. Rose's application for an "MB" license. Mr. Rose requested a hearing, and on December 28, 1988, this file was also forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer.

By Notice of Hearing dated January 17, 1989, Hearing Officer K. N. Ayers set both cases for hearing on March 23, 1989, and the two cases were held at common hearing as scheduled by the undersigned to whom they had been transferred in the interim.

At the hearing, the Department presented the testimony of James T. Hurley, David I. Cook, and Raymond R. Sorenson, all former employees of Mr. Rose's company, Secure Plus: and Dwight H. Chastain, an investigator with the Department's Division of Licensing. The Department also introduced Petitioner's Exhibits 1 through 4. Mr. Rose testified in his own behalf and presented the testimony of Mr. Hurley.

No transcript was provided. The Department submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order. Mr. Rose's counsel submitted written argument.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, Alfred T. Rose held a Class "MB" investigator's license issued by the State of Florida, and the Department of State was and is the agency responsible for licensing private investigators and security guards in this State.

   
   

2. James T. Hurley, a former law enforcement officer in New York and the United States Marines, was hired by Mr. Rose approximately fifteen months ago, initially as a patrolman in Mr. Rose's company, Secure Plus, located in Pinellas County, Florida. As the business improved, Mr. Hurley was promoted to Lieutenant and then to Captain, and given responsibility for all Secure Plus business in the south end of the northern part of Pinellas County.

   
   

3. On June 20, 1988, while working at his automobile body shop located next to Mr. Rose's office, Mr. Hurley overheard an argument erupt between Mr. Rose and his son Cudhay Rose. As he recalls it, the argument centered around the fact that Cudhay has purchased a Cadillac automobile and Mr. Rose was upset about it, feeling that a car more suitable for company business should have been purchased.

   
   

4. After about five minutes of alternating argument and silence, Mr. Hurley, at work in the back of his building, heard a window break. He observed Cudhay come out of the Secure Plus building, bloody and cut. Cudhay stated to Mr. Hurley that his father had tried to kill him. He asked Mr. Hurley to see if he could get his car keys out of the office and when Mr. Hurley went into the Secure Plus office, he saw Mr. Rose putting shells in his gun. When Cudhay thereafter came in, Mr. Rose pointed his gun at Cudhay's face and threatened to blow his "fucking" head off.

5. At this point, according to Mr. Hurley, Mr. Rose appeared wild eyed and shaking. Mr. Hurley tried to clam him down and, after Cudhay left, Mr. Rose went to his office with Hurley and commented that the company was finished. At no time during this period did Mr. Rose fire his gun nor did he point it at Mr. Hurley though he advised Mr. Hurley to mind his own business. Mr. Hurley's body shop is located at the rear of Mr. Rose's building, and while the above altercation was going on, he could observe Mr. Rose and his son through the window scuffling and "bouncing off the walls.

   
   

6. Mr. Rose admits to an altercation with his son on June 20, 1988. He contends that his son has been in a foul mood all that day and when he asked what was wrong, Cudhay indicated his wife had threatened to divorce him because he was not bring home enough money. According to Mr. Rose, at this point in time, with the business just getting started, funds were short and neither he nor his son was taking much money out of it.

   
   

7. Mr. Rose also admits to a physical confrontation between the two of them. He contends, however, that Cudhay had become quite belligerent earlier in the morning. Mr. Rose left the office and went home. When he came back later on, he told Cudhay that his wife had called and wanted to talk with him "now." At this, Cudhay got angry and went into his office. When he came out and Mr. Rose asked what, if anything, he could do, Cudhay got furious and knocked a chair across the room. When Mr. Rose tried to grab him and clam him down, Cudhay tried to kick his father in the groin. With this, Mr. Rose grabbed Cudhay and shoved him across the room as a result of which Cudhay hit his head against the wall. Cudhay then grabbed Mr. Rose's gun from it's holster and threw it across the floor. Mr. Rose got it, and ejected the shells onto the floor. Mr. Rose retrieved his weapon and put it in the car trunk along with all six shells.

   
   

8. Mr. Rose denies pointing the gun at Cudhay and denies even having the gun in his hand until he picked it up after Cudhay threw it aside. He denies threatening to kill Cudhay but admits threatening to "whip his butt" in an effort to get him to settle down.

   
   

9. According to Mr. Rose, he and his son shook hands to end the disagreement and he heard nothing more about it until approximately two weeks later during which time Cudhay was in the office each day without any further argument erupting. After this two week period of calm, Mr. Chastain, the Department's investigator came to the office and when Mr. Rose asked what it was about, Cudhay indicated someone had reported the fight.

   
   

10. It was not Cudhay who reported it, however, but Mr. Hurley. While Cudhay indicated to Hurley, Cook, and Sorenson shortly after the fight that his father had threatened to kill him, when initially interviewed by Chastain, he denied anything serious had happened because, he claims, he didn't want to get his father in trouble. It was only several months later that he went to Chastain and indicated he had lied, asking to make another, correct, statement.

    
    

11. There can be no doubt that an altercation took place between Mr. Rose and his son on June 20, 1988, and that physical violence ensued. There is also no doubt that the weapon was displayed and words were spoken in anger. Cudhay Rose was not present to testify and all the adverse direct testimony regarding this incident comes from former employees of Mr. Rose who no longer are in his employ. Mr. Rose, while admitting an altercation, puts a different face on it. Upon consideration of all the available evidence, it is found that the gun was displayed, and while the threat to kill by Mr. Rose may not have been serious,

    he did assault Cudhay with it. This action is mitigated by the direct physical altercation which preceded it, however.

    
    

12. During the months of May and June 1988, Secure Plus had a contract to provide security services for the Manatee Mall construction project located adjacent to a predominantly black area in Pinellas County. According to Mr. Hurley, on several occasions Mr. Rose would take his company car and go down to the area near the site and slowly drive past a bar known to be a place where crack cocaine was available. On these occasions, while in uniform, he would drive slowly past the bar, shining his spotlight on the building and patrons outside, turn around at the end of the street, come back and park on the construction site with his headlights shining on the bar entrance. When he would do this, according to Mr. Hurley, it would create a negative response from the black citizens and as a result, on one occasion, rocks were thrown. Hurley relates that on June 11 or 12, 1988, when he was on patrol at the project, Mr. Rose came by to visit and he saw him do it.

    
    

13. Similar actions were recounted by Mr. Cook, also a past employee, who indicated that on one occasion while he was patrolling in the area, Mr. Rose told him that he had driven by the back of the site, a known drug dealer area, and shone his light on the people there because he wanted to "jack" the blacks. At this time, Mr. Rose stayed on the project and did not cross the road to the residential area.

    
    

14. Mr. Sorenson, also a former employee of the company, relates that on one occasion, shortly after he was hired in late May 1988, Mr. Rose told him that he had shone his lights on some blacks near the Manatee construction project and they had thrown rocks at him. Mr. Rose had joked about this, stating he had "jacked" with the "niggers."

    
    

15. According to Mr. Rose, when he got the job to guard the construction site, he went to the bartender at the bar related here and reached an agreement from him to keep the people from the area off the construction site. Since that time, there has been no problem at all. Mr. Rose denies having bragged about "jacking the niggers." He states he may have used the term "jacked" but denies using any racial epithet. Considering the evidence as a whole, including the repeated independent reports of Mr. Rose's use of the term, "jacking the niggers," it is found that he did harass the patrons of the bar as alleged.

    
    

16. Mr. Hurley also related that on one occasion, when he was performing duty at the project, Mr. Rose called him to meet him for breakfast. While they were eating, Mr. Rose allegedly told Mr. Hurley that while at a car dealership he services in Pasco County, he was "spooked" by two individuals at whom he fired his .357 caliber pistol. Thereafter, according to Hurley, Mr. Rose reported the incident to a deputy sheriff but omitted the fact that he fired his weapon, and also failed to report the firing to the Department as it was a requirement to do.

    
    

17. Mr. Rose also denies any trouble at a car lot and claims he did not discharge a firearm at the lot. In fact, the only time he has ever fired his weapon was when he took his qualification test. He denies having discussed having reported trouble at a car lot with a deputy in Pasco County because, he claims, he has never had any problem there and such an incident never happened to him. Considering the evidence presented on this issue, consisting only of hearsay admissions by the Respondent and no direct evidence to confirm any element of the allegation, it is found that no such misconduct on the part of Mr. Rose took place.

18. Mr. Rose currently owes Mr. Hurley in excess of $500.00 but Hurley contends this debt does not have any effect on his testimony. He claims he is testifying because, in his opinion, Rose's conduct in all three incidents was dangerous. Though he has asked Mr. Rose for the money several times Mr. Rose has indicated he will not pay. Mr. Hurley claims to like Mr. Rose, describing him as a jovial and good humored individual, but the temper displayed in the altercation with Cudhay surprised him. Mr. Rose cannot understand why Hurley, Sorenson, and Cook, would make the "false" statements they made against him. He admits to owing Hurley money, but thought his relationship with the others was good. Be that as it may, there is direct evidence as to two of the alleged offenses by witnesses who were present at the scene. Mr. Rose has shown no motive for them to lie and their testimony is, therefore, believable.

    
    

19. During Mr. Chastain's investigation, he spoke with several witnesses, including Cudhay Rose, from whom he took a sworn statement regarding the assault in which he initially denied his father had pulled a gun on him. His change of heart was prompted by concerns about his father's mental health and the safety of the public.

    
    

20. While Mr. Rose admits to carrying a .357 revolver, he claims that when he took his qualification test, his instructor advised him that he must carry only the gun he qualified with, and since it was a .357, that is what he carries.

    
    

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

22. The burden of proof in this case rests with the Department. In both cases, the attempted discipline and the contest of the denial, the evidence relied upon to carry the burden of proof must be clear and convincing, (Section 493.319(2), Florida statutes).

    
    

23. The Department relies upon Sections 493.319(1)(f) and (j), Florida statutes, as its basis for both the denial of Mr. Rose's application for a Class MB license and the attempted discipline of his currently held Class B, D, G, and ZB licenses.

    
    

24. Subsection 493.319(1)(j) permits action against a licensee for:

    
    

    Commission of assault, battery, or kidnapping or use of force or violence on any person except in self defense or in defense of a client.

    
    

25. The evidence of record clearly establishes that Mr. Rose and his son were engaged in an argument; that when the son began to throw furniture around in the office, Mr. Rose grabbed him in an attempt to calm him down; that when, in response, the son tried to kick Mr. Rose in the groin, Mr. Rose took defensive action; and that though the weapon was used by Mr. Rose in an aggressive manner, the incident is mitigated by the force initiated by Cudhay Rose.

26. Subsection 493.(1)(f) permits action upon:

    
    

    Proof that the licensee is guilty of fraud or deceit, or of negligence, incompetency, or misconduct in the practice of his business for which the license is held or sought.

    
    

27. The Department seeks to use this provision of the statute to classify the allegations against Mr. Rose relating to the relationship with the patrons of the bar near the Manatee Mall site; and his supposed discharge of his weapon, as misconduct sufficient to support both denial and discipline. Mr. Hurley saw Mr. Rose in his relationship with the black community and this conduct has been found to constitute harassment. However, the evidence of the discharge of a firearm charge consists of no more than reports by apparently disgruntled former employees that Mr. Rose admitted to its happening. There is no direct evidence of its occurrence and Mr. Rose unequivocally denies it. The evidence of guilt as to this allegation is not clear and convincing.

    
    

28. In its Proposed Recommended Order, the Department first seeks to use as basis for discipline Mr. Rose admitted carrying of a .357 weapon instead of the .38 weapon authorized by Section 493.315(6) and his failure to report the firing to the Department. It has been found there is insufficient evidence to support the charge that Mr. Rose fired his weapon. Therefore, the only possible violation here relates to the carrying of an unauthorized weapon which Mr. Rose explains. It must be noted, however, that this alleged violation was neither pleaded by the Department in the Administrative Complaint filed as a basis for discipline nor used by it in its letter of denial of Mr. Rose's application for the MB license. In light of the minor severity of this offense and the mitigating factors surrounding it, it should not be used now as the basis for either denial or discipline.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that Mr. Rose's application for a Class MB license be denied, that he be find $1,000.00, and that his Class B, D, G, and ZB licenses be suspended for 90 days.

RECOMMENDED this 21st day of April ,1989 at Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 21st day of April, 1989.

APPENDIX TO RECOMMENDED ORDER IN CASE NOS: 88-6454 AND 89-0001

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

For the Department:

1. Accepted and incorporated herein. 2-4. Rejected as unproven.

5. Accepted and incorporated herein.

For Mr. Rose:

The Proposed Recommended Order submitted by Mr. Rose's counsel does not contain proposed Findings of Fact but is more in the nature of argument on the evidence. Consequently, no specific rulings are made.

COPIES FURNISHED:

R. Timothy Jansen, Esquire Asst. General Counsel Department of State

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

Howard J. Shifke, Esquire Anthony F. Gonzalez, P.A. 701 N. Franklin Street Tampa, Florida 33602

Hon. Jim Smith Secretary Of State The Capitol

Tallahassee, Florida 32399-0250

Ken Rouse, Esquire General Counsel Department of State The Capitol, LL-10

Tallahassee, Florida 32399-0250

Docket for Case No: 88-006454

Orders for Case No: 88-006454