STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 90-3628

)

ROBERT W. BARNARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in Orlando, Florida, on October 17, 1990, before Robert D. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Ann Cowles-Fewox

Assistant General Counsel

Department of State Division of Licensing

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

For Respondent: Richard I. Wallsh

Troum & Wallsh

2699 Lee Road, Suite 505 Winter Park, Florida 32789

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent is guilty of assaulting his supervisor, in violation of Section 493.319(1)(j), Florida Statutes, and sleeping while on duty as a security guard, in violation of Section 493.319(1)(f), Florida Statutes.

PRELIMINARY STATEMENT

By Amended Administrative Complaint filed June 13, 1990, Petitioner alleges that Respondent holds a Class "D" Watchman, Guard, or Patrolman license and that, on January 4, 1989, Respondent assaulted Vicki Thompson, who was his supervisor. This assault allegedly violated Section 493.319(1)(j), Florida Statutes, which provides that grounds for discipline exist when a licensee commits an assault on any person except in self-defense or defense of a client.

The Amended Administrative Complaint also alleges that, on January 4, 1989, Respondent was sleeping while on duty in violation of Section 493.319(1)(f), Florida Statutes, which provides that grounds for discipline exist when a licensee is guilty of fraud or deceit, negligence, incompetency, or misconduct in the practice of his business for which the license was sought.

By Petition for Formal Hearing served May 22, 1990, Respondent requested a formal administrative hearing.

At the hearing, Petitioner called three witnesses and offered into evidence one exhibit. Respondent called four witnesses and offered into evidence 12 exhibits. All exhibits were admitted except Respondent's Exhibits 10 and 12.

Respondent requested that the undersigned take official notice of the contents of DOAH Case Nos. 89-1377 and 90-0738F, and the undersigned agreed to do so.

A transcript of the hearing was filed on October 4, 1990. Petitioner filed a proposed recommended order, and Respondent filed a memorandum, which does not offer proposed findings in isolation from legal argument. Treatment of the proposed findings is detailed in the appendix.

FINDINGS OF FACT

1. At all material times, Respondent has held a Class "D" license, number D86-05626.

   
   

2. On January 4, 1989, Respondent was employed as a security guard and on duty at a remote water-pumping facility. The equipment was at the bottom of a hill and enclosed by two fences. The outer fence was about 100 yards from the equipment, and the inner fence was located only a few yards from the equipment. The site was dimly lighted.

   
   

3. At approximately 9:55 p.m., Respondent's supervisor approached the outer gate. As was her custom, she flashed the headlights to attract Respondent's attention. She did not honk the horn.

   
   

4. At this time, the supervisor was in radio contact with another supervisor and a radio dispatcher. The supervisor at the site then informed her coworkers that she was going to unlock the gate and find Respondent. Her coworkers told her to keep the microphone button depressed, so they could hear everything.

   
   

5. As the supervisor walked down the hill, Respondent's dog approached her and barked. The coworkers heard her talk to the dog, which recognized her. The supervisor then told her coworkers that she saw Respondent stirring in his truck and she would be off the radio for awhile.

   
   

6. The evidence is unclear whether Respondent had been sleeping. The supervisor believed that he had been and so accused him. Respondent became angered and vehemently denied sleeping while on duty. The supervisor suggested that Respondent go home. Very upset, Respondent prepared to leave the site.

   
   

7. Realizing that she needed Respondent's key to secure the site, the supervisor got to the top of the hill in advance of Respondent. When he drove his truck to the top of the hill, the supervisor demanded his key.

8. Respondent refused to surrender his key. Now enraged, Respondent climbed out of his truck and approached the supervisor until he was about two inches from her face. Although Respondent is in his early 70's and the supervisor is in her 30's, Respondent is apparently in good shape and is much bigger than the supervisor, who at the time was considerably overnourished. Doubtlessly, Respondent is capable of inflicting serious injury upon the female supervisor.

   
   

9. The coworkers could hear Respondent's truck door slam when he reached the top of the hill. While standing two inches away from the supervisor, Respondent threatened, "If you open your mouth one more time, I'm going to kick you in the mouth and kick your ass. Open your mouth. Give me a reason."

   
   

10. The supervisor said nothing. She stood in stunned silence and, during the entire exchange at the top of the hill, had experienced a well-founded fear of imminent violence. After a few moments, Respondent drove away. Deeply concerned for the safety of the onsite supervisor, her coworkers, who had been listening the entire time, summoned the police, and one of them immediately drove out to the site to assist the supervisor on the site.

    
    

11. By Final Order entered July 3, 1990, in DOAH Case No. 90-0738F, Hearing Officer Mary Clark ordered that Petitioner pay Respondent attorneys' fees in connection with an earlier proceeding. In DOAH Case No. 89-1377, Petitioner had charged in an administrative complaint that Respondent's guard license should be revoked based on his violation of Section 493.319(3), Florida Statutes. This statute provides for revocation when the licensee has been convicted of a felony until civil rights have been restored and ten years have elapsed. The factual basis alleged for the violation was that on September 3, 1974, Respondent had been found guilty of one count of felony aggravated assault in Orange County, Florida.

    
    

12. Respondent was initially licensed on May 12, 1986, or 12 years after the felony conviction. The statutory provision revoking the licenses of persons convicted of a felony, which also denies licensure to such persons, was enacted effective October 1, 1986.

    
    

13. Petitioner dismissed Case No. 89-1377 after the Ninth Judicial Circuit Court, on November 8, 1989, sealed the record concerning the aggravated assault matter.

    
    

14. The Final Order determined that Respondent had been a prevailing small business party and, under Section 57.111, Florida Statutes, was entitled to attorneys' fees and costs. The Hearing Officer reasoned that the retroactive application of the felony-conviction statutory provision was not substantially justified.

    
    

15. Nothing in the Administrative Complaint filed in Case No. 89-1377 alleges any of the facts that are the subject of the present case.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

    
    

17. Petitioner is responsible for disciplining the licenses of watchman, guardman, or patrolman for violations of applicable law. Section 483.319(2).

18. Discipline may be imposed if a 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...." Section 483.319(1)(f).

    
    

19. Discipline may be imposed if a licensee "[commits an] assault, battery, or kidnapping or use of force or violence on any person except in self- defense or in the defense of a client...." Section 483.319(1)(j).

    
    

20. Assault is defined as:

    
    

    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.

    
    

    Section 784.011(1).

    
    

21. Petitioner must prove the material allegations by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 297 (Fla. 1987).

    
    

22. Petitioner has failed to prove by clear and convincing evidence that Respondent was sleeping while on duty. However, Petitioner has proven by clear and convincing evidence that Respondent committed an assault on the female supervisor on the evening of January 4, 1989.

    
    

23. The prior cases are irrelevant to this case. Nothing in those cases prevents Petitioner from bringing the present case.

    
    

24. The penalties for a violation of Section 493.319(1) include the revocation or suspension of a license, imposition of an administrative fine not to exceed $1000 per count or separate offense, issuance of a reprimand, and placement of the license of probation subject to such conditions as Petitioner deems fit.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Department of State enter a final order imposing an administrative fine upon Respondent in the amount of $1000 and suspending his license for six months.

ENTERED this 18th day of December, 1990, in Tallahassee, Florida.

ROBERT D. MEALE

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 pf Administrative Hearings this 18th day of December, 1990.

APPENDIX

Treatment Accorded Proposed Findings of Petitioner 1: adopted.

2: rejected as subordinate. 3-4: rejected as irrelevant. 5: adopted in substance.

6: rejected as subordinate and recitation of testimony. 7: rejected as subordinate and irrelevant.

8-9: rejected as irrelevant.

10-11: rejected as recitation of testimony and legal argument.

12 & 14: adopted in substance. 13: adopted.

15: rejected as subordinate and legal argument. 16: rejected as irrelevant.

COPIES FURNISHED:

Hon. Jim Smith Secretary of State The Capitol

Tallahassee, FL 32399-0250

Ken Rouse General Counsel

Department of State The Capitol, LL-10

Tallahassee, FL 32399-0250

Ann Cowles-Fewox Assistant General Counsel Department of State Division of Licensing

The Capitol, MS 4 Tallahassee, FL 32399-0250

Richard I. Wallsh Troum & Wallsh

2699 Lee Road, Suite 505 Winter Park, FL 32789

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 10 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: 90-003628

Orders for Case No: 90-003628