STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 90-8114

)

PATRICK THOMAS WELLS, )

)

Respondent. )

)

RECOMMENDED ORDER

On June 18, 1991, a formal administrative hearing was held in this case in Tallahassee, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Henri C. Cawthon, Esquire

Assistant General Counsel Department of State Division of Licensing

The Capitol, MS #4

Tallahassee, Florida 32399-0250

For Respondent: Bruce G. Kaufmann, Esquire

11151 - 66th Street North Suite 401

Largo, Florida 34643 STATEMENT OF THE ISSUE

The issue in this case is whether the Petitioner, the Department of State, Division of Licensing, should discipline the Respondent, Patrick Thomas Wells, based on charges in the Administrative Complaint, Dept. of State Case No. C90- 01642, alleging in two counts that the Respondent committed an assault and battery on two individuals, neither in self-defense nor in defense of a client, in violation of Section 493.319(1)(f) and (j), Fla. Stat. (1989). 1/

PRELIMINARY STATEMENT

On or about November 16, 1990, the Petitioner, the Department of State, Division of Licensing (the Department), filed against the Respondent the Administrative Complaint it designated as Department Case No. C90-01642. The Respondent, with his counsel of record, denied the charges in the Administrative Complaint and requested formal administrative proceedings in Tallahassee, Florida. The case was referred to the Division of Administrative Hearings and,

initially, was scheduled for final hearing on February 28, 1991. After several continuances, the final hearing eventually was conducted in Tallahassee on June 18, 1991.

At the final hearing, the Department presented the deposition testimony of two witnesses in the form of Petitioner's Exhibits 1 and 2. The Department also called one live witness--its investigator. The Respondent presented no evidence.

At the conclusion of the final hearing, the Respondent ordered the preparation of a transcript of the final hearing. The parties were given ten days from the filing of the transcript in which to file proposed recommended orders. The transcript was filed on June 27, 1991, making proposed recommended orders due July 8, 1991. Only the Department filed a proposed recommended order.

FINDINGS OF FACT

1. On or about July 20, 1990, the Respondent, Patrick Thomas Wells, visited a friend, Chuck Schmidt, at Anclote Manor Hospital. Anclote Manor, now known as The Manors, is a residential psychiatric hospital that admits both voluntary and involuntary patients for treatment of mental illness.

   
   

2. It is not clear from the evidence whether Chuck Schmidt was a voluntary or involuntary patient at Anclote Manor. It also is not clear from the evidence what Schmidt's "code" status was on July 20, 1990, i.e., whether and to what extent the hospital was restricting his physical movement. However, based on what transpired on July 20, 1990, it seems that the hospital did not want Schmidt to leave the hospital.

   
   

3. The Respondent, and another individual, visited with Schmidt in a visiting room off the lobby at the entrance to the hospital. The entrance lobby is serviced by two tandem doors separated by a small and narrow vestibule. The inner of the two doors is locked. To gain entry to the entrance lobby, it is necessary to enter the outer of the two doors, proceed through the small and narrow vestibule to the inner door, and wait for the receptionist, sitting at the receptionist's desk in the lobby, to press a button that operates a buzzer and unlocks the inner door. To leave the building, it also is necessary to wait for the receptionist to unlock the inner door.

   
   

4. During the Respondent's visit with Schmidt, a hospital medical technician named Theodore Carabelas waited in the lobby immediately outside the door to the visiting room. It was his job to supervise the whereabouts of Schmidt and escort Schmidt back to his quarters inside the hospital when the visit was over. Although Carabelas did not know what Schmidt's "code" status was on July 20, 1990, he clearly understood part of his job to be to prevent Schmidt from leaving the hospital unless Carabelos was given proper authorization from hospital personnel to let him leave.

   
   

5. During the visit, the Respondent sent the other individual with him out to the car in the parking lot purportedly to get some paperwork. In light of what transpired soon after, it seems that their real purpose was to allow the individual to provide information to the Respondent and Schmidt so that they could plan an escape from the hospital. A short time after the individual returned to the group, he again went out to the car, again purportedly to get more paperwork. This time, another hospital employee, Suzette Jouvere-Nicosia, waited in the small and narrow vestibule for the individual to return. On the

   individual's return, when the receptionist unlocked the inner door, and the individual opened the door, the Respondent shouted, "let's go," and he and Schmidt burst out of the visiting room door and ran through the lobby towards the open door. In the process of the escape through the lobby, the Respondent's shoulder bumped into Carabelas, who was standing just outside the door to the visiting room, and knocked him to the floor.

   
   

6. There was no evidence that the Respondent intended to hurt Carabelas or went out of his way to shoulder Carabelas to the ground. Carabelas simply was in the way of the charge and basically was run over. Carabelas was not injured.

   
   

7. When the Respondent and Schmidt got to the inner door, essentially the same thing happened to Jouvere-Nicosia. Where she was standing in the narrow vestibule near the inner door, it was impossible for either Schmidt or the Respondent alone, much less together, to get through the passageway without bumping into her. As the Respondent passed by, he also bumped into her with his shoulder, and she was knocked into the wall of the vestibule. The three "escapees" continued to exit the building and hopped into a waiting "getaway" car.

   
   

8. As with Carabelas, there was no evidence that the Respondent intended to hurt Jouvere-Nicosia or went out of his way to shoulder her into the door frame. As with Carabelas, she simply was in the way of the charge and basically was run into. There was no evidence on which a finding can be made that she was injured.

   
   

9. The Respondent is licensed in Florida as a watchman and has a Florida gun permit. 2/ But the Respondent was not in uniform, and there was no evidence that he was acting in his capacity as a licensee on July 20, 1990. Nor was there any evidence that he displayed or was carrying a gun on July 20, 1990. 3/

   
   

   CONCLUSIONS OF LAW

   
   

10. Section 493.319(1) and (2), Fla. Stat. (1989), the statute under which the Department charged the Respondent in this proceeding, was repealed effective January 1, 1991. Section 493.319, Fla. Stat. (Supp. 1990); Section 10, Chapter 90-364, Laws of Florida (1990).

    
    

11. Section 493.6126, Fla. Stat. (Supp. 1990), provides:

    
    

    1. No judicial or administrative proceeding pending on October 1, 1990, shall be abated as

       a result of the repeal and reenactment of this chapter.

    2. All licenses valid on October 1, 1990, shall remain in full force and effect until expiration or revocation by the department. Henceforth, all licenses shall be applied for and renewed in accordance with this chapter.

       
       

12. The Administrative Complaint in this case was not filed until November 16, 1990. It seems from Section 493.6126, Fla. Stat. (Supp. 1990), that this proceeding should be governed by Section 493.6118(1) and (2), Fla. Stat. (Supp. 1990), which appears to be the reenactment of Section 493.319(1) and (2), Fla. Stat. (1989). The language of Section 493.6118(1)(f) and (j), Fla. Stat. (Supp. 1990), is equivalent to, although not identical to, the language of Section 493.319(1)(f) and (j), Fla. Stat. (1989), the substantive violations alleged in

    the Administrative Complaint. Although no motion was made to amend the Administrative Complaint to comply with the law, it seems that the parties implicitly consented to the trial of the Administrative Complaint as if it was filed under Section 493.6118(1) and (2) and alleged that the Respondent violated Section 493.6118(1)(f) and (j), Fla. Stat. (Supp. 1990).

    
    

13. Section 493.6118, Fla. Stat. (Supp. 1990), provides in pertinent part:

    
    

    1. The following constitute grounds for which disciplinary action specified in subsection (2)

       may be taken by the department against any licensee

       . . . regulated by this chapter . . ..

       
       

       (f) Proof that the applicant or licensee is guilty of fraud or deceit, or of negligence, incompetency, or misconduct, in the practice of the activities regulated under this chapter.

       
       

       (j) Commission of assault or battery, false imprisonment, kidnapping, or the use of force on any person except in the lawful protection of one's self or another from physical harm.

       
       

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

       
       

       1. Issue a reprimand.

       2. Impose an administrative fine not to exceed

          $1,000 for every count or separate offense.

       3. Place the licensee on probation for a period of time and subject to such conditions as the department may specify.

       4. Suspend or revoke a license.

       
       

       (6) A license shall be automatically suspended

       upon entry of a final order affirming an administrative fine, until the fine is paid, provided that a period of

       30 calendar days has elapsed since the entry of the final order. . . ..

       
       

14. The evidence in this case did not prove that the Respondent violated Section 493.6118(1)(f), Fla. Stat. (Supp. 1990). Had the Respondent been engaged "in the practice of the activities regulated under this chapter," he might have been guilty of a violation of paragraph (f) of subsection (1) of the statute. But there was no evidence that he was engaged "in the practice of the activities regulated under this chapter" on July 20, 1990.

    
    

15. As for Section 493.6118(1)(j), Fla. Stat. (Supp. 1990), there is no allegation, or evidence, that the Respondent falsely imprisoned or kidnapped anyone. The questions are whether the Respondent assaulted or battered Carabelos or Jouvere-Nicosia or whether he used force on either of them other than in the lawful protection of himself or another from physical harm.

    
    

16. "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." Section 784.011(1), Fla. Stat. (1989). The

    Respondent argues in his defense that he and Schmidt had a legal right to leave the hospital without being detained. It is at least arguable whether Schmidt, as a voluntary patient at the hospital, had the legal right to leave the hospital at the time. See Sections 394.465(5), Fla. Stat. (1989), and 394.459(3)(a), Fla. Stat. (Supp. 1990). But since the Respondent clearly had the right to leave the hospital, it is not necessary to determine what Schmidt's legal rights were. Besides, having the legal right to be in a certain place at a certain time does not necessarily give one the right to assault another who objects to the person's presence in that place and at that time. See Davis v.

    State, 95 Fla. 259, 116 So. 226 (1928). Not every battery is necessarily an assault. See Shephard v. State, 455 So. 2d 479 (Fla. 5th DCA 1984). But the facts in this case support the conclusion that the Respondent assaulted both Carabelos and Jouvere-Nicosia, violations of this first prong of Section 493.6118(1)(j), Fla. Stat. (Supp. 1990).

    
    

17. "A person commits battery if he: (a) Actually and intentionally touches or strikes another person against the will of the other; or (b) Intentionally causes bodily harm to an individual." Section 784.03(1), Fla. Stat. (1989). The Respondent did not cause Carabelos any bodily harm, and there was no evidence on which it could be found that the Respondent caused Jouvere- Nicosia bodily harm. However, in view of paragraph (a) of subsection (1), proof of bodily harm is not necessarily essential to a conclusion that a battery has been committed. See D.C. v. State, 436 So. 2d 203 (Fla. 1st DCA 1983); L.D. v. State, 355 So. 2d 816 (Fla. 3d DCA 1978). Here the questions are whether the Respondent intended to touch or strike Carabelos or Jouvere-Nicosia and whether it was done against their will. Although the evidence was that the Respondent did not intend to injure Carabelos or Jouvere-Nicosia, the facts support the conclusion that he intended to make contact with them in the way he did. In other words, it was not an accident that he bumped into them the way he did. He knew he was going to bump into them to make his "escape," and he intentionally proceeded to do so. It is true that both Carabelos and Jouvere-Nicosia were attempting to block the "escape" by Schmidt and the Respondent. They intentionally placed their bodies in the way of the "escapees" in order to block the "escape." But it cannot be concluded that the touching or striking that occurred on July 20, 1990, was not against the will of Carabelos or Jouvere- Nicosia. The evidence proved violations of this second prong of Section 493.6118(1)(j), Fla. Stat. (Supp. 1990).

    
    

18. As to the last prong of Section 493.6118(1)(j), Fla. Stat. (Supp. 1990), the facts are clear that the Respondent used force against Carabelos and Jouvere-Nicosia other than in the lawful protection of himself or another from physical harm. It certainly is possible that, had the Respondent and his friends made a slower exit from the hospital, at some point Carabelos or Jouvere-Nicosia, or other hospital personnel, would have threatened the

Respondent and his friends with physical harm. But the facts are clear that, at the time they were using force against Carabelos and Jouvere-Nicosia, on July 20, 1990, the Respondent and his friends were not being threatened with physical harm. The evidence proved violations of this last prong of Section 493.6118(1)(j), Fla. Stat. (Supp. 1990).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent, the Department of State, Division of Licensing, enter a final order: (1) finding the Respondent, Patrick Thomas Wells, guilty of a two violations of Section 493.6118(1)(j), Fla. Stat. (Supp. 1990), one as to Carabelos and one as to Jouvere-Nicosia; (2) fining him $250; (3) reprimanding him; and (4) placing him on probation for the next year in which he engages in activities regulated under Chapter 493, Fla. Stat. (Supp. 1990).

RECOMMENDED this 15th day of July, 1991, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 15th day of July, 1991.

ENDNOTES

1/ Section 493.319(1)(f) and (j), Fla. Stat. (1989), have been repealed and reenacted as Section 493.6118(1)(f) and (j), Fla. Stat. (Supp. 1990). See Conclusions of Law.

2/ The Administrative Complaint alleged that the Respondent "holds a Class 'D' Watchman, Guard or Patrolman License, number D89-23610, effective January 3, 1990, and a Class 'G' Statewide Gun Permit, number G90-01124, effective April 27, 1990." But the only evidence on the Respondent's licensure was the Respondent's stipulation, as reflected in this finding.

3/ As reflected in the Findings of Fact, except for the Department's proposed finding number 1, all of the Department's proposed findings of fact are accepted and incorporated. The Department's proposed finding number 1 is rejected to the extent that it is inconsistent with Finding 9 but otherwise accepted.

COPIES FURNISHED:

Henri C. Cawthon, Esquire Assistant General Counsel Department of State Division of Licensing

The Capitol, MS #4

Tallahassee, Florida 32399-0250

Bruce G. Kaufmann, Esquire 11151 - 66th Street North Suite 401

Largo, Florida 34643

Honorable 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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT TO THE DEPARTMENT OF STATE, DIVISION OF LICENSING, 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 CONSULT WITH THE DEPARTMENT OF STATE, DIVISION OF LICENSING, CONCERNING ITS RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER.

Docket for Case No: 90-008114

Orders for Case No: 90-008114