vs. ) CASE NO. 91-4446
Respondent. )
A hearing was held in this case in Fort Lauderdale, Florida on October 8, 1991, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.
For the Petitioner: Della M. Ragans, Esquire
For the Respondent: Kayo E. Morgan, Esquire
432 N.E. 3rd Avenue
The issue for consideration in this case is whether Respondent's Class "D" security officer license should be disciplined in some fashion because of the matters set forth in the Administrative Complaint filed herein.
By Administrative Complaint dated May 21, 1991, John M. Russi, Director of the Department of State's Division of Licensing, alleged that the Respondent, David Lee Raymond, had, as to Count I, committed a battery upon a law enforcement officer in violation of Section 493.6118(1)(j), Florida Statutes and, as to Count II, been sentenced to 18 months probation and 6 months probation for resisting an officer with violence and attempting to deprive an officer of his means of protection, respectively, in violation of Section 493.6118(s), Florida Statutes. On June 28, 1991, Respondent, through counsel, filed a request for formal hearing in which he disputed the various allegations contained in the Administrative Complaint. By letter dated July 16, 1991, the file was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer. Subsequent to the parties' responses to the Initial Order filed herein, the undersigned, to whom the case had been referred, by Notice of
Hearing dated August 14, 1991, set the case for hearing in Fort Lauderdale on October 8, 1991, at which time it was heard as scheduled.
At the hearing, Petitioner presented the testimony of Robert Voss, a detective with the City of Sunrise, Florida, and introduced Petitioner's Exhibits 1 and 2. Respondent testified in his own behalf, as did his counsel.
A transcript was provided and subsequent to the hearing, Petitioner submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.
At all times pertinent to the allegations herein, the Department of State, Division of Licensing, (Division), was the state agency responsible for the licensing of security officers in this state. The Respondent, David L. Raymond, at the time in issue, did not hold a valid security officer's license. His licensing history reflected that his "D" license, 87-11386, expired on June 30, 1989, and his "D" license, 90-07877, was not issued until May 15, 1992. Therefore, at the time alleged in the Administrative Complaint for the commission of the misconduct cited herein, the Respondent did not possess a current security officer's license.
On February 13, 1990, Detective Robert Voss was a policeman in uniform working for the City of Sunrise, Florida, and was dispatched by radio to proceed in his marked patrol car to the intersection of N.W. 64th Avenue and Sunset Strip, in Sunrise, to respond to a domestic disturbance complaint. The area in question is a mixed commercial/residential area.
When detective Voss arrived at the scene, he pulled up behind a car which was lawfully parked just off the road and observed the Respondent and a white female outside the vehicle. He also noticed there were two children in the car and other individuals standing around observing.
According to Officer Voss, he approached the Respondent and asked him what was going on, at which time the Respondent turned to him and was extremely abusive in his language stating to the officer such things as, "Fuck this." and "Get the fuck out of here." When Officer Voss asked him to lower his voice, Respondent continued with the verbal abuse.
At that point Voss turned to the female involved and asked her what was going on. She responded that they were arguing over the custody of the children; that the Respondent, her estranged husband, wanted to take the children home with him. All during this time, Respondent continued swearing.
Notwithstanding Respondent had been asked to lower his voice, he refused to do so and Officer Voss told him he was under arrest for disorderly conduct. At that point, Voss told Respondent to turn toward the patrol car and put his hands up on the roof, which Respondent did. When Voss went to place handcuffs on him, however, Respondent turned to his left and struck Voss on the side of the face with his right fist.
At this point, Voss and Officer Kobayashi, also a Sunrise police officer, who had arrived at the scene in a separate vehicle, grabbed Respondent and placed him face down on the ground. When that was done, Respondent reached behind himself and grabbed the butt of Kobayashi's pistol, allegedly attempting to remove it from its holster. The officers were able to prevent this, however,
and placed handcuffs on Respondent at which time they took him to the Broward County Jail. Officer Kobayashi was also in uniform at the time. It is unlikely Respondent's action was a serious attempt to get the weapon, however.
Respondent presents a somewhat different story of the incident. He admits that Officer Voss came to the scene at the time he and his wife were involved in a verbal altercation outside the place where she had been living with her boyfriend. The parties were separated at the time and Respondent was upset because his wife was continually taking him to court over custody of the children.
Respondent and his wife had been in a discussion for some period prior to the arrival of the police officers and the situation had been aggravated by the intercession of her boyfriend. Respondent claims he was talking with his children in the car when Voss came up.
Respondent categorically denies having said, "Fuck you" to Voss. He claims instead he told Voss there was an argument going on after which Voss called in both Respondent's and the boyfriend's license tags for verification. After the boyfriend went inside the building, Respondent claims to have engaged in a dialogue with Voss for a period of time at which point, without any provocation, Voss claimed that Respondent hit him and put him up against the car. At this point, Kobayashi came up and both officers roughed him up, he alleges, to the point where Kobayashi had a choke hold on him and he was about to pass out. At this point, Respondent's father came up and told the officers to let him go. In response, allegedly, the officers told Respondent's father to get away or he, too, would be arrested. They then took Respondent to jail. While the officers may have used more force than absolutely necessary, it is found to be more reasonable to conclude that Respondent was disorderly in speech and deportment and struck out at Officer Voss in an attempt to free himself from the restraint in which he found himself.
Respondent hired an attorney who negotiated for a non-adjudicatory resolution of the charge under which Respondent would plead nolo contendere and would be placed on probation with a provision for release after one year. Respondent claims, as does his attorney who testified in his behalf, that the negotiation was solely to avoid a record of conviction and to facilitate the removal of this case from the judge's docket. Respondent continues to deny having either struck Officer Voss or attempted to gain control of Officer Kobayashi's weapon, but it is found he struck Voss.
From the evidence, it appears the entire matter was blown out of proportion. It is clear that when the officers approached the Respondent he was in a high state of upset. No doubt when Respondent failed to cease his verbal outburst he was placed under apprehension and in the course of the scuffle, it is likely that he struck Voss as alleged. However, it is also evident that the striking was without intent.
As to the allegation involving the attempt to remove Kobayashi's weapon, again the evidence indicates it is unlikely Respondent seriously tried to do that in light of the relative positions of the parties. However, it cannot be overlooked that, regardless of counsel's statement of motive, Respondent entered a plea of nolo contendere to battery, disorderly conduct, and an attempt to deprive an officer of his weapon, and while adjudication of guilt was withheld, the Court imposed probation for 18 months on the first offense and for 6 months each on the second and third offenses to run concurrently with the first period of probation.
No evidence was presented regarding the Respondent's current or former moral history or character. The sole evidence of character is related to the instant incident.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.
In its Administrative Complaint, the Petitioner seeks to revoke Respondent's Class "D" security officer license, issued effective May 15, 1990, because some four months prior to that date, on February 13, 1990, Respondent allegedly committed a battery upon a police officer, Robert Voss, and, one year later, on February 13, 1991, was sentenced to 18 months probation in Circuit Court for the crime of resisting an officer with violence, attempting to deprive an officer of his means of protection, and disorderly conduct. Petitioner claims that the court action is evidence of Respondent's lack of good moral character and, taken together, his delicts constitute violations of Section 493.6118, Florida Statutes.
Section 493.6118, Florida Statutes, is a creature of the 1990 Florida legislative session and did not exist at the time the Respondent allegedly committed the offenses outlined in the Administrative Complaint. It is, however, almost identical to the provision of Section 493.319, Florida Statutes, the statute in effect at the times alleged herein and which was repealed by the 1990 Legislature when it enacted the new statute. In any case, the Administrative Complaint is hereby amended, sua sponte, to reflect an allegation that Respondent's misconduct is a violation of the pertinent provisions of Section 493.319, Florida Statutes.
Regardless of which version of the statute is utilized, however, the burden of proof is upon the Petitioner to establish the guilt of the Respondent as to the offenses alleged by clear and convincing evidence, Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
Under the provisions of Paragraph 493.319(1), Florida Statutes, the legislature has outlined various activity which constitutes grounds for which disciplinary action may be taken. These include:
(j) commission of assault, battery, or kidnapping or use of force or violence on any person except in self defense or in the defense of a client, and
(p) violating any provision of this chapter.
Section 493.319(3), Florida Statutes, provides that the Department:
...shall deny an application or revoke a license when the person or licensee has been convicted of a felony, regardless of whether adjudication was withheld or whether imposition of sentence was suspended, unless and until civil rights have been restored and a period of 10 years has expired. A conviction based on a plea of nolo contendere shall create a presumption of guilt to the underlying
criminal charges, and the Department shall allow
the person being disciplined to present any evidence relevant to the underlying charges and the circumstances surrounding his plea.
Under the provisions of Section 493.306(2)(b), Florida Statutes,
The department may deny an application for licensure citing lack of good moral character only if a finding by the department of lack of good moral character is supported by clear and convincing evidence.
At subparagraph (2)(a) of that section,
..."good moral character" means a personal history of honesty, fairness, and respect for the rights of others and for the law of this state and nation.
The offense of resisting an officer with violence is a third degree felony under the provisions of Section 843.01, Florida Statutes. The other offenses alleged are both misdemeanors, notwithstanding the representation by Petitioner's counsel in her Proposed Recommended Order.
Considering the evidence as presented, the Division has established by clear and convincing evidence that the Respondent, David Raymond, was guilty of disorderly conduct, a misdemeanor, and of resisting an officer with violence, the third degree felony. The evidence is insufficient, however, in light of the circumstances and notwithstanding the plea of nolo contendere and the circumstances under which that plea was entered, to establish clearly and convincingly that Respondent attempted to deprive Officer Kobayashi of his weapon.
It is also concluded that nothing of which Mr. Raymond was convicted demonstrates sufficiently, for the purposes of this action, that he is not of good moral character. Considering the circumstances existing at the time, which led up to the police being called, and the manner in which the arrest came about, it is clear that the misconduct is more an aberration which manifested itself in the heat and stress of a domestic altercation than any evidence of poor moral character.
The only real question remaining for resolution, therefore, is whether the Court's action regarding the third degree felony must, under the provision of Section 493.319(3), Florida Statutes, result in revocation of his license. Here, for the purposes of determining that the offense took place and supporting disciplinary action, even though adjudication was withheld, Respondent stands convicted of a felony. However, since no adjudication was entered, he has not been actually convicted and, thereby, deprived of his civil rights, and therefore, the mandatory provisions of that statute do not apply and the Division is not obligated to revoke his license.
This leads, then, to the additional question as to what action is appropriate. At the time the offenses took place, Respondent did not hold an active license. His former license had expired and his current license had not been issued. He was, however, eligible for licensure and his prior license, while it had expired, had not been revoked or disciplined, and he was eligible
for re-licensure without any further demonstration of entitlement. Consequently, for the purposes of revocation and discipline, under the provisions of Section 493.319(2), Florida Statutes, he possessed a license which could be disciplined.
Under that aforementioned provision, the Division is authorized to:
Deny an application for licensure;
Revoke, suspend or refuse to renew a license;
Impose an administrative fine not to exceed
$1,000.00 for every count or separate offense;
Issue a reprimand; and
Place the licensee on probation for a period of time and subject to such conditions as the Department may specify.
Here, the issue is the appropriate penalty for this Respondent under the facts and circumstances of this case. Clearly, revocation or suspension of his license is inappropriate, as is a substantial administrative fine. It would appear, however, that Mr. Raymond, as a security officer, must be reminded of his obligations concerning the public trust bestowed upon him with the issuance of a security officer license.
Based on the foregoing Findings of Fact and Conclusions of law, it is, therefore:
RECOMMENDED that a Final Order be issued in this case reprimanding David Lee Raymond for his established misconduct, imposing an administrative fine of
$250.00, and placing his license on probation for a period of one year under such terms and conditions as may be specified by the Department.
ARNOLD H. POLLOCK
APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-4446
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.
1. - 3. Accepted and incorporated herein.
4. Accepted. FOR THE RESPONDENT:
None submitted.
Della M. Ragans, Esquire Department of State Division of Licensing The Capitol, MS #4
Kayo E. Morgan, Esquire
432 N.E. Third Avenue
Hon. Jim Smith Secretary of State The Capitol
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 consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should b e filed with the agency which will issue the Final Order in this case.
