STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AARON ATTIAS, )

)

Petitioner, )

)

vs. ) CASE NO. 93-7159S

)

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Susan B. Kirkland, held a formal hearing in this case on March 22, 1994, in Hollywood, Florida.

APPEARANCES

For Petitioner, Alan S. Fishman, Esquire Aaron Attias: Fishman & Goldstone

2300 West Sample Road, Suite 202 Pompano Beach, Florida 33073

For Respondent: Henri C. Cawthon, Esquire Department of State, Division of Licensing Division of Licensing: The Capitol, Mail Station 4

Tallahassee, Florida 32399-0250 STATEMENT OF THE ISSUES

Whether Petitioner's Application for a Class "D" Security Officer License should be granted.

PRELIMINARY STATEMENT

On August 12, 1993, Petitioner, Aaron Attias ("Attias"), filed an application with the Department of State, Division of Licensing, for a Class "D" Security Officer License. By letter dated November 24, 1993, the Division of Licensing denied Attias' Application pursuant to Section 493.6118(1)(j), Florida Statutes. On December 13, 1993, Attias filed a request for a formal hearing on the denial of his application. On December 23, 1993, the case was forwarded to the Division of Administrative Hearings for assignment of a hearing officer.

At the final hearing, Attias testified on his own behalf. Respondent presented the testimony of Allen Block. Respondent's Exhibit 1, a certified copy of Attias' Application, and Exhibit 2, the Division of Licensing's denial letter, were admitted into evidence.

No transcript was filed. The parties agreed to file Proposed Recommended Orders by April 1, 1994. The parties timely filed Proposed Recommended Orders. Respondent waived filing proposed findings of fact. Petitioner's proposed finding of fact is addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Aaron Attias ("Attias"), worked for the town of Bay Harbor, Florida, from June, 1977 to April, 1992, as a tollman in Bay Harbor Island.

   
   

2. Pursuant to a rule of the town of Bay Harbor, Attias was required to collect a thirty-five cent toll per automobile. Uniformed police officers in marked police cars were exempt from the toll; however, police officers not in uniform and in unmarked cars were charged the toll.

   
   

3. In April, 1992, a woman pulled up to Attias' toll booth and told him she had just been robbed and she had no money to pay the toll. Attias paid her toll, told her to pull over to the side of the road, and called the Bay Harbor Police.

   
   

4. Allen Block, a police officer, for Bay Harbor, was dispatched to the toll facility to investigate the robbery. He learned that the crime occurred in North Miami and, thus, should be investigated by the North Miami Police.

   
   

5. A uniformed, female police officer in a marked police car pulled up to the toll booth. The officer was not a Bay Harbor police officer. Attias allowed her to pass without paying the toll because she was in uniform and in a marked car.

   
   

6. Approximately twenty minutes later, a motorist in an unmarked car pulled up to the toll booth and identified himself as a police officer. Attias charged him the thirty-five cent toll. The officer paid the toll; however, based on the motorist's demeanor, Attias felt that he didn't like having to pay the toll. Attias gave the officer a receipt.

   
   

7. Later, Officer Block and Sergeant Bateman came to the toll facility and spoke with Attias' supervisor and advised him they were there to arrest Attias. Attias' supervisor advised him the police wanted to see him. Attias put his money box in the vault and met the police officers in the hallway leading to the main toll facility.

   
   

8. There is conflicting testimony concerning what happened after Officer Block and Sergeant Bateman met with Attias. According to Officer Block, Attias refused to speak to the police, grabbed Sergeant Bateman and pushed him with both hands against the wall. Officer Block and Sergeant Bateman informed him he was under arrest for obstruction of justice. This charge was because Attias had charged the North Miami police officer the thirty-five cent toll.

   
   

9. According to Attias, he asked the policemen what they wanted, they began to crowd him, and his shoulder touched Sergeant Bateman. Attias testified that he did not push Sergeant Bateman.

   
   

10. Having judged the demeanor and the credibility of the witnesses, I find that Attias did push Sergeant Bateman with both hands, knocking him against the wall. The pushing was not done in self-defense or in defense of another.

11. On August 12, 1993, Attias applied for a Class "D" Security Officer license with the Department of State (Department).

    
    

12. By letter dated November 24, 1993, the Department denied his application, citing as grounds Section 493.6118(1)(j), Florida Statutes.

13. Other than his arrest for the incident at issue, Attias has never been arrested.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

    
    

15. Petitioner is seeking licensure as a Class "D" Security Officer, and as such he has the ultimate burden of persuasion that he is entitled to the license. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

    
    

16. Sections 493.6118, (1)(j) and (2), Florida Statutes, provide that the Department may deny an initial application for licensure if the applicant has engaged in the "[c]ommission 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." Attias did commit an act of violence and used force on Sergeant Bateman when he pushed him against the wall. Attias' actions were not done in defense of himself or another.

    
    

17. Although Attias had never been previously arrested and the circumstances leading to the pushing of Sergeant Batemen stemmed from a misunderstanding concerning the payment of a thirty-five cent toll charge by a police officer, such mitigating factors do not outweigh the fact that Attias pushed a police officer. His actions demonstrate a serious lack of respect for the laws of the state. Additionally the incident occurred less than two years from the date of the application.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Aaron Attias' application

for a Class "D" Security Officer license.

DONE AND ENTERED this 18th day of April, 1994, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

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 18th day of April, 1994.

APPENDIX TO RECOMMENDED ORDER CASE NO. 93-7159S

To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the Petitioner's proposed finding of fact:

Petitioner's Proposed Finding of Fact.

Petitioner's unnumbered finding of fact on page 2 of his proposed recommended order is rejected as not supported by the greater weight of the evidence.

COPIES FURNISHED:

Alan S. Fishman, Esquire Fishman & Goldstone Suite 202

2300 West Sample Road Pompano Beach, Florida 33073

Henri C. Cawthon, Esquire Division of Licensing

The Capitol, MS-4

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 ten 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: 93-007159

Orders for Case No: 93-007159