STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

HARRY L. HOFFMAN, )

)

Petitioner, )

)

vs. ) CASE NO. 94-3219S

)

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings, on September 28, 1994, at Miami, Florida. Appearances for the parties at the hearing were as follows:

APPEARANCES

For Petitioner: Harry L. Hoffman, pro se

7301 Ramona Street

Miramar, Florida 33023

For Respondent: Richard R. Whidden, Jr., Esquire

Assistant General Counsel Department of State Division of Licensing

The Capitol, Mail Station No. 4 Tallahassee, Florida 32399-0250

STATEMENT OF THE ISSUE

The issue in this case is whether the Petitioner's application for a Class "D" Security Officer License should be granted or denied.

PRELIMINARY STATEMENT

At the hearing on September 23, 1994, the Petitioner testified on his own behalf, but did not call any other witnesses and did not offer any exhibits.

The Respondent presented the testimony of two witnesses 1/ and offered two exhibits, 2/ both of which were received in evidence. At the conclusion of the hearing the parties requested, and were granted, 30 days from the date of the hearing within which to file their proposed recommended orders. Neither party ordered a transcript of the hearing.

On October 24, 1994, the Petitioner filed a one-page letter with the Hearing Officer. The letter consists primarily of arguments in support of the Petitioner's position and does not contain any proposed findings of fact,

although some factual assertions are incorporated in the arguments. Those assertions are addressed in the Appendix to this Recommended Order.

On October 24, 1994, the Respondent filed a proposed recommended order containing proposed findings of fact and conclusions of law. The proposed findings submitted by the Respondent are also addressed in the Appendix.

FINDINGS OF FACT

1. On or about January 4, 1994, the Petitioner filed an application for a Class "D" Security Officer License pursuant to Chapter 493, Florida Statutes.

   
   

2. On April 20, 1994, the Respondent sent a letter to the Petitioner advising him of its intention to deny his application. The sole stated ground for denial was described as "[f]ailure to qualify under Section 493.6118(1)(j). You committed an act of violence or used force on another person which was not for the lawful protection of yourself or another." The denial letter also made specific reference to the date of February 21, 1993, and specifically referred to criminal charges allegedly brought against the Petitioner on that date for battery and aggravated battery.

   
   

3. With regard to the Respondent's basis for denial, the proof demonstrates that during the early afternoon of February 21, 1993, the Petitioner became involved in an argument with Jessica Favata, an adult female with whom he was acquainted. The intensity of the argument escalated and at one point the Petitioner physically pushed Ms. Favata. At that point a male friend of Ms. Favata, one Bradley Watson, injected himself into the argument.

   
   

4. As the intensity of the argument between the Petitioner and Mr. Watson continued to increase, the Petitioner retrieved an aluminum baseball bat from his motor vehicle and began swinging the bat in the general direction of Mr. Watson. During the course of one of the swings of the bat, the Petitioner struck Ms. Favata on the hand with the bat. As a result of being struck by the bat, Ms. Favata's hand was visibly injured.

   
   

5. During the course of the events described in the preceding paragraph neither Ms. Favata nor Mr. Watson were armed with any type of weapon.

   Similarly, neither Ms. Favata nor Mr. Watson were causing or attempting to cause physical harm to the Petitioner.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sec. 120.57(1), Fla. Stat.

   
   

7. It is well settled that, in the normal course of events, in a case of this nature where the Petitioner is seeking the issuance of a license, the Petitioner bears the burden of establishing his entitlement to the license by a preponderance of the evidence. Florida Department of Transportation v. J.W.C., Inc., 396 So.2d 778, 788 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). More recently it has been held that where an agency proposes to deny an application on the basis of alleged misconduct of the applicant, the agency bears the burden of proving that misconduct by clear and convincing evidence. Osborne Stern and Company v. Dept. of Banking and Finance, 19 FLW D882 (Fla. 1st DCA 1994).

8. Section 493.6118, Florida Statutes, reads as follows, in pertinent part:

   
   

   1. The following constitute grounds for which disciplinary action specified in sub- section (2) may be taken by the department against any licensee, agency, or applicant regulated by this chapter, or any unlicensed person engaged in activities regulated under this chapter.

      * * *

      (j) Commission 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.

      * * *

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

      1. Deny an initial or renewal application for license.

         
         

9. There is clear and convincing evidence in this case to the effect that the Petitioner committed an act of violence, that he used force on a person, and that when he did so he was not acting in the lawful protection of himself or another from physical harm. Accordingly, consistent with the statutory provisions quoted above, it is within the discretion of the Department to deny the Petitioner's application.

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case denying the Petitioner's application for a Class "D" Security Officer License.

DONE AND ENTERED this 31st day of October, 1994, at Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

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 31st day of October, 1994.

ENDNOTES

1/ The two witnesses were Jessica Favata, the victim of the subject act of violence, and Police Officer Van Gils, the arresting officer.

2/ Respondent's Exhibit 1 is a certified copy of the Petitioner's application for the subject license. Respondent's Exhibit 2 is a certified copy of the letter of April 20, 1994, advising the Petitioner of a proposed denial of his application.

APPENDIX

The following are my specific rulings on all proposed findings of fact submitted by all parties.

Findings submitted by Petitioner:

As noted in the Preliminary Statement, the Petitioner's post-hearing letter did not contain any specific proposed findings of fact, but did incorporate some factual assertions in the arguments presented in the letter. Those assertions are addressed as follows:

First sentence: It is accepted that the Petitioner has never been convicted of a felony.

Second sentence: It is accepted that the Petitioner engaged in an act of violence, that as a result of that act he injured Jessica Favata, and that the injury was accidental in the sense that although the Petitioner swung the bat intentionally, it was not his intention to hit Jessica Favata.

Third Sentence: Petitioner's statement of remorse is rejected as unpersuasive and the assertion that he does not believe he injured Ms. Favata's hand is rejected as contrary to the greater weight of the evidence. (The Petitioner's remorse or lack of remorse is, in any event, irrelevant to the disposition of a case of this nature. See Exposito v. State, Dept. of Business Regulation, Div. of Pari-Mutuel Wagering, 508 So.2d 451 (Fla. 3d DCA 1987).)

Fourth sentence: No facts are asserted in this sentence.

Fifth sentence: Rejected as a finding of fact because need for the license is not one of the criteria for entitlement to the license.

Sixth sentence: It is accepted that the Petitioner does not have a criminal record. The remainder of this sentence is rejected as constituting a conclusion which is contrary to the greater weight of the evidence.

Findings submitted by Respondent:

Paragraphs 1 through 7: Accepted in substance, with some details modified in the interest of accuracy and clarity.

Paragraphs 8 through 11: Rejected as subordinate and unnecessary details or as irrelevant to the disposition of the issue in this case.

COPIES FURNISHED:

Harry L. Hoffman, pro se 7301 Ramona Street

Miramar, Florida 33023

Richard R. Whidden, Jr., Esquire Assistant General Counsel Department of State

Division of Licensing The Capitol, MS #4

Tallahassee, Florida 32399-0250

Phyllis Slater, Esquire General Counsel Department of State

The Capitol, PL-02

Tallahassee, Florida 32399-0250

The Honorable Jim Smith Secretary of State

The Capitol

Tallahassee, Florida 32399-0250

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: 94-003219

Orders for Case No: 94-003219