STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 95-3552

)

STEVE EDMUND SHADWELL, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing was held in Naples, Florida, on September 25, 1995, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Kristi Reid Bronson

Assistant General Counsel

Department of State Division of Licensing

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

For Respondent: Steve Edmund Shadwell, pro se

1880 51st St. Southwest Naples, Floirda 33999

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent committed an act of violence against, or wrongfully detained, Beatrix Shadwell and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated May 2, 1995, Petitioner alleged that Respondent holds a Class "D" Security Officer license and a Class "G" Statewide Firearms license. Petitioner alleged that on March 2, 1995, Respondent committed an act of violence against Beatrix Shadwell, in violation of Section 493.6118(1)(j), and wrongfully detained her, in violation of Section 493.6118(1)(j).

By undated letter, Respondent denied the charges and demanded a formal hearing.

At the final hearing, Petitioner called two witnesses and offered into evidence two exhibits. Respondent called one witness and offered no exhibits into evidence.

Neither party ordered a transcript. All of Petitioner's proposed findings of fact are adopted or adopted in substance.

FINDINGS OF FACT

1. Respondent holds a Class "D" Security Officer license, Number D93- 16229, and a Class "G" Statewide Firearm license, Number G93- 03349.

   
   

2. On March 2, 1996, Respondent's wife telephoned the Collier County Sheriff Office from a convenience store and asked for assistance. A deputy was dispatched to the convenience store to talk to her.

   
   

3. Respondent's wife was distraught when the deputy arrived. She said that she was afraid that something was wrong with her husband. She told the deputy that he had shot a gun when she had left the house and she was afraid that he had shot himself. In response to questioning, Respondent's wife, who had redness around her throat and small cuts on her hands, admitted that she and her husband had had an argument.

   
   

4. The deputy accompanied Respondent's wife to her home. He searched the house without finding Respondent, although he found several guns, including some loaded. He then questioned Respondent's wife more closely.

   
   

5. According to the deputy, Respondent's wife admitted that her husband had physically abused her by grabbing her by the throat, handcuffing her, taping her mouth closed, and putting a gun to her head and threatening to kill her.

   The deputy took a sworn statement to this effect by writing down what Respondent's wife said and having her sign it.

   
   

6. Respondent's wife testified that nothing happened except that she and her husband had an argument. She claimed that her written statement is inaccurate due to her exaggerations and difficulties with English. Respondent's wife is Panamanian and has not resided in the United States for long. She speaks and understands English reasonably well, but not perfectly.

   
   

7. While the deputy was speaking with Respondent's wife, Respondent telephoned the house. The deputy ordered him to come home and talk to the deputy.

   
   

8. When Respondent returned home, the deputy gave him his Miranda rights and asked him about the incident. Respondent admitted pointing an unloaded weapon at his wife.

   
   

9. Petitioner has not proved by clear and convincing evidence all of the facts contained in the statement of Respondent's wife. Her language problems raise some doubt as to the accuracy of the now-repudiated statement. However, Respondent admitted to the deputy that he pointed an empty gun at his wife. This evidence is unrebutted by other evidence because Respondent elected not to testify, and his wife did not discredit this portion of the deputy's testimony.

   CONCLUSIONS OF LAW

   
   

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

    
    

11. Section 493.6118(1)(j) authorizes disciplinary action against a licensee for the commission of an act of violence or using force on any person except in the protection of the licensee or others from physical harm.

    
    

12. Petitioner must prove the material allegations against Respondent by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

13. Petitioner has proved a violation of Section 493.6118(1)(j). Pointing a gun at someone, other than in defense of self or others, is an act of violence. This assault reasonably frightened Respondent's wife. Nothing in the record suggests that she would have known whether the gun was loaded.

    
    

14. Section 493.6118(2) authorizes Petitioner to revoke a license or impose an administrative fine for a violation of Section 493.6118(1).

RECOMMENDATION

Based on the foregoing, it is

RECOMMENDED that the Division of Licensing, Department of State, enter a final order revoking Respondent's Class "D" and Class "G" licenses.

ENTERED on October 19, 1995, in Tallahassee, Florida.

ROBERT E. 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 of Administrative Hearings on October 19, 1995.

COPIES FURNISHED:

Hon. Sandra B. Mortham Secretary of State

The Capitol

Tallahassee, FL 32399-0250

Phyllis Slater, General Counsel Department of State

The Capitol, PL-02 Tallahassee, FL 32399-0250

Kristi Reid Bronson Assistant General Counsel Department of State Division of Licensing

The Capitol, M.S. Number 4 Tallahassee, FL 32399-0250

Steve Edmund Shadwell, pro se 1880 51st St. SW

Naples, FL 33999

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: 95-003552

Orders for Case No: 95-003552