STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, DIVISION ) OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5321

)

STEPHEN A. SHIELDS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case at Miami, Florida, on January 10, 1996, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Douglas D. Sunshine

Assistant General Counsel Department of State, Division of

Licensing

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

For Respondent: Mr. Stephen A. Shields, pro se

9441 Southwest 4th Street, Number 311

Miami, Florida 33174 STATEMENT OF THE ISSUES

This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations in a one-count Administrative Complaint that the Respondent committed a battery under circumstances that constitute a violation of Section 493.6118(1)(j), Florida Statutes.

PRELIMINARY STATEMENT

At the formal hearing on January 10, 1996, the Petitioner offered four exhibits, all of which were received in evidence. The Petitioner did not call any witnesses. The Respondent testified on his own behalf, but did not call any other witnesses. The Respondent offered five exhibits. The Petitioner's objections to those exhibits were sustained and the Respondent's exhibits were included in the record as rejected exhibits.

At the conclusion of the hearing the parties were allowed ten days from the date of the hearing within which to submit their proposed recommended orders. Neither party elected to file a transcript of the hearing.

On January 19, 1996, both parties filed timely proposed recommended orders containing proposed findings of fact and conclusions of law. The proposed findings of fact submitted by the parties are specifically addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Respondent holds a Class "C" Private Investigator License, license number C86-00509. The Respondent has held that license at all times material to this proceeding.

   
   

2. On July 4, 1994, the Respondent intentionally struck N.S. (a minor) with a flashlight. The striking of

   N.S. took place immediately after, and was in response to, N.S.'s act of kicking the Respondent while the Respondent was on a stairway landing and was in reasonable fear that his attacker (N.S.) might push him down the stairs. Under the circumstances, the Respondent's act of striking N.S. was a reasonable act of self-defense in the lawful protection of himself from physical harm.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

4. The Administrative Complaint in this case charges that the Respondent violated Section 493.6118(1)(j), Florida Statutes. The cited statutory provision lists the

   following as one of the grounds for which the Petitioner may take disciplinary action against a licensee:

   
   

   (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]. [Emphasis Supplied.]

   
   

5. The specific conduct alleged in the Administrative Complaint is that: "On or about July 4, 1994, in Dade County, Florida, Respondent committed a battery upon N.S. (a minor), such act not being for self-defense or the defense of another." The greater weight of the evidence in this case is to the effect that the Respondent struck N.S. in the lawful protection of himself from physical harm or, stated otherwise, in self-defense. Such being the case, the Respondent's conduct comes within the exception to Section 493.6118(1)(j), Florida Statutes, and his conduct is not a violation of the cited statute.

   
   

6. The Petitioner argues that the factual issues in this case should be resolved otherwise. The Petitioner first argues that the guilty verdict in the Respondent's criminal case constitutes clear and convincing evidence of the conduct charged in the Administrative Complaint. The Florida Appellate courts have viewed the matter otherwise. It is well-settled in this state that "a judgment of conviction is not admissible in a subsequent civil case to prove the truth of the facts in question." Romano v. Trucking Employees of North Jersey Welfare Fund, Inc., 427 So.2d 802 (Fla. 4th DCA 1983). Stated otherwise, Florida law prohibits "the use of a criminal conviction as conclusive proof of the facts underlying the conviction in a civil suit arising from those same facts." Trucking Employees v. Romano, 450 So.2d 843 (Fla. 1984). See also Boshnack v. World Wide Rent-A-Car, 195 So.2d 216 (Fla. 1967); Moseley v. Ewing, 79 So.2d 776 (Fla. 1955); Stevens

   v. Duke, 42 So.2d 361 (Fla. 1949). Accordingly, the exhibits in this case showing the disposition of the related criminal charges brought against the Respondent are not competent substantial evidence of the facts underlying the conviction.

   
   

7. The Petitioner also argues for a different resolution of the factual issues by relying on McGraw v. Department of State, Division of Licensing, 491 So.2d 1193 (Fla. 1st DCA 1986). McGraw is distinguishable from the

   instant case because in that case the Respondent was charged with being convicted of a crime, rather than, as here, being charged with having engaged in certain acts which also happen to constitute a crime.

   
   

8. In brief summary, inasmuch as the greater weight of the evidence is to the effect that the Respondent's conduct was within the scope of the exception to Section 493.6118(1)(j), Florida Statutes, the evidence is insufficient to prove the violation charged in the Administrative Complaint.

RECOMMENDATION

On the basis of all of the foregoing it is recommended that a Final Order be issued in this proceeding dismissing all charges against the Respondent.

DONE AND ENTERED this 9th day of February, 1996 in Tallahassee, Leon County, Florida.

1550

_

MICHAEL M. PARRISH, Hearing

Officer

Division of Administrative Hearings

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-

(904) 488-9675

Filed with the Clerk of the Division of Administrative

Hearings

this 9th day of February, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5321

The following are the Hearing Officer's specific rulings on all proposed findings of fact submitted by all parties.

Proposed findings submitted by Petitioner: Paragraph 1: Accepted.

Paragraphs 2, 3, and 4: Rejected as irrelevant or as

subordinate and unnecessary details. (For reasons discussed in the Conclusions of Law, the details regarding the criminal prosecution of the Respondent are not competent substantial evidence of the facts alleged in the Administrative Complaint.)

Proposed findings submitted by Respondent:

The Respondent's proposed recommended order does not contain any specific portion designated as "findings of fact." Rather, the Respondent has intertwined his proposed findings, his proposed conclusions, and his arguments throughout his proposal. It appears to be sufficient to note that the findings of fact in this recommended order

are generally consistent with the substance of the Respondent's version of the facts.

COPIES FURNISHED:

Douglas D. Sunshine Assistant General Counsel

Department of State, Division of Licensing The Capitol, Mail Station Number 4 Tallahassee, Florida 32399-0250

Mr. Stephen A. Shields

9441 Southwest 4th Street, Number 311

Miami, Florida 33174

Honorable Sandra B. Mortham Secretary of State

The Capitol

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: 95-005321

Orders for Case No: 95-005321