vs. ) Case No. 99-3265
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge, William J. Kendrick, held a formal hearing in the above-styled case on December 2, 1999, in Miami, Florida.
For Petitioner: Douglas D. Sunshine, Esquire
The Capitol, Mail Station No. 4 Tallahassee, Florida 32399-0250
At issue in this proceeding is whether Respondent committed the offense set forth in the Administrative Complaint and, if so, what penalty should be imposed.
On January 14, 1999, Petitioner issued a one-count Administrative Complaint which charged that Respondent, the holder of a Class "D" Security Officer License, did "[o]n or about September 4, 1997, in Dade County, Florida [enter a plea of nolo contendere to, and have] adjudication withheld on a charge of aggravated assault with a weapon, a felony." Consequently, Petitioner contends that "Respondent is ineligible for licensure pursuant to Section 493.6118(4)(c), Florida Statutes, until a period of three years has expired since final release from supervision," and seeks to revoke Respondent's license.
At an informal hearing that was held before the agency, Respondent disputed material facts raised by the Administrative Complaint, and on July 27, 1999, the matter was referred to Division of Administrative Hearings for the assignment of an administrative law judge to conduct a formal hearing pursuant to Sections 120.569, 120.57(1), and 120.60(5), Florida Statutes.
At hearing, Petitioner called Jean M. Wagnac (identified in the transcript as James M. Wagnac) and Gwendolyn Darden as witnesses, and Petitioner's Exhibits 1 and 2 were received into evidence. Respondent testified on his own behalf and called Jacqueline Archange as a witness. Respondent's Exhibits 1-9 were received into evidence subject to the limitations noted on the record.
The transcript of hearing was filed December 20, 1999, and the parties were accorded 10 days from that date to file proposed recommended orders. Petitioner elected to file such a proposal and it has been duly-considered.
Petitioner, Department of State, Division of Licensing (Department), is a state agency charged, inter alia, with the duty and responsibility to license and regulate private security, investigative, and repossession services pursuant to Chapter 493, Florida Statutes.
Respondent, John Thomas Beckom, is now, and was at all times material to this case, licensed by the Department as a Class "D" Security Officer, having been issued license number D96-13808, effective August 14, 1998.
On September 4, 1997, in the Circuit Court, Eleventh Judicial Circuit, Dade County, Florida, Case No. 97-7098, Respondent pled nolo contendere to, inter alia, aggravated assault with a deadly weapon (a firearm), a third degree felony proscribed by Section 784.021, Florida Statutes. In response, the court withheld an adjudication of guilt and placed Respondent on probation for a term of two years. Respondent successfully completed the terms and conditions of his probation within one year, and was granted early termination by the court.
As for the incident at issue, the proof demonstrated that the individuals involved were neighbors and residents of
what was apparently a four-unit townhouse located in the 500- block of Northwest Fourth Court, Miami, Florida. Respondent (a relatively new addition to the neighborhood) resided in the end unit (at 590 Northwest Fourth Court) with his fiancée and long- time resident of that townhome, Jacqueline Archange. Next to them (at 580 Northwest Fourth Court) resided another long-time resident, Gwendolyn Darden and her family; and next to her (at
570 Northwest Fourth Court) resided another long-time resident, Jean Wagnac and his family. As for the quality of their living arrangements, it is apparent that for many years (perhaps as many as 15 years) Archange and the Darden family had lived an acrimonious life, and had called the authorities on a number of occasions to complain of perceived slights or wrongs (such as threats, loud music, and loose pets). On the other hand, the Wagnac family appears to have lived quietly and largely avoided (although not completely) any unpleasantness from the Archange (Respondent's) household.
Turning to the circumstances of the offense at issue, the Department offered the testimony of the "victim," Jean Wagnac, who averred that on March 1, 1997, the following events occurred:
A I was going to work . . . and I stepped outside to go to my van to go to work because I had a friend of mine who worked the same place. It was really on the outside. I was outside. I didn't know what was going on outside. I saw him [Respondent] stand up by the tree.
* * *
I turned around to look, and he say [sic]
. . . "What the fuck are you looking at, you Haitian you."
I didn't say nothing to him. I walked back in my house to get my keys to get in the van. [When I came back he had] . . . a gun and point it at me and say "I will shoot your fucking ass."
* * *
Q Do you know why he did that? A I don't know.
Q Had you ever spoken to Mr. Beckom? A No, no. Not even a word.
Q to this day, do you know why he did that?
A I don't know why. I would like to know.
* * * Q What did you do after?
A After that I went back inside. I was going to call the police.
Q What happened then?
A Then I wait about five or ten minutes, because I had to go to work. I told my wife if the police come, then tell the police that I'd be at work, give them the number to call me. So, on my way back to the van, I was making a left turn on 6th Street and 4th Court. He picked up a bag --
Q -- When you say "he", then you mean Mr. Beckom.
A Mr. Beckom. He picked up a bag full of trash, and threw it to the back of my van.
Q Then what did you do?
A I back up, and I say, "I will stay here and wait until the police come."
Q And what did the police do?
A And when the police arrived, he was nowhere to be found.
* * *
Q I just want to clarify . . . when he approached you . . . with a weapon . . . [w]hat type of weapon was that?
A It was a silver weapon.
Q When you say a weapon, what type of a weapon was it?
A It was a hand-gun.
On cross-examination, in response to Respondent's query as to why he would have approached Mr. Wagnac with a weapon, Mr. Wagnac could only opine:
A Listen, you were arguing with your wife [fiancée]. I don't know what was wrong between you and your wife, but you wanted to take it on [sic] somebody. . . .
According to Ms. Darden, she heard arguing outside and went outside to see "what's going on." At that time she observed Respondent point the gun at Mr. Wagnac and "grabbed my children, and run on back in my house."
A police officer with the City of Miami Police Department, was dispatched at 9:51 a.m., and arrived on the scene at 10:01 a.m. At the time, Mr. Wagnac and Ms. Darden were interviewed, and gave statements that were generally consistent with their testimony at hearing. Ms. Archange was also
interviewed, but apparently offered no information. A description of the Respondent (who was absent at the time) was taken and an "assault unit notified, a BOLO put out and a message ref[erencing] the incident was left w/the suspect's girlfriend [presumably Ms. Archange]." (Respondent's Exhibit 1.)
The police officer was subsequently called back to the location (at or about 1:00 p.m. that day) and, while enroute, observed Respondent's vehicle at the intersection of Northwest Fourth Avenue and Sixth Street. The officer stopped, approached Respondent, and took him into custody without apparent incident. Following a reading of his Miranda rights, Respondent admitted to throwing a paper bag and arguing with Mr. Wagnac, but denied having a gun. (Respondent's Exhibit 1.)
Contrasted with the perception of the events of March 1, 1997, one would glean from the testimony of Mr. Wagnac and
Ms. Darden, as well as the incident reports prepared by the City of Miami police officer who responded to the incident (Respondent's Exhibit 1), Ms. Archange and Respondent testified that Respondent did not possess or threaten Mr. Wagnac with a handgun, and that the testimony Mr. Wagnac and Ms. Darden offered regarding the events of March 1, 1997, were "lies." They did not, however, elaborate on or offer any explanation for the dispute that clearly occurred that day. As for the circumstances surrounding his plea, Respondent averred that he accepted a plea agreement on advice of counsel (who apparently advised him he had
an even chance (a "fifty fifty chance") of being convicted) and pled nolo contendere, not because he was guilty of the underlying offense (aggravated assault with a deadly weapon), but to avoid the uncertainty associated with a criminal trial and the risk of imprisonment for a term of up to 5 years.
Here, considering the proof, it must be concluded that, notwithstanding the protestations and explanations offered by Respondent and Ms. Archange to the contrary, Respondent (for reasons not apparent of record and perhaps known only to him) cast heated, spiteful words at Mr. Wagnac, and, during the course of such altercation, brandished a deadly weapon with a threat to do violence to Mr. Wagnac's person. Given the paucity of information Respondent offered regarding the incident, as well as the lack of reliability of the explanation he chose to offer, it must be concluded that Respondent failed to offer any credible explanation of the circumstances surrounding his nolo contendere plea to rebut the implication that he committed the underlying felony offense. To the contrary, the proof is compelling (consistent with the observations of Mr. Wagnac and Ms. Darden, as well as the incident reports prepared by the City of Miami police officer who responded to the incident) that Respondent did engage in such criminal conduct and, through a plea agreement, successfully mitigated the consequence of his conduct.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sections 120.569, 120.57(1), and 120.60(5), Florida Statutes.
Where, as here, the Department proposes to take punitive action against a licensee, it must establish grounds for disciplinary action by clear and convincing evidence. Section 120.57(1)(h), Florida Statutes (1997), and Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996). "The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).
Here, the Administrative Complaint charges that Respondent should be disciplined for having violated Subsection 493.6118(4), Florida Statutes, in as much as he "[entered a plea of nolo contendere to, and] had adjudication withheld on a charge of aggravated assault with a weapon, felony."
The crime of "aggravating assault" is defined by Sections 784.011(1) and 784.021(1), Florida Statutes, as follows:
Assault.
An "assault" is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act
which creates a well-founded fear in such other person that such violence is imminent.
* * *
Aggravated assault.
An "aggravated assault" is an assault:
With a deadly weapon without intent to kill; or
With an intent to commit a felony.
Pertinent to the Department's charge, Section 493.6118(4), Florida Statutes, provides:
If the applicant or licensee has been found guilty of, entered a plea of guilty to, or entered a plea of nolo contendere to a felony and adjudication of guilt is withheld, the department shall deny the application or revoke the license until a period of 3 years has expired since final release from supervision.
A plea of nolo contendere shall create a rebuttable presumption of guilt to the underlying criminal charges, and the department shall allow the person being disciplined or denied an application for a license to present any mitigating circumstances surrounding his or her plea. (Emphasis added.)
Section 90.302, Florida Statutes, classifies rebuttable presumptions as follows:
90.302 Classification of rebuttable presumptions.
Every rebuttable presumption is either:
A presumption affecting the burden of producing evidence and requiring the trier of fact to assume the existence of the presumed fact, unless credible evidence sufficient to sustain a finding of the nonexistence of the presumed fact is introduced, in which event, the existence or nonexistence of the presumed fact shall be determined from the evidence without regard to the presumption; or
A presumption affecting the burden of proof that imposes upon the party against
whom it operates the burden of proof concerning the nonexistence of the presumed fact.
Unless otherwise provided by statute, a presumption established primarily to facilitate the determination of an action, as here, rather than to implement public policy, is a rebuttable presumption affecting the burden of producing evidence.
Section 90.303, Florida Statutes.
The presumption affecting the burden of producing evidence is also referred to as a "bursting bubble" presumption or vanishing presumption, and was described by the court in Nationwide Mutual Insurance Co. v. Griffin, 222 So. 2d 754, 756 (Fla. 4th DCA 1969), as follows:
A presumption is a rule of law which attaches to certain evidentiary facts and is productive of certain procedural consequences. The presumption is not itself evidence and has no probative value. Florida follows [albeit not always] what is sometimes called the Thayerian rule to the effect that when credible evidence comes into the case contradicting the basic fact or facts giving rise to the presumption, the presumption vanishes and the issue is determined on the evidence just as though no presumption has ever existed. Conversely, if the basic facts are sufficiently proven so as to give rise to the presumption and not thereafter contradicted by credible evidence, the party in whose favor the presumption exists becomes entitled to a directed verdict.
Accord, Public Health and Trust of Dade County v. Valcin, 507 So. 2d 596 (Fla. 1987); Gulle v. Boggs, 174 So. 2d 26, 28 (Fla. 1965)("The presumption provides a prima facie case which shifts to the defendant the burden to go forward with the evidence to
contradict or rebut the fact presumed. When the defendant produces evidence which fairly and reasonably tends to show that the real fact is not as presumed, the impact of the presumption is dissipated. Whether the ultimate fact has been established must then be decided by the jury from all the evidence before it without the aid of the presumption." See also Baughman v. Vann,
390 So. 2d 750, 751 (Fla. 5th DCA 1980)("The burden . . . is not to come up with just any explanation, but one which is 'substantial and reasonable.'").
Where, as here, the Department proposes to discipline a licensee based on the presumption of guilt which attaches to a nolo contendere plea (by virtue of Subsection 493.6118(4)(d), Florida Statutes) it is required to accord the licensee an opportunity to explain the circumstances surrounding his nolo contendere plea to rebut the implication (presumption) that he committed the underlying criminal charge. Section 493.6118(4)(d), Florida Statutes. See also Ayala v. Department of Professional Regulation, 478 So. 2d 1116 (Fla. 1st DCA 1985). If the licensee produces evidence which fairly and reasonably tends to show that the real fact is not as presumed, then the presumption vanishes and whether the ultimate fact (in this case, guilt of the underlying felony) has been established must be decided from all the evidence presented without the aid of the presumption. Public Health Trust of Dade County v. Valcin, supra. In such event, the burden would rest on the Department to
demonstrate by clear and convincing evidence that the licensee was guilty of the underlying criminal offense. Nationwide Mutual Insurance Co. v. Griffin, 222 So. 2d 754, 756 (Fla. 4th DCA 1969)("[W]hen credible evidence comes into the case contradicting the basic fact or facts giving rise to the presumption, the presumption vanishes and the issue is determined on the evidence just as though no presumption has ever existed."), and Department of Banking and Finance v. Osborne Stern and Co., supra(Where the agency proposes to take disciplinary action against a licensee, it must establish grounds for disciplinary action by clear and convincing evidence.)
Here, as observed more fully in the Findings of Fact, Respondent failed to produce any credible evidence which fairly and reasonably tended to rebut the implication (presumption) accorded his plea of nolo contendere. Rather, the credible evidence compels the conclusion that Respondent was guilty of the crime of aggravated assault.
The Department's proposed recommended order suggests, as a penalty for the violation found, that Respondent's license be revoked. The Department's proposal is consistent with the provisions of Section 493.6118(4)(c), Florida Statutes, which requires, under circumstances such as these, that the Department "revoke the license until a period of 3 years has expired since final release from supervision." Consequently, the Department's suggestion is accepted as appropriate in this case.
RECOMMENDED that a final order be entered finding that Respondent violated the provisions of Section 493.6118(4)(c), Florida Statutes, and that, as a penalty for such offense, Respondent's Class "D" Security Officer license be revoked.
DONE AND ENTERED this 26th day of January, 2000, in Tallahassee, Leon County, Florida.
WILLIAM J. KENDRICK
Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 2000.
Douglas D. Sunshine, Esquire Department of State
The Capitol, Mail Station No. 4 Tallahassee, Florida 32399-0250
Deborah K. Kearney, General Counsel Department of State
All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
