03-004265 Michael S. Snow vs. Department Of Agriculture And Consumer Services, Division Of Licensing Status: Closed Recommended Order on Thursday, May 20, 2004.

Summary: The agency denied licensure because it alleged the applicant had committed and act of violence or used force. The agency failed to show the slap to the 18 month old caused injury or that it was abusive by substantial or competent evidence.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL S. SNOW, )

)

Petitioner, )

)

vs. ) Case No. 03 - 4265

)

DEPARTMENT OF AGRICULTURE )

AND CONSUMER SERVICES, )

DIVISION OF LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing in the above - styled cause was held pursuant to

notice on March 23, 2004, by Stephen F. Dean, assigned

Administrative Law Judge of the Division of Administrative

Hearings in Jacksonville, Florida.

APPEARANCES

For Petitioner: Michael S. Snow, pro se

Post Office Box 1131

MacClenny, Florida 32063

For Respondent: Michael T. McGuckin, Esquire

Assistant General Counsel

Department of Agriculture

and Consumer Services

Division of Licensing

Post Office Box 6687

Tallahassee, Florida 32314 - 6687

STATEMENT OF THE ISSUE

Whether the Respondent committed an act of viole nce or used

force on any person except in the lawful protection of one's

self or another from physical harm and, therefore, should have

his license renewal as a Class "D" Security Officer denied

pursuant to Section 493.6118(1)(j) and (2), Florida Statutes.

PRELIMINARY STATEMENT

This case arose when the Petitioner, Michael S. Snow, filed

an application to renew his license as a Class "D" Security

Officer pursuant to Chapter 493, Florida Statutes. The

Respondent, having considered the Petitioner's applicati on,

notified the Petitioner by letter dated August 14, 2003, of its

intent to deny renewal of said license, and of his right to a

hearing on that decision. The Petitioner timely requested a

formal hearing on the denial, and the Respondent forwarded the

ca se to the Division of Administrative Hearings on November 14,

2003.

An Initial Order was entered on November 17, 2003,

requesting the parties to provide the Administrative Law Judge

mutually agreeable hearing dates. The Petitioner's filed a

Motion for E xtension of Time to File Response to Initial Order

on December 10, 2004. On January 1, 2004, the Petitioner's

Counsel requested leave to withdraw as counsel, and the

Petitioner filed a second Motion for Extension of Time to File

Response to Initial Order. On January 12, 2004, an order was

entered relieving the Petitioner's Counsel, and requiring that

the Petitioner state the dates he would be available for hearing

by February 1, 2004. On February 2, 2004, the Petitioner

responded as required, and the Not ice of Hearing issued on

February 3, 2004, setting the case for hearing on March 23,

2004. The case was heard as noticed.

At hearing the Respondent called Terry Cranford, Union

County Deputy Sheriff; Charles Rogers, a state probation

officer; Sara Howard; and Janice Joiner, Child Protective

Investigator. The Respondent entered into evidence Exhibits

numbered 1 through 5. The Petitioner testified in his own

behalf. After the hearing, a transcript of the proceedings was

ordered by the Respondent. The tra nscript was filed on

April 19, 2004, and the Respondent's Proposed Recommended Order

was filed on April 30, 2004. The Petitioner did not file post -

hearing findings. The Respondent's proposed findings were read

and considered.

FINDINGS OF FACT

1. The Petitioner, Michael S. Snow, was at all times

relevant to these proceedings a licensed Class "D" Security

Officer.

2. The Respondent is the agency that licenses and

regulates security officers pursuant to Chapter 493, Florida

Statutes.

3. On or about April 12, 2003, the Petitioner filed an

application to renew his license as a Class "D" Security

Officer. The Respondent advised the Petitioner by letter of its

intent to deny his application; the Petitioner requested a

hearing; and these proceedings ensued. Subsequently, the

Respondent amended its letter of denial, and the letter of

August 14, 2003, (Second Amended Administrative Denial of

License), constitutes the charging document. That letter states

that the application is denied bec ause of the applicant's

failure to qualify under Section 493.6118(1)(j), Florida

Statutes, because the applicant committed an act of violence or

used force on another person that was not for the lawful

protection of himself or another.

4. At the hearing, Union County Deputy Sheriff Terry

Cranford was called to testify. Deputy Cranford identified an

affidavit that he had prepared on November 24, 2002, in relation

to an investigation in which the Petitioner was the alleged

perpetrator of abuse of an 18 - mont h old child. The affidavit,

Respondent's Exhibit numbered 1, was prepared by the deputy

after he had interviewed various witnesses in the case; however,

the deputy did not observe any of the alleged conduct.

5. The deputy did observe the child on Novem ber 22, 2002,

during the course of his investigation. The alleged incident,

which involved the Petitioner striking the child in the face,

took place on November 21, 2002, some 24 hours earlier. The

deputy did not mention in his affidavit any injuries he

observed. The deputy did not testify at hearing to any injuries

to the child.

6. The deputy stated that the child was too young to

provide any information on the incident. The deputy's

investigative focus at the time he prepared the affidavit was on

t he mother of the child and another relative. He did not

interview the Petitioner. All the information that he obtained

about the Petitioner's involvement was through the Child

Protective Investigator, Ms. Joiner.

7. The Respondent called Janice Joine r, an investigator

with the Department of Children and Family Services (DCFS), who

testified regarding her investigation of the incident. Like the

deputy, above, Ms Joiner did not observe the incident. It is

clear from her testimony and that of the child 's mother, that

the child's natural father reported the incident. He picked up

the child from the daycare on the afternoon of November 21,

2002, and raised questions about the red handprint on the

child's face.

8. As a result of the investigation, DCFS i nitiated a

dependency action, which precluded with the right of the child's

mother to have custody of the child during the investigation,

legal proceedings, and subsequent mediation between attorneys

representing the child's mother and father. As a result of the

investigation initiated by the child's father, his ex - wife, the

child's mother, had to agree to end her relationship with the

Petitioner.

9. Ms. Joiner testified regarding what the Petitioner told

her. He admitted he struck the child while putt ing the child in

his car seat, when the child grabbed his uniform epaulet and

would not let go. Ms. Joiner opined that this was abusive, and

stated that the doctor who examined the child said it was

abusive. Ms. Joiner did not state upon what information she

based this opinion. She mentioned the handprint she saw on the

day following the incident, which she described as faint.

10. The Petitioner entered pretrial intervention on the

charges brought against him, and successfully completed the

program wh ich called for him, to among other things, attend

parenting and anger management classes. He was never tried; has

never plead or been found guilt of any offense related to this

incident; and his civil rights were never affected.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

case pursuant to Section 120.57, Florida Statutes.

12. The Petitioner seeks to renew his license; therefore,

the Respondent has the burden to go forward and the burden of

proof. The Respondent denied licensure on the basis of Section

493.6118(1)(j), Florida Statutes, which provides in pertinent

part as follows:

(1) The following constitute grounds for

which disciplinary action specified in

subs ection (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 violen ce or the

use of force on any person except in the

lawful protection of one's self or another

from physical.

13. It is important to note that the Petitioner is not

denied for child abuse, for pretrial diversion, making false

statements or encouraging anyone else to make a false statement.

He is charged with violation of Section 493.6118(1)(j), Florida

Statutes, as quoted above.

14. A search of the annotated statutes does not reveal any

case law interpreting "commission of an act of violence or use

of force." Webster's New Collegiate Dictionary defines

"commission" as a noun meaning "the act of committing something,

i.e. , charged with the commission of a felony." "Act" is

defined by Webster's as "a thing done: deed;" and "violence" is

defined as "e xertion of physical force so as to injure or

abuse." Given the nature of the license regulated, one might

generally consider the prescribed conduct to be related to

security work, although, it admittedly is not limited in its

scope.

15. In its broadest sense, the subject provision means

"committing an act of the exertion of physical force so as to

injure or abuse." The proof required is evidence of injury or

abuse.

16. When disciplining of children corporally, the use of

force is intentional. Discipl ining of children is one of those

uses of force which society permits and is outside normal

breaches of the peace. That is not to say that the use of

corporal punishment on children is uncontrolled. To the

contrary, it has developed its own body of law. When looking at

the discipline of a child in light of Section 493.6118(1)(j),

Florida Statutes, that case law is instructive.

17. In the case of B.R. and W.C. v. Department of Health

and Rehabilitative Services , 558 So. 2d 1027, (Fla. 2DCA 1989),

the cou rt stated regarding the evidence to prove child abuse

where discipline by a teacher was at issue that "whether

corporal punishment is excessive must be proved in each case by

competent, substantial evidence, and all relevant issues

presented may be conside red without resort to arbitrary

presumptions fixed by the passage of time." It is necessary for

the Respondent to show that the child was injured or abused by

substantial and competent evidence.

18. In the case of B.L. and R.W.H. v Department of Health

and Rehabilitative Services , 545 So. 2d 289 (Fla. 1DCA 1989),

the court stated with regard to proving abuse that to conclude

that the existence of a bruise or red mark lasting more than one

hour can be proof of excessive force is an arbitrary and

capricio us presumption. The court goes on to state that the

decision must be based upon evidence of excessive force.

19. In this case, there is no credible, admissible

evidence concerning whether the child was injured or whether the

force was excessive. Ms. J oiner mentioned no injury. She said

that on the day after the incident, the marks were faint. The

deputy did not testify concerning any injury or marks he

observed. The only "evidence" on abuse was Ms. Joiner's

statement that the examining doctor conclu ded that the slap was

abusive. The doctor's report was not entered in the record, and

Ms. Joiner did not indicate that the doctor found any injury.

Ms. Joiner's statement regarding the doctor's finding was

hearsay; it is not substantial and competent evi dence; and a

finding based upon inadmissible hearsay evidence is specifically

precluded by Section 120.57(1)(c), Florida Statutes. The

wording of the statute would indicate that this is without

regard to whether the hearsay actually was objected to.

20. There is no question that the Petitioner hit the 18 -

month old child and that this left the child's face red on day

one and a mark faintly visible on day two. However, there is no

evidence that the child was injured. The only opinion presented

regarding w hether the slap was excessive was that of Ms. Joiner,

who apparently based it upon the marks, and reports she received

which were not offered into evidence. Her qualifications to

offer this opinion based upon medical, social or other criteria

were not est ablished by counsel. Her qualifications as an

investigator do not qualify her to offer such an opinion. The

slapping of a child is not per se abusive, and must be proved.

21. The burden is on the agency to prove each aspect of

its case. This includes p roof that the force used caused injury

or was abusive. This proof is not forthcoming in this case.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions

of law, it is

RECOMMENDED:

That the Department issue the Petitioner a Class D Se curity

Officer's license.

DONE AND ENTERED this 20th day of May, 2004, in

Tallahassee, Leon County, Florida.

S

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

12 30 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of May, 2004.

C OPIES FURNISHED :

Michael S. Snow

Post Office Box 1131

MacClenny, Florida 32063

Michael T. McGuckin, Esquire

Assistant General Counsel

Department of Agriculture

and Consumer Services

Division of Licensing

Post Office Box 6687

Talla hassee, Florida 32314 - 6687

Brenda D. Hyatt, Bureau Chief

Bureau of Licensing and Bond

Department of Agriculture

and Consumer Services

407 South Calhoun Street, Mail Station 38

Tallahassee, Florida 32314 - 6687

Richard Ditschl er, General Counsel

Department of Agriculture

and Consumer Services

The Capitol, Plaza Level 10

Tallahassee, Florida 32314 - 6687

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the dat e 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.