10-001967PL Department Of Agriculture And Consumer Services, Division Of Licensing vs. Jean M. Duterne Status: Closed Recommended Order on Wednesday, December 1, 2010.

Summary: Respondent's unnecessary discharge of firearm constitutes negligence or misconduct.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE AND )

CONSUMER SERVICES, DIVISION OF )

LICENSING , )

)

Petitioner , )

)

vs. ) Case No. 1 0 - 1967PL

)

JEAN M. DUTERNE , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice , a formal hearing was held on

September 13, 2010, by video teleconference between sites in

St. Petersburg and Tallahassee , Florida, before J. D. Parrish, a

designated Administrative Law Judge of the Di vision of

Administrative Hearings.

APPEARANCES

For Petitioner: Tracy Sumner, Esquire

Division of Licensing

Department of Agriculture and

Consumer Services

2520 North Monroe Street

Tallahassee, Florida 3230 1

For Respondent: James A. Thomas, Esquire

334 South Hyde Park Avenue

Tampa, Florida 33606

STATEMENT OF THE ISSUE S

The issue s in this case are whether Respondent, Jean M.

Duterne (Respondent), committed the violation s alleged , and, if

so, what penalty should be imposed.

PRELIMINARY STATEMENT

On November 17, 2008, Petitioner, Department of Agriculture

and Consumer Services, Division of Licensing (Petitioner or

Department) , issued a n Administrative Complaint against

Respondent. The complaint alleged that on or about August 20,

2008, Respondent committed fraud, deceit, negligence, or

misconduct in the practice of regulated activities by

discharging a round from his 9mm semi - automatic pistol at a

moving vehicle in violation of S ubs ection 493.6118(1)(f),

Florida Statutes (2008). Thereafter, Respondent filed an

Election of Rights that disputed the material facts in the case

and requested an administrative hearing in connection with the

allegations. The case was forwarded to the Division of

Administrative Hearings (DOAH) for formal proceedings on

March 12, 2010.

At the hearing, Petitioner presented testimony from Officer

Rodney White and Investigator Michael Smoak. PetitionerÓs

Exhib its A through H, L, and M were admitted into evidence.

Respondent testified in his own behalf. The Transcript of the

proceeding was filed with DOAH on October 8, 2010. The parties

were granted leave until October 25, 2010, to file p roposed

r ecommended o rders. Petitioner timely filed a P roposed

Recommended O rder that has been considered in the preparation of

this Recommended O rder. Respondent did not file a proposed

order.

FINDINGS OF FACT

1. Petitioner is the state agency charged with the

responsibili ty of regulating and licensing security officers

within the State of Florida. See §§ 493.6101(1) and 493.6118,

Fla. Stat. (2010).

2. At all times material to the allegations of this case,

Respondent held Security Officer License D 2526539 (D - license)

and Statewide Firearms License G 2800118 (G - license) . Prior to

being licensed, Petitioner went through security officer

training. To that end, Petitioner has read and asserts he

understands Chapter 493, Florida Statutes (2008).

3. Respondent was on - duty wo rking as an armed security

guard at the JMS Hotel (the hotel) , located at 21601 32 nd

Street , South, St. Petersburg, Florida, on August 20, 2008.

4. Respondent was involved in an incident in the hotelÓs

parking lot that resulted in police respond ing to the property.

Respondent provided information to police at or near the time of

the incident on August 20, 2008.

5. On August 20, 2008, Respondent responded to a call to

investigate a possible credit card theft in R oom 166 of the

hotel. When he presented at the room, Respondent observed a

woman sitting in a car parked adjacent to the room and another

woman loading items into the car. When Respondent attempted to

speak to the woman inside the car, she started the engine and

began to exit the property.

6. At that time, Respondent reached into the vehicle and

attempted to remove the key from the ignition. It was

RespondentÓs intention to detain the woman to determine what she

was doing.

7. Contrary to RespondentÓs effort, the vehicle began to

pull away , and Respondent hurriedly pulled himself from harmÓs

way and stepped back away from the vehicle. In the excitement

of the moment, Respondent drew his 9 mm semi - automatic pistol

and discharged it , in an effort to hit the tire of the exiting

vehicle. Respondent did not hit the tire. It is unknown what,

if anything, was struck by the bullet discharged.

8. RespondentÓs G - license expired on June 2, 2010.

RespondentÓs D - license is still valid.

9. The course Respondent took to obtain the G - license

required a 28 - h our course taught by a state - licensed instructor.

The course training includes a manual that contains scenarios

for licensees to consider as examples of when one should retreat

from potentially dangerous situations. Generally, licensees

should avoid usin g deadly force (equivalent to discharging a

firearm) whenever possible. Only under limited situations

should a licensee discharge a weapon.

10. To further explain and provide guidance for the use of

deadly force, the manual sets forth the following exa mples:

Situation #1

You are guarding a liquor store and are

advised by a customer that there is an armed

robbery in progress. You look around the

corner and see a man rushing out the front

door with a firearm in his hand.

Instructor Discussion:

Instead of immediately looking around the

corner, call the police first. The suspect

could turn around and see you as you look

around the corner, thus increasing the

probability of armed conflict. The man is

running away from you and there is no threat

of death or great bodily injury. DonÓt

shoot.

Situation #2

You have been advised that a burglary has

occurred at a warehouse you are guarding.

The suspects were observed leaving the scene

in a blue, 1972 Dodge. Later that night,

while patrolling the grounds i n a well -

marked security vehicle, you observe the

suspectsÓ vehicle traveling through the

parking lot at a high rate of speed with the

headlights off. You see a flash come from

the driverÓs side of the suspectsÓ vehicle

and almost simultaneously the front

windshield of your patrol car cracks. The

suspect vehicle continues through the

parking lot at a high rate of speed.

Instructor Discussion:

DonÓt shoot. Record license number and

description of vehicle and suspects if it is

possible to do so from a cov ered position.

Pursuit could result in serious injury to

you or to innocent bystanders who may get in

the way. Call for police as soon as

possible.

11. Respondent created the incident in this case by

reaching into the vehicle. Had he used the methods outlined in

the manual, Respondent would have responded to the room,

contacted police with the information concerning the description

of the car and its occupants, and followed up by determining

whether a theft had occurred. Instead, by injecting himself

into the car and attempting to remove the ignition key,

Respondent could have easily been injured. Even so, such an

injury would not have supported the discharge of RespondentÓs

weapon in a location where others could have been injured. This

is especiall y true in light of the fact that the vehicle was

pulling away from Respondent and not toward him.

CONCLUSIONS OF LAW

12 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of these

proceedings. §§ 120.57 (1) and 493.6118, Fla. Stat. (2009).

13 . Section 493.6118, Florida Statutes (2008), provides,

in pertinent part:

(1) The following constitute grounds for

which disciplinary action specified in

subsection (2) may be taken by the

department against any lic ensee, agency, or

applicant regulated by this chapter, or any

unlicensed person engaged in activities

regulated under this chapter.

* * *

(f) Proof that the applicant or licensee is

guilty of fraud or deceit, or of negligence,

incompetency, or m isconduct, in the practice

of the activities regulated under this

chapter.

* * *

(2) When the department finds any violation

of subsection (1), it may do one or more of

the following:

(a) Deny an application for the issuance or

renewal of a license.

(b) Issue a reprimand.

(c) Impose an administrative fine not to

exceed $1,000 for every count or separate

offense.

(d) Place the licensee on probation for a

period of time and subject to such

conditions as the department may specify.

(e) Suspend or revoke a license.

14 . Petitioner seeks to impose administrative penalties

against Respondent that include the suspension or revocation of

his D - license and the nonrenewal of the G - license . Therefore,

Petitioner has the burden of proving th e specific allegations of

fact that support its charges by clear and convincing evidence.

See Department of Banking and Finance, Division of Securities

and Investor Protection v. Osborne Stern and Co. , 670 So. 2d 932

(Fla. 1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987);

and Pou v. Department of Insurance and Treasurer , 707 So. 2d 941

(Fla. 3d DCA 1998).

15 . What constitutes "clear and convincing" evidence was

described by the court in Evans Packing Co. v. Department of

Agriculture and Consumer S ervices , 550 So. 2d 112, 116 n. 5

(Fla. 1st DCA 1989), as follows:

. . . [C]lear and convincing evidence

requires that the evidence must be found to

be credible; the facts to which the

witnesses testify must be distinctly

remembered; the evidence must be precise and

explicit and the witnesses must be lacking

in confusion as to the facts in issue. The

evidence must be of such weight that it

produces in the mind of the trier of fact

the firm belief o f conviction, without

hesitancy, as to the truth of the

al legations sought to be established.

Slomowitz v. Walker , 429 So. 2d 797, 800

(Fla. 4th DCA 1983).

See also In re Graziano , 696 So. 2d 744 (Fla. 1997); In re

Davey , 645 So. 2d 398 (Fla. 1994); and Walker v. Florida

Department of Business and Professional Regulation , 705 So.

2d 652 (Fla. 5th DCA 1998)(Sharp, J., dissenting).

16 . Petitioner has established that Respondent was either

negligent or committed misconduct when he discharged his firearm

in a public parking lot at an occupied vehicle. Responden tÓs

personal safety was not in peril nor was anyone else in eminent

danger. Moreover, Respondent created the problem by attempting

to take the key from the ignition. RespondentÓs explanation of

what might have justified his behavior is not persuasive.

P etitioner has met its burden of proof in this case and has

shown by clear and convincing evidence that RespondentÓs G -

license should not be renewed and that RespondentÓs D - license

should be subject to disciplinary action , requiring that

RespondentÓs licens e be on probation for a period of time , not

less than two years , and subject to such additional conditions

as the Department may deem appropriate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the De partment of Agriculture and

Consumer Services, Division of Licensing, enter a f inal o rder

denying the renewal of RespondentÓs G - license and placing

RespondentÓs D - license on probation with such additional terms

as the Department might deem appropriate.

D ONE AND ENTER ED this 1st day of December , 2010 , in

Tallahassee, Leon County, Florida.

S

J. D. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Fl orida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of December , 2010 .

COPIES FURNISHED :

James A. Thomas, Esquire

334 South Hyde Park Avenue

Tampa, Florida 33606

Tracy Sumner, Esquire

Division of Licensing

D ivision of A griculture and

C onsumer S ervices

2520 North Monroe Street

Tallahassee, Florida 32301

Constance N. Crawford, Director

Division of Licensing

D ivision of A griculture and

C onsumer S ervices

Post Office Box 3168

Tallahassee, Florida 32315 - 3168

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Ord er should be filed with the agency that

will issue the Final Order in this case.