10-002197 Department Of Agriculture And Consumer Services, Division Of Licensing vs. The Buxton Group, Incorporated, Kavin P. Buxton, Owner And Kavin P. Buxton, Individually Status: Closed Recommended Order on Friday, September 10, 2010.

Summary: The clear and convincing evidence shows that denial and/or termination of Buxton's licenses.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE AND )

CONSUMER SERVICES, DIVISION OF )

LICENSING , )

)

Petitioner , )

)

vs. ) Case No . 10 - 2197

)

THE BUXTON GROUP, INCORPORATED, )

KAVIN P. BUXTON, OWNER AND )

KAVIN P. BUXTON, INDIVIDUALLY , )

)

Respondent . )

)

KAVIN P. BUXTON, )

)

Petitioner , )

)

vs. ) Case No. 10 - 2198

)

DEPARTMENT OF AGRICULTURE AND )

CONSUMER SERVICES, DIVISION OF )

LICENSING , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice to all parties, a final hearing was

commenced in this case on June 18, 2010, and was completed on

July 3 0 , 2010, in St. Petersburg, Florida, before Administrat ive

Law Judge R. Bruce McKibben of the Division of Administrative

Hearings. The parties were represented as set forth below.

APPEARANCES

For Department of Agriculture and Consumer Services:

Tracy Sumner, Esquire

Florida Department of Ag riculture

and Consumer Services

Post Office Box 3168

Tallahassee, Florida 32315 - 3168

For The Buxton Group, Inc orporated , and Kavin Buxton:

Kavin Buxton, pro se

Post Office Box 13644

St. Petersburg, Florida 33733

STATEMENT OF THE ISSUES

The issues in these consolidated cases are: Whether The

Buxton Group, Inc orporated , and Kavin P. Buxton (hereinafter

jointly referred to as "Buxton") committed fraud, deceit,

negligence , or misconduct, and, if so, whether the Department of

Agriculture and Consumer Services (the "Department") may deny

the issuance of or revoke various licenses held by Buxton -- DOAH

Case No. 10 - 2197; and Whether administrative denial of Buxton's

existing Class " G " license is warranted -- DOAH Case No. 10 - 2198.

PRELIMINARY STATEMENT

Case No. 10 - 2197: By Administrative Complaint dated

October 14, 2008, the Department notified Buxton that

disciplinary action would be taken against licenses held by

Buxton. Buxton timely filed a request for hearing to contest

the intended disciplinary action. The request for hearing was

forwarded to the Division of Administrative Hearings (the

"Division") so that a formal administrative hearing could be

conducted.

DOAH Case No. 10 - 2198: The Department deni ed Buxton's

application for License G - 9402513 which would have entitled

Buxton to carry a firearm in the furtherance of his duties as a

security guard. Buxton timely filed a request for an

administrative hearing to contest the denial. The request was

for warded to the Division so that a formal administrative

hearing could be conducted.

The two cases were consolidated by the undersigned

Administrative Law Judge upon re view of the files. The hearing

on the consolidated cases was commenced on June 18, 2010 .

However, the final hearing was interrupted by an event outside

the control of the parties. (Contrary to Buxton's

representation in his motion for continuance filed June 22,

2010, the undersigned did attempt to conclude the hearing on

June 18, 2010, but was advised by local police authority that it

would not be possible to do so.) The final hea ring was

rescheduled for July 30 , 2010, and was concluded on that date.

At the final hearing, the Department called the following

witnesses: Ken Scott, service manager at Dew Cadillac; Jim

Rexroad, police officer with the Pinellas Park Police Department

( " PPPD " ); Michael Smoak, investigator for the Department; Scott

Martin, police officer with PPPD; and Detective Joseph Doswell,

PPPD. The Department's Exhibits A through H were offered and

admitted into evidence. The Department was given until

August 6, 2010, to submit Exhibit I . The exhibit was timely

filed with the Division and was admitted into evidence.

Buxton opted not to testify at the final hearing and did

not submit any exhibits into evidence.

A Transcript of the final hearing was ordered by the

parties and was filed at the Division on August 18, 2010. By

rule, the parties were allowed ten days, i.e., until August 28,

2010 (which fell on a Saturday, therefore, until August 30, the

following Monday), to submit proposed recommended orders.

Buxton filed a Proposed Recommended Order on August 13, 2010,

some two weeks after the conclusion of the final hearing , but

prior to the transcript being filed at th e Division. The

Department timely submitted its Proposed Recommended Order on

August 27, 2010. Each party's Proposed Recommended Order was

duly considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Department is the state age ncy responsible for,

inter alia , the issuance and monitoring of various licenses

related to the field of private security. It is the

Department's responsibility to take disciplinary action against

any licensee who violates statutes or rules relating to th e

licenses issued by the Department.

2. Buxton has held, now holds, or has applied for the

following licenses which are issued by the Department:

Ʊ D9414758 : A security officer's license which has

an expiration date of August 30, 2010;

Ʊ DI9900012 : An instructor's license for which

Buxton applied for, but was denied renewal;

Ʊ B9400126 : A l icense to operate a security agency.

Buxton's license h as expired and there is an

administrative action pending against it;

Ʊ G9402513 : A s tatewide firearms license. Buxton's

license has expired, and his request for renewal

has been denied by the Department;

Ʊ A9700094 : A p rivate investigative agency lice nse,

effective May 19, 2008; and

Ʊ MB9500099 : A l icense to manage a security agency.

Buxton's license has expired, and there is an

administrative action pending.

3. The basis of the Department's disciplinary actions

against Buxton's licenses (and the re ason the Department has

denied applications for renewals) is an incident occurring on

March 27, 2008, in Pinellas Park, Florida. Buxton was on that

date working as a security guard for Dew Cadillac, a new and

used car dealership. At approximately 5:05 a. m., Buxton was

returning to the dealership after taking a coffee break

off - site. He was driving his personal automobile down an

unpaved track of land on the east side of the dealership. He

turned unto an unpaved area at the northern end of the lot at

whi ch time he noticed movement around an employee's pick - up

truck which was parked in the car lot. It appeared a window of

the truck had been broken, and there was glass lying around the

outside of the vehicle. Buxton approached the vehicle and found

a pers on (later identified as Mark Lobban) "rummaging around" in

the cab of the truck.

4. Buxton noted that two windows had been smashed, and

there was a dent in the passenger side door. Buxton ordered

Lobban to exit the vehicle. When Lobban came out of the truck,

his eyes indicated a drugged or intoxicated state, and he

reached his hand into his shirt along the front waistline of his

pants. When Buxton saw that movement, he drew his weapon, a

Springfield Armory XP 9mm semi - automatic handgun, for which he

he ld a current permit to carry. Lobban took his hand out of his

shirt and stated that he was looking for his cousin.

5. Buxton ordered Lobban to the ground and began to dial

9 - 1 - 1 as he kept an eye on Lobban. Just as Buxton finished

dialing 9 - 1 - 1, Lobba n allegedly lunged at Buxton, then took off

running. Lobban ran behind some Hummer vehicles parked nearby.

Buxton says that as Lobban ran, he again reached his hand into

his shirt near his waistline. That placed Buxton in fear that

Lobban may have a gun , so Buxton ran to another row of Hummers

for protection and began firing shots toward Lobban from his own

handgun.

6. Lobban then ran past the row of Hummers and appeared to

be exiting the premises. Buxton followed Lobban and later

recounted in his Fi rearms Incident Report, that he ran toward

Lobban "to insure that the suspect was actually exiting the

property. At this point, I felt he was possibly running away.

I followed further in an attempt to maintain sight of the

suspect." Lobban approached a hedgerow located at the west side

of the dealership, attempted to jump over it , but caught his leg

and fell over the hedges. By this time, Buxton had cleared the

last line of parked vehicles and, thus, had no more cover. When

Lobban stood up on the other side of the hedgerow, he turned to

face Buxton. Buxton wrote in his report, "Fearing he had drawn

a weapon behind the hedge, I fired another round, at which time

the suspect turned and fled east, through the wooded area

adjacent to the property." Lobban did not at any time display

or fire a weapon at Buxton.

7. Buxton returned to his cell phone which he had dropped

when first apprehending Lobban. The 911 operator was just

calling him back at that moment. Buxton was put through to PPPD

and, within minu tes, the first officer, Scott Martin, arrived at

the dealership. Martin had ensured that a police perimeter was

established around the dealership concurrent with his arrival.

When Scott got to the dealership, he found Buxton and was

briefed as to what ha d transpired.

8. A brief search of the premises was commenced pending

arrival of the PPPD K - 9 unit. While awaiting their arrival,

Buxton spotted Lobban hiding under a vehicle in the dealership's

service area. Lobban was apprehended by Scott and placed in a

police cruiser. Scott determined that Lobban was impaired,

probably by alcohol, and was essentially incoherent.

9. Scott did an "article search" of the premises to see if

any items belonging to Lobban could be found. A cell phone and

wallet were recovered, but there was no sign of a firearm. The

search did not concentrate on a firearm specifically, but the

search was intended to find any item that Lobban had handled.

The K - 9 unit was able to trace Lobban's scent through the

Hummers, across the h edgerow and back to the service area. The

search concentrated on the areas where Lobban had been known to

have crossed. No search was done of the wooded area behind the

hedge, because the tracking dogs did not point to that area as

having been traveled b y Lobban.

10. Scott reported in to his headquarters after hearing

Buxton's explanation of the events that transpired. The

discharge of a weapon in that scenario seemed unwarranted to

Scott, so he reported it to his supervisor. Within minutes,

Detective D oswell arrived at the dealership to further

investigate the situation.

11. Doswell arrived to find Lobban already in custody and

Buxton standing in the parking lot with another security guard.

Buxton told Scott he had fired four shots at Lobban initially

and then two more shots after Lobban jumped the hedge. However,

there were five shell casings found in the first location and

only one near the hedgerow. The events concerned Doswell enough

that he asked Buxton to come into headquarters and make a

statem ent about what had occurred. Buxton initially agreed to

do so. After a few minutes, however, he handed his cell phone

to Doswell so that Doswell could talk to Buxton's attorney.

Doswell and the attorney set up a meeting for later that same

day, a Thursd ay. The attorney later called Doswell and said he

and Buxton could not come in until the next day (Friday), so the

meeting was rescheduled for that day.

12. On Friday, March 28, 2010, Buxton and his attorney

arrived at the PPPD headquarters. Doswell info rmed Buxton that

he was investigating the event as a probable illegal discharge

of a firearm and that criminal charges could be filed. Buxton

was not read his Miranda rights at that time however, in that no

charges had yet been filed.

13. At some point, Doswell determined that Buxton had been

involved in another incident relating to the discharge of his

firearm while on duty. In that case, Buxton was working at a

bowling alley when a group of kids attempted to "jump him." One

kid spit on Buxton and dur ing the brief confrontation, Buxton

pulled his firearm. Buxton discharged his gun, firing into the

ceiling of the establishment (because, said Buxton, someone hit

his arm just as he was shooting. Buxton did not say what he was

aiming at when he fired.) .

14. After interviewing Buxton and his attorney, Doswell

revisited Dew Cadillac and did some further investigation.

Fragments of bullets from Buxton's firearm had been recovered

from the tires of two Hummers on the car lot.

15. In order to obtain licenses which allow a person to

use a firearm in conducting their authorized activities, a

person must undergo a background check and certain training and

education. The Class " D " license held by Buxton required 40

hours of training (which can be dispensed with i f the applicant

has prior corrections or law enforcement experience). The

training necessarily included instruction from the Firearm

Instructor's Training Manual (the "Manual"). The Manual

specifically warns against the unauthorized use of deadly force,

i.e., discharging a firearm at an individual. The Manual

stresses the need to retreat and disengage, rather than entering

into a situation that might require using the firearm. Several

examples are set out in the Manual to provide applicants

guidance abo ut how to avoid using deadly force. Two of those

examples follow:

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. T he man

is running away from you, and there is no threat of

death or great bodily injury. Don't 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 bl ue, 1972 Dodge.

Later that night, while patrolling the grounds in a

well - marked security vehicle, you observe the

suspects' vehicle traveling through the parking lot at

a high rate of speed with the headlights off. You see

a flash come from the driver's side of the suspect's

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 :

Don't shoot. Record the license number and

description of the vehicle and suspects if it is

possible to do so from a covered 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.

16. According to the expe rt testimony at final hearing

(which was not rebutted or contradicted by Buxton), each of the

above - described situations is more egregious than the one Buxton

encountered at Dew Cadillac. It is clear that discharge of a

firearm in Buxton's situation would be contrary to the guidance

provided in the training materials.

17. Each of the facts stated herein are based upon the

testimony of live witnesses and written statements from police

and investigative reports. Each of the witnesses appeared

knowledgeable about his area of testimony, and each was

credible. Buxton provided no evidence to contest or rebut any

of the evidence.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

pr oceeding pursuant to Section 120.569 and Subsection 120.57(1),

Florida Statutes (2009). Unless stated otherwise herein, all

references to Florida Statutes shall be to the 2009

codification.

19. The Department, as the party asserting the affirmative

of the issue, has the burden of proof in each of the

consolidated cases. Ferris v. Turlington , 510 So. 2d 292 (Fla.

1987). The standard of proof for a licensure revocation case is

clear and convincing evidence. Osborne Stern and Co., Inc. v.

Department of Ban king and Finance , 647 So. 2d 245, 248 (Fla. 1st

DCA 1994).

20. Clear and convincing evidence is an intermediate

standard of proof which is more than the "preponderance of the

evidence" standard used in most civil cases, but less than the

"beyond a reasonab le doubt" standard used in criminal cases.

See State v. Graham , 240 So. 2d 486 (Fla. 2d DCA 1970). Clear

and convincing evidence has been defined as evidence which:

Requires that the evidence must be found to

be credible; the facts to which the

witnesse s testify must be distinctly

remembered; the testimony 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 a firm belie f 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)

(citations omitted).

21. Section 493.6118, Florida Statutes, states in

pertinent part:

Grounds for disciplinary action. -

(1) The following constitute grounds for

which disciplinary action specified in

subsection (2) may be taken by the

department against any licensee, agency, or

applicant regulated by this chapter, or any

unlicensed person engage d in activities

regulated under this chapter.

* * *

(f) Proof that the applicant or licensee is

guilty of fraud or deceit, or of negligence,

incompetency, or misconduct, 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.

22. The Department has proven that Buxton engaged in

misco nduct by discharging his firearm in a situation that was

not warranted. The suspect at whom Buxton was firing was, by

Buxton's own written admission, attempting to flee. Once the

suspect fled after the first shots were fired, it was even more

egregious f or Buxton to follow him and continue firing.

23. The Department has met its burden of proof in each of

the consolidated cases. The Department proved, by a

preponderance of the evidence, that Buxton is guilty of

negligence, incompetency and/or misconduct by way of his

actions.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by the Department

of Agriculture and Consumer Services denying Buxton's licensure

application for Licens e No. G9402513 and taking such action as

the Department deems appropriate as to each of Buxton 's other

licenses issued by the Department.

DONE AND ENT ERED this 10th day of September , 2010 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 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 10th day of September , 2010 .

COPIES FURNISHED :

Honorable Charles H. Bronson

Commissioner of Agriculture

Department of Agriculture

and Consumer Services

The Capitol, Plaza Level 10

Tallahassee, Florida 32399 - 0810

Richard Ditschler, General Counsel

Department of Agriculture

and Consumer Services

407 South Calhoun Street, Suite 520

Tallahassee, Florida 32399 - 0800

Christopher E. Green, Chief

Bureau of License and Bond

Division of Marketing

Department of Agriculture

and Consumer Services

407 South Calhoun Street, Mail Stop 38

Tallahassee, Florida 32399 - 0800

Tracy Sumner, Esquire

Department of Agriculture

and Consumer Services

Post Office Box 3168

Tallahassee, Florida 3231 5 - 3168

Kavin P. Buxton

Post Office Box 13644

St. Petersburg, Florida 33733

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 Rec ommended Order should be filed with the agency that

will issue the Final Order in this case.