Kinney v. Department of State, Div. of Licensing

• Decision Date: 22 January 1987
• Docket Number: No. 85-1658,85-1658
• Citation: 12 Fla. L. Weekly 307,501 So.2d 129
• Parties: 12 Fla. L. Weekly 307 Ralph KINNEY, Appellant, v. DEPARTMENT OF STATE, DIVISION OF LICENSING, Appellee.
• Court: Florida District Court of Appeals

Page 129

501 So.2d 129

12 Fla. L. Weekly 307

Ralph KINNEY, Appellant, v. DEPARTMENT OF STATE, DIVISION OF LICENSING, Appellee.

No. 85-1658.

District Court of Appeal of Florida,

Fifth District.

Jan. 22, 1987.

Henry P. Duffett, of Duffett, Seps and Akers, Ormond Beach, for appellant.

James V. Antista, Senior Atty., Dept. of State, Tallahassee, for appellee.

ORFINGER, Judge.

Kinney appeals from a final agency order overruling the hearing officer's recommendation that the charges against him be dismissed, and adjudicating him guilty of a violation of section 493.319(1)(j), Florida Statutes (1983). ¹ We reverse.

The administrative complaint filed by appellee sought to revoke Kinney's Class "A" private investigative agency license and his Class "C" private investigator license on the basis that he "was arrested September 9, 1982 for Attempted Murder, pled no contest to aggravated battery and was sentenced to five years probation which violates Section 493.319(1)(j), Florida Statutes." From uncontroverted testimony presented at the hearing, the hearing officer found these pertinent facts:

(3) Records of the Circuit Court for Volusia County Florida reflect that Respondent was arrested on September 9, 1982 by the Ormond Beach, Florida Police Department and charged with Attempted Murder. The State Attorney For The Seventh Judicial Circuit, by Information dated September 22, 1982, charged the Respondent with Attempted First Degree Murder and Aggravated Battery. By Order of August 10, 1982, the Circuit Court of Volusia County, Florida, accepted the Respondent's plea of nolo contendere to the charge of Aggravated Battery, a Second Degree Felony. The Court withheld adjudication of guilt and placed the Respondent on probation for a period of 5 years.

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(5) The circumstances that led up to Respondent's arrest on September 9, 1982 were domestic in nature: The Respondent objected to a relationship that had developed between his 12-year-old daughter, Vicky, an eighth grade student, and Thomas Parker, (Parker) a 17-year-old boy, about a year before the shooting incident on September 9, 1982. The Respondent came to disapprove of Parker because of Respondent's view that Parker was too old for his daughter, did not go to work or school, had no parental supervision or discipline, and was of dubious character and reputation. Respondent's efforts to terminate the relationship were frustrated. Respondent became convinced that Parker had introduced his daughter to sex, alcohol and the use of marijuana and other drugs. Respondent forbade his daughter from seeing Parker but the relationship continued and caused friction and tension within the family. Within a year, Vicky went from an "A" student to a "drop-out."

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(7) During the evening of September 8, 1982, Respondent and his wife, Louise Kinney, discovered that Vicky was missing from her bedroom. Respondent reported this to the Ormond Beach Police Department because he thought Vicky had run away and was in the accompany [sic] of Parker.

(8) Sometime between 3:00 and 3:30 a.m. on September 9, 1982, Respondent heard someone at Vicky's bedroom window and went outside to "check it out" with a .357 magnum pistol, a metal baseball bat and a flashlight. Respondent found Parker and a friend helping Vicky into her bedroom window. When Parker and his friend saw Respondent they ran and Respondent gave chase. While chasing Parker, Respondent tripped over a vent pipe to a storage tank and the pistol discharged hitting Parker in the lower back. Respondent's testimony that he did not intend to shoot Parker and that the shooting was accidental went unrebutted. These comments are consistent with Respondent's explanation to the police officers called to the scene of the shooting and consistent with his comments to Dr. Barnard, a psychiatrist. Respondent's testimony that it was his intent to only hold Parker at the scene for the police so that Respondent could charge Parker with trespassing and possibly relieve a bad situation at home went unrebutted. Neither Parker nor his friend were armed.

In his recommended order, the hearing officer further found:

Without objection from the Respondent, Petitioner called Respondent as a witness to testify to the underlying facts leading up to the Respondent's arrest. Considering the Respondent's testimony, no other witnesses testified to the underlying facts, and the documentary evidence presented by the petitioner, the evidence is insufficient to show the necessary intent required under Sections 784.03(1)(a)(b) and 784.045(1)(a)(b), Florida Statutes (1981) to prove Respondent committed an aggravated battery on September 9, 1982.

Although the hearing officer submitted this last finding under the heading of "Conclusions of Law," the question of intent as an element of a criminal charge is a question of fact. Groover v. State, 82 Fla. 427, 90 So. 473 (Fla.1921); Harris v. State, 415 So.2d 135 (Fla. 5th DCA 1982); State v. J.T.S., 373 So.2d 418 (Fla. 2d DCA 1979). Thus the hearing officer's finding that the evidence was insufficient to show criminal intent was a finding of fact, not a conclusion of law. Based on these findings, the hearing officer concluded that appellant was not guilty of the violations charged, and recommended that the administrative complaint be dismissed.

Although an agency may reject or modify the conclusions of law and interpretation of administrative rules of the hearing officer, it may not reject or modify findings of fact where those findings of fact are based on competent substantial evidence. § 120.57(1)(b)(9), Fla.Stat. (1985); Morris v. Dept. of Professional Regulation, 474 So.2d 841 (Fla. 5th DCA 1985); Clark v. Dept. of Professional Regulation, 463 So.2d 328 (Fla. 5th DCA), rev. denied, 475 So.2d 693 (1985). Erroneously labeling what is essentially a factual determination a "conclusion of law," whether by the hearing officer or the agency does not make it so, and the obligation of the agency to honor the hearing officer's findings of fact may not be avoided by categorizing a contrary finding as a "conclusion of law." Morris; Leapley v. Board of Regents, 423 So.2d 431 (Fla. 1st DCA 1983).

We disagree with the agency's contention that the plea of nolo contendere to the charge of aggravated battery is conclusive evidence that Kinney committed the...