STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES J. GLENNEY, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 79-1483S

)

DIVISION OF LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on September 28, 1979, in Miami, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. The issue presented is whether the application of the Petitioner for Class' "A" and "B" licenses should be granted. It was stipulated that the Petitioner had made an application for licensure and had been denied because he lacked one year's experience in Florida in the area in which he sought to be licensed. The Petitioner preserved for the record any constitutional challenges he had to the statute.

APPEARANCES

For Petitioner: Morris S. Finkel, Esquire

3352 North East 34th Street Fort Lauderdale, Florida 33308

For Respondent: W. J. Gladwin, Jr., Esquire

Assistant General Counsel Department of State, The Capitol Tallahassee, Florida 32301

FINDINGS OF FACT

1. Petitioner made application for Class "A" and "B," Private Investigator and Security Guard or Patrol Licenses.

   
   

2. Petitioner was denied these licenses on the grounds that he lacked the requisite one year's experience in the State of Florida in the field for which he wished licensure.

   
   

3. Petitioner was born in 1942, graduated from high school in 1960, and began to train dogs professionally in 1961. Gradually, through training guard dogs, patrol dogs and other specially trained dogs, the Petitioner entered the security business. He was granted a private investigator license by Pennsylvania in 1971, and later was licensed by Pennsylvania to provide security services. His company, which recently changed its name from K-9 Training School to Associated Security Specialists of Pennsylvania, (Associated), grew until it now employs 90 to 100 employees. Petitioner is now the President of this Pennsylvania corporation and was Chief of Security for the company until moving

   to Florida. Petitioner is still an active officer of this corporation, traveling to Pennsylvania frequently to participate in management of the company.

   
   

4. Employees of Associated are engaged in foot and' mobile security patrols at businesses, apartments and industrial sites; surveillance of operations; personnel security; riot training; and security and crowd control at sporting and entertainment events for private and public employers.

   
   

5. Petitioner has personally been licensed as a private investigator in Pennsylvania since 1971, and holds a Pennsylvania firearms license and firearms qualification certificate.

   
   

6. Petitioner moved to Florida in December of 1978, and purchased a home in Citra, Florida, in approximately June of 1979. Prior to June, 1979, he lived with his mother in Ocala, Florida.

   
   

7. Petitioner has attempted to obtain employment as a security guard at several licensed guard services. He has been denied employment because of his potential competitive position if he acquires in-state experience. Some agencies have even offered to hire him if he would pay them for letting him get the experience.

   
   

8. Petitioner meets all of the criteria for licensure except one year's experience in the State of Florida.

   
   

   CONCLUSIONS OF LAW

   
   

9. Section 493.04(1), Florida Statutes, requires specifically three (3) years experience performing the type of service permitted under the license applied for or the equivalent thereof in a related field, one year of said experience to be with this State (Florida). A specific exception exists for Class "F" and "G" licenses.

   
   

10. The basis for denial, as clarified at the hearing, was the Petitioner's lack of one year's experience in Florida. The Petitioner specifically reserved all constitutional challenges to Section 493.04(1), Florida Statutes, and preserved on the record his assertion that this section violated his rights under the Florida and federal constitution.

    
    

11. The facts clearly show the Petitioner is qualified for licensure with the exception of the one year's experience in Florida. A similar provision found in Section 449.023, Florida Statutes, requiring three (3) years' experience as an employment clerk in this State as a prerequisite for licensure as an employment agent or agency was determined to be unconstitutional by the federal district court, northern district. The problem attendant to such a statute are apparent from the testimony that the Petitioner cannot find a job in security because prospective employers realize he would leave in one year and would then be in competition with them. No evidence exists that such a period of residency is necessary or helpful in assessing the applicant's qualifications.

    
    

12. Notwithstanding the status of the law regarding such provisions, the constitutionality of Section 493.04(1), Florida Statutes, has not been reviewed by a court of competent jurisdiction, and the constitutionality of a statute cannot be determined by an administrative hearing officer under Chapter 120, Florida Statutes. The agency head, as a member of the executive branch, cannot

    determine that a statute is unconstitutional and refuse to apply it. To do so would violate the doctrine of separation of powers. Further, although the executive may apply a statute in such a manner that a potential constitutional infirmity is avoided, the statute in question is not subject to such interpretation.

    
    

13. The law is clear, and it requires that the Petitioner have one year's experience within the State of Florida as a prerequisite for licensure. The Petitioner, who is otherwise fully qualified, lacks this experience in Florida.

    
    

    RECOMMENDATION

    
    

14. Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the agency head deny the applications for Class "A" and "B" Licenses of the Petitioner.

DONE and ORDERED this 5th day of October, 1979, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 1979.

COPIES FURNISHED:

W. J. Gladwin, Jr., Esquire Assistant General Counsel Department of State

The Capitol

Tallahassee, Florida 32301

Morris S. Finkel, Esquire 3352 North East 34th Street

Fort Lauderdale, Florida 33308

Docket for Case No: 79-001483

Orders for Case No: 79-001483