STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) Case No. 85-4192

)

)

NORTH DADE SECURITY LTD. ) CORPORATION, LINDA H. DONALD ) AND ROLLINS DONALD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on February 17 and 18, 1986, in Coral Gables, Florida.

Petitioner Department of State, Division of Licensing, was represented by James V. Antista and Patricia Smith, Attorneys at Law, Tallahassee, Florida; and Respondents North Dade Security, Ltd., Rollins Donald and Linda Donald were represented by Charles

C. Mays, Attorney at Law, Miaml, Florida.

Petitioner issued an Administrative Complaint against Respondents seeking to revoke the security guard agency license of Respondent North Dade Security, Ltd.' the firearms instructor licenses of Respondents Rollins Donald and Linda Donald' and the unarmed security guard license of Respondent Raymond Curtis Foxwood. Respondents North Dade Security, Ltd., Rollins Donald and Linda Donald timely requested a formal hearing on the allegations contained within that Administrative Complaint.

Accordingly, the issue for determination herein is whether Respondents are guilty of the allegations contained within that Administrative Complaint, and, if so, what disciplinary action should be taken, if any.

At the commencement of the formal hearing, Petitioner dismissed without prejudice the Administrative complaint as to Respondent Raymond Curtis Foxwood.

Petitioner presented the testimony of Enrique Renalda; Martha Cole; Jacky Azor; Clarence Ussin; Arthur odom; Allen Moffett; Roland Troutman, Jr.; Karen Potter; Edward Gibson; Samtail Odige; Robert L. Adkins, Jr.; F. N. Richman; Denise Nevers; John S. McCarthy, and John Gordy. Additionally, Petitioner's Exhibits numbered 1-20 were admitted in evidence. John E. Williams and Respondent Linda H. Donald testified on behalf of the Respondents.

A explanation of the lengthy delay in entry of this Recommended Order and a discussion of the parties' proposed findings of fact are found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent North Dade Security, Ltd., has held a Class "s" security guard agency license.

   
   

2. At all times material hereto, Respondent Rollins Donald has held a Class "K" firearms instructor license.

   
   

3. At all times material hereto, Respondent Linda Donald has held a Class "K" firearms instructor license.

   
   

4. At all times material hereto, Linda and Rollins Donald have been the principal owners, corporate officers, and directors of Respondent North Dade Security, Ltd., and as such are responsible for the control and operation of the agency. There is no licensed manager for the agency.

   
   

5. At all times material hereto, Raymond Curtis Foxwood was an employee of North Dade Security, Ltd. Foxwood has never been licensed as a firearms instructor.

   
   

6. An applicant for a statewide gun permit, also known as a Class "G" armed guard license, must submit to Petitioner an application for such license. The application form contains a Certificate of Firearms Proficiency which verifies that the applicant has received the statutorily-required firearms training by a licensed firarms instructor prior to the filing of that application for licensure.-

   
   

7. on October 7, 1985, Foxwood submitted to Petitioner on behalf of North Dade Security, Ltd., approximately 20 applications for licensure as unarmed and armed guards. Although Foxwood was advised at that time by one of Petitioner's employees that the applications could not be processed due to the absence of licensure fees and due to deficiencies in completeness, the

   applicants were sent by North Dade Security to Petitioner's office to pick up their temporary licenses on the morning of October 8. When questioned about their applications, some of the applicants advised Petitioner's employee that they had received no firearms training, although their applications certified that they had.

   
   

8. After the applicants were refused temporary licenses by Petitioner, North Dade Security sent the applicants to a gun range where Foxwood administered some firearms training for approximately four hours. Neither Rollins Donald nor Linda Donald was present at that training session.

   
   

9. As of October 1985, several other persons employed by North Dade Security as armed guards had received no firearms training in conjunction with that employment.

   
   

10. Most of the Certificates of Firearms Proficiency a contained within the applications of those latter employees and of the October 7 applicants were signed by Rollins Donald and by Linda Donald. 11. The numerous applications submitted by North Dadee La Security, Ltd., on October 7, 1985 was occasioned by a large contract entered into by North Dade Security, Ltd. requiring the immediate employment of a large number of armed guards.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.

    
    

12. The Administrative Complaint filed herein charges Respondent with having violated sections 493.306, 493.315, 493.319(1)(a), 493.319(1)(f), 837.06, and 837.012, Florida Statutes. Section 493.306 requires, inter alia, that applicants for a Class "G" license must receive a minimum of eight hours of range and classroom firearms training taught and administered by a licensed firearms instructor. Petitioner has met its burden of proving that Respondents have caused to be submitted to Petitioner applications for licensure for persons who received either no firearms training or substantially less than the eight hours minimum of training required by section 493.306, Florida Statutes. However, Petitioner has failed to allege and prove any specific violation of section 493.315, Florida Statutes.

    
    

13. Section 493.319(1), Florida Statutes, sets forth the grounds for which disciplinary action may be taken and provides, in pertinent part, as follows:

    1. Fraud or willful misrepresentation in applying for or obtaining a license;

       
       

       * * *

       
       

       (f) Proof that the licensee is guilty of fraud or deceit, or of negligence, incompetency or misconduct, in the practice of his business for which the license is held;

       
       

14. Petitioner has clearly met its burden of proving that Respondents, North Dade Security, Ltd. Rollins Donald, and Linda Donald, are guilty of fraud and willful misrepresentation in obtaining licenses on behalf of its employees or prospective employees in that they have caused to be submitted applications for licensure containing certificates signed by Rollins Donald and Linda Donald that the applicants had received from them the minimum statutorily-required firearms training when in fact no training had been administered to those applicants. Similarly, Petitioner has clearly met its burden of proving that Respondents North Dade Security, Ltd., Rollins Donald and Linda Donald are guilty of fraud, deceit, incompetency, and misconduct in the practice of their business by their willful certifications of false information.

    
    

15. As to Petitioner's allegations that Respondents have violated sections 837.06 and 837.12, Florida Statutes, those statutes establish certain acts as criminal conduct, and the Division of Administrative Hearings has no jurisdiction to adjudicate someone guilty of criminal conduct. Additionally, section 493.319, Florida Statutes, does not establish a violation of Chapter 837 as one of those grounds for which disciplinary action can be taken by Petitioner. Accordingly, Petitioner's allegations of violations of sections 837.06 and 837.12 must fall.

    
    

16. No credible evidence was proffered by Respondents in mitigation of their conduct in obtaining licenses for and hiring as armed security guards persons who have no training in the handling of firearms as required by statute prior to their filing applications for licensure. The result of Respondents' conduct constitutes a grave danger to the public. The only defense offered by Respondents was the testimony of Linda Donald, an owner and officer of North Dade Security, Ltd., that she did not sign the Certificates of Firearms Proficiency which bear her signature, that she has never been to a gun range, and that she knows nothing about the business activities of North Dade Security, Ltd. Such testimony is incredible. Even if her. testimony were believable, her testimony alone would show her to

    a be guilty of negligence and incompetency in the practice of her business one of the bases for disciplinary action established by section 493.319(1)(f), Florida Statutes. Similarly, Rollins Donald's obvious knowledge that his wife is not involved in the business except for her false certifications of firearms proficiency can only lead to the conclusion that he is also guilty of negligence and incompetency in the practice of his business.

    
    

17. Respondents' only other defense consists of Respondents' legal argument without proof that Foxwood for some unknown reason and without authorization decided to hire a large number of armed guards and in furtherance thereof, without the knowledge of his employers, submitted applications for licensure containing Certificates of Firearms Proficiency with the signatures of Rollins Donald and Linda Donald forged by someone else. Such an argument, without any proof as to who or why, would be without merit even if there were an absence of proof that the Respondents North Dade Security, Ltd., Rollins Donald and Linda Donald, had just entered into a large contract requiring the immediate employment of a large number of armed guards. In view of the absence of mitigating evidence and in view of the serious danger to the public safety from Respondents' attempts to fraudulently obtain (and in several instances successfully obtaining) licenses for employees as armed guards with statewide gun permits based upon false certifications, the only appropriate disciplinary action to be taken against Respondents is the revocation of their licenses.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is,

RECOMMENDED that a Final Order be entered finding Respondents North Dade Security, Ltd., Rollins Donald and Linda Donald guilty of the allegations contained within the Administrative Complaint filed herein, and revoking the Class "B.' license of North Dade Security, Ltd., and further revoking the Class "K" firearms instructor licenses of Respondents Rollins Donald and Linda Donald.

DONE and RECOMMENDED this 25th day of February, 1987, at Tallahassee' Florida.

LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 1987.

COPIES FURNISHED:

Kenneth J. Plante, Esquire Department of State

The Capitol Room LL-10 Tallahassee Florida 32399-0250

Jackie L. Gabe, Esquire Charles C. Mays, Esquire McCRARY & VALENTINE

Executive Plaza

3050 Biscayne Boulevard.

Suite 800,

Miami, Florida 33137-4198

Honorable George Firestone Secretary of State

The Capitol

Tallahassee, Florida 32301

APPENDIX

The testimony at the final hearing in this cause was preserved by tape recorder using cassette tapes rather than by use of the court reporter. At the conclusion of the final hearing, Respondents determined that they would provide a transcript of proceedings for use by the undersigned and would therefore have the cassette tapes of the final hearing transcribed. The parties were afforded thirty (30) days from the filing of that transcript in which to submit proposed findings of fact in the form of proposed recommended orders. On June 23, 1986, a transcript was filed with the Division of Administrative Hearings. The parties hereto subsequently agreed that that transcript was incomplete, and a complete transcript was filed with the Division of Administrative Hearings on September 22, 1986. Accordingly, the parties' proposed recommended orders became due to be filed with the Division of Administrative Hearings no later than October 22, 1986.

Respondents filed their proposed recommended order on October 20, 1986. However, Petitioner did. not file its proposed recommended order until October 23, 1986. On October 24, 1986, Petitioner also filed what it considered to be an uncertified "corrected transcript. A series of correspondence and conference calls then ensued due to the Respondents' inability to accept the "corrected~ transcript, and the parties were afforded additional time in which to resolve their differences regarding the September 22, 1986 transcript, which was determined by the undersigned to be the official transcript of this proceeding. By correspondence from Petitioner's substituted attorney filed on February 2, 1987, Petitioner withdrew its "corrected" transcript and agreed to the use of the official transcript filed on September 22, 1986.

Since Petitioner's proposed recommended order was filed late and no extension of time for the filing of that proposed recommended order was requested or granted, no rulings are made herein on Petitioner's proposed findings of fact. Although Respondents' proposed recommended order was timely filed, only Respondent's finding of fact numbered 1 has been adopted in this Recommended Order. The remainder of Respondents' proposed findings of fact have been rejected as not constituting findings of fact but rather as constituting recitations of the testimony of each witness.

================================================================= FIRST DISTRICT COURT OPINION

=================================================================

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

NORTH DADE SECURITY LTD. NOT FINAL UNTIL TIME EXPIRES CORPORATION, LINDA H. TO FILE REHEARING MOTION AND DONALD and ROLLINS DONALD, DISPOSITION THEREOF IF FILED.

Appellants, CASE NO. 97-1350

DOAH CASE NO. 85-4192

Vs.

DEPARTMENT OF STATE DIVISION OF LICENSING,

Appellee.

/ Opinion filed September 1, 1988.

An appeal from an order of the Department of State.

Michael J. Cherniga, of Roberts, Baggett, LaFace & Richard, C Tallahassee, for appellants.

R. Timothy Jansen, Assistant General Counsel, Department of State, Tallahassee, for appellee.

THOMPSON, Judgee.

This is an appeal from a final order of the Department of State (Department) approving and adopting the hearing officer's recommended order holding that the firearms instructor licenses of the individual appellants should be revoked and that the security agency license of the corporate appellant should be revoked. We reverse and remand.

The appellants raise, inter alia, the following two questions: (1) Whether the Department's failure to accurately and completely preserve the testimony adduced at the final hearing constitutes a departure from the essential requirements

of law and a violation of appellants' due process rights, and (2) whether the Department's failure to preserve the testimony adduced at the final hearing has materially prejudiced the appellants' rights to judicial review of this cause.

At the final hearing in this case the Department attempted to preserve the testimony presented by tape recorder using cassette tapes rather than by the use of a court reporter. The Department notified appellants prior to the final hearing that it intended to preserve the hearing testimony in this manner, and that appellants would be responsible for furnishing any transcript they might need for review of the hearing officer's findings. Appellants were advised they were free to either hire a court reporter to produce such transcript or that they could use the Department's tapes t make their own transcript.

Appellants neither hired a court reporter nor objected to the Department's announcement that it would tape record the proceedings. Unfortunately, the tape recorder malfunctioned, and numerous substantial and material portions of the testimony taken at the hearing were not transcribable because they were not recorded at all, or because the tapes were inaudible or unintelligible.

The final hearing was concluded February 18, 1986. At the conclusion of the hearing the appellants determined that they would provide a transcript of the proceedings for use by the parties and would have the cassette tapes of the final hearing transcribed. The parties were afforded 30 days from the filing of the transcript in which to submit proposed findings of fact in the form of proposed recommended orders.

On June 23,1986, a transcript was filed with the Division of Administrative Hearings (DOAH) but the parties subsequently agreed that the transcript was incomplete. An allegedly complete transcript was filed with DOAH on September 22, 1986, and the parties' proposed recommended orders were due to be filed no later than October 22, 1986. Appellants filed their proposed recommended order on October 20, 1986 and the Department filed its recommended order October 23, 1986 together with what it labeled a "corrected" transcript. The appellants refused to accept the "corrected" transcript and the parties were afforded additional time to resolve their differences regarding the September 22 transcript. Ultimately, the transcript filed September 22 was determined by the hearing officer to be the official transcript of the final hearing. On February 2, 1987, the Department withdrew its "corrected" transcript and agreed to use the transcript filed September 22, 1986. The hearing officer's recommended order was entered February 25, 1987, and the final order of the agency was entered September 23, 1987,

more than one and one-half years after the date of the final hearing.

Section 120.57(1)(b)6, Fla. Stat. (1985) provides in part:

The agency shall accurately and completely preserve all testimony in the proceeding, and, on the request of any party, it shall make a full or partial transcript available at no more than actual cost.

The statute requires agencies to accurately and completely preserve all testimony in §120.57(1) proceedings held before them, and this mandatory duty cannot be avoided or escaped by simply advising an opposing party that the agency proposes to preserve the testimony by tape recording and that the opposing party has the right to hire a court reporter. The appellants were entitled to rely upon the Department to accurately and completely preserve the testimony taken at the final hearing, yet review of the transcript herein reveals that the Department failed to perform its duty. There are numerous obvious omissions of substantial and material portions of the testimony received, and the answers to many of the questions posed are incomplete or inaudible. Because of the condition of the record the appellants are unable to obtain any meaningful review of the proceedings.

Booker Creek Preservation. Inc. v. State of Florida Department of Environmental Regulation, 415 So. 2d 750 (Fla. 1st DCA 1982) and Florida Department of Corrections v. Bradley, 510 So. 2d 1122 (Fla. 1st DCA 1987) are not applicable, as these cases involved a factual situation where the appellant failed to furnish a written transcript although one could have and should have been obtained by the appellant. In this case the appellants made every effort to obtain a complete and accurate written transcript of the testimony but were unable to do so through no fault of their own. As the parties were unable to agree on a statement of the evidence, the appellants are entitled to a hearing de novo.

The order of the Department is vacated and the cause is remanded for a hearing de novo on the petition.

SHIVERS and ZEHMER, JJ ., CONCUR.

Docket for Case No: 85-004192

Orders for Case No: 85-004192