Judges: ROBERT E. MEALE
Agency: Department of Agriculture and Consumer Services
Latest Update: Sep. 30, 1988
Summary: Temporary help service providing individuals to serve as uniformed guards not performing guard functions requiring licensure
88-1402.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF STATE, DIVISION ) OF LICENSING, )
)
Petitioner, )
)
vs. ) CASE NO. 88-1402
) MARY CARTER, PRESIDENT, AS ) NEEDED TEMPS, INC., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, final hearing in the above-styled case was held on July 5, 1988, in Orlando, Florida, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.
The parties were represented as follows:
For Petitioner: R. Timothy Jansen, Esquire
Assistant General Counsel Department of State
The Capitol, Mail Station #4 Tallahassee, Florida 32399-0250
For Respondents: Mary E. Carter, President
As Needed Temps, Inc.
6239 Edgewater Drive, Suite N-5 Orlando, Florida 32810
BACKGROUND
On February 26, 1988, Petitioner filed an Administrative Complaint against Respondents with respect to certain watchman, guard, or patrol services.
Although the allegations of the Administrative Complaint concern a single "Respondent," it appears that Petitioner intended to initiate enforcement proceedings against Mary E. Carter and As Needed Temps, Inc. The Administrative Complaint alleged that Respondent performed watchman, guard, or patrol services without holding a license in violation of Section 493.319(1)(p), which prohibits the violation of any provision of Chapter 493, and Section 493.304(2), which requires that any person, firm, company, or corporation engaging in business as a watchman, guard, or patrol agency must have a Class "B" license.
On March 16, 1988, Respondent filed an Election of Rights disputing the factual allegations and requesting a formal hearing.
At the hearing, Petitioner called one witness and offered into evidence nine exhibits. Respondent called one witness and offered into evidence one exhibit. All exhibits were admitted into evidence.
A transcript was filed on August 30, 1988. Petitioner filed a proposed recommended order. Treatment accorded the proposed findings is detailed in the Appendix.
FINDINGS OF FACT
As Needed Temps, Inc., Respondent, provides temporary employees to various businesses. Respondent is not licensed under Chapter 493.
Respondent Mary E. Carter is president of Respondent. She is also the director of operations for SOS Security, Inc., whose principal place of business is at the same location as that of Respondent. SOS Security, Inc. holds a Class "B" license.
In August, 1987, David Christy, who was a drywall laborer, was working temporary jobs that Respondent had found for him. On August 8 or 9, 1988, Respondent assigned him to SOS Security, Inc., which placed Mr. Christy as a security guard at a local bicycle racetrack. While working as a security guard, Mr. Christy wore the guard uniform of SOS Security, Inc. Mr. Christy was not a licensed security guard.
SOS Security, Inc., which billed its customer for the security service, paid Respondent for Mr. Christy's services, and Respondent paid Mr. Christy.
At least one other individual entered into a similar arrangement with Respondent and SOS Security, Inc. Willy Dorsey, whose security guard license had expired in 1986, was paid by Respondent and SOS Security, Inc. at different times for security work that he performed during an unspecified year.
These incidents were not isolated. Respondent invoiced SOS Security, Inc. a total of over $13,000 in three invoices from March 20, 1987, through May 8, 1987, for "providing guard service."
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes.
Petitioner has jurisdiction over the disciplining of persons conducting a security, guard, or patrol business without the necessary license. Section 493.319(1)(g), Florida Statutes.
Any person, firm, company, or corporation engaging in business as a watchman, guard, or patrol agency must have a Class "B" license. Section 493.304(2), Florida Statutes.
A "watchman, guard, or patrol agency" includes any entity that, for consideration, is "engaged in the business of furnishing watchman, guard, [or] patrol services . . . ." Section 493.30(2), Florida Statutes. A watchman, guard, or patrolman includes persons who guard persons or property. Section 493.30(5), Florida Statutes.
Petitioner must prove the allegations of the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
Respondent does not provide watchman, guard, or patrol sics. Respondent provide workers to SOS Security, Inc. so that SOS Security, Inc. can provide security services to its customers. The focus of the licensing statute is on the end consumer, which in this case is the customer of SOS Security, Inc. Respondent's participation ends with SOS Security, Inc. and does not extend to the retail customer. The public may be protected by a disciplinary proceeding against the license of SOS Security, Inc. if, as it appears, it is using unlicensed persons to perform security work requiring a license.
For the same reasons, Respondent Carter does not provide watchman, guard, or patrol services. Additionally, Respondent Carter does not provide the persons to SOS security, Inc. As noted above, this service is performed by Respondent.
RECOMMENDATION
In view of the foregoing, it is hereby
RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint.
ENTERED this 30th day of September, 1988, in Tallahassee, Florida.
ROBERT E. MEALE
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1402
1-2. Rejected as not finding of fact.
3-10. Rejected as recitation of evidence and not findings of fact.
COPIES FURNISHED:
R. Timothy Jansen, Esquire Assistant General Counsel Department of State
The Capitol, Mail Station #4 Tallahassee, Florida 32399-0250
Mary E. Carter President
As Needed Temps, Inc. 6239 Edgewater Drive Suite N-5
Orlando, Florida 32810
Jim Smith Secretary of State The Capitol
Tallahassee, Florida 32399-0250
Ken Rouse General Counsel
Department of State 1801 The Capitol
Tallahassee, Florida 32399-0250
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF STATE
DEPARTMENT OF STATE, DIVISION OF LICENSING,
Petitioner,
vs CASE NO.: 88-1402
MARY L. CARTER, PRESIDENT, AS NEEDED TEMPS, INCORPORATED,
Respondent.
/
FINAL ORDER
This cause came before the Department of State, Division of Licensing (hereinafter "Petitioner"), for consideration and final agency action. A formal administrative hearing was conducted pursuant to Section 120.57(1), Florida Statutes, on July 5, 1988, before Robert H. Meale, a duly assigned Hearing Officer of the Division of Administrative Hearings. A Recommended Order was submitted by the Hearing Officer on June 20, 1988.
FINDINGS OF FACT
The Department of State hereby adopts and incorporates herein by reference the Findings of Fact in the Recommended Order.
CONCLUSIONS OF LAW
The Petitioner specifically rejects the Hearing Officer's Conclusions of Law listed in paragraphs six and seven of his Recommended Order. More specifically, Petitioner respectfully rejects the Hearing Officer's conclusion that Respondent did not provide watchman, guard or patrol services to the general public. Moreover, Petitioner rejects the Hearing Officer's interpretation and application of Sections 493.304(2), 493.30(2) and 493.30(5), Florida Statutes.
The Recommended Order states that the licensing statute focuses only on the end consumer, which the Hearing Officer concludes to be the customers of SOS Security. Additionally, the Hearing Officer concludes that Respondent's actions do not extend beyond SOS Security, and therefore, is not in violation of Chapter 493, Florida Statutes. Respondent disagrees with this interpretation and application of Chapter 493, Florida Statutes.
Section 493.304(2), Florida Statutes, provides as follows:
Any person, firm, company, partnership, or corporation which engages in business as a watchman, guard or patrol agency must have a Class "B-" license.
In addition, Section 493.30(2), Florida Statutes, states in pertinent part that a "[w]atchman, guard or patrol agency" includes any entity that, for consideration, is "engaged in the business of furnishing watchman, guard [or] patrol services... Finally, Section 493.30(5), Florida Statutes, provides that a watchman, guard or patrolman includes persons who guard persons or property.
Petitioner respectfully rejects the Recommended Order which concludes that Respondent did not violate Chapter 493, Florida Statutes. Petitioner introduced evidence that David Christy and Willie Dorsey performed the services of a security guard for SOS Security while on Respondent's payroll. Investigator John Matlack gave unrefuted testimony that Respondent would hire persons to do security work for SOS Security. These employees of the Respondent wore SOS uniforms while they were still on Respondent's payroll. Moreover, Mr. Matlack testified that Respondent would receive a financial profit for the guard services performed by Mr. Dorsey and Mr. Christy. Respondent testified that she hired Mr. Christy and Mr. Dorsey to perform security work. Also, Respondent testified that she paid their salary while they worked for SOS Security.
Finally, Respondent testified that she does not have a security license from the Petitioner.
Respondent fits the statutory definition of a watchman, guard or patrol agency pursuant to Section 493.30(2), Florida Statutes. In addition, Respondent does not have a Class "B" Watchman, Guard or Patrol Agency license as required by Section 493.304(2), Florida Statutes. Therefore, Respondent is in violation of Chapter 493, Florida Statutes, in that Respondent performed the services of a watchman, guard or patrol agency without being duly licensed by the State of Florida.
Therefore, Petitioner finds that Respondent has violated Chapter 493, Florida Statutes and imposes an administrative fine in the amount of $1,000.00.
Respondent shall have thirty (30) days from the date of issuance to pay this fine. Failure to tender payment in full within thirty (30) days shall be grounds for further disciplinary action, which may include injunctive action.
NOTICE OF RIGHTS
This Order constitutes final Agency action. Any party who is adversely affected by this Order may seek judicial review under Section 120.68, Florida Statutes. Such proceedings are commenced by filing a Notice of Appeal, pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the Clerk of the Department of State, Office of Legal Affairs, The Capitol, Room LL-10, Tallahassee, Florida 32399-0250; and by filing a copy of the Notice of Appeal, accompanied by the applicable filing fees, with the First District Court of Appeals, or with the District Court of Appeals in the appellate district where the party resides. The Notice of Appeal must be filed within (30) days of the day this Order is filed with the Clerk of the Department.
DONE AND ORDERED at Tallahassee, Florida this 30th day of December, 1988.
David C. Register, Director Division of Licensing
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing Final Order has been sent by U. S. Mail this 4th day of January 1989, to Mary L. Carter, President, As Needed Temps, Incorporated, 6239 Edgewater Drive, Suite N-5, Orlando, Florida 32801.
Copies Furnished To: Filed with Agency Clerk Mary L. Carter, President Office of Cabinet and As Needed Temps, Incorporated Legal Affairs
6239 Edgewater Drive Suite N-5
Orlando, Florida 32801
George C. Kelley, P.A. Post Office Box 1132 Apopka, Florida 32703
Orlando Regional Office License File
R. Timothy Jansen Assistant General Counsel Department of State Division of Licensing
The Capitol, MS #4
Tallahassee, Florida 32399-0250
(904) 488-5381
Docket for Case No: 88-001402
Orders for Case No: 88-001402
| Issue Date |
Document |
Summary |
|
Dec. 30, 1988 |
Agency Final Order
|
|
|
Sep. 30, 1988 |
Recommended Order
|
Temporary help service providing individuals to serve as uniformed guards not performing guard functions requiring licensure
|
