vs. ) CASE NO. 89-6763
) DONALD C. WHALEN, SOMERSET ) SECURITY & INVESTIGATION, INC. ) OF MANATEE COUNTY, FLORIDA, )
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on March 29, 1990, in Palmetto, Florida.
For Petitioner: Henri C. Cawthon, Esquire
PRATT, RHYNE & LIPINSKI, P.A.
Whether or not Respondent employed unlicensed security guards; failed to issue company identification cards to security guard employees; issued security guard employee badges which depicted a facsimile reproduction or pictorial portion of the Great Seal of the State of Florida and improperly used repossessed property for his personal benefit in violation of Sections 493.204(5), 493.311(4), 493.3284 and 493.317(4), Florida Statutes, respectively.
By its Administrative Complaint filed herein dated October 6, 1989, Petitioner, Department of State, Division of Licensing, charges Respondent, Donald C. Whalen, president of Somerset Security & Investment, Inc. of Manatee County, Florida, with violating several provisions of Chapter 493, Florida Statutes, as is more particularly set forth in the Administrative Complaint filed herein. The parties entered into a factual stipulation, respecting the factual allegations and all of the issues raised by the Administrative Complaint
and Petition for Formal Hearing except the issue relating to whether or not Respondent improperly used repossessed property for his personal benefit, in violation of Section 493.317(4), Florida Statutes.
At the hearing, Petitioner presented the testimony of Karen T. Erikson, Stacey New, Judith Chester and Eugene Blitch. Respondent testified on his behalf and presented the testimony of witnesses Joe Ungarelli, Lee Bissette, Tom French, Doug Kramer and Lynn Webber. Petitioner's Composite Exhibit 1 and the parties' factual stipulation was received in evidence.
Respondent, Donald C. Whalen, is president of Somerset Security & Investigation, Inc. of Manatee County, Florida.
Respondent holds several licenses issued by Petitioner, including a Class "A" Private Investigative Agency license number 86-00242, effective October 24, 1988; a Class "B" Watchman, Guard or Patrol Agency license number B86-00153, effective October 24, 1988; a Class "C" Private Investigator license number 86-00233, effective August 4, 1988; a Class "E" Repossesser license number E87-00027, effective March 20, 1989; and a Class "M" Manager license number M86-00046, effective August 4, 1988.
Vaughn Yeager was employed by Respondent as a security guard for three months in 1988 without first obtaining licensure.
Tom French was employed by Respondent as a security guard for three months in 1988 without first obtaining licensure.
Ralph Chaffin was employed by Respondent as a security guard in May 1988, and worked for 27 hours without being licensed. Mr. Chaffin's application for licensure was not submitted because he quit within a few days of being hired.
Judith L. Chester was employed by Respondent as a security guard between May 5, 1988 and September 24, 1988, before becoming licensed by the Division.
George Clifton was employed as a security guard by Respondent between August 31 and September 5, 1988. An application for licensure was never submitted because of Mr. Clifton's termination.
Roger Lee Curtis was employed by Respondent as a security guard from March 4 through August 1, 1988, before his application for 1icensure was received by the Division.
James DeCoff was employed as a security guard by Respondent between June 17, 1988 and June 21, 1988, when he was terminated for improperly using a client's phone. His application for licensure was never submitted.
Michael Durbin was employed as a security guard by Respondent in May 1988. He quit after working one day and an application was not submitted.
Anthony R. Edwards was employed as a security guard by Respondent in May 1988. He quit after working one day and his application was not submitted.
Albert F. Ferrell was employed as a security guard by Respondent between May 6, 1988 and November 20, 1988, before his application was submitted.
Drenda Giambra was employed as a security guard for Respondent from September 16, 1988 to September 26, 1988, before becoming licensed by the Division.
Dean Harris was employed as a security guard by Respondent from July 19, 1988 to November 20, 1988, before he was licensed by the Division.
Dietrich Hogrefe was employed as a security guard by Respondent between November 30, 1988 and January 28, 1989, before becoming licensed by the Division.
Daniel Hunt, Jr., was employed as a security guard by Respondent on April 10, 1989, before he was licensed on April 18, 1989.
David Laplante was employed as a security guard by Respondent on January 15, 1989. He worked six hours and quit. An application was not submitted.
Victor Lesso was employed as a security guard by Respondent from June
16 through July 7, 1988, without submitting an application for licensure. He was terminated after being arrested for arson.
Ray Linderman was employed as a security guard by Respondent between April 8 and April 30, 1988, without being licensed. His application was submitted late.
Todd Persinger was employed as a security guard by Respondent in January 1989, and worked one weekend before quitting. An application for licensure was never submitted.
Arthur Samson was employed as a security guard by Respondent on September 30, 1988. His application was submitted by Respondent on October 2, 1988. He was terminated when the application was denied.
Russell W. Schmidt was employed as a security guard by Respondent from March 4, 1988 thru April 1, 1988. He quit before his application for licensure was submitted.
Jennifer Slaton was employed as a security guard by Respondent in November 1988. She worked part-time for three days and quit before her application was submitted.
Randall Springer was employed as a security guard by Respondent for two weeks in September 1988. His application was never submitted because he quit.
Tracy Tamburin worked as a security guard for Respondent for one weekend in December 1988. Her application was never submitted because she quit.
James Wooten was employed as a security guard by Respondent from October 2, 1988 through March 25, 1989, before becoming licensed.
Brian Frenn was employed as a security guard by Respondent for three shifts in January 1989. An application for licensure was not submitted.
Gina Spaniak was employed as a security guard by Respondent for two weeks in March 1988. An application for licensure was never submitted.
Tom Hunt was employed as a security guard by Respondent for two weeks in May 1989. An application was not submitted.
Earl Watson was employed as a security guard by Respondent for a short period of time in April 1989. An application was not submitted.
Todd Moudy was employed as a security guard by Respondent for a short period of time in April 1989. An application was not submitted.
John Mullins was employed as a security guard by Respondent for a short period of time in May 1989. An application was not submitted.
Walker Mobley was employed as a security guard by Respondent for a short period of time in May 1989. An application for 1icensure was not submitted.
Richard Yelvington was employed as a security guard by Respondent from January 17, 1989, to February 28, 1989, before being licensed by the Division.
Terry Harrison was employed as a security guard by Respondent from January 10, 1989 to February 10, 1989, before submitting an application for licensure.
Cynthia K. Burdell was employed as a security guard by Respondent from July 18, 1988 through November 20, 1988, before being licensed by the Division.
Flynn C. Gregory was employed as a security guard by Respondent from January 30, 1989 through April 4, 1989, before being licensed by the Division.
David Morico was employed as a security guard by Respondent from March 30, 1989 to May 15, 1989, before being licensed by the Division.
Daniel F. Hunt, Sr., was employed as a security guard by Respondent from March 18, 1989 to May 15, 1989, before submitting an application for licensure.
Robert F. Hunt was employed as a security guard by Respondent for two weeks in March 1989, before submitting an application for licensure.
John Moffat was employed as a security guard by Respondent from May 18, 1989 to June 1, 1989, with an expired Class "D" license.
Jeff Clarkson was employed as a security guard by Respondent for a period of less than two weeks between April 1, 1988 and July 15, 1989, without proper licensure.
Jay Abram was employed as a security guard by Respondent for a period of less than two weeks between April 1, 1988 and July 15, 1989, without proper licensure.
Shedrick Bates was employed as a security guard by Respondent for a period of less than two weeks between April 1, 1988 and July 15, 1989, without proper licensure.
Joseph Likes was employed as a security guard by Respondent for a period of less than two weeks between April 1, 1988 and July 15, 1989, without proper licensure.
Dawn Dodson was employed as a security guard by Respondent for a period of less than two weeks between April 1, 1988 and July 15, 1989, without proper licensure.
Woodrow Roberts was employed as a security guard by Respondent for a period of less than two weeks between April 1, 1988 and July 15, 1989, without proper licensure.
Robert Anderson was employed as a security guard by Respondent for a period of less than two weeks between April 1, 1988 and July 15, 1989, without proper licensure.
In July 1989, twenty of Respondent's employees performed security guard services without identification cards.
In July 1989, Respondent issued to six employees security guard badges which depicted a facsimile reproduction or pictorial portion of the Great Seal of the State of Florida without authorization.
On or about June 30, 1988, Respondent repossessed a 38 ft. Wellcraft St. Tropez boat for Barnett Bank of Manatee County, Florida. The bank authorized Respondent to store the boat near Joe Ungarelli's house at 2409 69th Avenue West, Bradenton, Florida. Mr. Ungarelli expressed an interest in purchasing the boat from the Bank, and on July 2 or 3, 1988, Respondent, Ungarelli and two Barnett Bank employees, Doug Kramer and Tom French took the boat on a five to six hour trip so that Ungarelli could inspect the boat. The next day Respondent attended a Fourth of July party at Ungarelli's house. The boat was moved from Trailer Estates Marina to Ungarelli's dock and parked there. Respondent was also aboard for the second moving. Respondent solicited his friend Ungarelli to accompany him on the trip to repossess the St. Tropez boat from Englewood, Florida, a distance of over 40 miles south of Bradenton. Lee Bissette drove Respondent, Ungarelli and French to Englewood. Additionally, French worked part-time for Respondent as a security guard.
After the boat was repossessed and brought from Englewood to Bradenton, Ungarelli again indicated to Respondent and Tom French that he was interested in purchasing the boat. Ungarelli requested that Barnett Bank allow him to take the boat out so that he could show his wife the boat and hopefully get her approval to purchase it.
Barnett Bank thereafter contacted Respondent and authorized him to show the boat to Ungarelli and his wife. For doing so, Respondent was paid for his services. On Sunday, July 3, 1989, Respondent, acting on behalf of Barnett Bank, took the Ungarellis, Tom French and Doug Kramer out on the boat for approximately five hours. Karen Erikson, a friend and former employee of Respondent was picked up at a local seafood establishment earlier in the day.
Immediately upon boarding the boat, Karen Erikson retired to the berth for at least three hours during the boat trip as she had consumed approximately ten beers and was somewhat intoxicated.
On July 4, Joe Ungarelli had a Fourth of July party at his house. Respondent and other employees of Somerset Security were invited to Ungarelli's party. Ungarelli's house is located on a canal where the 38 ft. St. Tropez was docked along with four other boats, including a 40 ft. Scarub and a 32 ft. Sports Fisherman.
Ungarelli dug the 25 ft. canal behind his home and it is, on the most favorable day, at best "tricky" to maneuver a large boat such as the repossessed
38 ft. St. Tropez into the canal.
Respondent did not move the repossessed boat from Ungarelli's home on July 4th, nor did any other party, as Respondent, Ungarelli and several of his employees were busy barbecuing a pig for the party which was held that day.
On each occasion that Respondent moved the repossessed boat, it was with the owner's (Barnett Bank of Bradenton) permission and was not used for any personal benefit of Respondent. Ungarelli submitted a bid to purchase the repossessed St. Tropez, however, he was out-bid by another party.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action pursuant to Section 120.57(1), Florida Statutes.
The parties were duly noticed pursuant to Chapter 120, Florida Statutes.
The authority of the Petitioner is derived from Chapter 493, Florida Statutes.
Respondent employed forty-seven persons as security guards who were not holders of a Class "D" security guard license in violation of Section 493.304(5), Florida Statutes.
Respondent failed to issue company identification cards to twenty security guard employees in violation of Section 493.311(4), Florida Statutes.
Respondent issued to six employees security guard badges which depicted a facsimile reproduction or pictorial portion of the Great Seal of the State of Florida without authorization and in violation of Section 493.3284, Florida Statutes.
Insufficient evidence was offered herein to establish that Respondent used a repossessed boat for his personal benefit and enjoyment as alleged in violation of Section 493.317(4), Florida Statutes. The evidence reveals that on each occasion that Respondent and/or his employees moved the boat following its repossession, it was done with the authorization and approval of Barnett Bank.
Based on the foregoing Findings of Fact, Conclusions of Law and Stipulation of the parties, it is RECOMMENDED:
Petitioner enter a Final Order imposing an administrative fine against Respondent in the amount of $4,000.00 and place his Class "A", "B", "C" and "M" licenses on probation for a term of six (6) months. 1/
DONE and ENTERED this 3rd day of July, 1990, in Tallahassee, Leon County, Florida.
JAMES E. BRADWELL
Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July, 1990.
1/ This penalty is in accord with the parties' stipulation and Petitioner's guidelines for the violations found herein.
Henri C. Cawthon, Esquire Assistant General Counsel Department of State
PRATT RHYNE & LIPINSKI, P.A.
