STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, DIVISION )

OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 91-6440

)

BROWARD MOTOR ESCORT AND )

DAVID SCHLESENER, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was scheduled for final hearing before Linda

1. Rigot, the assigned Hearing officer of the Division of Administrative Hearings, on March 31, 1992, in Fort Lauderdale, Florida. On March 27, 1992, the parties filed an agreed Motion for Continuance in which the parties advised the undersigned that they had reached an agreement wherein all material facts were undisputed, leaving one question of law to be addressed by the Division of Administrative Hearings in a recommended order. By Order Granting Continuance entered March 31, 1992, the final hearing was cancelled, and deadlines were established for the parties to file their statement of stipulated facts, their statement of stipulated issues of law, their statement setting forth the issue of law remaining for determination herein, and their proposed recommended orders.

   
   

   APPEARANCES

   
   

   For Petitioner: Henri C. Cawthon

   Assistant General Counsel Division of Licensing

   The Capitol, MS #4

   Tallahassee, Florida 32399-0250

   
   

   For Respondent: Stephan P. Lange, Esquire

   7 Southeast 13 Street

   Fort Lauderdale, Florida 33316 STIPULATED ISSUES

   1. Whether the activities of Respondents, acting as a lead vehicle in funeral processions, require them to obtain a security agency license pursuant to Chapter 493, Florida Statutes?

      
      

   2. Whether the definitions of "security agency" and "security officer" in Sections 493.6101(18) and 493.6101(19), Florida Statutes, are unconstitutionally vague and/or over-inclusive as applied to Respondents?

PRELIMINARY STATEMENT

On June 17, 1991, the Department issued an Administrative Complaint against Broward Motor Escort, David Schlesener, Owner. Respondents timely requested a formal hearing regarding the allegations contained within that Administrative Complaint and filed a Motion to Dismiss. This cause was thereafter transferred to the Division of Administrative Hearings for the conduct of that formal proceeding. By Order entered October 25, 1991, Respondents' Motion to Dismiss was granted, and Petitioner was afforded 30 days in which to file an amended administrative complaint in this cause. Petitioner filed its Amended Administrative Complaint on November 12, 1991. By Order entered February 2, 1992, Respondents' Motion to Dismiss Amended Administrative Complaint was denied.

On April 17, 1992, the parties filed their Pre-hearing Stipulation. That document sets forth the stipulated facts to be utilized by the undersigned in resolving the allegations contained in Count I and the two stipulated legal issues relative to that Count. That document further recites the agreement of the parties that Petitioner will dismiss Counts II, III, IV, V, and VI of the Amended Administrative Complaint once jurisdiction over this matter is returned to Petitioner upon entry of this Recommended Order.

STIPULATED FACTS

1. The Department is responsible for enforcing Chapter 493, Florida Statutes, concerning security officers and security agencies that provide both armed and unarmed security services for the protection of persons and property, for hire. Chapter 493 applies to individuals and agencies equally except that agencies require agency licenses and individuals require individual licenses.

   
   

2. Respondents provided funeral escort services throughout Broward County, Florida, in 1991 for a nominal fee. Respondents have not applied for an agency license or any other security licenses. Respondent Schlesener's principal duty in providing funeral escort services is to act as the "lead vehicle" in funeral processions traversing traffic intersections and to lead those processions through traffic intersections pursuant to Section 316.1974, Florida Statutes. Respondent Schlesener concedes that the lead vehicle is a motorcycle with flashing yellow or amber hazard lights. He also concedes that he wears a uniform which does not appear to be a uniform of the several law enforcement agencies of the State of Florida.

   
   

3. Pursuant to Section 316.1974, Florida Statutes, when Respondent Schlesener serves as a lead vehicle of a funeral procession, he may lawfully enter into a traffic intersection (so long as the traffic control device permits) with the rest of the procession following behind him in entering the intersection notwithstanding any traffic control device or right-of-way provisions prescribed by statute or ordinance so long as the operator of each vehicle in the procession exercises due care. Likewise, vehicles and pedestrians opposing or approaching in a traversing manner to the funeral procession owe a duty to yield to the lead vehicle (once it lawfully enters the intersection) and the remainder of the vehicles in the funeral procession irrespective of the traffic control device. The parties acknowledge that the statute lawfully provides that the lead vehicle in a funeral procession may also position itself in the intersection while the procession proceeds uninterrupted through a stop sign or traffic light. The parties acknowledge that the statute lawfully provides that prior to the funeral procession clearing the

   intersection, the lead vehicle has the option of advancing to or positioning itself in anticipation of the next traffic intersection.

   
   

4. In the event that an emergency vehicle (such as an ambulance, fire truck, or police car) approaches the funeral procession, Respondent may signal the drivers in the procession approaching the intersection. However, the parties acknowledge that Section 316.1974 requires the lead vehicle, all other vehicles in the funeral procession, and vehicles and pedestrians opposing the procession or approaching it in a traversing manner, to yield the right of way to such emergency vehicles. Hence, the duty owed by all persons and vehicles upon the encroachment of an emergency vehicle is to yield to such a vehicle regardless of whether Respondent in performing his duties either signals or refrains from signalling the other vehicles in the funeral procession.

   
   

5. Respondents' sole purpose is to serve as the lead vehicle in funeral processions primarily by leading drivers in the funeral procession through traffic intersections, which duty may optionally be performed by a hearse in such funeral processions.

   
   

6. Respondent Schlesener concedes that he is directly employed or is hired as an "independent contractor" by licensed funeral directors. The parties acknowledge and concede that Section 470.002(4), Florida Statutes, provides that funeral directors are responsible for ". . . directing the arrangements for, the preparation and transportation of dead human bodies for final disposition . . .

   ." The parties also acknowledge and concede that funeral processions are part of "observances" and/or "ceremonies" held for dead human bodies. Section 470.002(13), Florida Statutes.

   
   

7. The parties concede and acknowledge that in all other respects, Respondent Schlesener is compliant with all other requirements as set forth in Section 316.1974, Florida Statutes, such as the number of vehicles in a funeral procession and headlights being lighted on all vehicles in the procession.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. Count I of the Amended Administrative Complaint alleges that during the period of May 10, 1988, through May 10, 1991, in Broward County, Florida, Respondents advertised and provided the escorting of funeral processions and wide loads through traffic without being duly licensed as a Class "B" Security Agency, thereby violating Section 493.6118(1)(g), Florida Statutes (1990), Section 493.319(1)(g), Florida Statutes (1989), and Rule 1C-3.122(1), Florida Administrative Code, by conducting or advertising the business of a security agency without a valid license. From May 10, 1988, through October 1, 1990, Section 493.319(1)(g) provided that conducting business without a license or with a revoked or suspended license constituted grounds for which disciplinary action may be taken by the Department. That section was repealed as of October 1, 1990, but was simultaneously re-enacted as Section 493.6118(1)(g), Florida Statutes, which provides that the Department may take disciplinary action against any licensee, agency, applicant, or any unlicensed person for conducting activities regulated under that chapter without a license or with a revoked or suspended license. Similarly, Rule 1C-3.122(1), Florida Administrative Code, provides as follows:

   1. Each license issued by the Department of State shall specify on its face the classification of such license. No agency or individual so licensed and classified shall engage in regulated activities reserved for any other classification without possessing a license therefore from the division and without demonstrating the required experience or equivalent.

      
      

10. The parties stipulated that the first issue to be resolved is whether the activities of Respondents acting as a lead vehicle in funeral processions require obtaining a security agency license pursuant to Chapter 493, Florida Statutes. Resolution of this issue requires consulting the definitions of a security agency and of a security officer in Section 493.6101, Florida Statutes, to determine what activities are regulated. Those definitions are as follows:

    
    

    1. 'Security agency' means any person who, for consideration, advertises as providing or is engaged in the business of furnishing security services, armored car services, or transporting prisoners. This includes any person who utilizes dogs and individuals to provide security services.

    2. 'Security officer' means any individual who, for consideration, advertises as providing or performs bodyguard services or otherwise guards persons or property; attempts to prevent theft or unlawful taking of goods, wares, and merchandise; or attempts to prevent the misappropriation or concealment of goods, wares or merchandise, money, bonds, stocks, choses in action, notes, or other documents, papers, and articles of value or procurement of the return thereof. The term also includes armored car personnel and those personnel engaged in the transportation of prisoners.

    
    

11. Petitioner has failed to meet its burden of proving that Respondents' activities acting as lead vehicle in funeral processions require a security agency license. Based upon the stipulated facts, it is clear that Respondents are not engaged in the business of furnishing security services, armored car services, or transporting prisoners. Further, Respondents are not performing bodyguard services or otherwise guarding persons or property; they are not attempting to prevent theft or unlawful taking of goods, wares, or merchandise; and they are not attempting to prevent misappropriation or concealment of goods, wares or merchandise, money, bonds, stocks, choses in action, notes, or other documents, papers, and articles of value, or procuring the return thereof. Rather, Respondents' sole purpose, according to the stipulated facts, is to serve as the lead vehicle in funeral processions, a function which can be performed by the driver of the hearse. In doing so, Respondents must comply with Section 316.1974, Florida Statutes, a portion of the Florida Uniform Traffic Control Law. The parties have stipulated that in performing services as the lead vehicle, Respondents do comply with that statute.

    
    

12. Section 470.002(4), Florida Statutes, includes the transportation of dead human bodies for final disposition within the definition of the practice of funeral directing. Funeral directors are regulated by the Board of Funeral Directors and Embalmers within the Department of Professional Regulation. Accordingly, the Legislature has given the responsibility for regulating funeral processions to the Department of Professional Regulation and not to the

    Department of State, subject to compliance with the special traffic laws regulating funeral processions.

    
    

13. Petitioner reasons that funeral processions have been traditionally led by off-duty law enforcement officers, that the security industry supplements the protection offered by law enforcement officers, that security officers wear uniforms, and that Respondent Schlesener wears a uniform and rides a motorcycle when he is leading funeral processions. Therefore, according to Petitioner, Respondents are protecting persons and property, which makes a security agency license mandatory. Petitioner's reasoning does not comport with logic or with the law. First, Section 316.1974, Florida Statutes, regulates the conduct of vehicles in a funeral procession and vehicles encountering a funeral procession. Although vehicles in the funeral procession are permitted to follow the lead vehicle into an intersection notwithstanding traffic control devices or right- of-way provisions, ". . . the operator of each vehicle exercises due care to avoid colliding with any other vehicle or pedestrian upon the roadway." Accordingly, the operator of each vehicle in a funeral procession is individually responsibile for exercising due care.

    
    

14. Second, the case law in this state is that there is no duty owed by the lead vehicle to other vehicles in a funeral procession with respect to assuring that those vehicles cross the intersection safely. In McCorvey v. Smith, 411 So.2d 273, 274 (Fla. 1st Dist. 1982), the appellate court considered the duty owed by lead vehicles in funeral processions, in interpreting Section 316.1974, Florida Statutes. In that case the trial court dismissed the complaint filed by the driver of a car in a funeral procession for failure to state a cause of action. That decision was affirmed on appeal upon the following analysis:

    
    

    Here the funeral director in the lead car merely undertook to get the procession started through the Davis Street intersection. This action on his part did not impose a duty upon him to see that all cars following him in the procession crossed the intersection safely. The above statute imposes a duty to exercise due care to avoid a collision upon the operator of each vehicle following the lead car. It does not purport to extend that duty to the funeral director. [Emphasis added]

    
    

15. Since functioning as the lead vehicle in a funeral procession carries no obligation for the protection of other persons or property participating in that funeral procession, Respondents cannot be found to be providing security services by operating as the lead vehicle in funeral processions. Accordingly, since Respondents are not offering security services, they cannot be required to obtain licensure as a Class "B" Security Agency. Petitioner has, therefore, failed to prove that Respondents have violated Section 493.6118(1)(g), Florida Statutes (1990), Section 493.319(1)(g), Florida Statutes (1989), or Rule 1C- 3.122(1), Florida Administrative Code, as alleged in Count I of the Amended Administrative Complaint. The activities of Respondents do not require them to obtain a security agency license.

    
    

16. The parties stipulated that the second legal issue involved in this proceeding is whether the definitions of "security agency" and "security officer" are unconstitutionally vague and/or overinclusive as applied to Respondents in light of the activities outlined in the Stipulated Facts. The parties have cited no authority for the proposition that a Hearing Officer of

the Division of Administrative Hearings has the authority to determine whether statutes are unconstitutionally vague and/or overinclusive. In any event, the second issue need not be resolved in order to determine whether Petitioner met its burden of proof as to the allegations in Count I of the Amended Administrative Complaint.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered (1) finding Respondents not

guilty of the allegations contained in Count I of the Amended Administrative Complaint, and (2) dismissing the Amended Administrative Complaint filed herein, in accordance with both this Recommended Order and the settlement stipulation entered into by the parties hereto.

DONE and ENTERED this 5th day of June, 1992, at Tallahassee, Florida.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SC 278-9675

Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 1992.

COPIES FURNISHED:

Stephan P. Lange, Esquire

7 Southeast 13 Street

Fort Lauderdale, Florida 33316

Henri C. Cawthon, Assistant General Counsel Department of State

Division of Licensing The Capitol, MS #4

Tallahassee, Florida 32399-0250

Honorable Jim Smith Secretary of State The Capitol

Tallahassee, Florida 32399-0250

Phyllis Slater General Counsel Department of State Division of Licensing The Capitol, PL-02

Tallahassee, Florida 32399-0250

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, DIVISION OF LICENSING,

Petitioner,

vs. CASE NO. 91-6440

BROWARD MOTOR ESCORT, DAVID SCHLESNER, OWNER,

Respondent.

/

FINAL ORDER

This cause came before the Department of State, Division of Licensing, for consideration and final agency action. On June 5, 1992, a Recommended Order was submitted by Linda M. Rigot, a duly assigned Hearing Officer of the Division of Administrative Hearings. A copy of the Recommended Order is attached hereto.

Neither party filed objections.

FINDINGS OF FACT

1. The Department hereby adopts and incorporates herein by reference the Findings of Fact in the Recommended Order.

   
   

   CONCLUSIONS OF LAW

   
   

2. The Department rejects the Conclusions of Law in the Recommended Order and finds as follows:

   
   

3. The Division of Administrative Hearings had jurisdiction over the parties and the subject matter pursuant to Section 120.57(1), Florida Statutes.

4. Whether or not the Department of State has jurisdiction of this matter pursuant to Section 493.6121, F.S., is at issue. Respondent maintains that when he acts as an escort for funeral processions for consideration, he is not providing security services and therefore does not require licensure under Chapter 493, F.S., as a security agency or a security guard. For the following reasons, the Department finds that it is the legislature's intent that Respondent's activities be regulated under Chapter 493, F.S.

   
   

5. The definitions of "security agency" and of "security officer" in Section 493.6101, F.S., are as follows:

   
   

   1. "Security agency" means any person who, for consideration, advertises as providing or

      is engaged in the business of furnishing security services, armored car services, or transporting prisoners. This includes any person who utilizes dogs and individuals to provide security services.

   2. "Security officer" means any individual who, for consideration, advertises as providing or performs bodyguard services or otherwise guards persons or property; attempts to prevent theft or unlawful taking of goods, wares, and merchandise; or attempts to prevent the misappropriation or concealment of goods, wares or merchandise, money, bonds, stocks, choses in action, notes, or other documents, papers, and articles of value or procurement of the return thereof. The term also includes armored car personnel and those personnel engaged in the transportation of prisoners.

   
   

6. The controlling language can be found in Section 493.6101(19) which states, in pertinent part, that a "security officer" is any individual who ". .

   . for consideration, advertises as providing or performs bodyguard services or otherwise guards persons or property. . ." According to the stipulated facts, Respondent performs his duties wearing a uniform and riding a motorcycle with flashing or amber yellow lights. Obviously, this allows him to serve as a warning to other vehicular and pedestrian traffic that a funeral procession is near. Pursuant to Section 316.1974, F.S., Respondent may position himself in an intersection while the procession moves uninterrupted through a stop sign or red traffic light. Prior to the procession clearing the intersection, he may advance to; or position himself in anticipation of, the next traffic intersection. Clearly, Respondent is being paid to provide for an orderly and safe funeral procession.

   
   

7. For purposes of interpreting legislative intent, the following definitions are instructive:

   
   

   safety 1. The condition of being safe; freedom from danger, risk, or injury . American Heritage Dictionary, 2d College Ed. (1985), pg. 1084.

   security 1. Freedom from risk or danger; safety. 2. Freedom from doubt, anxiety, or fear; confidence. 3. Something that gives or assures safety

   American Heritage Dictionary, 2d College Ed. (1985), pg. 1109.

   escort 1. One or more persons accompanying another to guide, protect, or to pay honor. .

   3. A. One or more vehicles accompanying another vehicle to guide, protect, or honor its passengers. . .

   American Heritage Dictionary, 2d College Ed. (1985), pg. 465.

   guard 1. To protect from harm or danger, esp. by careful watching; keep secure; guard a bank; guarding the President. . . 5. Archaic. To escort.

   American Heritage Dictionary, 2d College Ed. (1985), pg. 580.

   
   

   Not only are the words "safety" and "security" synonymous, the words "guard" and "escort" are interchangeable as either verbs or nouns. In the least, Respondent is advertising the services of a security officer or agency by using the word "Escort" in his business name.

   
   

8. It is clear from a reading of Chapter 493, F.S. and Chapter 1C-3, F.A.C., that the legislature intends for licensed security officers, whether armed or unarmed, to protect persons or property by serving as a deterrent to dangerous, destructive or criminal acts. A funeral procession which may legally traverse intersections against the direction of traffic control devices is an unusual and potentially dangerous situation which requires an added duty of care on the part of those involved. However, the fact that a funeral director or lead vehicle may not be held liable for damages in a civil action has nothing to do with whether or not he is providing a security Service--nothing in the definition of "security agency" or "security officer" refers to a duty of care. In fact, one of the primary reasons for hiring a licensed security agency is to protect persons and property against those who might breach a duty of care.

   
   

9. State and local authorities have original jurisdiction to regulate and enforce traffic laws through law enforcement officers. Sections 360.008 and 321.05, F.S. It is for this reason that law enforcement is often called upon to escort funeral processions. However, an off-duty "officer" as that term is defined in Section 943.10(14), F.S., is exempt from licensure Chapter 493 if he has the approval of his superiors. Section 493.6102(1), F.S. 1/ Not being in law enforcement, Respondent does not meet this exemption.

   
   

10. If Respondent were not an independent contractor, and was instead an employee of a licensed funeral director regulated by the Department of Professional Regulation, he would be exempt from licensure under Chapter 493 pursuant to Section 493.6102(4), F.S. However, as an independent contractor he does not come under the jurisdiction of Chapter 470, F.S., and thus does not meet the aforementioned exemption.

    
    

11. Under the circumstances, Respondent is clearly performing a security service and doing so for consideration. He must therefore cease and desist all such activities until licensed in accordance with Chapter 493, F.S.

WHEREFORE, based upon the Foregoing, it is ORDERED that the following disciplinary action is imposed:

As to Count I, Respondent must cease performing the activities complained of until properly licensed and shall pay an administrative fine in the amount of

$1,000.00 dollars for having violated Section 493.6118(1)(g), F.S. (1990), formerly Section 493.319(1)(g), (1989), F.S.

As to Counts II through VI, Respondent shall pay an administrative fine in the amount of $250.00 dollars in accordance with the Stipulation and Settlement entered into between the parties on April 30, 1992, a copy of which is attached hereto and incorporated by reference.

Counts II through VI are hereby DISMISSED in accordance with the Stipulation and Settlement entered into between the parties on April 30, 1992.

The Administrative fine of $1,250.00 dollars must be paid to the Department of State, Division of Licensing, within thirty days of this date and must be made by certified check or money order. Failure to tender payment in a timely manner shall result in the automatic suspension of any licenses held by Respondent or the denial of any applications for licensure.

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 Procedures, with the Clerk of the Department of State, Division of Licensing, The Capitol, Mail Station #4, 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 Appeal in the appellate district where the party resides. The Notice of Appeal must be filed within thirty (30) days of the day this Order is filed with the Clerk of the Department.

DONE AND ORDERED this 2nd day of September 1992.

John M. Russi, Director Division of Licensing

ENDNOTE

1/ But see Section 493.6306, F.S., which requires the registration of uniformed proprietary security officers as defined in Section 493.6102(23), F.S.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing has been furnished by U.S. Mail to Stephen P. Lange, Lange & Lange, P.A., 7 Southeast 13 Street, Ft.

Lauderdale, Florida 33316, this 2nd day of September, 1992.

Benjamin E. Poitevent Assistant General Counsel Department of State Division of Licensing

The Capitol, M.S. #4 Tallahassee, Florida 32399-0250

Docket for Case No: 91-006440

Orders for Case No: 91-006440