STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, DIVISION ) OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 91-7802

)

MIGUEL ANGEL MOLINA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on June 12, 1992, in Miami, Florida.

APPEARANCES

For Petitioner: Henri C. Cawthon, Esquire

Assistant General Counsel Division of Licensing

The Capitol, M.S. #4 Tallahassee, Florida

32399-0250

For Respondent: No Appearance

STATEMENT OF THE ISSUE

Whether Respondent committed the offenses alleged in the Administrative Complaint and the penalties, if any, that should be imposed.

PRELIMINARY STATEMENT

Respondent is the holder of a Class "D" Security Officers License and a Class "G" Statewide Firearm Permit. On August 27, 1991, Petitioner filed a three count administrative complaint against Petitioner. Count I alleged that Respondent performed the services of a security officer after the expiration of his Class D license in violation of Section 493.6118(1)(g), Florida Statutes.

Count II alleged that Respondent performed the services of an armed security officer after the expiration of his Class G license in violation of Section 493.6118(1)(g), Florida Statutes. Count III alleged that Respondent uttered forged Class D and Class G licenses to obtain and perform employment in violation of Section 493.6118(1)(f), Florida Statutes.

Respondent denied the allegations of the administrative complaint and requested a formal proceeding. The notice of hearing was mailed to the Respondent's home address. Despite such notification, no appearance was made by or on behalf of Respondent at the formal hearing.

At the formal hearing, Petitioner presented the testimony of Maria Vilma Gonzalez and of Thomas Vincente. Ms. Gonzalez is the secretary of Florida Patrol and Security Guard Service, Inc., d/b/a Sunstate Security Patrol, one of Respondent's former employers. Mr. Vincente is an investigator employed by Petitioner. Petitioner presented four exhibits, each of which was accepted into evidence.

A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 22I-6.031, Florida Administrative Code. Rulings on the Petitioner's proposed findings of fact may be found in the Appendix to this Recommended Order. Respondent did not file a proposed recommended order.

FINDINGS OF FACT

1. On June 11, 1991, Respondent filed an employment application with Florida Patrol and Security Guard Service, Inc., d/b/a Sunstate Security Patrol. Respondent submitted to Maria Vilma Gonzalez, the secretary for Sunstate Security Patrol, photocopies of two documents. Respondent represented that one photocopy was of his Class D Security Officer License and that the other was a photocopy of his Class G Statewide Firearms Permit. The photocopy of the Class D license depicted a valid license with an expiration date of April 1, 1992.

   The photocopy of the Class G license depicted a valid license with an expiration date of March 4, 1992.

   
   

2. Respondent began working for Sunstate Security Patrol as an armed guard on June 11, 1991, and continued that work for approximately six weeks. He left that employ to take employment with Ventura Security Services. Respondent submitted the same documents to Ventura Security Services to show his licensure that he had submitted to Sunstate Security Patrol.

   
   

3. Respondent did not hold a valid Class D license or a Class G license on June 11, 1991, when he applied for employment with Sunstate Security Patrol, at any other time while he was employed by Sunstate Security Patrol, or when he applied for employment with Ventura Security Services. Respondent had been issued a Class D license that expired March 4, 1988. Respondent had been issued a Class G license that expired April 1, 1988.

   
   

4. The document that Respondent gave to Sunstate Security Patrol and to Ventura Security Services with his employment application purporting to depict a photocopy of a valid Class D license had been altered to reflect an erroneous expiration date. There was no competent evidence submitted at the formal hearing as to who altered the document, but it is clear that Respondent misrepresented his licensure status by submitting this altered document.

   
   

5. The document that Respondent gave to Sunstate Security Patrol and to Ventura Security Services with his employment application purporting to depict a photocopy of a valid Class G license had been altered to reflect an erroneous expiration date. There was no competent evidence submitted at the formal hearing as to who altered the document, but it is clear that Respondent misrepresented his licensure status by submitting this altered document. 1/

   
   

6. At the time of the formal hearing, Respondent held a "D" license and a "G" license. The "D" license has an issuance date of October 1, 1991, and an

   expiration date of July 31, 1993. The "G" license has an issuance date of October 1, 1991, and an expiration date of October 1, 1993.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

   
   

8. Section 493.6301, Florida Statutes, provides as follows:

   
   

   1. Any individual who performs the services of a security officer shall have a class "D" license.

   2. ... Class "D" licensees are permitted to bear a firearm, and any such licensee who bears a firearm shall also have a Class "G" license. 2/

      
      

9. Section 493.6118, Florida Statutes, provides, in pertinent part, as follows:

   
   

   1. The following constitute grounds for which disciplinary action specified in subsection (2) may be taken by the department against any ... applicant regulated by this chapter ...

      * * *

      1. Proof that the applicant or licensee is guilty of fraud deceit, or of negligence, incompetency, or misconduct, in the practice of activities regulated under this chapter.

      2. Conducting activities regulated under this chapter without a license or with a revoked or suspended license.

      * * *

   2. When the department finds any violation of subsection (1), it may do one or more of the following:

   * * *

   1. Impose an administrative fine not to exceed

      $1,000 for every count or separate offense.

   2. Place the licensee on probation for a period of time and subject to such conditions as the department may specify.

   3. Suspend or revoke a license.

   
   

10. Petitioner has established by clear and convincing evidence that Respondent violated the provisions of Section 493.6118(1)(f), Florida Statutes, by submitting altered documents to his employer and by misrepresenting the status of his licensure. Petitioner has also established by clear and convincing evidence that Respondent violated the provisions of Section 493.6118(1)(g), Florida Statutes, by working as an armed security officer while he did not have valid licenses.

    
    

11. In its proposed recommended order, Petitioner recommends that the licenses that were subsequently issued by Petitioner to Respondent be revoked. There is no recommendation that an administrative fine be imposed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which adopts the findings of fact

contained herein and which revokes all licenses issued by Petitioner to Respondent.

DONE AND ORDERED this 18th day of August, 1992, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1992.

ENDNOTES

1/ Petitioner's Exhibit Four includes a copy of a letter that Respondent had written on July 29, 1991, to Fred Speaker, the Petitioner's Regional Office Supervisor. In this letter, Respondent seeks to blame a former employer, Jose Louis Delgado, for altering the subject documents without his knowledge or permission. Respondent implies that Mr. Delgado duped him so that Mr. Delgado could pocket Respondent's renewal fee. This letter represents that Mr. Delgado has gone out of business and that his whereabouts were unknown to Respondent.

This letter is not competent evidence.

2/ A Class "G" license is the same as a Class "G" statewide firearm permit.

APPENDIX TO RECOMMENDED ORDER

The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner.

1. The proposed findings of fact in paragraphs 1 and 2 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in the first sentence of paragraph 3 are adopted in material part by the Recommended Order. The proposed findings of fact in the second sentence are not adopted because the record reflects that while the licenses were issued on October 1, 1991, it is not clear that the licenses were issued the same day the application was submitted.

3. The proposed findings of fact in paragraphs 4, 5, 6, 7, and 8 are rejected as being subordinate to the findings made.

COPIES FURNISHED:

Miguel Angel Molina

2726 Southwest 21 Street, #204

Miami, Florida 33145

Henri C. Cawthon, Esquire Division of Licensing The Capitol, MS #4

Tallahassee, Florida 32399-2789

Honorable Jim Smith Secretary of State Department of State The Capitol

Tallahassee, Florida 32399-0250

Phyllis Slater, General Counsel Department of State

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.

Docket for Case No: 91-007802

Orders for Case No: 91-007802