STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 91-8252

) DOS NO. C91-01905

L & D SECURITY, INC., ) EINAR E. DYSVIK, PRESIDENT, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Panama City, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on May 4, 1992. The Division of Administrative Hearings received the hearing transcript on May 13, 1992.

APPEARANCES

Henri C. Cawthon, Esquire For Petitioner: The Capitol, MS #4

Tallahassee, Florida 32399-0250

Charles S. Isler, III, Esquire For Respondent: Isler & Banks, P.A.

P.O. Drawer 430

Panama City, Florida 32402 STATEMENT OF THE ISSUES

Whether petitioner should take disciplinary action against respondent's licenses for the reasons alleged in the administrative complaint?

PRELIMINARY STATEMENT

By administrative complaint dated December 3, 1991, petitioner alleged that respondent, who holds "a Class 'B' Security Agency License . . . a Class 'DS' Security Officer School/or Training Facility License . . . a Class 'D' Security Officer License . . . [a] Class 'DI' Security Officer Instructor license . .

. and a class 'MB' Manager Security Agency license" "[o]n or about March 20, 1991 . . . failed to teach an approved curriculum as required by Rule 1C-3, Florida Administrative Code and Section 493.6304(3), Florida Statutes . . . in violation of Section 493.6118(1)(s), Florida Statutes"; falsely certified "the completion of required training . . . in violation of Section 493.6118(1)(f), Florida Statutes"; and failed "to provide students the hours of instruction required by Rule 1C-3.034(1), Florida Administrative Code . . . in violation of Section 493.6118(1)(f), Florida Statutes."

FINDINGS OF FACT

1. At all material times, respondent has held a registered Class "B" Security Agency License, No. B86-00092, a Class "DS" Security Officer School/or Training Facility License, No. DS90-00069, a Class "D" Security Officer License, No. D85-2333, a Class "DI" Security Officer Instructor License, No. DI88-00012, and a Class "MB" Manager Security Agency License, No. MB86-00105.

   
   

2. On March 20, 1991, Ella Verdell Green, Earl H. Hamilton, Sr., Paul Hudson Morris, and Joe Garcia, Jr. took a course from respondent's William Dysvik, a licenced instructor (T.55), and received certificates of completion "as part of the requirements for a Class 'D' license." Petitioner's Exhibit No.

1. The course lasted eight hours, (T.17, 19, 41) 50 minutes of each hour being devoted to instruction. T.56.

   
   

   1. It began with Mr. Dysvik's talking to the class about security, (T.22), after which he passed out pamphlets which he and the class "went through."

      Id. After about 30 minutes, he told the students to study the pamphlets and invited questions. Ms. Green and others asked him several. T.32. That afternoon, a test was administered and discussed. The instructor "seemed just like a school teacher." T.35.

      
      

   2. He took his responsibilities seriously, and taught the approved curriculum in its entirety. T.42. Every 15 or 30 minutes, he left the classroom for five minutes. T.47. Part of the time he was out of the classroom he was preparing handouts. T.45, 47. As the day progressed, he and the class discussed each chapter of the materials. T.46.

      
      

      CONCLUSIONS OF LAW

      
      

   3. Since the Department of State referred respondent's hearing request to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1990 Supp.), "the division has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1990 Supp.).

      
      

   4. License revocation proceedings have been said to be "'penal' in nature." State ex rel. Vining vs. Florida Real Estate Commission, 281 So.2d 487, 491 (Fla. 1973); Kozerowitz vs. Florida Real Estate Commission, 289 So.2d

      391 (Fla. 1974); Bach vs. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979) (reh. den. 1980). Strict procedural protections apply in disciplinary cases, and the prosecuting agency's burden is to prove its case clearly and convincingly. Ferris vs. Turlington, 510 So.2d 292 (Fla. 1987).

      See Addington vs. Texas, 441 U.S. 426 (1979); Ferris vs. Austin, 487 So.2d 1163 (Fla. 5th DCA 1986); Anheuser-Busch, Inc. vs. Department of Business Regulation,

      393 So.2d 1177 (Fla. 1st DCA 1981); Walker vs. State Board of Optometry, 322 So.2d 612 (Fla. 3rd DCA 1975); Reid vs. Florida Real Estate Commission, 188 So.2d 846, 851 (Fla. 2nd DCA 1966).

      
      

   5. A licensee's breach of duty justifies revocation only if the duty has a "substantial basis," Bowling vs. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981) in the evidence, unless applicable statutes and rules create a clear duty, which the evidence shows has been breached. Here petitioner relies on a statutory proscription against "fraud or deceit, or of negligence, incompetency or misconduct" Section 493.6118(1)(f), Florida Statutes (1991), and various rule requirements not one of which was shown to have been violated.

RECOMMENDATION

It is, accordingly, RECOMMENDED:

That petitioner dismiss the administrative complaint it filed against respondent in this matter.

DONE and ENTERED this 26th day of June, 1992, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 1992.

COPIES FURNISHED:

Henri C. Cawthon, Esquire The Capitol, MS #4 Tallahassee, FL 32399-0250

Charles S. Isler, III, Esquire Isler & Banks, P.A.

P.O. Drawer 430

Panama City, FL 32402

Honorable Jim Smith, Secretary Department of State

The Capitol

Tallahassee, FL 32399-0250

Phyllis Slater, General Counsel Department of State

The Capitol, PL-2 Tallahassee, FL 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. 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: 91-008252

Orders for Case No: 91-008252