STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 93-4981

)

RONALD W. CONE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, Don W. Davis, a duly designated Hearing Officer of the Division of Administrative Hearings, held a formal hearing in the above-styled case on January 27, 1994, in Gainesville, Florida.

APPEARANCES

For Petitioner: Richard R. Whidden, Jr.

Attorney at Law Department of State Division of Licensing

The Capitol, Mail Station No. 4 Tallahassee, Florida 32399-0250

For Respondent: Ronald W. Cone, Pro Se

Post Office Box 447 Crawfordville, Florida 32326

STATEMENT OF THE ISSUES

The issue for determination is whether Respondent committed violations of provisions of Chapter 493, Florida Statutes, sufficient to justify the imposition of disciplinary action against Respondent's Class "D" Security Officer License and Respondent's Class "G" Statewide Firearm License.

PRELIMINARY STATEMENT

By Administrative Complaint August 5, 1993, Petitioner's representative informed Respondent of proposed disciplinary action with regard to Respondent's Class "G" Statewide Firearm License. Respondent subsequently requested a formal administrative hearing and the matter was transferred to the Division of Administrative Hearings to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

On November 10, 1993, Petitioner filed a motion to amend the Administrative Complaint to include the imposition of sanctions against Respondent's Class "D" Security Officer License. The motion was unopposed and subsequently granted by order of the undersigned dated November 24, 1993.

At the hearing, Petitioner presented the deposition testimony of two witnesses and three other exhibits. Respondent testified on his own behalf, but offered no evidentiary exhibits. Neither party requested a transcript of the final hearing.

Proposed findings of fact submitted by the parties are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Respondent is Ronald W. Cone. Respondent holds Class "D" Security Officer License No. D89-03534 which expired on February 21, 1993. Subsequently, Respondent applied for renewal of the Class "D" Security Officer License in August, 1993. The renewal was granted by Petitioner.

   
   

2. As stipulated by the parties at the final hearing, Respondent has, at all times pertinent to these proceedings, held a Class "G" Statewide Firearm License.

   
   

3. From February 21, 1993, to April 12, 1993, Respondent performed his duties as an armed security officer at the Independent Life Insurance Building in Jacksonville, Florida. The building was open to the public at the time.

   
   

4. On April 9, 1993, at approximately 2:30 p.m., Respondent arrived for work at his guard station in the center of the 80 foot vaulted ceiling lobby to the building. The acoustics of the lobby are such that a dime can be heard hitting the floor all the way across the area on a quiet day when there are few people in the facility, as was the case on April 9, 1993, at about 4:00 p.m. when Respondent decided to delve into his brown bag lunch.

   
   

5. Leaving his subordinate, an unarmed security guard named William C. Piersky, on duty at the guard station, Respondent went to a restaurant area located in the lobby of the building approximately 125 feet from the guard station to eat his late lunch. The restaurant, operated by Morrison's Cafeteria, Inc., was closed at the time. The area was separated from the rest of the lobby by small partitions that stood three to four feet tall. Piersky was unable to see Respondent. A short time later, Piersky heard a loud report which he presumed was the discharge of a firearm. Although Piersky concluded the discharge he heard came from a firearm, his testimony is not credited on this point in view of his admitted unfamiliarity with bullets containing "birdshot", his admitted lack of involvement with firearms in previous security employment, and his present employment in the position previously held by Respondent.

   
   

6. Respondent's testimony at final hearing was candid, worthy of belief and establishes that what Piersky really heard was not a firearm discharge. Rather, the loud report resulted from Respondent's action of blowing up and popping his paper lunch bag in an area with extreme acoustical sensitivity. Respondent admits that he was having fun at Piersky's expense and that when he returned to the guard station in the center of the lobby he remarked "can't believe I missed that bird."

   
   

7. The reference to a bird was the sparrow that had found its way into the building. The bird had eluded capture by building maintenance personnel. Respondent's candid testimony establishes that he did not discharge his service revolver at the bird and that he did not load the weapon with a form of nonstandard ammunition known as birdshot on the day in question.

8. In furtherance of his claim that a firearm had discharged, Piersky did an incident report on the matter. Three days later Respondent was fired. Piersky, previously an unarmed contract guard, now works as an armed security guard supervisor directly for Independent Life Insurance Company, as did Respondent prior to his termination.

   
   

9. During the period of February 14, 1993 through April 12, 1993, Respondent performed duties as a security officer and armed security officer while his Class "D" license was expired. Upon receipt of a renewal notice and during his employment with Independent Life, Respondent's practice was to give that notice to the building manager's secretary to handle administratively. This had been a normal practice for licensed security guards during

   Respondent's employment with Independent Life. He followed this practice in the present instance and thought at the time that his license was renewed.

   Following his termination of employment and discovery of his license expiration, Respondent proceeded to obtain license renewal.

   
   

   CONCLUSIONS OF LAW

   
   

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

    
    

11. The evidence of Respondent's guilt of the violations alleged in the Amended Administrative Complaint must be clear and convincing. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

12. Count I and Count II of the Amended Administrative Complaint contain the allegations that Respondent performed services as a security officer and armed security officer from February 21, 1993, until April 30, 1993, after expiration of his Class "D" Security Officer License. Section 493.6118(1)(g), Florida Statutes, proscribes the conduct of regulated security activities without a license. Respondent admits that he has violated Section 493.6118(1)(g), Florida Statutes, albeit unintentionally, inasmuch as he believed his license had been renewed by the building manager's secretary in accordance with long standing practice. Respondent's position is well stated, but unpersuasive. The verification of license renewal rested with Respondent. Respondent is guilty of violation of Section 493.6118(1)(g), Florida Statutes, as alleged in the Amended Administrative Complaint.

    
    

13. There is no eyewitness to any attempt by Respondent to shoot the bird in question. In the absence of clear and convincing evidence, the defense of Respondent that he was clowning around and burst a paper bag is plausible and credible. Respondent is not guilty of Count III of the Amended Administrative Complaint which alleges that he shot his service revolver at a sparrow while on duty April 9, 1993.

    
    

14. Count IV of the Amended Administrative Complaint alleges that Respondent carried a firearm loaded with other than standard ammunition while in the performance of regulated duties. The sole evidence presented in support of this allegation is the deposition testimony of William Piersky, who admits he has no familiarity with such ammunition and had not been involved with guns in the provision of security services for some years. Respondent's direct testimony denying that he loaded his weapon with such ammunition on the date in question is more creditable and establishes that Respondent is not guilty of violation of Section 493.6115(6), Florida Statutes, as set forth in Count IV of the Amended Administrative Complaint.

15. Since the proof fails to establish that Respondent discharged his weapon either at the bird in question or otherwise on April 9, 1993, Respondent is also not guilty of the allegation in Count V of the Amended Administrative Complaint that he violated provisions of Section 493. 6115(9), Florida Statutes, by failing to report the discharge of his weapon within five working days of the incident.

    
    

16. Pursuant to Section 493.6118(2), Florida Statutes, and disciplinary guidelines contained in Rule 1C-3.113(1)(b)1., Florida Administrative Code, Petitioner recommends that Respondent be fined $100 for the violation contained in Count I of the Amended Administrative Complaint, as well as $100 for the violation alleged in Count II of the Amended Administrative Complaint.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered finding Respondent not guilty of allegations contained in Counts III, IV and V of the Amended Administrative Complaint, and it is

FURTHER RECOMMENDED that such final order find Respondent guilty of allegations contained in Count I and Count II of the Amended Administrative Complaint and impose an administrative fine of $100 for each violation.

DONE AND ENTERED this 21st day of February, 1994, in Tallahassee, Leon County, Florida.

DON W. DAVIS

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 21st day of February, 1994.

APPENDIX TO CASE NO. 93-4981

The following constitutes my ruling pursuant to Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties.

Petitioner's Proposed Findings

1.-5. Accepted, though not verbatim.

6.-7. Rejected, weight of the evidence.

1. Adopted by reference.

2. Rejected, weight of the evidence.

3. Adopted by reference.

11.-12. Rejected, relevance.

1. Adopted, though not verbatim.

2. Rejected, weight of the evidence.

Respondent's Proposed Findings

In Respondent's posthearing submission, he basically pleads guilty to the allegations contained in Count I and Count II of the Amended Administrative Complaint and not guilty to the remaining counts. Accordingly, further comment is not required.

COPIES FURNISHED:

Richard R. Whidden, Jr. Attorney at Law Department of State Division of Licensing The Capitol, M.S. #4

Tallahassee, Florida 32399-0250

Ronald W. Cone

Post Office Box 447 Crawfordville, Florida 32326

Honorable Jim Smith Secretary of State The Capitol

Tallahassee, FL 32399-0250

Phyllis Slater General Counsel The Capitol, PL-02

Tallahassee, FL 323999-0250

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: 93-004981

Orders for Case No: 93-004981