STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 93-6941

)

JUAN D. FAJARDO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on February 2, 1994, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Henri C. Cawthon, Esquire

Department of State, Division of Licensing The Capitol, Mail Station #4

Tallahassee, Florida 32399-0250

For Respondent: C. Ernest Rennella, Esquire

2524 Northwest 7th Street Miami, Florida 33125

STATEMENT OF THE ISSUES

1. Whether Respondent committed the violation alleged in the Administrative Complaint?

   
   

2. If so, what disciplinary action should be taken against him?

PRELIMINARY STATEMENT

On November 8, 1993, the Department of State, Division of Licensing (hereinafter referred to as the "Department") issued a one-count Administrative Complaint against Respondent, who holds a Class "D" security license and a Class "G" statewide firearms license, alleging that "[o]n or about June 23, 1993 in Dade County, Florida, Respondent committed misconduct in the practice of activities regulated under Chapter 493, Florida Statutes, in that he shoplifted merchandise from a client while he was on duty, . . . in violation of Section 493.6118(1)(f), Florida Statutes." Respondent denied the allegations of wrongdoing advanced in the Administrative Complaint and requested a formal hearing. On December 8, 1993, the Department referred the matter to the Division of Administrative Hearings (hereinafter referred to as the "Division") for the assignment of a Division hearing officer to conduct the formal hearing Respondent had requested.

At the hearing that was held in the instant case, the parties presented the testimony of a total of four witnesses: Olga Campos-Campbell, an employee of the store where the alleged shoplifting incident occurred; Sylvia Malgarejo, one of the store's customers on the day of the incident; Kent Jurney, the husband of the owner of the business for which Respondent worked at the time of the incident; and Respondent. No other evidence was offered.

At the conclusion of the evidentiary portion of the hearing, the Hearing Officer, on the record, advised that the parties had the right to file post- hearing submittals and established a deadline, 20 days from the date of the Division's receipt of the transcript of the hearing, for the filing of such submittals with the Division. The hearing transcript was filed with the Division on February 16, 1994. Respondent and the Department filed their post- hearing submittals with the Division on February 25, 1994, and February 28, 1994, respectively.

Both the Department's and Respondent's post-hearing submittals have been carefully considered by the Hearing Officer. Respondent's submittal contains what are labelled as "findings of facts." These "findings of facts" proposed by Respondent are specifically addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, the parties' stipulations, and the record as a whole, the following Findings of Fact are made:

1. The Department is a state government licensing and regulatory agency.

   
   

2. Respondent is now, and has been at all times material to the instant case, the holder of a Class "D" security guard license and a Class "G" statewide firearms license.

   
   

3. He has held the former license since May of 1990 and the latter license since September of that year.

   
   

4. He has never before been disciplined by the Department.

   
   

5. From October of 1991, until June 23, 1993, Respondent was employed by Certified Security Services, Incorporated (hereinafter referred to as "Certified"), a business which provides armed and unarmed security services.

   
   

6. Among Certified's clients during the period of Respondent's employment was Winn-Dixie Store No. 343 (hereinafter referred to as "Store 343"), located at 14900 Northwest 6th Avenue in Miami, Florida.

   
   

7. Respondent was assigned by Certified to work as a uniformed security guard at Store 343.

   
   

8. He regularly drove a cashier at the store named Maria home from work in his car.

   
   

9. On the afternoon of June 23, 1993, at around 1:00 or 2:00 p.m., Respondent was standing in the store parking lot conversing with a patron of the store, Sylvia Malgarejo, when he was approached by Maria, who was carrying a package containing a box of Pampers and a bottle of cooking oil.

10. Respondent had no reason to, nor did he, believe that Maria had misappropriated these items from the store.

    
    

11. Maria asked Respondent to put the package in his car. Respondent complied with Maria's request. He then continued his conversation with Malgarejo.

    
    

12. The conversation did not last long.

    
    

13. Olga Campos-Campbell, the store's general merchandise manager, had reported to the store manager that Respondent had shoplifted merchandise from the store.

    
    

14. Campos-Campbell and Respondent had an ongoing feud concerning the scope of Respondent's job responsibilities. Campos-Campbell frequently asked Respondent to do things that he believed were outside the scope of his duties as a security guard, and an argument between the two invariably ensued.

    
    

15. Based upon Campos-Campbell's erroneous report, the store manager had Respondent detained. Kent Jurney, who assisted the owner of Certified, his wife, in running the business, was contacted and advised of the situation.

    
    

16. Jurney responded by going to the store with Certified's general manager, Bill Banco, and confronting Respondent.

    
    

17. Respondent's native language is Spanish. Jurney, on the other hand, does not speak or understand Spanish. He communicates in English. Respondent's ability to communicate in English, however, is limited.

    
    

18. Respondent tried to explain to Jurney in English how he had come into possession of the Pampers and cooking oil, but Jurney misunderstood him and mistakenly thought that Respondent was admitting that he had stolen the items from the store.

    
    

19. Accordingly, he advised Respondent that Respondent's employment with Certified was being terminated effective immediately.

    
    

20. The police were also contacted. The police officer who responded to the scene cited Respondent for shoplifting.

    
    

    CONCLUSIONS OF LAW

    
    

21. The Department is statutorily empowered to take disciplinary action against licensees, such as Respondent, based upon any of the grounds enumerated in Section 493.6118(1), Florida Statutes. Such disciplinary action may include one or more of the following penalties: license denial; license revocation; license suspension; imposition of an administrative fine not to exceed $1,000 for each count or separate offense; issuance of a reprimand; and placement of the licensee on probation. Section 493.6118(2), Fla. Stat.

    
    

22. Where the disciplinary action sought is the revocation or suspension of the licensee's license, the proof of guilt must be clear and convincing. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Pic N' Save v. Department of Business Regulation, 601 So.2d 245 (Fla. 1st DCA 1992); Munch v. Department of Professional Regulation, 592 So.2d 1136 (Fla. 1st DCA 1992); Newberry v. Florida Department of Law Enforcement, 585 So.2d 500 (Fla. 3d DCA 1991). "The evidence must be of such weight that it produces in the mind of the trier of

    fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

    
    

23. Where the discipline does not involve the loss of licensure, the licensee's guilt need be established by only a preponderance of the evidence. See Allen v. School Board of Dade County, 571 So.2d 568, 569 (Fla. 3d DCA 1990).

    
    

24. Regardless of the disciplinary action taken, it may be based only upon the violations specifically alleged in administrative complaint. See Kinney v. Department of State, 501 So.2d 129, 133 (Fla. 5th DCA 1987); Hunter v. Department of Professional Regulation, 458 So.2d 842, 844 (Fla. 2d DCA 1984).

    
    

25. Furthermore, in determining whether Section 493.6118(1), Florida Statutes, has been violated in the manner charged in the administrative complaint, one "must bear in mind that it is, in effect, a penal statute. . . This being true the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it. Furthermore, if there are any ambiguities included such must be construed in favor of the . . . licensee." Lester v. Department of Professional and Occupational Regulations, 348 So.2d 923, 925 (Fla. 1st DCA 1977).

    
    

26. The Administrative Complaint issued in the instant case charges that Respondent should be disciplined for having violated Section 493.6118(1)(f), Florida Statutes, inasmuch as he, on or about June 23, 1993, "committed misconduct in the practice of activities regulated under Chapter 493, Florida Statutes, [by] shoplift[ing] merchandise from a client while he was on duty."

    
    

27. Section 493.6118(1)(f), Florida Statutes, authorizes the Department to discipline a licensee upon "[p]roof that the. . . licensee is guilty of fraud or deceit, or of negligence, incompetency, or misconduct, in the practice of the activities regulated under this chapter."

    
    

28. A licensed security guard who steals merchandise from a business for which he is supposed to be providing security services is subject to disciplinary action pursuant to Section 493.6118(1)(f), Florida Statutes.

    
    

29. The greater weight of the evidence in the instant case, however, establishes that, contrary to the allegations advanced in the instant Administrative Complaint, Respondent was in no way knowingly involved in the theft of any merchandise from the store at which he was working as a security guard on June 23, 1993. The items that the Department charges Respondent stole from the store that day were actually taken from the store by one of the cashiers, whom Respondent had agreed to drive home from work. After leaving the store with these items, the cashier gave them to Respondent with the request, with which Respondent complied, that he put them in his car for her. While it is unclear whether the cashier had paid for these items, even if she had not, Respondent would still not be guilty of any wrongdoing in connection with the misappropriation of these items inasmuch as he did not know, nor did he have reason to believe, at the time he had possession of them that the cashier had unlawfully taken them from the store without paying for them.

    
    

30. Because the Department has failed to prove by even a preponderance of the evidence its allegation that Respondent violated Section 493.6118(1)(f), Florida Statutes, the instant Administrative Complaint should be dismissed in its entirety.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Department enter a final order finding the evidence insufficient to establish that Respondent committed the violation of Section 493.6118(1)(f), Florida Statutes, alleged in the instant Administrative Complaint and dismissing the instant Administrative Complaint in its entirety.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 14th day of March, 1994.

STUART M. LERNER

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 14th day of March, 1994.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-6941

The following are the Hearing Officer's specific rulings on the "findings of facts" proposed by Respondent in his post-hearing submittal:

1. Accepted as true and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

2-5. Rejected as findings of fact because they are more in the nature of summaries of testimony elicited at hearing than findings of fact based upon such testimony.

COPIES FURNISHED:

Henri C. Cawthon, Esquire Department of State, Division

of Licensing

The Capitol, MS #4

Tallahassee, Florida 32399-0250

C. Ernest Rennella, Esquire 2524 Northwest 7th Street Miami, Florida 33125

Honorable Jim Smith Secretary of State The Capitol

Tallahassee, Florida 32399-0250

Phyllis Slater, Esquire 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 of time 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: 93-006941

Orders for Case No: 93-006941