STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, DIVISION ) OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 94-0486

)

ALERT SECURITY SERVICES, ) CHRISTOPHER J. MARAIA, JR., )

)

Respondents, )

)

RECOMMENDED ORDER

A hearing was held in this case in St. Petersburg, Florida on March 10, 1994, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Richard R. Whidden, Jr., Esquire

Assistant General Counsel Department of State Division of Licensing

The Capitol, Mail Stop 4 Tallahassee, Florida 32399-0250

For Respondent: Was neither present nor represented.

STATEMENT OF THE ISSUES

The issue for consideration in this case is whether Respondents' Class B, Class D, Class G and Class MB security licenses should be disciplined because of the matters alleged in the Administrative Complaint.

PRELIMINARY MATTERS

By an Administrative Complaint dated October 15, 1993, the Director of the Department of State's Division of Licensing, (Division), charged Respondent with several alleged violations of Section 493.6118(1), Florida Statutes, by failing to report the hiring of two employees; failing to report the discharge of a firearm in the course of his duties within 5 days; carrying an unauthorized firearm in the performance of his duties; performing the duties of a security officer while not in uniform; impersonating a law enforcement officer of the state; and carrying a firearm which was not required by his duties. Respondent originally requested an informal hearing, but when, before the scheduled hearing, Respondent denied material facts alleged in the Complaint, the informal hearing was cancelled, and the matter referred to the Division of Administrative

Hearings for assignment of a Hearing Officer. By Notice of Hearing dated February 23, 1994, the undersigned set the matter for hearing in St. Petersburg on March 10, 1994.

The day of the hearing, the undersigned was advised that late the previous afternoon, Respondent had contacted the undersigned's secretary to indicate the Division had it in for him and had already made up its mind as to the outcome, and he would not appear for the hearing. The undersigned's secretary assured Respondent that a fair hearing would be afforded him and it was to his benefit for him to appear at the hearing and present his side of the dispute.

Before the hearing, Petitioner's counsel related his secretary had also received a call from Respondent the prior afternoon, subsequent to counsel's departure from Tallahassee for the hearing site, to indicate he would not appear. Nonetheless, in the event Respondent had changed his mind and decided to appear but was held up in traffic, the undersigned delayed the commencement of the hearing for fifteen minutes. When Respondent did not appear, the hearing was held in his absence.

At the hearing, Petitioner presented the testimony of Keith Stillwagen, a licensed security guard; Peter F. Walker, assistant manager of a convenience store; Angela Cole and Vance Nussbaum, patrolmen with the Indian Shores Police Department; Earl D. Williams, Chief, Indian Shores Police Department; Howard Skaggs, a Deputy Sheriff in Pinellas County; and Gary Q. Floyd, an investigator with the Division. Petitioner also introduced Petitioner's Exhibits 1 through

11. Respondent did not appear, was not represented, and presented no evidence.

A transcript was not provided. Subsequent to the hearing, counsel for Petitioner submitted a Proposed Recommended Order which, however, specifically waived the Division's right to file Proposed Findings of Fact. Petitioner's submittal consisted primarily of Proposed Conclusions of Law and a recommendation as to the quantum of disciplinary action considered appropriate in this case. The Petitioner's submittals have been considered in the preparation of this Recommended Order. Respondent submitted nothing.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Department of State, Division of Licensing, was the state agency responsible for the licensing and regulation of private security guards and guard agencies in Florida. Respondent held a Class B Security Agency license, a Class D Security Officer license, a Class G Statewide Firearm license, and a Class MB Security Agency Manager license, all issued pursuant to and under the restrictions contained within the provisions of Chapter 493, Florida Statutes. Though the Class B Security Agency license was issued in the name of Alert Security Services, in reality, Respondent Maraia was the proprietor and operator of the agency under the license.

   
   

2. Peter F. Walker was employed as the assistant manager of the 7 - 11 convenience store in Indian Shores, Florida on July 21, 1993. About 11:30 PM, that evening, he observed Respondent in the store about 8 to 20 feet away, wearing his security guard uniform shirt with khaki shorts. A patch on the shoulder of the shirt bore the logo, "Alert Security."

   
   

3. As another customer was checking out, Mr. Walker heard a gunshot and then something hitting the floor. At this point, only Mr. Walker, his customer, and the Respondent were in the store. When Walker asked the Respondent about

   it, Respondent replied that a customer had come up behind him and was trying to take Respondent's weapon from the holster he had stuck in the waistband in the back of his shorts. Respondent claimed that when this happened, the clip from the weapon fell to the floor and one round in the clip went off. Later on, however, Respondent claimed the weapon had dropped and fired when it hit the floor. As Mr. Walker remembers it, however, he heard the shot before anything hit the floor.

   
   

4. Patrolman Angela Cole had just pulled into the 7 - 11 parking lot late on the evening of July 21, 1993 when she heard a pop - as if someone had run over a bottle. She checked around the area and seeing nothing unusual, went into the store where she saw the clerk and the Respondent, whom she knew. Respondent was wearing a security badge and carrying a 9 mm weapon in plain view. When Cole spoke with Respondent and asked him why he wasn't in proper security guard uniform, because his dress that evening was not consistent with his usual security uniform, he indicated he was not feeling well. In response to her inquiry regarding the noise she had heard, and why he had the weapon in plain view, Respondent claimed he had dropped his weapon and he and the clerk were joking about it. At this point, however, Respondent seemed nervous and didn't want to discuss the matter further.

   
   

5. Also about the same time, Patrolman Vance Nussbaum, of the Indian Shores Police Department entered the store to see Respondent, who had his 9 mm weapon in plain view and was wearing a security badge, engaged in conversation with the store clerk. The pistol was in a holster tucked into Respondent's pants in the back. Nussbaum took hold of the gun and shook it and then chastened Respondent for poor gun safety. At that point, Respondent indicated someone had just hit the magazine release on the weapon and the magazine fell to the floor. That individual was no longer in the area, however. Taken together, it is clear that on the evening in question, Respondent's 9 mm pistol, which was in his possession at the time, was somehow discharged. No report of this weapon discharge was ever filed with the Division, however.

   
   

6. On May 23, 1993, Officer Nussbaum responded to a call to the Holiday Villas II in Indian Shores. Upon his arrival at the scene, he saw June Hawks, who he knew to be a part-time security guard employed by Respondent, on duty in the resort's parking lot after a fire alarm had been sounded. This same activity was also observed, the following day, by E. D. Williams, Chief of the Indian Shores Police Department who presumed Ms. Hawks was working for Respondent. Chief Williams drew this conclusion because he had seen Respondent doing this work at the resort the night before and assumed the same firm was still in charge.

   
   

7. On August 2, 1993, Officer Nussbaum responded to a call to a Pick-Kwick in Madiera Beach based on a call about a drunk individual which call had come in to the Pinellas County Sheriff's Office from an individual who described himself as Chris "Myers", a reserve police officer with the Indian Shores Police Department. It is found that Chris "Myers" is, in actuality, the Respondent, Christopher Maraia, who had represented himself as a reserve police officer. This call was sent out to street units for response, thereby impacting on police operations in the area. When Nussbaum arrived at the scene, he observed Respondent, fully dressed in the uniform of a security guard, with patches, badge and weapon, in the company of a Madiera Beach Police Officer. At one time, Respondent had been a reserve officer with the Indian Shores Police Department but that status had terminated in December 1992.

8. Keith Stillwagen had been employed by Mr. Maraia, off and on, for several years, but worked for him primarily as a security guard at the 34th Street Food Lion market in St. Petersburg between January and March, 1993. He was hired by Mr. Maraia personally, and the identification card Maraia issued to him bore Maraia's signature and license number. This employment was not reported to the Division as required.

   
   

9. These allegations were investigated by Gary Floyd, an investigator with the Department of State, who initially interviewed Respondent regarding the alleged hiring of Ms. Hawks and Mr. Stillwagen. In a sworn statement to the investigator, Respondent indicated Alert Security Services had hired Stillwagen on weekends from January to March, 1993, and had also employed Hawks on holidays between April and June, 1993. He admitted that the firm did not notify the Department of State about the hirings and could give "no good reason" for failing to do so as required.

   
   

10. In another sworn statement given to Investigator Floyd, Respondent indicated he had worked at Holiday Villas II on July 21, 1993 and had, while out of uniform but wearing a badge on his belt, visited a nearby 7 - 11 store. He admitted that at the time he had a 9 mm pistol with him and it had accidentally discharged when he dropped it. Respondent denied anyone had grabbed for the weapon. He did not report the discharge.

    
    

11. On August 9, 1993, Floyd took a third statement from Respondent in which he admitted making the call about the drunk and initially indicating he was a reserve police officer with the Indian Shores Police Department. He acknowledged this was not a true statement in that he had not held that status for a year and a half at the time.

    
    

12. The following day, August 10, 1993, Respondent reiterated his statement to Floyd that he had been at the 7 - 11 when leaving a duty station and claimed he was not in uniform at the time. While he may not have been in full uniform, other credible evidence of record indicates he was dressed in a uniform shirt which bore the patch of his security guard; was displaying a security officer's badge; and was armed. It is so found.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

14. Petitioner has alleged several violations of Chapter 493, Florida Statutes, by the Respondent. These include:

    
    

    1. Section 493.6112(2), Florida Statutes, which provides:

       Each agency or school shall, upon the employment or termination of employment of a licensee, report such employment or termination immediately to the department....

       
       

    2. Section 493.6115(9), Florida Statutes, which provides:

       Whenever a Class "G" licensee discharges his firearm in the course of his duties, he and the agency by which he is employed shall, within

       5 working days, submit to the department an explanation describing the nature of the incident, the necessity for using the firearm, and a copy of any report prepared by a law enforcement agency....

       
       

    3. Section 493.6115(6), Florida Statutes, which provides:

       Unless otherwise approved by the department, the only firearm a Class "CC", Class "D", Class "M", or Class "MB" licensee who has been issued a Class "G" license may carry is a standard police .38 caliber revolver with standard ammunition.

       
       

    4. Section 493.6305(1), Florida Statutes, which provides:

       Class "D" licensees shall perform duties regulated under this chapter in a uniform which bears at least one patch or emblem visible at all times clearly identifying the employing agency.

       
       

    5. Section 493.6118(1)(i), Florida Statutes, which prohibits an individual from:

       Impersonating, ..., a law enforcement officer or an employee of the state, the United States, or any political subdivision thereof by identifying himself as a federal, state, county, or municipal law enforcement officer

       or official representative....

       and

    6. Section 493.6115(3), Florida Statutes, which provides:

       No employee shall carry or be furnished a weapon or firearm unless the carrying of a weapon or firearm is required by his duties, nor shall an employee carry a weapon or firearm except in connection with those duties.

       
       

15. The burden of proof in this matter rests upon the Department to establish Respondent's violations by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292, (Fla. 1987).

    
    

16. Here, the evidence is both clear and convincing that Respondent failed to notify the Department as required when he hired Ms. Hawk and Mr. Stillwagen, as alleged in Count I of the Complaint. It is also abundantly clear that Respondent was in violation of the statute when he carried a 9 mm pistol instead of the approved .38 revolver, as alleged in Count III. It is further clear that Respondent improperly and unlawfully represented himself as a reserve police officer, as alleged in Count V; and that he carried his firearm into a location for which he was not providing security services, as alleged in Count VI.

    
    

17. The evidence is not so clear, however, even accepting that Respondent did not appear or present evidence on the merits, that Respondent had a duty to report the discharge of his weapon as alleged in Count II. The pertinent statute here requires a report when the "... licensee discharges his firearm in

    the course of his duties, ...." It would appear from the Division's allegations that it wants to bite from both sides of the bread in alleging he improperly carried a weapon other than in connection with his duties, (Count VI), and also that he failed to report a discharge "in the course of his duties." In fact, the evidence indicates that Respondent was not on duty at the time of the discharge and that he is guilty of the violation alleged in Count VI, but not that in Count II which requires a report of discharges in the course of duty.

    It is so concluded.

    
    

18. As to the allegation that Respondent was not in an adequate uniform (bearing a patch showing the name of the employing agency), when he was in the 7

    - 11 store, as alleged in Count IV, again, the evidence does not clearly establish the alleged violation. It has been established that Respondent was not on duty when in the 7 - 11 store, but in addition, the testimony of the store manager, who saw him there that evening, shows that even though scantily uniformed, his shirt did bear an agency patch which seems to meet the technical requirements of the statute. Consequently, it cannot be held that he was in violation of the statute in this particular.

    
    

19. In its Proposed Recommended Order, the Department evidences its intention to revoke Respondents' licenses and impose administrative fines in a measure specifically tailored for each Count. Those remaining, concerning which there is adequate evidence of liability, are Counts I, III, V, and VI. As to Count I, dealing with the failure to report the employment of the two guards, the Department suggests revoking of the agency license, (Class "B"), and the agency manager's license, (Class "MB"), and the imposition of a $200.00 fine.

    As to Count III, dealing with the carrying of an unlawful weapon, the Department suggests revocation of Respondent's Class "G" statewide firearm license, and a fine of $500.00. As to Count V, dealing with Respondent's impersonation of a law enforcement officer, the Department suggests revocation of the Class "D" security officer license and a $500.00 fine. As to Count VI, dealing with the carrying of a weapon outside of duty, the Department suggests a fine of $500.00.

    
    

20. In this case, Respondent has demonstrated a cavalier attitude toward the legal requirements of his profession which gives great cause for concern. This concern is amplified by the fact that Respondent was previously disciplined by the Division for misconduct, at least one count of which, the carrying of an unlawful weapon, is the subject of the instant action. From this background, and from the evidence presented at the instant hearing, it is abundantly clear that Respondent should not have the privilege of working in the licensed security field in this state, and his licenses should be revoked. It is unlikely, however, that a fine in the total amount of $1,700.00 would be paid or, for that matter, would have any salutary effect on Respondent. A lesser fine would be sufficient.

    
    

21. In its Administrative Complaint, the Division charges not only Respondent, Maraia, but also the agency he operates. The evidence of record, however, relates primarily to the individual misconduct of Mr. Maraia, and the only misdeed attributable to the agency is the failure to report the hiring of Ms. Hawks and Mr. Stillwagen. This is not conduct serious enough to warrant revocation of the agency license.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that a Final Order be issued in this case, dismissing Counts II and IV of the Administrative Complaint, but finding Respondent, Maraia, guilty of Counts III, V and VI thereof and Respondent, Alert Security Services, guilty of Count I. It is also recommended that the Class "D", "G", and "MB" security licenses held by Respondents, Christopher J. Maraia, Sr. be revoked; that the C lass "B" license held by Respondent, Alert Security Services, be suspended for one year; and that Respondents jointly and severally pay an administrative fine of $500.00.

RECOMMENDED this 31st day of March, 1994, in Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 31st day of March, 1994.

COPIES FURNISHED:

Richard R. Whidden, Jr., Esquire Assistant General Counsel Department of State

Division of Licensing The Capitol, Mail Stop 4

Tallahassee, Florida 32399-0250

Christopher J. Maraia, Sr. Alert Security Services 15518 Redington Drive,

Redington Beach, Florida 33708

Honorable Jim Smith Secretary of State The Capitol

Tallahassee, Florida 32399-0250

Phyllis Slater General Counsel Department of State The Capitol

Plaza Level 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 consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.

Docket for Case No: 94-000486

Orders for Case No: 94-000486