STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 94-1581

)

ESTEBAN D. ESPINOZA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on June 22, 1994, at Miami, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances for the parties at the hearing were as follows:

APPEARANCES

For Petitioner: Kristi Reid Bronson, Esquire

Assistant General Counsel Division of Licensing

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

For Respondent: Mr. Dimas E. Espinoza, pro se

449 Northeast 30th Terrace Miami, Florida 33137

STATEMENT OF THE ISSUES

This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations that he violated Section 493.6118(1)(f), Florida Statutes, by engaging in misconduct in the practice of activities regulated under Chapter 493, Florida Statutes.

PRELIMINARY STATEMENT

At the formal hearing on June 22, 1994, the Petitioner presented the testimony of two witnesses. The Petitioner did not offer any exhibits. The Respondent testified on his own behalf and offered two exhibits, both of which were received in evidence. The Respondent did not call any other witnesses.

At the conclusion of the hearing the parties were allowed ten days within which to file their respective proposed recommended orders. The Petitioner filed a timely proposed recommended order which contained proposed conclusions of law, but did not contain any proposed findings of fact. As of the date of this Recommended Order the Respondent has not filed any post-hearing document.

FINDINGS OF FACT

1. At all times material to this proceeding, the Respondent, Dimas Esteban Espinoza, 1/ held, and continues to hold, a Class "D" Security Officer License and a Class "G" Statewide Firearms License, both of which were issued pursuant to Chapter 493, Florida Statutes.

   
   

2. On or about September 30, 1993, the Respondent was employed as a security guard by South Florida Patrol and Investigative Services. On that date the Respondent was assigned by his employer to provide security services at a facility which was used by Dollar Car Rental to store rental automobiles owned by Dollar Car Rental. The Respondent and all other employees of South Florida Patrol and Investigative Services assigned to provide security services at the Dollar Car Rental storage facility had been specifically and explicitly instructed that they were prohibited from using any automobiles owned by Dollar Car Rental for any reason. They were also instructed that none of the client's automobiles were to leave the storage facility in the absence of paperwork from the Dollar Car Rental business office authorizing the automobile to leave the storage facility.

   
   

3. On or about September 30, 1993, at a time when the Respondent was providing security services at the Dollar Car Rental storage facility, the Respondent disregarded the instructions described above and used an automobile owned by Dollar Car Rental to drive to a nearby Burger King. The purpose of the trip was to attend to an urgent need to go to the bathroom. 2/ An employee of the Dollar Car Rental at the storage facility told the Respondent he could use the automobile for that purpose. The Dollar Car Rental employees at the storage facility did not have the ability to generate the necessary paperwork to authorize an automobile to be removed from the storage facility.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

5. Section 493.6118, Florida Statutes reads as follows, in pertinent part:

   
   

   1. The following constitute grounds for which disciplinary action specified in subsection (2) may be taken by the department against any licensee, agency, or applicant regulated by this chapter, or any unlicensed person engaged in activities regulated under this chapter.

      * * *

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

      * * *

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

      1. Deny an initial or renewal application for license.

      2. Issue a reprimand.

      3. Impose an administrative fine not to exceed $1,000 for every count or separate offense.

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

      5. Suspend or revoke a license. [Emphasis added.]

         
         

6. The Administrative Complaint in this proceeding charges the Respondent with a violation of Section 493.6118(1)(f), Florida Statutes, by reason of "misconduct in the practice of activities regulated under Chapter 493, Florida Statutes." The Respondent's act of using a client's automobile for a personal errand constitutes "misconduct" within the meaning of the cited statutory provision. Accordingly, the Respondent is guilty of the violation charged.

   
   

7. By way of mitigation it is noted that, although the Respondent's use of the subject automobile was in violation of specific instructions he had received from his employer, the Respondent did ask for and receive permission from an employee of Dollar Car Rental and the Respondent was in urgent need of a bathroom, which was not available at the Dollar Car Rental storage facility. Further, the brief use of the subject automobile did not result in any substantial economic harm to Dollar Car Rental. Accordingly, a lighter than usual penalty appears to be in order in this case.

RECOMMENDATION

On the basis of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued to the following effect:

1. Finding the Respondent guilty of a violation of Section 493.6118(1)(f), Florida Statutes, as charged in the Administrative Complaint; and

   
   

2. Imposing a penalty consisting of the following: (a) a written reprimand; (b) an administrative fine in the amount of Fifty Dollars ($50.00); and (c) a six-month period of non-reporting probation.

DONE AND ENTERED this 22nd day of July 1994 in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

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 22nd day of July, 1994.

ENDNOTES

1/ The Respondent clarified at hearing that his correct name is Dimas Esteban Espinoza. He also clarified that he is the same person as the person described as Esteban D. Espinoza in the Administrative Complaint.

2/ There were no bathroom facilities on the premises of the Dollar Car Rental storage facility where the Respondent was providing security services.

COPIES FURNISHED:

Kristi Reid Bronson, Esquire Department of State, Division

of Licensing

The Capitol, MS #4

Tallahassee, Florida 32399-0250

Mr. Dimas E. Espinoza

449 Northeast 30th Terrace Miami, Florida 33137

Honorable Jim Smith Secretary 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 ten 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: 94-001581

Orders for Case No: 94-001581