STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, ) DIVISION OF LICENSING, )

)

Petitioner, )

vs. ) CASE NO. 95-0155

)

GEORGE GAINES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Hearing Officer, Joyous D. Parrish, held a formal hearing by telephone conference call in the above-styled case on May 25, 1995, with the parties located in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Kristi Reid Bronson

Assistant General Counsel Department of State Division of Licensing

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

For Respondent: George Gaines

1557 West 35 Street

Riviera Beach, Florida 33404 STATEMENT OF THE ISSUES

The central issue in this case is whether the Respondent committed the violation alleged in the administrative complaint; and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case began on December 20, 1994, when the Department of State, Division of Licensing (Department) filed an administrative complaint against the Respondent, George Gaines. The complaint alleged that Respondent had violated Section 493.6118, Florida Statutes, by abandoning his assigned security post without permission. Respondent denied the allegations, and by letter dated December 27, 1994, requested a hearing in accordance with Section 120.57, Florida Statutes. The Department forwarded the matter to the Division of Administrative Hearings for formal proceedings on January 13, 1995.

At the hearing, Petitioner presented the testimony of the following witnesses: James Allahar, a supervisor employed by the Wells Fargo Guard Services; Oscar Charles Tuff, a quality control supervisor employed by Wells

Fargo Guard Services; and Arthur James Dickens, operations manager for the West Palm Beach branch of Wells Fargo Guard Services. The Respondent testified in his own behalf.

The transcript of the proceedings was filed on June 27, 1995. Specific rulings on the proposed findings of fact submitted by the Petitioner are included in the appendix at the conclusion of this order.

FINDINGS OF FACT

1. At all times material to the allegations of this case, Respondent, George Gaines, held a class "D" security officer license, number D94-06031.

   
   

2. Petitioner is the state agency charged with the responsibility of regulating licenses for security officers.

   
   

3. At all times material to this case, Respondent was employed as a security guard by Wells Fargo Guard Services and was assigned to the north garage at the Good Samaritan Medical Center.

   
   

4. On August 30, 1994, the Respondent was to work the 4:00 p.m. to 12:00

   a.m. shift at the Medical Center.

   
   

5. On August 30, 1994, the Respondent was supervised by James Allahar.

   
   

6. Sometime prior to 4:00 p.m. on August 30, 1994, the Respondent notified Mr. Allahar that he would be late reporting for work.

   
   

7. When Mr. Allahar became aware that Respondent had arrived for work, he summoned Respondent to the emergency room and requested that he sign a slip acknowledging he had been late for work. Respondent refused to sign the slip.

   
   

8. Respondent returned to his post at the north garage.

   
   

9. A short while later, the security officer in the emergency room requested that Mr. Allahar return to the emergency room.

   
   

10. When Mr. Allahar returned to the emergency room, Respondent handed him his radio and keys. Respondent then exited the emergency room.

    
    

11. Mr. Allahar followed Respondent outside and asked him to return to his post or explain. According to Mr. Allahar, Respondent advised he was tired and that he was leaving.

    
    

12. Respondent did not wait for a replacement officer before departing his assigned post.

    
    

13. Respondent did not have the permission of his immediate or other supervisor before departing from his assigned post.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

15. Section 493.6118, Florida Statutes, provides, in 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.

       
       

16. The Petitioner bears the burden of proof to establish by clear and convincing evidence that the Respondent committed the violation complained of in the administrative complaint. It has met that burden.

    
    

17. In this case, the Respondent left his assigned post of duty before a replacement officer was on the job. He did so without permission from his supervisor and without appropriate authority to do so. This abandonment constitutes misconduct.

    
    

18. By leaving the assigned area unattended, Respondent created a potential problem for the client he was to protect. This was a breach of Respondent's obligation to provide security. Respondent has offered no credible excuse for his irresponsible behavior. He should have remained at his post until a replacement officer came to take over. Personal disputes with a supervisor do not justify abandoning a duty assignment.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That the Department of State, Division of Licensing enter a final order reprimanding the Respondent, imposing an administrative fine in the amount of

$1,000.00, and placing the licensee on probation for a period of time and subject to such conditions as the department may specify.

DONE AND RECOMMENDED in Tallahassee, Leon County, Florida, this 15th day of August 1995.

JOYOUS D. 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 15th day of August 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0155

Rulings on the proposed findings of fact submitted by the Petitioner:

1. Paragraphs 1 through 9 are accepted.

Rulings on the proposed findings of fact submitted by the Respondent:

1. None submitted.

COPIES FURNISHED:

Kristi Reid Bronson Assistant General Counsel Department of State Division of Licensing

The Capitol, MS 4

Tallahassee, Florida 32399-0250

George Gaines

1557 West 35 Street

Riviera Beach, Florida 33404

Hon. Sandra B. Mortham Secretary of State

The Capitol

Tallahassee, Florida 32399-0250

Don Bell 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 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.

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF STATE

DEPARTMENT OF STATE, DIVISION OF LICENSING,

Petitioner,

vs. CASE NO. C94-02269

D94-06031

GEORGE GAINES, DOAH CASE NO. 95-155

Respondent.

/

FINAL ORDER

This cause came before the Department of State, Division of Licensing, for consideration and final agency action. A formal administrative hearing was conducted pursuant to Section 120.57(1), Florida Statutes, on May 25, 1995, before Joyous D. Parrish, a duly assigned Hearing Officer of the Division of Administrative Hearing. A Recommended Order was submitted by the Hearing Officer on August 15, 1995, a copy of which is attached. Neither party filed exceptions.

The Department of State hereby adopts and incorporates herein by reference the Findings of Fact and Conclusions of Law in the Recommended Order.

WHEREFORE, based upon the foregoing, it is ORDERED that Respondent's Class "D" Security Officer License, Number D9406031, is hereby placed on one (1) year non-reporting probation. In addition, Respondent shall pay an administrative fine of $1,000.00 which must be paid by cashier's check or money order to the Department of State, Division of Licensing, within thirty (30) days of date of this order.

NOTICE OF RIGHTS

This Order constitutes final agency action. Any party who is adversely affected by this Order may seek judicial review under Section 120.68, Florida Statutes. Such proceedings are commenced by filing a Notice of Appeal, pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the Deputy Clerk of the Division of Licensing, Department of State, The Capitol, Mail Station #4, Tallahassee, Florida 32399-0250; and by filing a copy of the Notice of Appeal, accompanied by the applicable filing fees, with the First District Court of Appeals, or with the District Court of Appeal in the appellate district where the party resides. The Notice of Appeal must be filed within thirty (30) days of the day this Order is filed with the Clerk of the Department.

DONE AND ORDERED at Tallahassee, Florida this 20th day of September, 1995.

John M. Russi, Director Division of Licensing

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing Final Order has been sent by U.S. Mail this 20th day of September,1995 to George Gaines, 1557 West

35 Street, Riviera Beach, Florida 33404.

Michele Guy

Assistant General Counsel Department of State Division of Licensing

The Capitol, M.S. 4 Tallahassee, Florida 32399-0250

Docket for Case No: 95-000155

Orders for Case No: 95-000155