STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, DIVISION ) OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 95-2880

)

IRVING WEISSBROD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Susan B. Kirkland, held a formal hearing in this case on February 8, 1996, in Fort Lauderdale, 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: Jeffrey M. Weissman, Esquire

Weissman and Dervishi, P.A. 3109 Stirling Road, Suite 101

Fort Lauderdale, Florida 33312-6253 STATEMENT OF THE ISSUE

Whether Respondent violated Section 493.6118(1)(f), Florida Statutes, and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On April 28, 1995, the Petitioner, Department of State, Division of Licensing, filed a twelve-count administrative complaint against Respondent, Irving Weissbrod, alleging that he committed fraud, deceit, negligence or misconduct in the practice of activities regulated under his license in violation of Section 493.6118(1)(f), Florida Statutes. Respondent requested an administrative hearing and the case was forwarded to the Division of Administrative Hearings on June 7, 1995, for assignment to a Hearing Officer.

At the final hearing Petitioner withdrew Counts VII through XII of the Amended Administrative Complaint.

At the final hearing Petitioner called Richard Railton and Paul Stephenson as witnesses. Petitioner's Exhibits 1-6 were admitted in evidence. At the

final hearing the Respondent testified in his own behalf and called Dennis Sullivan and Fred Speaker as witnesses. Respondent's Exhibits 1-4 were admitted in evidence.

At the final hearing, the parties agreed to file their proposed recommended orders within ten days of the filing of the transcript. The transcript was filed on March 5, 1996. The parties' proposed findings of fact are addressed in the appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material to this proceeding, Respondent, Irving Weissbrod (Weissbrod) held a Class "K" Firearms Instructor Licence Number K87-00026 /1 , which allowed him to provide classroom and range instruction to applicants for a Class "G" license. Weissbrod has been teaching the firearms qualification course since 1987.

   
   

2. Weissbrod was required by Rule 1C-3.128, Florida Administrative Code, to use the Department of State, Division of Licensing's Firearms Instructor's Training Manual (Training Manual) in teaching the course for a Class "G" license.

   
   

3. In early March, 1995, Richard Thomas Railton (Railton), an investigator for the Respondent, Department of State, Division of Licensing (Department), was given the assignment to attend a Class "G" training course which was being given by Weissbrod through his business, Florida Firearms Corp. The purpose of the assignment was to determine whether the training being given met the minimum hours required by statute.

   
   

4. Railton called Weissbrod to arrange for the class. Weissbrod told Railton that the cost of the course was $144.00. Railton obtained the money from the Department and converted the funds to a money order payable to Florida Firearms for $144.00. Railton identified himself to Weissbrod as Richard Thomas.

   
   

5. On March 14, 1995, Railton went to Florida Firearms, where the class was to be conducted. He arrived around 6:45 p.m. There were two other students in the class, Paul Stephenson and an unidentified male.

   
   

6. When Railton arrived at the class, he advised Weissbrod that he had extensive experience with firearms, that he had been a policeman for seven or eight years, and that he was currently a private investigator. Stephenson advised Weissbrod that he had been a private investigator for about ten years and that he had a lot of firearm training. The third student had no training in firearms.

   
   

7. The Training Manual requires that an instructor provide 13 hours of instruction on the legal aspects of the use of firearms; fours hours of instruction on operational firearms safety; three hours of firearms mechanical training; and eight hours of firearms range qualification.

   
   

8. The class started at 7:05 p.m. During the first fifteen minutes of class, Weissbrod processed the students' paperwork, collected fees, and gave receipts. When Railton paid his fees, Weissbrod charged him only $134.00 because Railton did not need to have a photograph taken for his license application.

9. Weissbrod told the class that he taught an accelerated class and that he could teach the required information in less time than the state requirement of 28 hours.

   
   

10. From 7:20 to 7:40 p.m., Weissbrod explained the definitions of misdemeanors and felonies and discussed firearm violations in the two categories. He also discussed the meaning of reasonable and deadly force.

    
    

11. From 7:40 to 8:10 p.m., Weissbrod passed out copies of an examination and reviewed the questions and answers with the students. While they were reviewing the examination, Weissbrod remarked, "I'll be out of here real early tonight."

    
    

12. At 8:10 p.m. Weissbrod passed out an examination for the students to complete. By 8:35, the students had completed the examination. Both Railton and Stephenson passed the written test. Weissbrod told them to meet at Big Al's Gun Range the next evening at 7:30 p.m. for range qualification. Weissbrod told one student that they would be finished with the range qualification by 8:00 p.m.

    
    

13. On March 15, 1995, Railton and Stephenson met Weissbrod at the firing range at 7:30 p.m. The third student did not participate in the range qualifications on that evening. Railton and Stephenson fired their guns and their targets were scored. Both men passed the range qualifications. Weissbrod issued certifications to Railton and Stephenson, stating that they had received

    28 hours of training.

    
    

14. Weissbrod admitted that Railton and Stephenson received less than the

    28 hours required by Section 493.6115(8), Florida Statutes; however, he submits that it was an isolated incident, and no evidence was presented to the contrary. Notwithstanding, his violations were flagrant and, whether isolated or not, were knowingly committed.

    
    

15. On March 22, 1995, the Department issued an Emergency Suspension Order, alleging that Weissbrod committed fraud, deceit, negligence or misconduct in the practice of regulated activities under Chapter 493, Florida Statutes, based on essentially the same facts that are alleged in Counts I through VI of the Amended Administrative Complaint.

    
    

16. On April 13, 1995, an Order was issued vacating the Emergency Suspension Order. Thus, Weissbrod had been effectively suspended by the Department from March 22, 1995 to April 13, 1995, a period of 22 days.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

18. The Department has alleged that Weissbrod violated Section 493.6118(1)(f), Florida Statutes, which provides that the Petitioner may take disciplinary action against a license when there is proof 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."

    
    

19. The minimum training criteria for a Class "G" license is 28 hours of range and classroom training administered by a Class "K" licensee. No more than

    eight hours of the training may consist of range training. Rule 1C-3.128, Florida Administrative Code, provides that all licensed firearms instructors must utilize the instruction requirements and materials contained in the Department's Firearms Instructor's Training Manual.

    
    

20. The Department has proved by clear and convincing evidence that Weissbrod violated Section 493.6118(1)(f), Florida Statutes, as alleged in County I by failing to instruct students in the required thirteen hours relating to the legal aspects of the use of firearms and civil liabilities.

    
    

21. The Department has proved by clear and convincing evidence that Weissbrod violated Section 493.6118(1)(f), Florida Statutes, as alleged in Count II by failing to instruct students in the required four hours of training regarding operational firearms.

    
    

22. The Department has proved by clear and convincing evidence that Weissbrod violated Section 493.6118(1)(f), Florida Statutes, as alleged in Count III by failing to instruct students in the required three hours of training regarding firearms mechanical training.

    
    

23. The Department has proved by clear and convincing evidence that Weissbrod violated Section 493.6118(1)(f), Florida Statutes, as alleged in Count IV by failing to instruct students in the required eight hours of firearm range qualifications.

    
    

24. The Department has proved by clear and convincing evidence that Weissbrod violated Section 493.6118(1)(f), Florida Statutes, by fraudulently certifying that two students had completed a twenty-eight hour training course required to apply for a Statewide Firearm License as alleged in Count V.

    
    

25. The Department has proved by clear and convincing evidence that Weissbrod violated Section 493.6118(1)(f), Florida Statutes, as alleged in Count VI by administering a firearms qualification course which did not comply with the requirements of the Florida Department of State, Division of Licensing Firearms Instructor's Training Manual.

    
    

26. Rule 1C-3.113(4), Florida Administrative Code, sets forth certain specified penalties to be used as guidelines in imposing discipline against instructors and schools or training facilities.

    
    

27. Rule 1C-3.113(4)(a), Florida Administrative Code, provides that the disciplinary guideline for falsely certifying the completion of required training is an administrative fine of $300-$700 per student to three month's suspension.

    
    

28. Rule 1C-3.113(4)(b), Florida Administrative Code, provides that the disciplinary guideline for failing to provide students with the proper hours of instruction is an administrative fine of $300-$700 per student to three month's suspension or denial of license.

    
    

29. Rule 1C-3.113(4)(f), Florida Administrative Code, provides that the disciplinary guideline for failing to teach the approved curriculum is an administrative fine of $200-$600 or probation to one month's suspension.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order finding that Irving Weissbrod violated

Section 493.6118(1)(f), Florida Statutes as set forth in Counts I through VI of the Amended Administrative Complaint and imposing an administrative fine of $300 for each Count (a total of $1800) and suspending his license for one month.

DONE AND ENTERED this 25th day of March, 1996, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND, 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 25th day of March, 1996.

ENDNOTE

1 Weissbrod also has a DI Instructor's License, but no sanctions are being sought against that license.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2880

To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1. Paragraphs 1-2: Accepted.

2. Paragraph 3: Accepted in substance as to three students except on March 15, 1995, when only two students received instruction.

3. Paragraphs 4-8: Accepted in substance.

Respondent's Proposed Findings of Fact.

1. Paragraphs 3-5 (There were paragraphs 1 and 2 in the Findings of Fact): Accepted in substance.

2. Paragraph 6: Rejected as unnecessary.

3. Paragraph 7: Rejected as irrelevant and constituting argument.

4. Paragraphs 8-10: Rejected as covered in the preliminary statement.

5. Paragraphs 11-13: Accepted in substance.

6. Paragraphs 14-17: Rejected as subordinate to the facts

   found.

7. Paragraph 18: Accepted in substance.

8. Paragraphs 19-22: Rejected as subordinate to the finding that it was an isolated incident.

9. Paragraph 23: Rejected as unnecessary.

10. Paragraphs 24-26: Accepted in substance.

11. Paragraph 27: Rejected as unnecessary.

12. Paragraphs 28-38: Rejected as irrelevant to the issues in this case.

13. Paragraph 39: Accepted in substance as to the thre students except on March 15, 1995, when only two students received instruction.

14. Paragraphs 40-45: Accepted in substance.

15. Paragraph 46: Rejected as irrelevant.

16. Paragraph 47: Accepted in substance.

17. Paragraph 48: Rejected as irrelevant.

18. Paragraph 49: Rejected as subordinate to the facts found.

19. Paragraphs 50-51: Rejected as subordinate to the finding that it was an isolated incident.

20. Paragraphs 52-55: Rejected as unnecessary.

21. Paragraphs 56: The first sentence is accepted. The remainder is accepted in substance to the extent that no evidence was presented to establish that the failure to provide the 28 hours of instruction was anything other than an isolated incident.

22. Paragraphs 57-58: Accepted to the extent that the evidence did not establish that the incident was not an isolated one.

23. Paragraph 59: Rejected as irrelevant.

24. Paragraphs 60-65: Rejected as unnecessary given the finding that the violation was an isolated incident.

25. Paragraph 66: Accepted in substance.

26. Paragraph 67: Rejected as subordinate to the facts found.

27. Paragraphs 68-70: Rejected as irrelevant.

28. Paragraph 71: Rejected as constituting argument.

29. Paragraph 72: Rejected as not supported by the evidence.

COPIES FURNISHED:

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

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

Jeffrey M. Weissman, Esquire Weissman and Dervishi, P.A. 3109 Stirling Road, Suite 101

Fort Lauderdale, Florida 33312-6526

Honorable Sandra B. Mortham Secretary of State

The Capitol

Tallahassee, Florida 32399-0250

Don Bell 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 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: 95-002880

Orders for Case No: 95-002880