STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, DIVISION OF ) LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5925

)

JAMES C. SCHADE, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case by televised conference on March 1, 1996, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kristi Reid Bronson, Esquire

Department of State Division of Licensing

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

For Respondent: Jeffrey A. Haynes, Esquire

600 Bypass Drive, Suite 215

Clearwater, Florida 34624 STATEMENT OF THE ISSUE

The issue for consideration in this hearing is whether Respondent's Class "D" security officer's license and Class "G" firearms license should be disciplined because of the matters alleged in the Administrative Complaint filed herein.

PRELIMINARY STATEMENT

By Administrative Complaint dated November 8, 1995, John M. Russi, Director of the Department of State's Division of Licensing, seeks to discipline Respondent's Class "D" security officer's license and Class "G" firearms license because, it is alleged, on September 13, 1995, Respondent impersonated an employee of the State of Florida, in violation of Section 493.6118(1)(i), Florida Statutes.

Respondent requested formal hearing and this hearing ensued. Though the matter was originally set to be heard in St. Petersburg on March 1, 1996, the parties agreed to a hearing by televised conference and the matter was heard by that medium on March 1, 1996 as scheduled.

At the hearing, Petitioner presented the testimony of Robert T. Wolfe, a security guard at Whispering Pines Mobile Home Park; Frank Bedingfield, a security supervisor with the Department of State's Division of Licensing; and, in rebuttal, Garry Floyd, an investigator for the Division of Licensing.

Petitioner also introduced Petitioner's Exhibits 1 and 2. Petitioner's Exhibit

3 for Identification was offered but was not admitted.

Respondent testified in his own behalf and presented the testimony of Charles S. Calderwood, a licensed armed guard; and Jessica Calderwood, Charles Calderwood's wife.

A transcript of the proceedings was furnished, and subsequent to the receipt thereof only counsel for Petitioner submitted Proposed Findings of Fact which proposed findings have been ruled upon in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Department of State, through its Division of Licensing, was responsible for the regulation and licensing of private security guards and the issuance of licenses to carry weapons in this state. Respondent, James E. Schade, held a class "D" security officer's license, number D95-03239, and a class "G" statewide firearms license, number G95-00507, both issued by the Petitioner.

   
   

2. On the early evening of September 13, 1995, Robert T. Wolfe, a licensed security guard, was employed as a gate guard at Whispering Pines Mobile Home Park in Pinellas County. He had been so employed only since August 1995, but has fourteen years experience as a security guard in several other locations.

   At one point in the evening Respondent, driving a white Ford Taurus automobile and accompanied by his friends, Mr. and Mrs. Calderwood, approached Mr. Wolfe's guard shack at one of the entrances to Whispering Pines. Respondent was a resident of the park and had a right to enter.

   
   

3. There is a dispute as to what happened next. Mr. Wolfe claims that without any provocation or signal to do so on his part, Respondent stopped and got out of his vehicle. Wolfe claims he went out to meet the Respondent whereupon Respondent demanded to know if Wolfe had a license to work as a security guard. Mr. Wolfe replied that Respondent should speak with the facility manager about that; at which point, according to Wolfe, Respondent pulled out his wallet, flashed a badge at him very briefly, and indicated he, Respondent, worked for the State.

   
   

4. Mr. Wolfe claims that thereafter Respondent indicated he would report the matter and someone would come by in the morning to take care of the situation, and that Wolfe could be fined for working as a security guard without the proper license. When asked to do so by Wolfe, Respondent refused to give his name but indicated he was a resident of the park and lived at number 474. From the nature of Respondent's approach to him, Mr. Wolfe concluded Respondent was, in fact a state agent.

   
   

5. Respondent has lived at Whispering Pines since 1989 and had never seen Mr. Wolfe employed there before the evening in question. In fact, he had never seen this particular entrance gate manned by a security guard before that evening. That evening, he and the Calderwoods had been out for dinner and were returning to Respondent's residence in a white Taurus which had been loaned to him by the dealer working on his car.

6. As he approached the gate, according to Respondent, Mr. Wolfe came out of the guard shack and motioned for him to stop. As a resident of the facility, Respondent was concerned as to who was stopping him. Wolfe was dressed only in pants and a white short-sleeved shirt on the upper sleeve of which was some sort of a patch. Wolfe was not wearing any type of badge, and Respondent could not see any weapon nor could he see any indication on Wolfe's clothing that Wolfe was working for Whispering Pines.

   
   

7. Respondent contends that Wolfe was rather huffy at first, demanding to know who Respondent was and where he was going. Respondent claims he identified himself by name and indicated where he lived within the park. When Respondent asked Wolfe who he was, Wolfe allegedly said he didn't have to tell Respondent. At this point, Respondent identified himself as a security guard with DeSurety Security Company and showed Mr. Wolfe his badge. According to Respondent, he had his badge, which was in his wallet, out for at least ten to twelve seconds, not just briefly as Wolfe contends. This is confirmed by Mr. Calderwood.

   
   

8. Respondent contends that at no time that evening did he indicate to Mr. Wolfe that he was an employee of the State or that he could enforce state authority. He admits he said that when he got home he would call the State to see if Mr. Wolfe was, in fact, a security guard because, as he understands it, there is a requirement that guards' uniforms show evidence of the company they work for. He also admits he told Wolfe that if Wolfe were not licensed, he might be fined.

   
   

9. Mr. Calderwood, who was in the front passenger seat of Respondent's car when the incident occurred, confirms that as the car approached the gate, Mr. Wolfe came out and waved them to a stop. Approaching the car, Wolfe asked Respondent to identify himself and asked if he were a resident of the park. Respondent replied he was and then got out of the car. A conversation then ensued between Respondent and Mr. Wolfe. Respondent identified himself by name and also as a resident of the park and a licensed security guard. He then pulled out his wallet and showed Mr. Wolfe his security officer's badge. Mr. Wolfe seemed offended by the fact that Respondent asked him any questions. At no time, however, according to Mr. Calderwood, did Respondent identify himself as a state agent.

   
   

10. Respondent was interviewed on September 20, 1995 by Mr. Bedingfield, the Division's security supervisor, who questioned Respondent about the incident and thereafter requested Respondent answer several questions in writing. Mr. Calderwood was also interviewed by Mr. Bedingfield and Mr. Floyd, an investigator for the Division. Floyd concluded from his interview with Calderwood that from that individual's recounting of the incident, Respondent came across as demanding and that Mr. Wolfe could reasonably have "felt" that Respondent was indicating he was a state employee.

    
    

11. Mrs. Calderwood was lying down in the back seat of the car throughout the incident and saw nothing. She could hear only Respondent's side of the conversation and recalled no instance where Respondent claimed he was a state employee.

    
    

12. It is clear there was an altercation between Respondent and Mr. Wolfe on the night in question. Evaluating the evidence in its totality, it is found that Respondent's car, as a loaner, had no identification on it as belonging in the park. Consequently, Mr. Wolfe came out and stopped it from entering. By this point, Respondent, who over his years as a resident had never seen this

    gate manned or Mr. Wolfe as an employee, got involved in a discussion with Wolfe which quickly got out of hand. No doubt the matter was handled poorly on both sides, but there is insufficient evidence that Respondent claimed to be a state employee. To be sure, from Respondent's approach and from the comments he made about the potential for fine and/or discipline of Wolfe, it might have been reasonable for Wolfe to conclude Respondent was an individual of some authority, but the evidence is not sufficient to establish that Respondent claimed to be a state employee as alleged.

    
    

    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. Section 493.6118, Florida Statutes, permits the Division of Licensing to discipline the licenses of licensees for violations of the statute. Specifically, Section 493.6118(1)(i), Florida Statutes, lists as grounds for discipline:

    
    

    Impersonating ... a law enforcement officer

    or an employee of the state ... by identifying himself as a ... state ... law enforcement officer or official representative, by ... displaying a badge or credentials that would cause a reasonable person to believe that he

    ... has official authority, ... or by committ- ing any act that is intended to falsely convey official status.

    
    

15. The evidence fails to establish that Respondent stated he was a state employee. However, under the terms of the statute, if, by his actions, he could have caused a reasonable person to believe that he had official authority, he may be found guilty as alleged.

    
    

16. The burden of proof lies with the Department to establish Respondent's misconduct as alleged by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

17. To be sure, Respondent may have showed poor judgement in engaging in a heated dialogue with the security guard at the gate of his own residence. However, the fact that he committed the actions as indicated at his own home, having given his residence location, makes it unlikely he would have intentionally misrepresented his identity and thereafter given sufficient information for his subsequent identification. While it is clear his approach was less than tactful, there is evidence of some provocation, and the evidence of the alleged misconduct is neither clear nor convincing.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of State, Division of Licensing, enter a final order dismissing the Administrative Complaint filed against the Respondent herein, James C. Schade.

DONE and ENTERED this 25th day of April, 1996, 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 25th day of April, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5925

To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1. & 2. Accepted and incorporated herein.

   1. Accepted and incorporated herein except for the allegation that Respondent said he worked for the state, which is rejected.

   2. - 6. Accepted and incorporated herein.

COPIES FURNISHED:

Kristi Reid Bronson, Esquire Department of State

Division of Licensing

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

Jeffrey A. Haynes, Esquire 600 Bypass Drive, Suite 215

Clearwater, Florida 34624

Honorable 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 the 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 that will issue the Final Order in this case concerning their 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

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, DIVISION OF LICENSING,

Petitioner,

v. CASE NO: C95-01872

D95-03239

JAMES C. SCHADE DOAH CASE NO.: 95-5925

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 March 1, 1996, before Arnold H. Pollock a duly assigned Hearing Officer of the Division of Administrative Hearings. A Recommended Order was submitted by the Hearing Officer on April 25,1996, a copy of which is attached. Neither party filed exceptions.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

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 the Administrative Complaint dated November 8, 1995, is hereby DISMISSED.

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 Appeal, 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 30th day of May, 1996.

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 30th day of May 1996, to Jeffrey A. Haynes, Esquire, Suite 215, 600 Bypass Drive, Clearwater, Florida 34624.

Michele Guy

Assistant General Counsel Department of State Division of Licensing

The Capitol, MS Number 4 Tallahassee, Florida 32399-0250

Docket for Case No: 95-005925

Orders for Case No: 95-005925