STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, DIVISION OF ) LICENSING )

)

Petitioner, )

)

vs. ) CASE NO. 96-1338

)

FRANK GIORDANO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on May 7, 1996, in West Palm Beach, Florida, before Patricia Hart Malono, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Michele Guy, Assistant General Counsel

Department of State Division of Licensing

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

For Respondent: No appearance

STATEMENT OF THE ISSUE

Whether the respondent committed the violations alleged in the Amended Administrative Complaint, and, if so, the penalty which should be imposed.

PRELIMINARY STATEMENT

In an Amended Administrative Complaint dated February 6, 1996, the Department of State, Division of Licensing ("Department"), charged Frank Giordano with five counts of violating section 493.6118(1)(f), Florida Statutes. In Counts I, III, IV, and V, Mr. Giordano was charged with committing negligence or misconduct by abandoning his assigned post on August 12, 19, and 20, 1995, and on September 16, 1995, respectively. In Count II, Mr. Giordano was charged with committing negligence or misconduct by sleeping on post on August 18, 1995.

Mr. Giordano timely requested a formal hearing in this case, denying all of the charges made against him. By Notice of Hearing dated March 29, 1996, the final hearing in this case was scheduled for May 7, 1996, beginning at 9:30 a.m.

At hearing, the Department presented the testimony of one witness, Mark Anthony Padgette, formerly a field supervisor for Ace Security, and the Department's Exhibits A and B were received into evidence. The respondent did not appear prior to the close of the hearing at 10:45 a.m.

The Department timely filed a proposed recommended order, and rulings on the proposed findings of fact are included in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and the entire record of this proceeding, the following findings of fact are made:

1. The Department is the state agency charged with licensing and regulating security officers pursuant to chapter 493, Florida Statutes.

   
   

2. Frank Giordano is licensed pursuant to section 493.6105, Florida Statutes, having been issued a Class "D" Security Officer License, number D95- 12548.

   
   

3. From August 11, 1995, through September 16, 1995, Mr. Giordano was employed as a security officer by Ace Security in Lake Worth, Florida.

   
   

4. During the times relevant to this proceeding, Mark Anthony Padgette was employed by Ace Security as a roving field supervisor. Mr. Padgette's duties included training and checking on security officers at their various posts. At all times relevant to this proceeding, Mr. Padgette was Frank Giordano's supervisor at Ace Security.

   
   

5. On August 11, 1995, Mr. Giordano was assigned as a security officer by Ace Security to guard the premises of Integrated Health Services, a health care facility. At approximately 8:00 p.m., Mr. Padgette trained Mr. Giordano for the site by explaining to him his duties, showing him all entrances and exits, and identifying his assigned post. Mr. Padgette told Mr. Giordano that his assigned post was outside the building and that he was to patrol the grounds, especially the parking lot areas and areas where the entrances and exits were located. Mr. Giordano was told that he was to check in every hour at the nurses station and that he could use the bathroom inside the building. He was told specifically not to linger inside the building but to return immediately to his post in the parking lot.

   
   

6. At 5:15 a.m. on August 12, 1995, Mr. Padgette went to Integrated Health Services to check on Mr. Giordano. He found Mr. Giordano sitting in the lobby of the facility. Mr. Padgette issued a verbal and written warning.

   
   

7. At 4:17 a.m. on August 18, 1995, Mr. Padgette checked on Mr. Giordano at Integrated Health Services. Mr. Padgette located Mr. Giordano asleep in the lobby of the facility. He issued a verbal and written warning.

   
   

8. At 5:20 a.m. on August 19, 1995, Mr. Padgette checked on Mr. Giordano at Integrated Health Services. Mr. Padgette found Mr. Giordano reading in the family waiting room inside the facility. At this time, Mr. Padgette emphasized to Mr. Giordano that his assigned post was located outside the building. Mr. Padgette issued a verbal and written warning.

   
   

9. At 2:40 a.m. on August 20, 1995, Mr. Padgette checked on Mr. Giordano at Integrated Health Services. Mr. Padgette found Mr. Giordano watching television in the family waiting room inside the facility. Mr. Padgette issued a written warning and explained his post orders to Mr. Giordano.

10. On September 16, 1995, Mr. Giordano was assigned to Bethesda Health City in Boynton Beach. This post was a very large, fenced construction site, and Mr. Giordano's post orders were to be visible on the site and to insure that no equipment or materials were stolen from the site. At 12:50 a.m., Mr. Padgette checked on Mr. Giordano at the Bethesda Health City post. Mr. Padgette found the gate open, but he could not find Mr. Giordano. Mr. Giordano arrived at the site approximately 10 minutes after Mr. Padgette and explained that he had driven to a gas station to go to the bathroom. The gas station was located approximately 3 and 1/2 miles from the construction site; portable toilets were available on the site. Mr. Padgette immediately relieved Mr. Giordano of duty, and Mr. Giordano's employment with Ace Security was terminated on September 16, 1995.

    
    

11. The evidence is clear and convincing that, despite numerous warnings and reprimands, Mr. Giordano repeatedly left his assigned post while on duty and that, on at least one occasion, he fell asleep while on duty. Mr. Giordano's actions jeopardized the security of the premises he was assigned to guard and constitute negligence in carrying out his responsibilities as a security officer.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

13. Because the Department is seeking to impose administrative sanctions which include license suspension or revocation or the imposition of administrative fines, it must prove the violations alleged in the Amended Administrative Complaint by clear and convincing evidence. Department of Banking & Finance, Division of Securities & Investor Protection v. Osborne Stern Co., 21 Fla. L. Weekly S142, S143 (Fla. March 28, 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

14. The grounds upon which the Department can take disciplinary action against a licensee are enumerated in section 493.6118(1), Florida Statutes. Section 493.6118(1)(f) provides that the Department may impose sanctions on a licensee who has been found guilty of "fraud or deceit, or of negligence, incompetency, or misconduct, in the practice of the activities regulated under this chapter."

    
    

15. Based on the findings of fact herein, the Department has met its burden of proving by clear and convincing evidence that Mr. Giordano was negligent while on duty as a licensed security officer, in violation of section 493.6118(1)(f).

    
    

16. The Department is authorized in section 493.6118(2) to impose various administrative sanctions on licensees found guilty of a violation enumerated in section 493.6118(1), including license revocation or suspension or the imposition of an administrative fine not to exceed $1,000 for every separate offense. 1/

    
    

17. The Department has recommended that Mr. Giordano's license be revoked. Under the circumstances of this case, this penalty is reasonable.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of State enter a final order finding Frank Giordano guilty of negligence in the practice of regulated activities as charged in Counts I through V of the Amended Administrative Complaint and revoking Mr.

Giordano's Class "D" Security Officer license.

DONE AND ENTERED this 30th day of May 1996 in Tallahassee, Leon County, Florida.

PATRICIA HART MALONO, 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 30th day of May 1996.

ENDNOTE

1/ The Department has enacted rule 1C-3.113, Florida Administrative Code, in which it sets forth the range of penalties which will be imposed for violations of chapter 493. There is no range of penalties specified in this rule for negligence in the practice of regulated activities.

APPENDIX

The following rulings are made on the Petitioner's proposed findings of fact:

Paragraphs 1 through 6 and 9 through 15: Adopted and incorporated in substance but not verbatim in paragraphs 2 through 10 of the Recommended Order.

Paragraphs 7, 8, and 16: Accepted but not incorporated in the findings of facts because subordinate to the facts as found or unnecessary to resolving the issues presented.

The Respondent did not file a proposed recommended order.

COPIES FURNISHED:

Michele Guy

Assistant General Counsel Department of State Division of Licensing

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

Frank Giordano

3655 Coelebs Avenue

Boynton Beach, Florida 33436

Honorable Sandra B. Mortham Secretary of State Department of State

The Capitol

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: 96-001338

Orders for Case No: 96-001338