STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, DIVISION ) OF LICENSING, )

)

Petitioner, )

)

vs. ) Case No. 97-1740

)

JAMES B. BROWN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on September 25, 1997, in West Palm Beach, Florida, before Claude B. Arrington, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Michele Guy, Esquire

Department of State Division of Licensing

The Capitol, Mail Station No. 4 Tallahassee, Florida 32399-0250

For Respondent: No appearance.

STATEMENT OF THE ISSUES

Whether Respondent, the holder of a Class "D" Security Officer License and a Class "G" Firearm License, committed the misconduct alleged in the Administrative Complaint and the penalties, if any, that should be imposed.

PRELIMINARY STATEMENT

In a one count Administrative Complaint filed March 5, 1997, the Respondent was charged by Petitioner with committing misconduct in the practice of activities regulated under his licenses by abandoning his assigned security post without permission or relief in violation of Section 493.6118(1)(f), Florida Statutes.

Thereafter, Respondent timely requested a formal hearing to challenge the allegations of the Administrative Complaint, the matter was referred to the Division of Administrative Hearings, and this proceeding followed.

At the formal hearing, Petitioner presented the testimony of Michael Ross, the Respondent's supervisor at the times pertinent to this proceeding, and presented three exhibits, each of which was accepted into evidence. Respondent did not appear at the formal hearing.

No transcript of the proceedings has been filed. The Petitioner filed a proposed recommended order, which has been duly considered by the undersigned in the preparation of this Recommended Order. Respondent did not file a proposed recommended order.

FINDINGS OF FACT

1. At all times pertinent to this proceeding, Respondent was the holder of Class "D" Security Officer License D92-01223

   and Class "G" Statewide Firearms License G96-01346.

   
   

2. At the times pertinent to this proceeding, Respondent was employed as an armed security guard for Wells Fargo Security in Palm Beach County, Florida. His assigned post was at the Community Savings Bank (the Bank) in Riviera Beach, Florida. There was typically only one guard assigned to that post.

3. The Bank is located in a high crime area of Riviera Beach.

4. Respondent was the only guard assigned to the Bank on June 5, 1996.

5. Respondent was on duty at the Bank from 7:00 a.m. to 7:00 p.m., five days a week. He was to provide security for all five floors of the main bank building, an adjacent single story building that contained supplies, and the parking areas. His duties included escorting Bank personnel and customers between the parking areas and the Bank, and he was required to carry a radio so that Bank personnel could contact him when someone needed an escort. The radio he carried had a radius of 1.5 miles.

6. At the times pertinent to this proceeding, Michael Ross was employed by Wells Fargo and had direct supervisory authority over the Respondent.

7. Mr. Ross instructed Respondent that he could leave the Bank premises only to pick up a sandwich. He was instructed to take his breaks and eat his lunch on Bank premises.

8. On June 5, 1996, Respondent was on duty at the Bank. At approximately 11:00 a.m. that day, Mr. Ross spoke with Sheila Owens, the bank's operation manager, in an effort to locate the Respondent. Mr. Ross wanted to discuss with the Respondent certain changes in the work schedule. Ms. Owens advised Mr. Ross that she would attempt to locate Respondent and that she would call him back. A few minutes later, Ms. Owens called Mr. Ross and told him that she could not locate Respondent.

9. Mr. Ross became concerned that the post was unattended. Because the Bank is in a high crime area, he was also concerned that the Respondent may have become the victim of an act of violence. Mr. Ross drove to the Bank, arriving at approximately 12:30 p.m. on June 5, 1996. He and Ms. Owens searched the entire Bank premises. Mr. Ross attempted to contact Respondent by radio and by Respondent's personal beeper number. The page Mr. Ross left for Respondent was not returned. Mr. Ross tried to locate the Respondent for approximately two hours. He called the Riviera Police Department because he feared for Respondent's safety.

10. Two Riviera Police Department cars arrived at the scene at approximately 2:30 p.m. on June 5, 1996. About the time the police arrived, Mr. Ross saw Respondent walking through the Bank's parking lot.

11. Respondent told Mr. Ross that he had been at a beeper store that was approximately 200 yards from the Bank. That

    explanation is not credible because Respondent could have been contacted by radio if he had been within a mile and a half of the Bank.

12. Respondent was absent from his post without credible explanation for at least two hours on June 5, 1996. Wells Fargo thereafter lost the security contract it had with the Bank.

    CONCLUSIONS OF LAW

    
    

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

14. Petitioner has jurisdiction over persons holding a Class "D" Security Officer License and a Class "G" Firearm License pursuant to Section 493.6121, Florida Statutes.

15. The provisions of Section 493.6118(1)(f), Florida Statutes, pertain to this proceeding and provide, in pertinent part, as follows:

    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.

       
       

       * * *

       
       

       (f) Proof that the applicant or licensee is guilty of 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 application for the issuance

          or renewal of a 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.

       
       

16. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. See, Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Evans Packing Co. v. Department of Agriculture and Consumer Services, 550

    So. 2d 112 (Fla. 1st DCA 1989).

    
    

17. The Petitioner has met its burden of proof in this proceeding. The evidence is clear and convincing that Respondent abandoned his post for at least two hours on June 5, 1996.

18. A security officer who abandons his post is guilty of misconduct within the meaning of Section 493.6118(1)(f), Florida Statutes.

19. Petitioner has not adopted penalty guidelines pertinent to this violation. The recommendation that follows is based, in part, on the fact that Respondent neglected his responsibility of providing security in a high crime area for employees and patrons of the Bank. In its Proposed Recommended Order, the Petitioner proposed that Respondent's Class "D" Security License be revoked. There was no recommendation as to action against his Class "G" Statewide Firearm License.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent’s Class “D” Security License be revoked. It is further recommended that no action be taken against Respondent's Class "G" Statewide Firearm License.

DONE AND ENTERED this 20th day of October, 1997, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 1997

COPIES FURNISHED:

Michele Guy, Esquire Department of State Division of Licensing

The Capitol, Mail Station No. 4 Tallahassee, Florida 32399-0250

Mr. James B. Brown 1031 West 1st Street

Riviera Beach, Florida 33404

Honorable Sandra B. Mortham Secretary of State

The Capitol

Tallahassee, Florida 32399-0250

Don Bell, General Counsel Department of State

The Capitol

Tallahassee, Florida 32399-0250

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 97-001740

Orders for Case No: 97-001740