STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) Case No. 97-3014

)

FRANK GIORDANO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on November 12, 1997, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Kristi Reid Bronson, Esquire

Department of State Division of Licensing

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

For Respondent: did not appear and was not represented STATEMENT OF THE ISSUE

The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken, if any.

PRELIMINARY STATEMENT

On June 9, 1997, Petitioner issued an Administrative

Complaint against Respondent, and Respondent timely requested an

evidentiary hearing regarding the allegations in that Complaint. This cause was thereafter transferred to the Division of Administrative Hearings to conduct the evidentiary proceeding.

Petitioner presented the testimony of Fred P. Speaker, III, and Jack D'Ambrosio. Petitioner was afforded additional time by which to file Petitioner's Exhibit numbered 2 but has not done so. Accordingly, only Petitioner's Exhibits numbered 1, 3, and 4 have been admitted in evidence.

Petitioner filed post hearing a proposed recommended order which has been considered in the entry of this Recommended Order.

FINDINGS OF FACT

1. On June 24, 1996, Petitioner revoked Respondent's Class "D" security officer license number D95-12548 and ordered Respondent to cease and desist from engaging in security services and to return to Petitioner Respondent's license. That Final Order certifies that a copy was mailed to Respondent that day.

2. Respondent did not return his license to Petitioner.

   
   

3. On November 1, 1996, Fred Speaker, the investigator supervisor in Petitioner's West Palm Beach office, went to Respondent's home to retrieve Respondent's license. Respondent asserted that he did not know where his license was. Respondent did not produce his license.

4. On November 12 Speaker returned to Respondent's home to retrieve Respondent's license. Respondent was not there, and Respondent's wife did not produce Respondent's license.

5. On April 17, 1997, while Speaker and investigator Jack D'Ambrosio were checking security posts and licenses, they encountered Respondent who was on duty at the gate house of a private community. They asked Respondent for his company identification and his guard license. Respondent produced both documents for their inspection.

6. Petitioner's employees did not take Respondent's license that evening since they wished first to verify if the license were still revoked before taking Respondent's license from him.

7. Sometime subsequent to that date, D'Ambrosio saw Respondent in Petitioner's office and again asked Respondent for his license. Respondent refused to give his license to D'Ambrosio.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Sections

   120.569 and 120.57(1), Florida Statutes.

   
   

9. The Administrative Complaint filed in this cause contains three counts. Count I alleges that on April 17, 1997, Respondent performed the services of a security officer after revocation of his Class "D" security officer license, in violation of Section 493.6118(1)(g), Florida Statutes. Petitioner has proven this allegation by clear and convincing evidence.

10. Count II alleges that on that same date Respondent knowingly violated Petitioner's cease and desist order by performing regulated activities after revocation of his Class "D" license, in violation of Section 493.6118(1)(k), Florida Statutes. Petitioner has proven this allegation by clear and convincing evidence.

11. Count III alleges that between June 25, 1996, and

    
    

    April 17, 1997, Respondent failed to return his Class "D" license to Petitioner as required by Section 493.6118(5), in violation of Section 493.6118(1)(t), Florida Statutes. Petitioner has proven this allegation by clear and convincing evidence.

12. Section 493.6118(2)(c), Florida Statutes, provides that Petitioner may impose an administrative fine not to exceed $1,000 for every count when it determines that a violation of Section 493.6118(1) has been committed. In furtherance of that statutory scheme, Petitioner has adopted Rule 1C-3.113, Florida Administrative Code, which contains the range of penalties which may be imposed for various statutory violations. However, Subsection (5) of that Rule authorizes Petitioner to deviate from the guidelines of the Rule where there is aggravating or mitigating evidence.

13. In view of the fact that Respondent's license was revoked and Respondent knowingly performed regulated activities despite his lack of licensure, in view of Respondent's repeated refusal to return his license to Petitioner, and in view of

Respondent's intentional violation of Petitioner's cease and desist order, it is necessary that the penalty imposed be likely to have some deterrent effect. Further, Respondent requested an evidentiary hearing and failed to appear, thereby requiring Petitioner to incur additional costs of prosecution, another aggravating factor under the Rule. Accordingly, the only appropriate penalty to be imposed in this matter is the maximum fine allowed by statute, i.e., $1,000 per count.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a final order be entered finding Respondent guilty of the allegations contained in the Administrative Complaint and imposing an administrative fine in the amount of

$3,000 to be paid by a date certain.

DONE AND ENTERED this 21st day of January, 1998, in Tallahassee, Leon County, Florida.

LINDA M. RIGOT

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 1998.

COPIES FURNISHED:

Kristi Reid Bronson, Esquire Department of State

Division of Licensing

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

Frank Giordano, pro se 3655 Coelebs Avenue

Boynton Beach, Florida 33436

Don Bell, General Counsel Department of State

The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0250

Honorable Sandra B. Mortham Secretary of State 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: 97-003014

Orders for Case No: 97-003014