STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, DIVISION ) OF LICENSING, )

)

Petitioner, )

)

vs. ) Case No. 97-5373

)

ARTHUR WILLIAM FRANCIS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on February 26, 1998, at Fort Lauderdale, 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: Arthur W. Francis, pro se

506 Northwest 3rd Street Apartment 2

Dania, Florida 33004 STATEMENT OF THE ISSUES

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

PRELIMINARY STATEMENT

On June 24, 1997, the Petitioner filed an Administrative Complaint against the Respondent that contained two counts.

Count I alleged that Respondent committed misconduct in violation of Section 493.6118(1)(f), Florida Statutes, by sleeping while on duty during the late evening hours of November 18, 1996.

Count II alleged that Respondent committed misconduct in violation of Section 493.6118(1)(f), Florida Statutes, by sleeping while on duty during the early morning hours of November 19, 1996.

Respondent timely challenged 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 Randy Robinson and Mike Crutcher. In addition, Petitioner offered six exhibits, each of which was admitted into evidence.

Respondent testified on his own behalf, but presented no other testimony and no exhibits.

A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 60Q-2.031, Florida Administrative Code. The Petitioner filed a proposed recommended

orders, which has been duly considered by the undersigned in the preparation of this Recommended Order. Respondent did not file a post-hearing submittal.

FINDINGS OF FACT

1. Respondent holds Class "D" Security Officer License Number D94-10889, which was issued pursuant to Chapter 493, Florida Statutes, effective July 6, 1996, to July 6, 1998. Respondent also holds Class "G" Statewide Firearm License Number G94-02779, effective September 29, 1996, to September 29, 1998.

2. At the times pertinent to this proceeding, Respondent was employed by Navarro Security.

3. On November 18 and 19, Respondent was on duty at a security post during the evening and early morning hours. The assigned post was Star Motors, a Mercedes-Benz car dealership located on Federal Highway (U.S. 1) in Fort Lauderdale, Florida.

4. Respondent had the responsibility of providing security for the vehicles and other property located at the dealership. Respondent had been instructed to park his vehicle at the front part of the dealership property so he could observe at all times the inventory that was parked on an open lot. Respondent was to carry a two-way radio with him while on he was on duty and he was required to respond to hourly radio checks from his supervisors. Respondent was not permitted to sleep while on duty.

5. On November 18, 1996, Randy Robinson, a supervisor (captain) employed by Navarro Security, was dispatched to Star

   Motors because Respondent had missed a radio check at 11:00 p.m. Mr. Robinson arrived at Star Motors at approximately 11:40 p.m. and observed Respondent to be asleep in his own vehicle at a location adjacent to, but off the premises of, Star Motors.

   Mr. Robinson photographed Respondent using flash bulbs and shined a flashlight on his face. Respondent did not awaken until

   Mr. Robinson knocked on the windshield of Respondent's vehicle.

   
   

6. On November 19, 1996, shortly before 2:54 a.m., Respondent missed another radio check. Mike Crutcher, a supervisor (lieutenant) employed by Navarro Security was dispatched to Star Motors. Mr. Crutcher arrived at Star Motors at 2:54 a.m. and observed Respondent asleep in his vehicle. The vehicle was parked in the circular drive on the premises of Star Motors. Mr. Crutcher photographed Respondent using a flash bulb. Respondent did not awaken until Mr. Crutcher knocked on the vehicle.

   CONCLUSIONS OF LAW

   
   

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

8. Petitioner has jurisdiction over persons holding a

   
   

   Class "D" Security Officer License, pursuant to Section 493.6121, Florida Statutes.

9. The provisions of Section 493(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 fraud or deceit, or of negligence, incompetency, or 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.

         
         

10. 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 Consumers Services, 550 So. 2d 112 (Fla. 1st DCA 1989).

11. The Petitioner has met its burden of proof in this proceeding. The evidence is clear and convincing that Respondent was asleep while on duty on November 18, 1996, and on

    November 19, 1996.

12. A security officer who sleeps at his post while he or she is on duty is guilty of misconduct within the meaning of Section 493.6118(1)(f), Florida Statutes.

13. Petitioner has not adopted penalty guidelines pertinent to this violation. The recommendation that follows is based, in part, on the fact that Respondent was twice found asleep when he should have been providing security for the car dealership. This misconduct could easily have resulted in a loss by the car dealership. In its Proposed Recommended Order, the Petitioner proposed that Respondent's Class "D" Security Licensed be revoked. That proposed penalty is reasonable. Petitioner has offered no rationale for disciplining Respondent's Class "G" Statewide Firearms License.

RECOMMENDATION

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

DONE AND ENTERED this 31st day of March, 1998, 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

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1998.

COPIES FURNISHED:

Michele Guy, Esquire Department of State Division of Licensing

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

Arthur W. Francis, pro se

506 Northwest 3rd Street Apartment 2

Dania, Florida 33004

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 32399-0450

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: 97-005373

Orders for Case No: 97-005373