STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KIMBERELY WEBBER, )

)

Petitioner, )

)

vs. ) Case No. 97-5602S

)

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on February 17, 1998, a formal hearing was held in this case. Authority for conducting the hearing is set forth in Sections 120.569 and 120.57(1), Florida Statutes. The hearing location was Suite 360, Building B, Jacksonville Regional Service Center, 921 North Davis Street, Jacksonville, Florida. The hearing was held before Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: Kimberely Webber, pro se

6756 103rd Street, Number 41

Jacksonville, Florida 32210

For Respondent: Michele Guy, Esquire

Department of State Division of Licensing

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

STATEMENT OF THE ISSUES

Is Petitioner entitled to the renewal of her Class "D" license to serve as a private security officer?

PRELIMINARY STATEMENT

When Petitioner sought re-licensure as a private security officer, Respondent determined to deny that request. The letter of denial was dated November 10, 1997. As grounds for denial it was stated:

Grounds for Denial

During the period June 25, 1997 to July 6, 1997, in Duval County, Florida, you committed miscounduct in the practice or regulated activities under Chapter 493, Florida Statutes, in that you repeatedly abandoned assigned security posts. You are in violation of Section 493.6118(1)(f), Florida Statutes.

During the period of March 1996 to September 1997, in Duval County, Florida, you failed to notify the department within ten days of a change of address from 8151 Alderman Road, #1104, Jacksonville, Florida 32211 as required by Section 493.6106(3), Florida Statutes. You are in violation of Section 493.6118(1)(t), Florida Statutes.

Petitioner contested the facts that formed the basis for the denial and requested a hearing to resolve that dispute. The request for hearing was received by the Petitioner on

November 19, 1997. On November 24, 1997, the Division of Administrative Hearings received a request from the Respondent to assign an Administrative Law Judge to resolve the dispute between the parties by conducting a formal hearing. That hearing was held on the aforementioned date.

Petitioner testified in her own behalf. Petitioner's exhibit 1 was not requested for admission; however, the exhibit

is included with the record, in that if forms the basis for

interrogation of a witness at hearing. Respondent presented the testimony of Terry H. Conners, Michael Batchelor, and

Ronald Boar. Respondent's Exhibits 1 through 5 were admitted.

A hearing transcript was not ordered. Consequently the deadline for submission of proposed recommended orders was February 27, 1998. Respondent submitted a proposed recommended order on that date. Petitioner has not submitted a proposed recommended order. The proposals by Respondent have been considered in preparing the recommended order.

FINDINGS OF FACT

1. Respondent licenses and regulates persons who hold Class "D" private security officer licenses. This licensure and regulation is in accordance with Part 1, Chapter 493, Florida Statutes. Petitioner held a Class "D" private security officer license. When Petitioner sought the renewal of that license, the license was denied for the reasons that have been stated.

2. At times relevant to the inquiry, Petitioner worked for Giddens Security Corporation, which provided security for businesses located in Duval County, Florida.

3. At times relevant to the inquiry, Terry H. Conners was a night supervisor for Giddens Security. He was responsible for checking the attendance of private security officers employed by Giddens Security at job sites.

4. Centex Corporation was a client of Giddens Security in Duval County, Florida. Centex had a housing project that

   consisted of three completed model homes and other construction. The expectation was that the private security officer working for Giddens Security would patrol the area of the model homes and the balance of the construction site to make certain that unauthorized persons did not trespass.

5. On June 25, commencing at 6:00 p.m. through June 26, 1997, at 6:00 a.m., Petitioner was responsible for performing the security patrol at the Centex location.

6. At 1:35 a.m., June 26, 1997, Mr. Conners arrived at the Centex location. Petitioner was not on duty. Petitioner had abandoned her assignment as a security officer and responsibility to protect the property interest of Centex at that location.

   Mr. Conners ascertained that Petitioner was missing from her post by searching the entire area which Petitioner was responsible for patrolling. Mr. Conners assumed the duty of security officer on that occasion from approximately 1:35 a.m. to 6:00 a.m., June 26, 1997. Petitioner never returned to her post.

7. Lieutenant Michael Batchelor was another supervisor employed by Giddens Security at times relevant to the inquiry. Among his responsibilities was the supervision of security officers working for Giddens Security at the construction site for Flournoy Construction Company, in Duval County, Florida. Petitioner had been assigned to work at the Flournoy site from 6:00 p.m. July 6, 1997, to 6:00 a.m. July 7, 1997, in the capacity of a security officer.

8. Lieutenant Batchelor arrived at the Flournoy Construction site around 1:05 a.m. July 7, 1997. He went there specifically to give the key to the gate at the site to the security officer on duty. Lieutenant Batchelor could not locate the Petitioner at the site. Lieutenant Batchelor then undertook the responsibility to secure the Flournoy site from the time of his arrival until 6:00 a.m., July 7, 1997. During that time Petitioner never appeared at the site.

9. Petitioner's responsibilities for patrolling the Flournoy Construction site were the same as those for the Centex site. Petitioner was expected to secure the property at the Flournoy site and keep persons from trespassing there. As with the circumstances with the Centex site, for the period that the supervisor was in attendance and Petitioner was not, Petitioner had abandoned her post at the Flournoy Construction site.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties of this case in accordance with Sections 120.569 and 120.57(1), Florida Statutes.

11. Respondent has jurisdiction to consider the actions of Class "D" licensed private security officers pursuant to Section 493.6121, Florida Statutes.

12. Section 493.6113, Florida Statutes, calls upon a person holding a Class "D" private security guard license to renew that

    license on a biennial basis by filing an application with Respondent accompanied by payment of the prescribed license fee. Petitioner held a Class "D" license and was responsible for compliance with that section. If the entitlement to the renewal is contested, the expectation is that Petitioner must offer a prima facie case by preponderance of the evidence of entitlement to the license. See Florida Department of Transportation v.

    J.W.C., Co., 396 So. 2d 778 (Fla. 1st DCA 1981). But if the

    
    

    basis for denial of the renewal is premised upon conduct which would subject the Petitioner to discipline, Respondent must prove by clear and convincing evidence that the conduct occurred.

    Department of Banking and Finance v. Osborne, Stern and Cove, 607 So. 2d 932 (Fla. 1996). There was no dispute between the parties concerning the necessity for Petitioner to make a prima facie showing of her entitlement to the license renewal. Instead, the dispute between the parties exists concerning the grounds for denial which constitute the attempt by the Respondent to impose discipline as a means to deny the license renewal.

13. One reason for denial was the allegation that the Petitioner failed to notify Respondent of a change of her address as contemplated by Section 493.61016(3), Florida Statutes. That section makes it incumbent for the licensee to notify the Respondent in writing within ten days of a change in her residence or mailing address. Failure to provide notification would constitute a violation of Section 493.6118(1)(t), Florida

    Statutes, which creates grounds for disciplinary action against a licensee for violating provisions of Chapter 493, Florida Statutes. In the event the violation is shown, Respondent is entitled to deny the renewal of that license in accordance with Section 493.6118(2)(a), Florida Statutes. The proof at hearing was insufficient to show a violation of the laws pertaining to the necessity to notify the Respondent based upon the Petitioner's change in her address.

14. By contrast, clear and convincing evidence was presented to show that Respondent had abandoned her duties as a licensed private security officer in association with her employment by Giddens Security for the benefit of its clients Centex and Flournoy on June 26, 1997, and July 7, 1997, respectively. This abandonment violated Section 493.6118(1)(f), Florida Statutes as constituting misconduct in the practice of Petitioner's regulated activities under Chapter 493, Florida Statutes. Based upon those grounds for discipline, Respondent is entitled to impose the discipline of denial of the request to renew the Class "D" private security officer license in accordance with Section 493.6118(2)(a), Florida Statutes. The abandonment constituted a dereliction of duty creating a possible risk for the businesses subject to the protection of Giddens Security through efforts by security personnel employed by Giddens. Fortunately, other persons took over the assignments abandoned by Petitioner and protected the clients' interests.

This good fortune for the clients, and Petitioner's employer Giddens, does not forgive Petitioner's breach of her obligation to provide that security.

RECOMMENDATION

Upon consideration of the facts found and the conclusions of law reached, it is recommended that a Final Order be entered which denys Petitioner her renewal of the Class "D" private security officer license which she held.

DONE AND ENTERED this 13th day of March, 1998, in Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

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 13th day of March, 1998.

COPIES FURNISHED:

Kimberely Webber 6756 103rd Street

Jacksonville, Florida 32210

Michele Guy, Esquire Department of Licensing

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

Don Bell, Esquire Department of State

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

Sandra B. Mortham, Secretary Secretary 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: 97-005602

Orders for Case No: 97-005602