STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, DIVISION OF ) LICENSING, )

)

)

Petitioner, )

)

vs. ) Case No. 97-5969

) A-1 SECURITY & DETECTIVE AGENCY, ) INCORPORATED, STEPHEN V. ROZZI, ) PRESIDENT, )

)

Respondents. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tampa, Florida, on June 12, 1998, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Douglas D. Sunshine, Esquire

Department of State Division of Licensing The Capitol

Mail Station No. 4

Tallahassee, Florida 32399-0250

For Respondent: Rayford H. Taylor, Esquire

Stiles, Taylor, Grace & Smith P.A. Post Office Box 1140

Tallahassee, Florida 32302 STATEMENT OF THE ISSUE

The issue for consideration in this case is whether A-1 Security and Detective Agency’s Class B security agency license, and Mr. Rozzi’s Class MB security agency manager license should

be disciplined because of the matters set out in the Administrative Complaint filed herein.

PRELIMINARY MATTERS

By Administrative Complaint dated October 14, 1997, the Division of Licensing indicated its intent to discipline the Respondents’ Class B and Class MB licenses, respectively, because, it alleged, Respondents employed an unlicensed individual to perform unarmed security services; advertised as a private investigative agency without the appropriate license therefor; violated the terms of probation established by a prior Final Order of the Department of State; and committed deceit in the practice of regulated activities by failing to truthfully respond to the questions of an authorized investigator of the Department. All the above alleged misconduct, if true, would constitute violations of various subsections of Section 493.6118, Florida Statutes. Respondents requested a formal hearing and this hearing ensued.

At the hearing, Petitioner presented the testimony of

Gary Q. Floyd, an investigator with the Department of State and introduced Petitioner’s Exhibits 1 through 3. Respondent Rozzi testified in his own behalf and presented the testimony of Carlos Santiago, a former employee.

At the close of the hearing, the parties agreed that either side could submit depositions of unavailable witnesses within 30 days of the date of the hearing. The undersigned would then have

30 days from the date of receipt of the last deposition to submit a Recommended Order. On June 29, 1998, the parties filed a status report in which it was indicated the deposition in issue, that of Edward Carter, would be taken on July 23, 1998, and both counsel sought an extension of the period for filing the deposition to conform with that schedule. It was so ordered.

Mr. Carter’s deposition was filed with the Division of Administrative hearings on August 3, 1998.

The transcript of the formal hearing proceedings was filed with the undersigned on July 2, 1998. Subsequent thereto, and subsequent to the receipt of the Carter deposition, counsel for both parties submitted matters in writing which were carefully considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, between May 5 and August 4, 1997, the Petitioner, Department of State,

   Division of Licensing (Division) was the state agency responsible for the licensing of security agencies and security agency managers in Florida. Respondent, A-1 Security and Detective Agency, Incorporated (A-1) held a Class “B” security agency license number B89-0115; and Respondent, Stephen V. Rozzi, held a Class “MB” security agency manager’s license number MB89-00186.

   Respondent Rozzi was President and operating manager of A-1.

   
   

2. At some point during the period in issue, Gary Q. Floyd, an investigator with the Division, received a call from the owner

   of another security agency who reported a potential problem. At the time, Mr. Floyd was nearby and responded immediately to the apartment complex which belonged to a client of the individual who had called in. His review of the security logs revealed abnormal entries. Returning to the Division office, Floyd checked on the license status of the guard in question who had made the questionable entries and found that this guard was not licensed. The guard, Carmen Santiago, had applied for a class “D” license as a security guard, but because of a prior disciplinary problem out-of-state, the Division had indicated its intent to deny the license. Santiago was employed by Respondent, A-1.

3. Coincidentally, the following morning, Respondent Rozzi came to the Division office on another matter and Floyd showed him the questioned logs. Respondent agreed that the entry was unusual, but said he had terminated Santiago from employment with A-1 as a guard on July 30, 1997, before the date of the questioned entry. Floyd asked Rozzi which guard had worked on the site on Wednesday, July 30, 1997, and on Thursday,

   July 31, 1997, after Santiago had been terminated. Respondent indicated the replacement guard was a Mr. Michelin.

4. The log entries in question, which got the interest of Floyd, indicated that Santiago, who was not properly licensed as a Class “D” security guard, had served as such at the Whisper Woods Apartments. By pre-hearing stipulation dated

   June 10, 1998, Rozzi agreed that he had employed Santiago at Whisper Woods Apartments during the period July 30 to July 31, 1997, and that Santiago did not have the proper license at the time.

5. Rozzi indicated at hearing that he received notice from the Division to the effect that Santiago’s application for licensure as a security guard was being denied, but claims he did not receive the notice until he picked up his mail at about 9:00 p.m., on July 31, 1997. As soon as he got that word, Rozzi claims, he called Santiago at home but was unable to reach him. Nonetheless, he left word on Santiago’s answering machine for him not to report for work that evening. In his report to the Division made previously, he indicated he had fired Santiago on July 30, 1997. At hearing Rozzi claimed he back-dated the firing to the date he received the information on the denial, which would have been July 30, not July 31, 1997. However, Rozzi had already indicated he had notified Mr. Michelin, who was scheduled to work on July 30 and 31 at Fletcher Woods Apartments, to go instead to Whisper Wood Apartments to relieve Santiago.

   Mr. Carter, another employee, was to take Michelin’s place at Fletcher Wood Apartments. When asked to asked to explain the inconsistencies, he could not do so.

6. Carter, when interviewed by Floyd on August 5, 1997, as a part of the investigation, stated he did not work at Fletcher Woods Apartments that night nor has he ever worked there. Carter

   also indicated that when he was contacted by Rozzi shortly before August 5, 1997, Rozzi told Carter, to say, if he were asked, that he had worked at Fletcher Woods on the night of July 31, 1997.

   When Floyd advised Rozzi of Carter’s story, Rozzi still declined to change his version.

7. Santiago is disqualified from licensure as a security guard in Florida because of his conviction of a felony in another state. Nonetheless, he applied for a security guard license in Florida in April or May 1997. At the time he applied, he received a temporary Class “D” license which allowed him to work pending action on the permanent license application, and he started work at A-1 as a security guard at different locations wherever he was posted. From time to time, including on July 30 and 31, 1997, he worked at Whisper Woods Apartments.

8. On July 30, 1997, Santiago went to work at 4:00 p.m., intending to stay until relieved at the end of his shift, at

   1:00 a.m., on July 31, 1997. At the time he went to work, he did not know that his application for licensure had been denied, nor did he know of the denial when he went to work on July 31, 1997. He claims he did not go home after work on either July 31 or early on August 1, 1997. Santiago claims he first learned of the denial when he got home later in the day on Friday, August 1, 1997, to find Floyd at his door. During the conversation he had with Floyd which followed, Floyd advised him that his license had been denied. This was the first he had heard of the denial, he

   claims. Santiago indicates that as soon as Floyd told him that, he left Floyd in his apartment and immediately went to his mailbox where he found the denial letter from the Division.

9. There is some evidence to indicate that Santiago told Floyd in another interview prior to the hearing, that he had received the letter informing him of the denial on either July 30 or July 31, 1997. At hearing he claims that he was referring to a letter from the Division soliciting more information. This contention is rejected, however, since it is considered unlikely the Division would seek additional information and reject the application almost concurrently with the request.

   
   

10. After Floyd left Santiago on August 1, 1997, Santiago immediately called Rozzi to tell him he could no longer work. Santiago claims Rozzi was upset with him when he called, claiming that he, Rozzi had tried to call Santiago a few days earlier to tell him not to go to work, but Santiago had not received the message or called him back. However, Santiago was at work at Whisper Woods Apartments from 4:00 p.m., on July 30, 1997, until 1:00 a.m., on July 31, 1997, and again that evening, and no one came to the job site either evening to talk with him about his status. This was, he claims, even after he told Rozzi that he, Rozzi, was going to get a letter indicating Santiago’s license was denied. Santiago claims that at no time after that notice did Rozzi terminate him or advise him he would be terminated when

    the letter came in.

    
    

11. Rozzi contended at hearing that the first time he heard anything about the problem with Santiago working was on

    August 1, 1997, when he was in the Division office on a probation matter. It was at that time that Floyd showed him the logs from Whisper Woods Apartments and asked him about what appeared to be differences in the handwriting on them. Floyd also asked him at that time if he knew Santiago’s license was going to be denied.

    Rozzi said then that he had first learned of the problem on

    
    

    July 31, 1997. That same day, Rozzi claims, he made arrangements for someone else to cover that post so that Santiago would not be on duty, and Rozzi insists he did not know that this had not happened until the next day.

    
    

12. Analysis of and comparison of the varied stories told by Rozzi regarding when he found out that Santiago’s license was being denied results in the conclusion that Rozzi found out on July 30, 1997. Had he not known, he would have had no reason to contact Michelin and tell him to switch duty assignments or to call Santiago and leave the message not to go to work any more. However, Michelin did not testify at the hearing, and the evidence of what he told Floyd regarding this is hearsay evidence. Even if Rozzi received the notice on July 30, 1997, as it appears, by his own admission he did not receive it until mid- evening, at a time when Santiago would have already been at work

    on the 4:00 p.m. to 1:00 a.m. shift. There is no way he could have reached Santiago that evening. Knowing this, Rozzi still did not make any effort to contact Santiago by going to the work site and relieving him by taking a relief guard with him.

    Consequently, it is found that regardless of which day Rozzi found out about Santiago’s disqualification, he did nothing to ensure that Santiago did not serve as a security guard without a license. Merely calling Santiago and leaving a message on the answering machine is not enough. At the least, he should have gone to the site to insure Santiago was not on duty.

13. At this initial interview, Floyd also showed Rozzi a copy of one of A-1’s invoice forms which reflected at the bottom that the firm was available to perform certain tasks which were limited to a licensed detective agency and not permitted to a security agency. Rozzi indicated that he had copied the information from an advertisement of another agency, but assured Floyd that A-1 was not doing the unauthorized work. No evidence was introduced to indicate it was, and it is so found. Rozzi agreed to remove the inappropriate language from any form or communication used by the firm immediately. He did so.

14. On December 31, 1996, the Director of the Division of Licensing entered a Final Order in Case No. C96-00855 relating to the two Respondents herein, adopting and incorporating the terms of a Stipulation and Settlement entered into between the division and the Respondents in that case. None of the documentation

    submitted in connection with that case indicates what offenses were alleged to have been committed by either Respondent. The terms of the Stipulation and Settlement called for the Respondents’ licenses to be placed on probation for a period of two years, and for Respondents to pay an administrative fine of four thousand dollars.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

16. The misconduct alleged in this case involves Respondents’ use of an unlicensed security guard, in violation of Section 493.6118(1)(n), Florida Statutes; advertisement of the business as a private investigative agency without an appropriate license for that work, in violation of Section 493.6118(1)(g); violation of the terms of probation by committing a violation of Chapter 493, in violation of Section 493.6118(1)(f); and a failure to respond truthfully to questions by an authorized representative of the Department during an official investigation, in violation of Section 493.6118(1)(f).

17. Section 493.6118(1), Florida Statutes, lists the grounds under which discipline may be taken against a licensee. In particular, these include:

    1. 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. Conducting activities regulated under this chapter without a license or with a revoked or suspended license.

       
       

       (n) Employing or contracting with any unlicensed or improperly licensed person or agency to conduct activities regulated under this chapter, or performing any act that assists, aids, or abets a person or business entity in engaging in unlicensed activity, when the licensure status was known or could have been ascertained by reasonably inquiry.

18. The evidence of record clearly indicates that for a period of two shifts, on the nights of July 30-31 and July 31- August 1, 1997, Respondent employed Mr. Santiago as a security guard after he knew Mr. Santiago’s application for license as such had been denied. Accepting Respondent’s claim that he left a message not to go to work on Mr. Santiago’s answering machine, Respondent Rozzi nonetheless failed to take the reasonable further step of going to the work site to relieve Santiago if the latter did not receive his message. This constitutes a violation of Section 493.6118(1)(g), as alleged.

19. Interpreted in the strictest sense, Respondents’ use of an invoice form which indicates an availability to do work not permitted under the license may constitute advertisement to do work for which he/it was not licensed. At worst, however, in the absence of any evidence to indicate any unauthorized service was performed, only a minor technical violation of

    Section 493.6118(1)(g) has been shown. This violation would not support any significant penalty.

20. Paragraph 6 of Respondents’ prior Terms of Probation as entered on December 31, 1996, indicates that Respondents’ violation of any provision of Chapter 493 during the probationary period shall constitute misconduct. The unlawful employment of Mr. Santiago, as discussed above, and the technical violation involving the improper advertising, both fall within that provision.

21. What appears to be the most serious allegation, and one which clearly has been established, is Respondent Rozzi’s failure to be honest and forthright in his answers to Mr. Floyd’s questions. Respondent gave several answers to the question as to when he received notice of the denial of Mr. Santiago’s license. Recognizing that the violation established by his use of

    Mr. Santiago for two shifts would have been minor and most likely resulted in the imposition of a light penalty, Respondent Rozzi nonetheless obfuscated and told several different stories, failing, even at hearing, to clarify the issue. He also attempted to convince Mr. Carter to mislead the investigator.

22. Save for the latter offenses, the misconduct shown to have been committed by Respondent Rozzi is minor, even considering the prior violation for which he is on probation. However, his obfuscation and attempts to cover-up what was otherwise a minor infraction clearly indicates that Respondent has failed to demonstrate the integrity required of operatives in the security field.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of State, Division of Licensing, enter a Final Order finding Respondents guilty of employing an unlicensed employee to perform services which require the possession of a license; of advertising the business of a private investigative agency without possessing the proper license; of failing to respond truthfully to questions asked by an authorized investigator during an official investigation; and of violating the terms of probation by committing violations of Chapter 493, Florida Statutes. It is further recommended that Respondents’ class “B” and Class “ MB” licenses as a security agency and security agency manager respectively, be revoked.

DONE AND ENTERED this 25th day of August, 1998, in Tallahassee, Leon County, Florida.

ARNOLD H. POLLOCK

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) 921-6947

Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 1998.

COPIES FURNISHED:

Douglas D. Sunshine, Esquire Department of State

Division of Licensing The Capitol

Mail Station 4

Tallahassee, Florida 32399-0250

Rayford H. Taylor, Esquire

Stiles, Taylor, Grace & Smith, P.A. Post office Box 1140

Tallahassee, Florida 32302

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 32399-0250

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: 97-005969

Orders for Case No: 97-005969