STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, DIVISION ) OF LICENSING, )

)

Petitioner, )

)

vs. ) Case No. 97-6004

)

JOSEPH J. WHEATON, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Sarasota, Florida, on April 17, 1998.

APPEARANCES

For Petitioner: Michele Guy

Assistant General Counsel Department of State Division of Licensing

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

For Respondent: Joseph J. Wheaton

904 70th Street

Sarasota, Florida 34243 STATEMENT OF THE ISSUE

The issue is whether Respondent committed misconduct in the practice of regulated activities by falsely reporting that he was on duty at his assigned security post, in violation of Section 493.6118 (1)(f), Florida Statutes, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Amended Administrative Complaint, Petitioner alleged that Respondent, on or about January 17, 1997, falsely reported that he was on duty when he was not. Respondent timely requested a formal hearing.

At the start of the hearing, Respondent requested a continuance in order to retain an attorney. The administrative law judge denied the request.

At the hearing, Petitioner called three witnesses and offered into evidence seven exhibits. Respondent called one witness and offered into evidence one exhibit. All exhibits were admitted.

The court reporter filed the transcript on May 7, 1998.

FINDINGS OF FACT

1. At all material times, Respondent has held a

   
   

   Class "D" Security Officer license, bearing number D90-17908, which is effective from November 21, 1996, through

   November 13, 1998.

   
   

2. On January 17, 1997, while employed as a security guard by Employer Security Company, Respondent was scheduled to work the 8:00 pm to 6:00 am shift at a car dealership in Bradenton.

3. Later in the evening, Respondent's supervisor discovered that Respondent was absent from his post without leave. A day or two later, the supervisor asked Respondent to explain, and Respondent replied that, while he was driving to work that evening, two Mexicans had jumped in his car and carjacked him.

4. Respondent's fanciful story was untrue, although Respondent had picked up some youths in the middle of the night along the highway, when Respondent should have been at the car dealership, and one or two of these persons roughed up Respondent and took his car. However, Petitioner has not charged Respondent with the misconduct of leaving his post without leave or lying to a supervisor.

5. In the course of spinning his tale of a Mexican abduction, Respondent acknowledged that he had not been at the car dealership when he had first called in to headquarters to report that he had started his shift. Instead, he had called in from home.

6. As Respondent knew, the purpose of the telephone call is to confirm that the security guard has assumed his duties. As Respondent knew, it makes no sense to make the call from home because the security guard cannot assume his duties until he reaches his post.

7. Thus, Respondent's testimony that he believed his practice of calling in from home was acceptable is

   discredited. When Respondent called in from home, he was violating his employer's policy and fraudulently reporting that he had assumed his duties.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

9. Section 493.6118(1)(f) provides that Petitioner may impose discipline upon proof that the licensee is "guilty of fraud or deceit, or of negligence, incompetency, or misconduct, in the practice of the activities regulated under this chapter."

10. Section 493.6118(2) provides that, upon proof of a violation of Section 493.6118(1), Petitioner may impose a variety of penalties, including an administrative fine of

    $1000 per count, probation, suspension, or revocation.

    
    

11. Petitioner must prove the material allegations by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, Inc., 670 So. 2d 932 (Fla. 1996) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

12. Petitioner has proved that, at the start of his shift, Respondent falsely reported that he was at his duty site when he was not.

13. Petitioner's disciplinary guidelines at Rule

1C-3.113(2), Florida Administrative Code, fail to address the present violation. Respondent's obvious lack of candor at the hearing in persisting to recount his incredible, outlandish version of events is a serious aggravating factor in this case.

RECOMMENDATION

It is

RECOMMENDED that the Department of State enter a final order imposing an administrative fine of $1000, suspension for six months, and probation for two years following the conclusion of the term of the suspension.

DONE AND ENTERED this 10th day of July, 1998, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

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 10th day of July, 1998.

COPIES FURNISHED:

Michele Guy

Assistant General Counsel Department of State Division of Licensing

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

Joseph J. Wheaton 904 70th Street

Sarasota, Florida 34243

Honorable Sandra B. Mortham Secretary of State

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

Don Bell, General Counsel Department of State

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

John M. Russi, Director Division of Licensing 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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 97-006004

Orders for Case No: 97-006004