STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CURTIS JACKSON, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1169S

)

DIVISION OF LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, on August 10, 1979, in Jacksonville, Florida. This case arose upon the denial of the application for a Class "F" Unarmed Guard License and Class "G" Armed Guard License of Petitioner, Curtis Jackson, by the Division of Licensing on the grounds that the Petitioner did not meet the qualifications stated in Section 493.08 and 493.14, Florida Statutes.

APPEARANCES

For Petitioner: John F. Cuddy, Esquire

333 East Bay Street Jacksonville, Florida 32202

For Respondent: W. J. Gladwin, Jr., Esquire

Assistant General Counsel Department of State

The Capitol

Tallahassee, Florida 32301 FINDINGS OF FACT

1. Prior to the commencement of the hearing, the parties stipulated to the following facts:

   
   

   1. The Petitioner submitted applications for licensure as a Class "F" Unarmed Guard and Class "G" Armed Guard.

      
      

   2. The Petitioner's application is in proper form, and the Petitioner is qualified for licensure as an unarmed guard and armed guard, except for the grounds stated in the Department's letter dated May 16, 1979, which grounds are at issue.

      
      

2. The Petitioner has been an armed security guard since before the State began licensing security guards. The Petitioner currently works part-time on

   weekends as an unarmed security guard protecting property and maintaining order at a nightclub in Jacksonville, Florida. He works during the week as a locker room attendant at a golf club in the Jacksonville area.

   
   

3. The Petitioner has been employed for a number of years with the same company. His employer is confident in the Petitioner's ability to perform his assigned duties. The Petitioner has been promoted over the years to the rank of lieutenant and is used by his employer as a shift supervisor. The Petitioner has been sent by his company to a firearms course in Orlando, Florida, where the Petitioner qualified in the use of firearms and received instruction in when they can be employed.

   
   

4. The nightclubs where the Petitioner works are rough, particularly on the weekends. Fights and other disturbances are common. The policy of the security company for which the Petitioner works is for guards not to become involved with customers beyond requesting them to restrain themselves and to call for the police if physical intervention is necessary.

   
   

5. The sole evidence presented against the Petitioner supporting denial of his application was a record of three prior arrests and the court's disposition of those charges. See Exhibits 1, 2 and 3. These records reveal that the Petitioner was arrested two times in 1972 and once in 1975. The court found the Petitioner not guilty of the offenses with which he was charged in his last arrests in December of 1972 and April of 1975. The court found the Petitioner guilty of simple assault and battery, disorderly conduct (fighting), and drunkenness in July of 1972. These charges arose out of the same incident.

   
   

6. Concerning this incident, the Petitioner stated that on one of his nights off, he was at the nightclub where he usually worked. A man with whom he earlier had had problems started a fight with him outside the club, hitting him twice with a board across the back and on the arms. The Petitioner fought with the other man after having been struck. The court sentenced the Petitioner to pay a fine of $106.00 or serve ten days in jail.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Petitioner's application for licensure as an unarmed and armed guard as denied on the following grounds:

   
   

   1. Conviction of a crime involving moral turpitude;

      
      

   2. Failure to meet character qualifications; and

      
      

   3. Committing an assault or battery, except in self-defense or in defense of a client.

      
      

8. There is no evidence that the Petitioner has committed a crime involving moral turpitude. Although the Petitioner was convicted of assault and battery, disorderly conduct, and drunkenness, none of these offenses involve moral turpitude.

   
   

9. Character qualifications are not defined by the statute or by any rule adopted by the agency. It is construed to require an applicant to possess good character. Good character is generally deemed to be a reputation for fair dealing, honesty, and good morals. No evidence was presented that the Petitioner is dishonest, lacks a reputation for fair dealing, or is not possessed of good morals. The Petitioner is regularly employed, he is

   considered a good worker by the head of his security agency, and he has been arrested only for minor traffic-type offenses since 1975.

   
   

10. Although the Petitioner did commit an assault and battery in 1972, his description of the events shows that he acted in self-defense, at best, and at worst, joined in an affray. There is no evidence that the Petitioner has ever misused his position as a security guard to assault or batter anyone or has otherwise assaulted anyone, with the single exception noted above. Section 493.14, Florida Statutes, is intended to prevent the licensure of individuals who misuse, or who might misuse, their position as a security guard. The Petitioner's actual conduct as a security guard does not indicate such a propensity. The issue is whether the Petitioner can be entrusted to carry out his duties without undue violence or force. His work record as a security guard indicates no occasion in which he has assaulted or battered anyone in the performance of his duties prior to or since his conviction of misdemeanor assault and battery.

    
    

11. Regarding the Petitioner's application for an armed guard license, the testimony received from his employer indicates that the Petitioner's primary duty is to maintain good order and to protect the property at a nightclub. It appears unwise to permit any guard utilized to maintain order and to protect property in a nightclub to carry a firearm. Based upon the nature of the assigned duties and the circumstances under which the use of a firearm is warranted, no reasonable purpose is served by arming such a guard. The use of a firearm is justified only to protect life or to prevent the commission of a felony. It would be unwarranted for a guard assigned to maintain good order and to protect property to use deadly force to accomplish either purpose. If rowdy customers will not obey the guard's request to stop, the guard should call the police to enforce the law. This is the procedure employed by the Petitioner's company. Similarly, the use of deadly force merely to protect property from a non-felonious act is not warranted. The introduction of a firearm into a crowded nightclub creates an undue hazard to bystanders which outweighs any potential assistance it may give to a security guard. The agency should consider the necessity of issuing gun permits to the Petitioner or any other person so employed. Further, the agency should consider the adoption of a rule to restrict guard agencies from utilizing armed guards where the nature of their assignment does not warrant, or mitigates against, the use of firearms.

    
    

12. Concerning the Petitioner's request, evidence was received that the Petitioner sometimes works as a shift supervisor. In this capacity, his duties might possibly require his carrying a firearm. Considering the fact that he has, in the past, carried a firearm without incident, without proper training, and has now received such training, there is no reason not to issue the Petitioner an armed guard license.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Petitioner be issued a Class "F" Unarmed Guard

License. Upon certification of his employer that his duties require him to be armed, the Hearing Officer recommends that the agency issue the Petitioner a Class "G" Armed Guard License. The Hearing Officer further recommends that the agency adopt a rule restricting all guard agencies from utilizing armed guards where the nature of their assigned duties does not warrant the use of a firearm to carry out their assignment.

DONE and ENTERED this 24th day of August, 1979, in Tallahassee, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1979.

COPIES FURNISHED:

W.J. Galdwin, Jr., Esquire Assistant General Counsel Department of State

The Capitol Tallahassee, FL 32301

John F. Cuddy, Esquire

333 East Bay Street Jacksonville, FL 32202

Docket for Case No: 79-001169

Orders for Case No: 79-001169