STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SECRETARY OF STATE, DIVISION ) OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 80-499

) WEST COAST DETECTIVE AGENCY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on August 1, 1980, in Naples, Florida.

W. J. Gladwin, Jr., Esquire, Tallahassee, Florida, appeared on behalf of the petitioner, Secretary of State, Division of Licensing; and the Respondent, West Coast Detective Agency, was represented by Robert L. Williams, Jr., Esquire, Naples, Florida.

On January 30, 1980, petitioner served Respondent with three Notices of Violation, which Notices charged Respondent with unlawfully employing two guards who had not filed a license application with the Department of State, allowing guards to carry firearms other than .38 caliber standard police revolvers, and using the designation "police" on a uniform patch implying association with a municipal organization. Thereafter, Petitioner assessed a fine of five hundred dollars against the Respondent as a result of the Notices of Violation. The issue to be determined is whether petitioner's assessment of a civil penalty is proper.

Frank Calhoun, Shirley Ziel Hall, and Michael Tsacris testified on behalf of the petitioner; and Ralph C. Cox, Ralph J Cox, and Pamela M. Cox testified on behalf of the Respondent. At the conclusion of the hearing, the Respondent requested and was given an opportunity to submit proposed findings of fact in the form of a proposed recommended order, but Respondent failed to avail itself of that opportunity.

FINDINGS OF FACT

1. Respondent, West Coast Detective Agency, is a private investigative agency licensed pursuant to the provisions of Chapter 493, Florida Statutes (1979), and Ralph C. Cox is the owner and agent of the Respondent.

   
   

2. A complaint was made to Petitioner's Tallahassee office by a William McDonald, stating that West Coast Detective Agency had deducted $7.50 from his pay representing the fee for a guard license but that he had never received his license. As a result of that complaint, Earl Cushing, Petitioner's Inspector Supervisor for the State, instructed Petitioner's regional office to conduct an

   official unannounced premise inspection. The case was assigned to Shirley Ziel Hall. Since Mrs. Hall was a relatively new regional representative, she was accompanied by Frank Calhoun, the Regional Supervisor, on January 30, 1900, the date of the unannounced premise inspection.

   
   

3. Upon their arrival at the Respondent's office, Calhoun and Hall identified themselves and examined the business records of the Respondent. That examination, together with verification telephone calls to the Division of Licensing in Tallahassee, revealed that Respondent had employed Robert Quinn on November 9, 1979, and Jeffery M. Williams on December 18, 1979. However, Respondent did not send to Tallahassee those two employees' applications for licensure as guards until January 9, 1980. At the time that these two guards were hired, Pamela M. Cox, the office manager of Respondent and wife of the agency's owner, was on maternity leave, and the substitute secretary had not forwarded the applications for licensure. When Mrs. Cox returned from leave, she found the applications and mailed them.

   
   

4. Ralph J. Cox, the owner's son, came into Respondent's office while Calhoun and Hall were conducting their inspection. He was wearing a patch which read "WCDA Police" on the right shoulder of his uniform. The Coxes acknowledged they knew such a patch was illegal and explained that they were in the process of changing the patches on all uniforms but that Ralph J. Cox was wearing an old shirt on that day. Ralph J. Cox is not a member of a police auxiliary. Several years earlier, Michael Tsacris, a regional representative of the petitioner, had visited the Respondent's office, had seen Respondent's uniforms with patches carrying the police designation, and had advised Ralph C. Cox to change the patches. He did not issue a Notice of Violation to the Respondent at that time.

   
   

5. While at the Agency, Calhoun inspected the weapon being carried by Ralph J. Cox and found that it was a .357 magnum with hollow point bullets. The Coxes explained that Respondent owned an armored car business which is under the jurisdiction of the Public Service Commission and that Ralph J. Cox had been working in the armored car. However, he was only able to produce "F" and "G" licenses issued by the Petitioner as his authority to carry such a weapon and did not produce any authorization from the Public Service Commission. In a discussion following the examination of the weapon, Ralph C. Cox admitted he knew that employees of his agency were not permitted to carry such a weapon. Ralph J. Cox possesses "F" and "G" licenses because he is employed by the Respondent.

   
   

6. Calhoun then went to the First National Bank of Naples where an employee of Respondent, Ralph Mongold, was on duty. Mongold's weapon was also a

   .357 magnum loaded with hollow point bullets. Ralph C. Cox explained that one of his employees had called in sick, and he had taken Mongold off the armored car instructed him to work at the bank and, therefore, Mongold was carrying a

   .357 magnum. Calhoun did not observe an armored car in the area of the bank, and Mongold did not indicate he was working with an armored car at that time.

   
   

7. Calhoun issued to the Respondent three Notices of Violation, and thereafter his superiors assessed a fine of five hundred dollars against West Coast Detective Agency.

   
   

   CONCLUSIONS OF LAW

   
   

8. Section 493.02(1), Florida Statutes (1979), grants to the Petitioner the authority to assess a civil penalty against a licensee in an amount not to exceed one thousand dollars; and Section 493.14(1)(b), Florida Statutes (1979)

   authorizes the Department to suspend or revoke a license when a licensee willfully and knowingly violates statutory provisions. Competent, substantial evidence was presented to show that Respondent willfully and knowingly employed two guards who had not filed a license application with the Petitioner in violation of Section 493.04(2), allowed guards to carry firearms other than a standard police .38 caliber revolver with standard ammunition in violation of Section 493.21(6), and allowed an employee to use the designation "Police" on a uniform patch thereby implying association with a municipal organization in violation of Section 493.28(1) and (2), Florida Statutes (1979).

   
   

9. Respondent's explanations of "extenuating circumstances" regarding each violation are unimpressive. Each statutory violation charged is written in mandatory language, and Petitioner is not granted discretion in enforcing those mandates. Further, Ralph C. Cox, Respondent's owner and agent, admitted knowledge of each of the violations in spite of his attempts to excuse them. Moreover, the main thrust of Respondent's defense is that Calhoun was arrogant and did not conduct his premise inspection in a courteous manner. Even if Respondent had proven that allegation, it would be immaterial since it does not constitute a legal or a logical defense. Equally unimpressive is Respondent's argument that the penalty assessed is harsh because Respondent usually complies with its statutory obligations. The violation charged here proven, and the penalty assessed is within the authority granted by the Legislature to the Petitioner herein.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED THAT:

A Final Order be entered requiring Respondent to pay a civil penalty of five hundred dollars to the Petitioner by a date certain.

RECOMMENDED this 18th day of November, 1980, in Tallahassee, Florida.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings Department of Administration

Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the clerk of the Division of Administrative Hearings this 18th day of November, 1980.

COPIES FURNISHED:

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

The Capitol

Tallahassee, Florida 32301

Robert L. Williams, Jr., Esquire Carroll, McPeak, Bolesky & Shryver The Office at the Cove

1169 Eighth Street, South Naples, Florida 33940

The Honorable George Firestone Secretary of State

State of Florida The Capitol

Tallahassee, Florida 32301

Docket for Case No: 80-000499

Orders for Case No: 80-000499