STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, DIVISION ) OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1240

)

DONALD F. GAGE and CENTRAL )

SECURITY SERVICES, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this case before Arnold H. Pollock, Hearing Officer with the Division of Administrative Hearings, in Orlando, Florida, on August 29, 1983. The issue for determination at the hearing was whether Respondent corporation should be fined by Petitioner for several violations of Florida law.

APPEARANCES

For Petitioner: Stephen Nall, Esquire

Department of State The Capitol

Tallahassee, Florida 32301

For Respondent: William J. Sheaffer, Esquire

512 East Washington Street Orlando, Florida 32801

BACKGROUND INFORMATION

By letter dated January 24, 1983, Petitioner notified Respondents of its intention to impose administrative fines in the total amount of $300 for two alleged violations of Chapter 493, Florida Statutes (1981). Respondents requested a formal hearing on the issues presented on February 14, 1983, but the case was not filed with this office until April 25, 1983. Hearing was originally set for July 22, 1983, but, at the request of Respondents, was continued to August 29, 1983.

At the hearing, Petitioner presented the testimony of Mary Gast and Willie Rister. Respondent Gage testified in his own behalf and presented the testimony of Russell L. Luedke.

FINDINGS OF FACT

1. Respondent Donald F. Gage has been employed by Respondent Central Security Services, Inc. (CSS), since 1978, when he retired from military service, and has been president of the company for approximately one year. At

   all times pertinent to this hearing, Respondent CSS was a licensed patrol agency in the State of Florida.

   
   

2. In October of 1982, Robert D. Weber was employed by CSS as a supervisor. The individual who actually employed him was Respondent Gage, who knew Weber quite well, as they had been in the military together, where Weber had approximately 20 years' experience with handguns as a military policeman. Weber had been an employee of CSS previously, but had left prior to the time Gage came with the firm. He had previously held a gun permit, but that license had expired more than six months prior to his being rehired.

   
   

3. When Weber came back with CSS, he applied for a Class "D" unarmed guard license and had been issued a temporary license of that class. That temporary license authorized him to work as an unarmed guard, and he was so working as an unarmed supervisor. However, the company planned to use him in the position of an armed supervisor, and, to that end, Weber went to Petitioner's Orlando office to inquire about getting a temporary, upgraded "G" license. Part of the requirements for that license is qualification as competent in the operation of a firearm.

   
   

4. Because Weber had not received his permanent "D" license, due to the fact that his fingerprints had not yet been cleared with the Federal Bureau of Investigation, he was advised by Mr. Willie Rister, Petitioner's employee, that he could not get the "G" license he wanted. As a result, Weber left the office without filing the application. Respondent Gage also made telephonic inquiry of Mr. Rister on Weber's behalf and was likewise turned down.

   
   

5. However, in an effort to complete as many of the preliminary requirements as possible, on October 13, 1982, Mr. Russell L. Luedke, Assistant Director for CSS, whose job includes setting up weapons training for CSS employees, issued a 0.38 caliber revolver to Weber and similar weapons to several others who were to qualify. No ammunition was provided, as it was to be furnished at the range. Luedke told each individual, including Weber, to use the weapon at the range, to thereafter take it home and clean it, and to return it to CSS. This is not a practice unique to CSS on this day. CSS has used the same procedure many times before, and this same procedure is followed by other agencies with whom both Luedke and Gage are familiar. Weber fired on October 13, 1982, scoring 142 out of a possible 150.

   
   

6. Though no time limit was stipulated for the return of the weapon, it was envisioned by Luedke that it would be returned the day after firing. However, Weber did not return it, and, ten days later the weapon was used to kill Weber. While there is no definite evidence if Weber was murdered or not, there is no doubt that his wife had the gun in her hand, at their home when it went off. This ten-day delay in returning the weapon was not a usual occurrence. However, in this case Weber did not have any weapon-cleaning equipment at home and was going to get it from the office. Because Weber's and Luedke's working hours did not coincide and Luedke repeatedly neglected to leave the appropriate cabinet open for Weber, he could not get the equipment to clean the weapon.

   
   

7. The weapon was not issued to Weber to be carried by him in the normal course of his duties. It was issued only for the limited purpose of qualifying in the use of the weapon before a registered instructor. There were no registered instructors on the staff of CSS.

8. When the notice of Weber's death appeared in the local papers, Mr. Rister checked the records of his department and discovered that Weber had applied for a license as an unarmed guard ("D"), but had not actually applied for a license to carry a gun ("G"). As a result, he conducted an investigation, the results of which he forwarded to the Petitioner in Tallahassee. When Ms. Gast, Division Director, reviewed the file, she determined Respondent's action constituted a violation of Sections 493.315 and 493.319(l)(f), Florida Statutes (1981). There are, however, no Department rules establishing standards for firearm qualification in situations such as this. At the hearing, Mr. Rister and Ms. Gast disagreed as to what would constitute proper and lawful procedures for firearm qualification. Mr. Rister concluded that if the properly licensed agency representative were to transport the weapons to the range, issue them there, and collect them after firing for retransport to the agency, no violation would occur. Ms. Gast disagreed, concluding that even such a controlled "issue" of a firearm to an unlicensed employee would constitute a violation. Her solution would be that, as in the case of driver's license testing, the applicant must furnish his own [weapon].

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

   
   

10. Petitioner has charged Respondents with negligence or misconduct in the practice of its/his business by issuing a firearm to a person who did not possess a gun permit [Section 493.319(l)(f), Florida Statutes (1981)]; furnishing a weapon when the position did not require an armed guard [Section 493.315(2), Florida Statutes (1981)]; and, thereby, Section 493.319(l)(p), Florida Statutes (1981). These sections state:

    
    

    Section 493.315:

    (2) No employee shall carry or be furnished a weapon or firearm unless the carrying of a weapon or firearm is required by his duties, nor shall an employee carry a weapon or firearm except in connection with those duties. When carried pursuant to this subsection, the weapon or firearm shall be encased in view at all times unless the employee complies with ss. 790.05 and 790.06 as they pertain to concealed weapons or firearms.

    
    

    Section 493.319

    (1) The following constitute grounds for which disciplinary action specified in subsection (2) may be taken:

    * * *

    (f) Proof that the licensee is guilty of fraud or deceit, or of negligence, incompetency, or misconduct, in the practice of his business for which the license is held;

    * * *

    (p) Violating any provision of this chapter.

11. Turning to the question of negligence or misconduct as alleged, the evidence shows that Weber was a former military policeman who had 20 years' more or less experience with hand weapons and had previously held a "G" gun permit during an earlier period of employment with CSS. His credentials had, in essence, been established, and the requirement for requalification was, for the most part, a formality. Further, only the weapon itself, without ammunition, was issued, with the instruction it was to be cleaned and returned. If there was any negligence displayed, it was on the part of Mr. Luedke in failing to leave the cabinet open so Weber could clean the weapon and return it. This negligence, however, does not create culpability on the part of either Respondent. Consequently, the evidence does not show negligence or misconduct to constitute a violation of Section 493.319(l)(f), Florida Statutes (1981).

    
    

12. In Section 493.315(2), the term "be furnished a weapon" implies an intention on the part of the agency of a long-term transfer to an employee. It was not, to be sure, intended that weapons not be furnished under controlled conditions, as here, for the purpose of enhancing an employee's skills and value as an employee. Had Weber been furnished a pistol to carry without any parameters being place around the issue and the carrying, a violation would have occurred. Where, as here, however, there was but a limited issue for a specific and limited purpose and time period, there is no "furnishing" as proscribed by the statute.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED that the proposed fines against both Respondents be withdrawn.

DONE AND ENTERED this 23rd day of September 1983 in Tallahassee, Florida.

COPIES FURNISHED:

Stephen Nall, Esquire Department of State The Capitol

Tallahassee, Florida 32301

William J. Sheaffer, Esquire

512 East Washington Street Orlando, Florida 32801

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative Hearings Department of Administration

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September 1983.

The Honorable George Firestone Secretary of State

The Capitol

Tallahassee, Florida 32301

Docket for Case No: 83-001240

Orders for Case No: 83-001240