STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, DIVISION ) OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 88-1760

) ALFRED L. MURRELL and MURRELL ) SECURITY PATROL, INC., )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held on July 7, 1988, in Melbourne, Florida, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

The representatives of the parties were as follows: For Petitioner: R. Timothy Jansen, Est.

Assistant General Counsel

Department of State

Division of Licensing, The Capitol Tallahassee, Florida 32399-0250

For Respondents: John C. Murphy, Esquire

1901 South Harbor City Boulevard Suite 805

Melbourne, Florida 32901 BACKGROUND

By Administrative Complaint dated March 24, 1988, Petitioner alleged that Respondent Murrell Security Patrol, Incorporated and Respondent Alfred L. Murrell, as owner, had violated Chapter 493, Florida Statutes. Count I alleged that "Respondent" violated Sections 493.319(1)(f) and 493.304(11)(b) by failing to designate a manager for its watchman, guard or patrol branch office located in Orlando. Count II alleged that "Respondent" violated Sections 493.319(1)(f) and 493.304(1) by soliciting business for the Orlando office while it was not properly licensed. Count III alleged that "Respondent" violated Sections 493.305(1) and 493.319(1)(f) by the failure of the corporate officers of Murrell Security Patrol, Incorporated to be properly registered since their appointment on March 13, 1984.

By Written statement dated April 5, 1988, Respondents requested a formal hearing.

Petitioner presented two witnesses. Respondents presented one witness.

Petitioner offered into evidence five exhibits. Respondents offered into

evidence three exhibits. All exhibits were admitted into evidence except for Petitioner's Exhibit 5 and Respondents' Exhibit 3.

Petitioner filed a proposed recommended order. Treatment accorded the proposed findings of fact is detailed in the Appendix.

FINDINGS OF FACT

1. Each Respondent holds a Class "B" Watchman, Guard, or patrol Agency License number BOO-00847 and has held such licensure at all relevant times. All references to Respondent are to Murrell security Patrol, Incorporated. All references to Respondent Murrell are to Alfred L. Murrell.

   
   

2. Respondent's main office was at all relevant times in Melbourne, Florida.

   
   

3. In August, 1986, Respondent leased office space for a branch office in Orlando, Florida.

   
   

4. Respondent hired Lee Hayes as branch manager for the Orlando office. Mr. Hayes worked for Respondent from early September, 1986, until mid-January, 1987.

   
   

5. Shortly after beginning to work for Respondent, Mr. Hayes and Respondent applied to Petitioner for, respectively, a Class "MB" branch manager's license and a Class "BB" branch office license, which were subsequently issued.

   
   

6. Following Mr. Hayes' departure, the managerial duties of the Orlando branch office were in large part performed by Gerald Bellizzi, who supervised guards on patrol, solicited guard business, billed accounts, and collected receivables. Mr. Bellizzi had no Class "MB" license, nor any other license under Chapter 493 until he obtained, in late December, 1986, a Class "D" license, which allowed him to perform watchman, guard, or patrol duties.

   
   

7. Respondent provided Mr. Hayes, while he served as manager of the Orlando branch office, business cards to be used in soliciting business. These cards stated that Respondent's business included investigations, in addition to guard and patrol duty. At the same time, Respondent placed an advertisement in the Southern Bell Yellow Pages in the Orlando area. The ad stated that Respondent's services included investigations.

   
   

8. Although the Orlando branch office never performed any investigations, Mr. Hayes received two inquiries concerning the possibility of Respondent performing investigative services. In responding to the first inquiry, Mr. Hayes contacted Respondent Murrell and, with his permission, quoted an hourly rate for investigative work. In both cases, the prospective customers never asked Respondent to do any work.

   
   

9. At all times since the incorporation of Respondent in 1976, Respondent Murrell has been its president and his son, Mike Murrell, has been Respondent's vice president.

   
   

   CONCLUSIONS OF LAW

   
   

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

11. Section 493.319(1)(f), Florida Statutes, provides that Petitioner may discipline a license if the licensee is "guilty of fraud or deceit, or of negligence, incompetency, or misconduct, in the practice of his business . . .

    ."

    
    

12. Section 493.305(1), Florida Statutes, sets forth the procedures for applying for licensure under Chapter 493.

    
    

13. Section 493.304(1), Florida Statutes, requires that any entity engaging in business as a private investigative agency must hold a Class "A" license.

    
    

14. Section 493.319(1)(g) and (p), Florida Statutes, provides that Petitioner may discipline a license if the licensee conducts business without a license or violates any provision of Chapter 493.

    
    

15. Section 493.319(2), Florida Statutes, provides that, for any violation of Section 493.319(1), Petitioner may, inter alia, revoke or suspend a license, impose an administrative fine of not more than $1000 for every count or offense, issue a reprimand, or place the licensee on probation.

    
    

16. Petitioner must prove the allegation of the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

17. "In license revocation proceedings, case law requires strict construction of statutes and specificity of charges." Davis v. Department of Professional Regulation, 457 So.2d 1074, 1078 (Fla. 1st DCA 1984). In Davis, the court found that, by managing a funeral home, the licensee had not violated an agency order not to serve as a funeral director. The Davis court cited Hickey v. Wells, 91 So.2d 206 (Fla. 1957) and Moncrief v. State, Commissioner of Insurance, 415 So.2d 785 (Fla. 1st DCA 1982) as additional authority for the requirement of specificity of charges.

    
    

18. Petitioner has proven by clear and convincing evidence that the person managing the Orlando office after Mr. Hayes' departure in November, 1986, lacked the required licensure. Petitioner has not proven any fraud, negligence, or other elements of Section 493.319(1)(f), but has proven a violation of Section 493.319(1)(g) and (p), which prohibits conducting a business without a license and the violation of any provision of Chapter 493. Although the allegations concern the failure to designate a manager, it is clear that Petitioner intended to allege that Respondent failed to designate a licensed manager. Petitioner has therefore proven the allegations in Count I as to both respondents.

    
    

19. Petitioner has proven by clear and convincing evidence that the Orlando branch office was engaged in the business of investigations while Mr. Hayes was the branch manager. Petitioner has not proven any fraud, negligence, or other elements of Section 493.319(1)(f), but has proven a violation of Section 493.319(1)(g) and (p), which prohibits conducting a business without a license and any violation of any provisions of Chapter 493. Respondent engaged in the investigative business when it solicited such business and quoted rates. Petitioner has therefore proven the allegations in Count II as to both Respondents.

1. Petitioner has failed to prove by clear and convincing evidence the allegations of Count III. Petitioner has not proven any fraud, negligence, or

   other elements of Section 493.319(1)(f). It appears that Petitioner intended to rely in this count upon Section 493.319(1)(p), insofar as Petitioner alleged a violation of Section 419.305(1) regarding application procedures. The confusion is compounded, however, by the allegation that the Messrs. Murrell have been officers since March 13, 1984. This allegation implies that some change in officers resulted in the alleged violation. The evidence does not support this allegation; to the contrary, the officers appear to have been unchanged since the incorporation of Respondent in 1976.

   
   

2. Count III also alleges that the violation arose when the officers failed to register with Petitioner as officers. This allegation is ambiguous and misleading. It lends itself equally to an interpretation that the officers failed to satisfy their statutory duty to obtain licenses as officers or that Respondent failed to disclose sufficiently in its application materials the identity of its officers. The above-cited case authority prohibits such vagueness in charging pleadings. Petitioner has therefore' failed to prove the allegations of Count III.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered finding Respondents Alfred L. Murrell and Murrell Security Patrol, Incorporated, not guilty of the charges contained in Count III of the Administrative Complaint, but guilty of the charges contained in Counts I and II. It is further recommended that the Final Order impose an administrative fine upon respondents, jointly and severally, in the amount of $500.

DONE and RECOMMENDED this 15th day of August, 1988, in Tallahassee, Florida.

ROBERT E. MEALE

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of August, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1760

Treatment Accorded Petitioner's Proposed Findings 1-3. Rejected as not finding of fact.

4a. Adopted.

4b,c. Rejected as irrelevant.

1. First sentence adopted. Remainder rejected as recitation of testimony.

2. Rejected as recitation of testimony and subordinate.

3. Rejected as recitation of testimony and, in view of the

nonspecificity of allegations in Count III, irrelevant. 8. Rejected as recitation of testimony and subordinate.

COPIES FURNISHED:

R. Timothy Jansen, Esquire Assistant General Counsel Department of State Division of Licensing

The Capitol

Tallahassee, Florida 32399-0250

John C. Murphy, Esquire

1901 South Harbor City Boulevard Suite 805

Melbourne, Florida 32901

Honorable Jim Smith Secretary of State The Capitol

Tallahassee, Florida 32399-0250

Ken Rouse General Counsel

Department of State

181 The Capitol

Tallahassee, Florida 32399-0250

Docket for Case No: 88-001760

Orders for Case No: 88-001760