STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 89-5307

)

ROBERT D. WINGARD d/b/a )

SECURITY ENFORCEMENT )

SPECIALISTS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above case was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on December 20, 1989 in Punta Gorda, Florida.

APPEARANCES

For Petitioner: Henri C. Cawthon, Esquire

Department of State

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

For Respondent: No Appearance

STATEMENT OF THE ISSUES

The issue is whether respondent should be disciplined for allegedly operating various security services without a license as charged in the administrative complaint.

PRELIMINARY STATEMENT

This matter began on August 7, 1989, when petitioner, Department of State, Division of Licensing (Division), issued an administrative complaint charging that respondent, Robert D. Wingard d/b/a Security Enforcement Specialists, had violated Subsection 493.319(1)(g), Florida Statutes (1987) by providing various security services without a license. More specifically, the complaint alleged that between June 18, 1988 and May 11, 1989, respondent (a) operated an unlicensed private investigative agency (Count I), (b) performed the services of a private investigator without a license (Count II), (c) operated an unlicensed security guard agency (Count III) and (d) performed the services of a security guard without a license (Count IV). Respondent disputed the above allegations and requested a formal hearing. The matter was referred by petitioner to the Division of Administrative Hearings on September 29, 1989.

By notice of hearing issued on October 30, 1989, the matter was scheduled for final hearing on November 14, 1989, in Punta Gorda, Florida. At the request of petitioner, the matter was rescheduled to December 20, 1989, at the same location.

At final hearing, petitioner presented the testimony of Daniel J. Cabrera, a Division investigator, and offered petitioner's exhibit 1, which is a copy of the investigative report. The exhibit was received in evidence. Respondent did not appear at the final hearing.

There is no transcript of hearing. Petitioner waived its right to submit proposed findings of fact and conclusions of law.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. On April 25, 1989, petitioner, Department of State, Division of Licensing (Division), received by mail from an anonymous source a copy of a business card reflecting the name of respondent, Robert D. Wingard, and another individual, and indicating that respondent provided the following services: "Executive & V. I. P. Protection, Undercover Investigation, Alarm Technology, Bonding & Courier Work." The card further represented that Wingard held "Lic. No. 34882-809099." The card listed Wingard's address as 4419 Melbourne Street, Punta Gorda, Florida.

   
   

2. After receiving the card, a Division investigator, Daniel J. Cabrera, interviewed respondent in Punta Gorda on May 11, 1989. During the course of the interview, respondent acknowledged to Cabrera that he operated a private investigative service, performed the services of a private investigator, operated a security guard agency and performed the services of a security guard, all under the name of Security Enforcement Specialists. However, Wingard maintained he had all necessary licenses from the state. According to Charlotte County records, Wingard applied for and was issued an occupational license by that county on June 18, 1988. The administrative complaint has used that date as the date on which Wingard commenced providing the above services.

   
   

3. An examination of Division records indicated that Wingard did not hold those licenses needed to operate the services described in finding of fact 2. Therefore, all services being provided by Wingard were performed without the proper licensure from the state.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1987).

   
   

5. The evidence in this case shows clearly and convincingly that respondent provided security guard services within the meaning of Chapter 493, Florida Statutes (1987) without holding a license. Even so, the dispositive issue in this case, and one not addressed by either party, is whether the disciplinary measures prescribed in chapter 493 can be used against a person who is not a licensee. In answering this question, it is necessary to first observe the cardinal rule that penal statutes must be strictly construed in favor of the person against whom they are being applied. See, E. G. Holmberg v. Department

   of Natural Resources, 503 So.2d 944, 947 (Fla. 1st DCA 1987). Under this principle, any uncertainty, doubt or ambiguity as to the exercise of disciplinary action against an unlicensed person must be resolved in favor of the respondent.

   
   

6. Initially, it is noted that chapter 493 contains specific remedies to be used against unlicensed persons, such as Wingard, who have violated its provisions. For example, subsection 493.321(1) classifies any violation of "this part" as a misdemeanor of the first degree while subsection 493.322(3) authorizes the Division to "enjoin any . . . unlicensed person when such person

   . . . is engaged in performing services which require licensure under this part." This suggests rather clearly that the legislature intended separate, non-administrative measures to be taken whenever the Division discovers an unlicensed person providing security services. Further, subsection 493.319(1) identifies the grounds upon which disciplinary action specified in subsection

   (2) may be taken. Most, but not all, grounds clearly pertain only to licensees or applicants for licensure. Subsection 493.319(2) provides that:

   
   

   (2) When the department finds any violation of subsection (1), it may do one or more of the following:

   1. Deny an application for licensure.

   2. Revoke, suspend, or refuse to renew a license.

   Impose an administrative fine not to exceed $1,000 for every count or separate offense.

   1. Issue a reprimand.

   2. Place the licensee on probation for a period of time and subject to such conditions as the department may specify.

   
   

   Thus, of the five authorized sanctions in subsection 493.319(2), four are specifically restricted by their own terms to applicants or licensees, and only paragraph (c) contains neutral language. However, language in subsection 493.319(5), which provides that "(a) license shall be automatically suspended upon entry of a final order affirming an administrative fine, until the fine is paid," suggests that the legislature intended such fines to be imposed on licensees.

   
   

7. After strictly construing the foregoing provisions, it is concluded that, rather than seeking to discipline Wingard in an administrative proceeding, the Division's appropriate remedy is to either refer the matter to the state attorney for prosecution or seek to enjoin the illicit activities in circuit court, or both. In any event, an administrative action under chapter 493 should not lie. 1/ Therefore, the charges should be dismissed.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered dismissing with prejudice the

administrative complaint issued against respondent.

DONE AND ENTERED this 27th day of December, 1989, in Tallahassee, Leon County, Florida.

Donald R. Alexander Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 1989.

ENDNOTE

1/ In contrast, the legislature has specifically provided that at least one administrative board may impose administrative fines on an unlicensed person. See Section 477.029, Florida Statutes (1987) which authorizes the Board of Cosmetology to discipline "any person" who violates any provision within that section.

COPIES FURNISHED:

Honorable Jim Smith Secretary of State

The Capitol, Plaza Level Tallahassee, FL 32399-0250

Henri C. Cawthon, Esquire Department of State

The Capitol, Mail Station #4 Tallahassee, FL 32399-0250

Mr. Robert D. Wingard 4419 Melbourne Street Punta Gorda, FL 33980

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF STATE

DEPARTMENT OF STATE, DIVISION OF LICENSING,

Petitioner,

DOS CASE NO.: C89-00701

vs DOAH CASE NO.: 89-5307

ROBERT D. WINGARD,

W-B WINGARD BROWN, SECURITY ENFORCEMENT SPECIALISTS,

Respondent.

/

FINAL ORDER

This cause came before the Department of State, Division of Licensing, for consideration and final agency action. A formal administrative hearing was conducted pursuant to Section 120.57(1), Florida Statutes, on December 20, 1989, before Donald R. Alexander, a duly assigned Hearing Officer of the Division of Administrative Hearings. A Recommended Order was submitted by the Hearing Officer on December 29, 1989.

FINDINGS OF FACT

The Department hereby adopts and incorporates by reference the Findings of Fact in the Recommended Order, but rejects the Hearing Officer's Conclusions of Law.

CONCLUSIONS OF LAW

The Hearing Officer states at page 4 of his Recommended Order that "...the dispositive issue in this case, and one not addressed by either party, is whether disciplinary measures prescribed in Chapter 493, Florida Statutes can be used against a person who is not a licensee." He goes on to conclude that the legislature did not intend for administrative measures to be taken against unlicensed persons conducting businesses regulated by Chapter 493, Florida Statutes (page 5).

Actually, the language of Section 493.319, Florida Statutes, is very clear in giving the Department the option of imposing an administrative fine upon one who has conducted business without a license, or with a revoked or suspended license, in violation of Section 493.319(1)(g), Florida Statutes. The other options are: 1) deny an application for a license; 2) revoke, suspend, or refuse to renew a license; 3) issue a reprimand; or 4) place the licensee on probation for a period of time and subject to such conditions as the Department may specify. Section 493.319(2), Florida Statutes. Two measures can be invoked

against an unlicensed person - an administrative fine, and denial of an application for licensure. Obviously, only an unlicensed person can have an application denied. Thus, it is clear the legislature intended the Department to take the necessary action to deter unlicensed practice. There is no other reason for listing unlicensed practice as a violation in Section 493.319(1), Florida Statutes.

Moreover, Section 493.319(5), Florida Statutes, states that an applicant for licensure shall be denied if he has an outstanding administrative fine.

This presupposes that an unlicensed person may have a fine imposed under Chapter 493, Florida Statutes.

For these reasons, an administrative fine may be imposed in the instant case for violation of Section 493.319(1)(g), Florida Statutes.

IT IS, THEREFORE, ORDERED that Respondent pay an administrative fine in the amount of $2,000.00, within thirty (30) days of the date of this Final Order.

Payment must be made by certified check or money order. Further, Respondent shall cease conducting business or engaging in activities regulated by Chapter 493, Florida Statutes, until such time as the fine is paid and Respondent has met the licensure requirements of Chapter 493, Florida Statutes. Failure to tender payment in full within thirty (30) days of this date and to cease conducting business regulated by Chapter 493, Florida Statutes, may result in the institution of enforcement proceedings in the appropriate Circuit Court or the institution of criminal charges, or both.

NOTICE OF RIGHTS

This Order constitutes final Agency action. Any party who is adversely affected by this Order may seek judicial review under Section 120.68, Florida Statutes. Such proceedings are commenced by filing a Notice of Appeal, pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the Clerk of the Department of State, Office of Legal Affairs, The Capitol, Room LL-10, Tallahassee, Florida 32399-0250; and by filing a copy of the Notice of Appeal, accompanied by the applicable filing fees, with the First District Court of Appeals, or with the District Court of Appeals in the appellate district where the party resides. The Notice of Appeal must be filed within (30) days of the day this Order is filed with the Clerk of the Department. DONE AND ORDERED at Tallahassee, Florida this 6th day of March, 1990.

John M. Russi Director

Division of Licensing

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing Final Order has been sent by

U.S. Mail this 6th day of March 1990, to Robert D. Wingard, W-B Wingard Brown, Security Enforcement Specialists, 4419 Melbourne Street, Punta Gorda, Florida 33980.

COPIES FURNISHED:

Regional Office Filed with Agency Clerk

License File Office of Legal Affairs

Henri C. Cawthon Assistant General Counsel Department of State Division of Licensing

The Capitol, MS #4

Tallahassee, Florida 32399-0250

(904) 487-0482

Docket for Case No: 89-005307

Orders for Case No: 89-005307