STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 89-6749

)

JOSEPH B. OBERMEYER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held on January 30, 1990, in Orlando, Florida, before Robert D. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Henri C. Cawthon

Assistant General Counsel Division of Licensing Department of State

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

For Respondent: Attorney T. Hulen Ray

118 West New York Ave. Deland, FL 32720

STATEMENT OF THE ISSUES

The issue in the case is whether Respondent entered a store, not in connection with his duties as a security guard, while openly wearing a firearm, in violation of Sections 493.315(2) and (3) and 493.319(1)(p), Florida Statutes.

PRELIMINARY STATEMENT

By Administrative Complaint dated November 9, 1989, Petitioner alleged that Respondent holds a Class "B" Watchman, Guard or Patrol Agency license, a Class "MB" Watchman, Guard or Patrol Agency Manager license, Class "D" Watchman, Guard or Patrolman license, and a Class "G" Statewide Gun Permit. The Administrative Complaint alleges that on September 18, 1989, Respondent, while openly wearing a firearm, entered a store at the Florida Shopping Center located in Orange City, Florida. The Administrative Complaint alleges that Respondent entered the store not in connection with his duties as a security guard.

By Election of Rights dated December 1, 1989, Respondent requested a formal hearing.

At the hearing, Petitioner called three witnesses and offered into evidence two exhibits. Respondent called three witnesses and offered into evidence no exhibits. The parties jointly offered one exhibit. All exhibits were admitted into evidence.

The transcript was filed on February 26, 1990. Each party filed a proposed recommended order. Treatment of the proposed findings is detailed in the appendix.

FINDINGS OF FACT

1. At all material times, Respondent held the following licenses: Class "B" Watchman, Guard, or Patrolman Agency license number B-88-00055; Class "MB"' Watchman, Guard or Patrolman Agency Manager license number MB-88-00083; Class "D" Watchman, Guard, or Patrolman license number D-89-01736; and Class "G" Statewide Gun Permit number G-89-00216.

   
   

2. In September, 1989, Respondent provided security services to about six of the approximately 41 merchants located at a small "L"-shaped strip mall located on Saxon Boulevard in Orange City, Florida. These services were provided pursuant to contracts between the individual merchants and Respondent. The security services supplied by Respondent required him to patrol common areas, such as sidewalks and parking areas. Entrances to all of the stores faced the unenclosed mall's parking lot.

   
   

3. One of the merchants at the strip mall with whom Respondent had no contract was Lauri Black, who owned and operated a store known as "Florida Scene." This store, which opened for business on or shortly after September 22, 1989, is located at the end of a long line of stores and faces directly into the parking lot serving all of the stores. The closest store that Respondent protects is relatively close to Florida Scene, about five stores away.

   
   

4. Ms. Black also operated a similar store in nearby Deland. Respondent had previously visited her to solicit security business. Based on prior conversations, Respondent reasonably believed that he might successfully obtain the business for the new store in Orange City.

   
   

5. On Monday, September 19, 1989, at about 3:25 p.m., Respondent, who had just gone on duty, entered Ms. Black's store for the purpose of soliciting security business. At the time, he was in his normal security guard uniform and was wearing a handgun, which remained holstered at all relevant times.

   
   

6. Ms. Black did not ask Respondent to leave or to remove his gun. In fact, she was not intimidated by the fact that he was armed. However, upon his entrance into her store, Ms. Black, without warning or prior objection, excused herself and contacted the police. At the hearing, Ms. Black testified that she had been "roped into this." "This" apparently refers to her participation that day in an ongoing dispute between Respondent, on the one hand, and, on the other hand, the management and certain mall merchants that is not otherwise relevant to the present case.

   
   

   CONCLUSIONS OF LAW

   
   

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

8. Petitioner has the responsibility of disciplining persons holding Watchman, Guard or Patrolman licenses for violations of Section 493.319(1), Florida Statutes. Section 493.319(2), Florida Statutes.

   
   

9. Section 493.315(2), Florida Statutes, provides:

   
   

   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. . . .

10. Section 493.315(3), Florida Statutes, provides: Nothing in this Act shall abrogate the provisions of

    s. 790.25(3)(n). The statewide permit shall remain in effect only during the period the applicant is employed as a Class "C," Class "CC," or Class "D" licensee. . .

    
    

11. Section 790.25(3)(n), Florida Statutes, states that persons may lawfully possess firearms at their homes or businesses.

    
    

12. Section 493.319(1)(p), Florida Statutes, provides that a license may be disciplined for the violation of any provision of Chapter 493, Florida Statutes.

    
    

13. Petitioner must prove the relevant allegations by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987)

    
    

14. Petitioner did not prove that, under the circumstances, Respondent violated Section 493.315(2) or (3), Florida Statutes, when he entered Ms. Black's store while on duty. He was on duty and in the general area of his security responsibilities. Although he was soliciting new business, he was, at that time and place, available to provide security services as needed.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Department of State, Division of Licensing, enter a Final Order dismissing the Administrative Complaint.

RECOMMENDED this 16th day of March, 1990, in Tallahassee, Florida.

ROBERT D. MEALE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 1990.

APPENDIX

Treatment Accorded Petitioner's Proposed Findings:

1. adopted.

   
   

2. rejected as irrelevant.

   
   

3. adopted except that Florida Scene was not open for business until after September 22, 1989.

   
   

4. adopted in substance.

   
   

5. adopted.

Treatment Accorded Respondent's Proposed Findings: 1-3. adopted.

1. adopted in substance.

   
   

2. adopted in substance.

   
   

3. adopted as to Respondent being on duty. Whether he was in proper performance of his duties is rejected as conclusion of law.

COPIES FURNISHED:

Hon. Jim Smith Secretary of State The Capitol

Tallahassee, FL 32399-0250

Ken Rouse General Counsel

Department of State The Capitol, LL-10

Tallahassee, FL 32399-0250

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

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

T. Hulen Ray, Attorney

118 WeSt. New York Ave. Deland, FL 32720

Docket for Case No: 89-006749

Orders for Case No: 89-006749