Respondents. )
Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer from the Division of Administrative Hearings, on November 2, 1990, in Miami, Florida.
For Petitioner: Henri C. Cawthon, Esquire
Department of State Division of Licensing The Capitol, M.S. #4
For Respondent: Norman S. Segall, Esquire
The issue presented is whether Respondents were negligent by failing to provide proper supervision and control of two security guard employees, as alleged in the Administrative Complaint filed against them, and, if so, what disciplinary action should be taken against them, if any.
Petitioner filed an Administrative Complaint against Respondents alleging that Respondents violated certain statutes regulating the security guard industry, and Respondents timely requested a formal hearing regarding the allegations in that Administrative Complaint. Thereafter, this cause was transferred to the Division of Administrative Hearings for the conduct of a formal proceeding.
Petitioner presented the testimony of Fred Speaker, Jim Cee, Brian A. Pierce, and Mark McCray. Respondent Bahram Sedaghat testified on behalf of the Respondents and presented the testimony of Jonathan Graham. Additionally, Petitioner's Exhibit numbered 1 was admitted in evidence.
Both parties submitted post-hearing proposed findings of fact in the form of proposed recommended orders. A ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.
At all times material hereto, Respondent U.S. Security has held a Class "A" Private Investigative Agency License No. A00-01448; a Class "B" Watchman, Guard or Patrol Agency License No. B00-01042; and a Class "DS" Guard School License No. DS89-00077. At all times material hereto, Respondent Bahram Sedaghat has held a Class "C" Private Investigator License No. C87-00645, a Class "DI" Guard Instructor License No. DI89- 00275, a Class "G" Statewide Gun Permit No. G88-00869, and a Class "M" Manager License No. M90-00046.
At all times material hereto, Respondent Bahram Sedaghat has been the Vice-President of Respondent U.S. Security, and Juan Cabrera and Octavio Valdez were employees of Respondent U.S. Security.
At all times material hereto, Respondent U.S. Security has provided supervision of its security guards (including Cabrera and Valdez) through patrol supervisors, assistant area managers, and area managers. Pursuant to that
three-tier level of supervision, every guard post was checked by a supervisor almost every night as part of Respondent U.S. Security's regular supervisory procedures.
For several years, Respondent U.S. Security had in effect a contract with Flamingo Plaza, an industrial complex in Hialeah, Florida, to provide unarmed guard services to Flamingo Plaza. That contract was in effect on October 23, 1989.
When Cabrera was first employed by Respondent U.S. Security, he was assigned to perform unarmed guard services at a construction site for the Carnival Cruise Lines building. On his first day at that post, construction workers noticed that he was armed. When Brian Pierce, the area manager, came to the post approximately one hour later, the construction workers advised Pierce that Cabrera was armed. Pierce immediately reprimanded Cabrera, reminding Cabrera that the post was an unarmed guard post and that Cabrera was prohibited from being armed while on duty at that post. He made Cabrera lock his gun in his car. Thereafter, no one saw Cabrera with a firearm at that unarmed post.
Cabrera was subsequently reassigned to perform guard services at the unarmed guard post located at Flamingo Plaza. On his first day at that assignment, James Cee, the property manager at Flamingo Plaza, saw Cabrera with a firearm while on duty and reported that to Brian Pierce. Pierce reprimanded Cabrera in front of Cee and instructed him not to return to the post with a firearm since it was an unarmed post. Thereafter, there were no further complaints regarding Cabrera carrying a firearm while at Flamingo Plaza although Cabrera continued his assignment at Flamingo Plaza for approximately three or four more months.
After Pierce reprimanded Cabrera for appearing at Flamingo Plaza on his first day with a firearm, however, on one occasion Mark McCray, the assistant area manager, saw Cabrera at Flamingo Plaza wearing a jacket while on duty. Visible below the jacket was the bottom of a holster. Cabrera was specifically ordered by McCray not to wear a holster while on duty at an unarmed post. Cabrera was not armed on that occasion. There were no other reports that Cabrera wore a holster at Flamingo Plaza on any other occasion.
On October 23, 1989, a shooting incident involving Cabrera took place at the Flamingo Plaza. Upon being notified of the incident Respondent U.S. Security immediately suspended Cabrera and fired him on the following day. Criminal charges were filed against Cabrera based on that shooting incident, and those charges remained pending at the time of the final hearing in this cause.
Petitioner immediately conducted an investigation of the incident and of Respondent U.S. Security's procedures for supervision of its unarmed guard employees. At the conclusion of the investigation, Petitioner determined there were no violations of the statutes regulating the security guard industry and closed its file. Thereafter, Cabrera, while the criminal charges were pending against him, appeared on television and gave statements which directly contradicted the evidence obtained by Petitioner in its investigation. As a result of those statements made by Cabrera and pressure exerted by the news media, Petitioner reopened its investigation and subsequently issued the Administrative Complaint which is involved in this proceeding.
Respondents were not aware that Juan Cabrera or Octavio Valdez had firearms in their possession while on duty on October 23, 1989, when their assigned duties did not require firearms. Further, there is no reason that Respondents should have known that Cabrera or Valdez had firearms in their possession on that occasion.
It is standard procedure for Respondent U.S. Security's supervisors to provide all security guards with "post orders" prior to each guard beginning a new post assignment. Among other things, this document notifies the guard as to whether the post calls for armed or unarmed personnel. Respondent U.S. Security ensures that the guard reads and understands the post orders prior to beginning his shift.
On October 23, 1989, Respondent U.S. Security had procedures set up for the hiring, training, and supervision of security guards, both armed and unarmed.
Respondent U.S. Security had in place procedures for taking disciplinary action against employees. Those disciplinary guidelines included the exercise of judgment by the supervisory personnel involved. If an employee did something prohibited, the employee was specifically reprimanded and instructed not to engage in that conduct again. If the employee engaged in the same conduct again, he would be fired immediately for disobeying direct orders. Respondent U.S. Security did not have a specific policy directed at a guard appearing at an unarmed post with a firearm or with only a holster because such conduct simply did not occur.
Respondent U.S. Security's procedures for supervision of security guards comply with or exceed the procedures utilized in the industry.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes (1990).
The Administrative Complaint filed herein names in the style U.S. Security, Incorporated, D/B/A U.S. Security Training Center, Behzad Sedaghat, President, and Bahram Sedaghat, Vice President, as Respondents in this cause. However, there are no allegations in the Administrative Complaint regarding Behzad Sedaghat, President. Accordingly, at the commencement of the final hearing, counsel stipulated on the record that only U.S. Security and Bahram Sedaghat, Vice President, were properly named as Respondents in this cause and that Behzad Sedaghat, President, is not a Respondent herein.
The Administrative Complaint contains two counts. Count I alleges that on or about October 23, 1989, Respondent was negligent by failing to properly supervise and control employee Juan Cabrera, such failure resulting in Mr. Cabrera being on duty and armed with a firearm when his assigned duties did not require armed services. Count I alleges that such activity is in violation of Section 493.315(2), Florida Statutes, and is negligence prohibited by Section 493.319(1)(f), Florida Statutes. Count II contains the identical allegations as to employee Octavio Valdez. No evidence was offered by Petitioner regarding Octavio Valdez except for the fact that Valdez was employed by Respondent U.S. Security. There being no evidence regarding Valdez except as to his employment, Petitioner has failed to prove the allegations contained in Count II of the Administrative Complaint filed herein.
Section 493.315(2), Florida Statutes, provides, in pertinent part, as follows:
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...
The parties agree that this section means that a security guard who is assigned to an unarmed post may not be armed.
Section 493.319(1)(f) provides that disciplinary action may be taken upon proof that the licensee is guilty of fraud or deceit, or of negligence, incompetency, or misconduct. Petitioner argues that Respondents herein are guilty of negligence for failing to properly supervise their employees. Petitioner offered no evidence as to the standards for supervision of security guards within the industry. On the other hand, Respondent Sedaghat testified as to the supervisory procedures of U.S. Security and further testified that the procedures followed by U.S. Security comply with or exceed the standards for supervision exercised by licensees within the industry. That testimony is uncontroverted. Since Petitioner has not proven that Respondents fell below the standard of care, it cannot be concluded that Respondents failed to supervise properly or were negligent in the supervision of their employees.
Since Petitioner offered no direct evidence that Cabrera was in fact armed on October 23, 1989, there is no way in which Petitioner could have proven that Respondents knew that Cabrera was armed or should have known that he was
