STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, DIVISION OF LICENSING,

)

Petitioner, )

)

vs. ) CASE NO. 91-1015

) PRESTIGIOUS DETECTIVE PATROL ) AGENCY, INC., and DAVE BURGESS, )

JR., Owner, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case at West Palm Beach, Florida, on October 29, 1991, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances for the parties were as follows:

For Petitioner: Henri C. Cawthon, Esquire

Assistant General Counsel Division of Licensing Department of State

The Capitol, M.S. #4 Tallahassee, Florida 32399-0250

For Respondent: Mr. Dave Burgess, Jr., pro se

Post Office Box 552590 Miami, Florida 33055

STATEMENT OF THE ISSUE

This is a license discipline case in which the Respondent has been charged by Administrative Complaint with violations of numerous provisions of Chapter 493, Florida Statutes, regarding the several licenses held by the Respondent.

PRELIMINARY STATEMENT

At the formal hearing on October 29, 1991, the Petitioner presented the testimony of one witness, Investigator Frank Bedingfield, and offered four exhibits. The Respondent testified on his own behalf and also presented the testimony of his wife, Mrs. Golde Burgess. The Respondent also offered seven exhibits.

At the conclusion of the hearing the parties were allowed twenty days from the filing of the transcript within

which to file their respective proposed recommended orders. On

December 9, 1991, the transcript of the formal hearing and the Petitioner's proposed recommended order were both filed with the Hearing Officer. In perhaps an overabundance of caution to assure that the Respondent had adequate notice of his opportunity to file a proposed recommended order, by order issued December 16, 1991, the Respondent was advised that he would be allowed until December 31, 1991, within which to file his proposed recommended order. On December 31, 1991, the Respondent filed a proposed recommended order.

The proposals submitted by the parties have been carefully considered during the preparation of this Recommended Order. Specific rulings on all proposed findings of fact submitted by the parties are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. During October of 1990, Respondent's Class "B" Security Agency License was in a suspended status due to his failure to pay an administrative fine imposed by the Department of State. His Class "B" license expired July 10, 1991, and has not been renewed.

   
   

2. At all times pertinent hereto, Respondent held a

   valid Class "D" Security Officer License and a Class "G" Statewide Firearm License issued pursuant to Chapter 493, Florida Statutes. Respondent's Class "M" Manager License was issued in July of 1985 and expired in July of 1987. He did not possess a valid Class "M" license in October of 1990.

   
   

3. On approximately October 1, 1990, Respondent changed his business location from 2950 Northwest 214 Street, Opa Locka, Florida, to 4623 Forest Hill Boulevard, West Palm Beach, Florida. Respondent did not notify the Department of his address change within ten days of moving. The Department was notified of the address change sometime in May of 1991.

   
   

4. On October 18, 1990, May Weiser, an employee of Respondent, appeared at the Department of State, Division of Licensing, West Palm Beach Regional Office to obtain applications for licensure. Ms. Weiser was wearing a security officer badge depicting a replica or facsimile of the Great Seal of the State of Florida. The badge was issued to her by Respondent.

   
   

5. On October 19, 1990, Investigator Frank Bedingfield of the Division of Licensing inspected Respondent's business

   address at 4623 Forest Hill Boulevard in West Palm Beach, Florida. At that time it was determined that Respondent did not possess or have on display a valid Class "B" Security Agency License, an agency disclosure notice, a manager's license, or the required city and county occupational licenses. On that occasion, Respondent was dressed in a security guard uniform and was wearing a .357 caliber model 686 Smith & Wesson revolver loaded with three rounds of .357 caliber steel jacket ammunition and three rounds of .38 special hollow point ammunition.

   Respondent was also wearing a badge that depicted a facsimile of the Great Seal of the State of Florida.

   
   

6. On October 19, 1990, Respondent was unable to provide Mr. Bedingfield with a current list of security agency employees or any business records including hiring and termination notices, and informed the investigator that records were not available due to his recent move. However, he agreed to meet with Mr. Bedingfield again on October 22, 1990, to provide the records.

   
   

7. On October 19, 1990, Respondent was providing security guard services to four Miami churches. At the same time he was soliciting business and mailing advertisements in West Palm Beach.

   
   

8. Respondent's Class "B" Security Agency License was issued February 23, 1990, was suspended for nonpayment of a fine on September 13, 1990, and was due for renewal on July 10, 1991. Respondent informed Mr. Bedingfield that the fine would be paid by October 22, 1990, in the Miami Regional Office of the Division of Licensing.

   
   

9. On October 24, 1990, Mr. Bedingfield returned to Respondent's business location at 4623 Forest Hill Boulevard in West Palm Beach, Florida. Respondent was again wearing a .357 revolver even though he had been notified of the violation during Mr. Bedingfield's previous visit on October 19, 1990. Respondent told Mr. Bedingfield that he had requested a waiver from the Division of Licensing to carry other than a .38 revolver, but could not produce a copy of his request or an approval of such request. The Division of Licensing never received a waiver request from Respondent.

   
   

10. Mr. Bedingfield's return visit also revealed that Respondent was again wearing a security badge with the Great Seal of the State of Florida. Respondent did not have a Palm Beach County occupational license and could not provide any evidence that he had notified the Division of Licensing of his change of business address. He could not provide Mr. Bedingfield with a current list of employees, copies of his agency security guard contracts, personnel files for the previous two years, or records of all terminations and new employments. Nor could Respondent produce evidence of current general comprehensive liability insurance. He did provide Mr. Bedingfield with approximately 73 employment applications of current and previous employees. Using these records Mr. Bedingfield compiled a list of guards and produced computer printouts of each current and previous employee. As of October 24, 1990, Respondent had failed to notify the agency of the hiring or termination of 43 employees.

    
    

11. Respondent's insurance had been cancelled for non- payment of the premium in August of 1990. At the time of the events described in the foregoing findings of fact, Respondent had overlooked, or was not aware of, a number of the statutory requirements such as the requirements that he notify the Department when he changed business locations, that he display an

    agency disclosure notice, and that he not use the Great Seal of the State of Florida on his badges. He has since painted over the Great Seal on the badges. For reasons not clarified on the record in this case, Respondent's manager's license states that it is "non-expiring," notwithstanding the statutory provision that all licenses issued under Chapter 493, Florida Statutes, shall be valid for two years.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. Sec. 120.57(1), Fla. Stat.

    
    

13. Respondent violated Sections 493.6106(2) (a) and 493.6118(1)(s), Florida Statutes, by failing to notify the Division of Licensing of his change of address from Opa Locka, Florida, to West Palm Beach, Florida, within ten days of moving on October 1, 1990.

    
    

14. Respondent violated Sections 493.6106(2)(b) and 493.6118(1)(s), Florida Statutes, on October 19, 1990, by failing to post a manager's license at his place of business in Palm Beach County, Florida. At the time, Respondent's office was open to the public and he was soliciting business in the area.

    
    

15. Respondent violated Sections 493.6106(2)(c) and 493.6118(1)(s), Florida Statutes, on October 19, 1990, by failing to post an agency disclosure notice issued by the Department of State.

    
    

16. Respondent violated Section 493.6118(1)(h), Florida Statutes, on October 19, 1990, by conducting or advertising the business of a Class "B" Security Agency after expiration of liability insurance. His insurance had been cancelled August 13, 1990.

    
    

17. There is insufficient evidence to show Respondent failed to issue proper agency identification cards to his employees.

    
    

18. Respondent violated Sections 493.6112(2) and 493.6118(1)(s), Florida Statutes, by failing to report to the Department of State the hiring or termination of 43 employees.

    
    

19. The Respondent violated Sections 493.6115(6) and 493.6118(1)(s), Florida Statutes, on October 19 and 24, 1990, by carrying an unauthorized .357 caliber firearm in the performance of regulated duties.

    
    

20. The Respondent violated Sections 493.6115(6) and 493.6118(1)(s), Florida Statutes, on October 19, 1990, by carrying a firearm loaded with other than the standard ammunition while in the performance of regulated duties.

    
    

21. Respondent violated Sections 493.6121(2) and 493.6118(1)(s), Florida Statutes, during the period October 19-

    24, 1990, by failing to maintain sufficient business records for a period of two years.

    
    

22. Respondent violated Sections 493.6124 and 493.6118(1)(s), Florida Statutes, during the period October 19- 24, 1990, by utilizing a facsimile reproduction or pictorial portion of the Great Seal of the State of Florida on a badge used in connection with licenses issued under Chapter 493, Florida Statutes.

    
    

23. Respondent violated Section 493.6118(1)(g), Florida Statutes, during the period October 19-24, 1990, by conducting or advertising the business of a security agency after suspension of his Class "B" Security Agency License.

    
    

24. Respondent violated Section 493.6118(1)(n), Florida Statutes, during the period October 19-24, 1990, by conducting the business of a security agency without a properly licensed agency manager.

    
    

25. Respondent violated Sections 493.6107(4) and 493.6118(1)(s), Florida Statutes, during the period October 19- 24, 1990, by conducting or advertising the business of a security agency without a valid city or county occupational license.

    
    

26. Section 493.6118(2), Florida Statutes, provides that upon proof of any of the violations itemized above, the Department of State may do one or more of the following:

    
    

    1. Deny an initial or renewal application for license.

    2. Issue a reprimand.

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

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

    5. Suspend or revoke a license.

       
       

27. In determining the appropriate penalty to impose in this case it should first be noted that, although the violations are numerous, most, if not all, of the violations appear to be the result of either carelessness, negligence, or

misunderstanding, rather than the result of any willful or intentional design to violate the applicable statutory provisions. Further, although in one way or another all of the violations involve a risk of harm to the public, there is no showing in this case that any of the violations resulted in any actual harm. These mitigating factors have been considered in arriving at the recommendation which follows.

RECOMMENDATION

Based on all of the foregoing, it is RECOMMENDED that

the Department of State issue a Final Order in this case to the following effect: (a) Concluding that Count V of the

Administrative Complaint should be dismissed for insufficient proof; (b) Concluding that the Respondent committed all of the other violations alleged in the Administrative Complaint; and (c) Imposing the following administrative penalties:

1. A suspension of the Respondent's Class "D" Security Officer License for a period of one year;

2. A suspension of the Respondent's Class "G" Statewide Firearm License for a period of one year; and

3. An administrative fine in the total amount of one thousand ($1,000.00) dollars.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of May 1992.

MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SC 278-9675

Filed with the Clerk of the Division

of Administrative Hearings this 22nd day of May 1992.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-1015

The following are my specific rulings on all proposed findings of fact submitted by all parties in this case.

Findings submitted by the Petitioner:

All of the findings of fact proposed by the Petitioner have been accepted in substance.

Findings submitted by the Respondent:

The Respondent's proposed recommended order consists of

nine unnumbered paragraphs, none of which are specifically identified as proposed findings of act, but most of which contain factual assertions. All of the factual assertions in the Respondent's proposed recommended order have been treated as if they were proposed findings of fact and are specifically addressed below.

First paragraph: The first sentence of this paragraph is rejected as contrary to the greater weight of the evidence.

The second sentence is rejected as irrelevant or as constituting subordinate and unnecessary details. The last sentence is rejected as constituting argument, rather than proposed facts.

Second Paragraph: First two sentences accepted in substance. Last sentence rejected as irrelevant to the issues in this case.

Third Paragraph: Accepted.

Fourth Paragraph: First two sentences rejected as not supported by persuasive competent substantial evidence and as, in any event, irrelevant. Last sentence accepted.

Fifth Paragraph: First paragraph rejected as contrary

to the greater weight of the evidence; there were other reasons the licenses were not on display. Second sentence is accepted. The last two sentences are rejected as irrelevant or as constituting subordinate and unnecessary details.

Sixth Paragraph: First sentence accepted in substance.

The remainder of this paragraph is rejected as subordinate and unnecessary details.

Seventh Paragraph: Rejected as subordinate and unnecessary details because other evidence establishes that at the time in question the Respondent was conducting and advertising the business of a security agency.

Eighth Paragraph: Rejected as constituting comment on a subordinate matter, rather than a proposed finding of fact.

Ninth Paragraph: This paragraph consists of a suggested disposition of the case, rather than proposed findings of fact.

COPIES FURNISHED:

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

The Capitol, M.S. #4 Tallahassee, Florida 32399-0250

Mr. Dave Burgess, Jr. Post Office Box 552590 Miami, Florida 33055

Honorable Jim Smith Secretary of State The Capitol

Tallahassee, Florida 32399-0250

Phyllis Slater General Counsel Department of State The Capitol, PL-02

Tallahassee, Florida 32399-0250

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT OT SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT ELAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR IFLING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 91-001015

Orders for Case No: 91-001015