STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE No. 91-3142

)

LAWRENCE D. SCHAECHTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above- styled case on July 8, 1991 in Tallahassee, Florida.

APPEARANCES

For Petitioner: Henri C. Cawthon, Esquire

Assistant General Counsel Department of State

The Capitol

Tallahassee, Florida 32399-0250

For Respondent: Lawrence D. Schaechter, pro se

218 East Harding Street Orlando, Florida 32608

STATEMENT OF THE ISSUES

Whether Respondent violated provisions of Chapter 493, Florida Statutes, as more specifically alleged in the Administrative Complaint dated April 15, 1991.

PRELIMINARY STATEMENT

By letter dated April 29, 1991, Lawrence D. Schaechter, Respondent, requested a formal hearing to contest the allegations on the Administrative Complaint dated April 15, 1991 and the proposed fine contained therein. By this Administrative Complaint the Department of State, Division of Licensing, Petitioner, seeks to assess an administrative fine against Respondent. As grounds therefor it is alleged that on or about March 14, 1991, in Osceola County, Florida, Respondent performed the services of a security guard without a valid Class D security officer license, performed the services of an armed security guard without a valid Class G license, carried an unauthorized firearm, and had in his possession hollow point ammunition, all in violation of Sections 493.6118(1)(g) and (5) and 493.6115(6), Florida Statutes.

At the commencement of the hearing the parties stipulated that on March 14, 1991 Respondent performed the services of a security guard without a Class D

license while working for the Best Western Motel and not for a security guard agency; that he carried an unloaded pistol worn openly as a security guard for Best Western Motel without a Class G license; and that he had a hollow point shell in his pocket for the pistol carried.

Thereafter Respondent testified in his own behalf. The parties were allowed 10 days after the filing of the transcript in this case to submit proposed recommended orders.

Proposed findings submitted by Petitioner are accepted. Those proposed findings not included herein were deemed unnecessary to the conclusions reached.

Based upon the stipulations and the testimony of Respondent, I submit the following:

FINDINGS OF FACT

1. On March 14, 1991, Respondent performed the services of a security guard at a Best Western Motel in Orange County, Florida, As such he was employed by the motel.

   
   

2. While performing the services above noted Respondent carried a 9mm Berretta automatic pistol in a holster external to his clothes.

   
   

3. While performing the above-noted services Respondent's firearm was unloaded and he had hollow point 9mm shells in his pocket.

   
   

4. While performing the above-noted services Respondent held neither a Class D nor Class G license.

   
   

5. Respondent was performing the services of security guard while substituting for a relative who was ill. Respondent was working solely for the motel and was not associated with any security guard agency.

   
   

6. The motel manager had requested that Respondent carry a unloaded firearm because several crimes had been committed in the vicinity of the motel.

   
   

7. Respondent believed that as an employee of the motel, as contrasted with being employed by a security guard agency, Respondent did not need a security guard license. Further, Respondent believed he had a Second Amendment

   U.S. Constitutional right to overtly carry the firearm in the holster outside his clothing. At the time of this hearing Respondent was unemployed.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

9. Respondent is here charged with performing the duties of security guard without a license in violation of Section 493.6118(1)(g), Florida Statutes.

   This section proscribes conducting activities regulated under this chapter without a license.

   
   

10. The legislative intent of Chapter 493 as expressed in Section 493.6100 is to require the licensing of persons providing security services to insure the interests of the public will be protected.

11. Section 493.6101(19) defines "security officer" to mean any individual who, for consideration, guards persons or property. It is clear that Respondent was acting as a security officer in carrying out his duties at the Best Western Motel on March 14, 1991.

    
    

12. Section 693.6102, Florida Statutes, provides this chapter shall not apply to:

    
    

    (4) Any unarmed nonuniformed individual engaged in security services who is employed exclusively to work on the premises of his employer, or in connection with the business

    of his employer, when there exists an employer- employee relationship.

    
    

13. Here no evidence was presented regarding Respondent being uniformed but the evidence is clear that he was not unarmed. Accordingly, the above provision does not exempt Respondent from the requirement of licensure. Otherwise it is clear that Respondent had an employer-employee relationship with the Best Western Motel and was not an independent contractor or an employee of a security guard agency.

    
    

14. The evidence was unrebutted that it was Respondent's employer who desired that Respondent be armed in carrying out his security duties. This is considered in mitigation as is Respondent's sincere impression that he had a constitutional right to bear arms.

    
    

15. From the foregoing it is concluded that, although Respondent was charged with several violations of Chapter 493, all of these charges arose from one transaction; accordingly, Respondent is subject to punishment for one offense.

    
    

16. Section 493.6118(2) provides that for any violation of subsection (1) the department may impose an administrative fine not to exceed $1,000.00 for every count or separate offense.

All factors considered it is RECOMMENDED:

That a Final Order be entered finding Lawrence D. Schaechter violated Sections 493.6118(1)(g) and (5) and 493.6115(6), Florida Statutes, and a fine of

$250.00 be assessed.

DONE and ENTERED this 15th day of August, 1991, in Tallahassee, Leon County, Florida.

K. N. AYERS 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 15th day of August, 1991.

Copies furnished:

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

The Capitol

Tallahassee, Florida 32399-0250

Lawrence D. Schaechter

218 East Harding Street Orlando, Florida 32806

Honorable Jim Smith Secretary of State The Capitol

Tallahassee, Florida 32399-0250

Phyllis Slater, Esquire General Counsel Department of State

The Capitol, PL-02

Tallahassee, Florida 32399-0250

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS: All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 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 filing 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: 91-003142

Orders for Case No: 91-003142