STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 91-8253

) DOS NO. C91-01376

L & D SECURITY, INC., ) EINAR E. DYSVIK, PRESIDENT, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Panama City, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on May 4, 1992. The Division of Administrative Hearings received the hearing transcript on May 13, 1992. Respondent filed proposed findings of fact and conclusions of law on May 20, 1992, and petitioner's proposed recommended order was filed on May 27, 1992. Both parties' proposed findings of fact have been adopted, in substance, insofar as material.

APPEARANCES

Henri C. Cawthon, Esquire For Petitioner: The Capitol, MS #4

Tallahassee, FL 32399-0250

Charles S. Isler, III, Esquire For Respondent: Isler & Banks, P.A.

P.O. Drawer 430

Panama City, FL 32402 STATEMENT OF THE ISSUES

Whether petitioner should take disciplinary action against respondent's licenses for the reasons alleged in the administrative complaint?

PRELIMINARY STATEMENT

By administrative complaint dated September 30, 1991, petitioner alleged that respondent, who holds "a Class 'B' Security Agency License . . . a Class 'D' Security Officer License . . . a Class 'DI' Security Officer Instructor license . . . a Class 'DS' Security Officer School/or Training Facility License . . . and a class 'MB' Manager Security Agency license," violated Section 493.6118(1)(n), Florida Statutes (1991) by employing six persons "to perform security services without valid Class 'D' Security Officer Licenses."

FINDINGS OF FACT

1. At all material times, respondent has held a registered Class "B" Security Agency License, No. B86-00092, a Class "DS" Security Officer School/or Training Facility License, No. DS90-00069, a Class "D" Security Officer License, No. D85-2333, a Class "DI" Security Officer Instructor License, No. DI88-00012, and a Class "MB" Manager Security Agency License, No. MB86-00105.

   
   

2. At all pertinent times, respondent provided security services to various non-governmental clients in Bay County, Florida, and also furnished security services to its only governmental client, the Federal Correctional Institution in Tallahassee, more than 100 miles from respondent's offices.

   
   

3. From January 21, 1991, to June 30, 1991, respondent employed J. C. Barnwell, Terrell Barnwell, Larry Burks, Michael Dicks, Robert Pompey and Darrell L. Smith, none of whom held security officer licenses. They all worked as security officers at the Federal Correctional Institution in Leon County, and did no other work for respondent.

   
   

   CONCLUSIONS OF LAW

   
   

4. Since the Department of State referred respondent's hearing request to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1991), "the division has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1991).

   
   

5. Petitioner alleges a violation of Section 493.6118(1), Florida Statutes (1991), which proscribes:

   
   

   1. Employing or contracting with any unlicensed or improperly licensed person or agency to conduct activities regulated under this chapter when such licensure status was known or could have been ascertained by reasonable inquiry.

      
      

      Specifically, petitioner alleges that respondent ran afoul of the statute in hiring persons who did not hold class "D" licenses to work at the Federal Correctional Institution. Section 493.6301, Florida Statutes (1991) classifies licenses:

      
      

      1. Any person, firm, company, partnership, or corporation which engages in business as a security agency shall have a Class "B" license. A Class "B" license is valid for only one location.

      2. Each branch office of a Class "B" agency shall have a Class "BB" license.

         . . .

         (4) Class "D" licensees shall own or be an employee of a Class "B" security agency or branch office. This does not include those persons who are exempt under s. 493.6102 . . .

         
         

         The exemption to which the statute refers makes Chapter 493's licensing requirements inapplicable to

         
         

         [a]ny security agency or private investigative agency, and employees thereof, performing contractual security

         or investigative services solely and exclusively for any agency of the United States.

         
         

         Section 493.6102(9), Florida Statutes (1991). This case presents the question whether security agency employees "performing contractual security or investigative services solely and exclusively for any agency of the United States" must be themselves licensed when their employer is duly licensed to and in fact performs other security and investigative services.

         
         

6. Petitioner's position on this question comes as no surprise to the respondent. Once before petitioner instituted administrative proceedings against respondent on the theory that the exemption provided by Section 493.6102(9) was unavailable in these circumstances. The earlier proceedings eventuated in the payment of an agreed fine, but the parties have been unable to settle the present case.

   
   

7. License revocation proceedings have been said to be "'penal' in nature." State ex rel. Vining vs. Florida Real Estate Commission, 281 So.2d 487, 491 (Fla. 1973); Kozerowitz vs. Florida Real Estate Commission, 289 So.2d

   391 (Fla. 1974); Bach vs. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979) (reh. den. 1980). Strict procedural protections apply in disciplinary cases, and the prosecuting agency's burden is to prove its case clearly and convincingly. Ferris vs. Turlington, 510 So.2d 292 (Fla. 1987); Pic N' Save Central Florida, Inc. v. Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, No. 91-329 (Fla. 1st DCA; May 28, 1992), 17 FLW D1379. See Addington vs. Texas, 441 U.S. 426 (1979); Ferris vs. Austin, 487 So.2d 1163 (Fla. 5th DCA 1986); Anheuser-Busch, Inc. vs. Department of Business Regulation, 393 So.2d 1177 (Fla. 1st DCA 1981); Walker vs. State Board of Optometry, 322 So.2d 612 (Fla. 3rd DCA 1975); Reid vs. Florida Real Estate Commission, 188 So.2d 846, 851 (Fla. 2nd DCA 1966). A licensee's breach of duty justifies revocation only if the duty has a "substantial basis," Bowling vs. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981) in the evidence, unless applicable statutes and rules create a clear duty, which the evidence shows has been breached.

   
   

8. In its proposed recommended order, petitioner contends that, as a matter of policy, "when a federal agency contracts for security services with a licensed security firm [in Florida], it should be confident that the employees are also properly licensed." Petitioner's Proposed Recommended Order. But petitioner concedes that the statute does not require the employees of a licensed security firm to be licensed if the firm performs services exclusively for a federal agency.

   
   

9. Petitioner also argues at some length that use of the phrase "and employees" (instead of "or employees") supports its interpretation of Section 493.6102(9), Florida Statutes (1991). But the qualifying language ("performing

. . . services . . . exclusively for any agency of the United States") falls closer to "employees" than to "agency," and clearly pertains to both. At best, petitioner makes out a case that an ambiguity exists. The rule is that "statutes authorizing the revocation of a license to practice a business or profession must be strictly construed [against the agency] for they are penal in nature. State v. Pettishall, 99 Fla. 296, 126 So. 147 (1930)." Davis v.

Department of Professional Regulation, 457 So.2d 1074, 1076 (Fla. 1st DCA 1984).

RECOMMENDATION

It is, accordingly, RECOMMENDED:

That petitioner dismiss the administrative complaint.

DONE and ENTERED this 1st day of July, 1992, in Tallahassee, Florida.

ROBERT T. BENTON, II

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 1st day of July, 1992.

COPIES FURNISHED:

Henri C. Cawthon, Esquire The Capitol, MS #4 Tallahassee, FL 32399-0250

Charles S. Isler, III, Esquire Isler & Banks, P.A.

P.O. Drawer 430

Panama City, FL 32402

Honorable Jim Smith, Secretary Department of State

The Capitol

Tallahassee, FL 32399-0250

Phyllis Slater, General Counsel Department of State

The Capitol, PL-2 Tallahassee, FL 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. 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: 91-008253

Orders for Case No: 91-008253