failed to provide students the hours of instruction required by law, (5) employed an instructor to teach first aid who did not hold an instructor's license, (6) failed to maintain records on student class schedules and students'
instructors as required by law, and (7) operated a fee charging school without a security bond as required by law.
Respondent disputed the allegations of fact contained in the administrative complaint, and requested a formal hearing. The matter was then referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.
At hearing, petitioner called as witnesses, Fred P. Speaker, Willie F. Wimberly, Hubnarain Sewnarain Sukul, and Charles T. Ramsey, and its exhibits 1, 2, and 5-13 were received into evidence. Respondent called Perry A. Wood as a witness, and offered exhibits 1-3 which were not received into evidence. 1/
The final volume of the transcript was filed October 5, 1992, and the parties were granted leave until October 30, 1992, to file proposed findings of fact. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 60Q-2.031, Florida Administrative Code. The parties proposed findings of fact have been addressed in the appendix to this recommended order.
Respondent, Otis Brown, is the holder of a Class "K" Firearms Instructor License, a Class "DI" Security Officer Instructor License, a Class "D" Security Officer License, and a Class "G" Statewide Firearm License.
On September 19, 1989, the Department of State (Department) temporarily approved respondent's application for a Class "DS" Security Officer School/Training Facility to be located at 15966 Northwest 27th Avenue, Miami, Florida. In June 1991 respondent relocated his school to 7900 Northwest 27th Avenue, Miami, Florida; however, it was not until September 30, 1991, that he applied for a license at such location and not until February 18, 1992, that the Department issued its temporary approval of such application.
Each of the schools operated by respondent and approved by the Department were designated, by respondent, as "in-house," or non-fee charging.
During the period extending from April 1991 through January 1992 respondent provided training for a Class "D" Unarmed Security Guard License in Monroe County, Florida, without benefit of a Class "DS" Security Guard School License for that location, which failed to conform with the State's minimum requirements. Specifically, in April 1991, respondent offered a course for unarmed security guards at his hotel room in the Econo Lodge, Key West, Florida. Such class included, among others, Brian Whitten and Ronald Shipman, who each paid approximately $100 for the course. The course lasted one day, starting at approximately 9:00 a.m. and concluding around 4:00 p.m. following the administration of the examination, with one hour off for lunch and several short breaks. In all, not more that 6 hours of instruction were given. Both Whitten and Shipman received a certificate of successful completion of unarmed security guard training from respondent. Again, in January 1992, respondent offered a course for unarmed security guards at his hotel room in Key West, Florida. Such class included, among 8 or 9 others, Bruce Clothier, who paid $75 for the course. The course lasted from 8:00 a.m. until noon the first day, and from 8:00 a.m. until approximately 11:30 a.m. the second day. The second day of instruction lasted approximately three hours, most of which was a review of the previous day's material, and then the students were accorded about one-half hour
to take an examination. Every student received a certificate of successful completion of the unarmed security guard training from respondent.
As with the unarmed security guard training, the firearms trained offered by respondent often failed to conform with the State's minimum requirements. In January 1991, in Miami, Florida, Brian Whitten received training from the respondent for a Class "G" Statewide Firearms License. His classroom and range training totaled approximately ten hours.
Between April and October 1991, Charles Ramsey was employed by respondent at his Miami school, and assisted respondent in conducting training courses for Class "D" and Class "G" licensure. At the time, respondent was disabled, and Ramsey assisted him with various physical activities, as well as teaching first aid instruction to the students. While Ramsey taught the first aid course, respondent was always present. Ramsey did not, however, hold a Class "DI" license. Regarding the firearms training course for Class "K" licensure offered during this period, the proof demonstrates that little formal instruction was given. Rather, the students were given a booklet to take home with them to study for two days and on the third day received a block of instruction on the statutes of the State of Florida and firearm safety and an examination before lunch. Following lunch, the students received their range training.
In December 1991, in Miami, Florida, John Ortiz paid respondent $40.00 for the training required for a firearms waiver. Respondent provided Ortiz with four hours of classroom training, which included reading and classroom discussion, and approximately two hours of range training. During range training, Ortiz fired one hundred and fifty rounds of ammunition.
In January 1992, Ortiz returned to the respondent for requalification with his .38 caliber pistol for his Class "G" license. Respondent asked Ortiz for $35.00, which he paid, and received his recertification without any further training.
On January 15, 1992, a Department of State investigator met with respondent to inspect his business records. Such inspection revealed that respondent had not maintained school records for a period of at least two years at his business location, and those that were available failed to disclose the type of training given, the location of the classes, a log of students and their signatures for each class, or the name of the instructor. Nor did respondent have copies of all certificates or diplomas presented to students for successful completion of training courses.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sections 120.57(1), 120.60(7), and 493.6121, Florida Statutes.
Here, by an eight count administrative complaint, the substance of which will be addressed by topic in the paragraphs that follow, the Department has charged that various conduct of respondent violated the provisions of Section 493.6118(1)(f) and (s), Florida Statutes. In cases of this nature, the Department bears the burden of proving its charges by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
Pertinent to this case, Section 493.6118, Florida Statutes, provides:
The following constitute grounds for which disciplinary action specified in subsection (2) may be taken by the department against any licensee [or] agency regulated by this chapter, or any unlicensed person engaged in activities regulated under this chapter.
* * *
(f) Proof that the . . . licensee is guilty of fraud or deceit, or of negligence, incompetency, or misconduct, in the practice of the activities regulated under this chapter.
* * *
(s) Violating any provision of this chapter.
Count I of the administrative complaint charges that: During the period of approximately January
1990 to March 1992, in Dade County, Florida, Respondent committed misconduct in the practice of activities regulated under Chapter 493, Florida Statutes, in that he administered firearm training which was insufficient in the total hours of instruction as required in Section 493.6115(8), Florida Statutes. This constitutes a violation of Section 493.6118(1)(f), Florida Statutes.
Effective October 1, 1990, Section 493.6115(8), Florida Statutes, formerly Section 493.6105(5), Florida Statutes (1990), has required that:
A class "G" licensee shall satisfy minimum training established by rule of the department, which criteria shall include, but is not limited to, 24 hours of range and classroom training taught and administered by a class "K" licensee; however, no more than 8 hours of such training shall consist of range training. . . .
Prior to October 1, 1990, only "16 hours of range and classroom training taught and administered by a firearms instructor who has been licensed by the department" was required. Section 493.306(7)(a), Florida Statutes (1989).
As noted in paragraphs 5 and 6 of the findings of fact, the training respondent afforded for Class "G" students in January 1991 and between April and October 1991 was far below the 24 hours of range and classroom training mandated by law. Under such circumstances, petitioner has demonstrated that respondent committed the offense alleged in Count I.
Count II of the administrative complaint charges that: On or about January 1992 in Dade County,
Florida, Respondent committed misconduct in the practice of activities regulated under
Chapter 493, Florida Statutes, in that he falsely certified completion of required firearm training of John Ortiz whereby Ortiz received no training and did not fire and was issued a firearm training proficiency form.
This constitutes a violation of Section 493.6118(1)(f), Florida Statutes.
Pursuant to Section 493.6113(3)(b), Florida Statutes, each Class "G" licensee must receive a minimum of four hours of firearms recertification training with the .38 caliber revolver taught by a Class "K" licensee each year. This training, defined by the Department's Firearm Instructors' Training Manual adopted by Rule 1C-3.106, Florida Administrative Code, requires two hours of classroom instruction and two hours of firearms qualification/range training. The student must be taught the legal aspects of the use of firearms, firearm safety, and firearms mechanics, and he must fire at least 180 rounds of ammunition. Respondent's certification of Ortiz without providing the required training constitutes misconduct, and a violation of Section 493.6118(1)(f), Florida Statutes, as alleged in Count II.
Count III and IV of the administrative complaint charges that:
Count III
During the period October 6, 1989, to January 5, 1992, in Monroe County, Florida, Respondent operated a school or training facility which is not licensed as required by Section 493.6304, Florida Statutes. Respondent is in violation of Section 493.6118(1)(s), Florida Statutes.
Count IV
During the period June 1991 to February 18, 1992, in Dade County, Florida, Respondent operated a school or training facility which is not licensed as required by Section 493.6304, Florida Statutes. Respondent is in violation of Section 493.6118(1)(s), Florida Statutes.
Pertinent to this count, Section 493.6304, Florida Statutes, provides:
Any school, training facility, or instructor who offers the training outlined in s. 493.6303(4) for Class "D" applicants shall, before licensure of such school, training facility, or instructor, file with the department an application accompanied by an application fee in an amount to be determined by rule, not to exceed $60. The fee shall not be refundable.
The application shall be signed and notarized and shall contain, at a minimum, the following information:
The name and address of the school or
training facility and, if the applicant is an individual, his name, address, and social security or alien registration number.
The street address of the place at which the training is to be conducted.
A copy of the training curriculum and final examination to be administered. . . .
And, Rule 1C-3.136, Florida Administrative Code, provides:
A license for a school or training facility is valid only for the training site, facility or branch office named on the license and is not transferable to any other location. If a licensed location is changed, a new complete application and appropriate fee must be submitted.
Here the proof demonstrates that respondent committed the offense alleged in Count III and IV by operating a school or training facility in Key West, Florida and Miami, Florida, without benefit of licensure.
Count V of the administrative complaint charges that: During the period October 6, 1989, to January
5, 1992, in Monroe County, Florida, Respondent committed misconduct in the practice of regulated activity by failing to provided students the hours of instruction required by Rule 1C-3.034(1), Florida Administrative Code. Respondent is in violation of Section 493.6118(1)(f), Florida Statutes.
Pertinent to this count, Section 493.6303, Florida Statutes, provides:
(4) An applicant for a Class "D" license shall have completed a minimum of 8 hours of professional training at a school or training facility licensed by the department.
Beginning on October 1, 1991, an applicant for a Class "D" license shall have successfully completed a minimum of 16 hours of professional training whose general content is approved by the department, taking place at a training school or facility licensed by the department. . . .
The Class "D" security guard training given by respondent in April 1991 and January 1992 in Key West, Florida, as noted in the findings of fact, failed to comply with the minimum hours required by law. Accordingly, the Department has demonstrated that respondent committed the offense set forth in Count V of the administrative complaint.
Count VI of the administrative complaint charges that:
During the period of approximately April 1991 to September 1991 in Dade County, Florida,
Respondent employed Charles Ramsey to teach without first having acquired an instructor's license, required by Section 493.6301(8), Florida Statutes, and Rule 1C-3.138, Florida Administrative Code. Respondent is in violation of Section 493.6118(1)(s), Florida Statutes.
Pertinent to this count, Section 493.6301(8), Florida Statutes, requires that any person who teaches or instructs at a Class "DS" security guard school or training facility shall have a Class "DI" license. When Ramsey, who did not hold a Class "DI" license, was employed by respondent to teach at his facility between April and October 1991, respondent violated the provisions of Section 493.6301(8), Florida Statutes, and therefore, Section 493.6118(1)(s), Florida Statutes.
Count VII of the administrative complaint charges that: During the period of September 19, 1989, to
January 5, 1992, in Dade County, Florida,
Respondent committed misconduct in the practice of regulated activities by failing to maintain files on student class schedules and students' instructors, required by Rule
1C-3.035, Florida Administrative Code. Respondent is in violation of Section 493.6118(1)(f), Florida Statutes.
Pertinent to this case, Rule 1C-3.142, Florida Administrative Code, formerly Rule 1C-3.035, Florida Administrative Code, provides:
Each school or facility shall maintain for 2 years and make available for inspection upon request of the department, the following records:
A schedule which shall include the date, time, location and instructor of each class session.
A separate file for each 16-hour course which establishes that minimum course standards were met to include, at a minimum, the course materials and reference sources used for each class presentation and the original of each final exam bearing the grade received and the signature of the student.
A log for each class session containing the signature of each student in attendance.
A copy of any certificate, diploma or other record presented to each student which establishes the successful completion of the course of study and final examination.
As heretofore found in the findings of fact, respondent failed to maintain records as required by law and, therefore, is guilty of the offense charged in Count VII.
Count VIII of the Administrative Complaint charges that:
During the period September 19, 1989, to March 19, 1992, in Dade County, Florida, Respondent operated a fee charging school without the
$10,000 surety bond as required by Rule
1C-3.134(1)(a), Florida Administrative Code. Respondent is in violation of Section 493.6118(1)(f), Florida Statutes.
While respondent was charging a fee for students attending his school, Rule 1C-3.134(1)(a), Florida Administrative Code, does not require the posting of a surety bond. Rather, Rule 1C-3.134 addresses the content of license applications, and does not speak to any requirement to post a security bond. Under such circumstances, and the Department having failed to denote any other provisions of law which may be pertinent, petitioner has failed to sustain its burden of proof with regard to Count VIII.
Under the provisions of Section 493.6118(2), Florida Statutes, the Department, when it finds a violation of subsection (1), may do one or more of the following:
Deny an initial or renewal application for license.
Issue a reprimand.
Impose an administrative fine not to exceed $1,000 for every count or separate offense.
Place the licensee on probation for a period of time and subject to such conditions as the department may specify.
Suspend or revoke a license.
Here, the Department suggests revocation of respondent's licenses as the appropriate penalty, with the right under the provisions of Section 493.6118(7), Florida Statutes, to reapply for licensure after one year from the date of revocation. The revocation of all respondent's licenses seems, however, rather harsh where, as here, respondent's violations reflect adversely on his capabilities to teach, rather than his capabilities as a security officer.
