STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 92-6780

) DV'S SECURITY GUARD SCHOOL and ) STEPHEN PAUL DEVILLO, Owner, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on July 13, 1993, in Fort Myers, Florida.

APPEARANCES

For Petitioner: Henri C. Cawthon, Esquire

Department of State Division of Licensing

The Capitol, Mail Station #4 Tallahassee, Florida 32399-0250

For Respondent: Stephen Paul DeVillo

10871 Ruden Road

Fort Myers, Florida 33917-5513 STATEMENT OF THE ISSUE

Whether the allegations of the Administrative Complaint are correct and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

The Respondent owned and operated a licensed security guard school where he provided instruction to students seeking to become licensed as security guards, including licenses for possession of firearms.

By Administrative Complaint dated September 10, 1992 and mailed on September 11, 1992, the Petitioner alleges that the Respondent failed to provide the appropriate level of instruction to seven students and that he further falsely certified that said students had completed the required training. The Respondent timely requested a hearing on the matter. The request was referred to the Division of Administrative Hearings which scheduled the case for hearing. At the request of the parties, the matter was continued to permit conclusion of settlement negotiations. By motion filed April 8, 1993, the Petitioner requested that the matter be rescheduled for hearing based on the inability of

the parties to successfully settle the dispute. Based on the motion, the case was rescheduled for hearing.

The Petitioner presented the testimony of three witnesses and had three exhibits admitted into evidence. The Respondent testified on his own behalf.

A transcript of the hearing was filed on July 28, 1993. The Petitioner filed a proposed recommended order. The Respondent filed a letter setting forth, in unnumbered paragraphs, "a number of exceptions" taken regarding the hearing. The Respondent's letter is treated as a proposed recommended order. The proposed findings of fact are ruled upon either directly or indirectly as reflected in this Recommended Order, and in the Appendix which is attached and hereby made a part of this Recommended Order.

FINDINGS OF FACT

1. The Respondent holds a Class "DS" Security Officer School license number DS89-00158, effective February 17, 1992. For reasons unrelated to this case, the Respondent has decided to return the license to the Petitioner.

   
   

2. The Respondent held a Class "DI" Security Officer Instructor license number DI89-00338, effective January 24, 1991, which the Respondent allowed to expire.

   
   

3. The Respondent holds a Class "K" Firearms Instructor license number K87-00008, effective March 4, 1988. The parties stipulated that this case is applicable to the Class "K" license.

   
   

4. The Respondent is the owner and operator of DV's Security Guard School. At all time material to this case, the Respondent was appropriately licensed to own and operate the school.

   
   

5. The Administrative Complaint alleges that the Respondent failed to provide appropriate instruction to seven identified students during a period of time from October 1991 to May 1992. The complaint further alleges that the Respondent improperly certified that the seven students had received the appropriate instruction.

   
   

6. All licensed Firearms Instructors must utilize the instruction requirements and materials contained in the Firearms Instructors Training Manual.

   
   

7. The appropriate method of instruction for students seeking licensure as security personnel is classroom lecture. A text provided to students is intended to be utilized as a basis for lecture.

   
   

8. The Respondent distributed the text to the students and directed the students to read the material in non-classroom time. He then attributed credit to students for the time expended in completing reading assignments.

   
   

9. The evidence fails to establish that the Respondent's method of instruction is reasonable or complies with applicable statute or rule.

   
   

10. Lisa M. Dale received instruction in October or December of 1991. Ms. Dale testified that she received approximately eight total hours of instruction.

11. The parties stipulated that Kenny E. Moore was in the same class and received the same training as Ms. Dale.

    
    

12. The parties also stipulated that Marian J. Bryant, who received instruction in January of 1992, received only eleven hours of Class "G" classroom instruction.

    
    

13. The evidence establishes that as to Lisa M. Dale, Kenny E. Moore and Marian Bryant, the Respondent failed to provide the appropriate hours of classroom instruction required by applicable statute and rules related to qualification for licensure as a security guard.

    
    

14. The evidence establishes that the Respondent signed a statement certifying that Kenny Moore had successfully completed the prescribed training as set forth in the Department of State Firearms Instructors Training Manual.

    
    

15. The Firearms Instructor's Training Manual was not introduced at hearing and is not part of the record of this proceeding. It is not possible to determine whether or not Mr. Moore's training was as prescribed therein. The evidence fails to establish that the Respondent's certification was untrue.

    
    

16. As to the remaining students identified in the Administrative Complaint, the evidence fails to establish the allegations of misconduct by the Respondent.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Section 120.57(1), Florida Statutes.

    
    

18. The burden of proof is on the Petitioner to establish the truthfulness of the allegations of the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

19. As set forth in the Findings of Fact, the burden has been met as to some of the charges contained within the Administrative Complaint.

    
    

20. The Petitioner is authorized to discipline any licensee upon proof that the licensee is guilty of fraud or deceit, or of negligence, incompetency, or misconduct, in the practice of regulated activities. Section 493.6118(1)(f), Florida Statutes.

    
    

21. The training required for issuance of a Class "G" Firearms license includes 24 hours of range and classroom training taught and administered by a Class "K" licensee, not more than 8 hours of which may be range training. Section 493.6115(8), Florida Statutes. The evidence establishes that as to three students, the Respondent, a Class "K" licensee, failed to provide the appropriate hours of classroom instruction.

    
    

22. Pursuant to Section 493.6118(2), Florida Statutes, the Petitioner may impose a penalty for violation of disciplinary standards. Misconduct in the practice of regulated activities is a violation of 493.6118(1)(f), Florida Statutes, for which a fine of $1,000 will be imposed. Rule 1C-3.113(1)(b)20., Florida Administrative Code.

23. Based upon the range of applicable penalties set forth at Section 493.6118(2), Florida Statutes, the recommended penalty is as set forth below.

RECOMMENDATION

Based on the foregoing, it is hereby RECOMMENDED that the Department Of State, Division Of Licensing, enter a Final Order imposing a fine of $1,000.

DONE and RECOMMENDED this 31st day of August, 1993 in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6780

To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties.

Petitioner

The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:

1. Rejected. The evidence fails to establish that the certificate was signed by Moore, who did not testify at the hearing.

2. Rejected. Not supported by the evidence. Neither Meyer nor Wiese testified at the hearing. (This ruling is related to the second proposed finding identified as "4".)

3. Rejected. Not supported by the evidence. Neither Meyer nor Wiese testified at the hearing.

Respondent

The Respondent filed a letter containing unnumbered paragraphs which is treated herein as a proposed recommended order. The paragraph beginning "I TAKE EXCEPTION" is regarded as paragraph #1. The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:

1, 2. Rejected. The proposed finding is applicable to the weight of the testimony which clearly established that the witness received an inadequate level of instruction.

3. Rejected. The Respondent stipulated to the fact that Dale and Moore were in the same class. The stipulation was placed on the record. The Petitioner released Moore from testifying based on the stipulation.

4, 6-12. Rejected, irrelevant.

COPIES FURNISHED:

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

Henri C. Cawthon, Esquire Department of State Division of Licensing

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

DV's Security Guard School Stephen Paul DeVillo

10871 Ruden Road

Fort Myers, Florida 33917-5513

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 ten 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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 92-6780

) DV'S SECURITY GUARD SCHOOL and ) STEPHEN PAUL DEVILLO, Owner, )

)

Respondent. )

)

CORRECTED RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on July 13, 1993, in Fort Myers, Florida.

APPEARANCES

For Petitioner: Henri C. Cawthon, Esquire

Department of State Division of Licensing

The Capitol, Mail Station #4 Tallahassee, Florida 32399-0250

For Respondent: Stephen Paul DeVillo

10871 Ruden Road

Fort Myers, Florida 33917-5513 STATEMENT OF THE ISSUE

Whether the allegations of the Administrative Complaint are correct and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

The Respondent owned and operated a licensed security guard school where he provided instruction to students seeking to become licensed as security guards, including licenses for possession of firearms.

By Administrative Complaint dated September 10, 1992 and mailed on September 11, 1992, the Petitioner alleges that the Respondent failed to provide the appropriate level of instruction to seven students and that he further falsely certified that said students had completed the required training. The Respondent timely requested a hearing on the matter. The request was referred to the Division of Administrative Hearings which scheduled the case for hearing. At the request of the parties, the matter was continued to permit conclusion of settlement negotiations. By motion filed April 8, 1993, the Petitioner requested that the matter be rescheduled for hearing based on the inability of the parties to successfully settle the dispute. Based on the motion, the case was rescheduled for hearing.

The Petitioner presented the testimony of three witnesses and had three exhibits admitted into evidence. The Respondent testified on his own behalf.

A transcript of the hearing was filed on July 28, 1993. The Petitioner filed a proposed recommended order. The Respondent filed a letter setting forth, in unnumbered paragraphs, "a number of exceptions" taken regarding the hearing. The Respondent's letter is treated as a proposed recommended order. The proposed findings of fact are ruled upon either directly or indirectly as reflected in this Recommended Order, and in the Appendix which is attached and hereby made a part of this Recommended Order.

On November 12, 1993, the Petitioner remanded the case for additional findings of fact. This Corrected Recommended Order sets forth such additional findings.

FINDINGS OF FACT

1. The Respondent holds a Class "DS" Security Officer School license number DS89-00158, effective February 17, 1992. For reasons unrelated to this case, the Respondent has decided to return the license to the Petitioner.

   
   

2. The Respondent held a Class "DI" Security Officer Instructor license number DI89-00338, effective January 24, 1991, which the Respondent allowed to expire.

   
   

3. The Respondent holds a Class "K" Firearms Instructor license number K87-00008, effective March 4, 1988. The parties stipulated that this case is applicable to the Class "K" license.

   
   

4. The Respondent is the owner and operator of DV's Security Guard School. At all time material to this case, the Respondent was appropriately licensed to own and operate the school.

   
   

5. The Administrative Complaint alleges that the Respondent failed to provide appropriate instruction to seven identified students during a period of time from October 1991 to May 1992. The complaint further alleges that the Respondent improperly certified that the seven students had received the appropriate instruction.

   
   

6. All licensed Firearms Instructors must utilize the instruction requirements and materials contained in the Firearms Instructors Training Manual.

   
   

7. The appropriate method of instruction for students seeking licensure as security personnel is classroom lecture. A text provided to students is intended to be utilized as a basis for lecture.

   
   

8. The Respondent distributed the text to the students and directed the students to read the material in non-classroom time. He then attributed credit to students for the time expended in completing reading assignments.

   
   

9. The evidence fails to establish that the Respondent's method of instruction is reasonable or complies with applicable statute or rule.

   
   

10. Lisa M. Dale received instruction in October or December of 1991. Ms. Dale testified that she received approximately eight total hours of instruction.

    
    

11. The parties stipulated that Kenny E. Moore was in the same class and received the same training as Ms. Dale.

    
    

12. The parties also stipulated that Marian J. Bryant, who received instruction in January of 1992, received only eleven hours of Class "G" classroom instruction.

    
    

13. Robert Meyer received instruction in March of 1992. Mr. Meyer received approximately 14 total hours of training at that time. In April, 1992, Mr. Meyer was retrained by the Respondent and received 25 hours of additional training.

14. The evidence establishes that as to Lisa M. Dale, Kenny Ep. Moore, Marian Bryant and Robert Meyer, the Respondent failed to provide the appropriate hours of classroom instruction required by applicable statute and rules related to qualification for licensure as a security guard.

    
    

15. The evidence establishes that the Respondent signed a statement certifying that Kenny Moore had successfully completed the prescribed training as set forth in the Department of State Firearms Instructors Training Manual.

    
    

16. The Firearms Instructor's Training Manual was not introduced at hearing and is not part of the record of this proceeding. It is not possible to determine whether or not Mr. Moore's training was as prescribed therein. The evidence fails to establish that the Respondent's certification was untrue.

    
    

17. As to the remaining students identified in the Administrative Complaint, the evidence fails to establish the allegations of misconduct by the Respondent.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Section 120.57(1), Florida Statutes.

    
    

19. The burden of proof is on the Petitioner to establish the truthfulness of the allegations of the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

20. As set forth in the Findings of Fact, the burden has been met as to some of the charges contained within the Administrative Complaint.

    
    

21. The Petitioner is authorized to discipline any licensee upon proof that the licensee is guilty of fraud or deceit, or of negligence, incompetency, or misconduct, in the practice of regulated activities. Section 493.6118(1)(f), Florida Statutes.

    
    

22. The training required for issuance of a Class "G" Firearms license includes 24 hours of range and classroom training taught and administered by a Class "K" licensee, not more than 8 hours of which may be range training. Section 493.6115(8), Florida Statutes. The evidence establishes that as to three students, the Respondent, a Class "K" licensee, failed to provide the appropriate hours of classroom instruction.

    
    

23. Pursuant to Section 493.6118(2), Florida Statutes, the Petitioner may impose a penalty for violation of disciplinary standards. Misconduct in the practice of regulated activities is a violation of 493.6118(1)(f), Florida Statutes, for which a fine of $1,000 will be imposed. Rule 1C-3.113(1)(b)20., Florida Administrative Code.

    
    

24. Based upon the range of applicable penalties set forth at Section 493.6118(2), Florida Statutes, the recommended penalty is as set forth below.

RECOMMENDATION

Based on the foregoing, it is hereby RECOMMENDED that the Department Of State, Division Of Licensing, enter a Final Order imposing a fine of $1,000.

DONE and RECOMMENDED this 16th day of November, 1993 in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM

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 16th day of November, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6780

To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties.

Petitioner

The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:

3. Rejected. The evidence fails to establish that the certificate was signed by Moore, who did not testify at the hearing.

4 (second proposed finding numbered 4) and 5. Rejected as to Mr. Wiese. Mr. Wiese did not testify at the hearing. Mr. Meyer's recollection regarding Mr. Wiese's training was vague and is not credited.

Respondent

The Respondent filed a letter containing unnumbered paragraphs which is treated herein as a proposed recommended order. The paragraph beginning "I TAKE EXCEPTION" is regarded as paragraph #1. The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:

1, 2. Rejected. The proposed finding is applicable to the weight of the testimony which clearly established that the witness received an inadequate level of instruction.

3. Rejected. The Respondent stipulated to the fact that Dale and Moore were in the same class. The stipulation was placed on the record. The Petitioner released Moore from testifying based on the stipulation.

4, 6-12. Rejected, irrelevant.

COPIES FURNISHED:

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

Henri C. Cawthon, Esquire Department of State Division of Licensing

The Capitol, Mail Station #4 Tallahassee, Florida 32399-0250

DV's Security Guard School Stephen Paul DeVillo

10871 Ruden Road

Fort Myers, Florida 33917-5513

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 ten 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.

=================================================================

AGENCY FINAL ORDER

=================================================================

DEPARTMENT OF STATE, DIVISION OF LICENSING,

Petitioner,

STATE OF FLORIDA DEPARTMENT OF STATE

vs. DOS CASE NO.: C92-00873

DOAH CASE NO.: 92-6780

DV'S SECURITY GUARD SCHOOL, STEPHEN PAUL DEVILLO, OWNER,

Respondent.

/

FINAL ORDER

This cause came before the Department of State, Division of Licensing, for consideration and final agency action. A formal administrative hearing was conducted on July 13, 1993, in Ft. Myers, Florida, before William F. Quattlebaum, a duly assigned Hearing Officer of the Division of Administrative Hearings. The Recommended Order was submitted by the Hearing Officer on November 16, 1993, a copy of which is attached. Neither party filed objections.

FINDINGS OF FACTS

The Department of State hereby adopts and incorporates herein by reference- the Findings of Fact in the Recommended Order.

CONCLUSIONS OF LAW

The Department of State hereby adopts and incorporates herein by reference the Conclusions of Law in the Recommended Order with the exception of paragraph

22 which concludes Respondent failed to provide the appropriate hours of classroom instruction in firearm training to three students. The Department adopts' the finding that four students completed Respondent's training classes without having received the appropriate hours of classroom instruction.

It is also noted that among them, the students attended three different training sessions between December, 1991 and March, 1992, which establishes a pattern of substandard instruction in the proper use of a firearm. The fact that students were being qualified to work as armed security officers in positions of public trust, and that three of them actually received less than half of the statutorily required hours of training is significant in determining the appropriate disciplinary action to be imposed.

WHEREFORE, based upon the Foregoing, it is ORDERED that Respondent's Class "K" Firearm Instructors License be and is hereby REVOKED pursuant to Section 493.6118(2)(e), Florida Statutes, and 1C-3.113(3)(c), Florida Administrative Code. Respondent may reapply for licensure one year from this date.

NOTICE OF RIGHTS

This Order constitutes final agency action. Any party who is adversely affected by this Order may seek judicial review under Section 120.68, Florida Statutes. Such proceedings are commenced by filing-a Notice of Appeal, pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the Deputy Clerk of the Division of Licensing, Department of State, The Capitol, Mail Station #4, Tallahassee, Florida 32399-0250; and by filing a copy of the Notice of Appeal, accompanied by the applicable filing fees, with the First District Court of Appeal, or with the District Court of Appeal in the appellate district where the party resides. The Notice of Appeal must be filed within thirty (30) days of the day this Order is filed with the Clerk of the Department.

DONE AND ORDERED at Tallahassee, Florida this 17th day of December, 1993.

J M. Russi, Director Division of Licensing

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing Final Order has been sent by

U.S. Mail this 17th day of December, 1993, to DV's Security Guard School, Stephen Paul Devillo, Owner, 10871 Ruden Road, Ft. Myers, Florida 33917-5513.

Richard R. Whidden, Jr. Assistant General Counsel Department of State Division of Licensing

The Capitol, MS #4

Tallahassee, Florida 32399-0250

(904) 488-3492

Copies Furnished to Filed with Agency Clerk

License File Division of Administrative Hearings Tampa Regional Office

Docket for Case No: 92-006780

Orders for Case No: 92-006780