STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID W. QUEEN, )

)

Petitioner, )

)

vs. ) CASE NO. 93-2800S

) DEPARTMENT OF STATE, ) DIVISION OF LICENSING, )

)

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 August 4, 1993, in Tampa, Florida.

APPEARANCES

For Petitioner: David W. Queen, pro se

Post Office Box 340517 Tampa, Florida 33694

For Respondent: Henri C. Cawthon, Esquire

Department of State Division of Licensing

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

STATEMENT OF THE ISSUES

Whether Petitioner lacks good moral character so as to disqualify him for licensure as Class "A, C, D, and G" Licenses, Private Investigative Agency, Private Investigator License, Security Officer, and Statewide Firearm License.

PRELIMINARY STATEMENT

By letter dated April 22, 1993 the Department of State, Division of Licensing denied the application of David W. Queen for licenses as Class "A, C, D, and G" Licenses, Private Investigative Agency, Private Investigator License, Security Officer, and Statewide Firearm License. As grounds therefore it is alleged that Queen lacks good moral character. Lack of good moral character is predicated upon a charge of unethical conduct in billing a civic association at

$17 per hour while paying police officers who performed the off duty security services $15 per hour; that he worked off duty assignments while on duty with the Tampa Police Department; that he solicited funds for the Tampa Police Basketball Team under false pretenses; that he forged the signature of the University of Tampa Athletic Director to a letter regarding a charity basketball

game; that he misused funds belonging to the Tampa Police Department Basketball Team; and that he provided false and misleading information related to an investigation by the Internal Affairs Unit of the Tampa Police Department.

By Petition for Formal Hearing forwarded May 12, 1993 Respondent denied the allegations made in the denial letter and these proceedings followed. At the hearing Respondent called one witness, Petitioner testified in his own behalf and 12 exhibits were admitted into evidence. Proposed findings submitted by Respondent are accepted except as noted in the Appendix attached hereto. Having fully considered all evidence presented I submit the following.

FINDINGS OF FACT

1. David W. Queen was employed by the Tampa Police Department (TPD) as a uniformed police officer for approximately 10 years ending in 1992. At the time he resigned from the TPD he held the rank of sergeant.

   
   

2. Many Tampa police officers are employed during their off-duty hours by various private organizations for security, crowd and traffic control purposes. The Tampa Jai Alai Fronton is one such employer as are some schools for PTA meetings, for example.

   
   

3. For a large part of Petitioner's time with the TPD Petitioner worked as a security officer for several private organizations. During the period from 1986-1987 to 1992 Petitioner became the point man for some of these organizations and arranged to provide security personnel from the TPD during hours these security personnel were needed.

   
   

4. One such organization was the Culbreath Isles Civic Association for whom Petitioner has worked since 1985-1986. In early 1992 Petitioner agreed with the Association to provide security police during the hours desired by the Association at a fee of $17 per hour per person.

   
   

5. Petitioner would bill the Association for the man hours worked at $17 per hour and reimburse the police officers in cash at the rate of $15 per hour. Petitioner initially computed his time administering the program at 5 hours per week at $15 per hour and he rebated part of the $2 per hour to the Association.

   
   

6. Some of the police who provided the security services learned that Petitioner was charging $17 per hour for the services and was retaining $2 per hour for himself and complained to the TPD. Others considered Queen to be entitled to the $2 per hour for supervising and administering the program. However, as a result of the complaints an investigation was initiated by the Internal Affairs Department of the TPD.

   
   

7. The investigation spread to other security services provided by Petitioner to USAA Insurance, the Jai Alai Fronton, to some schools, restaurants and to Petitioner's activities and participation with the TPD basketball team.

   
   

8. During the initial interrogations of Queen the investigator concluded that Queen was not being completely forthright in explaining why he was collecting $17 per man per hour from the Culbreath Isles Civic Association and was paying the officers $15 per hour.

9. Although Queen initially indicated the Association was charged only $15 per hour and the overpayment was to be returned to the Association it came to light that he had rebated only part of the difference between $17 per hour received and the $15 per hour he was contending to be the actual charge. Queen later acknowledged that he was claiming 5 hours per week for his time in administering the program. However, his calculations and the amount he refunded to the Association did not square with what he claimed. To rectify this discrepancy Queen ultimately refunded to the Association all of the $17 per hour received less the $15 per hour paid to the officers and less his administrative time of 5 hours per week at $15 per hour which he claimed for administering the program.

   
   

10. Subsequent to this investigation the TPD has employed one person with an assistant to administer the off-duty employment of police officers as private security personnel. The TPD withholds $2 per hour received from the person or organization requesting the security services for administrative expenses and remits the balance to the officers who provide the services. Petitioner's biggest error in administering the security services for Culbreath Isles Civic Association was that he did not advise the officers actually providing the security service that he was to be reimbursed for administering the program.

    
    

11. Petitioner entered into an agreement with USAA Insurance to spend a certain number of hours at the USAA building environs every two weeks at random times to evince police protection of the building and parking lot. Petitioner was provided a coded access card to the building and was encouraged by the insurance company to utilize the office for his administrative work. USAA Insurance was well satisfied with the arrangement with Petitioner and his billing them for six hours every two weeks regardless of the actual hours he spent at the USAA building.

    
    

12. During a check of Petitioner's timesheets with the TPD and the times he billed other customers for security work it appeared in certain instances that Petitioner was charging for security services while he was being clocked as on duty with the TPD. However, these incidents involved only a few minutes near the beginning or end of Petitioner's duty day or resulted from an urgent call for security services not timely requested by the customer.

    
    

13. Petitioner has been an ardent supporter of the University of Tampa (UT) basketball program since his graduation in 1982 and has worked to improve this program. Additionally, for the past five years he has been the driving force behind the TPD athletic program and particularly the TPD basketball team. His efforts resulted, among other things, to UT allowing the TPD basketball team to use their facilities to practice.

    
    

14. In order for the TPD basketball team to obtain funds to defray travelling expenses to play in the police officer's olympics, Petitioner organized a celebrity basketball game with several football players from the Tampa Bay Buccaneers. He also solicited funds from various organizations to help defray the actual expenses incurred by the players. However, these funds were commingled with Petitioners own funds and detailed records were not kept. As a result Petitioner could not account for some of the monies he received.

    
    

15. In conjunction with the celebrity basketball game petitioner signed the name of the UT athletic director to a promotional letter he sent out before getting clearance from the athletic director. When he did ask for this joint sponsorship the athletic director declined because UT was promoting a fund

    raising golf tournament at about the same time and did not want to be sponsoring two events so close together. Otherwise Queen's anticipation that UT would participate would undoubtedly have been realized.

    
    

16. Petitioner's errors in providing security services on occasion while he was on duty with the TPD were not flagrant. Nor was his failure to fully account for the funds received for supporting the TPD basketball team. No criminal charges were ever brought against Petitioner nor were his activities referred to the State Attorney's Office.

    
    

17. After leaving the TPD Petitioner in 1992 served as a substitute teacher at Adams Junior High School, a school in the Hillsborough County School System. In addition to submitting a letter of commendation from this school, Petitioner submitted letters from other clients for whom he has provided security services for the past four or five years. The authors of these letters were well satisfied with Petitioner's work and consider him to have a good moral character and they would not hesitate to employ him for security purposes in the future.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

19. Section 493.6106, F.S. provides, inter alia, that each individual licensed by the department (Respondent) shall be of good moral character.

    
    

20. Section 493.6118(3), F.S. provides in pertinent part:

    
    

    The department may deny an application for licensure citing lack of good moral character only if the finding by the department of lack of good moral character is supported by clear and convincing evidence.

    
    

21. In order to meet this clear and convincing standard, the court in Slomowitz v. Walker 429 So.2d 797, 800 (Fla. 4th DCA 1983) stated:

    
    

    ...a workable definition of clear and convincing evidence must contain both qualitative and quantitative standards.

    We therefore hold that clear and convincing evidence requires that the evidence must be found to be credible; the facts as to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witness must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a

    firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

22. Section 493.6101(7), F.S. provides:

    
    

    "Good moral character" means a personal history of honesty, fairness and respect for the rights and property of others and for the laws of this state and nation.

    
    

23. In Zeymour, Inc. v State of Florida, Division of Beverages and Tobacco

    347 So.2d 1102, 1105 (Fla. 4th DCA 1983) the court stated:

    
    

    Moral character, as used in the statute [Section 561.15] means not only the ability to distinguish between right and wrong, but the character to observe the difference; the observance of the rules of right conduct, and conduct which indicates and establishes the qualities generally acceptable to the populace for positions of trust and

    confidence. An isolated unlawful act or acts of indiscretion wherever committed do not necessarily establish bad moral character.

    
    

24. Petitioner's primary problem with the TPD was that he did not immediately acknowledge that he was charging the Culbreath Isle Civic Association more than he was paying the officers who provided the services and retaining the difference for his work in administering the program. Although Petitioner's answer to some of the investigator's questions were evasive, no evidence was presented that Petitioner perjured himself. As far as the Tampa Police Department was concerned Queens's principle error was his failure to readily admit all of the allegations.

    
    

25. Similarly the signing of the Athletic Director's name to the letter was not intended by Petitioner to defraud anyone as he fully expected the UT to join in the promotion.

    
    

26. The acts here complained of were isolated acts in working as security while still technically on duty with the TPD and acts of indiscretion such as signing the UT Athletic Director's name to a letter. None of these acts had any criminal intent and do not rise to the level necessary to prove lack of good moral character.

    
    

27. From the foregoing it is concluded that Respondent has failed to show by clear and convincing evidence that David W. Queen is not of good moral character.

RECOMMENDATION

It is RECOMMENDED that a final order be entered finding David W. Queen qualified for licensure as "A, C, D and G" Licenses, Private Investigative Agency, Private Investigator License, Security Officer, and State Firearms License.

DONE AND RECOMMENDED this 23rd day of August, 1993, in Tallahassee, Leon County, Florida.

K. N. AYERS 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 23rd day of August, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2800S

Proposed findings submitted by Respondent are accepted except as noted below. Those neither noted below nor included in the Hearing Officer's findings were deemed unnecessary to the conclusions reached.

7. Rejected. Anytime Petitioner visited the vicinity of the USAA building USA Insurance considered Queen to be providing the contracted for protection.

9. While technically true this was a very short period of time while his assistant was enroute to sign out for Petitioner.

COPIES FURNISHED:

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

The Capitol, Mail Station #4 Tallahassee, FL 32399

Phyllis Slater, General Counsel Department of State

The Capitol, PL-02

Tallahassee, Florida 32399-0250

Honorable Jim Smith Secretary of State Department of State The Capitol

Tallahassee, Florida 32399-0250

D. W. Queen

Post Office Box 340517 Tampa, Florida 33694

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: 93-002800

Orders for Case No: 93-002800