STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 93-7058

)

EDUARDO R. HERNANDEZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on June 28, 1994, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Richard R. Whidden, Jr., Esquire

Department of State, Division of Licensing The Capitol, Mail Station 4

Tallahassee, Florida 32399-0250

For Respondent: Eduardo R. Hernandez, pro se

1485 West 46th Street, No. 524

Hialeah, Florida 33012 STATEMENT OF THE ISSUES

1. Whether Respondent committed the violations alleged in the Amended Administrative Complaint?

   
   

2. If so, what disciplinary action should be taken against him?

PRELIMINARY STATEMENT

On November 15, 1993, the Department of State, Division of Licensing (hereinafter referred to as the "Department") issued an Administrative Complaint against Respondent, who holds a Class "D" security license and a Class "G" statewide firearms license. Respondent denied the allegations of wrongdoing advanced in the Administrative Complaint and requested a formal hearing. On December 13, 1993, the Department referred the matter to the Division of Administrative Hearings (hereinafter referred to as the "Division") for the assignment of a Division hearing officer to conduct the formal hearing Respondent had requested.

On April 22, 1994, the Department filed a motion requesting leave to file an Amended Administrative Complaint against Respondent. The motion was granted by order issued April 26, 1994. The Amended Administrative Complaint that the Department filed alleged the following:

COUNT I

On or about October 25, 1993, in Dade County Florida, Respondent engaged in misconduct while conducting regulated activities in that he discharged his firearm in an attempt to scare a dog that was unleashed and approaching Respondent. The bullet struck and broke a store window thereby endangering the lives of people in the area and the store. Respondent is in violation of Section 493.6118(1)(f), Florida Statutes.

COUNT II

On or about October 25, 1993, in Dade County, Florida, Respondent engaged in misconduct while conducting regulated activities in that he improperly exhibited his firearm when he pointed his weapon at Eileen Escardo without sufficient lawful justification. Respondent is in violation of Section 493.6118(1)(f), Florida Statutes.

At the final hearing in the instant case held on June 28, 1994, 1/ the Department presented the testimony of three witnesses, Eileen Escardo, Detective Jorge Espinosa of the Metro-Dade Police Department, and Paul Laughlin, the Personnel Director of Vanguard Security, the security agency for which Respondent works. In addition to the testimony of these witnesses, the Department offered, and the Hearing Officer received, three exhibits into evidence. One of these exhibits was the transcript of the deposition of Andrea Ramsey, which was offered in lieu of Ramsey's live testimony. Respondent, through an interpreter, 2/ testified in his own behalf. He offered no other evidence.

At the conclusion of the evidentiary portion of the hearing, the Hearing Officer, on the record, advised that the parties had the right to file post- hearing submittals and established a deadline, 10 days from the date of the hearing, for the filing of such submittals with the Division. On July 8, 1994, the Department filed with the Division a proposed recommended order containing proposed findings of fact and proposed conclusions of law. The Hearing Officer has carefully considered the Department's proposed recommended order. The findings of facts the Department has proposed are specifically addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:

1. The Department is a state government licensing and regulatory agency.

   
   

2. Respondent is now, and has been at all times material to the instant case, an employee of Vanguard Security and the holder of a Class "D" security guard license and a Class "G" statewide firearms license.

   
   

3. Vanguard Security (hereinafter referred to as "Vanguard") is an agency which provides armed and unarmed security services to its clients.

   
   

4. Vanguard has a written policy prohibiting the display and use of firearms by its security officers except where such conduct is reasonably necessary to prevent imminent bodily harm. Vanguard also has a written policy forbidding its security officers from leaving their assigned posts while they are on duty. These written policies are set forth in an employee handbook that all employees of the agency are given.

   
   

5. On the evening of October 25, 1993, Respondent was assigned to provide armed security services in a warehouse area in Dade County, Florida.

   
   

6. At approximately 10:00 p.m. that evening Andrea Ramsey was walking her friend's unleashed dog, a Doberman pinscher named "Chewy," in the vicinity of the warehouse area Respondent was responsible for guarding (hereinafter referred to as Respondent's "post" or "posted area"). Chewy's owner, Eileen Escardo, was working late in her photography studio which was located across the street from Respondent's post.

   
   

7. Respondent saw Ramsey from afar. His suspicions aroused, he walked toward her to investigate.

   
   

8. Respondent left his posted area and started to cross the street that separated the posted area from the warehouse in which Escardo's photography studio was located. When he was approximately 20 feet from Ramsey, he asked her if Chewy, who was by a tree to her left, was her dog. Ramsey responded in the affirmative.

   
   

9. Chewy then, in a leisurely manner, headed toward Ramsey and Respondent.

   
   

10. Although Chewy was moving in Respondent's direction, he did so in a manner that did not reasonably suggest that he was going to attack Respondent. Nonetheless, Respondent panicked. Contrary to his employer's written policies regarding the display and discharge of firearms, he drew his revolver and, when Chewy was approximately three or four feet away from him, fired the weapon, but without any intention of shooting the dog or Ramsey. The bullet hit and shattered the glass door of the business next to Escardo's photography studio. Fortunately, no one was hurt or injured.

    
    

11. Ramsey screamed when Respondent fired his revolver.

    
    

12. Escardo heard her friend's scream, as well as the shot that preceded it. She rushed out of her studio to see what had happened.

13. Escardo saw Ramsey standing in the middle of the street, with Respondent nearby holding a revolver.

    
    

14. After instructing Ramsey to call the police, Escardo walked toward Respondent. Pointing his revolver at Escardo, Respondent warned her to stay away from him. Despite the warning, Escardo, who was unarmed, continued to approach Respondent until she was close enough to push him and the revolver aside. She then turned around and walked toward her studio to wait for the police.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Department is statutorily empowered to take disciplinary action against licensees, such as Respondent, based upon any of the grounds enumerated in Section 493.6118(1), Florida Statutes. Such disciplinary action may include one or more of the following penalties: license denial; license revocation; license suspension; imposition of an administrative fine not to exceed $1,000 for each count or separate offense; issuance of a reprimand; and placement of the licensee on probation. Section 493.6118(2), Fla. Stat.

    
    

16. Where the disciplinary action sought is the revocation or suspension of the licensee's license, the proof of guilt must be clear and convincing. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Pic N' Save v. Department of Business Regulation, 601 So.2d 245 (Fla. 1st DCA 1992); Munch v. Department of Professional Regulation, 592 So.2d 1136 (Fla. 1st DCA 1992); Newberry v. Florida Department of Law Enforcement, 585 So.2d 500 (Fla. 3d DCA 1991). "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." Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

    
    

17. Where the discipline does not involve the loss of licensure, the licensee's guilt need be established by only a preponderance of the evidence. See Allen v. School Board of Dade County, 571 So.2d 568, 569 (Fla. 3d DCA 1990).

    
    

18. Regardless of the disciplinary action taken, it may be based only upon the violations specifically alleged in the administrative complaint. See Kinney

    v. Department of State, 501 So.2d 129, 133 (Fla. 5th DCA 1987); Hunter v. Department of Professional Regulation, 458 So.2d 842, 844 (Fla. 2d DCA 1984).

    
    

19. Furthermore, in determining whether Section 493.6118(1), Florida Statutes, has been violated in the manner charged in the administrative complaint, one "must bear in mind that it is, in effect, a penal statute. . . This being true the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it. Furthermore, if there are any ambiguities included such must be construed in favor of the . . . licensee." Lester v. Department of Professional and Occupational Regulations, 348 So.2d 923, 925 (Fla. 1st DCA 1977).

    
    

20. The Amended Administrative Complaint issued in the instant case charges that Respondent, on or about October 25, 1993, "engaged in misconduct while conducting regulated activities," in violation of Section 493.6118(1)(f), Florida Statutes, by "discharg[ing] his firearm in an attempt to scare a dog that was unleashed and approaching Respondent" (Count I) and by "improperly exhibit[ing] his firearm when he pointed his weapon at Eileen Escardo without sufficient lawful justification" (Count II).

21. Section 493.6118(1)(f), Florida Statutes, authorizes the Department to discipline a licensee upon "[p]roof 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."

    
    

22. An armed, on-duty security guard who, without sufficient provocation or justification, recklessly discharges his firearm or displays it in a threatening manner, contrary to his employer's announced policies, is guilty of "misconduct, in the practice of the activities regulated under . . . [C]hapter [493, Florida Statutes]," as proscribed by Section 493.6118(1)(f), Florida Statutes.

    
    

23. The evidence presented in the instant case clearly and convincingly establishes that, as alleged in the Amended Administrative Complaint, Respondent engaged in such on-duty "misconduct" on the evening of October 25, 1993. He therefore is subject to disciplinary action pursuant to Section 493.6118(1)(f), Florida Statutes.

    
    

24. In its proposed recommended order, the Department argues that such disciplinary action should take the form of the revocation of Respondent's Class "G" statewide firearms license. The Hearing Officer agrees that this is an appropriate penalty to impose in the instant case given that Respondent's misconduct involved the irresponsible use of a firearm in a manner that unnecessarily endangered the lives of others. 3/

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Department enter a final order (1) finding the evidence sufficient to establish that Respondent committed the violations of Section 493.6118(1)(f), Florida Statutes, in alleged Counts I and II of the Amended Administrative Complaint, and (2) disciplining him for having committed these violations by revoking his Class "G" statewide firearms license.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of July, 1994.

_ STUART M. LERNER

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 19th day of July, 1994.

ENDNOTES

1/ The hearing in the instant case was originally scheduled for May 3, 1994, but was continued until June 28, 1994, at the Department's request.

2/ The interpreter was by Respondent's side and provided him with interpretative services throughout the entire hearing.

3/ The Department does not propose, nor does the Hearing Officer find appropriate, that any further disciplinary action be taken against Respondent.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-7058

The following are the Hearing Officer's specific rulings on the findings of facts proposed by the Department in its proposed recommended order:

1 through 8, 10 and 11. Accepted as true and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

9. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer..

COPIES FURNISHED:

Richard R. Whidden, Jr., Esquire Department of State, Division

of Licensing

The Capitol, MS #4

Tallahassee, Florida 32399-0250

Eduardo R. Hernandez

1485 West 46th Street, #524

Hialeah, Florida 33012

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 of time 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: 93-007058

Orders for Case No: 93-007058