STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, DIVISION ) OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 94-4887

)

CLIFFORD ROCHA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on January 24, 1995, at Miami, Florida, before Michael M. Parrish, a Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: 1/ Henri C. Cawthon, Esquire

Department of State, Division of Licensing

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

For Respondent: Mark J. Feldman, Esquire

2350 Coral Way, Number 302

Miami, Florida 33145 STATEMENT OF THE ISSUES

This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations that the Respondent violated Section 493.6118(1)(f), Florida Statutes, by leaving his assigned post and chasing thieves in a motor vehicle.

PRELIMINARY STATEMENT

At the formal hearing on January 24, 1995, the Petitioner presented the testimony of four witnesses. 2/ The Petitioner did not offer any exhibits. 3/ The Respondent did not present any testimony at the formal hearing. The Respondent did offer one exhibit. 4/

At the conclusion of the formal hearing the parties requested, and were allowed, ten days from the filing of the transcript within which to submit their respective proposed recommended orders. The transcript was filed with the Hearing Officer on February 13, 1995. By written memoranda dated February 15, 1995, counsel for all parties were advised of the filing of the transcript and were reminded that February 23, 1995, was the deadline for serving their respective proposed recommended orders. On February 23, 1995, the Petitioner

served and filed a timely proposed recommended order. On March 1, 1995, the Respondent served a tardy proposed recommended order which was not filed until March 7, 1995. 5/ All proposed findings of fact contained in the parties' respective proposed recommended orders are specifically addressed in the appendix to this Recommended Order.

FINDINGS OF FACT

1. The Respondent Clifford Rocha was, at all times material to this proceeding, employed as a security officer by Dade Federal Security. He was hired on October 16, 1989, and worked for Dade Federal Security on a part-time basis until sometime after the incident from which this proceeding arises.

   
   

2. As a general rule, all employees of Dade Federal Security, as part of the company's policy and procedures, are required to sign a copy of the written rules applicable to the security officer job in the presence of their supervisor to acknowledge they have read them. As part of that procedure each employee receives a copy of the rules. Usually this happens at time of hire.

   
   

3. The written work rules include the following statement: "Any employee who abandons his or her assignment location without advising his or her supervisor and the company will be determined to be terminated on the spot."

   
   

4. Aleli Puig, the owner and manager of Dade Federal Security, did not remember ever discussing the work rules with Mr. Rocha and could not remember ever telling Mr. Rocha that he was never to leave his post.

   
   

5. As a general rule, security officers employed by Dade Federal Security are instructed that when they see a crime committed in their presence to first call 911 and then to call Dade Federal Security and ask for a supervisor. The owner and manager of Dade Federal Security in her thirteen years in the security industry has never told her security officer employees that they were to leave their posts to chase down a suspected criminal.

   
   

6. The written rules described above were first placed in effect at some time after the Respondent was hired. There is no persuasive evidence in this case that the Respondent was ever provided a copy of the written rules. Similarly, there is no persuasive evidence that the Respondent was otherwise advised about any of the work rules mentioned above. 6/

   
   

7. On December 16, 1992, the Respondent was assigned to work as a security officer at a shopping center located near the intersection of Bird Road (which is also Southwest 42nd Street) and 128th Avenue. While on duty in that capacity in the early morning hours, the Respondent observed two suspects who appeared to have stolen a six-pack of beer from a convenience store located in the shopping mall where the Respondent was working. The two suspects left the shopping mall in an automobile. The Respondent followed the two suspects in his own automobile, on which he had placed a flashing yellow light.

   
   

8. Approximately 20 blocks from the shopping mall there was an automobile accident involving the Respondent's automobile and the automobile containing the two suspects. 7/ Shortly thereafter, the police were called and the two suspects were arrested. The office of Dade Federal Security was also called and Gangerico Cruz, who was the Respondent's supervisor, went to the scene of the accident.

9. At the scene of the accident Supervisor Cruz spoke with the Respondent about what had happened. Among other things, the Respondent told his supervisor that he was pleased that he had been able to detain the suspects. Later when the Respondent spoke to the owner of Dade Federal Security he told the owner she should be proud of him for detaining the suspects.

   
   

10. The Respondent suffered a broken leg in the automobile accident and was unable to work for an unspecified period of time. After his leg healed the Respondent continued to work for Dade Federal Security for an unspecified period of time. His employment was eventually terminated as a result of a later incident during which he was accused of sleeping while on duty.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

12. In a license discipline proceeding of this nature the Petitioner bears the burden of proving its charges by clear and convincing evidence. See Ferris

    v. Turlington, 510 So.2d 292 (Fla. 1987). The nature of clear and convincing evidence has been described as follows in Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983):

    
    

    We therefore hold that clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses 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.

    
    

    See also, Smith v. Department of Health and Rehabilitative Services, 522 So.2d 956 (Fla. 1st DCA 1988), which, at page 958, quotes with approval the above- quoted language from Slomowitz. The Smith case also includes the following at page 958:

    
    

    "Clear and convincing evidence" is an intermediate standard of proof, more than the "preponderance

    of the evidence" standard used in most civil cases, and less than the "beyond a reasonable doubt" standard used in criminal cases. See State v.

    Graham, 240 So.2d 486 (Fla. 2d DCA 1970).

    
    

13. Section 493.6118, Florida Statutes, reads as follows, in pertinent part:

    
    

    1. The following constitute grounds for which disciplinary action specified in subsection (2) may be taken by the department against any licensee, agency, or applicant regulated by this chapter, or any unlicensed person engaged in activities regulated under this chapter.

       * * *

       (f) Proof that the applicant or licensee is guilty of fraud or deceit, or of negligence, incompetency, or misconduct, in the practice of the activities regulated under this chapter.

       * * *

    2. When the department finds any violation of subsection (1), it may do one or more of the following:

       1. Deny an initial or renewal application for license.

       2. Issue a reprimand.

       3. Impose an administrative fine not to

          exceed $1,000 for every count or separate offense.

       4. Place the licensee on probation for a period of time and subject to such conditions as the department may specify.

       5. Suspend or revoke a license. [Emphasis added.]

          
          

14. The Administrative Complaint in this proceeding charges the Respondent with a violation of Section 493.6118(1)(f), Florida Statutes, by reason of "misconduct in the practice of activities regulated under Chapter 493, Florida Statutes." The term "misconduct" is not defined in the statute. Accordingly, it must be given its plain and ordinary meaning, 8/ and any ambiguity regarding the meaning of the term must be resolved in favor of the licensee. 9/ Resort to several dictionaries indicates that the unmodified word "misconduct" encompasses a rather broad and general classification of "behavior not conforming to prevailing standards or laws." 10/ In the statutory context in which the term appears it clearly encompasses conduct in the course of regulated activities (the performance of security services) which is a crime or which violates statutory or rule provisions governing such activities. Whether the statute also encompasses otherwise lawful conduct which is in violation of an employer's work rules is, at best, ambiguous. 11/ 15. The evidence in this case does not establish that the Respondent engaged in any criminal activity. 12/ Similarly, the evidence in this case does not establish that the Respondent's conduct was in violation of any statute or rule governing the performance of security services. Accordingly, the evidence is insufficient to prove that the Respondent engaged in "misconduct" within the meaning of Section 493.6118(1)(f), Florida Statutes.

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case dismissing all charges against the Respondent.

DONE AND ENTERED this 14th day of March 1995 in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

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 14th day of March 1995.

ENDNOTES

1/ Mr. Cawthon appeared for the Petitioner at the formal hearing. Thereafter, Michele Guy, Esquire, was substituted as counsel for the Petitioner. The Petitioner's proposed recommended order was submitted by Ms. Guy.

2/ The four witnesses were: Aleli Puig (owner and manager of a security business), Jackie Guildris (interpreter), Gangerico Cruz (a supervisor at Puig's business), and Richard Jennings (a Department investigator).

3/ One Petitioner's exhibit was marked for identification and a portion of the exhibit was read into the record, but ultimately the Petitioner withdrew the exhibit.

4/ See page 42 of the transcript, at which the Respondent is allowed 10 days from the close of the hearing to forward a copy of the exhibit for inclusion in the record. The Respondent never forwarded a copy of what was marked as Respondent's Exhibit 1. The Hearing Officer has treated the failure to file the exhibit as a withdrawal of the exhibit.

5/ The Respondent's tardy proposed recommended order was also misaddressed; it was addressed to the Hearing Officer by name, but at the address of the Petitioner, which further delayed delivery of an already late document.

6/ Both Aleli Puig (the owner of Dade Federal Security) and Gangerico Cruz (the Respondent's supervisor at the time of the subject incident) testified that they did not remember ever discussing the work rules with the Respondent.

7/ The record in this proceeding contains only sketchy details regarding how the automobile accident occurred. It is not possible to tell from the sketchy details who caused the automobile accident. Similarly, the record in this proceeding contains no details about the manner in which the Respondent followed the suspects.

8/ It is a well-settled rule of statutory construction that: "In construing statutes, it is the duty of a court to give a word its plain and obvious meaning." Harper v. State, 217 So.2d 591 (Fla. 4th DCA 1969). To similar

effect, see such cases as Gasson v. Gay, 49 So.2d 525 (Fla. 1950), and School Board of Marion County v. Public Employees Relations Commission, 330 So.2d 770 (Fla. 1st DCA 1976).

9/ Although agencies generally have wide discretion in interpreting the statutes they are charged with administering, such discretion is more limited when the statute in question authorizes disciplinary action against a professional license. Statutes authorizing agencies to suspend or revoke professional licenses are considered to be penal in nature and, therefore, "must be strictly construed, with any ambiguity interpreted in favor of the licensee." Elmariah v. Department of Professional Regulation, 574 So.2d 164, 165 (Fla. 1st DCA 1990). To similar effect, see also Judge Zehmer's special concurrence in McDonald v. Dept. of Professional Regulation, Board of Pilot Commissioners, 582 So.2d 660 (Fla. 1st DCA 1991), at 669.

10/ See, for example, The American Heritage Dictionary of the English Language, 1973 edition, at page 838.

11/ Even if it were to be concluded that the statute encompassed violations of work rules, as noted in the findings of fact, there is no clear evidence that the Respondent had been made aware of the work rules.

12/ While it is alleged that the Respondent engaged in a "high speed chase," the evidence about the manner in which the Respondent followed the suspects is too sketchy and incomplete to make any findings on that subject one way or the other. (There is reason to suspect that the Respondent was engaged in a high speed chase, but suspicions cannot take the place of clear and convincing evidence.)

APPENDIX

The following are the specific rulings on all proposed findings of fact submitted by all parties.

Findings proposed by Petitioner:

Paragraphs 1, 2, and 3: Accepted in substance with some small modifications and additional details in the interests of clarity and accuracy.

Paragraph 4: Rejected as not fully supported by clear and convincing evidence.

Paragraphs 5, 6, and 7: Accepted in substance with some small modifications and additional details in the interests of accuracy and clarity.

Paragraph 8: Accepted in part and rejected in part. The evidence is insufficient to establish that the Respondent engaged in a "high speed chase" or that he was in "hot pursuit."

Paragraph 9: Accepted in substance.

Paragraph 10: Rejected as subordinate and unnecessary details, or as irrelevant to disposition of this proceeding.

Findings proposed by Respondent:

Paragraphs 1, 2, 3, 4, 5, and 6: Accepted in substance with a few modifications and additional details in the interest of accuracy and clarity. (Also, a few unnecessary details have been omitted.)

Paragraph 7: Last sentence accepted. The rest of this paragraph is rejected as subordinate and unnecessary details.

Paragraph 8: Accepted in substance.

Paragraph 9: First sentence accepted in substance. The remainder is rejected as irrelevant.

COPIES FURNISHED:

Henri C. Cawthon, Esquire Department of State, Division

of Licensing

The Capitol, MS #4

Tallahassee, Florida 32399-0250

Mark J. Feldman, Esquire 2350 Coral Way, #302

Miami, Florida 33145

Honorable Sandra B. Mortham Secretary of State

The Capitol

Tallahassee, Florida 32399-0250

Don Bell, General Counsel Department of State

The Captiol, 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 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.

Docket for Case No: 94-004887

Orders for Case No: 94-004887