STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 94-7065

) 24-HOUR SECURITY, INCORPORATED, ) RICHARD CULLEN, PRESIDENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was held in this case before Patricia Hart Malono, Hearing Officer of the Division of Administrative Hearings, on March 22, 1995, at West Palm Beach, Florida.

APPEARANCES

For Petitioner: Richard R. Whidden

Assistant General Counsel Department of State Division of Licensing

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

For Respondent: Richard R. Cullen, President

24-Hour Security, Incorporated

1515 South Federal Highway, Suite 109 Boca Raton, Florida 33432

STATEMENT OF THE ISSUE

At issue is whether the respondent violated section 493.6118(1)(n), Florida Statutes, as alleged in the Administrative Complaint, and, if so, the penalty which should be imposed.

PRELIMINARY STATEMENT

In a one-count Administrative Complaint dated November 7, 1994, petitioner, the Department of State, Division of Licensing ("Department"), charged that from May 19, 1994, through October 10, 1994, 24-Hour Security, Incorporated, ("24- Hour Security") through its president, Richard R. Cullen, allowed an unlicensed individual to direct the activities of employees performing regulated activities, in violation of section 493.6118(1)(n), Florida Statutes.

Respondent timely requested a formal hearing pursuant to section 120.57(1), Florida Statutes, disputing the allegations stated in the Administrative Complaint. By Notice of Hearing dated January 12, 1995, the case was set for hearing on March 22, 1995.

At the hearing, the Department presented the testimony of three witnesses: Charles J. McCabe, a former employee of 24-Hour Security; Fred Speaker, a supervisor/investigator employed by the Department in its West Palm Beach, Florida, office; and Catherine Jane Robinson, an investigator employed by the Department in its West Palm Beach, Florida, office. The Department's Exhibits 1 through 6 were accepted into evidence without objection. Richard R. Cullen, president of 24-Hour Security, testified in his own and the corporation's behalf, and Respondent's Exhibit 1 was marked for identification but was not offered into evidence.

At the conclusion of the hearing, the Department stated that no transcript of the proceedings would be filed. Counsel for the Department and Mr. Cullen stated they would submit proposed findings of fact and conclusions of law within ten days of the date of the hearing, that is, on, or before, April 3, 1995.

Both parties timely filed Proposed Recommended Orders. A ruling on each of the parties' proposed findings of fact is contained in the appendix to this Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and the entire record of this proceeding, the following findings of fact are made:

1. During the period of time specified in the Administrative Complaint, May 19, 1994, through October 10, 1994, 24-Hour Security held a Class "B" Security Agency License, number B91-00117.

   
   

2. From May 19, 1994, through October 10, 1994, Richard R. Cullen was president of 24-Hour Security and held, among other licenses, a Class "M" Manager License, number M86-00152.

   
   

3. 24-Hour Security, whose only office is located at 1515 South Federal Highway, Boca Raton, Florida, is in the business of providing security guards to businesses and condominiums. It employs licensed security guards and trains and supervises them to ensure that they adequately perform their duties and carry out the instructions of 24-Hour Security's clients.

   
   

4. From May 19, 1994, through October 10, 1994, Michelle T. Reilly was employed by 24-Hour Security and worked as assistant to Mr. Cullen. She began working for 24-Hour Security in September 1992 and has always been highly regarded as an employee by Mr. Cullen. He has trained her in all aspects of the private security service business in order for her to get the experience necessary to qualify for a chapter 493 manager's license. Prior to February 16, 1995, she had never held any type of license authorized by chapter 493 of the Florida Statutes. Mr. Cullen was aware that she was not licensed.

   
   

5. Since the agency's inception, Mr. Cullen has designated himself manager of 24-Hour Security and has considered himself ultimately responsible for the operation of the agency.

   
   

6. During the period of time at issue in this proceeding, Ms. Reilly's business cards identified her as "Branch Manager," and she was identified as such by licensed employees of 24-Hour Security. On one occasion during the Department's investigation, Ms. Reilly expressly identified herself to an investigator of the Department as manager of 24-Hour Security.

7. During the period of time at issue in this proceeding, in addition to performing secretarial and bookkeeping duties, Ms. Reilly assisted Mr. Cullen in

   (1) hiring and training licensed security guards; (2) preparing daily work schedules for the guards; (3) preparing post orders outlining the duties a guard is to carry out at a particular post, including the client's special instructions or requirements; (4) supervising the operation of the agency's dispatch center; (5) addressing clients' problems; (6) consulting with clients regarding proper security precautions; (7) conducting post inspections to ensure that the guards are at their posts, properly uniformed and carrying out their responsibilities; and (8) writing security proposals for clients and in developing new accounts. In assisting Mr. Cullen with these duties, Ms. Reilly at times was allowed by Mr. Cullen to direct and control the activities of licensed security officers and to operate the agency.

   
   

8. When Mr. Cullen was advised by the Department that Ms. Reilly could not function as or be designated as "manager" of 24-Hour Security, he immediately removed her business cards from the office.

   
   

9. Ms. Reilly applied for a Class "MB" manager's license on November 9, 1994. Her application was denied by the Department by letter dated January 17, 1995, because she had "not demonstrated the lawfully gained experience or appropriate training" required for licensure. Ms. Reilly was issued a Class "D" Security Officer license on February 16, 1995.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. 120.57(1), Fla. Stat.

    
    

11. The Department has the authority to take disciplinary action against licensees regulated by chapter 493 based on the grounds stated in Section 493.6118(1), Florida Statutes. Section 493.6118(2), Florida Statutes, specifies that permissible discipline includes imposition of an administrative fine not to exceed $1,000, placement of the licensee under probation for a specified period of time, or suspension or revocation of the license.

    
    

12. The Department seeks to impose a penalty in this case for violation of section 493.6118(1)(n), which provides:

    
    

    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, . . ..

       (n) Employing or contracting with any unlicensed person or agency to conduct activities regulated under this chapter when such licensure status was known or could have been ascertained by reasonable inquiry.

       
       

13. The "activities regulated under this chapter" which are the subject of this proceeding are the activities undertaken by Michelle Reilly in her employment with 24-Hour Security.

    
    

14. Section 493.6301(3)(a), Florida Statutes, provides that "[a]ny individual who performs the services of a manager" for a licensed security

    agency such as 24-Hour Security must hold either a Class "MB" or a Class "M" Manager License. Section 493.6101(13) defines "manager" as "any licensee who directs the activities of licensees at any agency or branch office."

    
    

15. Because Mr. Cullen held a Class "M" Manager License, he was appropriately licensed pursuant to chapter 493 to serve as manager of 24-Hour Security and to direct the activities of the licensed security guards employed by the agency. See 493.6101(13) and .6201(3)(a), Fla. Stat. Even so, if Ms. Reilly was at any time responsible for directing or controlling the activities of the licensed security guards employed by 24-Hour Security and for operating the agency, she would also be required to hold the appropriate license specified in section 493.6201(3)(a). Id.

    
    

16. When seeking to impose disciplinary action on licensees, the Department has the burden of proving the allegations against a licensee, and the allegations must be proven by clear and convincing evidence. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987)

    
    

17. The Department has proven by clear and convincing evidence that Michelle Reilly, in carrying out her duties as assistant to Mr. Cullen, at times directed and controlled the activities of licensed security guards employed by 24-Hour Security and operated the agency. There is no dispute that Ms. Reilly's business cards identified her as the "Branch Manager" of 24-Hour Security and that Mr. Cullen was aware at all times that Ms. Reilly did not hold any license under chapter 493.

    
    

18. Rule 1C-3.113(1)(a)11., Florida Administrative Code, provides that a fine of $1,000 is to be imposed when "an unlicensed person [is allowed] to exert operational control over a licensed agency or individual(s)." Rule 1C-3.113(2), Florida Administrative Code, permits a reduction to 50 percent of the penalty specified in subsection (1) if consideration of mitigating factors indicates that such a reduced penalty is appropriate. The mitigating factors set out in rule 1C-3.113(2) include:

    
    

    1. The severity of the offense;

    2. The danger to the public;

    * * *

    1. The number of times the licensee has previously been disciplined by the department;

    2. The length of time the licensee . . . engaged in the prohibited activity;

    3. The actual physical, financial or emotional damage caused by the violation;

    * * *

    (j) Any effort of rehabilitation by the licensee.

    
    

19. In determining the appropriate penalty to impose in this case, it is noted that the Department presented no evidence of danger to the public, of any violation occurring prior to May 19, 1994, or after October 10, 1994, or of any physical, financial or emotional damage caused by the violation. The Department submitted no evidence that either 24-Hour Security or Mr. Cullen has previously been the subject of disciplinary action by the Department. It is also noted that Ms. Reilly submitted her application for a Class "MB" manager's license less than a month after Mr. Cullen was informed by the Department of the alleged violation and that Mr. Cullen immediately removed the business cards identifying Ms. Reilly as "Branch Manager."

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of State, Division of Licensing, enter a

Final Order finding 24-Hour Security, Incorporated, and Richard R. Cullen guilty of the violation alleged in the Administrative Complaint and imposing a fine of

$500 for this violation.

DONE AND ENTERED this 25th day of April 1995, in Tallahassee, Leon County, Florida.

PATRICIA HART MALONO

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 25th day of April 1995.

APPENDIX

The following are my specific rulings on petitioner_s Proposed Findings of Fact.

Paragraphs 1 through 9: Adopted in substance in Findings of Fact numbered 1 through 8.

The following are my specific rulings on respondent_s Proposed Findings of Fact.

Paragraph 1: Adopted in substance in Findings of Fact numbered 2 and 5.

Paragraph 2: The proposed finding of fact in the first

portion of the first sentence is rejected as not supported by the evidence. The proposed findings of fact set out in the second portion of the first sentence and in the second, third, fourth, and fifth sentences are rejected as merely summaries of testimony. The proposed finding of fact in the final sentence is rejected as not supported by the evidence.

Paragraph 3: The proposed finding of fact in the first sentence was adopted in substance in Finding of Fact numbered 6. The remaining proposed findings of fact are rejected as argument.

Paragraph 4: The proposed finding of fact in the first portion of the sentence is rejected as merely a summary of testimony; the proposed finding of fact in the second portion of the sentence is rejected as argument.

Paragraph 5: Rejected as unnecessary. Paragraph 6: Rejected as unnecessary.

Paragraph 7: The proposed finding of fact in the first portion of the sentence is rejected as unnecessary; the proposed finding of fact in the second portion of the sentence is rejected as not supported by the evidence.

Paragraph 8: The proposed findings of fact in the first two sentences are rejected as legal argument. The proposed finding of fact in the last sentence is adopted in substance in Finding of Fact numbered 5.

Paragraph 9: The proposed finding of fact in the first two sentences are rejected as unnecessary. The proposed findings of fact in the last two sentences are rejected as argument.

Paragraph 10: Rejected as argument. Paragraph 11: Rejected as argument. Paragraph 12: Rejected as argument.

COPIES FURNISHED:

Kristi Reid Bronson Assistant General Counsel Department of State Division of Licensing

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

Richard R. Cullen, President 24-Hour Security, Incorporated 1515 South Federal Highway Suite 109

Boca Raton, Florida 33432

Don Bell General Counsel

Department of State The Capitol

Tallahassee, Florida 32300-0250

The Honorable Sandra B. Mortham Secretary of State

The Capitol

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 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: 94-007065

Orders for Case No: 94-007065