STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 95-0555

) SOUTH FLORIDA PATROL AGENCY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held in this case before Errol H. Powell, a duly designated Hearing Officer of the Division of Administrative Hearings, on May 16, 1995, by video teleconferencing in Miami, Florida.

APPEARANCES

For Petitioner: Kristi Reid Bronson

Assistant General Counsel Department of State Division of Licensing

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

For Respondent: No Appearance

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent committed the violations set forth in the amended administrative complaint, and if so, what action should be taken.

PRELIMINARY STATEMENT

By administrative complaint dated August 8, 1994, the Department of State, Division of Licensing (Petitioner) charged South Florida Patrol Agency, Inc., Johnny D. Turner, President, (Respondent) with violating Chapter 493, Florida Statutes, consisting of five (5) counts: Count I--violating Section 493.6118(1)(n), Florida Statutes, by employing an individual to perform security services without a valid Class "D" Security Officer license; Count II--violating Section 493.6118(1)(s), Florida Statutes, by failing to provide an agency identification card to licensed employees as required by Section 493.6111(5), Florida Statutes; Count III--violating Section 493.6118(1)(s), Florida Statutes, by permitting an employee to perform his duties in a uniform which failed to bear at least one patch or emblem, visible at all times, clearly identifying the employing licensed agency as required by Section 493.6305(1), Florida Statutes; Count IV--violating Section 493.6305(1), Florida Statutes, by permitting certain

individuals to perform the duties of a security officer while not in a uniform; and Count V--violating Section 493.6118(1)(o), Florida Statutes, by failing or refusing to cooperate with Petitioner's representative, who was engaged in an official investigation, through the failure to appear at a scheduled appointment. By an Elections of Rights form dated January 19, 1995, with an accompanying statement, Respondent denied the charges in the administrative complaint and requested a formal hearing.

On February 8, 1995, the matter was referred to the Division of Administrative Hearings. A formal hearing was scheduled by written notice.

By Order dated April 17, 1995, Petitioner was granted leave to amend the administrative complaint. Among other things, the amended administrative complaint omitted the allegations of Count I of the administrative complaint, and changed the statutory sections alleged to be violated to reflect statutory citations which went into effect in October 1994. In the amended administrative complaint, Petitioner charged Respondent with four (4) counts of violating Chapter 493, Florida Statutes: Count I--violating Section 493.6118(1)(t), formerly Section 493.6118(1)(s), by failing to require employees to carry an agency identification card while performing regulated activities as required by Section 493.6111(5); Count II--violating Section 493.6118(1)(t), formerly Section 493.6118(1)(s), by permitting an employee to perform his duties in a uniform not bearing at least one patch or emblem, visible at all times, clearly identifying the employing licensed agency as required by Section 493.6305(1); Count III--violating Section 493.6305(1) by permitting an employee to perform the duties of a security officer while not in uniform; and Count IV--violating Section 493.6118(1)(o) by failing or refusing to cooperate with Petitioner's representative, who was engaged in an official investigation, through the failure to appear at a scheduled appointment. Petitioner is not pursuing Count I of the amended administrative complaint.

At the hearing, Petitioner presented the testimony of three witnesses and entered one exhibit. There was no appearance by or on behalf of Respondent.

The transcript of the formal hearing was ordered. Petitioner submitted proposed findings of fact which have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. At all times material hereto, South Florida Patrol Agency, Inc., John

   D. Turner, President (Respondent), held, and holds, a Class "B" Security Agency license, issued pursuant to Chapter 493, Florida Statutes, having been issued license number B91-00002.

   
   

2. On May 20 and 25, 1994, an investigator (lead investigator) for the Department of State, Division of Licensing (Petitioner) performed a proactive inspection 1/ of the U.S.A. Flea Market (Flea Market) in Miami, Dade County, Florida. On the inspection conducted on May 25, 1994, Petitioner's investigator was accompanied by another of Petitioner's investigators.

   
   

3. Respondent was providing security for the Flea Market on the inspection dates.

   
   

4. On May 25, 1994, Petitioner's investigators observed that the security officer on duty at the main gate post, Jerred Smith, was not wearing a uniform. Also, Petitioner's investigators observed that the security officer on duty at

   the back door post, Juan Fajardo, did not have a patch or emblem on his uniform. The security officers were employed by Respondent. Respondent's President, Johnny D. Turner, was called to the main gate post by the security officer on duty and accompanied Petitioner's investigators to the other posts manned by Respondent's security officers, including the back door post.

   
   

5. After the inspection was completed, Petitioner's lead investigator discussed the violations found with Respondent's President and requested that Respondent's President provide certain records. Respondent's President requested a meeting with Petitioner's lead investigator and the lead investigator's supervisor. A meeting was scheduled at Petitioner's Miami regional office for June 2, 1994, at which time Respondent's President was requested to bring with him records for the last six months consisting of payroll records and work schedules for security officers.

   
   

6. However, on June 2, 1994, Respondent's President called the lead investigator's supervisor and requested that the meeting be rescheduled. The meeting was rescheduled for June 14, 1994. Respondent's President failed to appear at the rescheduled meeting.

   
   

7. At no time subsequent thereto has the lead investigator or his supervisor been contacted by Respondent's President regarding his failure to attend the meeting scheduled for June 14, 1994, or to reschedule another meeting. Furthermore, at no time has Respondent's President provided the requested records.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto, pursuant to Subsection 120.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.

   
   

9. License revocation proceedings are penal in nature. The burden of proof is on the Petitioner to establish the truthfulness of the allegations of the amended administrative complaint by clear and convincing evidence. Ferris

   v. Turlington, 510 So.2d 292 (Fla. 1987); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

   
   

10. Section 493.6118, Florida Statutes, provides 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 [Chapter 493] . . .

       * * *

       (o) Failure or refusal to cooperate with or refusal of access to an authorized repre- sentative of the department engaged in an

       official investigation pursuant to this chapter.

       * * *

       (t) Violating any provision of this chapter.

       
       

11. Section 493.6305, Florida Statutes, provides in pertinent part:

    1. Class "D" licensees shall perform duties regulated under this chapter in a uniform which bears at least one patch or emblem visable at

       all times clearly identifying the employing agency.

       
       

12. Section 493.6301, Florida Statutes, provides in pertinent part:

    
    

    1. Any person, firm, company, partnership, or corporation which engages in business as a

       security agency shall have a Class "B" license . . .

       * * *

       1. A Class "D" licensee shall own or be an employee of a Class "B" security agency . . .

       2. Any individual who performs the services

       of a security officer shall have a Class "D" license.

       
       

13. Section 493.6303, Florida Statutes, provides additional license requirements with which a security agency must comply and provides in pertinent part:

    
    

    1. Each agency . . . shall designate a minimum of one appropriately licensed individual to act as manager, directing the activities of the Class "D" employees.

       
       

14. It is clear that the Legislature intended for the agency holding a Class "B" license to direct and be responsible for the activities of its employees who hold a Class "D" license. As a result, Respondent is responsible for its on-duty employees who hold a Class "D" license.

    
    

15. Petitioner has demonstrated that Respondent violated Section 493.6118(1)(t), formerly 493.6118(1)(s), through a violation of Section 493.6305(1). Petitioner has shown that a security officer in Respondent's employ, while performing his duties, failed to have at least one patch or emblem on his uniform and that another security officer in Respondent's employ, while performing his duties, failed to wear a uniform. All in violation of Section 493.6305(1). Respondent permitted such conduct by its employees.

    
    

16. Petitioner has demonstrated that Respondent violated Section 493.6118(1)(0) through its President when he failed to attend a scheduled appointment regarding an investigation by Petitioner and failed to provide requested records to Petitioner's investigators.

    
    

17. Regarding disciplinary action for the violations committed, Subsection 493.6118(2), Florida Statutes, provides that a licensee may be reprimanded, or placed on probation, that the license may be suspended or revoked, or that an administrative fine of not more than $1,000 per count or separate offense may be imposed; or a combination thereof.

    
    

18. Rule 1C-3.113(1)(q), Florida Administrative Code, provides that an agency which allows a security officer employee to perform regulated activities without a proper uniform in violation of Subsection 493.6305(1) is subject to a range of penalties from an administrative fine of $250-$500 to probation.

    
    

19. Rule 1C-3.113(2)(q), Florida Administrative Code, provides that an individual who fails or refuses to cooperate with a division investigator in violation of Subsection 493.6118(1)(o) is subject to a range of penalties from

    an administrative fine of $300 - $700 to three month's suspension or denial of license.

    
    

20. Petitioner suggests that for a violation of Subsection 493.6305(1) that an administrative fine of $350 be imposed for each count (Counts II and

1. and that for a violation of Subsection 493.6118(1)(o) an administrative fine of $500 be imposed (Count IV).

   
   

   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:

   
   

   1. Imposing an administrative fine of $350 for Count II;

      
      

   2. Imposing an administrative fine of $350 for Count III; and

      
      

   3. Imposing an administrative fine of $500 for Count IV.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 10th day of July 1995.

ERROL H. POWELL

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 10th day of July 1995.

ENDNOTE

1/ A proactive inspection by Petitioner's investigators is an inspection performed of the security guards at their posts.

APPENDIX

Petitioner's proposed findings of fact are substantially accepted although not verbatim.

COPIES FURNISHED:

Kristi Reid Bronson, Esquire Department of State

Division of Licensing The Capitol, M.S. #4

Tallahassee, Florida 3239d9-0250

Johnny D. Turner, President

South Florida Patrol Agency, Inc. 3015 Northwest 79th Street

Miami, Florida 33147

Honorable Sandra B. Mortham Secretary of State

The Capitol

Tallahassee, Florida 32399-0250

Don Bell 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 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: 95-000555

Orders for Case No: 95-000555