STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, DIVISION ) OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 95-1850

)

GERALD BROWN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on June 29, 1995, at Miami, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kristi Reid Bronson, Esquire

Department of State, Division of Licensing The Capitol, Mail Station Number 4 Tallahassee, Florida 32399-0250

For Respondent: Mr. Gerald Brown, pro se

3551 Northwest 41 Street Lauderdale Lakes, Florida 33309

STATEMENT OF THE ISSUE

This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Petitioner on the basis of an alleged violation of Section 493.6118(1)(f), Florida Statutes, by sleeping while on duty.

PRELIMINARY STATEMENT

At the formal hearing on June 29, 1995, the Petitioner presented the testimony of three witnesses and offered four exhibits, all of which were received in evidence. The Respondent testified on his own behalf. He did not call any other witnesses, nor did he offer any exhibits.

At the conclusion of the hearing the parties were allowed 10 days from the filing of the transcript within which to file their proposed recommended orders. The transcript of the hearing was filed with the Hearing Officer on July 20, 1995, and by memorandum dated July 21, 1995, all parties were reminded that the deadline for submitting proposed recommended orders would be Monday, July 31, 1995. The Petitioner filed a timely proposed recommended order containing proposed findings of fact and conclusions of law. As of the date of this Recommended Order there has been no post-hearing submission by the Respondent.

The proposed findings of fact submitted by the Petitioner are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent currently holds a Class "D" Security Officer License, Number D92-08606, issued pursuant to Chapter 493, Florida Statutes, effective June 2, 1994.

   
   

2. During September and October of 1994, Motivated Security provided security services to Shurgard Storage, located at 1650 West Oakland Boulevard, Fort Lauderdale, Florida.

   
   

3. On September 30, 1994, the Respondent was employed as a security officer by Motivated Security. On that date the Respondent's assigned post with Motivated Security was at the Shurgard Storage premises described above. On that date, the Respondent was assigned to the 6:00 p.m. to 2:00 a.m. shift.

   
   

4. At approximately 11:15 p.m. on September 30, 1994, while the Respondent was on duty at the post described above, the Respondent was sound asleep in a golf cart for a period of at least one-half hour.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

6. The Department of State, Division of Licensing, has jurisdiction over licensed security officers and over unlicensed persons engaged in security officer activities pursuant to Section 493.6121, Florida Statutes.

   
   

7. 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 cases 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).

   
   

8. The Petitioner in this case presented clear and convincing evidence that Respondent, while on duty as a security officer, was asleep on his assigned post. Such conduct constitutes misconduct in the practice of regulated activities under Chapter 493, Florida Statutes, within the meaning of Section 493.6118(1)(f), Florida Statutes, as charged in the Administrative Complaint.

   
   

9. Section 493.6118(2)(e), Florida Statutes, provides that when the Department finds any violation of subsection (1) of Section 493.6118, it may suspend or revoke a license. Pursuant to Section 493.6118(2), Florida Statutes, the Department may also impose other specified penalties or a combination of penalties.

   
   

10. In its proposed recommended order the Petitioner argues that revocation is the appropriate penalty in this case. Revocation appears to be an unduly harsh penalty for a violation of the type proved here, especially in the absence of any evidence of any prior disciplinary history. A suspension for a period of six months appears to be a more appropriate penalty.

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case finding that the Respondent committed the violation charged in the Administrative Complaint and imposing a penalty consisting of a six-month suspension of the Respondent's license.

DONE AND ENTERED this 8th day of August 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 8th day of August 1995.

APPENDIX

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

Findings submitted by Petitioner.

Paragraphs 1 through 6: Accepted.

Paragraphs 7 through 11: Rejected as subordinate and unnecessary details. (All of these proposed details are essentially correct; it is simply not necessary to repeat them.)

Findings submitted by Respondent. (None.)

COPIES FURNISHED:

Kristi Reid Bronson, Esquire Department of State

Division of Licensing The Capitol, MS #4

Tallahassee, Florida 32399-0250

Gerald Brown

3551 N.W. 41st Street Lauderdale Lakes, Florida 33309

Honorable Sandra B. Mortham Secretary of State

The Capitol

Tallahassee, Florida 32399-0250

Don Bell, General Counsel Department 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 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: 95-001850

Orders for Case No: 95-001850