STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 95-4535

)

CARMELO FIGUEROA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on December 13, 1995, in Hollywood, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kristie Reid Bronson, Esquire

Department of State, Division of Licensing

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

For Respondent: Ruben Oliva, Esquire

2250 Southwest Third Avenue Third Floor

Miami, Florida 33129 STATEMENT OF THE ISSUES

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

   
   

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

PRELIMINARY STATEMENT

On August 7, 1995, the Department of State, Division of Licensing (hereinafter referred to as the "Department") issued a three-count Administrative Complaint against Respondent, the holder of a Class "D" security officer license, alleging the following:

Count I

On or about June 9, 1995, in Dade County, Florida, Respondent committed misconduct in the practice of regulated activities under Chapter 493, Florida Statutes, in

that Respondent verbally threatened his supervisor, David Bowling, while on duty as a security officer. Respondent is in violation of Section 493.6118(1)(f), Florida Statutes.

Count II

On or about May 26, 1995, in Dade County, Florida, Respondent committed negligence or misconduct in the practice of regulated

activities under Chapter 493, Florida Statutes, in that Respondent was asleep on duty.

Respondent is in violation of Section 493.6118(1)(f), Florida Statutes.

Count III

On or about April 22, 1995, in Dade County, Florida, Respondent committed negligence or misconduct in the practice of regulated activities under Chapter 493, Florida Statutes, in that Respondent was laying down in the back seat of his car while on

duty. Respondent is in violation of Section 493.6118(1)(f), Florida Statutes.

The Department indicated in the Administrative Complaint that it "intend[ed] to take disciplinary action [against Respondent] pursuant to Section 493.6118(2), Florida Statutes, including, but not limited to a reprimand, probation, an administrative fine, suspension of license or revocation of license."

Respondent denied the allegations of wrongdoing advanced in the Administrative Complaint and requested a formal hearing. On September 13, 1995, 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.

At the formal hearing in the instant case (which was held on December 13, 1995) a total of four witnesses testified: Catherine Robinson, a Department investigator; Jeffrey MacGregor, a former branch manager with McRoberts Protective Agency, Inc., Respondent's former employer; David Bowling, a road supervisor with McRoberts Protective Agency, Inc.; and Respondent. In addition to the testimony of these four witnesses, a total of six exhibits (Petitioner's Exhibits 1 through 6) were offered and received into evidence.

At the conclusion of the evidentiary portion of the hearing, the Hearing Officer, on the record, advised the parties of their right to file post-hearing submittals and he established a deadline (January 17, 1996) for the filing of such submittals with the Division.

On January 17, 1996, 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 fact the Department has proposed are specifically addressed in the Appendix to this Recommended Order. To date, Respondent has not filed any post-hearing submittal.

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 was at all times material to the instant case, the holder of a Class "D" security officer license (Number D93-17516) issued by the Department.

   
   

3. McRoberts Protective Agency, Inc. (hereinafter referred to as "McRoberts") is an agency that offers security services.

   
   

4. For approximately one year and eight months (and at all times material to the instant case), Respondent was employed as a security officer by McRoberts. He was assigned to service the Antillean Marine Shipping (hereinafter referred to as "Antillean") account. His supervisor was David Bowling.

   
   

5. Antillean demanded that McRoberts supply security guards who spoke both English and Spanish. Respondent met this requirement, although he was not fluent in English.

   
   

6. Respondent and all other McRoberts security officers assigned to the Antillean account were given written post orders which they were expected to obey. Respondent received his written post orders prior to April 22, 1995. These post orders included the following:

   
   

   Security officers are not permitted to sit

   in their personal vehicles during their shift.

   
   

   There will be NO SLEEPING on duty. Personnel found sleeping will be fired on the spot.

   
   

   Roving officer must make key rounds every hour. Please note: If the officer does not make rounds, he will not get paid for that time. (Important) The only thing we asked of you is to do the job you were hired for and the client

   will be satisfied and there will be no problems.

   
   

   NO SLEEPING ON POST !! Excuses will not be accepted.

   
   

   POST Number 1: Security officer will be responsible for front gate. All vehicles entering terminal after hours (unless management personnel) will be stopped to identify occupants.

   
   

   Visitors to vessels (unless visiting captain or officers) will be required to remain at front gate until crewman is located. Rover (Post Number 2) will locate crewman.

   
   

7. On April 22, 1995, while on duty at Antillean (at Post Number 1), Respondent was sitting in his personal vehicle in violation of the post orders.

   Bowling observed Respondent in the vehicle and issued him a Notice of Failing Performance (which is essentially a written reprimand) for having committed this violation. The notice contained the following "comments" made by Bowling:

   
   

   S/O was on property in his car (laying down in the back seat). He told me that he has been doing this for a year. 1/ I told him that Morales 2/ does not allow it. He agreed w/me that he knows better.

   
   

8. On May 26, 1995, Bowling again observed Respondent in Respondent's personal vehicle while Respondent was on duty at Antillean (at Post Number 1). This time Respondent had his eyes closed and was apparently asleep. Accordingly, Bowling issued Respondent another Notice of Failing Performance, which contained the following "comments" made by Bowling:

   
   

   I arrived at 0515. C. Figueroa was inside his car asleep at Post 1.

   
   

9. In accordance with McRoberts' written policy, Respondent was docked four hours pay for having been asleep while on duty.

   
   

10. Respondent was angry at Bowling for having issued him the Notice of Failing Performance that had resulted in this loss of pay.

    
    

11. On June 9, 1995, when Bowling approached Respondent and asked him to sign a log sheet, Respondent vented his anger by yelling at Bowling. Respondent accused Bowling of taking food out of the mouths of Respondent's children. Respondent then threatened Bowling by telling Bowling that he would see Bowling "on the streets" and that Bowling was not "going to live much longer." 3/

    While making these threats, Respondent came close to, but did not touch, Bowling. He had no intention of actually harming Bowling, but Bowling nonetheless reasonably feared for his safety.

    
    

12. Another supervisor was called to the scene and escorted Respondent away.

    
    

13. Bowling prepared and submitted a written report describing the incident.

    
    

14. Respondent's employment with McRoberts was subsequently terminated.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Department is statutorily empowered to take disciplinary action against licensed security officers, 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 every 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 security officer's license, the proof of guilt must be clear and convincing. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Nair v. Department of Business and Professional Regulation, 654 So.2d 205, 207 (Fla. 1st

    DCA 1995); 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 sought does not involve the loss of licensure, the security officer'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 Klein

    v. Department of Business and Professional Regulation, 625 So.2d 1237, 1238-39 (Fla. 2d DCA 1993); Celaya v. Department of Professional Regulation, Board of Medicine, 560 So.2d 383, 384 (Fla. 3d DCA 1990); Kinney v. Department of State,

    501 So.2d 129, 133 (Fla. 5th DCA 1987); Sternberg v. Department of Professional Regulation, 465 So.2d 1324, 1325 (Fla. 1st DCA 1985); 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 Administrative Complaint issued in the instant case alleges that Respondent committed three violations of subsection (1)(f) of Section 493.6118, Florida Statutes, by: "verbally threatening his supervisor, David Bowling, while on duty as a security officer" on or about June 9, 1995 (Count I); being "asleep on duty" on May 26, 1995 (Count II); and "laying down in the back seat of his car while on duty" on April 22, 1995 (Count III).

    
    

21. At all times material to the instant case, subsection (1)(f) of Section 493.6118, Florida Statutes, has provided as follows:

    
    

    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 negli- gence, incompetency, or misconduct, 4/

       in the practice of the activities regulated under this chapter.

22. The acts which the Administrative Complaint alleges that Respondent committed on June 9, 1995, May 26, 1995, and April 22, 1995, are acts proscribed by subsection (1)(f) of Section 493.6118, Florida Statutes.

    
    

23. The Department had the burden of proving that Respondent committed these acts by clear and convincing evidence, rather than by a preponderance of the evidence, inasmuch as the Administrative Complaint seeks, among other penalties, the "suspension of license or revocation of license."

    
    

24. The Department met its burden of proof. It clearly and convincingly established that Respondent committed the violations of subsection (1)(f) of Section 493.6118, Florida Statutes, alleged in the Administrative Complaint. Accordingly, there exists grounds to impose disciplinary action against Respondent.

    
    

25. In determining which of the penalties authorized by Section 493.6118(2), Florida Statutes, the Department should impose against a security officer who, like Respondent, has violated the provisions of subsection (1) of Section 493.6118, Florida Statutes, it is necessary to consult Rule 1C-3.113, Florida Administrative Code, which contains the disciplinary guidelines adopted by the Department. Cf. Williams v. Department of Transportation, 531 So.2d 994, 996 (Fla. 1st DCA 1988)(agency is required to comply with its disciplinary guidelines in taking disciplinary action against its employees).

    
    

26. Subsection (2) of Rule 1C-3.113, Florida Administrative Code, sets forth "the range of penalties" that will ordinarily be imposed for "violations committed by individuals," such as those committed by Respondent.

    
    

27. Subsection (5) of Rule 1C-3.113, Florida Administrative Code, provides that the Department may impose a penalty outside the normal range where there are "aggravating or mitigating circumstances." These "aggravating or mitigating circumstances" that may warrant such a deviation are as follows:

    
    

    1. The violation was committed maliciously.

    2. The danger to public safety or welfare.

    3. The number of previous violations for the same type of offense, whether or not disciplinary action was taken.

    4. The length of time the violator engaged in the prohibited activity.

    5. The length of time since the violation occurred.

    6. Previous disciplinary action against

       the violator in this or any other jurisdiction.

    7. The amount of damage to persons or property caused by the violation.

    8. The deterrent effect of the penalty imposed.

    9. Any efforts by the violator at rehabilitation.

    10. Attempts by the violator to correct violations or the failure to correct violations.

    11. The violator's prior knowledge of Chapter 493, F.S.

    12. Whether the violation resulted from negligence or an intentional act.

    13. Financial hardship.

    14. The cost of disciplinary proceedings.

    15. The number of other violations proven

        in the same proceeding.

    16. The violation occurred while on probation.

    17. Any other aggravating or mitigating circumstances.

    
    

28. Having carefully considered the facts of the instant case in light of the foregoing provisions of Section 493.6118(2), Florida Statutes, and Rule 1C- 3.113, Florida Administrative Code, the Hearing Officer concludes that, for having committed the violations alleged in the Administrative Complaint, Respondent's license should be suspended for a period of two months.

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 three violations of subsection (1)(f) of Section 493.6118, alleged in the Administrative Complaint, and (2) disciplining him for having committed these violations by suspending his license for a period of two months.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of January, 1996.

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 22nd day of January, 1996.

ENDNOTES

1/ This was the first time, however, that Respondent had been issued a Notice of Failing Performance for sitting in his car or for any other breach of his employer's work rules and performance standards.

2/ Wilson Morales is Antillean's director of security.

3/ In making this finding the Hearing Officer has considered, but rejected as unworthy of belief because it is less credible than the evidence adduced at hearing to the contrary, Respondent's testimony that he did not make these threats.

4/ "'Misconduct' justifying suspension or revocation of a professional license includes acts done in persistent disregard of the law, those which are malum in se, and those which offend generally accepted standards of conduct within the

profession, thereby jeopardizing the interests of the profession and the public it serves." Richardson v. Florida State Board of Dentistry, 326 So.2d 231, 233 (Fla. 1st DCA 1976).

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-4535

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

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

2. First and second sentences: Accepted and incorporated in substance; Third sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

3-6. Accepted and incorporated in substance.

7-8. Not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

COPIES FURNISHED:

Kristie Reid Bronson, Esquire Department of State, Division

of Licensing

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

Ruben Oliva, Esquire

2250 Southwest Third Avenue Third Floor

Miami, Florida 33129

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 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: 95-004535

Orders for Case No: 95-004535