STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PHILLIP C. BELIDOR, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5098S

)

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on January 9, 1996, in Fort Lauderdale, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: No Appearance

For Respondent: Kristi Reid Bronson, Esquire

Department of State, Division of Licensing The Capitol, Mail Station

Tallahassee, Florida 32399-0250 STATEMENT OF THE ISSUE

Whether Petitioner's application for renewal of his Class "D" security officer license should be denied on the grounds set forth in the agency's August 16, 1995, denial letter (as amended at the final hearing)?

PRELIMINARY STATEMENT

By letter dated August 16, 1995, the Department of State, Division of Licensing (hereinafter referred to as the "Department") advised Petitioner of its intention to deny his application for renewal of his Class "D" security officer license on the following grounds:

Failure to qualify under Section 493.6118(1)(f), Florida Statutes, in that on or about 25 December 1993, in Broward County, Florida, applicant committed fraud, deceit, negligence or miscon- duct in duties regulated under Chapter 493

Florida Statutes, by submitting a false report to his employer, Weiser Security.

Failure to qualify under Section 493.6118(1)(f), Florida Statutes, in that on or about 26 December 1993, in Broward County, Florida, applicant committed negligence or misconduct in duties

regulated under Chapter 493 Florida Statutes, in that he failed to punch the security keys while on duty as a security officer.

Failure to qualify under Section 493.6118(1)(f), Florida Statutes, in that on or about 25 December 1993, in Broward County, Florida, applicant committed negligence or misconduct in duties regulated under Chapter 493 Florida Statutes,

by abandoning his post while on duty as a security officer.

Failure to qualify under Section 493.6118(1)(f), Florida Statutes, in that on or about 11 December 1993, in Broward County, Florida, applicant committed negligence or misconduct in duties regulated under Chapter 493 Florida Statutes,

by sleeping while on duty as a security officer.

Failure to qualify under Section 493.6118(1)(f), Florida Statutes, in that on or about 9 December 1993, in Broward County, Florida, applicant committed negligence or misconduct in duties regulated under Chapter 493 Florida Statutes,

by abandoning his post while on duty as a security officer.

Failure to qualify under Section 493.6118(1)(f), Florida Statutes, in that on or about 12 November 1993, in Broward County, Florida, applicant committed negligence or misconduct in duties regulated under Chapter 493 Florida Statutes,

by abandoning his post while on duty as a security officer. 1/

Petitioner, by letter dated October 3, 1995, denied the allegations of wrongdoing made in the Department's August 16, 1995, letter and requested a formal hearing on the Department's proposed denial of his renewal application. On October 19, 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 Petitioner had requested.

During the evidentiary portion of the final hearing in the instant case (which was held on January 9, 1996), the Department presented the testimony of three witnesses: Leonard Franklin, a former road supervisor with Weiser Security Services, Inc. (hereinafter referred to as "Weiser Security"); Audrey Hawkins, a night supervisor with Weiser Security; and Deborah Kalert, a branch manager with Weiser Security. In addition to the testimony of these three witnesses, the Department offered, and the Hearing Officer received, five exhibits (Respondent's Exhibits 1 through 5) into evidence. Petitioner was given notice of the final hearing in accordance with the provisions of Section 120.57(1)(b)2, Florida Statutes, but did not appear, either in person or though counsel or other qualified representative, and therefore presented no evidence.

At the conclusion of the evidentiary portion of the hearing, the Hearing Officer, on the record, announced that post-hearing submittals had to be filed no later than ten days following the Hearing Officer's receipt of the transcript of the hearing.

The Hearing Officer received the hearing transcript on January 19, 1996.

On January 29, 1996, the Department filed 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, Petitioner 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. At all times material to the instant case, Petitioner was the holder of a Class "D" security officer license (Number D93-12573) issued by the Department.

   
   

3. Weiser Security is an agency that offers security services.

   
   

4. In December of 1993, Petitioner was employed as a security officer by Weiser Security. He was assigned to service the Shoppes of Oakland Forest (hereinafter referred to as the "Shoppes") account. His supervisor was Leonard Franklin.

   
   

5. On December 9, 1993, at approximately 1:00 a.m. or 2:00 a.m., Franklin visited the Shoppes. He wanted to speak with Petitioner. Petitioner was supposed to be on duty at the Shoppes, but he was not at his post and Franklin was unable to find him. Franklin noted on a field supervisor's inspection report Petitioner's unauthorized absence from his post.

   
   

6. On December 11, 1993, during another visit to the Shoppes, Franklin discovered Petitioner asleep in his car while on duty. Franklin shined his flashlight in Petitioner's eyes for approximately 15 minutes, but Petitioner did not awaken. Franklin finally roused Petitioner by tapping on Petitioner's car. Franklin made note of the incident in a field supervisor's inspection report.

   
   

7. Petitioner was scheduled to work the 11:00 p.m. to 7:00 a.m. shift at the Shoppes on December 24-25, 1993.

   
   

8. Audrey Hawkins, another Weiser Security security officer, 2/ was originally scheduled not to work that shift at the Shoppes. She was called by a supervisor, however, some time after the beginning of the shift and requested to complete the shift because Petitioner had not reported for duty.

   
   

9. Hawkins arrived at the Shoppes at around midnight. When she arrived, she noticed a security report that Petitioner had already filled out for the entire shift (11:00 p.m. through 7:00 a.m.). 3/ The report was on a desk where Weiser Security security officers routinely left their completed security reports for the client to pick up.

   
   

10. Petitioner did not report for duty at any time during the 11:00 p.m. to 7:00 a.m. shift and therefore Hawkins remained at the Shoppes for the remainder of the shift.

11. Weiser Security security officers assigned to the Shoppes account in December of 1993 were required to make "key rounds" (which involved "punching" special "security keys" at four different locations on the property) a minimum of once an hour. Petitioner failed to make any such rounds during his shift on December 26, 1993 (from 3:00 p.m. to 11:00 p.m.).

    
    

12. On July 13, 1995, Petitioner filed with the Department an application to renew his Class "D" security officer license.

    
    

13. By letter dated August 16, 1995, the Department notified Petitioner of its intention to deny his application.

    
    

    CONCLUSIONS OF LAW

    
    

14. Petitioner is seeking the renewal of his Class "D" security officer license.

    
    

15. The Department is the state agency responsible for licensing security officers in the State of Florida. Chapter 493, Fla. Stat.

    
    

16. The Department may "[d]eny an initial or renewal application for license" based upon any of the grounds enumerated in Section 493.6118(1), Florida Statutes. Section 493.6118(2), Fla. Stat.

    
    

17. Subsection (1)(f) of Section 493.6118, Florida Statutes, authorizes the Department to deny licensure based upon "[p]roof that the applicant . . . is guilty of fraud or deceit, or of negligence, incompetency, or misconduct, 4/

    in the practice of the activities regulated under this chapter."

    
    

18. In those cases (such as the instant cases) where the applicant disputes the Department's preliminary finding that such wrongdoing has occurred and the applicant requests a formal hearing on the matter, the Department may take final action to deny the applicant's application for licensure pursuant subsection (1)(f) of Section 493.6118, Florida Statutes, only if the applicant's guilt is established by clear and convincing evidence at the requested formal hearing. See Osborne Stern and Company v. Department of Banking and Finance, Division of Securities and Investor Protection, 647 So.2d 245, 249 (Fla. 1st DCA 1994). "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).

    
    

19. In the instant case, the Department has preliminarily determined to deny Petitioner's application to renew his Class "D" security officer license. The Department has alleged (in its August 16, 1995, letter to Petitioner, as amended at the final hearing) that the denial of Petitioner's application is warranted pursuant subsection (1)(f) of Section 493.6118, Florida Statutes, inasmuch as Petitioner, in December of 1993, did the following:

    
    

    on or about 9 December 1993, in Broward County, Florida, [Petitioner] committed negligence or misconduct in duties regulated under Chapter 493 Florida Statutes, by abandoning his post while on duty as a security officer;

    on or about 11 December 1993, in Broward County, Florida, [Petitioner] committed

    negligence or misconduct in duties regulated under Chapter 493 Florida Statutes, by sleeping while on duty as a security officer;

    on or about 25 December 1993, in Broward County, Florida, [Petitioner] committed negligence or misconduct in duties regulated under Chapter 493 Florida Statutes, by abandoning his post while on duty as a security officer;

    on or about 25 December 1993, in Broward County, Florida, [Petitioner] committed fraud, deceit, negligence or misconduct in duties regulated under Chapter 493 Florida Statutes, by submitting a false report to his employer,

    Weiser Security; and

    on or about 26 December 1993, in Broward County, Florida, [Petitioner] committed negligence or misconduct in duties regulated under Chapter 493 Florida Statutes, in that he failed to punch the security keys while on duty as a security officer.

    
    

20. These acts that Petitioner is alleged to have committed on December 9, 1993, (abandoning his post while on duty), December 11, 1993, (sleeping while on duty), December 25, 1993, (abandoning his post while on duty and submitting a false report), and December 26, 1993, (failing to punch the security keys while on duty), are acts proscribed by subsection (1)(f) of Section 493.6118, Florida Statutes.

    
    

21. At the formal hearing that was held at the request of Petitioner (who had "den[ied] all of the allegations . . . brought against [him]), the Department proved by clear and convincing evidence that Petitioner committed these proscribed acts.

    
    

22. These acts, considered collectively, are sufficiently serious to warrant the denial of Petitioner's application for renewal of licensure.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Department enter a final order denying Petitioner's application to renew his Class "D" security officer license.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 1st day of February, 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 1st day of February, 1996.

ENDNOTES

1/ At the final hearing, the Department announced that it would "not be proceeding on" this final ground set forth in its August 16, 1995, letter.

2/ Hawkins was subsequently promoted to a night supervisor position.

3/ Hawkins was able to tell that Petitioner had filled out the report because she recognized his handwriting on the report.

4/ "'Misconduct' justifying suspension or revocation [or denial] 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. 95-5098S

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

1-6. Accepted as true and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

1. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

2. Accepted and incorporated in substance.

COPIES FURNISHED:

Mr. Phillip C. Belidor Post Office Box 70485

Oakland Park, Florida 33307

Kristi Reid Bronson, Esquire Department of State

Division of Licensing

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

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: 95-005098

Orders for Case No: 95-005098