STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, DIVISION ) OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 96-4342

)

SAMUEL LEON FREDERICK, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on January 29, 1997, in Miami, Florida, before Claude B. Arrington, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Douglas D. Sunshine, Esquire

Department of State Division of Licensing

The Capitol, Mail Station No. 4 Tallahassee, Florida 32399-0250

For Respondent: Samuel Leon Frederick, pro se

1420 Northwest 90 Street

Miami, Florida 33147

STATEMENT OF THE ISSUES

Whether the Respondent, a licensed Class “D” Security Officer, committed misconduct by abandoning his post as alleged in the administrative complaint and, if so, the penalties that should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated September 3, 1996, the Petitioner alleged certain facts and asserted, based on those facts, that Respondent, a licensed Class "D" Security Officer, committed misconduct by abandoning his post.

Respondent timely filed a request for formal administrative proceedings, the matter was referred to Division of Administrative Hearings, and this proceeding followed.

At the formal hearing, Petitioner presented the testimony of Kevin Buffington, David Fambrini, and Richard Jennings. Mr.

Buffington and Mr. Fambrini are employed by Elite Guard and Patrol Service, Inc. Mr. Jennings is an investigator employed by Petitioner. Petitioner offered two exhibits, both of which were admitted into evidence. Respondent testified on his own behalf, but offered no other testimony and no exhibit.

No transcript of the proceeding has been filed. The parties were given ten days following the conclusion of the formal hearing to file their post-hearing submittals. Petitioner filed a proposed recommended order, but the Respondent did not.

FINDINGS OF FACT

1. At all times pertinent to this proceeding, Respondent was the holder of Class “D” Security Officer License Number D94- 02827.

2. Kevin Buffington was, at all times pertinent to this proceeding, a vice-president of Elite Guard and Patrol Service, Inc. (Elite).

3. David Fambrini was, at all times pertinent to this proceeding, a supervisor with Elite.

4. On April 3, 1996, Respondent was employed by Elite as a security guard. Respondent was assigned to a post at the Fontainebleau Hotel on Miami Beach. He was scheduled to be on his post for a nine hour shift beginning at noon and ending at 9:00 p.m.

5. Because it was Respondent’s first day on the job, Mr. Fambrini went to the Fontainbleau Hotel with Respondent, showed him around the facilities, explained to him his duties, and introduced him to the management of the hotel. After spending approximately an hour and a half with Respondent, Mr. Fambrini left the hotel to attend to other matters.

6. Respondent was responsible for providing security for several hundred hotel guests who were part of a large tour group.

7. Between 3:00 p.m. and 4:00 p.m. on April 3, 1996, Respondent abandoned his post at the Fontainbleau Hotel. When Mr. Fambrini returned to the hotel to check on the Respondent, he learned that Respondent had left his post. Elite had to secure the services of another guard to complete Respondent’s shift.

8. Respondent testified that he called Elite and told Mr. Buffington that he was leaving his post because of a family

   emergency. This testimony lacks credibility and is rejected.

   
   

   Mr. Buffington testified, credibly, that he was available in his office the entire afternoon of April 3, 1996, and that Respondent did not call him or anyone else with Elite. In addition, Respondent told Petitioner’s investigator that he abandoned his post at approximately 3:00 p.m. and quit without notice because April 3, 1996, was his first day on the job and he was not happy with his assignment.

9. The conflicts in the testimony are resolved by finding that Respondent abandoned his post on April 3, 1996, without first advising his employer or the management of the hotel.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57, Florida Statutes.

11. The provisions of Section 493.6118(1)(f), Florida Statutes pertain to this proceeding and provide, in pertinent part, 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.

       * * *

       (f) Proof that the applicant or licensee is guilty of misconduct in the practice of the activities regulated under this chapter.

       * * *

    2. When the department finds any violation of subsection (1), it may do one or more of the following:

       1. Deny an application for the issuance

          or renewal of a license.

       2. Issue a reprimand.

       3. Impose an administrative fine not to exceed $1,000 for every count or separate offense.

       4. Place the licensee on probation for a period of time and subject to such conditions as the department my specify.

       5. Suspend or revoke a license.

Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So.2d 112 (Fla. 1st DCA 1989).

1. The Petitioner has met its burden of proof in this proceeding. The evidence is clear and convincing that Respondent abandoned his post without notice on April 3, 1996.

2. A security officer who abandons his post without notice is guilty of misconduct within the meaning of Section 493.6118(1)(f), Florida Statutes.

3. Petitioner has not adopted penalty guidelines pertinent to this violation. The recommendation that follows is based, in part, on the fact that Respondent was responsible for providing security for several hundred hotel guests and that he simply walked off the job.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent’s Class “D” Security License be revoked.

DONE AND ENTERED this 21st day of March, 1997, in Tallahassee, Florida.

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 1997.

COPIES FURNISHED:

Douglas D. Sunshine, Esquire Department of State

Division of Licensing

The Capitol, Mail Station No. 4 Tallahassee, Florida 32399-0250

Mr. Samuel Leon Frederick 1420 Northwest 90 Street

Miami, Florida 33147

Honorable Sandra Mortham Secretary of State

The Capitol

Tallahassee, Florida 32399-0250

Don Bell, General Counsel Department of State

The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0250

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-004342

Orders for Case No: 96-004342