STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 96-5359

)

JOHN J. COONEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on February 12, 1997, in Fort Lauderdale, Florida before Patricia Hart Malono, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kristi Reid Bronson, Esquire

Department of State Division of Licensing

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

For Respondent: None

STATEMENT OF THE ISSUE

Whether the respondent committed the acts alleged in the Second Amended Administrative Complaint and, if so, the penalty which should be imposed.

PRELIMINARY STATEMENT

In an Administrative Complaint dated July 11, 1996, the Department of State, Division of Licensing (“Department”) charged John J. Cooney with violating section 493.6118(1)(f), Florida Statutes, by committing misconduct in the practice of activities regulated in chapter 493, Florida Statutes. This charge was based on the Department’s allegation that, on January 1, 1996, Mr. Cooney was drinking alcohol while on duty. Mr. Cooney timely requested a formal administrative hearing on the charge, and the request was forwarded to the Division of Administrative Hearings for assignment of an Administrative Law Judge. By notice dated December 18, 1996, this case was scheduled for hearing on February 12, 1997.

On January 15, 1997, the Department filed a Motion for Leave to File an Amended Administrative Complaint. This motion was granted by order dated January 28, 1997. In the Amended Administrative Complaint, the Department added a second count, asserting that Mr. Cooney had violated section 493.6118(1)(f) by committing misconduct in the practice of activities regulated in chapter 493, Florida Statutes, based on the Department’s allegation that, on January 1, 1996, Mr. Cooney verbally threatened his supervisor.

On January 29, 1997, the Department filed an Amended Motion for Leave to File Amended Administrative Complaint, not having received the order entered January 28, 1997. No ruling was made

on this motion prior to the hearing. At the hearing, the amended motion was granted and the requested amendment allowed because it consisted only of a revision to the wording of the allegation in Count I from “drinking alcohol while on duty” to “under the influence of alcohol while on duty.” The hearing went forward on the Department’s Second Amended Administrative Complaint.

The Department presented the testimony of Rodger Seide and Melvin Lee, and Petitioner’s exhibits 1 and 2 were offered and received into evidence. Neither Mr. Cooney nor his representative appeared at the hearing. At the close of its case, the Department voluntarily dismissed Count I of the Second Amended Administrative Complaint.

No transcript was filed with the Division, and the Department timely submitted proposed findings of fact and conclusions of law, which have been duly considered.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:

1. The Department is the state agency charged with licensing and regulating security officers. Section 493.6121, Fla. Stat.

2. Currently and at all times material to this proceeding, Mr. Cooney held a Class “D” security officer's license.

3. On January 1, 1996, Mr. Cooney was employed as a security officer with Navarro Security Services and was assigned to the “L-19” school board post. His immediate supervisor was Rodger Seide.

4. Mr. Seide was a road supervisor for Navarro Security Services, and his duties included checking on and supplying equipment to security officers at their posts.

5. On the night of January 1, 1996, Mr. Seide was told by the dispatcher at Navarro Security Services that Mr. Cooney needed a new battery for his radio. Mr. Seide took the battery to the L-91 post where Mr. Cooney was on duty.

6. Mr. Seide saw Mr. Cooney approaching the car and “knew something was wrong.” Mr. Seide did not get out of his truck but rolled the window down a few inches so he could hand Mr. Cooney the battery. Mr. Cooney stuck his head in the window and said he would yank off Mr. Seide's badge and slit his throat if Mr. Seide did not give him the battery.

7. Mr. Seide immediately left the post and called his supervisor, Melvin Lee. Mr. Lee told Mr. Seide to go back and talk with Mr. Cooney, but Mr. Seide refused, telling Mr. Lee that he felt threatened by Mr. Cooney and that the L-91 post was dark and isolated.

8. Mr. Lee met Mr. Seide at the side of the school identified as post “L-91,” and they drove to the post in Mr. Seide’s truck. When Mr. Cooney saw Mr. Seide, he charged the

   truck in an aggressive manner. As soon as he saw Mr. Lee, however, he stopped and acted normally.

9. Mr. Cooney was terminated by Navarro Security Services on January 10, 1996.

10. The proof is sufficient to establish that, on January 1, 1996, while Mr. Cooney was on duty as a security officer, he verbally threatened his supervisor with physical harm.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties pursuant to section 120.57(1), Florida Statutes (Supp. 1996).

12. Because the Department has sought penalties which may include suspension or revocation of Mr. Cooney’s license or the imposition of an administrative fine, it has the burden of proving by clear and convincing evidence that he committed the violations alleged in the Second Amended Administrative Complaint. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932, (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

13. In Count II of the Second Amended Administrative Complaint, the Department has charged Mr. Cooney with misconduct in the practice of activities regulated by chapter 493, Florida

    Statutes, in violation of section 493.6118, which 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, 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 negligence, incompetency, or misconduct in the practice of the activities regulated under this chapter.

       
       

14. "Misconduct" in the context of license disciplinary proceedings includes acts "which offend generally accepted standards of conduct within the profession, thereby jeopardizing the profession and the public it serves." Richardson v. Florida State Board of Dentistry, 326 So. 2d 231, 233 (Fla. 1st DCA 1976).

15. The Department has proven by clear and convincing evidence that, while at his post on January 1, 1996, Mr. Cooney approached his supervisor in an aggressive manner and threatened him with violence. This behavior constitutes misconduct and is a violation of section 493.6118(1)(f). See Department of State v. Carmelo Fiqueroa, DOAH Case No. 95-4535 (1996).

16. The Department has the authority to impose penalties for violations of section 493.6118(1) ranging from license revocation to probation and reprimand. Section 493.6118(2), Fla. Stat.

17. The Department recommends that Mr. Cooney’s license be suspended for a period of one month and that he be placed on non- reporting probation for a period of six months following the suspension. No mitigating or aggravating circumstances have been shown to exist. The penalty recommended by the Department is appropriate given the facts of this case.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of State enter a final order dismissing Count I of the Second Amended Administrative Complaint and finding John J. Cooney guilty of violating section 493.6118(1)(f), Florida Statutes, suspending his Class “D”

Tallahassee, Leon County, Florida.

PATRICIA HART MALONO

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 18th day of March, 1997.

COPIES FURNISHED:

Kristi Reid Bronson, Esquire Department of State

Division of Licensing

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

John J. Cooney

4771 Northwest 10th Court Plantation, Florida 33313

Hon. 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 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: 96-005359

Orders for Case No: 96-005359