STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, DIVISION ) OF LICENSING, )

)

Petitioner, )

)

vs. ) Case No. 97-1867

) ARMSTAR PROTECTIVE SERVICE and ) MANUEL VERNERETTE, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on November 14, 1997, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Kristi Reid Bronson, Esquire

Department of State Division of Licensing

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

For Respondents: Yolanda Fox, Esquire

Law Offices of C. Jean-Joseph Mercede Executive Park

1876 North University Drive, Suite 309C Plantation, Florida 33322

STATEMENT OF THE ISSUE

The issue presented is whether Respondents are guilty of the allegations contained in the Administrative Complaint filed against them, and, if so, what disciplinary action should be

taken, if any.

PRELIMINARY STATEMENT

On March 12, 1997, Petitioner issued an Administrative Complaint against Respondents, and Respondent Manuel Vernerette timely requested an evidentiary hearing regarding the allegations contained therein. This cause was transferred to the Division of Administrative Hearings to conduct that evidentiary proceeding.

In the Joint Prehearing Stipulation filed November 12, 1997, Petitioner dismissed Counts II, IV, VI, and VII of the Administrative Complaint filed in this cause.

Petitioner presented the testimony of Fred P. Speaker, III, and Jacquelyn Kendrick. Respondent Manuel Vernerette testified on behalf of Respondents and presented the testimony of Arthur Clark. Additionally, Petitioner's Exhibits numbered 1-4 and Respondents' Exhibits numbered 1 and 2 were admitted in evidence.

Petitioner and Respondents filed post hearing proposed recommended orders. Those documents have been considered in the entry of this Recommended Order.

FINDINGS OF FACT

1. Jacquelyn Kendrick is the owner of the Club Ecstasy, an adult entertainment club with dancers and strippers, located in Fort Lauderdale. In August 1996 the Club had a contract for security services with Warrior, a security agency. Respondent Manuel Vernerette, as an employee of Warrior, provided security services at the Club.

2. When Warrior's relationship with the Club ended, Kendrick approached Respondent Vernerette with regard to working for the Club. Although Vernerette was currently employed by Navarro during the day, he was able to work at the Club at night. Kendrick also asked him if he knew others who would work at the Club, and he referred several other Navarro employees to Kendrick, who interviewed them.

3. One of the Club's employees would check identification and frisk the Club's customers for weapons outside the front door. The customer could then enter the Club, purchase a "ticket", and then pass through a second door into the "actual" Club portion of the premises. The customer's ticket was collected at the second door.

4. Vernerette's duties were primarily to "collect the tickets" at the second door. He also helped stock the bar and collected money from customers who wanted to use the "VIP rooms". He also had some supervisory responsibilities over some of the Club's employees he had referred to Kendrick. Vernerette only worked inside the Club.

5. On November 23, 1996, two of Petitioner's investigators appeared at the Club to check identification and licenses of any security officers working at the Club. When they arrived, Vernerette was outside with several other Club employees he had referred to Kendrick. Someone other than Vernerette was stationed at the door searching customers. Vernerette appeared

   to be overseeing the operation. Although all of those employees wore dark clothing, they were not in uniforms.

6. At the request of the investigators, Vernerette produced his Class "D" security officer license and his Class "G" firearm license. At the time Vernerette, who also holds a concealed weapon or firearm license, was wearing a 9 mm. semi-automatic firearm in a gun belt which was covered by his jacket. He was also wearing a badge. He told the investigators how many security officers were working inside the Club and that they could come outside to have their licenses checked. Those persons were summoned. The investigators did not go into the Club that night.

7. In response to the investigator's questions, Vernerette told them that all the security officers were employees of the Club. He specifically used the term "in-house" security. He was cooperative with the investigators.

8. The investigators were told that "Jackie" was the person they needed to speak to regarding the employment status of the security officers but that she was not there.

9. On January 30, 1997, the investigators returned to the Club since they had been unsuccessful in their attempts to contact Jackie. She was there that night. Vernerette was not since he had stopped working at the Club by January 3.

10. Jackie denied that Vernerette and the other security officers were employees. She was unable to produce any

    documentation regarding her relationship with Vernerette or the other security officers. She had no contract, no payroll records, and no cancelled checks. She advised Petitioner's investigators that she paid Vernerette, sometimes by check and sometimes in cash, and that he then paid the others.

11. After the investigators interviewed her, Kendrick began using deputies from the Broward County Sheriff's Office to provide security services at the Club.

12. In February 1997 Vernerette received his Class "B" license, a security agency license. He visited Kendrick at the Club, gave her a proposal to provide security services at the Club, and gave her his new business card. The business card advertises Armstar Protective Services, lists Vernerette as the President and C.E.O., and includes his Class "B" license number.

13. Vernerette did not conduct the business of a security agency without being so licensed when he worked at the Club. He worked there as an employee of the business and not as an independent contractor. Further, Vernerette did not perform security officer duties at the Club between November 23, 1996, and January 30, 1997.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Sections 120.569 and 120.57(1), Florida Statutes.

15. The Administrative Complaint filed in this cause contains seven counts. Petitioner dismissed Counts II, IV, VI, and VII of the Administrative Complaint prior to the final hearing in this cause. Petitioner, therefore, had the burden of proving the allegations in Counts I, III, and V by clear and convincing evidence in this disciplinary proceeding. Petitioner has failed in its burden.

16. Count I charges Respondents with conducting the business of a security agency without a valid Class "B" security agency license between November 23, 1996, and January 30, 1997, in violation of Section 493.6118(1)(g), Florida Statutes. However, Section 493.6301(4), Florida Statutes (1995), provided that:

    A Class "D" licensee shall own or be an employee of a Class "B" security agency or branch office. This does not include those individuals who are exempt under s. 493.6102(4) but who possess a Class "D" license solely for the purpose of holding a Class "G" license or proprietary security officers who possess a Class "D" license.

    
    

    The underlined phrase was deleted by the 1996 Legislature.

    
    

17. Section 493.6102(4), Florida Statutes (1995), provided that Chapter 493 does not apply to:

    Any unarmed nonuniformed individual engaged in security services who is employed exclusively to work on the premises of his employer, or in connection with the business of his employer, when there exists an employer-employee relationship.

    
    

    The underlined word was deleted by the 1996 Legislature.

18. Section 493.6101(23), Florida Statutes (1995), provided that:

    'Proprietary security officer' means any individual who is employed by a business entity that does not provide, or advertise as providing, services regulated under this chapter, and who performs security work on the premises of, or in connection with, the business of that employer, in an unarmed capacity and wearing a uniform or displaying a badge, when there exists an employer-employee relationship.

    Subsection (23) was deleted by the 1996 Legislature.

    
    

19. Petitioner's exhibit numbered 4 is a copy of the Security Officer Handbook which is distributed by Petitioner. Section II of that Handbook contains the definition for the regulated activity of private security and refers the reader to Section IV for "in-house" security. Section IV is entitled "Proprietary Security Officers--Class 'PD' Registration" and provides as follows:

    1. Definition--Any individual who is employed by a business that does not provide, or advertise as providing, services regulated under this chapter, and who performs security work only on the premises of, or in connection with, the business of his employer, in an unarmed capacity and while wearing a uniform or displaying a badge, when there

       is an employer-employee relationship, does not have to be licensed by the Department of State. Such unarmed, 'in-house' security personnel must be registered with the Department of State in lieu of licensure. Proprietary Security Officers who already possess or have applied for a Class 'D' license do not have to register as a Class 'PD.'

       Section 493.6101(23), F.S.

       
       

    2. Proprietary security officers who are armed must be licensed as a Class 'D' Security Officer and possess a Class 'G' Statewide Firearm License.

    3. Proprietary security officers who have a Class 'D' license solely for the purpose of qualifying for a Class 'G' license do not have to be employed by a licensed agency.

       
       

       Section 493.6301(4), F.S [Emphasis supplied].

       
       

20. According to Petitioner's Security Officer Handbook, Respondent falls squarely within definition "b" and was appropriately licensed. However, according to the statutory scheme enacted by the 1996 Legislature, as opposed to the Handbook distributed by Petitioner, Vernerette can no longer claim the "in-house security personnel" protection from licensure if he was providing security services.

21. The credible evidence is that Vernerette was not conducting activities regulated by Chapter 493 on the dates in question. Collecting money and tickets and stocking a bar are not services for which security officers must be licensed. Although Vernerette produced his licenses on the request of Petitioner's investigators, he was not using his licenses to perform security officer services at the Club. Respondents are not guilty of the allegations in Count I of the Administrative Complaint.

22. Count III charges Vernerette with carrying a 9 mm. semi-automatic firearm on duty on November 23, 1996, without Petitioner's prior approval as required by Section 493.6115(6), Florida Statutes, thereby violating Section 493.6118(1)(t) which prohibits violating Chapter 493. Section 493.6115(6) sets forth

    the number and types of firearms permitted to be carried by licensed security personnel unless otherwise authorized by Petitioner.

23. The types of firearms to be carried by the different classes of licensees refers to restrictions while such persons are performing security officer duties, not while engaged in private activities as private citizens. Since Vernerette was not performing security officer duties at the Club on November 23, 1996, he could carry any legal firearm. Petitioner has failed to prove that Vernerette is guilty of the allegations in Count III.

24. Count V alleges that Vernerette carried a concealed firearm while on duty in uniformed status on November 23, 1996, in violation of Sections 493.6115(3) and 493.6118(1)(t), Florida Statutes. Since Vernerette was neither on duty as a security officer nor in uniform on November 23, 1996, Petitioner has failed to prove him guilty of the allegations contained in Count V of the Administrative Complaint.

RECOMMENDATION

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

RECOMMENDED that a final order be entered finding Respondents not guilty of the allegations contained in Counts I, III, and V and dismissing the Administrative Complaint filed against them.

DONE AND ENTERED this 19th day of February, 1998, in Tallahassee, Leon County, Florida.

COPIES FURNISHED:

Kristi Reid Bronson, Esquire Department of State Division of Licensing

The Capitol, Mail Station 4

LINDA M. RIGOT

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1998.

Tallahassee, Florida 32399-0250

Yolanda Fox, Esquire

Law Offices of C. Jean-Joseph Mercede Executive Park

1876 North University Drive, Suite 309C Plantation, Florida 33322

Don Bell, General Counsel Department of State

The Capitol, Plaza Level 2 Tallahassee, Florida 32399-0250

Honorable Sandra B. Mortham Secretary of State Department of State

The Capitol

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: 97-001867

Orders for Case No: 97-001867