STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) Case No. 97-2084

) PROTECTION UNLIMITED CRIME ) PREVENTION ASSOCIATES, ) INCORPORATED, CHRISTOPHER W. ) HARGRAVES, PRESIDENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was held in this case on February 5, 1998, in Largo, Florida, before Carolyn S. Holifield, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kristie Reid Bronson, Esquire

Michele L. Guy, Esquire Department of State Division of Licensing

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

For Respondent: None

STATEMENT OF THE ISSUE

Whether Respondent, Christopher Hargraves, committed the offenses alleged in the Amended Administrative Complaint and, if so, what penalty should be imposed on his Class "B" Security

Agency License, Class "G" Statewide Firearm Permit, and Class "MB" Manager of Security Agency License.

PRELIMINARY STATEMENT

On March 24, 1997, the Department of State, the Division of Licensing (Department), issued a twenty-eight count Amended Administrative Complaint against Respondent. In a Statement of Disputed Material Facts and an Election of Rights Form filed with the Department, Respondent disputed the allegations and requested a formal hearing. On May 1, 1997, the Department referred the matter to the Division of Administrative Hearings (Division) for the assignment of an administrative law judge to conduct the final hearing.

At the final hearing, Petitioner presented the testimony of thirteen witnesses: Gene Blitch; Steven Cox; Mack Cummings; Glenn Davis; Todd Finley; Gary Floyd; Keith Jackson; Willie Lee; Michael Munger; Barbara Norman; Steve Pritchard; Henry Sanders; and William Scott. Petitioner offered seventeen exhibits, all of which were admitted into evidence. Respondent was not present at the hearing and no witnesses were presented nor was evidence offered on his behalf.

A transcript of the proceeding was filed with the Division on February 23, 1998. On February 27, 1998, Petitioner moved for an extension of time in which to file its proposed recommended order. The motion was granted and, thereafter, Petitioner timely filed its proposed recommended order under the extended time

period. In Petitioner's Proposed Recommended Order, Petitioner dismissed Counts I, II, III, and XXV of the Amended Administrative Complaint. Respondent did not file a proposed recommended order.

FINDINGS OF FACT

1. At all timed pertinent to this proceeding, Respondent, Christopher W. Hargraves (Respondent/Mr.Hargraves), was the holder of Class "B" Security Agency License No. B87-00007, Class "MB" Security Agency Manager License No. MB 90-000019, and Class "G" Statewide Firearms License No. G91-00245.

2. At all times pertinent to this proceeding, Mr. Hargraves was president of Protection Unlimited Crime Prevention Associated, Inc. (Protection Unlimited), a company which provided security services in the Tampa Bay area. The address of record for Protection Unlimited is 1511 Clement Road, Lutz, Florida 33549.

3. Mack Cummings began his employment as a security officer with Protection Unlimited in early 1996 and worked there until late 1996. At the time Mr. Cummings was employed to work as a security guard for Protection Unlimited, he was also employed by Providence Security. As a security officer for Providence Security, Mr. Cummings' assigned posts were three Checkers Restaurants located in Tampa, Florida. Mr. Cummings' shift at Checkers began at 8:00 p.m. and ended between 1:00 a.m. and 2:30

   a.m. The variation in the time Mr. Cummings' shift ended was due

   to and coincided with the time the particular Checkers' manager completed the restaurant's closing.

4. When Mr. Cummings was employed by Protection Unlimited, he was assigned to work at Channel 13, a television facility located in Tampa, Florida. When he was being considered for the position of security officer, Mr. Cummings told Respondent about his assignment with Providence Security and advised Respondent that he would be unable to report to Channel 13 until after midnight. Nonetheless, Mr. Cummings was scheduled to begin his shift at Channel 13 at midnight. As a result of his employment at Providence Security, Mr. Cummings usually did not report for duty at Channel 13 until after midnight. Respondent was aware that on many nights Mr. Cummings was not reporting to Channel 13 until much later than midnight.

5. Steven Cox worked for Protection Unlimited as a security officer during most of 1995. As a security guard for Protection Unlimited, Mr. Cox' assigned posts were Channel 13 and a yacht, the Claire T. While working at Channel 13, Mr. Cox performed security duties in plain clothes. At the time Mr. Cox was employed by Protection Unlimited, no uniforms were issued to him. Mr. Hargraves issued uniforms to Mr. Cox approximately two months after Mr. Cox began working for Protection Unlimited.

6. David Gilbert was hired as a security officer with Protection Unlimited on or about July 10, 1995. Mr. Gilbert often worked with Steven Cox while both were employed with

   Protection Unlimited. During this time, Mr. Cox often observed Gilbert performing security duties in civilian clothes, rather than in a uniform.

7. Michael Munger began his employment as a security officer with Protection Unlimited in late 1994 and worked for that agency for approximately nine months. As an employee of Protection Unlimited, Mr. Munger was assigned to Channel 13. Although Mr. Munger performed security duties at Channel 13, he was never provided with a uniform and thus, performed these duties in plain clothes.

8. Willie Lee began his employment as a security officer with Protection Unlimited in June 1995 and worked for the agency until January 1996. Mr. Lee's assigned post was Channel 13. When Mr. Lee was initially employed by Protection Unlimited, he was not issued an agency identification card. A month or two after Mr. Lee was employed by Protection Unlimited, Respondent gave him a card which Respondent referred to as an agency identification card. The only information contained on the card was "Protection Unlimited Crime Prevention, Inc.," the typewritten name "Willie Lee," and Mr. Lee's signature. Also, the "agency card" had spaces designated "photo" and "agency representative," although the card contained neither a photo of Mr. Lee nor the signature or name of the agency representative.

9. Barbara Norman was employed as a security officer with Protection Unlimited for several weeks in 1995. Respondent never

   provided Ms. Norman with uniforms to wear while she was performing security duties. Moreover, Ms. Norman had only a Class "D" license and therefore was not authorized to work as an "armed guard." Consistent with this Class "D" license, Protection Unlimited did not provide Ms. Norman with a firearm while she worked at Channel 13. However, she was told to wear an empty holster.

10. Glen Davis was employed as a security officer with Protection Unlimited in 1996. Mr. Davis was assigned to the Claire T yacht. Mr. Davis was not issued uniforms to wear while conducting security duties for Protection Unlimited. On April 8, 1996, Gary Floyd and Gene Blicth, investigator for the Department, performed a proactive inspection of the Claire T while Mr. Davis was on duty and observed that Mr. Davis was not wearing a uniform.

11. William Scott was employed with Protection Unlimited in February 1996 and continued working for the agency until July 1996. While employed with Protection Unlimited, Mr. Scott worked as a both a security guard and as acting supervisor for the agency. During the time that Mr. Scott worked for Protection Unlimited, he usually relieved by Mack Cummings or Steve Pritchard, also employees of Protection Unlimited. One night Mr. Pritchard did not report to work and no guard was or came on duty when Mr. Scott's assigned shift ended.

12. Several times during his employment with Protection Unlimited, Mr. Scott needed to leave Channel 13 before the end of his shift. In these instances, and before leaving his post early, Mr. Scott gave prior notice to Respondent. Upon being so informed, Respondent told Mr. Scott that he should not indicate on the log that he had left his post early.

13. As acting supervisor with Protection Unlimited, Mr. Scott was aware that Respondent routinely generated scheduling documents, time sheets, and payment schedules related to the operations of Protection Unlimited. Mr. Scott observed Respondent throw away many of these documents. The documents that Respondent discarded were less than two years old.

14. On or about March 8, 1996, Investigator Floyd performed a proactive inspection of the yacht, the Claire T. At the site, he spoke with a man who identified himself as Rocky Cocozza. Mr. Cocozza was working as a security guard on the vessel and produced an agency identification card from Protection Unlimited. During this inspection, Mr. Cocozza was wearing black trousers and a black jacket. Under the jacket, Mr. Cocozza was wearing a blue short-sleeve shirt which contained an emblem identifying the employing agency; the emblem was on the left side of the shirt, just above the pocket. However, the emblem on the shirt could not necessarily be seen when Mr. Cocozza was wearing the black jacket.

15. On March 18, 1996, Investigator Floyd was on the premises of Channel 13. As he was leaving that facility, Investigator Floyd observed Respondent performing security duties in the reception area. Investigator Floyd then approached Respondent and asked to see his agency identification card. Respondent did not produce a current agency identification card.

16. On or about May 3, 1996, Investigator Floyd went to Respondent's address of record to inquire about matters related to Protection Unlimited. After determining that no one was on the premises, Investigator Floyd left one of his business cards on the door of Respondent's address of record. On the card, Investigator Floyd wrote, "Chris, please call." The note on the card was directed to Respondent, whose first name is Christopher. Later that same day, Investigator Floyd went to Respondent's residence. After Respondent's wife told Investigator Floyd that Respondent was not at home, Investigator Floyd gave one of his business cards to Respondent's wife and requested that she give it to Respondent. On the card given to Respondent's wife, Investigator Floyd also wrote a note requesting that Respondent call him.

17. After waiting two months and receiving no response from Respondent, Investigator Floyd left several telephone messages for Respondent between July 10 and July 29, 1996. The telephone messages were left with Respondent's answering service and requested that Respondent return Investigator Floyd's calls.

    Although Respondent's answering service confirmed to Investigator Floyd that all of his messages had been conveyed to Respondent, Respondent never returned Investigator Floyd's telephone calls.

18. On August 20, 1996, Investigator Floyd reached Respondent by telephone and scheduled a meeting with Respondent for August 22, 1996. On the day of the scheduled meeting, Respondent called Investigator Floyd and canceled the meeting. The following day, August 23, 1996, Investigator Floyd called Respondent at the Channel 13 security desk and, again, attempted to schedule a meeting with Respondent. Respondent indicated that he would call Investigator Floyd the following Monday, August 26, 1996, to schedule a meeting. After he had not heard from Respondent by 4:00 p.m. on August 26, 1996, Investigator Floyd called Respondent to schedule a meeting. During the August 26, 1996 telephone conversation, Respondent refused to set a date to meet with Investigator Floyd, indicating that he was too busy. However, Respondent told Investigator Floyd that he would call him the next week to schedule a meeting.

19. Because he previously had been unsuccessful in scheduling a meeting with Respondent, after speaking with Respondent by telephone on August 26, 1998, Investigator Floyd went to Channel 13 and served Respondent with a subpoena duces tecum. The subpoena required Respondent to produce and provide the Department with various records maintained and related to the business operations of Protection Unlimited. The documents

    requested by the subpoena included the following: weekly assignment schedules; daily guard logs; time sheets; payroll records; personnel records of specified employees; and Employee Action Reports from January 1995 through March 1995, December 1995 through February 1996, and January 1996 through August 1996.

20. Respondent failed to provide all of the documents requested in the subpoena. Respondent provided several of the requested documents but many of them appeared to have some of the information on them obliterated with "white out." With regard to several of the requested documents, Mr. Hargraves noted on the subpoena that the records could not be located.

21. On or about September 3, 1996, after receiving some of the documents Respondent had provided pursuant to the subpoena, Investigator Floyd went to Channel 13 to speak with Respondent about the documents that had been requested. Upon arrival at Channel 13, Investigator Floyd told Respondent that he had a tape recorder and was recording the conversation. Respondent then refused to speak with Investigator Floyd and ejected him from the Channel 13 premises. Once Respondent ejected Investigator Floyd, Respondent went inside the Channel 13 building and locked the door.

22. Investigator Floyd met with Respondent and his attorney on September 6, 1996, at the address of record for Protection Unlimited. During the meeting, Investigator Floyd discussed several areas of concern with Protection Unlimited, including the

    following: (1) general record keeping and record retention procedures; (2) filing of hiring and termination notices with Petitioner; (3) occupational license; (4) branch offices; and (5) general liability insurance.

23. During the September 6, 1996, meeting, with regard to record keeping, Respondent acknowledged that he was a poor record keeper and that he routinely threw away records that he believed were no longer of use to him. Moreover, during this meeting, Respondent stated that he did not always file hiring and termination notices with Petitioner.

24. During the course of his investigation, Investigator Floyd determined that Channel 13 permitted Respondent to bill for security guard services two weeks in advance. Based on a review of invoices from mid-December 1995 to August 1996, to Channel 13 from Respondent, Investigator Floyd found that Respondent had billed Channel 13 for his agency's services two weeks in advance. However, Respondent failed to make adjustments on subsequent invoices, to reflect a reduction in the actual number of hours worked by some security officers. For example, in July 1996, Respondent's invoices do not reflect the approximately nineteen

    1. hours that Mark Cummings was not actually at Channel 13.

       
       

25. An investigation by Petitioner substantiated Respondent's admission that he did not always file hiring and termination notices. Among employees hired by Protection Unlimited, but for whom notices of hiring were not filed, were

    Barbara Norman, Steven Cox, William Scott, and Willie Lee. Furthermore, the Department's investigation found that Respondent failed to file termination notices for several of his employees, including William Scott, Barbara Norman, Steven Cox, and Willie Lee.

26. During the September 6, 1996, meeting, Respondent showed Investigator Floyd a Hillsborough County occupational license for Protection Unlimited. The license was dated September 5, 1996, and indicated that it was an initial issue, although Protection Unlimited had been in business since at least 1994. During the course of that meeting, Respondent acknowledged that his agency did not have an occupational license prior to the one dated September 5, 1996.

27. Investigator Floyd discussed the issue of branch offices with Respondent during the September 6, 1996 meeting. At that time, Respondent acknowledged that he had no branch office license. This admission by Respondent is confirmed by Petitioner's records which revealed that Respondent had no branch office license for any location, including 3213 West Kennedy, Tampa, Florida, the location of Channel 13.

28. Despite not having a branch office license which authorized him to carry on business activities such as interviewing potential employees at a location other than his address of record, Respondent routinely conducted such activities at Channel 13, located 3213 West Kennedy Boulevard, Tampa,

    Florida. Newspaper advertisements by Protection Unlimited, included a Channel 13 telephone number. When individuals called that number to inquire about available security officer positions, prospective job applicants were directed to come to Channel 13 for their job interview. During the time relevant to this proceeding, numerous job interviews to fill security officer positions for Protection Unlimited were routinely conducted at Channel 13.

29. During the September 6, 1996, meeting with Respondent, Investigator Floyd asked Respondent whether he issued agency identification cards to each of his employees when they were hired. Respondent answered affirmatively and indicated that he issued agency identification cards to each of his employees before "they ever set foot" on their assigned post.

30. The statement by Respondent that he always provided agency identification cards to employees upon hiring them is false in light of the credible testimony of Willie Lee that he performed his security duties for Protection Unlimited for at least a month before receiving his agency identification card.

31. During the September 6, 1996, meeting between Investigator Floyd and Respondent, Investigator Floyd asked Respondent whether he either permitted or had knowledge of his employees working in plain clothes while performing security duties. In response to this inquiry, Respondent told Investigator Floyd that he neither permitted nor had knowledge

    that employees wore plain clothes while performing security duties for his company.

32. The statement made by Respondent to Investigator Floyd was a false statement. The credible testimony of Barbara Norman and Glenn Davis, both employees of Protection Unlimited, was that Respondent never issued them uniforms in which to perform their security duties and, as a result thereof, they performed their duties in plain clothes. Furthermore, the credible testimony of Michael Munger and Steve Cox was that as employees of Protection Unlimited, they performed security duties in plain clothes. Despite his testimony to the contrary, Respondent was at the Channel 13 and observed that many times these employees were performing security duties while not in uniforms.

33. Another issue addressed by Investigator Floyd during the September 6, 1996, meeting with Respondent concerned the required reporting of individuals who had been employed by Protection Unlimited. When asked by Investigator Floyd whether he had ever employed Barbara Norman and Michael Munger as security guards for Protection Unlimited, Respondent answered in the negative.

34. This statement by Respondent is false in light of the credible testimony of Barabara Norman and Michael Munger.

    Ms. Norman and Mr. Munger were employed by and worked for Protection Unlimited in 1995.

35. During the September 6, 1996, meeting, Investigator Floyd asked Respondent to provide proof of the required general liability insurance for Respondent's agency. Respondent implied that he had the required insurance coverage, but at that time had no proof of such coverage. However, Mr. Hargraves told Investigator Floyd that he would have his insurance company fax documentary evidence that Protection Unlimited had the required insurance. Although Mr. Hargraves indicated that he would request that the insurance company fax the information to Investigator Floyd that same day, no such proof of insurance was ever provided to Investigator Floyd.

36. Respondent routinely performed duties as a security officer at Channel 13 during the period between March 1996 and August 1996, inclusive, although he did not have a Class "D" Security Officer License.

37. Respondent routinely carried a concealed firearm while on duty as a security officer during the time period April 1995 to July 1996.

38. Respondent told Glenn Davis that if investigators from the Department came to the Claire T, Mr. Davis was not to allow them on the post. Respondent indicated to Mr. Davis that he would be fired if he cooperated with the Department.

39. Respondent also told Mr. Scott that he was not to speak with Department investigators and that if the investigators came

    to his assigned post, Mr. Scott was to have the police remove the investigators from the premises.

40. Respondent told Mr. Pritchard not to speak with any investigators from the Department and to call the police if they came to Channel 13. Mr. Pritchard was told that he would be terminated if he spoke to any Department investigators.

41. On July 13, 1996, at about 8:30 p.m. and while on duty at Channel 13, Mr. Scott locked his master key to the facility in an office he had just checked. Immediately thereafter Mr. Scott attempted to call Respondent. When Mr. Scott could not reach Respondent directly, he left several messages with Respondent's answering service. Respondent never turned the calls. When Mr. Scott left at midnight, he still had not heard from Respondent.

42. The next day when Mr. Scott spoke with Respondent, about the "key" incident that has occurred on July 13, 1996. Respondent then directed Mr. Scott to indicate on the log that Respondent had returned Mr. Scott's call on July 13, 1998, shortly after 8:30 p.m., the time Mr. Scott had initially placed the call to Respondent. Mr. Scott told Respondent that he would not falsify the log. Later Mr. Scott observed that Mr. Hargraves had added an addendum to the daily log that falsely indicated that Respondent had responded to Mr. Scott's call the previous night.

    CONCLUSIONS OF LAW

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

44. Petitioner has jurisdiction over persons holding Class "B" Security Agency Licenses, Class "G" Statewide Firearm Permits, and Class "MB" Manager of Security Agency Licenses pursuant to Section 493.6121, Florida Statutes. That section also gives the Department jurisdiction over unlicensed activities for which a license is required under Chapter 493, Florida Statutes.

45. Because the Department has sought penalties which may include of revocation of Respondent's licenses, it has the burden of proving by clear and convincing evidence that he committed the violations alleged in the Amended Administrative Complaint. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 292(Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

46. The Amended Administrative Complaint filed in this case contains twenty-eight counts, four of which were subsequently dismissed. The counts dismissed by Petitioner were Counts I, II, III, and XXV. In order to prevail in this proceeding, the Department must prove the remaining allegations by clear and convincing evidence.

47. The provisions of Section 493.6118, 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, or any unlicensed persons engaged in activities regulated under this chapter.

       
       

       * * *

       
       

       1. Proof that the applicant or licensee is guilty of fraud or deceit, or negligence, incompetency, or misconduct, in the practice of activities regulated under this chapter.

       2. Conducting activities regulated under this chapter without a license or with a revoked or suspended license.

       3. Failure of licensee to maintain in full force and effect the general liability insurance coverage required by s. 493.6110.

       * * *

       
       

       (o) Failure or refusal to cooperate with or refusal of access to an authorized representative of the department engaged in an official investigation pursuant to this chapter.

       
       

       * * *

       
       

       (t) Violating any provision of this part.

       
       

48. Count IV alleges that Respondent violated Section 493.6118(1)(f), Florida Statutes, by committing fraud, deceit, negligence, or misconduct in the practice of activities regulated by Chapter 493, Florida Statutes, by billing a client for services not rendered. The Department proved by clear and convincing evidence that Respondent committed misconduct by

    charging a client for time when a security officer was not on duty. Respondent is in violation of Section 493.6119(1)(f), Florida Statutes, as alleged in Count IV of the Amended Administrative Complaint.

49. Counts V, VI, VII, VIII, IX, and X allege that Respondent allowed persons in his employ to perform the duties of security officer while not in uniform as required by Section 493.6305(1), Florida Statutes, and thereby violated Section 493.6118(1)(t), Florida Statutes. Pursuant to Section 493.6305(1), Florida Statutes, Class "D" licensees shall perform duties regulated under this Chapter in a uniform which bears at least one patch or emblem visible at all times clearly identifying the employing agency. Section 493.6305(2), Florida Statutes, provides that Class "D" licensees may perform duties regulated under this chapter in nonuniform statutes on a limited special assignment basis, and only when duty circumstances or special requirements of the client necessitate such dress.

50. The Department provided by clear and convincing evidence that Respondent allowed David Gilbert, Steven Cox, Michael Munger, Barbara Norman, Glenn Davis and Respondent to perform duties regulated under this Chapter 493, while not in uniform. As there is no evidence in the record to affirmatively establish that these persons were performing limited special assignment duties, Respondent is in violation of Section

    493.6118(1)(t), Florida Statutes, as alleged in Counts V through X of the Amended Administrative Complaint.

51. Count XI alleges that Respondent failed to provide agency identification cards as required by Section 493.6111(5), Florida Statutes. Section 493.6111(5), Florida Statutes provides in pertinent part:

    It shall be the duty of every agency to furnish all of its partners, principal corporate officers, and all licensed employees as identification card. The card shall specify at least the name and license number, if appropriate, of the holder of the card and the name and license number of the agency and shall be signed by a representative of the agency and by the holder of the card.

    
    

52. The Department proved by clear and convincing evidence that Respondent failed to provide agency identification cards as required by Section 493.6111(5), Florida Statutes, to Willie Lee during the period January 27, 1995 to March 18, 1996. When a card was provided, it clearly did not meet the requirements of law as it failed to contain the license number and signature of the agency representative. Accordingly, Respondent is in violation of Section 493.6118(1)(t), Florida Statutes, as alleged in Court XI of the Amended Administrative Complaint.

53. Count XII alleges that Respondent failed to maintain records in this state for a period of two years as required by Section 493.6121(2), Florida Statutes. That section provides, in pertinent part that records shall be maintained in this state for

    a period of two years at the licensee's principle place of business.

54. The Department proved by clear and convincing evidence that Respondent failed to maintain records in Florida during the period January 1, 1995 to August 30, 1996. Thus, Respondent is in violation of Section 493.6118(1)(t), Florida Statutes, as alleged in Count XII of the Amended Administrative Complaint.

55. Counts XIII and XIV allege that Respondent failed to report to the Department the names of persons hired and terminated by Protection Unlimited as required by Section 493.6112(2), Florida Statutes. That section provides that each agency shall, upon the employment or termination of employment of a licensee, report such employment or termination immediately to the Department and, in the case of termination, report the reason therefore.

56. The Department proved by clear and convincing evidence that Respondent failed to report the hiring of Barbara Norman, Steven Cox, William Scott, Willie Lee, Michael Munger, Frank Sportell, Russell Botts, Glenn Davis, and Frank Pucciarelli. By failing to comply with Section 493.6112(2), Florida Statutes, Respondent committed an offense proscribed by Section 493.6118(1)(t), Florida Statutes, as alleged in Count XIII of the Amended Administrative Complaint.

57. The Department proved by clear and convincing evidence that Respondent failed to notify the Department of termination of

    William Scott, David Gilbert, Russell Botts, T. W. Cunane, Barbara Norman, Steven Cox, Todd Finley, Willie Lee and Glenn Davis as required by Section 493.6112(2), Florida Statutes.

    Accordingly, Respondent committed on offense proscribed by Section 493.6118(1)(t), Florida Statutes, as alleged in Count XIV of the Amended Administrative Complaint.

58. Count XV alleges that Respondent allowed an individual in his employ to perform security guard duties wearing a uniform bearing an agency emblem that was visible at all times and clearly identified the employing agency as required by Section 493.6305(1), Florida Statutes. Section 493.6305(1), Florida Statutes, provides that Class “D” licensees shall perform duties regulated under this Chapter in a uniform which bears at least one patch or emblem visible at all times clearly identifying the employing agency.

59. The Department proved by clear and convincing evidence that on or about March 8, 1996, that Respondent was negligent in allowing an employee of Protection Unlimited, Rocky Cocozza, to perform the duties of a security officer in a uniform which did not have a patch or emblem, visible at all times, identifying Protection Unlimited as the employing agency. Therefore, Respondent is in violation of Section 493.6118(1)(f), Florida Statutes, as alleged in Count XV of the Amended Administrative Complaint.

60. Count XVI of the Amended Administrative Complaint alleges that Respondent had no valid county occupational license as required by Section 493.6107, Florida Statutes. Section 493.6107(5), Florida Statutes, provides that an agency may be required to obtain a city and county occupational license in each city and county where the agency maintains a physical office.

61. The Department proved by clear and convincing evidence that Respondent did not have a county occupational license during the period August 1995 to September 4, 1996. Respondent is, therefore, in violation of Section 493.6118(1)(t), Florida Statutes, as alleged in Count XVI of the Amended Administrative Complaint.

62. Count XVII alleges that Respondent conducted the business of a branch office without a valid Class BB license. Section 493.6301(1), Florida Statutes, provides that any person, firm, company, partnership, or corporation which engages in business as a security agency shall have a Class “B” license. A Class “B” license is valid for only one location.

63. The Division proved by clear and convincing evidence that Respondent engaged in the business of a security agency at Channel 13, a location other than the location listed as the physical address of Respondent’s Class “B” agency without a Class “BB” license. Therefore, Respondent is in violation of Section 493.6118(1)(g), Florida Statutes, as alleged in Count XVII of the Amended Administrative Complaint.

64. Count XVIII alleges that Respondent committed deceit or misconduct in the practice of activities regulated under Chapter 493, Florida Statutes, by failing to truthfully respond to questions by an authorized duties in a uniform that did not bear at least one patch or representative of the Department as required by Section 493.6121, Florida Statutes. The Department proved by clear and convincing evidence that Respondent committed deceit or misconduct by failing to respond truthfully to a Department investigation during the course of an investigation. Therefore, Respondent is in violation of Section 493.6118(1)(f), Florida Statutes, as alleged in Count XVIII of the Amended Administrative Complaint.

65. Count XIX alleges that Respondent performed the services of a security guard without a valid Class D Security Officer License I violation of Section 493. 6118(1)(g), Florida Statutes. Pursuant to Section 493.6118(1)(g), Florida Statutes, the Division may take disciplinary action against any licensee or unlicensed person for conducting activities regulated under this Chapter without a license. Moreover, Section 493.6301(5), Florida Statutes, provides that any individual who performs the services of a security officer shall have a Class “D” license.

66. The Department proved by clear and convincing evidence that Respondent performed the services of a security officer without a Class “D” license during the period March to August 1996. By doing so, Respondent was in violation of Section 493.6118(1)(g),

    Florida Statutes, as alleged in Count XIX of the Amended Administrative Complaint.

67. Count XX, XXVII, and XXVIII allege that Respondent violated Section 493.6118(1)(o), Florida Statutes, by failing to cooperate with a representative of the Department engaged in a lawful investigation. Section 493.6118(1)(o), Florida Statutes, provides that failure or refusal to cooperate with or refusal of access to an authorized representative of the Department engaged in an official investigation pursuant to Chapter 493, Florida Statutes, constitutes grounds for disciplinary action.

68. The Department proved by clear and convincing evidence that Respondent failed to cooperate with an authorized representative of the Department engaged in an official investigation on at least three occasions. First, Respondent failed to return numerous phone calls of a Department investigator. Second, when a Department investigator went to meet with Respondent at Channel 13, Mr. Hargraves refused to speak to the investigator and ordered him to leave the premises. Finally, Respondent failed to provide proof of liability insurance for his agency when he was requested to do so by a Department investigator. Thus, Respondent is in violation of Section 493.6118(1)(o), Florida Statutes, as alleged in Counts XX, XXVII and XXVIII of the Amended Administrative Complaint.

69. Count XXI alleges that Respondent committed misconduct in the practice of regulated activities under Chapter 493,

    Florida Statutes, by carrying a concealed firearm while on duty as a security officer and while not performing duties under conditions specified in by Section 493.6305(2), Florida Statutes.

70. Section 493.6115(3) and (4), Florida Statutes, respectively provide, in pertinent part:

    No employee shall carry or be furnished a weapon or firearm unless the carrying of a weapon or firearm is required by her or his duties, nor shall an employee carry a weapon or firearm except in connection with those duties. When carried pursuant to this subsection, the weapon or firearm shall be encased in view at all times except as provided in subsection (4).

    
    

    A Class “D” licensee 21 years of age or older who has also been issued a Class “G” license may carry a concealed firearm

    in the performance of her or his duties under conditions specified in s.

    493.6305(2).

71. Sections 493.6305(2) and (3), Florida Statutes, provide:

    
    

    1. Class “D” licensees may perform duties regulated under this chapter in nonuniform status on a limited special assignment basis, and only when duty circumstances or special requirements of the client necessitate such dress.

       
       

    2. Class “D” licensees who are also Class “G” licensees and who are performing limited special assignment duties may carry their authorized firearm concealed in the conduct of such duties.

    
    

72. The Department proved by clear and convincing evidence that Respondent routinely carried his firearm concealed while on duty as a security officer. There is no evidence in the record to affirmatively establish that Respondent was performing limited

    special assignment duties, thereby making such conduct permissible. Therefore, Respondent’s actions constitute misconduct and Respondent is in violation of Section 493.6118(1)(f), Florida Statutes, as alleged in Count XXI of the Amended Administrative Complaint.

73. Count XXII alleges that Respondent committed misconduct in the practice of regulated activities under Chapter 493, Florida Statutes, by encouraging or advising persons licensed thereunder, to refuse to cooperate with an authorized representative of the Department. The Department proved by clear and convincing evidence that Respondent ordered at least three of his employees not to cooperate with the Department's investigators. This behavior clearly constitutes misconduct. Respondent is in violation of Section 493.6118(1)(f), Florida Statutes, as alleged in Count XXII of the Amended Administrative Complaint.

74. In Count XXIII of the Amended Administrative Complaint, the Department alleges that Respondent committed fraud deceit, negligence or misconduct in the practice of regulated activities by falsifying an entry on a daily guard log submitted to an agency client. The Department proved by clear and convincing evidence that Respondent falsified a daily log on or about July 14, 1996. Respondent’s actions constitute misconduct. Respondent is in violation of Section 493.6118(1)(f), Florida Statutes, as alleged in Count XXIII of the Amended Administrative Complaint.

75. Count XXIV alleges that Respondent failed to provide documents requested in a subpoena duces tecum issued by the Department as required by Section 493.6121(4), Florida Statutes. Section 493.6121(4), Florida Statutes, empowers the Department to issue subpoenas it deems necessary in the exercise of its enforcement powers. According to that provision, failure to comply with the subpoena is grounds for the Department to revoke, suspend, or otherwise discipline the licenses issued under Chapter 493, Florida Statutes.

76. The Department proved by clear and convincing evidence that Respondent failed to provide all documents requested in the Department of State, Division of Licensing subpoena duces tecum dated August 19, 1996, as required by Section 493.6121(4), Florida Statutes. Respondent is in violation of Section 493.6118(1)(t), Florida Statutes, as alleged in count XXIV of this Amended Administrative Complaint.

77. Count XXVI alleges that Respondent committed negligence, incompetence or misconduct in the practice of regulated activities under Chapter 493, Florida Statutes, by allowing or instructing employees to perform security duties at man an armed post while wearing a jacket over an empty holster and, thereby, engaged in conduct proscribed by Section 493.6118(1)(f), Florida Statutes. The Department proved by clear and convincing evidence that Responded allowed Barbara Norman to wear an empty holster on an armed post. This clearly constitutes

    misconduct. Respondent is in violation of Section 493.6118(1)(f), Florida Statutes, as alleged in Count XXVI of the Amended Administrative Complaint.

78. Section 493.6118(2), Florida Statutes, provides that when the Department finds any violation of subsection (1) of Section 493.6118, Florida Statutes, it may deny a license, issue a reprimand, impose an administrative fine, place a licensee on probation, or suspend or revoke a license. In furtherance of this statutory scheme, the Department has adopted Rule 1C-3.113, Florida Administrative Code, which sets forth certain specified penalties to be used as guidelines in imposing disciplinary action. However, subsection (5) of this Rule authorizes the Department to deviate from the guidelines where there is "aggravating or mitigating circumstances" that may warrant such deviation 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.

    
    

79. The facts in this case have been carefully considered in light of Section 493.6118(2), Florida Statutes, and Rule 1C-3.113, Florida Administrative Code. The acts committed by Respondent when considered collectively, are sufficiently serious to warrant revocation of Respondent's licenses.

RECOMMENDATION

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

RECOMMENDED that the Department enter a final order (1) finding that Respondent committed the violations alleged in Counts IV through XXIV and Counts XXVI through XXVIII; (2) dismissing Counts I, II, III, and XXV; and (3) revoking Respondent's Class "B" license, Class "G" license, and Class "MB" license.

DONE AND ENTERED this 29th day of May, 1998, in Tallahassee, Leon County, Florida.

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUMCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1998.

COPIES FURNISHED:

Michele L. Guy, Esquire Department of State Division of Licensing

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

Don Bell, General Counsel Department of State

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

Christopher Hargraves 12515 Mondragon

Tampa, Florida 33625

Laura Vaughn, Esquire

401 East Jackson Suite 2525

Tampa, Florida 33602

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: 97-002084

Orders for Case No: 97-002084