STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, DIVISION ) OF LICENSING, )

)

Petitioner, )

)

vs. ) Case No. 97-4799

)

JONAS MERCIER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Administrative Law Judge, William J. Kendrick, held a formal hearing in the above-styled case on March 4, 1998, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Michele Guy, Esquire

Department of State Division of Licensing

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

For Respondent: No appearance at hearing

STATEMENT OF THE ISSUES

At issue in this proceeding is whether Respondent committed the offenses set forth in the Administrative Complaint, as amended,1 and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On August 22, 1997, the Department of State, Division of Licensing, (Department) issued a two-count Administrative

Complaint against Respondent, the holder of a Class "D" Security Officer License. Count I, as amended, alleged that "[o]n February 1, 1997, in Broward County, Florida, Respondent committed misconduct in the practice of regulated activities under Chapter 493, Florida Statutes, in that Respondent was asleep on duty [,] . . . in violation of Section 493.6118(1)(f), Florida Statutes." Count II, as amended, alleged that "[o]n or about March 2, 1997, in Broward County, Florida, Respondent committed misconduct in the practice of regulated activities under Chapter 493, Florida Statutes, in that Respondent abandoned his post for thirty (30) minutes [,] . . . in violation of Section 493.6118(1)(f), Florida Statutes."

Respondent filed an election of rights whereby he contested the material facts alleged in the Administrative Complaint and requested a formal hearing. Consequently, the Department referred the matter to the Division of Administrative Hearings for the assignment of an administrative law judge to conduct the hearing Respondent had requested.

At hearing, Petitioner presented the testimony of Nelson J. Rose, an account manager with Borg-Warner Protective Services, and Moses Osgood, a former road supervisor with Borg-Warner Protective Services. Petitioner's Exhibits 1 and 2 were received into evidence. Neither Respondent nor anyone on his behalf appeared at hearing, and no evidence was offered on his behalf.

The transcript of the hearing was not ordered. Therefore,

at the conclusion of the hearing, it was announced on the record that the parties were accorded ten days from the date of hearing to file proposed recommended orders. Petitioner elected to file

such a proposal, and it has been duly considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Department of State, Division of Licensing (Department), is a state agency charged, inter alia, with the duty and responsibility to license and regulate private security, investigative, and repossession services pursuant to Chapter 493, Florida Statutes.

2. Respondent, Jonas Mercier, is now, and was at all times material to this case, licensed by the Department as a Class "D" Security Officer, having been issued license number D97-00533.

3. From January 9, 1997, until March 3, 1997, Respondent was employed as a security officer by Borg-Warner Protective Services (Borg-Warner), a business which provides security services. Among Borg-Warner's clients during the period of Respondent's employment were Hertz Rent-A-Car (Hertz) and Shaw Trucking.

4. On February 1, 1997, Respondent's assignment was to provide security services at the Hertz maintenance facility in Broward County, Florida. At 7:30 a.m., during the course of his shift, Respondent was found sleeping on duty by the client's director of security. For this offense, Respondent received an "official reprimand" from his employer.

5. On Sunday, March 2, 1997, Respondent's assignment was to provide security services at Shaw Trucking in Broward County,

   Florida. His shift was to begin at 9:00 p.m.

6. Respondent telephoned the Borg-Warner dispatcher, and reported for duty at the appointed time. During the course of that conversation, the dispatcher apprised Respondent that the road supervisor, Moses Osgood (Osgood), would not arrive until approximately 11:00 p.m. to open the padlocks.

7. Osgood arrived at Shaw Trucking at 10:28 p.m. on March 2, 1997, and found that Respondent had left his assigned post without notice to, or permission from, Borg-Warner.

8. Osgood remained at the post until Respondent returned at 11:08 p.m., and resumed his post. Respondent's explanation for his absence was that, since Osgood was not scheduled to arrive until 11:00 p.m., he had gone to get something to eat. In his absence, however, the client's premises were without security.

9. Respondent was discharged by his employer on March 3, 1997, for having left his post without notice or authorization.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sections 120.569, 120.57(1), and 120.60(5), Florida Statutes (1997).

11. Where, as here, the Department proposes to take punitive action against a licensee, it must establish grounds for disciplinary action by clear and convincing evidence. Section 120.57(1)(h), Florida Statutes (1997), and Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996).

    "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).

12. Here, the Administrative Compliant, as amended, charges that Respondent should be disciplined for having violated Subsection 493.6118(1)(f), Florida Statutes, inasmuch as he committed misconduct in the practice of activities regulated under Chapter 493, Florida Statutes, on February 1, 1997, by sleeping on duty, and on March 2, 1997, by abandoning his post.

13. Subsection 493.6118(1)(f), Florida Statutes, authorizes the Department to discipline a licensee upon "[p]roof that the

    . . . licensee is guilty of fraud or deceit, or of negligence, incompetency, or misconduct, in the practice of activities regulated under . . . [Chapter 493, Florida Statutes]."

14. A licensed security officer who sleeps on duty or abandons his post without notice or permission is guilty of "misconduct," within the meaning of subsection 493.6118(1)(f). Respondent is, therefore, subject to the imposition of the sanctions prescribed by Subsection 493.6118(2), Florida Statutes.

15. The Department's proposed recommended order suggests, as a penalty for the violations found, that Respondent's license be revoked. The Department's proposal is consistent with the provisions of Section 493.6118(1)(f), Florida Statutes, and Rule

1C-3.113, Florida Administrative Code, and is accepted as appropriate under the circumstances of this case.

RECOMMENDATION

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

RECOMMENDED that a Final Order be entered finding Respondent guilty of Counts I and II of the Administrative Complaint and that, as a penalty for such offenses, Respondent's Class "D" Security Officer License be revoked.

DONE AND ENTERED this 23rd day of March, 1998, in Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

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 23rd day of March, 1998.

ENDNOTE

1/ Count I was amended to refer to February 1, 1997, as the date of the occurrence at issue and Count II was amended to refer to March 2, 1997, as the date of the occurrence at issue.

COPIES FURNISHED:

Michele Guy, Esquire Department of State Division of Licensing

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

Jonas Mercier

7028 Northwest 49 Court

Lauderhill, Florida 33319

Honorable Sandra B. 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: 97-004799

Orders for Case No: 97-004799