STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, DIVISION ) OF LICENSING, )

)

Petitioner, )

)

vs. ) Case No. 97-5374

)

ILIE POPESCU, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on February 26, 1998, at Fort Lauderdale, Florida, before Claude B. Arrington, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

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.

STATEMENT OF THE ISSUES

Whether Respondent, the holder of a Class "D" Security Officer License, committed the offenses alleged in the Administrative Complaint and the penalties, if any, that should be imposed.

PRELIMINARY STATEMENT

On October 17, 1997, Petitioner filed an administrative

complaint against Respondent that contained three counts.

Count I alleged that Respondent committed misconduct in violation of Section 493.6118(1)(f), Florida Statutes, by sleeping while on duty on the night of February 12, 1997. Count II alleged that Respondent failed to timely notify Petitioner of a change in his address in violation of Section 493.6118(1)(t), Florida Statutes. Count III alleged that Respondent committed misconduct in violation of Section 493.6118(1)(f), Florida Statutes, by sleeping while on duty on the night of February 11, 1997.

Respondent timely challenged the allegations of the Administrative Complaint, the matter was referred to the Division of Administrative Hearings, and this proceeding followed.

At the beginning of the formal hearing, the Petitioner dismissed Count II of the Administrative Complaint.

At the formal hearing, Petitioner presented the testimony of Mike Crutcher and presented two exhibits, both of which were accepted into evidence. One of Petitioner's exhibits was the deposition of Corey Targia. No appearance was made by or on behalf of the Respondent.

No transcript of the proceedings has been filed. The Petitioner filed a Proposed Recommended Order, which has been duly considered by the undersigned in the preparation of this Recommended Order. Respondent did not file a post-hearing submittal.

FINDINGS OF FACT

1. Respondent holds Class "D" Security Officer License Number D94-17752, which was issued pursuant to Chapter 493, Florida Statutes, effective October 17, 1996, to October 17, 1998.

2. At the times pertinent to this proceeding, Respondent was employed by Navarro Security.

3. On February 11 and 12, 1997, Respondent was on duty at a security post, during the evening hours, at William Lehman car dealership located in Broward County, Florida.1 That car dealership was a client of Navarro Security.

4. Respondent's duties at this security post included patrolling the premises in a motorized golf cart. Respondent was not permitted to sleep while on duty.

5. On February 11, 1997, Respondent was found by Corey Targia, a supervisor (captain) employed by Navarro Security, to be asleep in his own vehicle at approximately

3:34 a.m. Respondent was supposed to be on duty at that time. Respondent did not wake up until Mr. Targia knocked on the window of the vehicle.

1. On February 12, 1997, Respondent was again found by

   
   

   Mr. Targia to be asleep while he was on duty. On this occasion, Mr. Targia found Respondent at approximately 3:52 a.m. sleeping in a car owned by the dealership. A sign advertising the sale of the car was positioned in a manner to obscure Respondent's presence in the vehicle. Mr. Targia called by radio

   Mike Crutcher, another supervisor (lieutenant) employed by Navarro Security, and asked Mr. Crutcher come to the site with a camera. Mr. Crutcher arrived at the site and observed Respondent sleeping. Respondent awakened before Mr. Crutcher could photograph him.

   CONCLUSIONS OF LAW

   
   

2. The Division of Administrative Hearings has jurisdiction of the parties to and the subject of this proceeding. Section 120.57(1), Florida Statutes.

3. Petitioner has jurisdiction over persons holding a

   
   

   Class "D" Security Officer License, pursuant to Section 493.6121, Florida Statutes.

4. 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 fraud or deceit, or of negligence, incompetency, or 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 may specify.

      5. Suspend or revoke a license.

5. 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 Consumers Services, 550 So. 2d 112 (Fla. 1st DCA 1989).

6. The Petitioner has met its burden of proof in this proceeding. The evidence is clear and convincing that Respondent was asleep while on duty on February 11, 1997, and on

   February 12, 1997.

   
   

7. A security officer who sleeps at his post while he or she is on duty is guilty of misconduct within the meaning of Section 493.6118(1)(f), Florida Statutes.

8. Petitioner has not adopted penalty guidelines pertinent to this violation. The recommendation that follows is based, in part, on the fact that Respondent was asleep two nights in a row when he should have been providing security for the car dealership. This misconduct could easily have resulted in a loss by the car dealership. In its Proposed Recommended Order, the Petitioner proposed that Respondent's Class "D" Security Licensed be revoked. That proposed penalty is reasonable.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent's Class "D" Security Licensed be revoked.

DONE AND ENTERED this 20th day of March, 1998, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 20th day of March, 1998.

ENDNOTE

1/ The Administrative Complaint alleged that the events took place at an address in Hollywood, Florida, but incorrectly alleged that the events occurred in Dade County. The reference to Dade County is a scrivener's error that has not prejudiced the Respondent.

COPIES FURNISHED:

Michele Guy, Esquire Department of State Division of Licensing

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

Mr. Ilie Popescu

2015 Washington Street, No. 3

Hollywood, Florida 33020

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.

1 The Administrative Complaint alleged that the events took place at an address in Hollywood, Florida, but incorrectly alleged that the events occurred in Dade County. The reference to Dade County is a scrivener's error that has not prejudiced the Respondent.

Docket for Case No: 97-005374

Orders for Case No: 97-005374