STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) Case No. 97-5403

)

ETTION A. HEATH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a Section 120.57(1) hearing was held in this case on January 21, 1998, by video teleconference at sites in Fort Lauderdale and Tallahassee, Florida, before Stuart M. Lerner, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kristi Reid Bronson, Esquire

Department of State

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

For Respondent: No Appearance

STATEMENT OF THE ISSUES

1. Whether Respondent committed the violation alleged in the Administrative Complaint.

2. If so, what disciplinary action should be taken against

him.

PRELIMINARY STATEMENT

On June 10, 1997, the Department of State, Division of Licensing (Department) issued a one-count Administrative Complaint against Respondent, who holds a Class "D" security officer license, alleging that "[o]n or about November 24, 1996, in Broward County, Respondent committed misconduct in the practice of regulated activities under Chapter 493, Florida Statutes, in that Respondent abandoned his post prior to the conclusion of his shift[,] . . . in violation of Section 493.6118(1)(f), Florida Statutes." Respondent denied the allegations of wrongdoing advanced in the Administrative Complaint and requested a Section 120.57(1) hearing. On November 19, 1997, the Department referred the matter to the

Division of Administrative Hearings (Division) for the assignment of a Division administrative law judge to conduct the Section 120.57(1) hearing Respondent had requested.

The Section 120.57(1) hearing was scheduled for January 21, 1998. The Department and Respondent were provided with written notice of the hearing in accordance with Section 120.569(2)(b), Florida Statutes.1

The Department appeared at the hearing, which was held as scheduled on November 7, 1996, through one of its Assistant General Counsel, Kristi Reid Bronson, Esquire. Respondent did not make an appearance at the hearing, either in person or through counsel or an authorized representative.

At the hearing, the Department presented the testimony of one witness (Ermelindo Onativia). It also offered one exhibit (Petitioner's Exhibit 1) into evidence. The Department's lone exhibit was received by the undersigned.

At the conclusion of the evidentiary portion of the hearing, the undersigned, on the record, advised that the deadline for the filing of proposed recommended orders was ten days from the date of the Division's receipt of the transcript of the hearing. The hearing transcript was filed with the Division on February 5, 1998. On February 13, 1998, the Department filed a proposed recommended order, which the undersigned has carefully considered. To date, Respondent has not filed any post-hearing submittal.

FINDINGS OF FACT

Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made:

1. The Department is a state government licensing and regulatory agency.

2. Respondent is now, and has been at all times material to the instant case, the holder of a Class "D" security guard license (license number D94-13786).

3. He has been licensed since November 16, 1994.

   
   

4. From April 3, 1996, through and including November 24, 1996, Respondent was employed as security guard by Delta Force Security (Delta), a business which provides security services.

5. Ermelindo Onativia is now, and was at all times material to the instant case, the owner and manager of Delta.

6. Among Delta's clients during the period of Respondent's employment was Motor World, an automobile dealership in Plantation, Florida.

7. On the weekend of November 23 and 24, 1996, Respondent's assignment was to provide security services at Motor World. His shift was to begin at 7:00 p.m. on Saturday, November 23, 1996, and end at 5:00 a.m. on Sunday, November 24, 1996.

8. Onativia met Respondent at Motor World at the beginning of Respondent's shift on November 23, 1996, and reminded Respondent to "punch the time clock" when he made his rounds at the dealership. After conversing with Respondent, Onativia left the dealership.

9. Onativia returned to Motor World at 2:00 a.m. on November 24, 1996, to check on Respondent. Respondent, however, was not there. He had left his assigned post without obtaining Onativia's permission to do so.

10. Onativia remained at the dealership until 5:00 a.m. At no time during the period that he was at the dealership did he see or hear from Respondent.

    CONCLUSIONS OF LAW

    
    

11. The Department is statutorily empowered to take disciplinary action against licensees, such as Respondent, based upon any of the grounds enumerated in Section 493.6118(1),

    Florida Statutes. Such disciplinary action may include one or more of the following penalties: license denial; license revocation; license suspension; imposition of an administrative fine not to exceed $1,000 for each count or separate offense; issuance of a reprimand; and placement of the licensee on probation. Section 493.6118(2), Florida Statutes.

    
    

12. Proof greater than a mere preponderance of the evidence must be submitted. Clear and convincing evidence is required. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932, 935 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); McKinney v. Castor, 667 So. 2d 387, 388 (Fla. 1st DCA 1995); Tenbroeck v. Castor, 640 So. 2d 164, 167 (Fla. 1st DCA 1994); Nair v. Department of Business and Professional Regulation, 654 So. 2d 205, 207 (Fla. 1st DCA 1995); Pic N' Save v. Department of Business Regulation, 601 So. 2d 245 (Fla. 1st DCA 1992); Munch v. Department of Professional Regulation, 592 So. 2d 1136 (Fla. 1st DCA 1992); Newberry v. Florida Department of Law Enforcement, 585 So. 2d 500 (Fla. 3d DCA 1991); Pascale v. Department of Insurance, 525 So. 2d 922 (Fla. 3d DCA 1988); Section 120.57(1)(h), Florida Statutes. ("Findings of fact shall be based on a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute.").

13. "'[C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. 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.'" In re Davey, 645 So. 2d

    
    

    398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

14. The disciplinary action taken against the licensee may be based only upon those offenses specifically alleged in the administrative complaint. See Cottrill v. Department of Insurance, 685 So. 2d 1371 (Fla. 1st DCA 1996); Kinney v. Department of State, 501 So. 2d 129, 133 (Fla. 5th DCA 1987); Hunter v. Department of Professional Regulation, 458 So. 2d 842, 844 (Fla. 2d DCA 1984).

15. In determining whether Section 493.6118(1), Florida Statutes, has been violated in the manner charged in the administrative complaint, one “must bear in mind that it is, in effect, a penal statute. . . . This being true the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it. Furthermore, if there are any ambiguities included such must be

    construed in favor of the . . . licensee.” Lester v. Department of Professional and Occupational Regulations, 348 So. 2d 923, 925 (Fla. 1st DCA 1977).

16. The Administrative Complaint issued in the instant case charges that Respondent should be disciplined for having violated Section 493.6118(1)(f), Florida Statutes, inasmuch as, on or about November 24, 1996, he "committed misconduct in the practice of regulated activities under Chapter 493, Florida Statutes, [by] abandon[ing] his post prior to the conclusion of his shift."

17. Section 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 the activities regulated under this chapter."

18. A licensed security guard who abandons his assigned post without permission is guilty of "misconduct," within the meaning of Section 493.6118(1)(f), Florida Statutes. See Department of State, Division of Licensing v. Gaines, Nos. C94- 02269 and D94-06031 (Fla. Department of State, Division of Licensing, September 20, 1995)(Final Order Adopting Findings of Fact and Conclusions of Law of Hearing Officer Joyous D. Parrish).

19. The record evidence in the instant case clearly and convincingly establishes that, as alleged in the Administrative Complaint, Respondent engaged in such "misconduct" during the

    early morning hours on November 24, 1996, when, without permission and for no apparent reason, he left his assigned post at Motor World.

20. Respondent therefore is subject to disciplinary action pursuant to Section 493.6118, Florida Statutes.

21. The Department should take the following disciplinary action against Respondent for his having engaged in such "misconduct:" fine him $1,000.00 and place him on probation for a period of one year, subject to such conditions as the Department may specify.2

RECOMMENDATION

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

RECOMMENDED that the Department enter a final order finding Respondent guilty of the violation of Section 493.6118(1)(f), Florida Statutes, alleged in the Administrative Complaint and disciplining him therefor by fining him in the amount of

$1,000.00 and placing him on probation for a period of one year, subject to such conditions as the Department may specify.

DONE AND ENTERED this 18th day of February, 1998, in Tallahassee, Leon County, Florida.

STUART M. LERNER

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 18th day of February, 1998.

ENDNOTES

1 Such notice was in the form of a Notice of Hearing by Video Teleconference mailed on December 24, 1997.

2 This is the same punishment that was imposed upon the respondent in Department of State, Division of Licensing v. Gaines for having abandoned his post in violation of Section 493.6118(1)(f), Florida Statutes.

COPIES FURNISHED:

Ettion A. Heath, pro se 14899 Northeast 18th Avenue Apartment 66-D

Miami, Florida 33181

Kristi Reid Bronson, Esquire Department of State

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

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 Such notice was in the form of a Notice of Hearing by Video Teleconference mailed on December 24, 1997.

2 This is the same punishment that was imposed upon the respondent in Department of State, Division of Licensing v. Gaines for having abandoned his post in violation of Section 493.6118(1)(f), Florida Statutes.

Docket for Case No: 97-005403

Orders for Case No: 97-005403