STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, DIVISION ) OF LICENSING, )

)

Petitioner, )

)

vs. ) Case No. 98-0467

)

JOSE IGNACIO GOMEZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on June 16, 1998, in Miami, Florida, before Michael M. Parrish, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Douglas D. Sunshine, Esquire

Department of State Division of Licensing

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

For Respondent: Angel M. Gonzalez, Esquire

1900 South Bayshore Drive Coconut Grove, Florida 33133

STATEMENT OF THE ISSUES

This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of alleged violations set forth in a five-count Amended Administrative Complaint. The first four counts allege that the Respondent engaged in misconduct by being asleep while on duty at

his security post on four separate occasions. The last count

alleges that the Respondent engaged in misconduct by abandoning his post on one occasion.

PRELIMINARY STATEMENT

At the final hearing on June 16, 1998, the Petitioner presented the testimony of three witnesses. The Petitioner also offered seven exhibits, all of which were received.1 The Respondent testified on his own behalf, but did not call any additional witnesses. The Respondent also offered three exhibits, all of which were received.

At the conclusion of the hearing, the parties were allowed

15 days from the date of the hearing within which to file their proposed recommended orders.2 Thereafter, both parties filed proposed recommended orders containing proposed findings of fact and conclusions of law. The parties' submissions have been duly considered during the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Respondent holds Class "D" Security Officer License number D89-13404, which was issued pursuant to Chapter 493, Florida Statutes, effective from April 24, 1997, until June 27, 1999.

2. At all times material to this case, the Respondent was employed as a security officer by Prestige Protective Corporation, a business which provides security services.3 During his employment by Prestige Protective Corporation, the Respondent normally worked an 8-hour shift on Fridays and a 16-

   hour shift on Saturdays and Sundays. During his employment by Prestige Protective Corporation, the Respondent was assigned to provide security services for an export company located at the Port of Miami. The export company facility consisted of approximately forty acres that were used to store cargo. The cargo being protected consisted of miscellaneous cargo in containers and hundreds of motor vehicles and heavy equipment.

3. On August 23, 1997, the Respondent was on duty at the expert company facility. On two occasions that day, at approximately 1:00 p.m. and again at approximately 3:00 p.m., the Respondent was sleeping on duty. On both of those occasions he was observed sleeping by a Prestige Protective Corporation supervisor who had gone to investigate why the Respondent had not made the required radio clerk.

4. On August 24, 1997, the Respondent was on duty at the export company facility. At approximately 1:05 p.m., the Respondent was sleeping on duty. He was observed sleeping by a Prestige Protective Corporation supervisor who had gone to investigate why the Respondent had not made the required radio check.

5. On September 26, 1997, the Respondent was on duty at the expert company facility. At approximately 4:30 p.m., the Respondent was sleeping on duty. A supervisor of the expert company, Tomas Hernandez, saw the Respondent sleeping on this occasion. Hernandez took a Polaroid photograph of the sleeping

   Respondent and gave the photograph to another employee of Prestige Protective Corporation. The Respondent did not wake up when the photograph was taken. Hernandez saw the Respondent sleeping for several minutes before he took the photograph.

6. On September 28, 1997, the Respondent was on duty at the export company facility. At approximately 1:05 p.m., the Respondent was sleeping on duty. He was observed sleeping by a Prestige Protective Corporation supervisor who had gone to investigate why the Respondent had not made the required radio check.

7. On September 28, 1997, the Respondent was supposed to remain on duty until 11:00 p.m. While on duty that evening, the Respondent wanted to make a telephone call to inquire about the status of his ailing father. On several occasions the Respondent called his supervisor on the radio and asked to be relieved for a few minutes so he could leave his post to make the telephone call. On each occasion the supervisor told him to wait. At approximately 8:00 p.m. the Respondent became annoyed with the situation and decided to quit his job with Prestige Protective Corporation. At approximately 8:00 p.m., without notice to his supervisor and without permission from his supervisor, the Respondent left his duty post and never returned. Shortly thereafter, Prestige Protective Corporation terminated the Respondent's employment.

   CONCLUSIONS OF LAW

8. 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).

9. 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 (1991), 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).

   
   

10. Here, the Administrative Complaint, 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, by sleeping on duty on four occasions and by abandoning his post on one occasion.

11. 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]."

12. 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.

13. The Department's proposed recommended order suggests, as a penalty for the violations found, that Respondent's license be revoked.4 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.5

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 all five counts 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 1st day of July, 1998, in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

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 1st day of July, 1998.

ENDNOTES

1/ Petitioner's exhibits were prenumbered for identification as Exhibits 1 through 9. Petitioner's Exhibits 2 and 8 were not offered in evidence. The other seven were offered and received.

2/ Neither party ordered a transcript of the hearing.

3/ Since the events at issue in this proceeding, the Respondent has obtained employment at another security company.

4/ The Respondent argues in favor of a lesser penalty, primarily on the grounds that he was, at most, merely dozing on the occasions in question, and was never sound asleep. There is clear and convincing evidence that the Respondent was sound asleep on each occasion.

5/ See also the Recommended Orders in the following cases in which revocation was found to be the appropriate penalty on facts very similar to the facts in this case: Department of State, Division of Licensing v. Arthur William Francis, DOAH Case No. 97- 5373 (Recommended Order issued March 31, 1998); Department of State, Division of Licensing v. Jonas Mercier, DOAH Case

No. 97-4799 (Recommended Order issued March 23, 1998); and Department of State, Division of Licensing v. Frank Giordano, DOAH Case No. 96-1338 (Recommended Order issued May 30, 1996).

COPIES FURNISHED:

Douglas D. Sunshine, Esquire Department of State

Division of Licensing

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

Angel M. Gonzalez, Esquire 1900 South Bayshore Drive Coconut Grove, Florida 33133

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 32399-0450

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: 98-000467

Orders for Case No: 98-000467