STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) Case No. 98-5053

)

PAUL ALAN SANGSTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge Mary Clark, held a formal hearing in the above-styled case on February 11, 1999, by video-conference. The court reporter and witness participated from a video-conference site in Orlando, Florida; the Administrative Law Judge presided from Tallahassee, Florida; the attorney for Petitioner also participated from Tallahassee, Florida.

APPEARANCES

For Petitioner: Douglas D. Sunshine, Esquire

Department of State Division of Licensing

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

For Respondent: no appearance

STATEMENT OF THE ISSUES

An administrative complaint dated June 11, 1998, alleges that when Respondent, upon termination of his employment, failed

to return his identification card and uniform items to his employing agency, he committed violations of Section 493.6111(5)(c), Florida Statutes, and Section 493.6118 (1)(f), Florida Statutes. The issues for disposition in this proceeding are whether Respondent committed those violations and if so, what discipline is appropriate.

PRELIMINARY STATEMENT

In response to the administrative complaint, Respondent disputed the alleged facts and checked off a statement in the election of rights form, indicating that he wanted a formal evidentiary hearing.

The case was referred to the Division of Administrative Hearings and was scheduled as described above.

Although there is no indication that Respondent failed to receive the notice of hearing and there was no request for continuance or other contact by Respondent, he did not appear at the hearing.

Petitioner presented the testimony of a single witness, Jill Murphy, and offered two exhibits: Petitioner's Exhibit A, responses to requests for admissions; and Petitioner's Exhibit B, an inventory of items issued to Respondent by his employer. Both exhibits were received in evidence.

After the hearing, counsel for Petitioner submitted a Proposed Recommended Order.

FINDINGS OF FACT

1. Respondent, Paul Alan Sangster, holds a class "D" Security Officer License No. D92-16595, effective November 3, 1996.

2. While so licensed, on or about January 8, 1997, Respondent was hired as a security officer by Southland Security and Investigations, Inc. (Southland).

3. Jill Murphy, the human resources director for Southland, hired Respondent and issued him items required for his employment. On January 8, 1997, she issued him a uniform shirt and trousers, a shirt badge and collar brass; on

   January 17, 1997, she issued him another shirt and an identification card; and on January 24, 1997, she issued him another shirt badge.

4. Each time he was issued uniform items, Respondent signed and dated a uniform inventory sheet with this statement:

   By affixing my signature below, I am accepting receipt of uniforms and/or equipment for my official use. I understand that I am fully responsible for uniform clothing and/or equipment and will pay the full replacement cost on each item that is not returned when requested. I also understand that this uniform and/or equipment is the sole property of Southland Security and Investigations, Inc. I further agree that within five (5) days of termination of my employment, I shall return the uniforms cleaned and pressed, as I received it, or shall pay the cost of such cleaning and pressing. In the event I fail to return any part of my uniform or any equipment, I agree to pay the company the full replacement cost as indicated above plus all attorney's and collectors fee incurred in the recovering said cost.

   (Petitioner's Exhibit A)

   
   

5. Mrs. Murphy terminated Respondent's employment on or

   about March 8, 1998. He had told her that he got another job.

   
   

   When Ms. Murphy later tried to reach Respondent, she was told that his phone was disconnected and she was never able to reach him.

6. Respondent never returned the uniform items and identification card to Southland.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this case pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

8. The administrative complaint in this case alleges violations of Sections 493.6111(5)(c) and 493.6118(1)(f), Florida Statutes, which provide:

   493.6111 License; contents; identification card.

   
   

   5(c) Upon denial, suspension, or revocation of a license, or upon termination of a business association with the licensed agency, it shall be the duty of each partner, principal corporate officer, manager, or licensed employee to return the identification card to the issuing agency.

   
   

   493.6118 Grounds for disciplinary action.

   
   

   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 person engaged in

      activities regulated under 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.

      
      

9. Ordinarily in license discipline cases, the regulating agency must prove by clear and convincing evidence that the Respondent committed the violations alleged in an administrative complaint. Dept. of Banking and Finance v. Osborne Stern and Company, 670 So. 2d 932(Fla. 1996). In this case, in the absence of any evidence by Respondent, the agency has proved facts underlying the alleged violations. Moreover, the notice of hearing plainly states that failure to appear at the final hearing shall be grounds for dismissal of a Petition or entry of a default order, as appropriate. Respondent failed to appear and failed to make any explanation for his non-appearance.

10. Rule 1C-3.113(2), Florida Administrative Code, describes penalty guidelines for specific violations of Chapter 493, Florida Statutes, by individuals. For violations of Sections 493.6111(5)(c) and 493.6118(1)(f), Florida Statutes, by failure to return the employing agency's identification card, Rule 1C-3.113(2)(b), Florida Administrative Code, establishes a disciplinary range of administrative fines to license suspension. The administrative complaint alleges 2 counts of violations, both

based on the single failure of Respondent to return items to his prior employer. For this reason, a penalty for a single violation is recommended.

RECOMMENDATION

Based on the foregoing, it is

RECOMMENDED: that the agency issue its final order finding that Respondent violated Sections 493.6111(5)(c) and 493.6118(1)(f), Florida Statutes, when he failed to return his uniform and identification card to his former employer, and assessing an administrative fine of $500.

DONE AND ORDERED this 25th day of March, 1999, in Tallahassee, Leon County, Florida.

MARY CLARK

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 1999.

COPIES FURNISHED:

Douglas D. Sunshine, Esquire Department of State

Division of Licensing

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

Paul Alan Sangster

352 Buttonwood Drive

Kissimmee, Florida 34743

Debbie Kearney, General Counsel Department of State

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

Michele Guy, Assistant General Counsel Department of State

Division of Licensing

The Capitol, Mail Station 4 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: 98-005053

Orders for Case No: 98-005053