STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, DIVISION OF ) LICENSING, )

)

Petitioner, )

)

vs. ) Case No. 99-2606

)

VANCE H. BRITTO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, through its duly-designated Administrative Law Judge, Mary Clark, conducted a formal hearing by videoconference on October 18, 1999. The Administrative Law Judge presided from Tallahassee, Florida; counsel for Petitioner participated in Tallahassee, Florida; and the witnesses appeared in Orlando, 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 February 8, 1999, alleges that Respondent committed violations of Section 493.6118, Florida Statutes, when he performed armed security officer services without a proper license and when he failed to cooperate with an

official investigation and gave false information regarding his identity and address. The issues in this proceeding are whether the alleged violations occurred and, if so, what penalty is appropriate.

PRELIMINARY STATEMENT

Respondent contested the allegations of the Administrative Complaint and requested a formal evidentiary hearing. The case was referred to the Division of Administrative Hearings (DOAH) where it was assigned and was consolidated with a series of related cases (DOAH Case nos. 99-1150, 99-1165, and 99-1814.)

The hearing was set and was continued several times at the request of the parties. Eventually the other related cases settled and this single case proceeded to hearing as described above.

Respondent did not appear at the hearing and the notice that was sent to his address of record was not returned as undeliverable. There have been no contacts by or with Respondent to explain and excuse his non-appearance.

Petitioner proceeded to present a prima facie case establishing the violations with a single witness, Richard Yates, and with 3 exhibits which were received into evidence as Petitioner's Exhibits Nos. 1-3.

The record of the hearing was made by tape recorder. No transcript was filed and Petitioner waived filing a proposed recommended order.

FINDINGS OF FACT

1. Respondent, Vance H. Britto, was licensed by the Florida Department of State as a security officer some time prior to 1993. His license expired and he was deemed ineligible for re- licensure because of an unpaid disciplinary fine.

2. On August 27, 1998, at approximately 11:30 p.m., Richard Yates, an investigator with the Florida Department of State, conducted a pro-active investigation at Windhover Apartments in Orlando, Orange County, Florida. Investigator Yates was accompanied by his colleague, Ed Sundberg.

3. The investigators approached an individual wearing a security officer's uniform and badge and carrying a 38-caliber revolver. They identified themselves and asked the individual for his name and security officer's license.

4. The individual gave his name as David Wilson but said that his license was at his employer's office being laminated. Although he was in a white Ford sedan with security markings, the individual denied having his driver's license or social security card with him. He gave his address as 2203 Page Street in Orlando. He gave his supervisor's name as Ricky Heath and his employer as Security Enforcement Services, Inc.

5. After a brief exchange with the investigators, the individual sped away in his vehicle. Investigator Yates made a note of the license plate and made further notes on an inspection checklist.

6. When he returned to his office and described the individual and the encounter to his supervisor, and with the aid of a file photograph, Investigator Yates was able to identify the individual as Vance Britto, a former licensee. In 1998 and to the present time, Mr. Britto has not been licensed with either a "Class G" or "Class D" license.

7. No one knew Mr. Britto at the Page Street address he gave the investigators and when they checked his address in the computer file they learned that he had not lived there in over two years.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

9. In license discipline cases such as this, the agency has the burden of proving with clear and convincing evidence that Respondent committed the violations alleged in the Administrative Complaint. Department of Banking and Finance v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996). In the absence of any controverting evidence whatsoever the agency has met its burden.

10. Section 493.6118, Florida Statutes, provides in pertinent part:

    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.

       * * *

       (g) Conducting activities regulated under this chapter without a license or with a revoked or suspended license.

       * * *

       (o) Failure or refusal to cooperate with or refusal of access to an authorized representative of the department engaged in

       
       

       an official investigation pursuant to 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.

          
          

11. Respondent was plainly conducting activities, including carrying a weapon, without the requisite licenses, and when confronted he gave false information and refused to cooperate with the agency's investigators.

12. Rule 1C-3.113, Florida Administrative Code, provides disciplinary guidelines for violations of Chapter 493, Florida Statutes. Rule 1C-3.113(2), Florida Administrative Code, relating to violations by individuals, establishes these pertinent penalties:

for a violation of Section 493.6118(1)(g), Florida Statutes

• $100 - $300 administrative fine;

  for a violation of Section 493.6118(1)(o)m Florida Statutes

  
  

• $300 - $700 administrative fine.

The recommended penalty described below is consistent with those guidelines and considers Respondent's intransigence and failure to participate in a proceeding that was conducted at his request and for the purpose of allowing him an opportunity to present his defense.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

that the agency enter its formal order finding Respondent guilty of violating Sections 493.6118(1)(g) and (o), Florida Statutes, and assessing an administrative fine of $1,000.

DONE AND ENTERED this 8th day of November, 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 8th day of November, 1999.

COPIES FURNISHED:

Douglas D. Sunshine, Esquire Department of State

Division of Licensing

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

Vance H. Britto 6525 Pompeii Drive

Orlando, Florida 32822

Honorable Katherine Harris Secretary of State Department of State

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

Deborah K. Kearney, General Counsel Department of State

The Capitol, Lower Level 10 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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 99-002606

Orders for Case No: 99-002606