STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) Case No. 99-3445

)

THOMAS ANTHONY APPEL, )

)

Respondent. )

)

RECOMMENDED ORDER

On December 6, 1999 and March 9, 2000, a formal administrative hearing in this case was held by videoconference in Tampa and Tallahassee, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

The hearing commenced on December 6, 1999, at which time both parties were present and represented by counsel. The hearing recessed on December 6 to permit the parties to file briefs on an evidentiary issue. The issue was resolved by a separate order entered on January 25, 2000, and the hearing resumed on March 9, 2000. The Respondent did not attend the March 9 hearing and was not represented at the hearing by counsel.

APPEARANCES

For Petitioner: Steve Bensko, Esquire

Department of State

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

For Respondent: R. Michael Robinson, Esquire

701 49th Street North

St. Petersburg, Florida 33701 STATEMENT OF THE ISSUE

The issue in the case is whether the allegations of the Administrative Complaint are correct, and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated January 31, 1997, the Department of State, Division of Licensing, (Department) alleged that Thomas Anthony Appel (Respondent) violated certain statutes relating to regulation of licensed security agencies. The Respondent requested a formal hearing. According to the

August 11, 1999, letter of transmittal from the Department to the Division of Administrative Hearings, the Respondent’s request for hearing was initially denied by the Department. The Respondent successfully appealed the denial. The Department thereafter forwarded the request for hearing to the Division of Administrative Hearings, which scheduled and conducted the proceeding.

During the hearing, the Petitioner presented the testimony of two witnesses and had Exhibits numbered 1-3 admitted into evidence. The Respondent presented no witnesses or exhibits.

The Transcript of the hearing was filed on March 17, 2000. The Petitioner filed a Proposed Recommended Order.

FINDINGS OF FACT

1. At all times material to this case, the Respondent held a Class "MB" Security Agency Manager License, numbered MB95- 00125, and a Class "D" Security Officer License, numbered D07- 09924.

2. At all times material to this case, the Respondent was the manager of a licensed Class "B" Security Agency, identified as "Florida Protection Officer."

3. In December 1996, a potential employee of the Respondent’s agency sought to obtain from the Department a Temporary Class "G" Statewide Firearms License to permit him to carry a firearm during the course of his employment.

4. On or about December 13, 1996, the Respondent filed an "Agency Character Certification" on behalf of the employee’s application for a Temporary Class "G" Statewide Firearms License.

5. The Agency Character Certification requires the employer to certify that the "employee has been determined to be mentally and emotionally stable" and requires the employer to identify the method used to determine the employee’s mental condition.

6. In response to the inquiry, the Respondent indicated that the employee’s mental condition was determined through a "[v]alidated written psychological test or evaluation by a psychologist or psychiatrist."

7. The Respondent indicated that the evaluation had been completed by McKinley’s Florida Security Academy, Inc.

8. Review of the evaluation indicates that the evaluator did not determine that the employee was mentally and emotionally stable. To the contrary, the report indicated that the employee distorted his answers to questions and should be retested.

9. The evaluation also noted that the employee acknowledged having previously committed four crimes and admitted that he had illegally carried a concealed firearm seven times in the preceding 24-month period.

10. The Department relies on Security Agency Managers to provide accurate information on the Agency Character Certification forms. The Department apparently has no other method of validating the mental and emotional condition of licensed individuals.

11. Falsification of an "Agency Character Certification" poses a danger to the public safety and welfare by permitting a person with a potentially unstable mental and emotional condition to be employed as an armed security guard.

12. Prior to submitting the Certification, the Respondent contacted an investigator for the Department to ascertain whether the Department would receive a copy of the evaluation. After being informed that the Department did not normally receive a copy of the evaluation, the Respondent submitted his Certification.

13. The Respondent was aware of the statements contained within the evaluation at the time he submitted the false "Agency

    Character Certification." The Respondent was aware that his certification was false.

    CONCLUSIONS OF LAW

    
    

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

15. The Department has the burden of proving by clear and convincing evidence the allegations against the Respondent. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). In this case, the burden has been met.

16. The evidence establishes that the Respondent knowingly filed a false "Agency Character Certification" stating that the employee had been determined to be mentally and emotionally stable. The Respondent knew that the results of the potential employee’s psychological examination were contrary to the information set forth on the certification.

17. It is unlikely that the Department would have discovered the false Certification had the Respondent not inquired as to whether the Department would receive the underlying psychological report. The Respondent inquired as to whether the Department would receive a copy of the report prior to filing the false certification. The Respondent’s unusual inquiry caused Department representatives to investigate the situation.

18. The Respondent does not meet the minimum qualifications for licensure. Section 493.6106(1)(b), Florida Statutes, requires that each individual licensed by the Department must be of "good moral character." Section 493.6101(7), Florida Statutes, defines "good moral character to mean "a personal history of honesty, fairness, and respect for the rights and property of others and for the laws of this state and nation."

19. The Respondent’s falsification of the Agency Character Certification establishes a lack of good moral character.

20. Section 493.6118(1), Florida Statutes, provides as follows:

    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.

       
       

21. The evidence establishes that the Respondent is guilty of fraud, deceit, and misconduct in his activity as a security agency manager.

22. The Department has the authority to suspend or revoke the Respondent’s license under the circumstances of this case. Section 493.6118(2)(e), Florida Statutes.

23. Rule 1C-3.113, Florida Administrative Code, sets forth the range of penalties applicable to various violations of the disciplinary statutes, but does not establish a range of penalties for the offense in this case.

24. Rule 1C-3.113(5) Florida Administrative Code, sets forth aggravating and mitigating circumstances to consider in determining an appropriate penalty and provides as follows:

    (5) The division shall be entitled to deviate from the above-mentioned guidelines and impose any penalty authorized under Section 493.6118(2), Florida Statutes, upon a showing of one or more of the following aggravating or mitigating circumstances presented to the finder of fact:

    1. The violation was committed maliciously.

    2. The danger to public safety or welfare.

    3. The number of previous violations for the same type of offense, whether or not disciplinary action was taken.

    4. The length of time the violator engaged in the prohibited activity.

    5. The length of time since the violation occurred.

    6. Previous disciplinary action against the violator in this or any other jurisdiction.

    7. The amount of damage to persons or property caused by the violation.

    8. The deterrent effect of the penalty imposed.

    9. Any efforts by the violator at rehabilitation.

    10. Attempts by the violator to correct violations or the failure to correct violations.

    11. The violator's prior knowledge of Chapter 493, F.S.

    12. Whether the violation resulted from negligence or an intentional act.

    13. Financial hardship.

    14. The cost of disciplinary proceedings.

    15. The number of other violations proven in the same proceeding.

    16. The violation occurred while on

        probation.

    17. Any other aggravating or mitigating circumstances.

    
    

25. There are no mitigating circumstances.

    
    

26. The falsification of the Agency Character Certification presents a substantial danger to the public safety and welfare by placing an armed security agent, who may not meet acceptable standards of mental and emotional stability, into a position of public contact. Under current licensing procedures, the only responsible person with access to the psychological evaluation of a potential employee is the manager of the security agency seeking to employ the individual.

27. It goes without saying that the public has a strong interest in assuring that an armed security officer should be mentally and emotionally stable. By the filing of an Agency Character Certification, the agency manager warrants to the licensing agency that the individual is mentally and emotionally stable. Falsification of the certification by the agency manager requires revocation of the manager’s licensure.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of State, Division of Licensing, enter a final order revoking the Class "MB" Security Agency Manager License, numbered MB95-00125, and the Class "D" Security Officer License, numbered D07-09924, held by Anthony Thomas Appel.

DONE AND ENTERED this 5th day of May, 2000, in Tallahassee, Leon County, Florida.

WILLIAM F. QUATTLEBAUM

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 5th day of May, 2000.

COPIES FURNISHED:

Steve Bensko, Esquire Department of State

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

R. Michael Robinson, Esquire 701 49th Street North

St. Petersburg, Florida 33701 Honorable Katherine Harris Secretary of State

The Capitol, Plaza Lever 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: 99-003445

Orders for Case No: 99-003445