STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) Case No. 99-5359

)

ERIQUE ALCINDOR, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on March 14, 2000, by video-teleconference with sites in Miami and Tallahassee, Florida, before Susan B. Kirkland, a 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 4 Tallahassee, Florida 32399-0250

For Respondent: No appearance.

STATEMENT OF THE ISSUE

Whether Respondent violated Subsection 493.6118(1)(f), Florida Statutes, and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On November 22, 1999, Petitioner, Department of State, Division of Licensing (Department), issued a four-count

Administrative Complaint against Respondent, Erique Alcindor (Alcindor), alleging that Alcindor violated Subsection 493.6118(1)(f), Florida Statutes, by sleeping while on post. Alcindor requested an administrative hearing, and the case was forwarded to the Division of Administrative Hearings on

December 23, 1999, for assignment to an Administrative Law Judge.

By Notice of Hearing dated January 25, 2000, the case was set for hearing by video-teleconference. Respondent was sent a copy of the Notice of Hearing. Respondent did not appear at the final hearing and provided no reason for not appearing.

At the final hearing, Petitioner called Eugene Warner as its witness and submitted Petitioner's Exhibits 1-6 which were admitted in evidence. Petitioner agreed to file a proposed recommended order on or before March 24, 2000. Petitioner's Proposed Recommended Order, which was filed on March 22, 2000, has been considered in rendering this Recommended Order.

FINDINGS OF FACT

1. Respondent, Erique Alcindor (Alcindor), currently holds a Class "D" Security Officer License Number D93-01789 issued pursuant to Chapter 493, Florida Statutes. The license is effective from March 31, 1999, to February 10, 2001.

2. Alcindor worked as a security officer for Bryant Security Corporation (Bryant) from March 6, 1997, until July 30, 1999.

3. On February 14, 1998, Alcindor was assigned to a security post at Flexible Foam, a client of Bryant.

   Eugene Warner, a supervisor for Bryant, found Alcindor sleeping in a chair while on duty at Flexible Foam on February 14, 1998. Mr. Warner took a photograph of Alcindor while he was sleeping.

4. On September 4, 1998, Alcindor was again assigned to security post at Flexible Foam. Mr. Warner again found Alcindor sleeping in a chair while he was on duty on September 4, 1998. Mr. Warner took a photograph of Alcindor while he was sleeping.

5. On July 11, 1999, Alcindor was assigned to a security post at a client of Bryant, L.S.G. While at that post, Alcindor was responsible for safeguarding food that would be placed on commercial planes. Mr. Warner found Alcindor alseep in a chair while on duty at L.S.G. on July 11, 1999. Mr. Warner took a photograph of Alcindor while he was sleeping.

6. On July 20, 1999, Alcindor was again assigned to a security post at L.S.G. and again was found sleeping in a chair while on post by Mr. Warner.

   CONCLUSIONS OF LAW

   
   

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

8. The Department has jurisdiction over licensed security officers engaged in security officer activities pursuant to Section 493.6121, Florida Statutes.

9. The Department in seeking to revoke Alcindor's license has to establish by clear and convincing evidence the violations alleged. Department of Banking and Finance v. Osbourne Stern, 670 So. 2d 932 (Fla. 1996), Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

10. The Department has alleged that Alcindor violated Subsection 493.6118(1)(f), Florida Statutes, which provides:

    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, deceit, or of negligence, incompetency, or misconduct, in the practice of the activities regulated under this chapter.

       
       

11. Misconduct is defined in Black's Law Dictionary, Sixth Edition, as "[a] transgression of some established and definite rule of action . . . a dereliction from duty . . . improper behavior . . . ." In a licensing context, misconduct has been defined to include acts which offend generally accepted standards of conduct within the profession, therefore jeopardizing the interest of the profession and the public it serves. Richardson v. Florida Board of Dentistry, 326 So. 2d 231, 233 (Fla. 1st DCA 1976).

12. Guarding a post is the essence of a security officer's duty. By sleeping on duty, Alcindor failed to provide the security of the facilities of Flexible Foam and of the food which

    L.S.G. was providing for consumption by the public traveling by plane.

13. The Department has by Final Order found that sleeping on an assigned security post is misconduct pursuant to Subsection 493.6118(1)(f), Florida Statutes. See Department of State, Division of Licensing v. Jonas Mercier, 21 FALR 595 (Fla. Dept. of State 1998); Department of Licensing v. Arthur William Francis, 21 FALR 569 (Fla. Dept. of State 1998); Department of State, Division of Licensing v. Frank Giordano, 19 FALR 196 (Fla. Dept. of State 1996); Department of State, Division of Licensing v. Gerald Brown, 18 FALR 3951 (Fla. Dept. of State 1996).

14. In Counts 1 and 2 of the Administrative Complaint, the Department alleged that Alcindor was sleeping while on duty on February 14 and September 4, 1998, respectively. The evidence does not establish that Alcindor was licensed on those dates; however, pursuant to Section 493.6118(1), Florida Statutes, unlicensed persons engaged in activities regulated under

    Chapter 493, Florida Statutes, may be disciplined for the grounds listed in Section 493.6118(1), Florida Statutes.

15. The Department has established by clear and convincing evidence that Alcindor violated Subsection 493.6118(1)(f),

    Florida Statutes, by sleeping while on duty on February 14, 1998, September 4, 1998, July 11, 1999, and July 20, 1999.

16. No guideline penalty exists for a violation of Section 493.6118(1)(f), Florida Statutes; therefore, pursuant to Section 493.6118(2), Florida Statutes, the Department may take one or more of the following actions: issue a reprimand, impose an administrative fine, place the licensee on probation, and suspend or revoke the license.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Erique Alcindor violated Subsection 493.6118(1)(f), Florida Statutes, and revoking his Class "D" Security Officer License No. D93-01789.

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

SUSAN B. KIRKLAND

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 April, 2000.

COPIES FURNISHED:

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

Douglas D. Sunshine, Esquire Department of State

Division of Licensing

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

Erique Alcindor

10428 Northwest Fifth Avenue Miami, Florida 33150

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: 99-005359

Orders for Case No: 99-005359