The Issue The issue for consideration in this case is whether A-1 Security and Detective Agency’s Class B security agency license, and Mr. Rozzi’s Class MB security agency manager license should be disciplined because of the matters set out in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, between May 5 and August 4, 1997, the Petitioner, Department of State, Division of Licensing (Division) was the state agency responsible for the licensing of security agencies and security agency managers in Florida. Respondent, A-1 Security and Detective Agency, Incorporated (A-1) held a Class “B” security agency license number B89-0115; and Respondent, Stephen V. Rozzi, held a Class “MB” security agency manager’s license number MB89-00186. Respondent Rozzi was President and operating manager of A-1. At some point during the period in issue, Gary Q. Floyd, an investigator with the Division, received a call from the owner of another security agency who reported a potential problem. At the time, Mr. Floyd was nearby and responded immediately to the apartment complex which belonged to a client of the individual who had called in. His review of the security logs revealed abnormal entries. Returning to the Division office, Floyd checked on the license status of the guard in question who had made the questionable entries and found that this guard was not licensed. The guard, Carmen Santiago, had applied for a class “D” license as a security guard, but because of a prior disciplinary problem out-of-state, the Division had indicated its intent to deny the license. Santiago was employed by Respondent, A-1. Coincidentally, the following morning, Respondent Rozzi came to the Division office on another matter and Floyd showed him the questioned logs. Respondent agreed that the entry was unusual, but said he had terminated Santiago from employment with A-1 as a guard on July 30, 1997, before the date of the questioned entry. Floyd asked Rozzi which guard had worked on the site on Wednesday, July 30, 1997, and on Thursday, July 31, 1997, after Santiago had been terminated. Respondent indicated the replacement guard was a Mr. Michelin. The log entries in question, which got the interest of Floyd, indicated that Santiago, who was not properly licensed as a Class “D” security guard, had served as such at the Whisper Woods Apartments. By pre-hearing stipulation dated June 10, 1998, Rozzi agreed that he had employed Santiago at Whisper Woods Apartments during the period July 30 to July 31, 1997, and that Santiago did not have the proper license at the time. Rozzi indicated at hearing that he received notice from the Division to the effect that Santiago’s application for licensure as a security guard was being denied, but claims he did not receive the notice until he picked up his mail at about 9:00 p.m., on July 31, 1997. As soon as he got that word, Rozzi claims, he called Santiago at home but was unable to reach him. Nonetheless, he left word on Santiago’s answering machine for him not to report for work that evening. In his report to the Division made previously, he indicated he had fired Santiago on July 30, 1997. At hearing Rozzi claimed he back-dated the firing to the date he received the information on the denial, which would have been July 30, not July 31, 1997. However, Rozzi had already indicated he had notified Mr. Michelin, who was scheduled to work on July 30 and 31 at Fletcher Woods Apartments, to go instead to Whisper Wood Apartments to relieve Santiago. Mr. Carter, another employee, was to take Michelin’s place at Fletcher Wood Apartments. When asked to asked to explain the inconsistencies, he could not do so. Carter, when interviewed by Floyd on August 5, 1997, as a part of the investigation, stated he did not work at Fletcher Woods Apartments that night nor has he ever worked there. Carter also indicated that when he was contacted by Rozzi shortly before August 5, 1997, Rozzi told Carter, to say, if he were asked, that he had worked at Fletcher Woods on the night of July 31, 1997. When Floyd advised Rozzi of Carter’s story, Rozzi still declined to change his version. Santiago is disqualified from licensure as a security guard in Florida because of his conviction of a felony in another state. Nonetheless, he applied for a security guard license in Florida in April or May 1997. At the time he applied, he received a temporary Class “D” license which allowed him to work pending action on the permanent license application, and he started work at A-1 as a security guard at different locations wherever he was posted. From time to time, including on July 30 and 31, 1997, he worked at Whisper Woods Apartments. On July 30, 1997, Santiago went to work at 4:00 p.m., intending to stay until relieved at the end of his shift, at 1:00 a.m., on July 31, 1997. At the time he went to work, he did not know that his application for licensure had been denied, nor did he know of the denial when he went to work on July 31, 1997. He claims he did not go home after work on either July 31 or early on August 1, 1997. Santiago claims he first learned of the denial when he got home later in the day on Friday, August 1, 1997, to find Floyd at his door. During the conversation he had with Floyd which followed, Floyd advised him that his license had been denied. This was the first he had heard of the denial, he claims. Santiago indicates that as soon as Floyd told him that, he left Floyd in his apartment and immediately went to his mailbox where he found the denial letter from the Division. There is some evidence to indicate that Santiago told Floyd in another interview prior to the hearing, that he had received the letter informing him of the denial on either July 30 or July 31, 1997. At hearing he claims that he was referring to a letter from the Division soliciting more information. This contention is rejected, however, since it is considered unlikely the Division would seek additional information and reject the application almost concurrently with the request. After Floyd left Santiago on August 1, 1997, Santiago immediately called Rozzi to tell him he could no longer work. Santiago claims Rozzi was upset with him when he called, claiming that he, Rozzi had tried to call Santiago a few days earlier to tell him not to go to work, but Santiago had not received the message or called him back. However, Santiago was at work at Whisper Woods Apartments from 4:00 p.m., on July 30, 1997, until 1:00 a.m., on July 31, 1997, and again that evening, and no one came to the job site either evening to talk with him about his status. This was, he claims, even after he told Rozzi that he, Rozzi, was going to get a letter indicating Santiago’s license was denied. Santiago claims that at no time after that notice did Rozzi terminate him or advise him he would be terminated when the letter came in. Rozzi contended at hearing that the first time he heard anything about the problem with Santiago working was on August 1, 1997, when he was in the Division office on a probation matter. It was at that time that Floyd showed him the logs from Whisper Woods Apartments and asked him about what appeared to be differences in the handwriting on them. Floyd also asked him at that time if he knew Santiago’s license was going to be denied. Rozzi said then that he had first learned of the problem on July 31, 1997. That same day, Rozzi claims, he made arrangements for someone else to cover that post so that Santiago would not be on duty, and Rozzi insists he did not know that this had not happened until the next day. Analysis of and comparison of the varied stories told by Rozzi regarding when he found out that Santiago’s license was being denied results in the conclusion that Rozzi found out on July 30, 1997. Had he not known, he would have had no reason to contact Michelin and tell him to switch duty assignments or to call Santiago and leave the message not to go to work any more. However, Michelin did not testify at the hearing, and the evidence of what he told Floyd regarding this is hearsay evidence. Even if Rozzi received the notice on July 30, 1997, as it appears, by his own admission he did not receive it until mid- evening, at a time when Santiago would have already been at work on the 4:00 p.m. to 1:00 a.m. shift. There is no way he could have reached Santiago that evening. Knowing this, Rozzi still did not make any effort to contact Santiago by going to the work site and relieving him by taking a relief guard with him. Consequently, it is found that regardless of which day Rozzi found out about Santiago’s disqualification, he did nothing to ensure that Santiago did not serve as a security guard without a license. Merely calling Santiago and leaving a message on the answering machine is not enough. At the least, he should have gone to the site to insure Santiago was not on duty. At this initial interview, Floyd also showed Rozzi a copy of one of A-1’s invoice forms which reflected at the bottom that the firm was available to perform certain tasks which were limited to a licensed detective agency and not permitted to a security agency. Rozzi indicated that he had copied the information from an advertisement of another agency, but assured Floyd that A-1 was not doing the unauthorized work. No evidence was introduced to indicate it was, and it is so found. Rozzi agreed to remove the inappropriate language from any form or communication used by the firm immediately. He did so. On December 31, 1996, the Director of the Division of Licensing entered a Final Order in Case No. C96-00855 relating to the two Respondents herein, adopting and incorporating the terms of a Stipulation and Settlement entered into between the division and the Respondents in that case. None of the documentation submitted in connection with that case indicates what offenses were alleged to have been committed by either Respondent. The terms of the Stipulation and Settlement called for the Respondents’ licenses to be placed on probation for a period of two years, and for Respondents to pay an administrative fine of four thousand dollars.
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 finding Respondents guilty of employing an unlicensed employee to perform services which require the possession of a license; of advertising the business of a private investigative agency without possessing the proper license; of failing to respond truthfully to questions asked by an authorized investigator during an official investigation; and of violating the terms of probation by committing violations of Chapter 493, Florida Statutes. It is further recommended that Respondents’ class “B” and Class “ MB” licenses as a security agency and security agency manager respectively, be revoked. DONE AND ENTERED this 25th day of August, 1998, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 1998. COPIES FURNISHED: Douglas D. Sunshine, Esquire Department of State Division of Licensing The Capitol Mail Station 4 Tallahassee, Florida 32399-0250 Rayford H. Taylor, Esquire Stiles, Taylor, Grace & Smith, P.A. Post office Box 1140 Tallahassee, Florida 32302 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 32399-0250
Findings Of Fact In 1982 Petitioner erected a stilt home on the beachfront lot located at 926 Eldorado Avenue. The property is zoned RS-50. Prior thereto the property had been vacant and fenced with a four-foot chain link fence to keep trespassers off the property. The original fence was erected before the zoning regulations were passed, and upon passage of these regulations the fence became nonconforming. This fence was removed to facilitate construction of the residence and, when Petitioner applied for a permit to replace the fence, he was told he needed a variance and the proceedings leading to this appeal were started. His application for a permit came within less than one year from the time the fence was removed. Property in the vicinity is characterized by the use of four-foot chain link fences. The property immediately to the north of Petitioner's property has a four-foot chain link fence across the front of the property. Most of the other fences in the area are located on the sides of the property. Although there is a public access to the beach in the near vicinity of Petitioner's property, people cross Petitioner's property to get to the beach, park in his driveway, discard litter on his property, and even use the private outdoor shower on his mother's adjacent property. The regulations would allow Petitioner to erect a 30-inch fence on the front of his property. This would not contain the large dog Petitioner has. If the front fence were set back to the front of Petitioner's house and from each corner thereof run to the fence at each side of his property, this would not keep trespassers off his property, because people could walk up his driveway and under the stilt house.
Findings Of Fact At all times relevant hereto, respondent, Bertin C. Tash, held land surveyor license number LS0002292 issued by petitioner, Department of Professional Regulation, Board of Professional Land Surveyors. Respondent currently resides at 1127 Broadway, Riviera Beach, Florida. Tash has held a license with the state since July 2, 1970, and has been in the surveying profession for some twenty-eight years. On or about November 11, 1983, respondent was contacted by a local mortgage broker and requested to perform a survey on a residence located at 2814 Saginaw Avenue, West Palm Beach, Florida. A survey was needed since the owner of the residence intended to refinance his property. Tash performed the survey, turned the same over to the broker, and was paid $125 for his services. The drawing was signed and sealed by Tash, and contained the following notation above the certification: "No Corner's Set-All Rights Reserved." There was no mention as to whether the minimum technical standards had been met. On at least three places on the document, Tash referred to the drawing as a "survey." On June 7, 1984, Craig L. Wallace, a land surveyor in Lake Park, Florida, sent a copy of Tash's drawing to the Board's Executive Director and asked if the notation above the certification was permissible, and whether Tash's failure to refer to minimum technical standards was correct. This inquiry prompted the instant proceeding and resulted in the issuance of an administrative complaint. It is undisputed that the document prepared by respondent is a survey and subject to the minimum technical standards set forth in Chapter 21HH-6, Florida Administrative Code. Expert testimony by witness George M. Cole, Jr. Established that the drawing did not conform with the minimum technical standards in various respects. It did not contain a certification that the minimum technical standards had been met or a description of the type of survey being depicted. It did not reflect the measured distance to the nearest intersection of a street or right-of-way nor did it depict the entire lot being surveyed. Additionally, only one angle was shown on the drawing although agency rules require that all angles and bearings be shown. Finally, there was no boundary monument set as required by the standards. These are required unless monuments already exist at such corners. Although Tash pointed out that fence posts embedded in concrete were already on the corners of the property, agency rules still require that alternative monumentation be set. All of the foregoing deficiencies are violations of the minimum technical standards required for surveys. However, none were intentionally violated. Respondent readily acknowledged that he performed the survey in question. However, he considered the survey to be "minor" since two had previously been performed on the same lot, and his was only for the purpose of refinancing the property. He attributed any deficiencies to poor judgment rather than an intentional violation of the law. Tash has been a professional land surveyor for some twenty-eight years, and there is no evidence that he has been subjected to disciplinary action on any prior occasion. The complaint herein was initiated by another licensed surveyor and not by the consumer who used the survey. The survey was apparently satisfactory as far as the mortgage broker was concerned, and no problems arose at closing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as set forth in the conclusions of law portion of this order. The remaining charges be DISMISSED. Respondent's license should be placed on probation for ninety days and he should be required to pay a $500 administrative fine. DONE and ORDERED this 18th day of September, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 1985.
The Issue Whether Respondent unlawfully discriminated against Petitioner.
Findings Of Fact For many years Mark Dunning Industries, Inc. (MDI), held the contract for trash removal and processing for Naval Air Station, Pensacola, Florida (NAS Pensacola). In the summer of 1995, the contract for these services, for a period beginning January 1996, were the subject of a bid solicitation. The apparent winner of the bid was Ohio Disposal Systems, Inc (ODSI). This bid was contested by MDI. Ultimately, ODSI prevailed in the bid contest and was selected to perform the contract. Performance was to begin on January 1, 1996, however, ODSI was not informed that it was to be the contractor until early December 1995. Petitioner was born on July 12, 1922. He is a U.S. citizen from Puerto Rico, and of Hispanic origin. Petitioner first came to be employed by MDI in the summer of 1994. Petitioner worked on the "hill," which is an elevated portion of the trash dump on board NAS Pensacola. It was his job to weld broken equipment. He also operated two kinds of equipment: a Bobcat, which is a small front-end loader, and a backhoe with a dozer blade mounted on the front. Petitioner was paid about $16.00 per hour as a welder. Victor Cantrel, Petitioner's friend, commenced employment with MDI in July 1995. He worked on the "hill" and also drove the Bobcat and the back-hoe. He would utilize this equipment to push trash into a compactor. In trash-handling parlance, he was known as a "hill man." He was not a welder. He worked closely with Petitioner. Mr. Cantrel was born on June 25, 1972, and is Anglo- American. He was paid about $9.00 per hour. The supervisor of Petitioner and Mr. Cantrel, during the latter months of 1995 while they were working for MDI, was Thomas Lucky. The principal of ODSI was Vince Crawford. On or about December 28, 1995, at the end of the workday, Mr. Lucky informed the employees, including Petitioner, Mr. Cantrel, and a number of trash truck drivers, that there was to be a meeting in the company office near the "hill." Present at the meeting in the office, which commenced around 6:30 p.m., was Petitioner, Mr. Cantrel, Mr. Lucky, several truck drivers, Mr. Crawford, and his wife Cathy. Mr. Crawford informed the assembled employees that he was bringing in all new equipment; that because there would be new equipment, the new employees of ODSI would be able to work 40 hours per week; and that due to the requirement to get his company in shape in time to meet the January 1, 1996, deadline, many of the employees of MDI would be offered jobs with ODSI. After revealing these preliminary matters, Mr. Crawford asked a man named Lee what he did at MDI; this man said that he was a truck driver. Mr. Crawford told him that he was hired with the new company. Then he asked Mr. Cantrel what he did; he said he drove the Bobcat. Mr. Crawford said, "Recycle, huh. You are hired." Mr. Cantrel subsequently filed an employment application. However, he knew that after the announcement at the meeting, he was going to work for ODSI. When Mr. Crawford inquired of two more people, they both responded, "truck driver," and Mr. Crawford informed them that they were hired. When he asked Petitioner, Petitioner said, "Welder." Mr. Crawford then said, "We don't need no welders here." This was the first and last encounter Petitioner had with Mr. Crawford. The next day Petitioner arrived at work at the usual time and was informed that he no longer was employed at that facility. On January 2, 1996, Petitioner presented an employment application to the office at ODSI seeking employment as a "Welder and/or Heavy Equip. Opr." He never received a response. No evidence was adduced that at that time there were job openings for a "welder and/or heavy equipment operator." Additionally, according to Petitioner, no one from ODSI informed Petitioner that he was not qualified. No evidence was adduced at the hearing which indicated that Mr. Crawford noticed that Petitioner was 73 years of age, or that he was a Puerto Rican, or that he was of Hispanic origin. The unrebutted evidence demonstrated that Petitioner was not hired, at the time jobs were available, because Mr. Crawford was bringing in new equipment. New equipment does not require frequent welding and, therefore, Mr. Crawford did not need a welder.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered finding Respondent committed no unlawful employment practice. DONE AND ENTERED this 28th day of March, 2002, in Tallahassee, Leon County, Florida. HARRY L. HOOPER 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 28th day of March, 2002. COPIES FURNISHED: Bruce Committe, Esquire 17 South Palafox Place, Suite 322 Pensacola, Florida 32501 Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 H. William Wasden, Esquire Pierce, Ledyard, Latta, Wasden & Bowron, P.C. Post Office Box 16046 Mobile, Alabama 36616 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue is whether respondent should be disciplined for allegedly operating various security services without a license as charged in the administrative complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: On April 25, 1989, petitioner, Department of State, Division of Licensing (Division), received by mail from an anonymous source a copy of a business card reflecting the name of respondent, Robert D. Wingard, and another individual, and indicating that respondent provided the following services: "Executive & V. I. P. Protection, Undercover Investigation, Alarm Technology, Bonding & Courier Work." The card further represented that Wingard held "Lic. No. 34882-809099." The card listed Wingard's address as 4419 Melbourne Street, Punta Gorda, Florida. After receiving the card, a Division investigator, Daniel J. Cabrera, interviewed respondent in Punta Gorda on May 11, 1989. During the course of the interview, respondent acknowledged to Cabrera that he operated a private investigative service, performed the services of a private investigator, operated a security guard agency and performed the services of a security guard, all under the name of Security Enforcement Specialists. However, Wingard maintained he had all necessary licenses from the state. According to Charlotte County records, Wingard applied for and was issued an occupational license by that county on June 18, 1988. The administrative complaint has used that date as the date on which Wingard commenced providing the above services. An examination of Division records indicated that Wingard did not hold those licenses needed to operate the services described in finding of fact 2. Therefore, all services being provided by Wingard were performed without the proper licensure from the state.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered dismissing with prejudice the administrative complaint issued against respondent. DONE AND ENTERED this 27th day of December, 1989, in Tallahassee, Leon County, Florida. Donald R. Alexander Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 1989.
The Issue Whether Respondent violated Subsection 493.6118(1)(f), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact 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. Alcindor worked as a security officer for Bryant Security Corporation (Bryant) from March 6, 1997, until July 30, 1999. 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. 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. 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. 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.
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
The Issue The issue presented is whether Respondents were negligent by failing to provide proper supervision and control of two security guard employees, as alleged in the Administrative Complaint filed against them, and, if so, what disciplinary action should be taken against them, if any.
Findings Of Fact At all times material hereto, Respondent U.S. Security has held a Class "A" Private Investigative Agency License No. A00-01448; a Class "B" Watchman, Guard or Patrol Agency License No. B00-01042; and a Class "DS" Guard School License No. DS89-00077. At all times material hereto, Respondent Bahram Sedaghat has held a Class "C" Private Investigator License No. C87-00645, a Class "DI" Guard Instructor License No. DI89- 00275, a Class "G" Statewide Gun Permit No. G88-00869, and a Class "M" Manager License No. M90-00046. At all times material hereto, Respondent Bahram Sedaghat has been the Vice-President of Respondent U.S. Security, and Juan Cabrera and Octavio Valdez were employees of Respondent U.S. Security. At all times material hereto, Respondent U.S. Security has provided supervision of its security guards (including Cabrera and Valdez) through patrol supervisors, assistant area managers, and area managers. Pursuant to that three-tier level of supervision, every guard post was checked by a supervisor almost every night as part of Respondent U.S. Security's regular supervisory procedures. For several years, Respondent U.S. Security had in effect a contract with Flamingo Plaza, an industrial complex in Hialeah, Florida, to provide unarmed guard services to Flamingo Plaza. That contract was in effect on October 23, 1989. When Cabrera was first employed by Respondent U.S. Security, he was assigned to perform unarmed guard services at a construction site for the Carnival Cruise Lines building. On his first day at that post, construction workers noticed that he was armed. When Brian Pierce, the area manager, came to the post approximately one hour later, the construction workers advised Pierce that Cabrera was armed. Pierce immediately reprimanded Cabrera, reminding Cabrera that the post was an unarmed guard post and that Cabrera was prohibited from being armed while on duty at that post. He made Cabrera lock his gun in his car. Thereafter, no one saw Cabrera with a firearm at that unarmed post. Cabrera was subsequently reassigned to perform guard services at the unarmed guard post located at Flamingo Plaza. On his first day at that assignment, James Cee, the property manager at Flamingo Plaza, saw Cabrera with a firearm while on duty and reported that to Brian Pierce. Pierce reprimanded Cabrera in front of Cee and instructed him not to return to the post with a firearm since it was an unarmed post. Thereafter, there were no further complaints regarding Cabrera carrying a firearm while at Flamingo Plaza although Cabrera continued his assignment at Flamingo Plaza for approximately three or four more months. After Pierce reprimanded Cabrera for appearing at Flamingo Plaza on his first day with a firearm, however, on one occasion Mark McCray, the assistant area manager, saw Cabrera at Flamingo Plaza wearing a jacket while on duty. Visible below the jacket was the bottom of a holster. Cabrera was specifically ordered by McCray not to wear a holster while on duty at an unarmed post. Cabrera was not armed on that occasion. There were no other reports that Cabrera wore a holster at Flamingo Plaza on any other occasion. On October 23, 1989, a shooting incident involving Cabrera took place at the Flamingo Plaza. Upon being notified of the incident Respondent U.S. Security immediately suspended Cabrera and fired him on the following day. Criminal charges were filed against Cabrera based on that shooting incident, and those charges remained pending at the time of the final hearing in this cause. Petitioner immediately conducted an investigation of the incident and of Respondent U.S. Security's procedures for supervision of its unarmed guard employees. At the conclusion of the investigation, Petitioner determined there were no violations of the statutes regulating the security guard industry and closed its file. Thereafter, Cabrera, while the criminal charges were pending against him, appeared on television and gave statements which directly contradicted the evidence obtained by Petitioner in its investigation. As a result of those statements made by Cabrera and pressure exerted by the news media, Petitioner reopened its investigation and subsequently issued the Administrative Complaint which is involved in this proceeding. Respondents were not aware that Juan Cabrera or Octavio Valdez had firearms in their possession while on duty on October 23, 1989, when their assigned duties did not require firearms. Further, there is no reason that Respondents should have known that Cabrera or Valdez had firearms in their possession on that occasion. It is standard procedure for Respondent U.S. Security's supervisors to provide all security guards with "post orders" prior to each guard beginning a new post assignment. Among other things, this document notifies the guard as to whether the post calls for armed or unarmed personnel. Respondent U.S. Security ensures that the guard reads and understands the post orders prior to beginning his shift. On October 23, 1989, Respondent U.S. Security had procedures set up for the hiring, training, and supervision of security guards, both armed and unarmed. Respondent U.S. Security had in place procedures for taking disciplinary action against employees. Those disciplinary guidelines included the exercise of judgment by the supervisory personnel involved. If an employee did something prohibited, the employee was specifically reprimanded and instructed not to engage in that conduct again. If the employee engaged in the same conduct again, he would be fired immediately for disobeying direct orders. Respondent U.S. Security did not have a specific policy directed at a guard appearing at an unarmed post with a firearm or with only a holster because such conduct simply did not occur. Respondent U.S. Security's procedures for supervision of security guards comply with or exceed the procedures utilized in the industry.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondents not guilty of the allegations contained in the Administrative Complaint filed against them and dismissing that Administrative Complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of January, 1991. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 1991. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-4840 Petitioner's proposed findings of fact numbered 1 and 3-7 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 2 and 10 have been rejected as not being supported by the weight of the credible evidence in this cause. Petitioner's proposed findings of fact numbered 8 and 9 have been rejected as being irrelevant to the issues involved in this cause. Petitioner's proposed finding of fact numbered 11 has been rejected as not constituting a finding of fact but rather as constituting argument of counsel. Respondent's proposed findings of fact numbered 1-12 have been adopted either verbatim or in substance in this Recommended Order. COPIES FURNISHED: Henri C. Cawthon, Esquire Florida Department of State Division of Licensing The Capitol, M.S. #4 Tallahassee, Florida 32399-0250 Norman S. Segall, Esquire Bentata Hoet & Associates and Zamora Segall Lacasa & Schere 3191 Coral Way Third Floor, Madison Circle Miami, Florida 33145 The Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250
The Issue The issue is whether Respondent, Ideal Security Services, Inc. (“Respondent or Ideal”), retaliated against Petitioner, John Mercurio (“Petitioner”), for exercising his right to file a complaint on an alleged unlawful employment practice pursuant to section 760.10, Florida Statutes (2019).1/
Findings Of Fact Ideal is an employer as that term is defined in section 760.02(7). While the exact number of employees is not reflected in this record, the evidence established that Ideal employs greater than 15 employees. Ideal provides security officers to different locations for access control and on-site patrol. Petitioner worked for Respondent as a security officer from June 20, 2018, through February 7, 2019. At the time he was hired by Ideal, Petitioner was informed in writing of the company’s “Interchange” practice, which provides: Although employees generally are hired to work at one specific client location or facility, the company (Ideal Services, Inc.) uses its Guard Force INTERCHANGEABLY to meet its needs: In case of cancellation of any accounts, reduction or increase in hours provided, or an employee who may request a transfer. Also Ideal Services, Inc. wishes to point out that they DO NOT guarantee a full 40 hour work week. Overtime is given to employees depending on where the overtime will occur and the availability of employees to work an assignment. Ideal Services, Inc. wishes to also point out that hourly pay rates will depend on job placement as some client assigned jobs will carry higher pay rates than others. It is therefore Ideal Services, Inc.’s policy to inform all individuals who are applying for employment that Ideal Services, Inc. DOES NOT HIRE for only one site at one set pay rate . . . because both of these are subject to change. On the date he was hired, Petitioner signed a copy of the above policy statement, acknowledging that he had read and understood its contents. Petitioner’s first assignment was to provide security at a Krispy Kreme Donuts retail location, an assignment which carried a pay rate of $9.50 per hour. In July 2018, Petitioner was assigned to several other locations, in addition to the Krispy Kreme location. Those new locations were at Daytona Beach Housing Authority apartments, including the Maley, Windsor, and Trails apartment complexes. The public housing assignments carried a pay rate of $8.50 per hour. As of August 2018, Petitioner was no longer assigned to the Krispy Kreme location, but rather was working exclusively at the public housing locations. In December 2018, another Ideal security guard was newly assigned to the same public housing complex as Petitioner. It was clear to Petitioner that this individual was a racist based on his words and actions. While standing next to Petitioner, the new security officer referred to the building residents as "monkeys." It was clear to Petitioner that this remark was made in reference to the African-American residents of the complex. Dan Montrose, the senior security officer and Petitioner’s partner, was also within earshot when the newly assigned officer made the derogatory remark. Petitioner was stunned by the racist comment, especially since Mr. Montrose’s wife is an African-American female. Petitioner also testified that on another occasion, the new officer posted a picture of a Caucasian baby on the common area's fridge with an arrow that said, "Dan" on it, as well as a black finger/arm covering the baby's mouth which said, "Dan's wife." While Petitioner’s first impulse was to report the above racist incidents to his employer, at the request of Officer Montrose he did not immediately do so. However, while the exact date of the conversation is not of record, sometime in the second or third week of December 2018, Petitioner reported the “monkey remark” to Ideal’s Manager and CFO, Diane Cox. Ms. Cox assured Petitioner that she would discuss the racist comment with the offending security guard. Ms. Cox testified that the offending security guard was given a verbal warning for his inappropriate comment, but was not otherwise disciplined because he had worked for the company for many years without incident. When Ms. Cox spoke with the offending security guard about his inappropriate remark, she did not raise the issue of the racist picture that had been posted on the common area refrigerator. According to the testimony of Ms. Cox, this is because she had not been informed by anyone about the existence of the picture, and first became aware of it when she read Petitioner’s Complaint. Ms. Cox testified that had she been informed of the racist picture, disciplinary action would have been taken against the offending employee. Again, while the exact date is not of record, sometime in late December 2018, Petitioner requested a copy of his payroll records from Ms. Cox. While gathering the records for Petitioner, Ms. Cox discovered that Petitioner’s rate of pay had erroneously not been reduced from $9.50 per hour to $8.50 per hour when he was transferred from the Krispy Kreme location to the public housing locations. Upon discovering this accounting error, Ms. Cox informed Petitioner that effective immediately his rate of pay while on duty at the public housing locations would be adjusted to $8.50 per hour, but that Ideal would not be attempting to recoup the overpayments that had been made over the previous months, since the error had been theirs. Respondent offered in evidence payroll records which demonstrated that all Ideal security guards assigned to the public housing locations were paid at the rate of $8.50 per hour. At about the same time as Petitioner’s downward rate adjustment, another Ideal security guard requested that he be assigned an additional eight-hour shift in order to bring him to 40 hours per week. In an attempt to accommodate this request, Ms. Cox contacted several of the Ideal security guards, including Petitioner, to inquire as to whether any wished to relinquish an eight-hour shift. Petitioner advised Ms. Cox that he did not want to give up an eight-hour shift, and that request was honored by Ideal. The timing of Petitioner’s reporting of the racist remarks to Ms. Cox; Petitioner being informed that his hourly rate was being reduced; and Petitioner being invited to give up a work shift; is unfortunate. Because of the temporal proximity of these events, it is understandable that Petitioner concluded that the reduction in his pay rate and attempted reduction in his assigned hours were in retaliation of his reporting the racist remarks. However, the evidence does not prove a causal link between Petitioner's complaint and the adverse action he suffered. Rather, the credible testimony of Ms. Cox established legitimate nonretaliatory reasons for how Petitioner was treated, and there is no evidence that the reasons articulated by Ms. Cox were a pretext for retaliation. Petitioner failed to persuasively prove any incidents of retaliation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Ideal Security Services, Inc. did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 16th day of January, 2020, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of January, 2020.
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged by Petitioner in her Employment Charge of Discrimination.
Findings Of Fact During all times material to this case, Petitioner was employed by Respondent as a park ranger at Alafia River State Park in Lithia, Florida. On January 1, 2010, Petitioner became a full- time park ranger, and from this date through June 5, 2014, Petitioner was supervised by Coy Helms, the manager for Alafia River State Park. Respondent terminated Petitioner’s employment for “poor performance and conduct unbecoming a public employee.” The events that led to Petitioner’s termination from employment with Respondent occurred on March 28, 2014. Petitioner is a 40-plus-year-old Christian female, who identifies as being of Greek and Native American origin. Petitioner describes her skin color as “olive.” Background Information On November 18, 2013, Petitioner received a written reprimand from Coy Helms, who at the time served as park manager at Alafia State Park and Petitioner’s immediate supervisor. Petitioner was reprimanded for insubordination and conduct unbecoming a public employee. According to the reprimand, Petitioner had interactions with certain park volunteers that resulted in complaints being filed with Mr. Helms. The written reprimand advised that “THIS IS AN OFFICIAL WRITTEN REPRIMAND [and that] FUTURE VIOLATIONS MAY RESULT IN FURTHER OR MORE SEVERE DISCIPLINARY ACTION, UP TO AND INCLUDING DISMISSAL.” Petitioner refused to sign the reprimand when the same was presented to her by Mr. Helms. In early December 2013, a few weeks after receiving the written reprimand, Petitioner verbally reported to Valinda Subic that during the summer of 2011, Petitioner was inappropriately touched on the ear by her co-worker, Ronald Stevens. Ms. Subic advised Rae Kelly, from Respondent’s bureau of human resource management, of Petitioner’s complaint, and on December 6, 2013, Ms. Subic and Ms. Kelly contacted Petitioner to get a statement from her about the incident. Petitioner advised that she did not wish to make a statement about the incident but would provide follow-up documentation in support of her harassment allegations at a later time. After several unsuccessful attempts to secure from Petitioner information supporting her harassment allegations, Ms. Kelly informed Petitioner that if the information that Petitioner promised was not received by March 12, 2014, the harassment allegation investigation would be closed. There is no evidence of record indicating that Petitioner ever provided additional information to Respondent in support of her allegation of harassment by Mr. Stevens. Termination of Employment On March 28, 2014, at approximately 7:30 a.m., Petitioner met with Mr. Helms to discuss work plans for the day. It was understood that Petitioner would be doing yard maintenance work at the park’s north gate. In addition to the yard maintenance work, Mr. Helms assigned Petitioner an additional work-related task of placing an out-of-order sign on the restroom facility near the north gate. In order to perform her work-related tasks, Respondent assigned Petitioner a DEP-owned Ford Ranger pick-up truck. Mr. Helms, within a few hours of assigning tasks to Petitioner, went to the north gate area to verify that Petitioner had completed her assignments. When Mr. Helms arrived at the north gate, he did not see Petitioner. Mr. Helms noted that the out-of-order sign had been placed on the restroom as directed, but that Petitioner had failed to perform the yard maintenance work. Seeing that Petitioner had not completed her work assignment, Mr. Helms then searched for Petitioner throughout the park but was unable to locate her. Mr. Helms then exited the park and went to a nearby Circle K convenience store in a further attempt to locate Petitioner. After waiting for some period of time at the Circle K, Mr. Helms observed Petitioner, while driving her assigned Ford Ranger pick-up truck, enter the convenience store parking lot. Petitioner parked the truck, exited the vehicle, walked towards the store, and then returned to the vehicle without entering the store. Upon reentering the vehicle, Petitioner drove back to the state park. Respondent’s email records show that on April 3, 2014, Mr. Helms submitted a written narrative to Ms. Subic wherein he outlined what he observed on March 28, 2014, with respect to Petitioner, her whereabouts, and her use of DEP’s vehicle. On April 7, 2014, Ms. Subic directed Mr. Helms to speak with Petitioner about what he observed on March 28, 2014. On April 10, 2014, Mr. Helms met with Petitioner to discuss her actions of March 28, 2014. Petitioner testified that during this meeting with Mr. Helms, she explained that on the morning of March 28, 2014, after placing the out-of-order sign on the restroom near the north gate, she left the park in her assigned DEP vehicle to go to the Mobil station to get gas for the vehicle. Petitioner also testified that although she did drive to the Mobil station, she did not purchase gas for the vehicle, but instead went to the Sweetbay market located next to the Mobil station where she filled a personal prescription and purchased a sympathy card for the family of a deceased friend. Petitioner further testified that after leaving Sweetbay, she went to Ace Hardware. Petitioner has no specific recollection of why she stopped at Ace Hardware and did not present any evidence indicating that the visit to the store was for work-related reasons. Finally, after leaving Ace Hardware, Petitioner then drove to the home of the bereaved to deliver the sympathy card that she purchased from Sweetbay. In explaining her actions on March 28, 2014, Petitioner claims that Mr. Helms allowed employees to conduct personal business if the personal business did not cause the employees to deviate from their authorized travel route related to DEP official business. Petitioner’s statement regarding Mr. Helms may generally be true; however, under the facts of the present case there is no credible evidence that Petitioner left the park on March 28, 2014, for anything other than reasons related to the handling of her personal affairs. Succinctly stated, Petitioner put 50 miles on DEP’s vehicle on March 28, 2014, and none of these miles were related to the operation of Alafia River State Park. By correspondence dated April 28, 2014, Scott Robinson, on behalf of Respondent, informed Petitioner that it was the intent of Respondent to terminate her employment with the agency for reasons related to her actions of March 28, 2014. Following Petitioner’s predetermination conference, Mr. Robinson, by correspondence dated June 5, 2014, informed Petitioner that her employment was being terminated due to her actions of March 28, 2014. Mr. Robinson also informed Petitioner that the written reprimand she received on November 18, 2013, was a factor in Respondent’s decision to terminate her employment. Petitioner did not offer any evidence, direct or circumstantial, that in any way establishes that she was subjected to discriminatory animus, or that Respondent’s decision to terminate her employment was motivated by reasons related to her allegation of sexual harassment by Mr. Stevens.1/ Respondent had legitimate non-discriminatory reasons for terminating Petitioner’s employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that Respondent, Florida Department of Environmental Protection, did not commit unlawful employment practices as alleged by Petitioner, Catherine M. Lecas, and denying Petitioner's Employment Charge of Discrimination. DONE AND ENTERED this 30th day of August, 2016, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 2016.
