Findings Of Fact Based on the documentary evidence received, the demeanor of the witnesses while testifying and the entire record compiled herein, the following relevant facts are found. By letter dated October 18, 1982, Mr. General G. Foreman, Petitioner herein, was advised that his application for Class "D" and "G" unarmed/armed security guard licenses had been denied based on "fraud or willful misrepresentation in application for or in obtaining a license." Chapter 493.319(1)(a), Florida Statutes. Petitioner timely applied for a formal administrative hearing pursuant to Chapter 120.57(1), Florida Statutes, concerning the denial of his application for Class "D" and "G" unarmed/armed security guard licenses by the Division of Licensing. 1/ Documentary evidence herein reveals that the Petitioner has been arrested ten times during the period April, 1950 through May, 1982. On Petitioner's application filed during approximately July, 1982, he listed two arrests during the period March, 1955 through approximately November, 1970. Petitioner listed (on the subject application) a trespassing charge which occurred during April, 1950, the outcome of which resulted in a conviction, and during November, 1969 or 1970, a rape charge which was "thrown out, dismissed." In the processing of applications for guard licenses, the Respondent conducts background investigations through fingerprint checks with the Federal Bureau of Investigation, the Florida Department of Law Enforcement and other local law enforcement agencies. The Respondent reviewed a "rap" sheet from the Florida Department of Law Enforcement (FDLE) and based on a consideration of the ten (10) occasions which the Petitioner had been arrested, an administrative determination was made that the Petitioner failed to fully disclose arrests. For that reason, Petitioner's application for the above-referred guard licenses was denied. (Testimony of Debbie Richards, Respondent's guard license application investigator). The Petitioner listed the tow charges which "bears" on his mind and the other arrests were not listed since they had no "bearing on his mind." Petitioner contends that he made no effort to "hide" anything. Further, Petitioner related that he, to this date, is unable to recall, with any specificity, the exact number of times that he has been arrested.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent, Department of State, Division of Licensing, enter a Final Order denying Petitioner's application for statewide Class "D" and "G" security guard licenses. 2/ RECOMMENDED this 3rd day of February, 1983, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1983.
The Issue Whether Petitioner should be granted a Class "D" Security Officer license.
Findings Of Fact Petitioner, Cherubin Bastien (Bastien) filed an application with Respondent, Department of State, Division of Licensing (Department) for a Class "D" Security Officer license on July 1, 1994. The Department denied Bastien's application by letter dated August 24, 1994. At final hearing the only basis for denial at issue was that Petitioner was currently serving felony probation. On October 14, 1993, Bastien was sentenced, in State of Florida v. Cherubin Bastien, Case No. 93-5337CF10, on a charge of aggravated assault (firearm), before the Circuit Court of the 17th Judicial Circuit in and for Broward County, to two and one half years probation, and adjudication was withheld. Bastien's probation will not terminate until April, 1996. Bastien is currently on probation and was on probation at the time that he filed his application on July 1, 1994.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Cherubin Bastien's application for a Class "D" Security Officer License be denied. DONE AND ENTERED this 5th day of May, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 5th day of May, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-219S To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Respondent's Proposed Findings of Fact. Paragraphs 1-6: Accepted in substance. Paragraph 7: Rejected as unnecessary. COPIES FURNISHED: Richard R. Whidden, Jr., Esquire Department of State/Division of Licensing The Capitol, MS-4 Tallahassee, Florida 32399-0250 Cherubim Bastien 2322 Johnson Street, Apt. 1 Hollywood, Florida 33020 Honorable Sandra B. Mortham Secretary of State The Capitol Tallahassee, Florida 32399-0250 Don Bell General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250
The Issue At issue is whether the respondent violated section 493.6118(1)(n), Florida Statutes, as alleged in the Administrative Complaint, and, if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and the entire record of this proceeding, the following findings of fact are made: During the period of time specified in the Administrative Complaint, May 19, 1994, through October 10, 1994, 24-Hour Security held a Class "B" Security Agency License, number B91-00117. From May 19, 1994, through October 10, 1994, Richard R. Cullen was president of 24-Hour Security and held, among other licenses, a Class "M" Manager License, number M86-00152. 24-Hour Security, whose only office is located at 1515 South Federal Highway, Boca Raton, Florida, is in the business of providing security guards to businesses and condominiums. It employs licensed security guards and trains and supervises them to ensure that they adequately perform their duties and carry out the instructions of 24-Hour Security's clients. From May 19, 1994, through October 10, 1994, Michelle T. Reilly was employed by 24-Hour Security and worked as assistant to Mr. Cullen. She began working for 24-Hour Security in September 1992 and has always been highly regarded as an employee by Mr. Cullen. He has trained her in all aspects of the private security service business in order for her to get the experience necessary to qualify for a chapter 493 manager's license. Prior to February 16, 1995, she had never held any type of license authorized by chapter 493 of the Florida Statutes. Mr. Cullen was aware that she was not licensed. Since the agency's inception, Mr. Cullen has designated himself manager of 24-Hour Security and has considered himself ultimately responsible for the operation of the agency. During the period of time at issue in this proceeding, Ms. Reilly's business cards identified her as "Branch Manager," and she was identified as such by licensed employees of 24-Hour Security. On one occasion during the Department's investigation, Ms. Reilly expressly identified herself to an investigator of the Department as manager of 24-Hour Security. During the period of time at issue in this proceeding, in addition to performing secretarial and bookkeeping duties, Ms. Reilly assisted Mr. Cullen in (1) hiring and training licensed security guards; (2) preparing daily work schedules for the guards; (3) preparing post orders outlining the duties a guard is to carry out at a particular post, including the client's special instructions or requirements; (4) supervising the operation of the agency's dispatch center; (5) addressing clients' problems; (6) consulting with clients regarding proper security precautions; (7) conducting post inspections to ensure that the guards are at their posts, properly uniformed and carrying out their responsibilities; and (8) writing security proposals for clients and in developing new accounts. In assisting Mr. Cullen with these duties, Ms. Reilly at times was allowed by Mr. Cullen to direct and control the activities of licensed security officers and to operate the agency. When Mr. Cullen was advised by the Department that Ms. Reilly could not function as or be designated as "manager" of 24-Hour Security, he immediately removed her business cards from the office. Ms. Reilly applied for a Class "MB" manager's license on November 9, 1994. Her application was denied by the Department by letter dated January 17, 1995, because she had "not demonstrated the lawfully gained experience or appropriate training" required for licensure. Ms. Reilly was issued a Class "D" Security Officer license on February 16, 1995.
Recommendation Based upon 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 24-Hour Security, Incorporated, and Richard R. Cullen guilty of the violation alleged in the Administrative Complaint and imposing a fine of $500 for this violation. DONE AND ENTERED this 25th day of April 1995, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 25th day of April 1995. APPENDIX The following are my specific rulings on petitioner_s Proposed Findings of Fact. Paragraphs 1 through 9: Adopted in substance in Findings of Fact numbered 1 through 8. The following are my specific rulings on respondent_s Proposed Findings of Fact. Paragraph 1: Adopted in substance in Findings of Fact numbered 2 and 5. Paragraph 2: The proposed finding of fact in the first portion of the first sentence is rejected as not supported by the evidence. The proposed findings of fact set out in the second portion of the first sentence and in the second, third, fourth, and fifth sentences are rejected as merely summaries of testimony. The proposed finding of fact in the final sentence is rejected as not supported by the evidence. Paragraph 3: The proposed finding of fact in the first sentence was adopted in substance in Finding of Fact numbered 6. The remaining proposed findings of fact are rejected as argument. Paragraph 4: The proposed finding of fact in the first portion of the sentence is rejected as merely a summary of testimony; the proposed finding of fact in the second portion of the sentence is rejected as argument. Paragraph 5: Rejected as unnecessary. Paragraph 6: Rejected as unnecessary. Paragraph 7: The proposed finding of fact in the first portion of the sentence is rejected as unnecessary; the proposed finding of fact in the second portion of the sentence is rejected as not supported by the evidence. Paragraph 8: The proposed findings of fact in the first two sentences are rejected as legal argument. The proposed finding of fact in the last sentence is adopted in substance in Finding of Fact numbered 5. Paragraph 9: The proposed finding of fact in the first two sentences are rejected as unnecessary. The proposed findings of fact in the last two sentences are rejected as argument. Paragraph 10: Rejected as argument. Paragraph 11: Rejected as argument. Paragraph 12: Rejected as argument. COPIES FURNISHED: Kristi Reid Bronson Assistant General Counsel Department of State Division of Licensing The Capitol, M.S. #4 Tallahassee, Florida 32399-0250 Richard R. Cullen, President 24-Hour Security, Incorporated 1515 South Federal Highway Suite 109 Boca Raton, Florida 33432 Don Bell General Counsel Department of State The Capitol Tallahassee, Florida 32300-0250 The Honorable Sandra B. Mortham Secretary of State The Capitol Tallahassee, Florida 32399-0250
Findings Of Fact Based on the exhibits received in evidence and the testimony of the witnesses, I make the following findings of fact. The Respondent holds a Class "D", unarmed security guard license, No. GD-0106713, which was most recently renewed on July 3, 1983. The Respondent also holds a Class "G", statewide gun permit (armed security guard license) , No. GG-0025231, which was issued on July 3, 1983. The Division of Licensing of the Department of State did not approve or deny the Respondent's application for a Class "G" license within a 90-day period from the date of receipt of the application and, accordingly, by operation of Section 120.60(2), Florida Statutes, the Division was required to, and in fact did, issue a Class "G" license to the Respondent. Except for the operation of the 90-day provision in Section 120.60(2), Florida Statutes, the Division of Licensing would not have issued the Respondent a statewide gun permit because of the Respondent's criminal record. For the same reason, it was a mistake for the Division of Licensing to renew the Respondent's Class "D" license in 1983. On February 28, 1977, the Respondent was arrested on the roof of a department-store and charged with burglary, to which he entered a plea of nolo contendre. Adjudication was withheld and the Respondent was placed on probation for 5 years. During the summer of 1980, the Respondent and two of his friends apprehended two thieves who had stolen some personal property from a vehicle. Later, the Respondent appeared in court to testify against the two thieves. On April 15, 1981, the Respondent was arrested for grand larceny. On November 9, 1981, the Respondent entered a plea of guilty to a larceny charge of failing to redeliver a hired motor vehicle. Adjudication was withheld and the Respondent was placed on probation for one year.
Recommendation Based on the foregoing it is recommended that the De- partment of State issue a Final Order which (a) Would revoke Respondent's Class "D" and Class "G" licenses and (b) would order Respondent to forthwith return such licenses to the Department of State. DONE and ORDERED this 25th day of September, 1984, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of September, 1984 COPIES FURNISHED: Honorable George Firestone Secretary of State Department of State 1801 The Capitol Tallahassee, Florida 32301 James V. Antista, Esquire Senior Attorney Department of State The Capitol Tallahassee, Florida 32301 Mr. Stuart Phillip Coon 12824 Southwest 114 Terrace Miami, Florida 33183
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 Question 13 on Petitioner's application for an unarmed guard license reads as follows: "Have you ever been arrested". In response thereto, Petitioner answered in the affirmative and, in accordance with the instructions to list all arrests, stated that he had been arrested for breaking and entering in 1965, at which time he served one year in prison; and that he had been arrested for armed robbery in 1969, at which time he was sentenced to five to ten years in prison. No other arrests were listed. Petitioner's application was signed under oath and recited that all information contained in the application was true and correct. Petitioner is presently on probation from his armed robbery conviction, and his probationary period will not expire until March 4, 1981. His civil rights have not been restored from that conviction, although he intends to apply for restoration upon completion of his parole period. At the time that the Petitioner's employer was assisting him in completing his application, Petitioner indicated to Mr. Martin that Petitioner had been arrested and convicted of offenses in addition to those revealed on his application. Those omitted arrests and/or convictions include fighting and unlawful assembly in 1962; assault with a knife in 1964; buying, receiving and concealing stolen property in 1966; assault and battery in 1968; and prison breach in 1974. Although Petitioner's parole officer believes he is being rehabilitated, Ms. Barrett, in the two and one-half years she has known Petitioner, only speaks to him on the telephone once a month and sees him every two months. More importantly, Ms. Barrett is unable to state that she would hire Petitioner as a security guard at her home.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED THAT: A final order be entered denying Petitioner's application for a Class "F" Unarmed Guard License. RECOMMENDED this 20th day of June, 1980, in Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Mr. John C. Henderson 1771 North East 176th Street North Miami Beach, Florida 33162 W. J. Gladwin, Jr., Esquire Assistant General Counsel Department of State The Capitol Tallahassee, Florida 32301 Mr. Don Hazelton, Director Division of Licensing Department of State The Capitol Tallahassee, Florida 32301 The Honorable George Firestone Secretary of State The Capitol Tallahassee, Florida 32301
The Issue The issue in this case is whether Respondent's Class "D" Security Officer License and/or Class "G" Statewide Firearm License should be revoked or otherwise disciplined based upon the alleged violations of Chapter 493, Florida Statutes, set forth in the Third Amended Administrative Complaint filed by Petitioner.
Findings Of Fact Based upon the oral and documentary evidence introduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: On or about June 7, 1989, Respondent filed an application for a Class "D" Security Officer License with the Department. The application form asked the applicant whether he had ever been arrested and to list any and all arrests. The application specifically provided that "falsification of this question may be grounds for denial of your license." Respondent answered affirmatively that he had been arrested. The only specific incident listed on the application was an arrest in 1979 for a charge of "asault [sic] with a deadly weapon intemp [sic] to kill Fay N.C. [sic]." The Application also required the applicant to set forth the outcome of all arrests. Respondent replied that the "charges was [sic] drop [sic]." On or about July 17, 1990, Respondent submitted an application with the Department for a Class "G" Statewide Firearms License. The application form for this license included an identical request regarding prior arrests. In response, Respondent checked the box indicating he had never been arrested and wrote "N/A" where he was supposed to indicate the date, charge and outcome of the arrests. Respondent has not provided any explanation for why his Class "D" Application disclosed an arrest in 1979, but his Class "G" Application did not reference this arrest. This discrepancy is not alleged in the Third Amended Administrative Complaint. Petitioner has submitted a certificate from the Cumberland County, North Carolina Superior Court which indicates that a criminal summons was issued for "Angelo Louis Lugo" on or about May 5, 1987, for a charge of "M Assault By Pointing A Gun." It is not clear whether this summons is directed at Respondent nor is it clear whether the Summons was ever served and/or the subject was arrested. The ultimate disposition of this criminal case is not clear. Respondent denies ever being served with the summons referenced in this court record. The evidence was insufficient to establish that Respondent was ever arrested in connection with this matter. Petitioner has submitted a second certified record from the Cumberland County, North Carolina Superior Court, which indicates that Respondent was issued a "Citation" on March 10, 1986, for the charge of "M Shoplifting Concealment Goods." No other evidence or explanation of this record has been provided. Respondent admits that he was issued a Notice to Appear in court after he was caught by store security personnel taking aspirin from a bottle. He testified that he did not list this matter on his applications because he was not "arrested." Instead, he claims that he was merely issued a citation to appear in court. The evidence presented in this case did not refute Respondent's version of the events surrounding this court record. In sum, the evidence was not clear and convincing that Respondent was ever formally "arrested" for this incident. The ultimate disposition of this criminal charge is not clear from the record in this proceeding. Counts III and IV of the Third Amended Administrative Complaint are based upon an incident that occurred on February 9, 1993 between Respondent and Jorge Ruiz. There is a good deal of conflicting evidence regarding this incident. Both Respondent and Ruiz have testified and/or given statements on several occasions about the incident including statements to the police, testimony in a related criminal proceeding against Respondent and depositions taken in connection with a civil lawsuit filed by Ruiz against Respondent, Respondent's employer and the Bank where Respondent worked. It is impossible and unnecessary to resolve all of the conflicts in the differing accounts of the incident as described by Respondent and Ruiz at various times. After considering all of the evidence presented, including the credibility and demeanor of the witnesses, the findings in this Recommended Order are based upon the clear and convincing evidence presented. On February 9, 1993, Respondent was working as an armed security guard at a Barnett Bank in Plantation, Florida. At approximately 1:30 p.m., Respondent was working outside the bank in the vicinity of the drive-thru lanes. He was there to direct traffic and monitor the area. Around this time, Jorge Ruiz pulled into the paved area in front of the drive-thru booths. Ruiz had been to the Bank on numerous occasions in the past and he had often used the drive-thru windows. Ruiz has a very powerful radio in his pick-up truck and he admits that he tends to play music at a loud volume. On at least one prior occasion, Ruiz had proceeded to the drive-thru station with his radio blasting. The tellers had complained about the noise coming through the intercom system. During the week or so prior to February 9, 1993, Ruiz and Respondent had at least one minor confrontation. During this prior instance, Respondent advised Ruiz that he had to turn his radio down before he reached the drive-thru booth because the intercom system picked up the background noise and it interfered with the tellers' ability to communicate with the customers. Ruiz replied that he would turn down the radio when he got to the window. When Ruiz entered the Bank's parking lot on February 9, 1993, his radio was playing loudly. Respondent approached the driver's side window of Ruiz' vehicle and asked Ruiz to turn his radio down. Ruiz responded with a number of obscenities. Respondent told Ruiz that unless he turned his radio down, he could not use the drive-thru facility. Ruiz refused to comply. Respondent stood in front of Ruiz' vehicle and directed him away from the drive-thru lane. Ruiz' vehicle moved forward and bumped into Respondent. Respondent drew his gun and shouted at Ruiz to stop the car and get out. Respondent claims that he intended to hold Ruiz while he called the police. The parties exchanged words and Ruiz' truck again moved forward striking Respondent. Respondent was not knocked down or otherwise injured, however, his gun discharged. The bullet penetrated the windshield of Ruiz' truck and hit the steering wheel. A fragment from the steering wheel struck Ruiz in the neck or chest area, causing a minor wound. Respondent contends that he was justified in drawing his weapon and/or using deadly force "to prevent the escape from custody of a person who committed a felony in his presence." This contention is rejected because there is no evidence that Ruiz was attempting to escape. Furthermore, it is not clear that Ruiz in fact committed a felony, nor does it appear that the use of force was reasonably necessary under the circumstances of this case. Respondent also contends that he was justified in drawing his weapon in self-defense because he was being threatened by a deadly weapon, i.e. Ruiz' truck, and he had no reasonable means of escape. Respondent claims that he was boxed in by a vehicle in front of the truck and had no reasonable way to retreat from the "deadly force" that confronted him. Respondent's contention that he had no reasonable means of escape is rejected as not credible. Contrary to Respondent's claim, the evidence was clear that Respondent had reasonable means of escape. Moreover, there were alternate ways to handle the situation which would have diffused rather than exacerbated the tension and danger. Respondent claims that the gun discharged accidently when the truck hit him. No persuasive evidence was presented to refute this contention. Indeed, in some of his statements, Ruiz admitted that the gun may have gone off by accident when his truck struck Respondent. In sum, it is clear that Ruiz was belligerent and abusive and that his car bumped into Respondent twice. Nonetheless, Respondent's contention that he was justified in drawing his weapon and that he had no reasonable means of escape is rejected. While it can not be concluded from the evidence presented that Respondent deliberately shot at Ruiz, the evidence did establish that Respondent was guilty of negligence, misconduct and/or incompetency when he drew and pointed his loaded weapon at Ruiz. The circumstances did not justify Respondent pointing a loaded weapon at Ruiz. Without question, Respondent failed to demonstrate that level of discretion and caution that is expected of a person licensed to carry a firearm in the course of his employment. After the gun went off, Respondent immediately jumped into the truck and took Ruiz to a nearby hospital where Ruiz' minor injury was treated and he was released.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department of State, Division of Licensing enter a Final Order dismissing Counts I, II, and III of the Third Amended Administrative Complaint filed against Respondent and finding Respondent guilty of the allegations contained in Count IV of that Third Amended Administrative Complaint. As a penalty for the violation, Respondent should be fined $1,500.00, his Class "G" Firearms License should be revoked and his Class "D" Security Guard License should be placed on probation for three years. DONE AND ENTERED this 28th day of December, 1994, in Tallahassee, Leon County, Florida. J. STEPHEN MENTON 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 28th day of December, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2566 Petitioner has not submitted any proposed Findings of Fact. Respondent's proposed recommended order included a section entitled Findings of Fact. However, that section does not include any individually numbered proposed findings of fact and the paragraphs contained in this section of Respondent's proposal include a mixture factual assertions, argument and legal conclusions. The proposal has been fully reviewed and considered. However, because proposed findings of fact have not been separately identified, no rulings are made with respect to Respondent's proposal. COPIES FURNISHED: Henri C. Cawthon Assistant General Counsel Department of State Division of Licensing The Capitol, MS #4 Tallahassee, Florida 32399-0250 James S. Benjamin, Esquire Benjamin & Aaronson, P.A. 100 Northeast Third Avenue, Suite 850 Fort Lauderdale, Florida 33301 Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250
Findings Of Fact Question 13 on the application for unarmed guard license requests that an applicant list any and all arrests and dispositions thereof. The Petitioner responded to this inquiry by indicating that he had been arrested once in 1972 for being drunk, and that he was released. At the hearing it was established that the Petitioner has been arrested more than 100 times on charges of drunkenness, disorderly conduct, and breaking and entering. The Petitioner is a reformed alcoholic. He has had no difficulties with the law since approximately 1972, and he has totally abstained from alcoholic beverages for more than three years. The Petitioner now works closely with a religious group, and he has been awarded custody of his children from a previous marriage. It is apparent the Petitioner has reformed himself, and he is capable of working as an unarmed guard. The Petitioner's failure to reveal the extent of his law enforcement record did not result from a desire to falsify his application, or to fraudulently obtain a license, but rather from his desire to put his past behind him. His failure to fully answer the inquiry is not totally justified, but in view of the outstanding efforts that the Petitioner has made to rehabilitate himself, and the fact that he has worked effectively as an unarmed guard under a temporary permit for some months, the failure is not of overriding importance.
