The Issue Whether Respondent committed the violation alleged in the Administrative Complaint? If so, what disciplinary action should be taken against him?
Findings Of Fact Based upon the evidence adduced at hearing, the parties' stipulations, and the record as a whole, the following Findings of Fact are made: The Department is a state government licensing and regulatory agency. Respondent is now, and has been at all times material to the instant case, the holder of a Class "D" security guard license and a Class "G" statewide firearms license. He has held the former license since May of 1990 and the latter license since September of that year. He has never before been disciplined by the Department. From October of 1991, until June 23, 1993, Respondent was employed by Certified Security Services, Incorporated (hereinafter referred to as "Certified"), a business which provides armed and unarmed security services. Among Certified's clients during the period of Respondent's employment was Winn-Dixie Store No. 343 (hereinafter referred to as "Store 343"), located at 14900 Northwest 6th Avenue in Miami, Florida. Respondent was assigned by Certified to work as a uniformed security guard at Store 343. He regularly drove a cashier at the store named Maria home from work in his car. On the afternoon of June 23, 1993, at around 1:00 or 2:00 p.m., Respondent was standing in the store parking lot conversing with a patron of the store, Sylvia Malgarejo, when he was approached by Maria, who was carrying a package containing a box of Pampers and a bottle of cooking oil. Respondent had no reason to, nor did he, believe that Maria had misappropriated these items from the store. Maria asked Respondent to put the package in his car. Respondent complied with Maria's request. He then continued his conversation with Malgarejo. The conversation did not last long. Olga Campos-Campbell, the store's general merchandise manager, had reported to the store manager that Respondent had shoplifted merchandise from the store. Campos-Campbell and Respondent had an ongoing feud concerning the scope of Respondent's job responsibilities. Campos-Campbell frequently asked Respondent to do things that he believed were outside the scope of his duties as a security guard, and an argument between the two invariably ensued. Based upon Campos-Campbell's erroneous report, the store manager had Respondent detained. Kent Jurney, who assisted the owner of Certified, his wife, in running the business, was contacted and advised of the situation. Jurney responded by going to the store with Certified's general manager, Bill Banco, and confronting Respondent. Respondent's native language is Spanish. Jurney, on the other hand, does not speak or understand Spanish. He communicates in English. Respondent's ability to communicate in English, however, is limited. Respondent tried to explain to Jurney in English how he had come into possession of the Pampers and cooking oil, but Jurney misunderstood him and mistakenly thought that Respondent was admitting that he had stolen the items from the store. Accordingly, he advised Respondent that Respondent's employment with Certified was being terminated effective immediately. The police were also contacted. The police officer who responded to the scene cited Respondent for shoplifting.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Department enter a final order finding the evidence insufficient to establish that Respondent committed the violation of Section 493.6118(1)(f), Florida Statutes, alleged in the instant Administrative Complaint and dismissing the instant Administrative Complaint in its entirety. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 14th day of March, 1994. STUART M. LERNER 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 14th day of March, 1994. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-6941 The following are the Hearing Officer's specific rulings on the "findings of facts" proposed by Respondent in his post-hearing submittal: 1. Accepted as true and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. 2-5. Rejected as findings of fact because they are more in the nature of summaries of testimony elicited at hearing than findings of fact based upon such testimony. COPIES FURNISHED: Henri C. Cawthon, Esquire Department of State, Division of Licensing The Capitol, MS #4 Tallahassee, Florida 32399-0250 C. Ernest Rennella, Esquire 2524 Northwest 7th Street Miami, Florida 33125 Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater, Esquire General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250
Findings Of Fact At all material times, respondent has held a registered Class "B" Security Agency License, No. B86-00092, a Class "DS" Security Officer School/or Training Facility License, No. DS90-00069, a Class "D" Security Officer License, No. D85-2333, a Class "DI" Security Officer Instructor License, No. DI88-00012, and a Class "MB" Manager Security Agency License, No. MB86-00105. At all pertinent times, respondent provided security services to various non-governmental clients in Bay County, Florida, and also furnished security services to its only governmental client, the Federal Correctional Institution in Tallahassee, more than 100 miles from respondent's offices. From January 21, 1991, to June 30, 1991, respondent employed J. C. Barnwell, Terrell Barnwell, Larry Burks, Michael Dicks, Robert Pompey and Darrell L. Smith, none of whom held security officer licenses. They all worked as security officers at the Federal Correctional Institution in Leon County, and did no other work for respondent.
Recommendation It is, accordingly, RECOMMENDED: That petitioner dismiss the administrative complaint. DONE and ENTERED this 1st day of July, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 1992. COPIES FURNISHED: Henri C. Cawthon, Esquire The Capitol, MS #4 Tallahassee, FL 32399-0250 Charles S. Isler, III, Esquire Isler & Banks, P.A. P.O. Drawer 430 Panama City, FL 32402 Honorable Jim Smith, Secretary Department of State The Capitol Tallahassee, FL 32399-0250 Phyllis Slater, General Counsel Department of State The Capitol, PL-2 Tallahassee, FL 32399-0250
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Through RFP-DOT-94/95-4009, entitled "Rest Area Security Services- District Four" (hereinafter referred to as the "RFP"), the Department requested the submission of proposals from "consultants" interested in providing the Department with security services at rest areas on Interstate Highways in St. Lucie, Martin and Broward Counties in the Department's District IV. The "objective" of the RFP was explained as follows in Section 1.0 of Exhibit "A," which was attached to, and incorporated in, the main body of the RFP: To provide appropriately equipped and security personnel at Rest Areas along the Interstate Highways, and to provide protection for the General Public, Department personnel, and all property at locations specified in this Contract (see Exhibit "D," for locations). It is the intent of the Department to protect its personnel, property, and the Public by means of well-trained, alert, interested, and concerned Security Officers. The Contractor must ensure that their Security Officers properly carry out their primary duty to safeguard the General Public, the Department's personnel, and all property. The "services to be provided" to the Department were described as follows in Section 2.0 of Exhibit "A:" The Contractor shall provide qualified, competent, uniformed, and armed Security Officers to provide security services to protect the health, safety, and welfare of all the citizens of and visitors to the State of Florida. The Contractor will be responsible for verifying that the scope of its operations are sufficiently broad and well defined to ensure the maximum protection of property and life and are also consistently managed in an efficient and profes- sional manner. It shall be the responsibility of the Contractor to provide security services as stated herein, within the physical limits of the rest areas and/or welcome stations. Those limits shall begin at the approach taper of the deceleration lane, extend through the rest area and/or welcome station from the edge of the paved shoulder of the main roadway, and terminate at the end of the acceleration taper. The Security Officers will be responsible for monitoring the grounds surround- ing the facility, including, but not limited to: all parking lots, picnic areas, and restroom build- ings. The Contractor shall insure that all employees comply with all applicable laws, ordinances, rules, and regulations set forth by the Department. The security services shall be provided on a continuous 24-hours-per-day and 7-days-a-week (including all holidays) basis. The Contractor shall have sufficient back-up personnel and equip- ment available to immediately replace personnel and/ or equipment that may fail. The Department may modify the type of service, number of hours, or number of employees upon 24-hours-notice in writing. The Contractor shall furnish one or more Security Officer(s) per each Rest Area unit and/or Welcome Station. There are five (5) units in District IV (see exhibit "D" for locations). The Contractor, and every employee of the Contractor assigned to the project, shall comply with the security industry standards referenced in Chapter 493, Florida Statutes. The Contractor shall provide materials and equipment as specified herein. At all times, Security Officers will be courteous and display a professional and friendly manner. The "special requirements" of the contract into which the Department would enter with the winning "consultant" were set forth in Section 3.0 of Exhibit "A," which provided, in pertinent part, as follows: The Department reserves the right to require the Contractor to relieve an employee from duty assignments and/or bar an employee from further service under this Contract. No reason need be given by the Contract Manager. 1/ The Contractor shall obtain and pay for any and all licenses, permits, registrations, and inspections, etc. required for this project's proposal and performance. The Contractor shall comply with all laws, ordinances, regulations, and code requirements applicable to the work contemplated herein. Damages, penalties, and/or fines imposed on the Department or the Contractor for failure to obtain any and all required licenses and/or permits shall be borne by the Contractor. Prior to any employee beginning work pursuant to this Contract, the Contractor's Project Manager shall provide sworn certification to the Department's Contract Manager that each employee (Security Officers and Contract Supervisors) 2/ meets the eligibility criteria as specified herein. The "eligibility criteria" for these "Security Officers and Contract Supervisors" were set forth in Section 18.0 of Exhibit "A," which provided, in pertinent part, as follows: All Security Officers and Contract Supervisors employed by the Contractor under this Contract are required to meet the minimum qualifications and standards regarding background, experience, and health. The suitability of Security Officers and Contract Supervisors for employment pursuant to this Contract must be determined by the Contractor; however, the Department reserves the right to disapprove of the employment of Security Officers and Contract Supervisors due to unsuitability. Minimum Requirements for Security Officers: . . . 8) Must acquire, keep active, and possess on their persons at all times while on duty all personal, professional, and technical licenses or certificates specified in this Contract, or otherwise required for performance of the work required pursuant to this Contract. . . . Minimum Requirements for Contract Security Supervisors Contract Supervisors must meet the eligibility criteria established for the Security Officer classification. . . . Required Documentation: All of the Contractor's personnel (e.g. Security Officers and Contract Supervisors) performing work under this Contract must possess on their person at all times while on duty, and keep current all appropriate cards, certificates, and licenses, as follows (unless the Contractor's personnel is certified and employed as a law enforcement officer or correctional officer and exempted from such licensure requirements pursuant to Section 493.6102(1), Florida Statutes): State of Florida Class "D" License (security guard license) State of Florida Class "G" License (license authorizing individual to bear a firearm) NOTE: The use or possession of a concealed firearm in connection with this Contract is prohibited. State of Florida Driver's License or other State Driver's License which permits the individual to operate a vehicle in the State of Florida. Section 1.7 of the main body of the RFP addressed the subject of the "consultant's" qualifications to provide the services to be performed under the contract. It read as follows: Qualifications for Consultant Services General The Department will determine whether the proposed 3/ is qualified to perform the services being contracted based upon the Consultant demonstrating in its proposal satisfactory experience and capability in the work area. The proposer shall include the necessary experienced personnel and facilities to support the activities associated with this contract. Qualifications of Key Personnel Those individuals who will be directly involved in the project must have demonstrated experience in the areas delineated in the scope of services. Individuals whose qualifications are presented will be committed to the project for its duration unless otherwise excepted by the Project Manager. Authorizations and Licenses The Consultant must be authorized to do business in the State of Florida. Such authorization and/or licenses should be obtained by the proposal due date and time, but in any case, will be required prior to award of the contract. For corporate authorization, contact: Florida Department of State Division of Corporations The Capitol Building Tallahassee, Florida 32399 (904)487-6052 Review of Facilities After the proposal due date and prior to contract award, the Department reserves the right to perform or have performed, an on-site review of the proposer's facilities. This review will serve to verify data and representations submitted by the Proposer and to determine whether the proposer has an adequate, qualified, and experienced staff, and can provide overall management facilities. The review will also serve to verify whether the Proposer has financial capability adequate to meet the contract requirements. In the event the Department determines that the size or nature of the proposer's facilities or the number of exper- ienced personnel (including technical staff) are not reasonably adequate to ensure satisfactory contract performance, the Department has the right to reject the proposal. 4/ Section 1.8 of the main body of the RFP addressed the subjects of "Department reservations and responsiveness of proposals." It read as follows: General The Department reserves the right to accept or reject any or all proposals received and reserves the right to make an award without further discussion of the proposals submitted. Therefore, the proposals should be submitted initially in the most favorable manner. It is understood that the proposal will become a part of the official file on this matter without obligation to the Department. Responsiveness of Proposals All proposals must be in writing. A responsive proposal is an offer to perform the scope of services called for in this Request for Proposal. Proposals found to be non-responsive shall not be considered. Proposals may be rejected if found to be irregular or not in conformance with the requirements and instructions herein contained. A proposal may be found to be irregular or non-responsive by reasons, including, but not limited to, failure to utilize or complete prescribed forms, conditional proposals, incomplete proposals, indefinite or ambiguous proposals, improper or undated signatures. Multiple Proposals Proposals may be rejected if more than one proposal is received from an individual, firm, partnership, or corporation, or combination thereof, under the same or different names. Such duplicate interest may cause the rejection of all proposals in which such proposer has participated. Other Conditions Other conditions which may cause rejection of proposals include evidence of collusion among proposers, obvious lack of experience or expertise to perform the required work, or failure to perform or meet financial obligations on previous contracts, or in the event an individual, firm, partnership, or corporation is on the United States Comptroller General's List of Ineligible Contractors for Federally Financed or Assisted Projects. Waivers The Department may waive minor informalities or irregularities in proposals received where such is merely a matter of form and not substance, and the correction or waiver of which is not prejudicial to other proposers. Minor irregularities are defined as those that will not have an adverse effect on the Department's interest and will not affect the price of the Proposals by giving a proposer an advantage or benefit not enjoyed by other proposers. Section 1.10 of the main body of the RFP provided that "[t]he general terms and conditions of any agreement between the Department and the selected proposer will be guided by State procedures" and that "[e]ach individual, partnership, firm or corporation that is part of the proposer's team, either by joint venture, or subcontract, will be subject to, and comply with, the contractual requirements." Subsection 1.14.2 of the main body of the RFP established 12:00 noon on Friday, May 12, 1995, as the deadline for the submission of proposals in response to the RFP. Pursuant to Section 1.16 of the main body of the RFP, each proposal was to consist of a management plan (worth a maximum of 20 points), a technical plan (worth a maximum of 15 points) and a price proposal (worth a maximum of 65 points). Section 1.19 of the main body of the RFP addressed the subject of "award of contract." It provided as follows: The Department intends to award ONE (1) contract to the responsible and responsive proposer whose proposal is determined to be the most advantageous to the Department. NOTE: CONTRACTOR SHALL EXECUTE AND RETURN AGREEMENT WITHIN TEN (10) CALENDAR DAYS AFTER "NOTICE OF AWARD." IN THIS TIME PERIOD THE CONTRACTOR SHALL DEMONSTRATE COMPLIANCE WITH CONTRACT REQUIREMENTS. FAILURE TO MEET THE REQUIREMENTS WITHIN THIS SPECIFIED TIME WILL SHOW EVIDENCE OF CONTRACTOR'S LACK OF ABILITY TO MEET THE REQUIREMENTS AND THE DEPARTMENT MAY REWARD TO THE PROPOSER WITH THE NEXT HIGHEST SCORE. Proposers seeking Disadvantaged Business Enterprise (DBE) preference points were also required to complete and submit a DBE Preference Certification form, as explained in subsection 1.16.5 of the main body of RFP, which provided as follows: For the purposes of this RFP, a certified DBE shall be certified by the Florida Department of Transportation pursuant to Florida Administrative Code, Rule Chapter 14-78. The Proposer shall address Florida CDBE partici- pation by either themselves or subcontractors. 5/ The Department will add 30 points to the scores of Certified Disadvantaged Business Enterprises (CDBE) proposing as the prime consultant on this project. The Department will add up to 30 points to the scores of firms (Non-CDBE) utilizing Certified DBE's as subcontractors for services or commodities as follows: 30 percent or more of the total project costs- 30 points 25 percent but less than 29.99 percent of the total project costs- 20 points 20 percent but less than 24.99 percent of the total project costs- 10 points 15 percent but less than 19.99 percent of the total project costs- 05 points 0 percent to 14.99 percent of the total project costs- 0 points Complete and submit the DBE Preference Points Certification Form (Form "D") in the Price Proposal, if CDBE preference points are to be considered. On Form "D," proposers had to indicate the following: I, (Name), (Title), of (Name of Firm), herby certify that our firm (is) (is not) a Department of Transportation (Department) certified Dis- advantaged Business Enterprise (DBE). I also certify that our firm's intention regarding subcontracting on the above referenced project(s) to Department certified Disadvantaged Business Enterprises is as follows: (Check One) Intends to subcontract at least 30 percent or more= 30 points Intends to subcontract at least 25 percent but less than 29.99 percent= 20 points Intends to subcontract at least 20 percent but less than 24.99 percent= 10 points Intends to subcontract at least 15 percent but less than 19.99 percent= 05 points Intend[s] to subcontract less than 15 percent work to DBE(s)= 0 points Since I have indicated above that a percentage of total project costs will be subcontracted to certified DBE(s), the firms considered as proposed DBE subconsultant/vendors and the types of services/commodities to be subcontracted are as follows: DBE SUBCONSULTANTS/VENDORS: TYPE OF WORK/ COMMODITIES I understand that the Department will give preference in selection of DBE(S) and to other firms who propose to subcontract at least 15 percent or more of the total project costs to DBE(s). I further understand that five (5) preference points will be added to my proposal score if my firm indicates its intent to sub- contract at least 15 percent but less than 19.99 percent of the services/commodities to DBE(s); and that ten (10) preference points will be added to my proposal score if my firm indicates its intent to subcontract at least 20 percent but less than 24.99 percent of the services/commodities to DBE(s); that twenty (20) preference points will be added to my proposal score if my firm indicates its intent to subcontract at least 25 percent but less than 29.99 percent of the services/commodities to DBE(s); and a maximum of thirty (30) preference points will be added to my proposal score if my firm indicates its intent to subcontract 30 percent or more of the services/commodities to DBE(s) or is a Department certified DBE. On or about May 5, 1995, the Department issued the following addendum to the RFP "to answer and clarify questions presented by a potential proposer:" 6/ Reference the above project in which you have an interest. Please add this letter and enclosed pages into your Request for Proposal. Will DOT permit subcontracting of security services to DBE's? (The DBE would have to comply with all requirements of the RFP regarding security officer qualifications, etc.). 7/ Response: Yes Will the DOT permit proposals which include a "pending" DBE certification for a business applying for DBE certification? Response: To receive performance points a DBE prime contractor must be certified by the May 23, 1995 posting. Will points be awarded to DBE subconsultants/ vendors with a "pending" certification status during the evaluation process? Response: To receive performance points a DBE Subconsultant/Vendor must be certified by the May 23, 1995 posting. 8/ Can DOT provide a list of certified Disadvantaged Business Enterprises? Response: An FDOT DBE Directory is available for review at any District Office or a copy can be obtained from the FDOT Minority Programs Office in Tallahassee by calling 904-921-7370. We have listed below three (3) Certified DBE firms who have shown an interest in providing security services[.] 9/ [T]hey are: American Alarms, Inc. 305-653-7708 Tunjos Trading Company, Inc. 305-621-2668 Universal Private Investigative & Guard Agency, Inc. 407-636-7270 The following ten (10) firms have "Pending" applications as of May 5, 1995, for FDOT-DBE Certification: Alanis Security, Inc. 305-595-8171 Barkley Security Agency 904-856-5646 Delad Security, Inc. 305-691-5772 Ford Patrol & Security 305-836-5544 Jake Ross Detective & Security Agency 904-258-8709 Pacific Security Service, Inc. 305-989-0369 Small Rehab Services & Small Security Agency 813-237-2689 Special Tech Security Agency 904-723-0115 Supreme Intelligence Agency 305-777-3134 Walter Investigative Services 305-653-1144 Pleas remember that you must SIGN AND RETURN THIS ADDENDUM WITH YOUR BID PROPOSAL. FAILURE TO SUBMIT WITH BID PROPOSAL AND ACKNOWLEDGE THIS ADDENDUM WILL DISQUALIFY YOUR PROPOSAL. If you have any questions, please call me at (305)777-4611. Petitioner and Intervenor, both Florida-licensed security guard agencies, submitted proposals in response to the RFP, which included completed and signed Form "D"s. Petitioner's and Intervenor's price proposals (on a monthly basis) were $60,720.00 and $53,458.80, respectively. On its completed and signed Form "D," Petitioner indicated that it was not a Department-certified DBE, but that it intended to subcontract "at least 30 percent or more" of the total project costs to a certified DBE. Petitioner further indicated on the form that its "proposed DBE subconsultant/vendor" was Dadeline Corporation and that the "services/commodities to be subcontracted" were "security guard services." Dadeline was a Department-certified DBE that possessed a Class "B" Security Agency license issued by the Department of State, Division of Licensing pursuant to Chapter 493, Florida Statutes. On its completed and signed Form "D," Intervenor, like Petitioner, indicated that it was not a Department-certified DBE, but that it intended to subcontract "at least 30 percent or more" of the total project costs to a certified DBE. 10/ Intervenor further indicated on the form that its "proposed DBE subconsultant/vendor" was American Alarms, Inc., and that the "services/commodities to be subcontracted" were "security services." American Alarms, Inc., was one of the three Department-certified DBE firms mentioned in the addendum to the RFP as having "an interest in providing security services." Unlike Dadeline Corporation, however, it did not possess a Class "B" Security Agency license issued by the Department of State, Division of Licensing, nor did it have any experience in providing security guard services. Both Petitioner and Intervenor received 30 DBE preference points. Intervenor was awarded these DBE preference points, notwithstanding that its "proposed DBE subconsultant/vendor," American Alarms, Inc., did not possess a Class "B" Security Agency license authorizing it to conduct business as a security guard agency in the State of Florida or have any experience in the provision of security guard services. There is no indication, however, that the Department was aware, at the time it awarded these preference points to Intervenor, that American Alarms, Inc., was unlicensed and inexperienced. The RFP did not direct proposers to provide the Department with any information regarding the current licensure status and experience of its "proposed DBE subconsultant/vendor" and Intervenor did not volunteer such information in its response to the RFP. 11/ Petitioner's total score was 109.25, the second highest of all proposers. Intervenor's total score was 119.92, the highest of all proposers. The scores were posted on May 23, 1995. The posted proposal tabulation reflected that the contract award was made to Intervenor as "the responsive and responsible offeror whose proposal [was] determined to be the most advantageous to the State taking into consideration price and other criteria." Thereafter, Petitioner filed the protest that is the subject of the instant proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Transportation enter a final order rejecting Petitioner's protest of the decision to award State Job No. 99906-9520 to Intervenor. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of November, 1995. STUART M. LERNER 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 21st day of November, 1995.
The Issue The issue is whether Respondent Joseph M. Conover committed the acts alleged in the Administrative Complaint, and, if so, what discipline should be imposed.
Findings Of Fact Mr. Conover is a licensed security officer. He holds Class D, DI, G, and MB licenses from the Department. His license numbers are D9817475, DI2000134, G2003451, and MB9900202. Mr. Conover's Class G license allows him to carry a firearm, subject to the provisions of Section 493.6115, Florida Statutes. Mr. Conover has been licensed by the Department since 1998, and he has been an armed security officer since 2000 or 2001. Mr. Conover is the president and chief operating officer of Nova, which has its principle office in Brevard County. Mr. Conover resides in Brevard County. Nova's principle office is located within his home. Mr. Conover has managerial and supervisory duties in his position as president and chief operating officer of Nova. The duties include scheduling armed security guards for clients, ensuring the guards' compliance with applicable regulations, soliciting new clients, and maintaining contact with clients and the guards that are on duty. At the time of the events giving rise to the Administrative Complaints, Nova provided armed security guard services for ten apartment complexes and residential communities in Orlando. Nova did not provide security services for any location in Brevard County. On April 29, 2006, while in route to an armed security post in Orlando, Mr. Conover stopped to render aid at a motor vehicle accident in Brevard County. He rendered emergency medical care2/ to one of the individuals involved in the accident, and he also directed traffic at the scene. He was wearing his security guard uniform and carrying his firearm in plain view at the time. On May 1, 2006, while in route to an armed security post in Orlando, Mr. Conover stopped at a Starbucks in Brevard County. He got out of his car and went into the store to purchase a cup of coffee. He was wearing his uniform and carrying his firearm in plain view at the time. Mr. Conover testified that he was "on duty" at the time of each incident because he was performing managerial and supervisory duties while in route to Orlando. He testified that immediately prior to the accident on April 29, 2006, he was fielding calls on his two-way radio from the armed security guards who were on duty in Orlando, and he can be seen talking on his radio or cell phone on the videotape of the May 1, 2006, incident. However, there is no credible evidence that Mr. Conover was providing any managerial or supervisory duties to the security guards during the time that he was rendering emergency medical care and directing traffic at the accident scene. The managerial and supervisory duties that Mr. Conover was performing at the time of the incidents did not require him to be armed. First, as Mr. Conover acknowledged, there is a difference between managerial and supervisory duties and armed security guard duties. A Class G license is not required in order to perform managerial and supervisory duties for armed security guards, particularly where such duties are being performed off-site. Second, Mr. Conover was nowhere near the sites that Nova was providing armed security services at the time of the incidents. He was approximately 40 miles, and at least 25 to 30 minutes, away from the sites. Criminal charges were brought against Mr. Conover for impersonating a police officer and carrying a weapon in plain view based upon his activities at the accident scene on April 29, 2006. The charges were nol prossed by the State. The Department began its investigation of Mr. Conover in May 2006 based upon information received from the Indialantic Police Department in Brevard County concerning the incidents described above. In July 2006, Mr. Conover's attorney sent a letter to the Department requesting the Department's "official interpretation of Florida Statutes § 493.6115 regarding carrying of weapons and firearms." The letter included the following summary of a conversation between Mr. Conover's attorney and Art Varnadore, who the letter represented to be the Chief of Regulation and Enforcement for the Department: ccording to Florida Statutes Chapter 493, a security officer can only carry a firearm while on duty at an armed post. A security agency manager can only carry a firearm while on duty at an armed post. A security agency manager or security officer traveling between armed posts may keep his firearm on him in the car. However, he cannot leave the vehicle with a firearm unless at an armed post. The Department did not respond to this letter or a follow-up letter sent by Mr. Conover's attorney in August 2006. The letters were sent after the Department began its investigation into the incidents giving rise to the Administrative Complaint. There is no evidence that Mr. Conover ever sought guidance from the Department prior to the incidents. Mr. Conover has been complying with the procedures quoted above since July 2006. The Department publishes a "Security Officer Handbook," as required by Section 493.6123(2), Florida Statutes, in order to provide guidance to licensees regarding "the legal authority, rights, and obligations of his or her specific license." A copy of the handbook is supposed to be provided to each licensee. The handbook includes the following provisions pertinent to this case: e. Class "D" Security Officers who also possess a Class "G" license may carry a firearm only when the duty assignment requires armed security and only while on the post of duty. Section 493.6115(3), F.S. Example: A Class "D" Security Officer who also has a Class "G" license and is normally assigned to an armed post is assigned, temporarily, to an unarmed post. He may not carry his firearm on the temporary assignment. Example: The same security officer, while serving on his usual armed post, may not wear his firearm when he leaves his assigned post for other than duty purposes, such as for lunch, or when traveling to or from home. During such non-duty periods, the firearm must be removed and secured. * * * g. While the licensee is on duty, his firearm must be carried in a holster and in plain view. It may only be carried concealed under those conditions addressed in VIII.c. Section 493.6115(3), F.S.[3/] The handbook does not include a specific example addressing the conduct of licensees responsible for managing and supervising armed security guards. The examples in the handbook focus on licensees with assigned "posts of duties." Mr. Conover did not rely on any of the guidance in the handbook; he testified that he did not recall ever receiving a copy of the handbook. Mr. Conover has no disciplinary history with the Department. There is no credible evidence that the Department investigated or prosecuted this case for an "improper purpose," as alleged by Respondents.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order that: Finds Mr. Conover guilty of carrying a firearm in violation of Section 493.6115(3), Florida Statutes, on April 29, 2006, and on May 1, 2006, as charged in Administrative Complaint No. CD2006-1316; and Imposes an administrative fine of $100 on Mr. Conover; Issues a formal reprimand to Mr. Conover. DONE AND ENTERED this 20th day of March, 2008, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 20th day of March, 2008.
The Issue The issue for determination is whether the intended action by Respondent to award RFP 21-203T for Security Guard Services to Intervenor is improper.
Findings Of Fact Respondent wanted to procure security guard services for its various schools, centers, departments, buildings and/or compounds in order to protect its equipment and property from damage or theft. Consequently, on March 19, 2001, Respondent issued RFP 21-203T (RFP), entitled "Security Guard Services," with a contract period from October 1, 2001, through September 30, 2004. The RFP required all proposals to be submitted by 2:00 p.m. on April 24, 2001. At the time of the hearing, the security guard services were being provided by Petitioner under a contract awarded through a previous procurement, RFP 98-146T. The contract was to expire on September 30, 2001. The RFP contains Sections 1 through 9 and Attachments A through F.1 Section 2, entitled "Introduction," provides that the scope of services included, but were not limited to, the requirements contained in the Articles of Agreement, which is Attachment A. Additionally, the said Section set forth the major sites that may be covered under the contract of the RFP, which were described as Group 1 and Group 2. Proposers to the RFP were permitted to offer their security guard solutions to existing and future school sites. Respondent selected the Group 1 facilities consisting of eight school sites for the RFP. Further, Section 2 provides that Respondent reserves "the right to increase or decrease its stated requirements under the hours of coverage for the number of security personnel, location and/or hours from time to time at the hourly rate quoted"; and provides the hours of coverage for each site. Section 3, entitled "Information to be Included in the Submitted Proposal," contains several subsections. Subsection 3.5 requires certain information to be submitted by a proposer with the proposal or within three days of request. Subsection 3.7 requires a proposer to validate its minimum eligibility. Subsection 3.71 requires a proposer to submit a copy of its Florida's security guard services license and submit the license number on the Cost Proposal Sheets Additional Information, which is Attachment B. Subsection 3.8 requires a proposer to show its experience and qualifications through certain submissions. Subsection 3.8.13 requires a proposer to provide a security solution that includes additional security guards and/or hours that differs from the individualized security solution based on a single security guard at the specified sites in the hours of coverage in Section 2. Subsection 3.8.15 requires a proposer to provide an individualized security solution for specified sites based on the information obtained from the attendance of the mandatory site visits. Subsection 3.8.16 requires proposers to "prepare and submit with their proposal, an individualized, concise delineation of their recommendation to protect and secure . . . property on the sites listed in Section 2 . . . ." Additionally, Subsection 3.816 requires the recommendation to "include all personnel, their hours and equipment that proposer intends to provide . . . (i.e. contract (road) supervisor(s), number and level of guards, radios, cars, off-street motorized carts, etc.). Address each group listed on the Cost Proposal Sheets separately." Section 3.10, Cost of Services, requires the prices quoted by a proposer to be "all inclusive and represent security guard services at existing sites and any future identified sites" and requires a proposer to "complete Attachment B, Cost Proposal Sheets, for both Group 1 and 2 and provide an itemized breakdown of the total cost for each site and a total cost for each group." Section 3.10 provides further that the "fundamental responsibilities of the awardee(s) will be to provide the services listed in Articles of Agreement, Attachment A." Section 7 is entitled "Evaluation of Proposals." Subsection 7.1 provides for the evaluation by Respondent's Evaluation Committee of proposals which meet or exceed the minimum eligibility requirements in Section 3.7. The following four categories and maximum points, totaling 100 points, are to be used by the Evaluation Committee: Experience and Qualifications--a maximum of 15 points; Scope of Service Provided--a maximum of 40 points; Minority/Women Business Participation--a maximum of 20 points; and Cost of Services Provided--a maximum of 25 points. Subsection 7 confers broad discretion upon the Evaluation Committee. Subsection 7.2 confers upon the Evaluation Committee the "sole discretion" as to how many of the top-ranked proposers, based on the scoring, it may recommend to be awarded the RFP; as to whether a short list of top-ranked proposers should be established for further consideration and how many should be on the short list; and as to whether to reject all proposals. Subsection 7.4 reserves to the Evaluation Committee the right to negotiate any term, condition, specification or price with the short list proposers. Subsection 7.5 reserves to the Evaluation Committee and Respondent the right to ask clarifying questions after the proposals have been opened, and to interview all or any of the proposers. Subsection 7.5 further reserves to the Evaluation Committee the right to make its recommendations solely on the proposals submitted by the proposers. Section 8 is entitled "Special Conditions." Subsection 8.8 reserves to the Evaluation Committee and/or Respondent the right to waive irregularities or technicalities in proposals received. Section 9 is entitled "General Conditions." Subsection 9.371 reserves to Respondent the right to request additional information, reject any or all proposals that do not meet all mandatory requirements, or reject all proposals received. Subsection 9.37.3 provides for the rejection of a proposal if it fails to conform to the rules or requirements contained in the RFP and provides examples for which rejection may be made, one of which at Subsection 9.37.3.5 provides, among other things, for rejection when a proposal is incomplete, or contains irregularities which make the proposal incomplete, indefinite, or ambiguous as to its meaning. Subsection 9.45 reserves to the Evaluation Committee and/or Respondent the right to waive irregularities or technicalities in proposals. Attachment A, paragraph numbered 2, reserves to Respondent the right to "increase, decrease, delete hours and/or locations." Associated thereto, the said paragraph further provides that "additional locations or additional guards at existing locations shall be furnished at the price quoted on Attachment B, Cost Proposal Sheets." Additionally, the said paragraph reserves to Respondent the right to "choose which pricing group will be used in the evaluation process and sites requiring services during the term of the contract" and to "add, delete or make changes to any guard requirement, including hours of coverage, post location, numbers of posts, number of guards, etc." Attachment B, Cost Proposal Sheets, also reserves several rights to Respondent. Per Attachment B, Respondent has the right to reject all or any of the sites of Group 1 and Group 2, to modify all or any of Group 1 and Group 2, to make an award based on the hourly cost(s) submitted by the proposers, or to reject all proposals and either make the award in total or any portion of the RFP in-house if it is in the best interest of Respondent. Additionally, Attachment B requires proposers to submit, "in accordance with all terms, conditions, specifications and requirements," their annual all-inclusive total cost for each site in Group 1, the annual all-inclusive total cost for all the sites in Group 1, and, as an attachment to the RFP, an itemization of costs for certain specified items for each site in Group 1. The referenced attachment to the RFP is to include, but not be limited to, the itemized breakdown for the costs at each site for the following: number of contract (road) supervisors and their hourly cost; number and level of guards proposed and their hourly cost for each level; total number of coverage hours required; and equipment proposed. Further, Attachment B requires the proposers to list the level (category) of their proposed unarmed security guards and their hourly cost and to list the hourly cost of their unarmed contract (road) supervisors. Some proposers sought clarification of the RFP. As a result, on April 12, 2001, Respondent issued Addendum Number 1 to the RFP, which consists of written responses to proposers' questions and of the provision of a replacement page for the RFP. The replacement page contains minor changes to the RFP. Petitioner did not submit any questions for clarification. Section 9.24 of the Special Conditions of the RFP permits the filing of bid specification protests. However, no bid protest, regarding specifications contained in the RFP or Addendum Number 1, was filed. On April 24, 2001, nine proposals were submitted to Respondent's Purchasing Department. The proposers were Petitioner; Intervenor; Chi-Ada Corporation; Command Security Corporation; 50 State Security Services, Inc.; Gabriel Security of Florida, Inc.; Kemp Security & Investigative Services; Metro Security Services; and Pronto Security, Inc. Evaluation of the proposals was performed by Respondent's Evaluation Committee, which consisted of five members. Each member either possessed knowledge of security guard services or had knowledge of the sites to be guarded. The Evaluation Committee made a recommendation to Respondent for the award of the RFP. The Evaluation Committee first met on May 3, 2001. Prior to the meeting, the members of the Evaluation Committee were provided copies of the proposals submitted, the RFP, Addendum No. 1, score sheets, and cost analysis worksheets. Further, they were provided other evaluation documents relating to categories and point allocations, which correspond to experience and qualifications, scope of services, cost of services, and Minority/Women Business Enterprise (M/WBE) participation. Prior to the meeting, the members read and understood the RFP and the proposals. Technical staff from the Purchasing and W/MBE Departments were available to the Evaluation Committee at the meeting to provide technical support. As to scoring, Petitioner is challenging the scoring for the Cost of Services Provided category found at Section 7.1 of the RFP. Furthermore, Petitioner is not seeking to have any proposer disqualified or found to be non-responsive. Each member of the Evaluation Committee, as directed, used the score sheets in the analysis of the proposals. The score sheets correspond to the four categories found at Subsection 7.1 of the RFP. In scoring the proposals, each member of the Evaluation Committee evaluated the proposals, applying the evaluation criteria in the RFP to the materials provided to him or her, as well as using the presentations made by the technical staff. Each of the four categories was scored separately and independently. No category is interconnected with the scoring for another category. Prior to the meeting, no discussion was had amongst the members as to the method to be used for scoring. The same scoring method was used for each category. The RFP contained no method of scoring, other than the allocation of points found at Section 7 of the RFP. The members of the Evaluation Committee decided on the method of scoring. They independently used their own best judgment and sound discretion in the scoring. The method decided upon and used was that each member would independently score each proposer on each category, using the maximum number of points in Section 7; the proposer with the highest overall all-inclusive cost for a category would be allocated the lowest number of relative points and the proposer with the lowest overall all-inclusive cost would be allocated the highest number of relative points; the points allocated for a category to a proposer would be totaled and averaged; and the average number of points for a proposer would be the total and final score for a proposer for that category. The members of the Evaluation Committee scored the Cost of Services category of the proposals based on the annual all-inclusive total cost submitted by each proposer, using the scoring method devised by the members. Section 7.1 of the RFP provides that the maximum number of points for the Cost of Services category is 25, thereby providing a range of points from 0 to 25. Petitioner's annual all-inclusive total cost for the security guard services for Group 1 is $779,431.53. Each member of the Evaluation Committee utilized this amount in allocating the points for the Cost of Services category. Petitioner's annual all-inclusive total cost includes the number of guards, road supervisors, vehicles, hourly rates, and hours of coverage. The points allocated to Petitioner for the Costs of Services category by each member of the Evaluation Committee are as follows: three members allocated 5 points each; one member allocated 8 points; and one member allocated 3 points. Petitioner received an average of 5.2 points. Petitioner's points for the Cost of Services category is 5.2. Petitioner received the lowest number of points for the Cost of Services category of all the proposers and, therefore, received the lowest score for that category. The lowest score means that Petitioner, amongst all the proposers, submitted the highest annual all-inclusive total cost for the Cost of Services category. The points allocated by each member to Petitioner are within a reasonable range and do not appear and are not considered to be an aberration. Intervenor's annual all-inclusive total cost for the security guard services for Group 1 is $440,279.75. Each member of the Evaluation Committee utilized this amount in allocating the points for the Cost of Services category. At hearing, evidence was presented that, due to a clerical error, Intervenor had omitted the cost of road supervisors from its annual all-inclusive total cost. The members of the Evaluation Committee were unaware of this clerical error when they evaluated Intervenor's proposal. The members of the Evaluation Committee considered Intervenor's annual all-inclusive total cost to include the number of guards, road supervisors, vehicles, hourly rates, and hours of coverage and evaluated the proposal as such. At hearing, Intervenor stated that it would be bound by the annual all-inclusive total cost as submitted and, therefore, the road supervisors would be included in the total cost submitted. Consequently, no harm has been shown to have occurred as a result of the omission. Additionally, Intervenor failed to provide an itemized breakdown of all its guards and hours of coverage in Attachment B of the RFP. However, Petitioner is not seeking to disqualify Intervenor's proposal as being non-responsive. Regardless, Intervenor's proposal does contain, albeit in Attachment B, the number of security guards and hours of coverage for each site in Group 1, and the number of road supervisors. The hourly rate for guards and road supervisors are in Attachment B. Therefore, even though the information is not itemized, all the information needed is contained in Intervenor's proposal. Hence, the lack of itemization is not a material deviation and is considered waivable. The points allocated to Intervenor for the Costs of Services category by each member of the Evaluation Committee are as follows: three members allocated 20 points each and two members allocated 25 points each. Intervenor received an average of 22 points. Intervenor's points for the Cost of Services category is 22. Intervenor received the highest number of points for the Cost of Services category and, therefore, received the highest score for that category. The highest score means that Intervenor submitted the lowest annual all-inclusive total cost for the Cost of Services category. The points allocated by each member to Intervenor are within a reasonable range and do not appear and are not considered to be an aberration. Petitioner also finds fault, regarding another proposer, Metro Security Services (Metro), in the scoring by the Evaluation Committee in the Cost of Services category. Metro's proposal as to an annual all-inclusive total cost is only on an hourly rate basis, not the total cost. In order to obtain an annual all-inclusive total cost for the Cost of Services category, the Evaluation Committee, themselves, performed calculations using the hourly rate submitted by Metro. The Evaluation Committee took the total number of hours of coverage for one guard and multiplied that number by the $10 per hour rate submitted by Metro, which produced the annual all-inclusive total cost for Metro. Based upon the number calculated to be the annual all-inclusive total cost, the Evaluation Committee allocated points to Metro. The points allocated to Metro for the Cost of Services category by each member of the Evaluation Committee are as follows: three members allocated 12 points each, one member allocated 15 points, and one member allocated 14 points. Metro received an average of 13 points. Metro's points for the Cost of Services category is 13. Metro's points are more than Petitioner's points in the Cost of Services category, which means that Petitioner's annual all-inclusive total cost is more than the annual all-inclusive total cost calculated by the Evaluation Committee for Metro. Metro was not considered for award of the RFP. Metro received the sixth highest ranked total score. Metro is not challenging Respondent's intended award of the RFP to Intervenor. Metro has not sought to intervene in this proceeding, and Petitioner cannot represent the interest of Metro in the instant case. The action by the Evaluation Committee of calculating and scoring Metro's annual all-inclusive total cost for the Cost of Services category was reasonable, rational, and fair. Their action is not shown to be and is not considered materially affecting or significantly impacting the scoring or the process of the RFP. Metro provided the information needed for the Evaluation Committee to evaluate Metro's proposal in the Cost of Services category. The points allocated by each member to Metro are within a reasonable range and do not appear and are not considered to be an aberration. Even assuming that the Evaluation Committee should not have calculated the annual all-inclusive total cost for Metro using Metro's hourly rate, Metro was not considered for award of the RFP. Furthermore, Metro was the only proposer for whom the Evaluation Committee performed this calculation. Because of the action by the Evaluation Committee, no benefit was shown to inure to Intervenor and no detriment was shown to inure to Petitioner. Additionally, Petitioner finds fault as to another proposer, Chi-Ada Corporation (Chi-Ada), in the scoring by the Evaluation Committee in the Cost of Services category. At the May 3, 2001, meeting of the Evaluation Committee, its members were informed by the technical staff of Respondent's Purchasing Department that Chi-Ada had not submitted proof of licensure required by the RFP but that Chi- Ada was providing proof of licensure by mail. The RFP permitted additional information to be provided, upon request by Respondent, after submission of proposals. The Evaluation Committee proceeded to evaluate Chi-Ada's proposal. Chi-Ada's annual all-inclusive total cost for the security guard services for Group 1 is $510,963.60. Each member of the Evaluation Committee utilized this amount in allocating the points for the Cost of Services category. The points allocated to Chi-Ada for the Cost of Services category by each member of the Evaluation Committee are as follows: two members allocated 25 points each, two members allocated 20 points each, and one member allocated 21 points. Chi-Ada received an average of 21.2 points. Chi-Ada's points for the Cost of Services category is 21.2. Subsequently, Chi-Ada was found to be non-responsive for the failure to provide the proof of licensure. Chi-Ada had failed to provide a copy of its Florida's security guard services license, as required by Subsection 3.7 of the RFP, within three days of the request from Respondent's Purchasing Department. The action of the Evaluation Committee proceeding to evaluate Chi-Ada's proposal was reasonable, rational, and fair. Their action is not shown to be and is not considered materially affecting or significantly impacting the scoring or the process of the RFP. The points allocated by each member to Chi-Ada are within a reasonable range and do not appear and are not considered to be an aberration. After scoring of the proposals, the Evaluation Committee voted to recommended that Intervenor be awarded the RFP as the responsive responsible bidder, having received the highest total number of points in the scoring. On May 23, 2001, the Evaluation Committee met again to reconsider the points allocated to Petitioner regarding the M/WBE Participation category. The Evaluation Committee assigned additional points to Petitioner in the M/WBE Participation category for workplace diversity. On May 24, 2001, the proposed recommendation and tabulation were posted. The proposed recommendation is to award the RFP to Intervenor. The scoring tabulation, indicating the total points out of 100 points allocated to each proposer for all categories is a follows: Chi-Ada--55.2 points; Command Security Corporation--58.8 points; 50 State Security Services, Inc.--54.2 points; Gabriel Security of Florida, Inc.--42.6 points; Kemp Security & Investigative Services--64 points; Metro Security Services--55 points; Petitioner--69.2 points; Pronto Security, Inc.--44 points; and Intervenor--76.6 points. At first, Petitioner filed a notice of protest with Respondent. Subsequently, Petitioner also filed a formal written protest. Chi-Ada filed a combined notice of protest and formal written protest with Respondent. Respondent's Bid Protest Committee, in accordance with statute and rule, attempted to resolve the protests by mutual agreement. Through separate noticed public hearings, the Bid Protest Committee considered the protests. As to Chi-Ada, the Bid Protest Committee rejected the protest. The Bid Protest Committee determined that Chi-Ada failed to satisfy the eligibility criteria of Subsection 3.7 of the RFP by failing to provide proof of its licensure and was, therefore, a non-responsive bidder. As to Petitioner, the Bid Protest Committee rejected the protest and upheld the recommendation to award the RFP to Intervenor. Petitioner timely requested the referral of its protest to the Division of Administrative Hearings. Neither Petitioner's nor Intervenor's standing is in dispute.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order awarding to Security Services of America, L.L.C. the contract under Request for Proposals (RFP) for Security Guard Services, RFP 21-203T. DONE AND ENTERED this 6th day of November, 2001, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 6th day of November, 2001.
The Issue The issue for determination is whether Respondent committed violations of provisions of Chapter 493, Florida Statutes, sufficient to justify the imposition of disciplinary action against Respondent's Class "D" Security Officer License and Respondent's Class "G" Statewide Firearm License.
Findings Of Fact Respondent is Ronald W. Cone. Respondent holds Class "D" Security Officer License No. D89-03534 which expired on February 21, 1993. Subsequently, Respondent applied for renewal of the Class "D" Security Officer License in August, 1993. The renewal was granted by Petitioner. As stipulated by the parties at the final hearing, Respondent has, at all times pertinent to these proceedings, held a Class "G" Statewide Firearm License. From February 21, 1993, to April 12, 1993, Respondent performed his duties as an armed security officer at the Independent Life Insurance Building in Jacksonville, Florida. The building was open to the public at the time. On April 9, 1993, at approximately 2:30 p.m., Respondent arrived for work at his guard station in the center of the 80 foot vaulted ceiling lobby to the building. The acoustics of the lobby are such that a dime can be heard hitting the floor all the way across the area on a quiet day when there are few people in the facility, as was the case on April 9, 1993, at about 4:00 p.m. when Respondent decided to delve into his brown bag lunch. Leaving his subordinate, an unarmed security guard named William C. Piersky, on duty at the guard station, Respondent went to a restaurant area located in the lobby of the building approximately 125 feet from the guard station to eat his late lunch. The restaurant, operated by Morrison's Cafeteria, Inc., was closed at the time. The area was separated from the rest of the lobby by small partitions that stood three to four feet tall. Piersky was unable to see Respondent. A short time later, Piersky heard a loud report which he presumed was the discharge of a firearm. Although Piersky concluded the discharge he heard came from a firearm, his testimony is not credited on this point in view of his admitted unfamiliarity with bullets containing "birdshot", his admitted lack of involvement with firearms in previous security employment, and his present employment in the position previously held by Respondent. Respondent's testimony at final hearing was candid, worthy of belief and establishes that what Piersky really heard was not a firearm discharge. Rather, the loud report resulted from Respondent's action of blowing up and popping his paper lunch bag in an area with extreme acoustical sensitivity. Respondent admits that he was having fun at Piersky's expense and that when he returned to the guard station in the center of the lobby he remarked "can't believe I missed that bird." The reference to a bird was the sparrow that had found its way into the building. The bird had eluded capture by building maintenance personnel. Respondent's candid testimony establishes that he did not discharge his service revolver at the bird and that he did not load the weapon with a form of nonstandard ammunition known as birdshot on the day in question. In furtherance of his claim that a firearm had discharged, Piersky did an incident report on the matter. Three days later Respondent was fired. Piersky, previously an unarmed contract guard, now works as an armed security guard supervisor directly for Independent Life Insurance Company, as did Respondent prior to his termination. During the period of February 14, 1993 through April 12, 1993, Respondent performed duties as a security officer and armed security officer while his Class "D" license was expired. Upon receipt of a renewal notice and during his employment with Independent Life, Respondent's practice was to give that notice to the building manager's secretary to handle administratively. This had been a normal practice for licensed security guards during Respondent's employment with Independent Life. He followed this practice in the present instance and thought at the time that his license was renewed. Following his termination of employment and discovery of his license expiration, Respondent proceeded to obtain license renewal.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondent not guilty of allegations contained in Counts III, IV and V of the Amended Administrative Complaint, and it is FURTHER RECOMMENDED that such final order find Respondent guilty of allegations contained in Count I and Count II of the Amended Administrative Complaint and impose an administrative fine of $100 for each violation. DONE AND ENTERED this 21st day of February, 1994, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 1994. APPENDIX TO CASE NO. 93-4981 The following constitutes my ruling pursuant to Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Petitioner's Proposed Findings 1.-5. Accepted, though not verbatim. 6.-7. Rejected, weight of the evidence. Adopted by reference. Rejected, weight of the evidence. Adopted by reference. 11.-12. Rejected, relevance. Adopted, though not verbatim. Rejected, weight of the evidence. Respondent's Proposed Findings In Respondent's posthearing submission, he basically pleads guilty to the allegations contained in Count I and Count II of the Amended Administrative Complaint and not guilty to the remaining counts. Accordingly, further comment is not required. COPIES FURNISHED: Richard R. Whidden, Jr. Attorney at Law Department of State Division of Licensing The Capitol, M.S. #4 Tallahassee, Florida 32399-0250 Ronald W. Cone Post Office Box 447 Crawfordville, Florida 32326 Honorable Jim Smith Secretary of State The Capitol Tallahassee, FL 32399-0250 Phyllis Slater General Counsel The Capitol, PL-02 Tallahassee, FL 323999-0250
Findings Of Fact The proceeding came on for hearing on the Petitioner's application for an armed security guard license. The Respondent, Department of State/Division of Licensing, is an agency of the State of Florida having jurisdiction over the licensing and regulation of security guards. The Respondent, on February 15, 1982, served notice on the Petitioner that it intended to deny his application for license, the Petitioner requested a hearing and the cause was set for hearing as delineated in the notice. Upon timely convening the hearing at 2:00 p.m. on April 28, 1982, the Petitioner failed to appear. The undersigned and the Respondent and the Respondent's witness remained in the hearing room for approximately one hour in hopes that the Petitioner might appear. The Petitioner failed to appear. The undersigned entered on the record the fact of the Petitioner's default and the fact that all concerned remained in the hearing room awaiting the Petitioner's arrival for approximately one hour. Thereupon the hearing was adjourned.
Recommendation Having considered the foregoing findings of fact and conclusions of law, it is therefore RECOMMENDED: That the petition of Karl Harry Wilson be DISMISSED. DONE and ENTERED this 22nd day of July, 1982 at Tallahassee, Florida. P. MICHAEL RUFF 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 22nd day of July, 1982. COPIES FURNISHED: Mr. Karl Harry Wilson Aquarius Restaurant Aquarius Condominium Route A1A 2751 South Ocean Drive Hollywood, Florida 33019 Stephan Nall, Esquire General Counsel Department of State The Capitol Tallahassee, Florida 32301 Donald Hazelton, Director Division of Licensing Department of State Winchester Building Tallahassee, Florida 32301 The Honorable George Firestone Secretary of State Department of State The Capitol Tallahassee, Florida 32301
Findings Of Fact Petitioner applied for licensure as an unarmed security guard and an armed security guard. In response to Question #13 on the application, "Have you ever been arrested?", Petitioner answered "yes" and indicated he was sentenced to 18 months for "buying and receiving" in 1971. Petitioner's complete criminal record is as follows: Arrested Charge Sentenced 1967 Willful misuse without right of 1967, six months a motor vehicle 1968 Willful misuse without right of 1968, two years' a motor vehicle probation 1969 Aggravated assault 1969, dismissed 1969 Willful misuse without a motor vehicle right of 1970, 158 days 1970 Receiving a stolen auto 1971, 18 months 1971 Escape, auto robbery, robbery 1971, years total 25 concurrent 1980 Arrested auto theft Charge dropped February 1981 Possession of a concealed weapon Dismissed February 1982 Possession of a concealed weapon Pending The 1967 arrest and conviction occurred when the Petitioner was approximately 16 years old. Petitioner admitted that he had taken the cars as alleged for joyriding as a youth. Petitioner explained that he was sentenced to the state correctional institution for possession of a rental car which he had borrowed from a friend, who had stolen it. Petitioner admitted he had escaped from prison, had stolen a car, and had been recaptured when he ran out of gas in Perry, Florida. Petitioner served eight years in prison and two years of probation of the 25 years' sentence imposed on him. Since his release from prison, the Petitioner has worked as a truck driver, roofer, security guard and mechanic. He has married and lives with his father-in-law, his wife and her two children by a previous marriage. Petitioner has had his civil rights restored to him except for the right to bear arms. He has petitioned to have that right restored. The Petitioner testified that he was issued a temporary pistol permit and issued a firearm by his employer, "Globe," and that he worked in an armed guard post on a building project in Miami. He worked hard as a security guard, frequently worked double shifts, had obtained two promotions, and was being considered for a third promotion when he was terminated as a result of the denial by the Division of Licensing. All charges made against the Petitioner since his release from prison have been dismissed except the charge of possession of a concealed weapon made in February of 1982, which the Petitioner fully disclosed. Petitioner had purchased a .38 calibre revolver, thinking that he was authorized to possess a firearm pursuant to the temporary pistol permit. It was this weapon that was discovered and for which he was charged in February of 1982. The Petitioner understood at the hearing that the temporary pistol permit did not authorize him to purchase or possess a firearm. Petitioner demonstrated a working knowledge of the limits of his authority as a security guard and secured his issued weapon in accordance with the company's rules and applicable regulations. The Petitioner presented a letter from his former supervisor at Globe, attesting to his good work, and a letter from a friend and neighbor attesting to his good conduct since his release from prison. Leroy Dowdell, who lives across from where the Petitioner now works, testified concerning Petitioner's reputation. Petitioner possesses a good reputation in the neighborhood. Dowdell stated he would trust the Petitioner to guard his personal property. The Petitioner stated that he wanted to be licensed because he could earn good money to support himself and his family, and that a knee injury and his criminal record had kept him from finding well-paid employment. Petitioner lacks a high school education. The Petitioner stated he did not list the offenses related to his escape because they occurred while he was in jail for the offense which he did list and were part of that record. Petitioner's testimony was uncontroverted.
Recommendation The Petitioner having established his reputation for honesty and fair dealing and respect for the law, he should be granted an unarmed security guard license; however, Petitioner's application for an armed security guard license should be denied. DONE and ORDERED this 8th day of April, 1982, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Mr. Willie James Summersett 2268 NW 51st Terrace Miami, Florida 33142 James V. Antista, Esquire Assistant General Counsel Department of State Division of Licensing R. A. Gray Building, Room 106 Tallahassee, Florida 32301 George Firestone, Secretary Department of State The Capitol Tallahassee, Florida 32301 STEPHEN F. DEAN, 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 Division of Administrative Hearings this 8th day of April, 1982.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Petitioner be issued a Class "F" Unarmed Guard License. Upon certification of his employer that his duties require him to be armed, the Hearing Officer recommends that the agency issue the Petitioner a Class "G" Armed Guard License. The Hearing Officer further recommends that the agency adopt a rule restricting all guard agencies from utilizing armed guards where the nature of their assigned duties does not warrant the use of a firearm to carry out their assignment. DONE and ENTERED this 24th day of August, 1979, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1979. COPIES FURNISHED: W.J. Galdwin, Jr., Esquire Assistant General Counsel Department of State The Capitol Tallahassee, FL 32301 John F. Cuddy, Esquire 333 East Bay Street Jacksonville, FL 32202
Findings Of Fact On or about January 31, 1990, the Petitioner, John P. Fletcher, applied for a Class "D" Unarmed Security Officer license. In Section 13 of the application, the Petitioner represented that he never had been arrested. In 1957, when the Petitioner was about 21 years old, he was arrested in West Union, West Virginia, with a brother and another man, and the three were charged with stealing gasoline from a filling station. The Petitioner denies that he stole the gasoline, saying that he and his brother did not know that the third man had not paid for the gasoline for the car they were riding in. The Petitioner's mother paid restitution, and the charges were dropped. In November, 1963, when the Petitioner was about 27 years old, he was arrested for, and adjudicated guilty of, contributing to the delinquency of a minor. In fact, he was teaching a minor to drive a car against the wishes of the minor's parents. He served 60 or 90 days in jail in Lakeland on the charges. Two years later, in August, 1965, while he was working for the Peninsula Lumber Company, the Petitioner was arrested for alleged aggravated assault with a deadly weapon and was put in jail for seven to 14 days while awaiting trial. The charges arose out of an altercation with a fellow employee. The Petitioner was upset about his pending divorce, and the other man kept picking at him about it. Three times, the Petitioner asked the man to stop, but he persisted. At one point, the man came at him in a threatening manner with a hammer in his hand, and the Petitioner cut him with a knife. In court proceedings, the other man admitted the truth of the Petitioner's version of the altercation, and the judge dismissed the charges. In January, 1983, the Petitioner was visiting at the home of his elderly mother, who was living alone in East Hillsborough County. The Petitioner was told that a bad-mannered neighborhood youth was vandalizing his mother's property and generally terrorizing her. The Petitioner was very angry about this. During the visit, he went out to his truck and found a firecracker, with fuse burned but not ignited, that he believed had been placed there by the youth of whom his mother had spoken. He sought out the youth, about twenty-one years old, grabbed him, and was going to "put a whipping on him" but did not. Instead, he threatened to do so if the youth did not stop his bad behavior, particularly towards the Petitioner's mother. As a result, the Petitioner was arrested and charged with aggravated assault. The Petitioner was placed on a pretrial intervention program on March 11, 1983, and he successfully completed the program on September 11, 1983. The charges were dismissed. The evidence did not explain why the Petitioner represented in Section 13 of his application that he never had been arrested. Although he conceivably could have forgotten about the 1957 arrest, it is not likely that he forgot about the others, and it is found that the misrepresentation was intentional. In the late 1960s and early 1970s, the Petitioner had occasion to work as a licensed armed security guard for Foley Security and Detective Agency and for United Security Agency in Tampa. The Petitioner worked for each of them for about a year, until each went out of business. He also worked for Securex and later Bedway as an unarmed security officer from January 29, 1990, until he voluntarily quit pending the resolution of his license application. The Petitioner also has worked as a truck driver and has operated heavy equipment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent, the Department of State, Division of Licensing, enter a final order denying the application of the Petitioner, John P. Fletcher, for licensure as a Class "D" Unarmed Security Officer. RECOMMENDED this 11th day of February, 1991, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 11th day of February, 1991.
