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 The issues in this case are whether Respondent, Jean M. Duterne (Respondent), committed the violations alleged, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with the responsibility of regulating and licensing security officers within the State of Florida. See §§ 493.6101(1) and 493.6118, Fla. Stat. (2010). At all times material to the allegations of this case, Respondent held Security Officer License D 2526539 (D-license) and Statewide Firearms License G 2800118 (G-license). Prior to being licensed, Petitioner went through security officer training. To that end, Petitioner has read and asserts he understands Chapter 493, Florida Statutes (2008). Respondent was on-duty working as an armed security guard at the JMS Hotel (the hotel), located at 21601 32nd Street, South, St. Petersburg, Florida, on August 20, 2008. Respondent was involved in an incident in the hotel’s parking lot that resulted in police responding to the property. Respondent provided information to police at or near the time of the incident on August 20, 2008. On August 20, 2008, Respondent responded to a call to investigate a possible credit card theft in Room 166 of the hotel. When he presented at the room, Respondent observed a woman sitting in a car parked adjacent to the room and another woman loading items into the car. When Respondent attempted to speak to the woman inside the car, she started the engine and began to exit the property. At that time, Respondent reached into the vehicle and attempted to remove the key from the ignition. It was Respondent’s intention to detain the woman to determine what she was doing. Contrary to Respondent’s effort, the vehicle began to pull away, and Respondent hurriedly pulled himself from harm’s way and stepped back away from the vehicle. In the excitement of the moment, Respondent drew his 9 mm semi-automatic pistol and discharged it, in an effort to hit the tire of the exiting vehicle. Respondent did not hit the tire. It is unknown what, if anything, was struck by the bullet discharged. Respondent’s G-license expired on June 2, 2010. Respondent’s D-license is still valid. The course Respondent took to obtain the G-license required a 28-hour course taught by a state-licensed instructor. The course training includes a manual that contains scenarios for licensees to consider as examples of when one should retreat from potentially dangerous situations. Generally, licensees should avoid using deadly force (equivalent to discharging a firearm) whenever possible. Only under limited situations should a licensee discharge a weapon. To further explain and provide guidance for the use of deadly force, the manual sets forth the following examples: Situation #1 You are guarding a liquor store and are advised by a customer that there is an armed robbery in progress. You look around the corner and see a man rushing out the front door with a firearm in his hand. Instructor Discussion: Instead of immediately looking around the corner, call the police first. The suspect could turn around and see you as you look around the corner, thus increasing the probability of armed conflict. The man is running away from you and there is no threat of death or great bodily injury. Don’t shoot. Situation #2 You have been advised that a burglary has occurred at a warehouse you are guarding. The suspects were observed leaving the scene in a blue, 1972 Dodge. Later that night, while patrolling the grounds in a well- marked security vehicle, you observe the suspects’ vehicle traveling through the parking lot at a high rate of speed with the headlights off. You see a flash come from the driver’s side of the suspects’ vehicle and almost simultaneously the front windshield of your patrol car cracks. The suspect vehicle continues through the parking lot at a high rate of speed. Instructor Discussion: Don’t shoot. Record license number and description of vehicle and suspects if it is possible to do so from a covered position. Pursuit could result in serious injury to you or to innocent bystanders who may get in the way. Call for police as soon as possible. Respondent created the incident in this case by reaching into the vehicle. Had he used the methods outlined in the manual, Respondent would have responded to the room, contacted police with the information concerning the description of the car and its occupants, and followed up by determining whether a theft had occurred. Instead, by injecting himself into the car and attempting to remove the ignition key, Respondent could have easily been injured. Even so, such an injury would not have supported the discharge of Respondent’s weapon in a location where others could have been injured. This is especially true in light of the fact that the vehicle was pulling away from Respondent and not toward him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services, Division of Licensing, enter a final order denying the renewal of Respondent’s G-license and placing Respondent’s D-license on probation with such additional terms as the Department might deem appropriate. DONE AND ENTERED this 1st day of December, 2010, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 2010. COPIES FURNISHED: James A. Thomas, Esquire 334 South Hyde Park Avenue Tampa, Florida 33606 Tracy Sumner, Esquire Division of Licensing Division of Agriculture and Consumer Services 2520 North Monroe Street Tallahassee, Florida 32301 Constance N. Crawford, Director Division of Licensing Division of Agriculture and Consumer Services Post Office Box 3168 Tallahassee, Florida 32315-3168
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.
Findings Of Fact Robert W. Barnard was initially issued a Class "D" security guard license on May 12, 1986, by the Florida Department of State, Division of Licensing. At the time of licensure the agency was aware that Barnard had been found guilty of the felony of aggravated assault by a jury verdict, but that adjudication of guilt was withheld and he was placed on probation for five years, on September 3, 1974. (Exhibit #1, Respondent's Memorandum in Response to Petition. Effective October 1, 1986, the legislature added the following to Chapter 493, F.S., relating to licensing for investigative and patrol services: 493.319 Grounds for disciplinary action.-- * * * (1) The following constitutes grounds for which disciplinary action specified in subsection (2) may be taken: * * * (p) The department shall deny an applicant or revoke a license when the person or licensee has been convicted of a felony, regardless of whether adjudication was withheld or whether imposition of sentence was suspended, unless and until civil rights have been restored and a period of 10 years has expired: * * * Chapter 86-193, Laws of Fla. This provision was renumbered and was amended in 1987, as follows: (3) Notwithstanding the provisions of paragraph (1)(c) and subsection (2), the department shall deny an application or revoke a license when the person or licensee has been convicted of a felony, regardless of whether adjudication was withheld or whether imposition of sentence was suspended, unless and until civil rights have been restored and a period of 10 years has expired. A conviction based on a plea of nolo contendere shall create a presumption of guilt to the underlying criminal charges, and the department shall allow the person being disciplined to present any evidence relevant to the underlying charges and the circumstances surrounding his plea. Chapter 87-274, Laws of Fla. The agency issued a renewal certificate to Robert Barnard on March 17, 1988. (Exhibit #1, Respondent's Memorandum in Response to Petition) On September 19, 1989, the Department of State, Division of Licensing issued its Administrative Complaint, Case #89-01377, alleging that Robert W. Barnard's guard license should be revoked, based on his violation of Section 493.319(3), F.S.. Count I of the complaint alleges, "On September 3, 1974, Respondent was found guilty of one felony count of aggravated assault in Orange County, Florida." No other convictions or violations were alleged. Through counsel, Robert Barnard requested a formal hearing in response to the complaint. On November 1, 1989, Department of State Assistant General Counsel, Henri C. Cawthon, wrote to Richard Wallsh, Barnard's attorney, stating that it did not appear that material facts were in dispute and that an informal hearing would be more appropriate. The letter provided, in pertinent part: ... Because the Division will stipulate to the factual allegations in your petition, the only issue is a legal one: does Section 493.319(3), Florida Statutes (1987), require revocation when a licensee had adjudication withheld on a felony over ten years ago. It can also be stipulated that Mr. Barnard was licensed in spite of his criminal record, and that the Division is applying the statute retroactively. * * * (Attachment to Petition for Fees and Costs) On November 3, 1989, Robert Barnard petitioned for an informal hearing based on Mr. Cawthon's letter. On November 30, 1989, Robert Barnard filed his "suggestion of sealing of record", stating that on November 8, 1989, the ninth Judicial Circuit Court, in and for Orange County, entered its order sealing the pertinent criminal records pursuant to Section 943.058, F.S. and Fla. R. Criminal Procedure 3.692. (Attachment to Petition for Fees and Costs) Counsel for the agency claims that he had informed Petitioner's counsel that sealing the criminal record would result in dismissal of the administrative complaint, although the agency was under no obligation to inform Petitioner of this option. (Memorandum of Law in Response to Petition) On December 11, 1989, in a letter from Assistant General Counsel, Henri Cawthon, to Richard Wallsh, the agency informed Robert Barnard that, based on the order sealing records, the administrative complaint was being withdrawn. The informal hearing scheduled for December 19, 1989, was cancelled. Robert W. Barnard is a "prevailing small business party", as defined in Section 57.111(3)(c) and (d), F.S. (parties' Stipulation of Facts). The agency was not a "nominal party" as provided in Section 57.111(4)(d), F.S. (parties' Stipulation of Facts) In successfully defending the administrative complaint, Robert Barnard incurred reasonable attorneys fees and costs totalling $1,527.07. (parties' Stipulation of Facts) In successfully pursuing fees and costs, Robert Barnard incurred additional reasonable fees and costs in the amount of $1,281.53, for a total of $2,808.60.
Recommendation Based on the foregoing, it is hereby, ORDERED: That the Department of State, Division of Licensing pay Robert Barnard's attorney fees and costs in the amount of $2,808.60. DONE AND ORDERED this 3rd day of July, 1990, in Tallahassee, Leon County, Florida. MARY CLARK 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 3rd day of July, 1990. COPIES FURNISHED: Richard I. Wallsh, Esquire 2699 Lee Road, Suite 505 Winter Park, FL 32789 Henri C. Cawthon, Esquire Department of State Division of Licensing The Capitol, Mail Station No. 4 Tallahassee, FL 32399-0250 Honorable Jim Smith Secretary of State The Capitol Tallahassee, FL 32399-0250 Ken Rouse General Counsel Department of State The Capitol, LL-10 Tallahassee, FL 32399-0250
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
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 On November 5, 1987, Respondent James Louis Graves, then serving as an armed guard with Federal Armored Express, Inc., in Tampa, placed a telephone call from the vault of a branch of the Sun Bank in Tampa to his supervisor, Jerome E. Schwiegerath. The Sun Bank of Florida is a customer of Federal Armored Express, Inc. During this call, Respondent asked Mr. Schwiegerath why he could not get his pay check early instead of waiting until the end of the business day. Mr. Schwiegerath explained the reason but Respondent did not accept it and called Mr. Schwiegerath an "ass hole". After receiving this call, Mr. Schwiegerath told his superior what had happened and was instructed to fire Respondent for using abusive language in a customer's establishment. This conduct is a violation of company policy and grounds for dismissal. When Respondent came into the company office later that afternoon and cleared his account, Mr. Schwiegerath called him into his office where he advised Respondent he was discharged because of the phone call that he had made. Mr. Schwiegerath indicated that the basis for the discharge was Respondent's use of abusive language in a customer's establishment, a violation of company policy. At that time, he furnished Respondent a copy of the company's regulations. Respondent became violent and angry, cursing Mr. Schwiegerath and using profanity. When Mr. Schwiegerath turned away, Respondent swung at him and hit him two times, turning the desk behind which Schwiegerath was sitting over into his lap. When two other employees, Mr. McLean and Tom, came in, Respondent struck Tom as well. There is some evidence that Respondent pulled his weapon after Mr. Scwiegerath fell. Witnesses saw him with his weapon out. Mr. Schwiegerath contends Respondent pulled his weapon and pointed it at him for no reason. Respondent, on the other hand, indicates that he pulled his weapon in self defense only when Mr. Schwiegerath reached for his own weapon which, Respondent contends, had been laying on the desk. There is no doubt that Respondent unholstered his weapon and had it in his hand at some time during the altercation. When the police arrived, ten to twelve minutes later, Respondent, who had kept the weapon in his hand in the interim, holstered it before being told to do so by the police and was calm and cooperative with them. He was, nonetheless, arrested and, pursuant to his plea of nolo contendere to the offense of battery, found guilty in Hillsborough County Court on February 4, 1988. He was sentenced to pay $150 court costs, and was placed on six months probation. The offense of battery as tried in county court constitutes a first degree misdemeanor under provisions of Chapter 784.03, Florida Statutes. Both Mr. Schweigerath and Mrs. McLean were of the opinion that, based on his violent temper, Respondent should not be licensed as an armed guard and neither would again hire him in that capacity. Other than by reference in closing argument by counsel, which is not evidence, at no time did Petitioner, either by testimony or by documentation, establish that Respondent held either of the two licenses alleged in the order of emergency suspension.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Order of Emergency Suspension imposed upon Respondent be lifted and the action to revoke his permits as alleged be dismissed. RECOMMENDED in Tallahassee, Florida this 19th day of April, 1988. ARNOLD H. POLLOCK 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 19th day of April, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0812 The following constituted my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. By Petitioner 1. Rejected as unsupported by competent evidence of record. 2.-7. Accepted. 8. & 9. Accepted but irrelevant to the issues. 10.-13. Accepted and incorporated herein. COPIES FURNISHED: R. Timothy Jansen, Esquire Assistant General Counsel Florida Department of State The Capitol Tallahassee, Florida 32399-0250 James L. Graves 2002 North Armenia Apartment 12 Tampa, Florida 33607 Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 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: The Department is a state government licensing and regulatory agency. Respondent is now, and has been at all times material to the instant case, an employee of Vanguard Security and the holder of a Class "D" security guard license and a Class "G" statewide firearms license. Vanguard Security (hereinafter referred to as "Vanguard") is an agency which provides armed and unarmed security services to its clients. Vanguard has a written policy prohibiting the display and use of firearms by its security officers except where such conduct is reasonably necessary to prevent imminent bodily harm. Vanguard also has a written policy forbidding its security officers from leaving their assigned posts while they are on duty. These written policies are set forth in an employee handbook that all employees of the agency are given. On the evening of October 25, 1993, Respondent was assigned to provide armed security services in a warehouse area in Dade County, Florida. At approximately 10:00 p.m. that evening Andrea Ramsey was walking her friend's unleashed dog, a Doberman pinscher named "Chewy," in the vicinity of the warehouse area Respondent was responsible for guarding (hereinafter referred to as Respondent's "post" or "posted area"). Chewy's owner, Eileen Escardo, was working late in her photography studio which was located across the street from Respondent's post. Respondent saw Ramsey from afar. His suspicions aroused, he walked toward her to investigate. Respondent left his posted area and started to cross the street that separated the posted area from the warehouse in which Escardo's photography studio was located. When he was approximately 20 feet from Ramsey, he asked her if Chewy, who was by a tree to her left, was her dog. Ramsey responded in the affirmative. Chewy then, in a leisurely manner, headed toward Ramsey and Respondent. Although Chewy was moving in Respondent's direction, he did so in a manner that did not reasonably suggest that he was going to attack Respondent. Nonetheless, Respondent panicked. Contrary to his employer's written policies regarding the display and discharge of firearms, he drew his revolver and, when Chewy was approximately three or four feet away from him, fired the weapon, but without any intention of shooting the dog or Ramsey. The bullet hit and shattered the glass door of the business next to Escardo's photography studio. Fortunately, no one was hurt or injured. Ramsey screamed when Respondent fired his revolver. Escardo heard her friend's scream, as well as the shot that preceded it. She rushed out of her studio to see what had happened. Escardo saw Ramsey standing in the middle of the street, with Respondent nearby holding a revolver. After instructing Ramsey to call the police, Escardo walked toward Respondent. Pointing his revolver at Escardo, Respondent warned her to stay away from him. Despite the warning, Escardo, who was unarmed, continued to approach Respondent until she was close enough to push him and the revolver aside. She then turned around and walked toward her studio to wait for the police.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Department enter a final order (1) finding the evidence sufficient to establish that Respondent committed the violations of Section 493.6118(1)(f), Florida Statutes, in alleged Counts I and II of the Amended Administrative Complaint, and (2) disciplining him for having committed these violations by revoking his Class "G" statewide firearms license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of July, 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 19th day of July, 1994.
Findings Of Fact At all times pertinent hereto, Respondent held a valid Class "W" Concealed Weapon or Firearm License issued by the Petitioner. Petitioner alleges that Respondent was convicted of Assault with Intent to Murder on June 8, 1960 in the State of Georgia and his civil rights have not been restored. A person by the name of John P. Piner was sentenced by the Superior Court of Richmond County, Georgia, on June 8, 1960, to serve a term of imprisonment at hard labor for a period of not less than three (3) years and not more that four (4) years for the crime of Assault with Intent to Murder. The sentence was suspended and the Defendant was placed on probation and fined. Respondent, John P. Piner, during all relevant times was on active duty with the United States Army and remained so until his honorable separation from the service on June 23, 1969, after more than twenty years of service. The evidence failed to show that the person named in the Sentencing document found in the records of Richmond County, Georgia was the same person as the Respondent named in the Administrative Complaint. The evidence failed to show that the Respondent, John P. Piner, was adjudicated guilty of the felony of Assault with Intent to Murder in the State of Georgia by a court of competent jurisdiction.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Administrative Complaint filed against Respondent be DISMISSED and that Petitioner's application for renewal of his concealed weapon or firearm license be GRANTED. DONE and ENTERED this 30th day of November, 1994, in Tallahassee, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1994. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Proposed findings of fact submitted by Petitioner. Accepted in substance: paragraphs 1 Rejected as against the greater weight of evidence: paragraphs 2, 3, 4. Proposed findings of fact submitted by Respondent. Accepted in substance: Section 1. COPIES FURNISHED: Richard R. Whidden, Jr. Assistant General Counsel Department of State Division of Licensing The Capitol, MS-4 Tallahassee, Florida 32399-0250 Donald R. Henderson, Esquire Mateer Harbert & Bates Post Office Box 2854 Orlando, Florida 32802-2854 Honorable Jim Smith, Secretary of State Department of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater, General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250
