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 Petitioner protests the method by which Respondent Department of Transportation (DOT) advertised RFP-DOT-99/00-3002 and RFP-DOT-99/00-3003 and the specifications contained in the RFP's SCOPE OF SERVICES, Sections 1.7.2, 2.0-A, 14.0-A, 14.0-B, and 14.0-C.
Findings Of Fact The subject Requests for Proposal (RFPs) are RFP-DOT- 99/00-3002 and RFP-DOT-99/00-3003, commonly referred-to as the 2000 RFPs. These RFPs seek suppliers of security guards for rest areas and welcome centers maintained by DOT in its District III. That District currently is administered by "east" and "west" segments of Interstate Highway 10, with "east" corresponding to RFP 3003 and "west" corresponding to RFP 3002. NYCO is a supplier of security guard services for industrial, health care, general, and retail establishments in Florida, Alabama, and Mississippi. Ken Chandler is Administrator and Operational Manager for NYCO. Since 1994, NYCO has bid on DOT RFPs for the same project and has provided security guard services for District III. Generally speaking, security guards are non-skilled persons who work at or near minimum wage. Higher standards for its security guards imposed by prior DOT contracts requiring law enforcement training and certification have resulted in NYCO paying off-duty law enforcement officers at a considerably higher rate of pay to work at DOT's facilities. The 2000 RFPs constitute "contractual services contracts" governed by Chapter 287, Florida Statutes. They also are "standard scope of services contracts," which means they are developed on a statewide basis with District input. NYCO's first contract with DOT was awarded July 1, 1994, for two years. The second was awarded July 1, 1996, for two years. For the first contract, specifications were mailed to Mr. Chandler three months in advance of the bid submittal date. For the second contract, NYCO, as the incumbent contract holder, was notified that specifications were ready for pick-up. NYCO had to submit a written request for the RFP package. The 1999 RFP was advertised on the Florida Communities Network (FCN) and, according to Richard Norris, DOT District III Contract Administrator, RFP packages also were sent to all proposers for the prior contract because he had promised to do so when that set of bids had all been rejected. Apparently, no such promise was made for the 2000 RFPs. (TR-103). FCN is a website maintained by the Florida Department of Management Services for the purpose of advertising public contracts. During the course of NYCO's most recent contract, NYCO employee Joe Huff regularly checked with DOT personnel to ensure that the security which NYCO was already providing was going along well. Both Mr. Chandler and Mr. Huff assumed NYCO would be alerted during these conversations as to when it could request the specifications for the next round of contracts, the 2000 RFPs. DOT employee Lloyd Tharpe submitted technical aspects of the 2000 RFPs to Richard Norris on or about December 23, 1999. Mr. Huff testified that he made contact with DOT personnel, including Mark Thomas, Tom Williams, Charlie Ward, Rufus Baron, and Milton Blake, on February 7, February 14, February 15, February 21, and February 29, 2000. While Mr. Huff maintained that on nearly every occasion he asked if the DOT employee to whom he was speaking knew when the new RFP specifications would be ready, his testimony on the precise contents of these conversations is a little vague. He based his recollection on notes in his day planner which merely listed the name of a city, and he then assumed that he spoke with whomever he usually contacted in that city. He could not recall the exact content of these conversations. None of the foregoing DOT employees corroborated that they had been asked about the 2000 RFP specifications by Mr. Huff. It was not established that any of Mr. Huff's contacts were with DOT's procurement office, which Mr. Huff knew advertises the RFPs. DOT District Maintenance Engineer Mark Thomas stated that he only became aware on or about February 29, 2000, that the 2000 RFP was being advertised. Mr. Huff was told on February 29, 2000, by Mark Thomas that the 2000 RFPs were "on the street" and that the mandatory pre-bid conference would be held March 2, 2000. NYCO attended the mandatory pre-bid conference for the 2000 RFPs on March 2, 2000. On March 3, 2000, NYCO timely filed its Notice of Intent to Protest the specifications of the 2000 RFPs. The deadline for submitting proposals in response to the 2000 RFPs was March 9, 2000. NYCO submitted a bid proposal timely, but found it difficult to prepare in such a short time frame. On March 13, 2000, NYCO timely filed its Formal Written Protest of certain specifications of the 2000 RFPs. The specifications challenged in this case were developed by the Department's State Maintenance Office. They read as follows: 1.7.2 Qualifications of Key Personnel Those individuals (as identified in Section 12 of Exhibit "A" Scope of Services) who will be directly involved in the project should have demonstrated experience in the areas delineated in the scope of work. Individuals whose qualifications are presented will be committed to the project for its duration unless otherwise excepted by the Department's Contract Manager. Where State of Florida registration, certification, or license is deemed appropriate, as identified in Exhibit "A" Scope of Services, a copy of the registration, certificate, or license shall be included in the proposal package. 2.0-A Services to be Provided by Contractor A. Provide uniformed, armed Security Officers licensed pursuant to F.S. 493, to provide security services. 14.0 Eligibility Criteria All Security Officers and Contract Supervisors employed by the Contractor under this Contract are required to meet the following requirements. Training Requirements: Must be a graduate of a certified United States federal, state, county, or local law enforcement agency training program, a correctional officer training program, a military police training program, or an equivalent training program, which presented the individual with the appropriate certificate or diploma stating eligibility for employment as a Law Enforcement or Correctional Officer. Law Enforcement Officer and Correctional Officer shall be defined in Sections 943.10(1) and (2), Florida Statutes. The Contractor is encouraged to seek services of security guards licensed pursuant to Chapter 493, F.S., who are former members of the armed forces of the United States and have been affected by military downsizing or base closures, and shall be further encouraged to contact community colleges or other educational institutions which provide training for security guards for candidates meeting these qualifications. Licensing Requirements: Contract Supervisors and Security Officers, while on duty, must possess upon their person and present to Department personnel upon request the following: State of Florida Class "D" License (security guard license). State of Florida Class "G" License (license authorizing individual to bear a firearm). 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. No Security Officer will be permitted to work under this contract using an Acknowledgement Card from the Department of State. A Security Officer or Contract Supervisor employed as a Law Enforcement Officer or Correctional Officer must have documentation showing proof of current employment and approval from his/her employing agency or department to carry a firearm during off-duty hours in his/her capacity as Security Officer and Contract Supervisor. The manner of advertising the 2000 RFPs also was challenged. For the 2000 RFPs, DOT did not advertise in newspapers or the Florida Administrative Law Weekly and did not mail specifications to incumbent contractors or to a list of potential bidders. DOT only advertised the 2000 RFPs via FCN from approximately February 1, 2000 to March 6, 2000. According to Richard Norris, the Department is required by statute to advertise projects on FCN. He cited neither statute nor rule to support his conclusion. He stated that there are many other or additional ways DOT may advertise a project and that advertisement by FCN is only the minimum requirement. He was not aware of any current statutory or rule requirement that DOT directly notify potential bidders for this type of RFP. However, he stated that if he were approached directly by a potential bidder, he would tell that potential bidder about the RFP over the phone. To develop scope of services contracts such as the 2000 RFPs, Alan Reese, the Department's State Contracts and Agreements Manager, directs the gathering of information from the Department's Districts or other sources, develops a draft, receives input from each District as to the draft, and the draft is reviewed throughout the Department, including its legal office, until finally the State Maintenance Engineer signs-off on it. In this instance, the bid specifications were intended to create a uniform and consistent statewide system that was understandable to the bidders. Lloyd Tharpe and his staff were responsible for mailing out the RFP packages as they were requested by potential bidders after the first advertisement approximately February 1, 2000. No active intent or effort by DOT staff to obscure NYCO's opportunity to bid was proven. The 2000 RFPs require that to be a security guard of DOT facilities, one must be qualified to be hired as a law enforcement officer or correctional officer as defined in Subsections 943.10(1) and (2), Florida Statutes. (RFP Section 14.0-A). The training qualifications to be hired as a law enforcement officer under Chapter 943 are higher than those imposed by a Class "D" security guard license from the Department of State pursuant to Chapter 493, Florida Statutes. The 2000 RFP specifications also require that to be a security guard of DOT facilities one must have a Class "D" or Class "G" (if a gun is carried) license from the Department of State, pursuant to Chapter 493, Florida Statutes (RFP Section 4.0-B.1 and 2). DOT interprets the foregoing RFP requirements to mean that even currently employed Florida law enforcement officers and correctional officers must also be licensed by the Florida Department of State as Class "D" or Class "G" security officers. DOT is aware of an exemption in Chapter 493, Florida Statutes, permitting law enforcement officers to act as security guards without obtaining a Class "D" license from the Department. As far as the 2000 RFPs are concerned, the exemption may not be exercised. A 1996 DOT Inspector General's internal audit report identified individuals with questionable backgrounds working for security firms which had already contracted with DOT. The report concluded that the background checks that the then- existing contracts required the contract security firms to perform had been unsatisfactory. The report recommended that the security firms do more extensive background checks on their employees. DOT did not want anybody guarding tourists, especially women and children tourists, who had not gone through a thorough background check. DOT apparently felt it could not rely on the security firms to do background checks on their employee-guards. DOT determined that it did not have authority or ability to do its own background checks, so it decided to rely on the Department of State, which did have authority and ability to do background checks. Mark Thomas understood that once an application for a Class "D" or "G" license has been received by the Secretary of State, an FDLE criminal background check is conducted by the Florida Department of Law Enforcement (FDLE), and an acknowledgment card is sent by the Department of State to the applicant which states that the applicant may perform security guard services while carrying the card. However, Mr. Thomas ultimately admitted that he did not know anything at all about Department of State background checks. His "understanding" was not corroborated by Ms. Constance Crawford. Constance Crawford is the Bureau Chief for the Bureau of Licensing, Department of State. She handles the administrative responsibilities associated with the review of security guard applications pursuant to Chapter 493, and Sections 790.06 and 849.094, Florida Statutes. According to her, the Department of State will issue Class "D" and Class "G" security guard licenses to law enforcement officers. Ms. Crawford provided no information about the Department of State's security guard background checks. In developing the 2000 RFPs, DOT decided not to accept Department of State acknowledgement cards because DOT staff believed that acknowledgment cards were issued by the Department of State to applicants before a national background check (also called an NCIC check) was completed through the Federal Bureau of Investigation (FBI). No DOT witness had knowledge of how Department of State, FDLE, or FBI background checks are performed. Mr. Chandler testified that NYCO's problem with the RFPs' requirement for law enforcement officers to have Class "D" and/or Class "G" licenses before they are employed at DOT's interstate facilities was due to the time it takes to get Class "D" and "G" licenses issued by the Department of State, which can be anywhere from a few weeks to several months, and because it is very difficult for NYCO to retain potential employees for that long before they are placed on the jobsite. He testified that NYCO would have no problem if the employees could be certified in three days. Mr. Chandler testified that the letters of authorization required by DOT in specification 14.0-C differed from the language employed in Chapter 493, Florida Statutes, and that many law enforcement agencies had refused to sign the form letter provided by DOT because those law enforcement agencies interpreted the letters to make the law enforcement agencies liable for anything done by the law enforcement officer, on or off-duty. DOT's approved form letter reads: Dear Sirs: is an employee of this Department and has the approval of this Department to carry a fire arm during off- duty hours in his/her capacity as a Security Officer and/or Contract Supervisor at the Florida Department of Transportation Rest Areas/Welcome Centers within the Third District. Sincerely, Name Title
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Transportation which rejects all bids and provides that the specifications be redrafted in accordance with the foregoing Findings of Fact and Conclusions of Law. DONE AND ENTERED this 22nd day of August, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 22nd day of August, 2000.
The Issue The issue presented is whether Respondents are guilty of the allegations contained in the Administrative Complaint filed against them, and, if so, what disciplinary action should be taken, if any.
Findings Of Fact Jacquelyn Kendrick is the owner of the Club Ecstasy, an adult entertainment club with dancers and strippers, located in Fort Lauderdale. In August 1996 the Club had a contract for security services with Warrior, a security agency. Respondent Manuel Vernerette, as an employee of Warrior, provided security services at the Club. When Warrior's relationship with the Club ended, Kendrick approached Respondent Vernerette with regard to working for the Club. Although Vernerette was currently employed by Navarro during the day, he was able to work at the Club at night. Kendrick also asked him if he knew others who would work at the Club, and he referred several other Navarro employees to Kendrick, who interviewed them. One of the Club's employees would check identification and frisk the Club's customers for weapons outside the front door. The customer could then enter the Club, purchase a "ticket", and then pass through a second door into the "actual" Club portion of the premises. The customer's ticket was collected at the second door. Vernerette's duties were primarily to "collect the tickets" at the second door. He also helped stock the bar and collected money from customers who wanted to use the "VIP rooms". He also had some supervisory responsibilities over some of the Club's employees he had referred to Kendrick. Vernerette only worked inside the Club. On November 23, 1996, two of Petitioner's investigators appeared at the Club to check identification and licenses of any security officers working at the Club. When they arrived, Vernerette was outside with several other Club employees he had referred to Kendrick. Someone other than Vernerette was stationed at the door searching customers. Vernerette appeared to be overseeing the operation. Although all of those employees wore dark clothing, they were not in uniforms. At the request of the investigators, Vernerette produced his Class "D" security officer license and his Class "G" firearm license. At the time Vernerette, who also holds a concealed weapon or firearm license, was wearing a 9 mm. semi-automatic firearm in a gun belt which was covered by his jacket. He was also wearing a badge. He told the investigators how many security officers were working inside the Club and that they could come outside to have their licenses checked. Those persons were summoned. The investigators did not go into the Club that night. In response to the investigator's questions, Vernerette told them that all the security officers were employees of the Club. He specifically used the term "in-house" security. He was cooperative with the investigators. The investigators were told that "Jackie" was the person they needed to speak to regarding the employment status of the security officers but that she was not there. On January 30, 1997, the investigators returned to the Club since they had been unsuccessful in their attempts to contact Jackie. She was there that night. Vernerette was not since he had stopped working at the Club by January 3. Jackie denied that Vernerette and the other security officers were employees. She was unable to produce any documentation regarding her relationship with Vernerette or the other security officers. She had no contract, no payroll records, and no cancelled checks. She advised Petitioner's investigators that she paid Vernerette, sometimes by check and sometimes in cash, and that he then paid the others. After the investigators interviewed her, Kendrick began using deputies from the Broward County Sheriff's Office to provide security services at the Club. In February 1997 Vernerette received his Class "B" license, a security agency license. He visited Kendrick at the Club, gave her a proposal to provide security services at the Club, and gave her his new business card. The business card advertises Armstar Protective Services, lists Vernerette as the President and C.E.O., and includes his Class "B" license number. Vernerette did not conduct the business of a security agency without being so licensed when he worked at the Club. He worked there as an employee of the business and not as an independent contractor. Further, Vernerette did not perform security officer duties at the Club between November 23, 1996, and January 30, 1997.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondents not guilty of the allegations contained in Counts I, III, and V and dismissing the Administrative Complaint filed against them. DONE AND ENTERED this 19th day of February, 1998, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Kristi Reid Bronson, Esquire Department of State Division of Licensing The Capitol, Mail Station 4 LINDA M. RIGOT 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 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1998. Tallahassee, Florida 32399-0250 Yolanda Fox, Esquire Law Offices of C. Jean-Joseph Mercede Executive Park 1876 North University Drive, Suite 309C Plantation, Florida 33322 Don Bell, General Counsel Department of State The Capitol, Plaza Level 2 Tallahassee, Florida 32399-0250 Honorable Sandra B. Mortham Secretary of State Department of State The Capitol Tallahassee, Florida 32399-0250
Findings Of Fact The Petitioner, Ralph L. Leighton, age 41, holds a Class A license issued by the Department of State, authorizing him to engage in the business of operating a private investigative agency. He has also been licensed in Tennessee, and has never been convicted of a crime. The bulk of the Petitioner's investigative work has been in the area of domestic disputes. During the course of this domestic investigative work, the Petitioner was hired to do surveillance of a wife in connection with the husband's suit for divorce. Some of the facts surrounding the Petitioner's work on this case were related by a Family Conciliation Counselor for the Palm Beach County Juvenile Court, and by the wife's attorney. These facts were corroborated by the findings of the circuit court judge as recited in the final judgment of dissolution, a certified copy of which was received in evidence in this proceeding. Specifically, the court found that the Petitioner's testimony at the divorce trial was totally discredited, and that the Petitioner gave "false and misleading information" to the juvenile counselor "in an attempt to discredit the wife" whom the Petitioner had under surveillance. Subsequently, the Petitioner placed an ad in a newspaper for full time and part time investigators. One of the persons who responded to this ad and was hired, testified in this proceeding. The Petitioner provided a uniform, a badge, and the work assigned was as a security guard at a local shopping mall. There were no investigative duties involved; instead, a routine patrol of the mall area was to be performed. The Petitioner himself paid the wages for the first four weeks, then another individual made the payments. Another former employee of the Petitioner testified. This individual performed security guard and patrol work for the Petitioner at a local residential area. Although not uniformed, a full 100 percent of the duties assigned was spent patrolling the area, and a badge was provided by the Petitioner, as well as an identification card. Both of these individuals were initially hired by the Petitioner, paid by the Petitioner, assigned security guard or patrol duties by the Petitioner, issued badges and in one case a uniform by the Petitioner. Since no investigative duties were assigned or performed, and the wearing of a uniform is inconsistent with the normal work of an investigator, but routine for a security guard or patrolman, there is sufficient evidence to support a finding that the Petitioner was engaged in the business of providing security guards. This is not authorized by a Class A license. The Petitioner presented numerous character witnesses who testified generally that he is of good moral character, and other witnesses who had hired him as a private investigator and were satisfied with his work. The Petitioner himself denies that he has engaged in any work not authorized by his Class A license. However, this evidence is not sufficient to overcome the specific testimony of the Petitioner's two former employees, and the findings of the circuit court judge as recited in the divorce judgment.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED that the application of Ralph L. Leighton for a Class B Private Guard or Patrol Agency license, be denied. THIS RECOMMENDED ORDER entered on this 6 day of November, 1981, in Tallahassee, Florida. WILLIAM B. THOMAS, 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 6 day of November, 1981. COPIES FURNISHED: Earl R. Boyce, Esquire 120 South Alive Avenue West Palm Beach, Florida 33401 James V. Antista, Esquire Room 106, R.A. Gray Building Tallahassee, Florida 32301
The Issue This is a license discipline case in which the Respondent has been charged by Administrative Complaint with violations of numerous provisions of Chapter 493, Florida Statutes, regarding the several licenses held by the Respondent.
Findings Of Fact During October of 1990, Respondent's Class "B" Security Agency License was in a suspended status due to his failure to pay an administrative fine imposed by the Department of State. His Class "B" license expired July 10, 1991, and has not been renewed. At all times pertinent hereto, Respondent held a valid Class "D" Security Officer License and a Class "G" Statewide Firearm License issued pursuant to Chapter 493, Florida Statutes. Respondent's Class "M" Manager License was issued in July of 1985 and expired in July of 1987. He did not possess a valid Class "M" license in October of 1990. On approximately October 1, 1990, Respondent changed his business location from 2950 Northwest 214 Street, Opa Locka, Florida, to 4623 Forest Hill Boulevard, West Palm Beach, Florida. Respondent did not notify the Department of his address change within ten days of moving. The Department was notified of the address change sometime in May of 1991. On October 18, 1990, May Weiser, an employee of Respondent, appeared at the Department of State, Division of Licensing, West Palm Beach Regional Office to obtain applications for licensure. Ms. Weiser was wearing a security officer badge depicting a replica or facsimile of the Great Seal of the State of Florida. The badge was issued to her by Respondent. On October 19, 1990, Investigator Frank Bedingfield of the Division of Licensing inspected Respondent's business address at 4623 Forest Hill Boulevard in West Palm Beach, Florida. At that time it was determined that Respondent did not possess or have on display a valid Class "B" Security Agency License, an agency disclosure notice, a manager's license, or the required city and county occupational licenses. On that occasion, Respondent was dressed in a security guard uniform and was wearing a .357 caliber model 686 Smith & Wesson revolver loaded with three rounds of .357 caliber steel jacket ammunition and three rounds of .38 special hollow point ammunition. Respondent was also wearing a badge that depicted a facsimile of the Great Seal of the State of Florida. On October 19, 1990, Respondent was unable to provide Mr. Bedingfield with a current list of security agency employees or any business records including hiring and termination notices, and informed the investigator that records were not available due to his recent move. However, he agreed to meet with Mr. Bedingfield again on October 22, 1990, to provide the records. On October 19, 1990, Respondent was providing security guard services to four Miami churches. At the same time he was soliciting business and mailing advertisements in West Palm Beach. Respondent's Class "B" Security Agency License was issued February 23, 1990, was suspended for nonpayment of a fine on September 13, 1990, and was due for renewal on July 10, 1991. Respondent informed Mr. Bedingfield that the fine would be paid by October 22, 1990, in the Miami Regional Office of the Division of Licensing. On October 24, 1990, Mr. Bedingfield returned to Respondent's business location at 4623 Forest Hill Boulevard in West Palm Beach, Florida. Respondent was again wearing a .357 revolver even though he had been notified of the violation during Mr. Bedingfield's previous visit on October 19, 1990. Respondent told Mr. Bedingfield that he had requested a waiver from the Division of Licensing to carry other than a .38 revolver, but could not produce a copy of his request or an approval of such request. The Division of Licensing never received a waiver request from Respondent. Mr. Bedingfield's return visit also revealed that Respondent was again wearing a security badge with the Great Seal of the State of Florida. Respondent did not have a Palm Beach County occupational license and could not provide any evidence that he had notified the Division of Licensing of his change of business address. He could not provide Mr. Bedingfield with a current list of employees, copies of his agency security guard contracts, personnel files for the previous two years, or records of all terminations and new employments. Nor could Respondent produce evidence of current general comprehensive liability insurance. He did provide Mr. Bedingfield with approximately 73 employment applications of current and previous employees. Using these records Mr. Bedingfield compiled a list of guards and produced computer printouts of each current and previous employee. As of October 24, 1990, Respondent had failed to notify the agency of the hiring or termination of 43 employees. Respondent's insurance had been cancelled for non- payment of the premium in August of 1990. At the time of the events described in the foregoing findings of fact, Respondent had overlooked, or was not aware of, a number of the statutory requirements such as the requirements that he notify the Department when he changed business locations, that he display an agency disclosure notice, and that he not use the Great Seal of the State of Florida on his badges. He has since painted over the Great Seal on the badges. For reasons not clarified on the record in this case, Respondent's manager's license states that it is "non-expiring," notwithstanding the statutory provision that all licenses issued under Chapter 493, Florida Statutes, shall be valid for two years.
Recommendation Based on all of the foregoing, it is RECOMMENDED that the Department of State issue a Final Order in this case to the following effect: (a) Concluding that Count V of the Administrative Complaint should be dismissed for insufficient proof; (b) Concluding that the Respondent committed all of the other violations alleged in the Administrative Complaint; and (c) Imposing the following administrative penalties: A suspension of the Respondent's Class "D" Security Officer License for a period of one year; A suspension of the Respondent's Class "G" Statewide Firearm License for a period of one year; and An administrative fine in the total amount of one thousand ($1,000.00) dollars. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of May 1992. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-1015 The following are my specific rulings on all proposed findings of fact submitted by all parties in this case. Findings submitted by the Petitioner: All of the findings of fact proposed by the Petitioner have been accepted in substance. Findings submitted by the Respondent: The Respondent's proposed recommended order consists of nine unnumbered paragraphs, none of which are specifically identified as proposed findings of act, but most of which contain factual assertions. All of the factual assertions in the Respondent's proposed recommended order have been treated as if they were proposed findings of fact and are specifically addressed below. First paragraph: The first sentence of this paragraph is rejected as contrary to the greater weight of the evidence. The second sentence is rejected as irrelevant or as constituting subordinate and unnecessary details. The last sentence is rejected as constituting argument, rather than proposed facts. Second Paragraph: First two sentences accepted in substance. Last sentence rejected as irrelevant to the issues in this case. Third Paragraph: Accepted. Fourth Paragraph: First two sentences rejected as not supported by persuasive competent substantial evidence and as, in any event, irrelevant. Last sentence accepted. Fifth Paragraph: First paragraph rejected as contrary to the greater weight of the evidence; there were other reasons the licenses were not on display. Second sentence is accepted. The last two sentences are rejected as irrelevant or as constituting subordinate and unnecessary details. Sixth Paragraph: First sentence accepted in substance. The remainder of this paragraph is rejected as subordinate and unnecessary details. Seventh Paragraph: Rejected as subordinate and unnecessary details because other evidence establishes that at the time in question the Respondent was conducting and advertising the business of a security agency. Eighth Paragraph: Rejected as constituting comment on a subordinate matter, rather than a proposed finding of fact. Ninth Paragraph: This paragraph consists of a suggested disposition of the case, rather than proposed findings of fact. COPIES FURNISHED: Henri C. Cawthon, Esquire Assistant General Counsel Department of State Division of Licensing The Capitol, M.S. #4 Tallahassee, Florida 32399-0250 Mr. Dave Burgess, Jr. Post Office Box 552590 Miami, Florida 33055 Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250
The Issue The issue for determination at the final hearing was whether the Petitioner's application for registration as a service warranty association sales representative should have been granted.
Findings Of Fact The Petitioner, William E. Andrews, currently resides in Largo, Florida with his wife and one child. He is employed as an Assistant Manager at T.V. Stereo Town, Inc. located in Largo, Florida. On April 22, 1985, the Petitioner filed with the Department of Insurance an application for qualification and registration as a Service Warranty Association Sales Representative. The application specified that the Petitioner would represent T.V. Stereo Town, Inc. On April 9, 1983, the Petitioner entered a plea of guilty in the Circuit Court of Pinellas County to the offense of Grand Theft. The Court withheld adjudication of guilt and placed the Petitioner on probation for a period of three (3) years. The Petitioner was ordered to make restitution to the victim as a special condition of probation. The Petitioner was represented by counsel. On June 9, 1982, the Petitioner entered a plea of guilty in the County Court of Pinellas County to the offense of Battery. The Petitioner was adjudicated guilty and was sentenced to a 10 day suspended jail term and supervised probation for a period of six months. The Petitioner was not represented by counsel. On May 13, 1983, the Petitioner entered a plea of guilty in the County Court of Pinellas County to the offense of Obtaining Property in Return for a Worthless Check. The Court withheld adjudication and placed the Petitioner on unsupervised probation for a period of 60 days. The Petitioner was ordered to make restitution to the victim as a special condition of probation. The amount of the check was thirty-five dollars. The Petitioner was not represented by counsel. The grand theft charge involved theft of money and/or inventory from a business which the Petitioner and his ex-wife, Virginia Martin were involved with. The business consisted of a free standing display, or kiosk, which was set up in the middle of the Sunshine Mall in Pinellas County. The parent company was D & P Creations and the business involved gift shop merchandise. The Petitioner and Ms. Martin had an arrangement with D & P Creations wherein they would receive 20% of gross sales generated by the display. The business was opened on November 17, 1983 and closed on December 26, 1983. The loss in inventory and/or money to the parent company amounted to approximately $3,000. Throughout the operation of the business, the Petitioner worked as a desk clerk at the Gulf Sands Beach Resort Hotel. The Petitioner's ex-wife, Virginia Martin, worked as a bus driver for the Pinellas County School System. The Petitioner's wife actually ran the business, but Petitioner looked in on it from time to time. The Petitioner, upon considering advice of legal counsel, pled guilty to the offense of Grand Theft from D & P Creations. Virginia Martin, the Petitioner's ex-wife, was the victim of the battery charge to which Petitioner pled guilty. The battery occurred while the Petitioner and Ms. Martin were dating and before they were married. Petitioner and his ex-wife, Virginia Martin, maintained a joint account during the period when Petitioner pled guilty to obtaining property in return for a worthless check. The amount of the check was $35.00. The Petitioner and Virginia Martin were married in July of 1983; they were divorced in December of 1983.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is: RECOMMENDED THAT the Department of Insurance issue a final order denying William E. Andrew's application for registration as a service warranty association sales representative. DONE and ORDERED this 17th day of December, 1985, in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON 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 17th day of December, 1985. APPENDIX Respondent's Proposed Findings of Fact: Finding Ruling Accepted, see R.O. paragraph 3. Partially accepted; see R.O. paragraph 3. Matters not contained therein are rejected as conclusions of law. Partially accepted; see R.O. paragraphs 6, 7 and 8. Matters not included therein are rejected as argument and conclusions of law. Accepted; see R.O. paragraph 4. Accepted; see R.O. paragraph 5. Rejected as argument and conclusions of law. COPIES FURNISHED: Richard D. Tritschler, Esq. Department of Insurance and Treasurer 413-B Larson Building Tallahassee, Florida 32301 Don Dowdell, Esq. General Counsel The Capitol, Plaza Level Tallahassee, Florida 32301 David L. Levy, Esq. P. O. Box 5167 Largo, Florida 34294-5167 Hon. William Gunter State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32301
The Issue At issue is whether the respondent violated section 493.6118(1)(n), Florida Statutes, as alleged in the Administrative Complaint, and, if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and the entire record of this proceeding, the following findings of fact are made: During the period of time specified in the Administrative Complaint, May 19, 1994, through October 10, 1994, 24-Hour Security held a Class "B" Security Agency License, number B91-00117. From May 19, 1994, through October 10, 1994, Richard R. Cullen was president of 24-Hour Security and held, among other licenses, a Class "M" Manager License, number M86-00152. 24-Hour Security, whose only office is located at 1515 South Federal Highway, Boca Raton, Florida, is in the business of providing security guards to businesses and condominiums. It employs licensed security guards and trains and supervises them to ensure that they adequately perform their duties and carry out the instructions of 24-Hour Security's clients. From May 19, 1994, through October 10, 1994, Michelle T. Reilly was employed by 24-Hour Security and worked as assistant to Mr. Cullen. She began working for 24-Hour Security in September 1992 and has always been highly regarded as an employee by Mr. Cullen. He has trained her in all aspects of the private security service business in order for her to get the experience necessary to qualify for a chapter 493 manager's license. Prior to February 16, 1995, she had never held any type of license authorized by chapter 493 of the Florida Statutes. Mr. Cullen was aware that she was not licensed. Since the agency's inception, Mr. Cullen has designated himself manager of 24-Hour Security and has considered himself ultimately responsible for the operation of the agency. During the period of time at issue in this proceeding, Ms. Reilly's business cards identified her as "Branch Manager," and she was identified as such by licensed employees of 24-Hour Security. On one occasion during the Department's investigation, Ms. Reilly expressly identified herself to an investigator of the Department as manager of 24-Hour Security. During the period of time at issue in this proceeding, in addition to performing secretarial and bookkeeping duties, Ms. Reilly assisted Mr. Cullen in (1) hiring and training licensed security guards; (2) preparing daily work schedules for the guards; (3) preparing post orders outlining the duties a guard is to carry out at a particular post, including the client's special instructions or requirements; (4) supervising the operation of the agency's dispatch center; (5) addressing clients' problems; (6) consulting with clients regarding proper security precautions; (7) conducting post inspections to ensure that the guards are at their posts, properly uniformed and carrying out their responsibilities; and (8) writing security proposals for clients and in developing new accounts. In assisting Mr. Cullen with these duties, Ms. Reilly at times was allowed by Mr. Cullen to direct and control the activities of licensed security officers and to operate the agency. When Mr. Cullen was advised by the Department that Ms. Reilly could not function as or be designated as "manager" of 24-Hour Security, he immediately removed her business cards from the office. Ms. Reilly applied for a Class "MB" manager's license on November 9, 1994. Her application was denied by the Department by letter dated January 17, 1995, because she had "not demonstrated the lawfully gained experience or appropriate training" required for licensure. Ms. Reilly was issued a Class "D" Security Officer license on February 16, 1995.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of State, Division of Licensing, enter a Final Order finding 24-Hour Security, Incorporated, and Richard R. Cullen guilty of the violation alleged in the Administrative Complaint and imposing a fine of $500 for this violation. DONE AND ENTERED this 25th day of April 1995, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of April 1995. APPENDIX The following are my specific rulings on petitioner_s Proposed Findings of Fact. Paragraphs 1 through 9: Adopted in substance in Findings of Fact numbered 1 through 8. The following are my specific rulings on respondent_s Proposed Findings of Fact. Paragraph 1: Adopted in substance in Findings of Fact numbered 2 and 5. Paragraph 2: The proposed finding of fact in the first portion of the first sentence is rejected as not supported by the evidence. The proposed findings of fact set out in the second portion of the first sentence and in the second, third, fourth, and fifth sentences are rejected as merely summaries of testimony. The proposed finding of fact in the final sentence is rejected as not supported by the evidence. Paragraph 3: The proposed finding of fact in the first sentence was adopted in substance in Finding of Fact numbered 6. The remaining proposed findings of fact are rejected as argument. Paragraph 4: The proposed finding of fact in the first portion of the sentence is rejected as merely a summary of testimony; the proposed finding of fact in the second portion of the sentence is rejected as argument. Paragraph 5: Rejected as unnecessary. Paragraph 6: Rejected as unnecessary. Paragraph 7: The proposed finding of fact in the first portion of the sentence is rejected as unnecessary; the proposed finding of fact in the second portion of the sentence is rejected as not supported by the evidence. Paragraph 8: The proposed findings of fact in the first two sentences are rejected as legal argument. The proposed finding of fact in the last sentence is adopted in substance in Finding of Fact numbered 5. Paragraph 9: The proposed finding of fact in the first two sentences are rejected as unnecessary. The proposed findings of fact in the last two sentences are rejected as argument. Paragraph 10: Rejected as argument. Paragraph 11: Rejected as argument. Paragraph 12: Rejected as argument. COPIES FURNISHED: Kristi Reid Bronson Assistant General Counsel Department of State Division of Licensing The Capitol, M.S. #4 Tallahassee, Florida 32399-0250 Richard R. Cullen, President 24-Hour Security, Incorporated 1515 South Federal Highway Suite 109 Boca Raton, Florida 33432 Don Bell General Counsel Department of State The Capitol Tallahassee, Florida 32300-0250 The Honorable Sandra B. Mortham Secretary of State The Capitol Tallahassee, Florida 32399-0250
Findings Of Fact Respondent, Glen Thurlow (Thurlow), was certified by the Criminal Justice Standards and Training Commission (Commission) on June 15, 1982, and was issued Certificate Number 02-3128. Thurlow has been employed by the West Palm Beach Police Department (WPBPD) for the last eight years. On the evening of November 24, 1990, Thurlow was assigned as a police officer to the WPBPD Criminal Apprehension Team (CAT), which is a street crimes unit. That evening Thurlow was partnered for the first time with Lee Rollins (Rollins), a fellow police officer on CAT. Thurlow and Rollins were assigned as plain clothes officers in an unmarked police vehicle, an old, gold Cadillac. Thurlow had on a black T-shirt, combat pants, black combat boots, duty leather and underneath his shirt a bullet-proof vest with a trauma plate. Rollins was dressed in a black T-shirt and jeans. He was not wearing duty leather, but was wearing a utility belt fastened with velcro. Both officers wore their police badges on a chain underneath their shirts. Around 10:30 p.m., near the end of their duty shift, they were returning to the police station. Thurlow was driving south on South Dixie Highway headed toward the Belvedere Road intersection. As they approached the intersection, the officers saw a man, later identified as Robert Jewett (Jewett), dressed in cut-off jeans, a T-shirt, and a cap standing near the middle of the south bound lanes on South Dixie Highway past the Belvedere Road intersection, near the Palm Beach Post Building. The officers continued through the Belvedere Road intersection toward Jewett. As they approached Jewett, he stuck out his left hand in a "hitchhiking gesture." Thurlow pulled over to the side of the road near the parking lot of the Palm Beach Post Building. When Thurlow pulled over, Jewett ran up to the car and got in the back seat. Rollins showed Jewett his police badge, told Jewett that he was a police officer, and requested Jewett to step outside the car. Jewett complied. Rollins exited the Cadillac and Thurlow remained inside. Rollins asked Jewett for his driver's license, which Jewett gave him. Rollins radioed the police dispatcher with the information on the driver's license in order to determine whether there were any outstanding warrants on Jewett. Rollins advised Jewett that he was going to charge him with hitchhiking, but that if there were no warrants against Jewett that he would be given a Notice to Appear and released at the scene, rather than being taken down to the police station. Rollins told Jewett to place his hands on top of the car and spread his legs so that Rollins could search him for weapons. Jewett complied. Thurlow, still sitting in the driver's seat, was monitoring the conversation between Rollins and Jewett. Rollins began the weapons search at Jewett's shoulder and continued down to his left pocket. Finding nothing, he started to search the right pocket. At that time Jewett brought his right arm down from the top of the car. Rollins caught his arm, put it back on top of the car, and told him to keep his hands on the top of the car. As Rollins proceeded to search Jewett's right pocket, Jewett brought his right arm down and stuck it in his pocket. At the same time he came around with his left elbow and hit Rollins on the left side of his chest, knocking him around. Rollins pulled Jewett's hand out of his pocket and they began to struggle. Rollins pulled his flashlight from his back pocket and tried to hit Jewett on his left forearm. Jewett tried to kick Rollins in the groin and Rollins grabbed Jewett's T-shirt. Their feet tangled, the men went down and Rollins fell back toward the car, hitting his head on the back door. Rollins was stunned from the blow to his head. Thurlow felt the Cadillac rock as if someone had bumped against the car. Rollins called to Thurlow to give him some assistance. Thurlow exited the car and came around to the passenger side, where he saw Rollins sitting on the ground with his back to the car, and Jewett straddling and leaning over Rollins with his arms raised as if he were preparing to hit Rollins. Thurlow ran up behind Jewett and put his arm below Jewett's Adam's apple in Jewett's upper chest area in order to pull Jewett back from Rollins. Jewett began to fight and had Thurlow on the balls of his feet. They went towards the front of the car. Jewett went down on his knees with Thurlow's arm still around him. Jewett stood up with Thurlow on his back and they both went backwards, and as a result Thurlow's arm slipped up towards Jewett's chin. Rollins, seeing Jewett put his right hand in his pocket, ran over to Jewett and tried to grab his right hand. The three men fell to the ground and rolled backwards landing in a grassy area. Thurlow still had his arm around Jewett's neck. Thurlow was on the bottom, Jewett in the middle and Rollins on top. Thurlow released his hold on Jewett and slipped out from under Jewett. Thurlow was on Jewett's left side and Rollins was sitting to Jewett's right, about, waist-high facing away from Jewett. Jewett was grabbing at his right pocket. Rollins saw a metal object in the area of Jewett's right pocket. Rollins took his flashlight and swiped at the metal object, sending both the flashlight and the metal object flying off in an easterly direction. Rollins told Jewett to quit struggling. Jewett grabbed the butt of Rollins' gun. Rollins hollered to Thurlow that Jewett had his gun. Rollins hit Jewett in the groin three to four times. Thurlow got up and threw a punch at Jewett connecting at Jewett's left eye. At that point Jewett quit fighting. Thurlow held Jewett's arm over the curb and told Rollins to handcuff Jewett. Having lost his handcuffs in the struggle, Rollins used Thurlow's handcuffs and cuffed Jewett's hands behind his back. All three men were breathing hard and sweating. Rollins told Thurlow that he had lost his flashlight and that something had been thrown out of Jewett's hand during the struggle. Thurlow left Rollins with Jewett and went to look for the lost items. At the time Thurlow left Rollins and Jewett, Jewett was breathing. During the struggle, Rollins' handcuffs, radio, and ammo pouch came off his belt. Rollins found his radio and called the dispatcher at 22:35:52 hours to report the incident. He then went to look for the rest of his missing equipment and was gone approximately one to one and a half minutes. Rollins returned to Jewett and started to pick him up; however Jewett was limp. Rollins put him back on the ground and tried to take his pulse. Because Rollins was still in an excited state from the fight, he could not tell whether he was getting a pulse from Jewett. He tried to take Jewett's pulse again but still could not determine whether he was getting a pulse. Thurlow, having found the flashlight in the grass and an open pocketknife on the sidewalk, walked back over to Rollins and Jewett. Thurlow asked Rollins if something was wrong with Jewett, and Rollins replied that Jewett did not look well. At 22:39:54 hours Thurlow radioed for the paramedics. At 22:43:35 hours, Thurlow again radioed for the paramedics to hurry and get to the scene. Rollins again checked for a pulse but could not determine whether there was a pulse. A few minutes later firefighters, responding to a medical call, arrived on the scene. One of the firefighters checked Jewett's pulse and breathing and determined that Jewett was not breathing and did not have a pulse. Jewett was pale with some discoloration and swelling about the face. Within several seconds, the rescue team arrived. The rescue team got Jewett uncuffed and began to administer advanced life support. Jewett was transported to a hospital where he was pronounced dead. Both Thurlow and Rollins were trained to administer CPR; however the unmarked police vehicle did not contain rubber gloves or a bag which are used in administering CPR to protect the person administering CPR from diseases such as AIDS which could be transmitted by bodily fluids. Additionally, Jewett appeared to be breathing, which would mean that he was not a candidate for CPR. At the time of the incident, Joseph Huffman and his girlfriend were traveling north on South Dixie Highway in a van. The van had windows on the rear doors and on the passenger and driver doors. As Mr. Huffman approached the Palm Beach Post parking lot, he saw two men scuffling on the hood of the gold Cadillac. He began to slow down to watch the fracas. He observed the fight for approximately 20 to 30 seconds, during which time he looked over to the El Cid Bar to see if anyone was watching. His girlfriend observed that Huffman tried to look at the fight through his side mirror but couldn't see so he stuck his head out the driver's window and glanced back once or twice, looking forward to check the approaching traffic. Huffman recalled seeing a third man strike Jewett at least 20 times in the groin with a flashlight; however the medical evidence does not support Mr. Huffman's assertion. Having judged the credibility of the witness, I find that Mr. Huffman's recollection is not credible. An autopsy was performed on Jewett by the Palm Beach County Medical Examiner, Dr. James Benz. The autopsy revealed that Jewett had a black eye, markings on the forehead and neck area, minor bruises and abrasions on the right forearm, abrasions on the knees, and abrasions on the right wrist. Jewett suffered fractured ribs and bruising of the left lung underlying the rib fractures. There was a "blow out" of the heart. There was hemorrhaging underneath the Adam's apple and an irregular fracture in the lamana below the Adam's apple. The hyoid bone, which sits above the voice box, was fractured. There were no injuries to the upper thighs, penis or lower abdomen. There was a mild bruise in the testicle area and hemorrhaging in the left testicle. The injuries to the testicles are not consistent with Jewett's being hit between 10 to 20 times with a flashlight in the groin. The "blow out" of Jewett's heart is called a cardiac tamponade. Most probably as a result of the impact to Jewett's chest when he, Rollins, and Thurlow fell to the ground, a thin area of Jewett's heart blew out forming a small hole in Jewett's heart. The heart pumped blood through the small hole into the pericardial sac. As a result of the blood flowing into the pericardial sac, the heart could not expand and death occurred. The cardiac tamponade did not occur after Jewett died nor did it occur in a peri-mortem, near-death state. The cardiac tamponade did occur while Jewett was alive and death occurred some time later. Based on the testimony of Dr. Charles Petty, an expert in forensic pathology, I find that the injuries to Jewett's neck occurred as a result of forceful application of force to the neck, which is consistent with a fall across a rounded object such as a forearm rather than police carotid holds and choke downs. The Use of Force Matrix from the Florida Department of Law Enforcement is the state standard concerning the use of force by law enforcement officers. The matrix lists the resistance levels of a subject and indicates the appropriate level of force to be used by an officer in responding to the various levels of resistance. An aggressive physical resistance is defined as overt, hostile attacking movements which may cause injury, but are not likely to cause death or great bodily harm to the officer or others. Aggravated physical resistance is when the subject makes overt, hostile, attacking movements with or without a weapon, with the intent and apparent ability to cause death or great bodily harm to the officer or others. The resistance level of Jewett when he was straddled and leaning over Rollins as Rollins was up against the fender of the Cadillac and Jewett's actions at the front of the car with Thurlow constitutes aggressive physical resistance. The matrix guidelines indicate that an officer may use all levels of force with the exception of deadly force in dealing with aggressive physical resistance. When Thurlow grabbed Jewett from behind to remove Jewett from his position of standing over Rollins, Thurlow was not using deadly force. His arm was not under Jewett's chin but was lower, nearer the upper chest area. The resistance level of Jewett when he was trying to get Rollins' gun constitutes aggravated physical resistance. The matrix guidelines for force to counter aggravated physical resistance include among other things, counter moves, incapacitation, and deadly force. Deadly force includes techniques that may result in imminent or serious injury, unconsciousness or permanent disfigurement, such as impact weapon strikes to the head or use of firearms. Thus, Thurlow's punch to Jewett's face was within the matrix guidelines.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint against Respondent, Glen H. Thurlow. DONE AND ENTERED this 27th day of October, 1994, 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 27th day of October, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2593 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: Petitioner's Proposed Findings of Fact Paragraphs 1-3: Accepted in substance. Paragraph 4: Rejected as subordinate to the facts actually found. Paragraphs 5-8: Accepted in substance. Paragraph 9: The first sentence is accepted in substance with the exception of the word "allegedly" which is rejected. The second sentence is accepted in substance. Paragraphs 10-12: Accepted in substance. Paragraph 13: The first two sentences are accepted in substance. The last sentence is rejected as not supported by the greater weight of the evidence. Paragraph 14: Accepted in substance. Paragraph 15: Accepted in substance. Paragraph 16: The first sentence is accepted in substance. The second sentence is accepted in substance; however it should be noted that it appeared to Thurlow that Jewett was about to strike Rollins. Paragraph 17: The first and second sentences are rejected as not supported by the greater weight of the evidence. The evidence established that Thurlow jumped across Jewett's back, placing his arm across Jewett below Jewett's Adam's apple. The second sentence is accepted in substance. Paragraph 18: Accepted that Thurlow and Jewett continued to struggle. Rejected that Thurlow continued to maintain a choke hold on Jewett. The greater weight of the evidence established that Thurlow's arm did not slip up under Jewett's chin until Jewett and Thurlow began to fall backward. Paragraph 19: Rejected as not supported by the greater weight of the evidence. Paragraph 20: Accepted in substance with the exception of "continued to hold Mr. Jewett in a choke hold." The evidence established that Thurlow's did not have a choke hold on Jewett until they fell backwards and that the choke hold was not an intentional action but rather resulted from the struggle between Jewett and Thurlow and Rollins running into them. Paragraph 21-22: Accepted in substance. Paragraphs 23: Accepted in substance except to the extent that such finding implies that Thurlow had a choke hold on Jewett at the time that Huffman saw them. Paragraphs 24-26: Having judged the credibility of the witnesses, I find that Huffman's testimony concerning the repeated striking of Jewett in his groin not to be credible, particularly considering the medical evidence and the fact that Huffman was driving down the street while he was trying to look at the fight and keep track of traffic both in front of and behind him. Paragraph 27: Rejected as not supported by the greater weight of the evidence. Paragraph 28: Accepted in substance. Paragraph 29: Rejected as not supported by the greater weight of the evidence. Paragraph 30: Rejected to the extent that it implies that Thurlow had a choke hold on Jewett the entire time that they were struggling. The evidence established that Thurlow did not start out with a choke hold but that during the struggle, Thurlow's arm slipped underneath Jewett's chin. Paragraphs 31-35: Accepted in substance. Paragraph 36: Accepted in substance to the extent that at one point in time while Jewett was supine on the ground his head was turned toward Thurlow and he grabbed Thurlow's shirt but rejected to the extent that it implies that during the entire time Jewett was on the ground he was looking at Thurlow and grabbing Thurlow's shirt. Paragraph 37: Accepted in substance. Paragraph 38: Accepted in substance to the extent that Thurlow did hear Rollins shout that Jewett had grabbed his gun and to the extent that Thurlow did not see Jewett actually grab the gun. Rejected to the extent that the word "claiming" implies that Rollins may not have shouted to Thurlow that Jewett had his gun and rejected to the extent that the last part of the sentence could be construed to mean that Thurlow did not see Jewett's right arm reach in the direction of Rollins' holster. Paragraphs 39-40: Accepted in substance. Paragraph 41: Accepted in substance with the exception of the word "allegedly." Paragraphs 42-45: Accepted in substance. Paragraph 46: The portion relating to rendering medical assistance is accepted in substance. The portion relating to never checking on the well being of Jewett is rejected as not supported by the evidence. Thurlow did inquire of Rollins concerning the condition of Thurlow before he called for the paramedics. Paragraph 47: Accepted in substance. Paragraph 48: Accepted in substance to the extent that Rollins did not render any first aid but rejected to the extent that Thurlow always had an unobscured view of Jewett. The evidence established that Thurlow was looking for the knife and the flashlight during a portion of the time . Paragraph 49: Rejected as constituting a conclusion of law. Paragraphs 50-51: Rejected as subordinate to the facts actually found. Paragraphs 52-53: Accepted in substance. Paragraph 54: Rejected as not supported by the greater weight of the evidence. Paragraph 55: Rejected as not supported by the greater weight of the evidence. Paragraph 56: Accepted in substance. Paragraphs 57-59: Rejected as subordinate to the facts actually found. Paragraphs 60-73: Rejected as unnecessary. Paragraph 74: Accepted in substance to the extent that Jewett was lying on the ground, was bloody, and was not moving. In light of the testimony of Mr. Cook that Jewett's skin was pale and there was discoloration about his face, I do not find Mr. Bouchillion's testimony that Jewett was turning blue to be credible. Paragraph 75: Accepted in substance. Paragraphs 76-77: Rejected as subordinate to the facts actually found. Paragraphs 78-86: Accepted in substance. Paragraphs 87: Rejected as not supported by the greater weight of the evidence. Paragraph 88: Accepted in substance. Paragraph 89: Rejected as subordinate to the facts actually found. Paragraphs 90-96: Accepted in substance. Paragraph 97: Having considered the opinions of Dr. Benz and Dr. Petty, I reject the finding to the extent that it implies that the fractures resulted from a choke hold applied prior to Thurlow, Jewett, and Rollin falling down and rolling into the grassy area. Paragraph 98: The first sentence is accepted in substance. The second sentence is rejected as not supported by the greater weight of the evidence. Paragraph 99: Accepted in substance. Paragraph 100: Rejected as not supported by the greater weight of the evidence. Paragraphs 101: Rejected as subordinate to the facts actually found. Paragraph 102: Rejected as subordinate to the facts actually found. Paragraph 103: Rejected as unnecessary. Paragraph 104: Accepted in substance. Paragraphs 105-109: Rejected as subordinate to the facts actually found. Paragraph 110-111: Accepted in substance. Paragraph 112: Rejected as subordinate to the facts actually found. Paragraph 113: Accepted in substance. Paragraph 114: Rejected as subordinate to the facts actually found. Paragraph 115: Rejected as unnecessary. Paragraphs 116-117: Rejected as subordinate to the facts actually found. Paragraph 118: Rejected as not supported by competent substantial evidence. Paragraph 119: Rejected to the extent that it implies that Thurlow had a choke hold on Jewett from the time there were at the rear of the Cadillac until they fell backwards. The evidence established that Thurlow did not have Jewett in a choke hold when Thurlow grabbed Jewett from behind. Paragraph 120: Rejected as constituting argument. Paragraph 121-125: Rejected as subordinate to the facts actually found. Respondent's Proposed Findings of Fact Paragraph 1: The first two sentences are accepted in substance. The last sentence is rejected as unnecessary. Paragraphs 2-3: Rejected as subordinate to the facts actually found. Paragraph 4: The first and last sentences are accepted in substance. The second sentence is rejected as unnecessary. Paragraphs 5-8: Accepted in substance. Paragraph 9: The first sentence is accepted in substance. The portion of the second sentence relating to Thurlow being able to hear is accepted but the portion that Thurlow could see everything is rejected as not supported by the greater weight of the evidence. The last sentence is accepted in substance to the extent that Thurlow thought that he needed to monitor the traffic but the greater weight of the evidence established that the Cadillac was not in the lane of traffic while it was parked. Paragraphs 10-27: Accepted in substance. Paragraph 28-30: Rejected as unnecessary. Paragraph 31: Accepted in substance. Paragraph 32: The first sentence is accepted in substance. The second sentence is rejected as subordinate to the facts actually found. COPIES FURNISHED: Dawn P. Whitehurst, Esquire Paul D. Johnston, Esquire Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Gene "Hal" Johnson, Esquire Florida Police Benevolent Association, Inc. 300 East Brevard Street Tallahassee, Florida 32301 Scott N. Richardson, Esquire Atterbury, Goldberger & Richardson One Clear Lake Center, Suite 1400 250 Australian Avenue, South West Palm Beach, Florida 33401-5012 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage General Counsel Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue for determination is whether Respondent committed the violations set forth in the amended administrative complaint, and if so, what action should be taken.
Findings Of Fact At all times material hereto, South Florida Patrol Agency, Inc., John D. Turner, President (Respondent), held, and holds, a Class "B" Security Agency license, issued pursuant to Chapter 493, Florida Statutes, having been issued license number B91-00002. On May 20 and 25, 1994, an investigator (lead investigator) for the Department of State, Division of Licensing (Petitioner) performed a proactive inspection 1/ of the U.S.A. Flea Market (Flea Market) in Miami, Dade County, Florida. On the inspection conducted on May 25, 1994, Petitioner's investigator was accompanied by another of Petitioner's investigators. Respondent was providing security for the Flea Market on the inspection dates. On May 25, 1994, Petitioner's investigators observed that the security officer on duty at the main gate post, Jerred Smith, was not wearing a uniform. Also, Petitioner's investigators observed that the security officer on duty at the back door post, Juan Fajardo, did not have a patch or emblem on his uniform. The security officers were employed by Respondent. Respondent's President, Johnny D. Turner, was called to the main gate post by the security officer on duty and accompanied Petitioner's investigators to the other posts manned by Respondent's security officers, including the back door post. After the inspection was completed, Petitioner's lead investigator discussed the violations found with Respondent's President and requested that Respondent's President provide certain records. Respondent's President requested a meeting with Petitioner's lead investigator and the lead investigator's supervisor. A meeting was scheduled at Petitioner's Miami regional office for June 2, 1994, at which time Respondent's President was requested to bring with him records for the last six months consisting of payroll records and work schedules for security officers. However, on June 2, 1994, Respondent's President called the lead investigator's supervisor and requested that the meeting be rescheduled. The meeting was rescheduled for June 14, 1994. Respondent's President failed to appear at the rescheduled meeting. At no time subsequent thereto has the lead investigator or his supervisor been contacted by Respondent's President regarding his failure to attend the meeting scheduled for June 14, 1994, or to reschedule another meeting. Furthermore, at no time has Respondent's President provided the requested records.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of State, Division of Licensing enter a final order: Imposing an administrative fine of $350 for Count II; Imposing an administrative fine of $350 for Count III; and Imposing an administrative fine of $500 for Count IV. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 10th day of July 1995. ERROL H. POWELL 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 10th day of July 1995.
The Issue Is Petitioner entitled to the renewal of her Class "D" license to serve as a private security officer?
Findings Of Fact Respondent licenses and regulates persons who hold Class "D" private security officer licenses. This licensure and regulation is in accordance with Part 1, Chapter 493, Florida Statutes. Petitioner held a Class "D" private security officer license. When Petitioner sought the renewal of that license, the license was denied for the reasons that have been stated. At times relevant to the inquiry, Petitioner worked for Giddens Security Corporation, which provided security for businesses located in Duval County, Florida. At times relevant to the inquiry, Terry H. Conners was a night supervisor for Giddens Security. He was responsible for checking the attendance of private security officers employed by Giddens Security at job sites. Centex Corporation was a client of Giddens Security in Duval County, Florida. Centex had a housing project that consisted of three completed model homes and other construction. The expectation was that the private security officer working for Giddens Security would patrol the area of the model homes and the balance of the construction site to make certain that unauthorized persons did not trespass. On June 25, commencing at 6:00 p.m. through June 26, 1997, at 6:00 a.m., Petitioner was responsible for performing the security patrol at the Centex location. At 1:35 a.m., June 26, 1997, Mr. Conners arrived at the Centex location. Petitioner was not on duty. Petitioner had abandoned her assignment as a security officer and responsibility to protect the property interest of Centex at that location. Mr. Conners ascertained that Petitioner was missing from her post by searching the entire area which Petitioner was responsible for patrolling. Mr. Conners assumed the duty of security officer on that occasion from approximately 1:35 a.m. to 6:00 a.m., June 26, 1997. Petitioner never returned to her post. Lieutenant Michael Batchelor was another supervisor employed by Giddens Security at times relevant to the inquiry. Among his responsibilities was the supervision of security officers working for Giddens Security at the construction site for Flournoy Construction Company, in Duval County, Florida. Petitioner had been assigned to work at the Flournoy site from 6:00 p.m. July 6, 1997, to 6:00 a.m. July 7, 1997, in the capacity of a security officer. Lieutenant Batchelor arrived at the Flournoy Construction site around 1:05 a.m. July 7, 1997. He went there specifically to give the key to the gate at the site to the security officer on duty. Lieutenant Batchelor could not locate the Petitioner at the site. Lieutenant Batchelor then undertook the responsibility to secure the Flournoy site from the time of his arrival until 6:00 a.m., July 7, 1997. During that time Petitioner never appeared at the site. Petitioner's responsibilities for patrolling the Flournoy Construction site were the same as those for the Centex site. Petitioner was expected to secure the property at the Flournoy site and keep persons from trespassing there. As with the circumstances with the Centex site, for the period that the supervisor was in attendance and Petitioner was not, Petitioner had abandoned her post at the Flournoy Construction site.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is recommended that a Final Order be entered which denys Petitioner her renewal of the Class "D" private security officer license which she held. DONE AND ENTERED this 13th day of March, 1998, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1998. COPIES FURNISHED: Kimberely Webber 6756 103rd Street Jacksonville, Florida 32210 Michele Guy, Esquire Department of Licensing The Capitol, Mail Station 4 Tallahassee, Florida 32399-0250 Don Bell, Esquire Department of State The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0250 Sandra B. Mortham, Secretary Secretary of State The Capitol Tallahassee, Florida 32399-0250
