Findings Of Fact Petitioner is 37 years old. In 1985 and 1986, he was employed as a security guard in Cocoa, Florida. On October 17, 1968, he was arrested in Brevard County, Florida, and charged with a felony -- breaking in and entering with an intent to commit the misdemeanor of petit larceny. Petitioner and a friend had broken into a laundromat with the intent to break into a soda machine. Petitioner pled guilty to the felony. He was adjudicated guilty and sentenced to five years imprisonment. Shortly thereafter, the sentence was set aside, and Petitioner was placed on probation. Petitioner was arrested for separate violation of the terms of his probation on November 6, 1969; August 18, 1970; January 3, 1977; and January 17, 1977. He was also arrested on May 29, 1974, in Melbourne, Florida, and charged with disorderly conduct -- prowling. Shortly after the May, 1974, arrest, Petitioner was referred to Brevard County, Division of Mental Health, for treatment. He was committed to the state mental health facility at Chattahoochee, Florida for further treatment at that time. Respondent's civil rights have never been restored after the felony conviction in 1968. On July 17, 1986, Petitioner executed his Application for Unarmed Guard License, the denial of this application resulted in the present hearing. In response to Question No. 13, which requires that the applicant list all arrests, Petitioner listed only "Breakin & Enting" (sic) in December, 1966 (sic).
Recommendation Based on the foregoing, it is hereby RECOMMENDED that Respondent enter a Final Order denying Petitioner's application for a Class "D" license as an unarmed guard under Chapter 493, Florida Statutes. ENTERED this 30th day of December, 1987, in Tallahassee, Florida. ROBERT E. MEALE 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 30th day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3005S TREATMENT ACCORDED RESPONDENT'S PROPOSED FINDINGS OF FACT Findings 1, 4, 5, 6, 7, 8 and 9 are accepted. Findings 2 and 3 are rejected in part as not supported by the evidence adduced at the hearing. COPIES FURNISHED: Ken Rouse, Esquire General Counsel Department of State 1801 The Capitol Tallahassee, Florida 32399 R. Timothy Jansen, Esquire Department of State Division of Licensing The Capitol, M.S. 4 Tallahassee, Florida 32399 Grady Griffis, Jr. 255 West Lucas Road Apartment No. E-322 Merritt Island, Florida 32952
The Issue The issue is whether Petitioner falsified information on his application.
Findings Of Fact Maurice A. Sanderson applied for licensure as an unarmed guard on February 24, 1981, and for licensure as an armed security guard on March 17, 1981. On both applications Sanderson answered "no" to Question #13, "Have you ever been arrested?" Sanderson stated, and his FBI records reveal, that he was arrested on June 1, 1975; June 15, 1975; and June 19, 1975, for passing worthless bank checks. On October 26, 1977, he was arrested for violating probation and leaving the area of his probation. At the time of his original arrest in 1975, Sanderson owned his own carpet installation business and was having marital problems. Sanderson wrote two business checks for less than $50, which were not good. He also wrote a business check for payment for carpet to be installed in an office complex. The check he received in payment for this carpet was worthless, which impaired Sanderson's check. This resulted in a felony charge of passing a worthless bank check. Sanderson was placed on three years' probation without adjudication on the felony charge. In 1977, Sanderson broke the terms of his probation and left Florida because of continued problems with his wife and custody of his children. In October of that year he returned to Florida and voluntarily surrendered himself to the authorities. He was placed on an additional two years' probation without adjudication for violating the terms of his original probation. Since 1977, Sanderson has not been arrested. Sanderson stated he did not report his arrest because he was afraid he would not be hired by the company by which he is now employed, Atlas Security Service, Inc. Sanderson's supervisor, James C. Starzy, testified concerning Sanderson's performance of his duties since his employment. Sanderson was initially employed as an unarmed guard at both Century Village East and West. Approximately two months later the supervisor at Century Village West was terminated by Atlas. At that time, Sanderson was promoted to supervisor. Sanderson is a lieutenant with the agency and supervises the entire guard force at Century Village West. He is directly responsible for 35 to 46 people. He conducts their training, supervises their work and coordinates their activities with police and fire units serving Century Village West. Starzy praised Sanderson as a good worker, a responsible officer and a good supervisor. Sanderson has progressed from a wage of $3.10 per hour to approximately $550 biweekly plus a car and expenses. Starzy stated he had contacted Sanderson's probation officer when this problem arose and received a favorable report from the probation officer on Sanderson. None of the guards at Century Village West are armed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and is considered of factors in mitigation, the Hearing Officer recommends that Maurice A. Sanderson be granted licensure as an unarmed guard, and that he be advised to resubmit his application for licensure as an armed guard in accordance with the statutes. DONE and ORDERED this 22nd day of July, 1981, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1981. COPIES FURNISHED: Mr. Maurice A. Sanderson 1251 SW Fifth Terrace Deerfield Beach, Florida 33441 James V. Antista, Esquire Assistant General Counsel Department of State The Capitol Tallahassee, Florida 32301 George Firestone, Secretary Department of State The Capitol Tallahassee, Florida 32301 =================================================================
Findings Of Fact Brenda H. Gipson applied for licensure as a Class F Unarmed Guard. On her application Gipson did not reveal that she had been arrested and convicted for attempted aggravated assault. Gipson admitted that she did not report on her application the fact that she had been convicted of attempted aggravated assault because she was afraid she would lose her job. The circumstances surrounding the attempted aggravated assault arose out of dispute with a family member in which Gipson threw a hammer at the family member. Gipson testified that she was sentenced to 24 hours in jail by the Municipal Judge of Venice, Florida. Abilio Suarez, Gipson's supervisor with Feick Security, who is the coordinator for the contract between Feick Security and Florida Power and Light Company, testified that he had known Gipson since July of 1978, when she began to work for Suarez. Suarez stated that Gipson was a reliable person, was punctual, and dependable. Her duties involved personnel security on facilities belong to or operated by Florida Power and Light Company. Suarez testified that notwithstanding her concealment from Feick Security of her arrest and conviction for attempted aggravated assault, Gipson was considered eligible for continued employment with the company.
Recommendation Although the foregoing Findings of Fact and Conclusions of Law indicate that the Petitioner did falsify her application for licensure, the facts surrounding the incident, the extremely light sentence of the municipal court, and the recommendation of her supervisor should be considered in mitigation. Based upon the facts in mitigation, the Hearing Officer would recommend that Brenda Gipson be issued a license as a Class F, Unarmed Guard. DONE and ORDERED this 19th day of February, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1979. COPIES FURNISHED: Gerald Curington Division of Licensing The Capitol Tallahassee, Florida 32304 Brenda H. Gipson 3889 Charles Terrace Miami, Florida
The Issue Whether the Department of Corrections' alleged policy of forbidding phone calls between incarcerated husbands and wives, when the wives are incarcerated at Broward Women's Correctional Institution ("BWCI"), is an unpromulgated rule and therefore invalid.
Findings Of Fact Based on the evidence presented, the following facts are determined: The parties stipulate that petitioner has standing to maintain this proceeding i.e. that he is substantially affected by the challenged agency policy. Petitioner is currently incarcerated at Union Correctional Institution; his wife is incarcerated at Broward Women's Correctional Institution (BWCI). Both institutions are part of the state prison system operated by the Department. In August 1983, petitioner asked for permission to telephone his wife at BWCI, but his request was denied by Department officials. Under a BWCI policy, as well as a Department policy, inmates at other institutions are not normally allowed to place telephone calls to inmates at BWCI. The departmental policy is embraced by Rule 33-3.125(1)(e) , which provides: (e) Inmates may not receive incoming telephone calls because it is disruptive to normal operating and program functions of an institution. This rule effectively prohibits inmates from placing calls to inmates at other correctional institutions. Petitioner has not shown that the Department's denial of permission was dictated by any written statement or policy other than that contained in this Department rule.
The Issue The issue in this case is whether the application for a Class "D" security officer license submitted by Alejandro Rodriguez should be granted or denied.
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: The Department of State is the state agency responsible for regulating and licensing private security officers. Sections 493.6100 - .6126, Florida Statutes. On July 15, 1994, Mr. Rodriguez and two friends, Eliseo Figueroa and Albert Gonzalez, went to the Miracle Center Movie Theater complex in Miami, Florida, to meet Albert's girlfriend and one of her friends. They telephoned one of the women to let her know that they were going to be late, and they arranged to meet in the theater showing the movie "True Lies." When the men arrived at the theater complex, they were not able to buy tickets for "True Lies" because the theater was sold out; instead, they purchased tickets for the movie "Lion King." When the men entered the theater complex, they began walking toward the theater showing "True Lies." They were intercepted by the theater manager, who told them they could not go into that theater because it was full. The men told the manager that they were meeting friends who were in the theater and needed to go into the theater just to make contact. Although they told the manager that they did not intend to watch the movie, he refused to let them go into the theater to find their friends, telling them that it would disturb the moviegoers. The manager also refused to go into the theater himself to locate the two women the men were to meet. As this exchange was taking place, one of the women came out of the theater, saw the men, and returned to the theater to get her friend. The two women joined the three men, and they began walking across the theater lobby on their way out of the complex. Mr. Rodriguez and Mr. Figueroa were walking together, and the two women and Mr. Gonzalez were walking ahead of them. Mr. Gonzalez made a derogatory comment about the manager, which he overheard. The manager took offense, told the group that he was going to call the police because of the derogatory remark, and sent the assistant manager to find the off-duty police officer who was providing security at the theater. Meanwhile, the two women went to the restroom, Mr. Gonzalez went to the concession stand, and Mr. Rodriguez and Mr. Figueroa went into the theater showing the movie "Lion King," where they stood in the back and watched the movie. After several minutes, the manager, the assistant manager, and Officer Luis Ruiz, the off-duty police officer providing security for the theater, entered the theater. The manager asked Mr. Rodriguez and Mr. Figueroa to step outside into the lobby, which they did. Once they were in the lobby, Officer Ruiz told Mr. Rodriguez and Mr. Figueroa that they had to leave the theater complex, that "the party is over." Mr. Rodriguez demanded to know why they were being asked to leave since he and Mr. Figueroa had purchased tickets and had done nothing wrong. The manager told them they had to leave, without giving any explanation. Mr. Rodriguez again demanded to know why. Officer Ruiz repeated his order that they leave. Mr. Rodriguez refused and again demanded to know why. Officer Ruiz told him that he would be placed under arrest if he did not leave the theater complex. During this exchange, Mr. Rodriguez used profanity and his protests became louder and louder. Several of the movies had ended, and patrons were crowding into the lobby area where the group was gathered. Officer Ruiz became more and more agitated, and the situation generally deteriorated. Even after Officer Ruiz threatened Mr. Rodgriguez with arrest, he still refused to leave. Officer Ruiz told him that he was under arrest and was going to jail, and he grabbed Mr. Rodriguez's wrist to restrain him so he could put on handcuffs. When Officer Ruiz told Mr. Rodriguez he was under arrest and grabbed his wrist, Mr. Rodriguez panicked and his only thought was to get away. He yelled that he was not going to go to jail and swung the arm Officer Ruiz had grabbed, slamming him into the wall. A scuffle ensued, with the manager, the assistant manager, and another man trying to help Officer Ruiz subdue Mr. Rodriguez. The five men fell to the floor; Mr. Rodriguez was face down, and, with the manager and the other man holding Mr. Roeriguez down, Officer Ruiz straddled him as he was trained to do to gain the maximum advantage when trying to handcuff an unruly individual. Officer Ruiz was sitting on Mr. Rodriguez's back, facing his feet, and was just about to get the handcuffs around his wrists when Mr. Rodriguez managed to stand up, throwing off Officer Ruiz and the other men; he stopped and looked around, then proceeded to run out of the theater complex and down the street. He was apprehended several blocks away. Officer Ruiz suffered bruises as a result of being slammed against the wall by Mr. Rodriguez, 2/ but there apparently was no damage done to theater property as a result of the incident. On October 26, 1995, Mr. Rodriguez filed with the Department the application for a Class "D" security officer license which is the subject of this proceeding. In his application for licensure, Mr. Rodgriguez disclosed that adjudication had been withheld in two criminal cases, case numbered F94-23888 and case numbered F94-38895, arising in Dade County, Florida, and that he was sentenced to probation in each case. The charges in case numbered F94-23888, arising out of the incident which occurred on July 15, 1994, were felonies. The terms of probation for both cases were concurrent and expired on May 31, 1996. 3/ Mr. Rodriguez is not, therefore, currently on probation on a felony charge. Mr. Rodriguez gave his probation officer no problems during his term of probation, and one of the special conditions of his probation was that he participate in an anger control program. He expressed remorse and acknowledged that he was wrong to behave as he did at the theater complex; and he testified that he would behave differently if he ever found himself in a similar situation. On July 15, 1994, Mr. Rodriguez was one week away from his nineteenth birthday; he is now 21 years of age, married, and the father of a young son. Prior to this incident, Mr. Rodgriguez had never been arrested. The Department has presented sufficient credible evidence to establish that Mr. Rodriguez committed an act of violence on Officer Ruiz which was not undertaken in the lawful protection of himself or others. However, the evidence is also sufficient to establish that, while Mr. Rodriguez showed very poor judgment in provoking the confrontation at the theater complex and in resisting arrest, he has matured and rehabilitated himself. Therefore, in light of the facts found herein, with consideration given to all of the evidence presented and to the demeanor of the witnesses, Mr. Rodriguez has carried his burden of persuasion and demonstrated his entitlement to a Class "D" security officer license by a preponderance of the evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of State enter a final order granting the application of Alejandro Rodriguez for a Class "D" security officer license and placing Mr. Rodriguez on probation for a period of two (2) years under such reasonable terms and conditions as may be imposed by the Department. DONE AND ENTERED this 11th day of Deecember, 1996, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUMCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 1996.
Findings Of Fact As Needed Temps, Inc., Respondent, provides temporary employees to various businesses. Respondent is not licensed under Chapter 493. Respondent Mary E. Carter is president of Respondent. She is also the director of operations for SOS Security, Inc., whose principal place of business is at the same location as that of Respondent. SOS Security, Inc. holds a Class "B" license. In August, 1987, David Christy, who was a drywall laborer, was working temporary jobs that Respondent had found for him. On August 8 or 9, 1988, Respondent assigned him to SOS Security, Inc., which placed Mr. Christy as a security guard at a local bicycle racetrack. While working as a security guard, Mr. Christy wore the guard uniform of SOS Security, Inc. Mr. Christy was not a licensed security guard. SOS Security, Inc., which billed its customer for the security service, paid Respondent for Mr. Christy's services, and Respondent paid Mr. Christy. At least one other individual entered into a similar arrangement with Respondent and SOS Security, Inc. Willy Dorsey, whose security guard license had expired in 1986, was paid by Respondent and SOS Security, Inc. at different times for security work that he performed during an unspecified year. These incidents were not isolated. Respondent invoiced SOS Security, Inc. a total of over $13,000 in three invoices from March 20, 1987, through May 8, 1987, for "providing guard service."
Recommendation In view of the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint. ENTERED this 30th day of September, 1988, in Tallahassee, Florida. ROBERT E. MEALE 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 30th day of September, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1402 1-2. Rejected as not finding of fact. 3-10. Rejected as recitation of evidence and not findings of fact. COPIES FURNISHED: R. Timothy Jansen, Esquire Assistant General Counsel Department of State The Capitol, Mail Station #4 Tallahassee, Florida 32399-0250 Mary E. Carter President As Needed Temps, Inc. 6239 Edgewater Drive Suite N-5 Orlando, Florida 32810 Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Ken Rouse General Counsel Department of State 1801 The Capitol Tallahassee, Florida 32399-0250 =================================================================
Findings Of Fact At all times pertinent to the allegations contained herein, the Department of State, Division of Licensing, was the state agency responsible for the licensing of security guards in Florida. On September 19, 1990, Petitioner, Rick Stephen Seaver, submitted an application for an unarmed security guard license and statewide gun permit to the Division. In Part V of the application, dealing with criminal history, Petitioner indicated he had not ever been convicted of a crime, and further stated he had not been convicted of any felonies. In reality, however, Respondent had been convicted of possession of marijuana in Johnson City, Tennessee, on February 19, 1981, and on October 23, 1986, was convicted of one charge of simple assault and one charge of carrying a firearm. This latter series of offenses also took place in Johnson City. When this information was made available to the Department, by a letter dated January 24, 1991, an Amended Letter of Denial, the Division denied the Petitioner's application for an unarmed security guard license, alleging that he had been guilty of fraud or willful misrepresentation in applying for or obtaining a license, in violation of Section 493.6118(1)(a), Florida Statutes; had been convicted of crimes which directly relate to the business for which the license was sought, in violation of Section 493.6118(1)((c), Florida Statutes; and failed to have the requisite good moral character called for under the provisions of Section 493.6118(3), Florida Statutes. At the hearing, Respondent withdrew as a basis for denial the allegation of fraud or willful misrepresentation and further stipulated that none of the offenses of which the Petitioner had been found guilty were felonies. It is so found. Petitioner has been married to his wife for five years. Though he did not adopt her son by a previous marriage, he has provided the sole support and guidance to the boy since the marriage, and in Mrs. Seaver's opinion, has been a good father and good husband. For the five months prior to his dismissal from employment with Jewell Security Agency, as a result of the Division's action denying him a license, Mr. Seaver worked as an unarmed security guard in Bradenton. He worked as an outdoor guard at night, unarmed, at various establishments throughout the City of Bradenton, and during his term of employment, only one business where he was on guard, was ever robbed. That one occasion took place before he came on duty the day in question and the police were able to identify the perpetrators. According to James E. Jewell, owner of the agency and Petitioner's employer, Petitioner was an outstanding employee who was always on time, never called in sick, and performed his duties in a manner felt to be a credit to the company. Jewell found Petitioner to be completely honest and trustworthy. Before working with Jewell, Petitioner worked as a baker in Sarasota for 2 1/2 years after his move from Tennessee. He left that job only because of a dispute he had with the manager over some vacation time which previously had been approved, but which was later denied him. He quit and was not discharged. Before coming to Florida he also worked as a baker in Tennessee for about 13 to 14 years without difficulty and without any criminal record other than the offenses forming the basis for the denial here. The assault charge occurred just before he and his wife were married when he used a firecracker to blow out the window of the house of an individual, then under charges for rape, who was harassing and annoying his intended wife. The charge of carrying a weapon arose out of an unloaded gun which was found under the passenger seat of a vehicle in which he was riding as a passenger when he was stopped for the assault. The assault did not involve the use of the weapon, but as a result of his plea, he was convicted and sentenced to 11 months and 29 days in jail, all of which was suspended. Prior to the trial on those offenses, from the time of his arrest, he was free on bond. The possession of marijuana charge took place in 1981 at which time Petitioner was approximately 24 years old. At that time, he was found guilty of possession of less than an ounce of marijuana and was sentenced to pay a fine of $250.00. Mr. Seaver has not had any other infractions and according to his wife, has not been cited with so much as a traffic ticket in the five years they have been married. No evidence to the contrary was presented.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered in this case granting Petitioner, Rick Stephen Seaver, a Class "D" Unarmed Security Officer License. RECOMMENDED this 23rd day of April, 1991, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 23rd day of April, 1991. Copies furnished: Henri C. Cauthon, Esquire Assistant General Counsel Department of State Division of Licensing The Capitol, MS #4 Tallahassee, Florida 32399-0250 Rick Stephen Seaver 4411 21st Avenue West Bradenton, Florida 34209 Hon. Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater General Counsel Department of State The Capitol Tallahassee, Florida 32399-0250
Findings Of Fact The Petitioner, James Lewis Shelton, applied for licensure as a Class "F" unarmed guard. Shelton answered Question 13 on the application yes, reporting an arrest for disorderly (conduct) in 1968. The records check of the Department of State revealed that Shelton had been arrested for the offenses listed in the denial letter, Exhibit 2. Shelton admitted that this record was true and accurate. Shelton's supervisor on his security job, who is also his minister, Dr. Robert A. Plank, testified regarding his knowledge of Shelton. Plank had been Shelton's minister for approximately two years, and for the last five months Shelton has worked for him as a security guard. Plank stated that when he became aware of the charges against Shelton he investigated them as thoroughly as he could. He then questioned Shelton about the arrests. He found that Shelton could only remember these events vaguely after Plank refreshed his memory with facts from documents Plank had obtained from the authorities. Plank had found in working with Shelton as his minister and his supervisor that Shelton was mentally slow. Shelton is an orphan with a sixth grade education, who has been an itinerate for much of his life. Shelton only was able to remember his marriage to a woman after Plank refreshed his memory with facts from the letter of denial. Shelton is currently employed as a dishwasher and as a guard with the company by which Plank is employed. Shelton works hard, follows his instructions and is a good worker. Plank concluded that because of his mental slowness Shelton had not remembered these arrests, and had not willfully misrepresented the information on his application. Plank's wife, who is the shift supervisor for whom Shelton works, substantiated her husband's testimony. Shelton has lived in St. Petersburg for 12 years, the the records there reflect no arrests. Shelton is mentally slow and has difficulty recalling past events. This finding is based upon the testimony of the Planks and observations of Shelton's demeanor at the hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department of State issue a license as an unarmed guard to James Shelton; however, the Hearing Officer would recommend that this applicant's records be annotated that an armed guard license not be issued without rehearing, and this his employer be directed not to employ Shelton as an armed guard without licensure as such. DONE and ORDERED this 15th day of February, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: W. J. Gladwin, Jr., Esquire Assistant General Counsel Department of State The Capitol Tallahassee, Florida 32301 Mr. James Lewis Shelton 8894 68th Street, North Pinellas Park, Florida
The Issue Whether the Respondent committed an unlawful employment practice by discriminating against the Petitioner on the basis of age and/or disability, in violation of the Florida Civil Rights Act of 1992, as amended, Section 760.10 et seq., Florida Statutes (2008).1
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Mr. Brown was born on November 26, 1932. At the times material to this proceeding, he was licensed in Florida as a security guard. Mr. Brown was hired as a security guard by SSA Security in November 1998, when he was 65 years of age, by Robert Chambers. At the times material to this proceeding, Mr. Chambers was SSA Security's district manager for Broward County and Miami-Dade County, Florida. Mr. Brown resigned his employment with SSA Security in December 2000 and began working for Avis Rent-A-Car. He left his position with SSA Security because it did not pay any benefits; he received full benefits as an employee of Avis Rent- A-Car. In or around December 2000, Mr. Brown was fitted with a pacemaker because of a heart condition.4 When Mr. Brown lost his job with Avis Rent-A-Car, he applied to SSA Security for employment, and Mr. Chambers re-hired him as a security guard in January 2003. At the time, of his re-employment by SSA Security, Mr. Brown was 70 years of age. Even though Mr. Brown had a pacemaker to regulate his heartbeat in 2003, he was at all times capable of performing all of the essential functions of a security guard and, in fact, wanted to return to employment as a security guard because he could do the job notwithstanding his heart condition. At the times pertinent to this proceeding, Mr. Brown's direct supervisor was Owen James, the area manager with SSA Security, who reported to Mr. Chambers. Mr. Brown also was supervised by SSA Security's on-duty road supervisors during the time he was actually working. On October 3, 2004, Mr. Brown signed an Application for Employment with SSA Security, and he was provided with a copy of the SSA Security Employee Rules and Regulations. He acknowledged receipt of the rules and regulations and of the Security Officers Handbook with his signature, dated October 3, 2004.5 The introductory paragraph of the Employee Rules and Regulations stated that SSA Security employees were to carry a copy of the Security Officers Handbook with him or her when on duty and advised the employees that they "could be subject to discipline, suspension or discharge" if he or she violated any of the employee rules.6 The first rule included in the Employee Rules and Regulations prohibited "[l]eaving a posted duty prior to being properly relieved." It is Mr. Chambers's policy to terminate the employment of persons who abandon their posts, that is, who leave their posts without being properly relieved, and he terminated at least 10 employees for abandoning their posts between 2007 and 2009. At the times material to this proceeding, SSA Security provided security services at several United Parcel Service facilities, including the United Parcel Service Sheridan ("UPS Sheridan") facility and at the United Parcel Service Davie ("UPS Davie") facility. At the times material to this proceeding, the UPS Sheridan facility was a "UPS hub" that operated 24 hours a day, and SSA Security provided security for the facility 24 hours per day. The UPS Sheridan facility is categorized as a "soft target" because, if anyone got into the facility, he or she could steal UPS uniforms and trucks and could, thereby, gain access to many businesses and residences. The UPS Davie facility housed employees working in customer service and administration, and the facility closed every day. At one time, Mr. Brown was assigned to both the UPS Sheridan facility and the UPS Davie facility. He worked at the UPS Sheridan facility from 10:00 p.m. until 3:30 a.m., when he left and went to the UPS Davie facility, where he worked from 4:00 a.m. until approximately 5:30 a.m. During his time at the UPS Davie facility, Mr. Brown escorted the employees working at the facility to their vehicles, and, when the last employee was escorted to his or her vehicle, Mr. Brown was free to go home. Mr. Brown was not relieved by another security guard at the UPS Davie facility. In or about January 2007, the UPS Davie facility was closed, and Mr. Brown was assigned to work at the UPS Sheridan facility from 12:00 a.m. until 4:00 a.m.7 His duties at the UPS Sheridan facility after his work hours changed, and specifically in June 2008, were to patrol the perimeter of the facility and ensure that the facility was not breached. Mr. Brown did not enter the building as part of his duties because, prior to 4:00 a.m., the building was locked. At 4:00 a.m., a UPS supervisor would unlock the building and another SSA Security security guard was scheduled to come on duty. This security guard’s duties were to secure an entryway into the building and scan employees coming in and out of the facility as they passed through a metal detector. SSA Security’s procedure at the UPS Sheridan facility required Mr. Brown to wait at his post at the facility until the security guard assigned the 4:00 a.m.-to-8:00 a.m. shift arrived. According to procedure, if this security guard was late, Mr. Brown was to call either SSA Security's 24-hour dispatch, which was reached by calling the local SSA Security office, or the local on-duty road supervisor and a relief officer would be sent to the UPS Sheridan facility to take over the post. Mr. Brown was trained in this procedure by the road supervisor on duty at the time Mr. Brown began working the 12:00 a.m.-to-4:00 a.m. shift at the UPS Sheridan facility. On May 27, 2008, Mr. Brown had a routine doctor's appointment. The doctor told Mr. Brown after the examination that he needed to go to the hospital that night because of his heart condition. Mr. Brown called the SSA Security office at approximately 4:50 p.m. on May 27, 2008, and spoke with Jeanine Williams, who was a receptionist. Mr. Brown explained to Ms. Williams that he was being hospitalized and could not report to work because of his "regular heart condition."8 This telephone conversation lasted approximately three minutes. Mr. Brown did not speak with Mr. Chambers or with his direct supervisor, Mr. James, on May 27, 2008, and he did not inform either of them of his heart condition in June 2008. He did not do so because he believed he had advised Mr. Chambers of his heart condition in 2000, when he was fitted with the pacemaker. Mr. Chambers has no recollection of Mr. Brown having told him of a heart condition in 2000, and Mr. Chambers was not able to locate anything in Mr. Brown's personnel file related to such a medical condition. Mr. Brown was discharged from the hospital on June 2, 2008. He did not submit any documentation of his hospitalization to SSA Security or provide Mr. Chambers with any explanation of the reason for his absence from work. Upon his discharge from the hospital, Mr. Brown had minimal temporary restrictions on his activities as a result of his heart condition. The primary restriction, as described by Mr. Brown, was that he was unable to do any lifting. He was, however, able to perform the essential functions of his job as a security guard. Mr. Brown reported to his post at the UPS Sheridan facility on the morning of June 4, 2008, at his normal time of 12:00 a.m. His shift ended at 4:00 a.m., at which time the SSA Security security guard who manned the post inside the facility was to report for work. Mr. Brown knew that another security guard was to begin work at the UPS Sheridan facility at 4:00 a.m., but, when the security guard had not arrived by approximately 4:10 a.m., Mr. Brown left the facility and went home. Mr. Brown had the telephone numbers of both the SSA Security 24-hour dispatch service and the SSA Security on-duty road supervisor, but he did not notify anyone at SSA Security that he was leaving or that the new security guard had not reported for duty at the UPS Sheridan facility. Mr. Brown also did not notify anyone at the UPS Sheridan facility that he was leaving the facility unguarded because the security guard assigned to work the 4:00 a.m. shift had not yet arrived. At approximately 7:30 a.m., Mr. Brown received a call from Captain Linda Webb, the SSA Security road supervisor responsible for the UPS Sheridan facility on the morning of June 4, 2008, and Mr. Brown's immediate supervisor during his shift on June 4, 2008. Captain Webb asked Mr. Brown where he was, and he replied that he was at home. Captain Webb asked Mr. Brown if he left his post before the other security guard had arrived,9 and Mr. Brown responded that it was his understanding that he did not need to be relieved at his post at the UPS Sheridan facility and that had never been relieved at that post. Although Mr. Brown had been told by a supervisor that he could leave his post at the UPS Davie facility without being relieved, no one in a supervisory position with SSA Security told Mr. Brown that he could leave his post at the UPS Sheridan facility at 4:00 a.m., regardless of whether the security guard assigned to work the 4:00 a.m. shift had arrived at the facility.10 Captain Webb wrote a Personnel Action Form summarizing the incident, which was categorized as Mr. Brown's having "abandoning the post." At approximately 2:30 p.m. on June 4, 2008, Mr. James called Mr. Brown and asked why he had left his post at the UPS Sheridan facility without being relieved by the guard who was assigned to the post inside the building. Mr. Brown stated that he was never relieved at his post at the UPS Sheridan facility. Mr. James told Mr. Brown not to return to the post at the UPS Sheridan facility but to come into the SSA Security office. Mr. Brown believed that Mr. James wanted to "get rid" of him.11 Mr. Brown spoke with Mr. Chambers on the telephone on June 4, 2008, and Mr. Chambers told him that, in directing Mr. Brown not to return to his post at the UPS Sheridan facility, Mr. James was following the instructions given to him by Mr. Chambers. Mr. Chambers met with Mr. Brown on June 5, 2008, at his office, and they discussed the incident that occurred on June 4, 2008. Mr. Chambers asked him why he left his post at the UPS Sheridan facility, and Mr. Brown answered that he had a doctor's appointment at 9:00 a.m. on June 4, 2008. Mr. Chambers asked if Mr. Brown had called a supervisor or the dispatch number before he left, and Mr. Brown stated that he had not. Mr. Chambers then advised Mr. Brown that he was terminating his employment with SSA Security. Mr. Chambers's decision to terminate Mr. Brown is memorialized on the Personnel Action Form prepared on June 4, 2008, by Captain Webb, which Mr. Chambers signed and dated June 5, 2008. When Mr. Brown turned in his uniform, Mr. James gave him a copy of the Personnel Action Report prepared by Captain Webb, and Mr. James asked Mr. Brown if he had anything to add. Mr. Brown responded that he did not, and he left the SSA Security office. Mr. Brown was replaced by a person who was 53 years of age. Summary The evidence presented by Mr. Brown is not sufficient to establish that he was the subject of discrimination on the basis of age when he was terminated from his employment at SSA Security. Not only did the evidence fail to establish that age was the motivating factor in his termination, the evidence failed to establish that age was even a consideration when he was terminated. The evidence presented by Mr. Brown is likewise not sufficient to establish that he was the subject of discrimination on the basis of disability. The evidence presented by Mr. Brown did not establish that he was disabled because the evidence failed to establish that he was substantially impaired in any major activity of daily life, that he had a record of an impairment, or that he was regarded by Mr. Chambers as having an impairment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Alfred S. Brown. DONE AND ENTERED this 27th day of May, 2010, in Tallahassee, Leon County, Florida. PATRICIA M. HART 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 27th day of May, 2010.
