Findings Of Fact Based on the documentary evidence received, the demeanor of the witnesses while testifying and the entire record compiled herein, the following relevant facts are found. By letter dated October 18, 1982, Mr. General G. Foreman, Petitioner herein, was advised that his application for Class "D" and "G" unarmed/armed security guard licenses had been denied based on "fraud or willful misrepresentation in application for or in obtaining a license." Chapter 493.319(1)(a), Florida Statutes. Petitioner timely applied for a formal administrative hearing pursuant to Chapter 120.57(1), Florida Statutes, concerning the denial of his application for Class "D" and "G" unarmed/armed security guard licenses by the Division of Licensing. 1/ Documentary evidence herein reveals that the Petitioner has been arrested ten times during the period April, 1950 through May, 1982. On Petitioner's application filed during approximately July, 1982, he listed two arrests during the period March, 1955 through approximately November, 1970. Petitioner listed (on the subject application) a trespassing charge which occurred during April, 1950, the outcome of which resulted in a conviction, and during November, 1969 or 1970, a rape charge which was "thrown out, dismissed." In the processing of applications for guard licenses, the Respondent conducts background investigations through fingerprint checks with the Federal Bureau of Investigation, the Florida Department of Law Enforcement and other local law enforcement agencies. The Respondent reviewed a "rap" sheet from the Florida Department of Law Enforcement (FDLE) and based on a consideration of the ten (10) occasions which the Petitioner had been arrested, an administrative determination was made that the Petitioner failed to fully disclose arrests. For that reason, Petitioner's application for the above-referred guard licenses was denied. (Testimony of Debbie Richards, Respondent's guard license application investigator). The Petitioner listed the tow charges which "bears" on his mind and the other arrests were not listed since they had no "bearing on his mind." Petitioner contends that he made no effort to "hide" anything. Further, Petitioner related that he, to this date, is unable to recall, with any specificity, the exact number of times that he has been arrested.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent, Department of State, Division of Licensing, enter a Final Order denying Petitioner's application for statewide Class "D" and "G" security guard licenses. 2/ RECOMMENDED this 3rd day of February, 1983, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1983.
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Petitioner on the basis of an alleged violation of Section 493.6118(1)(f), Florida Statutes, by sleeping while on duty.
Findings Of Fact Respondent currently holds a Class "D" Security Officer License, Number D92-08606, issued pursuant to Chapter 493, Florida Statutes, effective June 2, 1994. During September and October of 1994, Motivated Security provided security services to Shurgard Storage, located at 1650 West Oakland Boulevard, Fort Lauderdale, Florida. On September 30, 1994, the Respondent was employed as a security officer by Motivated Security. On that date the Respondent's assigned post with Motivated Security was at the Shurgard Storage premises described above. On that date, the Respondent was assigned to the 6:00 p.m. to 2:00 a.m. shift. At approximately 11:15 p.m. on September 30, 1994, while the Respondent was on duty at the post described above, the Respondent was sound asleep in a golf cart for a period of at least one-half hour.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case finding that the Respondent committed the violation charged in the Administrative Complaint and imposing a penalty consisting of a six-month suspension of the Respondent's license. DONE AND ENTERED this 8th day of August 1995 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 8th day of August 1995. APPENDIX The following are the specific rulings on all proposed findings of fact submitted by all parties. Findings submitted by Petitioner. Paragraphs 1 through 6: Accepted. Paragraphs 7 through 11: Rejected as subordinate and unnecessary details. (All of these proposed details are essentially correct; it is simply not necessary to repeat them.) Findings submitted by Respondent. (None.) COPIES FURNISHED: Kristi Reid Bronson, Esquire Department of State Division of Licensing The Capitol, MS #4 Tallahassee, Florida 32399-0250 Gerald Brown 3551 N.W. 41st Street Lauderdale Lakes, Florida 33309 Honorable Sandra B. Mortham Secretary of State The Capitol Tallahassee, Florida 32399-0250 Don Bell, General Counsel Department of State The Capitol Tallahassee, Florida 32399-0250
The Issue The issue in this case is whether Respondent's Class "D" Security Officer License and/or Class "G" Statewide Firearm License should be revoked or otherwise disciplined based upon the alleged violations of Chapter 493, Florida Statutes, set forth in the Third Amended Administrative Complaint filed by Petitioner.
Findings Of Fact Based upon the oral and documentary evidence introduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: On or about June 7, 1989, Respondent filed an application for a Class "D" Security Officer License with the Department. The application form asked the applicant whether he had ever been arrested and to list any and all arrests. The application specifically provided that "falsification of this question may be grounds for denial of your license." Respondent answered affirmatively that he had been arrested. The only specific incident listed on the application was an arrest in 1979 for a charge of "asault [sic] with a deadly weapon intemp [sic] to kill Fay N.C. [sic]." The Application also required the applicant to set forth the outcome of all arrests. Respondent replied that the "charges was [sic] drop [sic]." On or about July 17, 1990, Respondent submitted an application with the Department for a Class "G" Statewide Firearms License. The application form for this license included an identical request regarding prior arrests. In response, Respondent checked the box indicating he had never been arrested and wrote "N/A" where he was supposed to indicate the date, charge and outcome of the arrests. Respondent has not provided any explanation for why his Class "D" Application disclosed an arrest in 1979, but his Class "G" Application did not reference this arrest. This discrepancy is not alleged in the Third Amended Administrative Complaint. Petitioner has submitted a certificate from the Cumberland County, North Carolina Superior Court which indicates that a criminal summons was issued for "Angelo Louis Lugo" on or about May 5, 1987, for a charge of "M Assault By Pointing A Gun." It is not clear whether this summons is directed at Respondent nor is it clear whether the Summons was ever served and/or the subject was arrested. The ultimate disposition of this criminal case is not clear. Respondent denies ever being served with the summons referenced in this court record. The evidence was insufficient to establish that Respondent was ever arrested in connection with this matter. Petitioner has submitted a second certified record from the Cumberland County, North Carolina Superior Court, which indicates that Respondent was issued a "Citation" on March 10, 1986, for the charge of "M Shoplifting Concealment Goods." No other evidence or explanation of this record has been provided. Respondent admits that he was issued a Notice to Appear in court after he was caught by store security personnel taking aspirin from a bottle. He testified that he did not list this matter on his applications because he was not "arrested." Instead, he claims that he was merely issued a citation to appear in court. The evidence presented in this case did not refute Respondent's version of the events surrounding this court record. In sum, the evidence was not clear and convincing that Respondent was ever formally "arrested" for this incident. The ultimate disposition of this criminal charge is not clear from the record in this proceeding. Counts III and IV of the Third Amended Administrative Complaint are based upon an incident that occurred on February 9, 1993 between Respondent and Jorge Ruiz. There is a good deal of conflicting evidence regarding this incident. Both Respondent and Ruiz have testified and/or given statements on several occasions about the incident including statements to the police, testimony in a related criminal proceeding against Respondent and depositions taken in connection with a civil lawsuit filed by Ruiz against Respondent, Respondent's employer and the Bank where Respondent worked. It is impossible and unnecessary to resolve all of the conflicts in the differing accounts of the incident as described by Respondent and Ruiz at various times. After considering all of the evidence presented, including the credibility and demeanor of the witnesses, the findings in this Recommended Order are based upon the clear and convincing evidence presented. On February 9, 1993, Respondent was working as an armed security guard at a Barnett Bank in Plantation, Florida. At approximately 1:30 p.m., Respondent was working outside the bank in the vicinity of the drive-thru lanes. He was there to direct traffic and monitor the area. Around this time, Jorge Ruiz pulled into the paved area in front of the drive-thru booths. Ruiz had been to the Bank on numerous occasions in the past and he had often used the drive-thru windows. Ruiz has a very powerful radio in his pick-up truck and he admits that he tends to play music at a loud volume. On at least one prior occasion, Ruiz had proceeded to the drive-thru station with his radio blasting. The tellers had complained about the noise coming through the intercom system. During the week or so prior to February 9, 1993, Ruiz and Respondent had at least one minor confrontation. During this prior instance, Respondent advised Ruiz that he had to turn his radio down before he reached the drive-thru booth because the intercom system picked up the background noise and it interfered with the tellers' ability to communicate with the customers. Ruiz replied that he would turn down the radio when he got to the window. When Ruiz entered the Bank's parking lot on February 9, 1993, his radio was playing loudly. Respondent approached the driver's side window of Ruiz' vehicle and asked Ruiz to turn his radio down. Ruiz responded with a number of obscenities. Respondent told Ruiz that unless he turned his radio down, he could not use the drive-thru facility. Ruiz refused to comply. Respondent stood in front of Ruiz' vehicle and directed him away from the drive-thru lane. Ruiz' vehicle moved forward and bumped into Respondent. Respondent drew his gun and shouted at Ruiz to stop the car and get out. Respondent claims that he intended to hold Ruiz while he called the police. The parties exchanged words and Ruiz' truck again moved forward striking Respondent. Respondent was not knocked down or otherwise injured, however, his gun discharged. The bullet penetrated the windshield of Ruiz' truck and hit the steering wheel. A fragment from the steering wheel struck Ruiz in the neck or chest area, causing a minor wound. Respondent contends that he was justified in drawing his weapon and/or using deadly force "to prevent the escape from custody of a person who committed a felony in his presence." This contention is rejected because there is no evidence that Ruiz was attempting to escape. Furthermore, it is not clear that Ruiz in fact committed a felony, nor does it appear that the use of force was reasonably necessary under the circumstances of this case. Respondent also contends that he was justified in drawing his weapon in self-defense because he was being threatened by a deadly weapon, i.e. Ruiz' truck, and he had no reasonable means of escape. Respondent claims that he was boxed in by a vehicle in front of the truck and had no reasonable way to retreat from the "deadly force" that confronted him. Respondent's contention that he had no reasonable means of escape is rejected as not credible. Contrary to Respondent's claim, the evidence was clear that Respondent had reasonable means of escape. Moreover, there were alternate ways to handle the situation which would have diffused rather than exacerbated the tension and danger. Respondent claims that the gun discharged accidently when the truck hit him. No persuasive evidence was presented to refute this contention. Indeed, in some of his statements, Ruiz admitted that the gun may have gone off by accident when his truck struck Respondent. In sum, it is clear that Ruiz was belligerent and abusive and that his car bumped into Respondent twice. Nonetheless, Respondent's contention that he was justified in drawing his weapon and that he had no reasonable means of escape is rejected. While it can not be concluded from the evidence presented that Respondent deliberately shot at Ruiz, the evidence did establish that Respondent was guilty of negligence, misconduct and/or incompetency when he drew and pointed his loaded weapon at Ruiz. The circumstances did not justify Respondent pointing a loaded weapon at Ruiz. Without question, Respondent failed to demonstrate that level of discretion and caution that is expected of a person licensed to carry a firearm in the course of his employment. After the gun went off, Respondent immediately jumped into the truck and took Ruiz to a nearby hospital where Ruiz' minor injury was treated and he was released.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department of State, Division of Licensing enter a Final Order dismissing Counts I, II, and III of the Third Amended Administrative Complaint filed against Respondent and finding Respondent guilty of the allegations contained in Count IV of that Third Amended Administrative Complaint. As a penalty for the violation, Respondent should be fined $1,500.00, his Class "G" Firearms License should be revoked and his Class "D" Security Guard License should be placed on probation for three years. DONE AND ENTERED this 28th day of December, 1994, in Tallahassee, Leon County, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2566 Petitioner has not submitted any proposed Findings of Fact. Respondent's proposed recommended order included a section entitled Findings of Fact. However, that section does not include any individually numbered proposed findings of fact and the paragraphs contained in this section of Respondent's proposal include a mixture factual assertions, argument and legal conclusions. The proposal has been fully reviewed and considered. However, because proposed findings of fact have not been separately identified, no rulings are made with respect to Respondent's proposal. COPIES FURNISHED: Henri C. Cawthon Assistant General Counsel Department of State Division of Licensing The Capitol, MS #4 Tallahassee, Florida 32399-0250 James S. Benjamin, Esquire Benjamin & Aaronson, P.A. 100 Northeast Third Avenue, Suite 850 Fort Lauderdale, Florida 33301 Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250
Findings Of Fact At all material times, respondent has held a registered Class "B" Security Agency License, No. B86-00092, a Class "DS" Security Officer School/or Training Facility License, No. DS90-00069, a Class "D" Security Officer License, No. D85-2333, a Class "DI" Security Officer Instructor License, No. DI88-00012, and a Class "MB" Manager Security Agency License, No. MB86-00105. At all pertinent times, respondent provided security services to various non-governmental clients in Bay County, Florida, and also furnished security services to its only governmental client, the Federal Correctional Institution in Tallahassee, more than 100 miles from respondent's offices. From January 21, 1991, to June 30, 1991, respondent employed J. C. Barnwell, Terrell Barnwell, Larry Burks, Michael Dicks, Robert Pompey and Darrell L. Smith, none of whom held security officer licenses. They all worked as security officers at the Federal Correctional Institution in Leon County, and did no other work for respondent.
Recommendation It is, accordingly, RECOMMENDED: That petitioner dismiss the administrative complaint. DONE and ENTERED this 1st day of July, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 1992. COPIES FURNISHED: Henri C. Cawthon, Esquire The Capitol, MS #4 Tallahassee, FL 32399-0250 Charles S. Isler, III, Esquire Isler & Banks, P.A. P.O. Drawer 430 Panama City, FL 32402 Honorable Jim Smith, Secretary Department of State The Capitol Tallahassee, FL 32399-0250 Phyllis Slater, General Counsel Department of State The Capitol, PL-2 Tallahassee, FL 32399-0250
The Issue Whether Petitioner should be granted a Class "D" Security Officer license.
Findings Of Fact Petitioner, Cherubin Bastien (Bastien) filed an application with Respondent, Department of State, Division of Licensing (Department) for a Class "D" Security Officer license on July 1, 1994. The Department denied Bastien's application by letter dated August 24, 1994. At final hearing the only basis for denial at issue was that Petitioner was currently serving felony probation. On October 14, 1993, Bastien was sentenced, in State of Florida v. Cherubin Bastien, Case No. 93-5337CF10, on a charge of aggravated assault (firearm), before the Circuit Court of the 17th Judicial Circuit in and for Broward County, to two and one half years probation, and adjudication was withheld. Bastien's probation will not terminate until April, 1996. Bastien is currently on probation and was on probation at the time that he filed his application on July 1, 1994.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Cherubin Bastien's application for a Class "D" Security Officer License be denied. DONE AND ENTERED this 5th day of May, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-219S To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Respondent's Proposed Findings of Fact. Paragraphs 1-6: Accepted in substance. Paragraph 7: Rejected as unnecessary. COPIES FURNISHED: Richard R. Whidden, Jr., Esquire Department of State/Division of Licensing The Capitol, MS-4 Tallahassee, Florida 32399-0250 Cherubim Bastien 2322 Johnson Street, Apt. 1 Hollywood, Florida 33020 Honorable Sandra B. Mortham Secretary of State The Capitol Tallahassee, Florida 32399-0250 Don Bell General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250
Findings Of Fact At all times pertinent hereto, Respondent held a valid Class "W" Concealed Weapon or Firearm License issued by the Petitioner. Petitioner alleges that Respondent was convicted of Assault with Intent to Murder on June 8, 1960 in the State of Georgia and his civil rights have not been restored. A person by the name of John P. Piner was sentenced by the Superior Court of Richmond County, Georgia, on June 8, 1960, to serve a term of imprisonment at hard labor for a period of not less than three (3) years and not more that four (4) years for the crime of Assault with Intent to Murder. The sentence was suspended and the Defendant was placed on probation and fined. Respondent, John P. Piner, during all relevant times was on active duty with the United States Army and remained so until his honorable separation from the service on June 23, 1969, after more than twenty years of service. The evidence failed to show that the person named in the Sentencing document found in the records of Richmond County, Georgia was the same person as the Respondent named in the Administrative Complaint. The evidence failed to show that the Respondent, John P. Piner, was adjudicated guilty of the felony of Assault with Intent to Murder in the State of Georgia by a court of competent jurisdiction.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Administrative Complaint filed against Respondent be DISMISSED and that Petitioner's application for renewal of his concealed weapon or firearm license be GRANTED. DONE and ENTERED this 30th day of November, 1994, in Tallahassee, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1994. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Proposed findings of fact submitted by Petitioner. Accepted in substance: paragraphs 1 Rejected as against the greater weight of evidence: paragraphs 2, 3, 4. Proposed findings of fact submitted by Respondent. Accepted in substance: Section 1. COPIES FURNISHED: Richard R. Whidden, Jr. Assistant General Counsel Department of State Division of Licensing The Capitol, MS-4 Tallahassee, Florida 32399-0250 Donald R. Henderson, Esquire Mateer Harbert & Bates Post Office Box 2854 Orlando, Florida 32802-2854 Honorable Jim Smith, Secretary of State Department of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater, General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250
The Issue Whether Respondent committed the offenses alleged in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact On June 11, 1991, Respondent filed an employment application with Florida Patrol and Security Guard Service, Inc., d/b/a Sunstate Security Patrol. Respondent submitted to Maria Vilma Gonzalez, the secretary for Sunstate Security Patrol, photocopies of two documents. Respondent represented that one photocopy was of his Class D Security Officer License and that the other was a photocopy of his Class G Statewide Firearms Permit. The photocopy of the Class D license depicted a valid license with an expiration date of April 1, 1992. The photocopy of the Class G license depicted a valid license with an expiration date of March 4, 1992. Respondent began working for Sunstate Security Patrol as an armed guard on June 11, 1991, and continued that work for approximately six weeks. He left that employ to take employment with Ventura Security Services. Respondent submitted the same documents to Ventura Security Services to show his licensure that he had submitted to Sunstate Security Patrol. Respondent did not hold a valid Class D license or a Class G license on June 11, 1991, when he applied for employment with Sunstate Security Patrol, at any other time while he was employed by Sunstate Security Patrol, or when he applied for employment with Ventura Security Services. Respondent had been issued a Class D license that expired March 4, 1988. Respondent had been issued a Class G license that expired April 1, 1988. The document that Respondent gave to Sunstate Security Patrol and to Ventura Security Services with his employment application purporting to depict a photocopy of a valid Class D license had been altered to reflect an erroneous expiration date. There was no competent evidence submitted at the formal hearing as to who altered the document, but it is clear that Respondent misrepresented his licensure status by submitting this altered document. The document that Respondent gave to Sunstate Security Patrol and to Ventura Security Services with his employment application purporting to depict a photocopy of a valid Class G license had been altered to reflect an erroneous expiration date. There was no competent evidence submitted at the formal hearing as to who altered the document, but it is clear that Respondent misrepresented his licensure status by submitting this altered document. 1/ At the time of the formal hearing, Respondent held a "D" license and a "G" license. The "D" license has an issuance date of October 1, 1991, and an expiration date of July 31, 1993. The "G" license has an issuance date of October 1, 1991, and an expiration date of October 1, 1993.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which adopts the findings of fact contained herein and which revokes all licenses issued by Petitioner to Respondent. DONE AND ORDERED this 18th day of August, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 18th day of August, 1992.
Findings Of Fact At all times material hereto, Respondent North Dade Security, Ltd., has held a Class "s" security guard agency license. At all times material hereto, Respondent Rollins Donald has held a Class "K" firearms instructor license. At all times material hereto, Respondent Linda Donald has held a Class "K" firearms instructor license. At all times material hereto, Linda and Rollins Donald have been the principal owners, corporate officers, and directors of Respondent North Dade Security, Ltd., and as such are responsible for the control and operation of the agency. There is no licensed manager for the agency. At all times material hereto, Raymond Curtis Foxwood was an employee of North Dade Security, Ltd. Foxwood has never been licensed as a firearms instructor. An applicant for a statewide gun permit, also known as a Class "G" armed guard license, must submit to Petitioner an application for such license. The application form contains a Certificate of Firearms Proficiency which verifies that the applicant has received the statutorily-required firearms training by a licensed firarms instructor prior to the filing of that application for licensure.- on October 7, 1985, Foxwood submitted to Petitioner on behalf of North Dade Security, Ltd., approximately 20 applications for licensure as unarmed and armed guards. Although Foxwood was advised at that time by one of Petitioner's employees that the applications could not be processed due to the absence of licensure fees and due to deficiencies in completeness, the applicants were sent by North Dade Security to Petitioner's office to pick up their temporary licenses on the morning of October 8. When questioned about their applications, some of the applicants advised Petitioner's employee that they had received no firearms training, although their applications certified that they had. After the applicants were refused temporary licenses by Petitioner, North Dade Security sent the applicants to a gun range where Foxwood administered some firearms training for approximately four hours. Neither Rollins Donald nor Linda Donald was present at that training session. As of October 1985, several other persons employed by North Dade Security as armed guards had received no firearms training in conjunction with that employment. Most of the Certificates of Firearms Proficiency a contained within the applications of those latter employees and of the October 7 applicants were signed by Rollins Donald and by Linda Donald. 11. The numerous applications submitted by North Dadee La Security, Ltd., on October 7, 1985 was occasioned by a large contract entered into by North Dade Security, Ltd. requiring the immediate employment of a large number of armed guards.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding Respondents North Dade Security, Ltd., Rollins Donald and Linda Donald guilty of the allegations contained within the Administrative Complaint filed herein, and revoking the Class "B.' license of North Dade Security, Ltd., and further revoking the Class "K" firearms instructor licenses of Respondents Rollins Donald and Linda Donald. DONE and RECOMMENDED this 25th day of February, 1987, at Tallahassee' Florida. LINDA M. RIGOT, 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 25th day of February, 1987. COPIES FURNISHED: Kenneth J. Plante, Esquire Department of State The Capitol Room LL-10 Tallahassee Florida 32399-0250 Jackie L. Gabe, Esquire Charles C. Mays, Esquire McCRARY & VALENTINE Executive Plaza 3050 Biscayne Boulevard. Suite 800, Miami, Florida 33137-4198 Honorable George Firestone Secretary of State The Capitol Tallahassee, Florida 32301 APPENDIX The testimony at the final hearing in this cause was preserved by tape recorder using cassette tapes rather than by use of the court reporter. At the conclusion of the final hearing, Respondents determined that they would provide a transcript of proceedings for use by the undersigned and would therefore have the cassette tapes of the final hearing transcribed. The parties were afforded thirty (30) days from the filing of that transcript in which to submit proposed findings of fact in the form of proposed recommended orders. On June 23, 1986, a transcript was filed with the Division of Administrative Hearings. The parties hereto subsequently agreed that that transcript was incomplete, and a complete transcript was filed with the Division of Administrative Hearings on September 22, 1986. Accordingly, the parties' proposed recommended orders became due to be filed with the Division of Administrative Hearings no later than October 22, 1986. Respondents filed their proposed recommended order on October 20, 1986. However, Petitioner did. not file its proposed recommended order until October 23, 1986. On October 24, 1986, Petitioner also filed what it considered to be an uncertified "corrected transcript. A series of correspondence and conference calls then ensued due to the Respondents' inability to accept the "corrected~ transcript, and the parties were afforded additional time in which to resolve their differences regarding the September 22, 1986 transcript, which was determined by the undersigned to be the official transcript of this proceeding. By correspondence from Petitioner's substituted attorney filed on February 2, 1987, Petitioner withdrew its "corrected" transcript and agreed to the use of the official transcript filed on September 22, 1986. Since Petitioner's proposed recommended order was filed late and no extension of time for the filing of that proposed recommended order was requested or granted, no rulings are made herein on Petitioner's proposed findings of fact. Although Respondents' proposed recommended order was timely filed, only Respondent's finding of fact numbered 1 has been adopted in this Recommended Order. The remainder of Respondents' proposed findings of fact have been rejected as not constituting findings of fact but rather as constituting recitations of the testimony of each witness. ================================================================= FIRST DISTRICT COURT OPINION ================================================================= IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA NORTH DADE SECURITY LTD. NOT FINAL UNTIL TIME EXPIRES CORPORATION, LINDA H. TO FILE REHEARING MOTION AND DONALD and ROLLINS DONALD, DISPOSITION THEREOF IF FILED. Appellants, CASE NO. 97-1350 DOAH CASE NO. 85-4192 Vs. DEPARTMENT OF STATE DIVISION OF LICENSING, Appellee. / Opinion filed September 1, 1988. An appeal from an order of the Department of State. Michael J. Cherniga, of Roberts, Baggett, LaFace & Richard, C Tallahassee, for appellants. R. Timothy Jansen, Assistant General Counsel, Department of State, Tallahassee, for appellee. THOMPSON, Judgee. This is an appeal from a final order of the Department of State (Department) approving and adopting the hearing officer's recommended order holding that the firearms instructor licenses of the individual appellants should be revoked and that the security agency license of the corporate appellant should be revoked. We reverse and remand. The appellants raise, inter alia, the following two questions: (1) Whether the Department's failure to accurately and completely preserve the testimony adduced at the final hearing constitutes a departure from the essential requirements of law and a violation of appellants' due process rights, and (2) whether the Department's failure to preserve the testimony adduced at the final hearing has materially prejudiced the appellants' rights to judicial review of this cause. At the final hearing in this case the Department attempted to preserve the testimony presented by tape recorder using cassette tapes rather than by the use of a court reporter. The Department notified appellants prior to the final hearing that it intended to preserve the hearing testimony in this manner, and that appellants would be responsible for furnishing any transcript they might need for review of the hearing officer's findings. Appellants were advised they were free to either hire a court reporter to produce such transcript or that they could use the Department's tapes t make their own transcript. Appellants neither hired a court reporter nor objected to the Department's announcement that it would tape record the proceedings. Unfortunately, the tape recorder malfunctioned, and numerous substantial and material portions of the testimony taken at the hearing were not transcribable because they were not recorded at all, or because the tapes were inaudible or unintelligible. The final hearing was concluded February 18, 1986. At the conclusion of the hearing the appellants determined that they would provide a transcript of the proceedings for use by the parties and would have the cassette tapes of the final hearing transcribed. The parties were afforded 30 days from the filing of the transcript in which to submit proposed findings of fact in the form of proposed recommended orders. On June 23,1986, a transcript was filed with the Division of Administrative Hearings (DOAH) but the parties subsequently agreed that the transcript was incomplete. An allegedly complete transcript was filed with DOAH on September 22, 1986, and the parties' proposed recommended orders were due to be filed no later than October 22, 1986. Appellants filed their proposed recommended order on October 20, 1986 and the Department filed its recommended order October 23, 1986 together with what it labeled a "corrected" transcript. The appellants refused to accept the "corrected" transcript and the parties were afforded additional time to resolve their differences regarding the September 22 transcript. Ultimately, the transcript filed September 22 was determined by the hearing officer to be the official transcript of the final hearing. On February 2, 1987, the Department withdrew its "corrected" transcript and agreed to use the transcript filed September 22, 1986. The hearing officer's recommended order was entered February 25, 1987, and the final order of the agency was entered September 23, 1987, more than one and one-half years after the date of the final hearing. Section 120.57(1)(b)6, Fla. Stat. (1985) provides in part: The agency shall accurately and completely preserve all testimony in the proceeding, and, on the request of any party, it shall make a full or partial transcript available at no more than actual cost. The statute requires agencies to accurately and completely preserve all testimony in §120.57(1) proceedings held before them, and this mandatory duty cannot be avoided or escaped by simply advising an opposing party that the agency proposes to preserve the testimony by tape recording and that the opposing party has the right to hire a court reporter. The appellants were entitled to rely upon the Department to accurately and completely preserve the testimony taken at the final hearing, yet review of the transcript herein reveals that the Department failed to perform its duty. There are numerous obvious omissions of substantial and material portions of the testimony received, and the answers to many of the questions posed are incomplete or inaudible. Because of the condition of the record the appellants are unable to obtain any meaningful review of the proceedings. Booker Creek Preservation. Inc. v. State of Florida Department of Environmental Regulation, 415 So. 2d 750 (Fla. 1st DCA 1982) and Florida Department of Corrections v. Bradley, 510 So. 2d 1122 (Fla. 1st DCA 1987) are not applicable, as these cases involved a factual situation where the appellant failed to furnish a written transcript although one could have and should have been obtained by the appellant. In this case the appellants made every effort to obtain a complete and accurate written transcript of the testimony but were unable to do so through no fault of their own. As the parties were unable to agree on a statement of the evidence, the appellants are entitled to a hearing de novo. The order of the Department is vacated and the cause is remanded for a hearing de novo on the petition. SHIVERS and ZEHMER, JJ ., CONCUR.
The Issue Whether Petitioner's application for licensure as a Class "D" Security Officer should be denied on the grounds set forth in the Department of State, Division of Licensing's (Department's) March 26, 1992, letter to Petitioner?
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Petitioner is 56 years of age. He has had numerous brushes with the law, many of them alcohol-related, dating back to 1956, but he has never been convicted of a felony. In June of 1956, Petitioner attempted to purchase a beer in Sacramento, California. He was 19 years old at the time and, although in the military, under the legal drinking age. Petitioner was arrested and charged with a misdemeanor violation of California's alcoholic beverage control law. He received a ten-day suspended sentence. In November of 1956, when Petitioner was stationed on a military base in Amarillo, Texas, he and friend, without authorization, went into a room on the base where weapons were stored. They took possession of a .38 calibre firearm and started "playing with it." Petitioner was arrested and charged with the misdemeanor offenses of unlawful entry and wrongful appropriation. He received a bad conduct discharge, which was suspended. After attending a rehabilitation training program, he returned to active military service. In May of 1962, Petitioner was arrested for operating a motor vehicle under the influence of alcohol, a misdemeanor. He was subsequently convicted of the offense. His license was suspended for ten days and he was ordered to pay $25 in court costs. In the early part of 1964, Petitioner, along with several others, charged $700 worth of merchandise in a department store in Indianapolis, Indiana using credit card slips they had forged. Petitioner was arrested and charged with the felony offense of uttering a forged instrument. Adjudication of guilt on this charge was withheld and Petitioner was placed on three years probation. In October of 1968, while in Anderson Indiana, Petitioner was arrested and charged with theft by deception for having written checks in amounts that exceeded the balance of his checking account. The checks were actually written by Petitioner's estranged wife without his knowledge. The charge against Petitioner was dropped after restitution was made. In January of 1969, Petitioner was again arrested in Anderson, Indiana and charged with theft by deception for having written bad checks. These checks were written by Petitioner, but he did not realize at the time he wrote them that, because of his wife's check writing, he had insufficient funds in his account. Adjudication of guilt on this charge was withheld and Petitioner was placed on probation for a year. In February of 1970, Petitioner stayed in a Naples, Florida hotel for approximately three or four days. When he checked out, he did not have enough money to pay his bill. Petitioner was arrested and charged with the misdemeanor offense of defrauding an innkeeper. Less than a week later, Petitioner made restitution and the charge against him was dropped. The following month, while in Miami Beach, Florida, Petitioner was again unable to pay a hotel bill and, as a result, arrested and charged with defrauding an innkeeper. This charge was also dropped after Petitioner made restitution. In May of 1970, Petitioner was arrested and charged with breaking and entering a Naples, Florida restaurant with intent to commit grand larceny. The charge was unfounded and it was subsequently dropped. In January of 1971, Petitioner was driving a motor vehicle in Fort Myers, Florida that had an expired inspection sticker affixed to it. He was stopped by the police and a firearm belonging to a passenger was discovered in the vehicle. Petitioner was arrested and charged with unlawful possession of a firearm and driving a vehicle with an expired inspection sticker. The former charge was dropped. With respect to the latter charge, Petitioner was fined $30 or $35. In October of 1971, Petitioner was arrested in Naples, Florida and charged with writing a worthless check. The check was in the amount of $20 or $25. At the time he wrote the check, Petitioner was unaware that he did not have enough money in his account to cover the check. Petitioner subsequently made restitution and the charge was dropped. In February of 1976, in Lauderhill, Florida, Petitioner was arrested and again charged with writing a worthless check. The amount of this check was less than $50. Petitioner pled guilty to this misdemeanor offense and was fined $10. In addition to paying the fine, Petitioner made restitution. That same month, Petitioner was arrested in Sunrise, Florida and charged with battery on his wife. The charge was unfounded and it was subsequently dropped. In July of 1976, in Fort Lauderdale, Florida, Petitioner was arrested and charged with aggravated assault, assault and battery and petty larceny. All of these charges were unfounded; however, as a matter of convenience and pursuant to a plea agreement, Petitioner pled no contest to the assault and battery charge. Adjudication of guilt on this charge was withheld. Petitioner received a 90-day suspended sentence and a $352 fine, which was also suspended. The remaining charges against Petitioner were dropped. In December of 1977, Petitioner was again arrested in Fort Lauderdale, Florida. On this occasion, he was charged with two counts of writing worthless checks under $50. Petitioner subsequently made restitution and the charges were dropped. In February of 1980, in Jasper, Florida, Petitioner was arrested and charged with driving while intoxicated, speeding, driving without a valid drivers license and refusing to sign a summons. The latter charge was dropped. Petitioner pled guilty to the remaining charges and was adjudicated guilty on these charges by the trial court. For speeding and driving without a valid drivers license, he was fined. For driving while intoxicated, he was also fined and, in addition, his drivers license was suspended and he was ordered to attend DWI school. In May of 1985, in West Palm Beach, Florida, Petitioner was arrested on a Dade County, Florida warrant that had been issued in 1980, when he had been charged with two felony counts of writing worthless checks. The checks had actually been written by Petitioner's daughter. After his arrest, Petitioner made restitution and the charges against him were dropped. In November of 1985, Petitioner was arrested in West Palm Beach, Florida and charged with driving while intoxicated. He pled guilty to this misdemeanor charge. The trial court adjudicated Petitioner guilty and suspended his license for six months and ordered him to attend DWI school. Petitioner has not been in trouble with the law since. He is now a law-abiding citizen, who is better able to control is intake of alcohol. In filling out Section 5 of his application for licensure, which addressed the subject of criminal history, Petitioner did not intentionally make any misrepresentations or omit any required information. It was his understanding that he was required to disclose information relating only to felony convictions in this section of the application.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order finding that Petitioner should not be denied licensure as a Class "D" Security Officer on the grounds cited in the Department's March 26, 1992, denial letter. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of August, 1992. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1992.
The Issue The issue in this case is whether the Petitioner's application for a Class "D" Security Officer License should be granted or denied.
Findings Of Fact On or about January 4, 1994, the Petitioner filed an application for a Class "D" Security Officer License pursuant to Chapter 493, Florida Statutes. On April 20, 1994, the Respondent sent a letter to the Petitioner advising him of its intention to deny his application. The sole stated ground for denial was described as "[f]ailure to qualify under Section 493.6118(1)(j). You committed an act of violence or used force on another person which was not for the lawful protection of yourself or another." The denial letter also made specific reference to the date of February 21, 1993, and specifically referred to criminal charges allegedly brought against the Petitioner on that date for battery and aggravated battery. With regard to the Respondent's basis for denial, the proof demonstrates that during the early afternoon of February 21, 1993, the Petitioner became involved in an argument with Jessica Favata, an adult female with whom he was acquainted. The intensity of the argument escalated and at one point the Petitioner physically pushed Ms. Favata. At that point a male friend of Ms. Favata, one Bradley Watson, injected himself into the argument. As the intensity of the argument between the Petitioner and Mr. Watson continued to increase, the Petitioner retrieved an aluminum baseball bat from his motor vehicle and began swinging the bat in the general direction of Mr. Watson. During the course of one of the swings of the bat, the Petitioner struck Ms. Favata on the hand with the bat. As a result of being struck by the bat, Ms. Favata's hand was visibly injured. During the course of the events described in the preceding paragraph neither Ms. Favata nor Mr. Watson were armed with any type of weapon. Similarly, neither Ms. Favata nor Mr. Watson were causing or attempting to cause physical harm to the Petitioner.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case denying the Petitioner's application for a Class "D" Security Officer License. DONE AND ENTERED this 31st day of October, 1994, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 31st day of October, 1994.
