The Issue The issue for consideration in these cases is whether the licenses held by Respondents should be disciplined in some manner because of the matters alleged in the Administrative Complaints filed herein by the Department of State's Division of Licensing.
Findings Of Fact At all times pertinent to the issues herein, Unlimited Crime Prevention, Inc., was licensed in Florida as a "Class B" Security Agency holding license number B98-00127. Respondent William Larue Scott, was the President/Manager of UCP and held a "Class D' security officer license number D93- 19846, a "Class G" statewide firearms license number G94- 03199, and a "Class ZB" organizational officer position license number ZB98-00179. William Shane Scott, son of William Larue Scott and an employee of UCP, held a "Class D" security officer license number D96-07113, a "Class ZB" organizational officer position license number ZB98-00180, and a "Class G" statewide firearms license number G97-01150. The Department of State, Division of Licensing, was then and is the state agency responsible for the licensing of non- certified security personnel and agencies and for the regulation of the non-governmental security industry in Florida. On June 7, 2000, Garry Floyd, an investigator with the Division since 1981, received a complaint that two security officers from UCP had been observed by security officers from another security firm working at a site while carrying unauthorized weapons. Security officers are authorized to carry certain weapons but not nine-millimeter semi-automatic pistols. Upon receipt of the complaint, Mr. Floyd sent a telefax message to UCP's President/Manager, Mr. William L. Scott, asking for an explanation. The following day, an individual who identified himself as Mr. William L. Scott, called and said he had received Mr. Floyd's message and was looking into the matter. At this point, Mr. Scott said he was one of the two security officers involved but that he and his associate were carrying revolvers, not semi-automatic weapons. Thereafter, on June 11, 2000, Mr. Scott sent Mr. Floyd a telefaxed memorandum in which he reiterated his denial of the allegations as to the weapons carried, explained that the allegations occurred because of animosity toward his firm, and requested the investigation be terminated because of a lack of evidence. On June 27, 2000, Mr. Floyd met with Robert Shank, the other security officer alleged to have been carrying the unauthorized weapon and questioned him about the allegations. Shank vehemently denied the allegations and continued to do so even after Floyd said he did not believe him. On July 3, 2000, Mr. Floyd went to Mr. Scott's home where Scott maintained UCP's home office. Though Floyd went there with the intention of speaking with Mr. Scott, he was unable to do so and spoke, instead, with Mrs. Scott, whom he asked to have Mr. Scott call him. Mr. Scott did not call as requested, however. Thereafter, on July 17, 2000, Mr. Floyd went to UCP's new office, but because so many other people were there, so as not to embarrass Mr. Scott, he made an appointment to come back on August 2, 2000. When Mr. Floyd spoke with Mr. Scott on August 2, 2000, he gave Mr. Scott a list of questions he had written down. Scott said he was not ready to admit anything and would not answer any questions, orally or in writing. As of the hearing, Mr. Scott had not answered any of the questions posed by Mr. Floyd. The questions are simple. They ask, primarily, about the ownership of the company and the positions held therein by both Scott and his son, as well as whether he has ever allowed any employee to carry semi-automatic weapons. Mr. Floyd also met with Eric Hege, an employee of UCP, and provided him with a list of eight questions, two of which concerned the type of firearms carried by Mr. Scott. However, Mr. Hege refused to answer the questionnaire. This stymied Mr. Floyd's investigation, and he could proceed no further with it. However, sometime during the first week of July, 2000, Mr. Floyd received a complaint from a local police department that UCP was using an unlawful scheme of colored lights on its vehicles. When he went to various places where ICP's vehicles were located, he saw that they did have unlawfully colored lights which could give the impression they were official police vehicles. One vehicle had a green light on the seat, and another had a blue light. Blue lights are not allowed on civilian vehicles. Only amber-colored emergency lights are allowed on civilian vehicles. Mr. Shank previously held a license to carry a semi- automatic weapon, but not during the period he was employed performing security duties for Respondent. He surrendered that license after he, too, was charged with carrying an unauthorized weapon. Though he was not licensed to do so, while he was on duty with UCP, he carried a semi-automatic weapon or, in the alternative, a revolver. He started carrying the revolver so that he would not violate the law. Mr. Shank is certain that William L. Scott knew he was carrying an unauthorized weapon because Scott purchased revolvers for himself and the others in July 2000, so they would not be in violation of the law. When Shank had pointed out that the semi-automatic weapons were against state law, William L. Scott replied, "Fuck the State. The statutes don't mean anything." On June 2, 2000, Mr. Shank, with William L. Scott's son and several other employees of UCP, was working as a security officer at The Harbor Club in Pinellas County. At that time he was carrying a semi-automatic weapon, as was Mr. Scott's son. He was of the opinion at the time that William L. Scott's approach was to violate the law regarding weapons and deny it if caught. In late July or early August 2000, William L. Scott held a meeting of his employees at which time he instructed them, among other things, that if Mr. Floyd were to contact them about the incident at The Harbor Club, they were not to give him any information. He also provided each security officer with a letter which instructed them, in the event they were contacted by any personnel from the Division of Licensing, to immediately notify their supervisor and to advise the state personnel that they could not be distracted from their duties. Employees were not to speak with a state employee until a supervisor had relieved him, nor were they ever to hand over their firearms to an inspector unless properly relieved. Investigators were to be referred to the company's attorney, and if the investigator refused to leave, the police were to be called. Mr. Shank has also performed services for UCP using a vehicle with green and red flashing lights on the roof. So have both Scotts and Mr. Hege. Mr. Shank was subsequently charged with driving a vehicle with improper lights as well as carrying a semi-automatic weapon. William L. Scott and Mr. Shank had a falling out over money in early September 2000. Shank then called Mr. Floyd to tell him what he knew of the allegations because he felt it was the right thing to do. When Boin Upton, at the time an employee of Excelsior Defense, also a security firm, came to work at The Harbor Club on June 2, 2000, he found representatives of UCP already were there. He thought this was unusual because he understood that his company had the contract to provide security for the club. He called his supervisor who came to the club and resolved the issue. A the time, however, he noticed that both Mr. Shank and William L. Scott, the two representatives of UCP, were carrying nine-millimeter semi- automatic weapons. When Mr. Upton asked about this, he was told by Mr. Shank that he had a "CC" waiver. A "CC" license is one which is issued to an apprentice private investigator and does not authorize the carrying of a semi-automatic weapon. Joshua Wilson also was a security guard who worked for UCP from July 7 through the end of August 2000, and whose duty stations were at the Lutz Apartment complex and at The Harbor Club. His job was to observe and report and to keep the peace, and he was not armed. However, he observed William S. Scott, William L. Scott's son carrying a nine- millimeter semi-automatic weapon at The Harbor Club during this period. Mr. Wilson recalls a staff meeting held by Mr. Scott during this period at which Mr. Scott discussed the investigation being conducted by the Division. At this meeting, he gave each employee a copy of the memorandum which advised employees not to talk with anyone from the Division but to refer them to a UCP supervisor. Scott indicated his opinion that Mr. Floyd had declared war on UCP and him, and he would not help him. Another former employee of UCP, Mr. Phelps, also recalls being told directly by Mr. Scott that if an investigator from the Division contacted him with questions about the company, he was not to answer them. In mid-June 2000, Officer Jim Routzahn of the Indian Shore Police Department conducted a routine traffic stop of William L. Scott. Mr. Scott got out of his vehicle wearing a uniform and badge and carrying a semi-automatic weapon. Scott's badge was in the form of a shield and not a star. Mr. Scott advised Officer Routzhan that he was the owner of a security company and was on official duty dropping off and picking up security officers. At the time, because Officer Routzahn received a high-priority call to go elsewhere, he gave Mr. Scott a warning and let him go. According to Mr. Floyd, a search of the records of the Division of Licensing fails to show any prior complaints against either UCP or either Mr. Scott. However, the records reflect William L. Scott was previously denied a license based on a conviction in Indiana. Mr. Floyd has known William L. Scott from when he, Mr. Floyd, was an investigator for another agency. During that former investigation, he found Mr. Scott to be very personable, helpful, and cooperative. Mr. Floyd, a retired Captain of Police from Tampa, considers this case to be serious because it involves the impersonation of a policeman. Based on his experience, "wanna-be's" constitute one of the biggest problems facing law enforcement, and even if the only issue here were related to the inappropriate use of colored lights on UCP's vehicles, he would still have filed an Administrative Complaint in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of State, Division of Licensing, enter a Final Order revoking the Class "B" Security Agency License number B98-00127, the Class "D" Security Officer License number D93-19846, the Class "G" Statewide Firearms License number G94-03199, and the Class "ZB" Organization Officer Position, number ZB98-00179, all licenses held by William Larue Scott as President/Manager of Unlimited Crime Prevention, Inc., be revoked. It is further recommended that the Class "G" Statewide Firearms License number G97-01150, held by William Shane Scott be placed on probation for a period of one year under such terms and conditions as the Department may specify. DONE AND ENTERED this 24th day of May, 2001, in Tallahassee, Leon County, Florida. ___________________________________ ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 2001. COPIES FURNISHED: Steve Bensko, Esquire Department of State The Capitol, Mail Station 4 Tallahassee, Florida 32399-0250 Louis Kwall, Esquire Kwall, Showers & Coleman, P.A. 133 North Fort Harrison Avenue Clearwater, Florida 33755 Honorable Katherine Harris Secretary of State The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0250 Deborah K. Kearney, General Counsel Department of State The Capitol, Lower Level 10 Tallahassee, Florida 32399-0250
Findings Of Fact The Department of State hereby adopts and incorporates herein by reference- the Findings of Fact in the Recommended Order.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department Of State, Division Of Licensing, enter a Final Order imposing a fine of $1,000. DONE and RECOMMENDED this 31st day of August, 1993 in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 31st day of August, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6780 To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: Rejected. The evidence fails to establish that the certificate was signed by Moore, who did not testify at the hearing. Rejected. Not supported by the evidence. Neither Meyer nor Wiese testified at the hearing. (This ruling is related to the second proposed finding identified as "4".) Rejected. Not supported by the evidence. Neither Meyer nor Wiese testified at the hearing. Respondent The Respondent filed a letter containing unnumbered paragraphs which is treated herein as a proposed recommended order. The paragraph beginning "I TAKE EXCEPTION" is regarded as paragraph #1. The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 1, 2. Rejected. The proposed finding is applicable to the weight of the testimony which clearly established that the witness received an inadequate level of instruction. 3. Rejected. The Respondent stipulated to the fact that Dale and Moore were in the same class. The stipulation was placed on the record. The Petitioner released Moore from testifying based on the stipulation. 4, 6-12. Rejected, irrelevant. COPIES FURNISHED: 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 Henri C. Cawthon, Esquire Department of State Division of Licensing The Capitol, M.S. #4 Tallahassee, Florida 32399-0250 DV's Security Guard School Stephen Paul DeVillo 10871 Ruden Road Fort Myers, Florida 33917-5513
Findings Of Fact On March 28, 1990, Petitioner filed an application with Respondent for a Class "D" and "G" Watchman, Guard, or Patrolman, Statewide Gun Permit. On May 24, 1990, Respondent, through Marilyn D. Thompson, denied the application based on the provisions of Section 493.319, Florida Statutes. On July 24, 1989, Petitioner entered pleas of nolo contendere of the following charges in a proceeding brought against him in the Circuit Court in and for Dade County, Florida: Battery On A Law Enforcement Officer; Tampering With Or Fabricating Physical Evidence; and Resisting An Officer Without Violence To His Person. Adjudication of guilt was withheld by the court and he was sentenced to time served with statutory costs being imposed. Petitioner's application did not reflect having entered the nolo contendere pleas to these charges. Petitioner did not appear at the formal hearing to present any evidence in support of his application.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered which denies the subject application for licensure. RECOMMENDED this 19th day of October, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 1990. COPIES FURNISHED: Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Ken Rouse General Counsel Department of State The Capitol, LL-10 Tallahassee, Florida 32399-0250 Mr. George Negron 1311 Sharazad Boulevard Opa Locka, Florida 33054 Henri C. Cawthon, Esquire Department of State Division of Licensing The Capitol, MS #4 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
The Issue The issues in this case are whether Respondent, Jean M. Duterne (Respondent), committed the violations alleged, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with the responsibility of regulating and licensing security officers within the State of Florida. See §§ 493.6101(1) and 493.6118, Fla. Stat. (2010). At all times material to the allegations of this case, Respondent held Security Officer License D 2526539 (D-license) and Statewide Firearms License G 2800118 (G-license). Prior to being licensed, Petitioner went through security officer training. To that end, Petitioner has read and asserts he understands Chapter 493, Florida Statutes (2008). Respondent was on-duty working as an armed security guard at the JMS Hotel (the hotel), located at 21601 32nd Street, South, St. Petersburg, Florida, on August 20, 2008. Respondent was involved in an incident in the hotel’s parking lot that resulted in police responding to the property. Respondent provided information to police at or near the time of the incident on August 20, 2008. On August 20, 2008, Respondent responded to a call to investigate a possible credit card theft in Room 166 of the hotel. When he presented at the room, Respondent observed a woman sitting in a car parked adjacent to the room and another woman loading items into the car. When Respondent attempted to speak to the woman inside the car, she started the engine and began to exit the property. At that time, Respondent reached into the vehicle and attempted to remove the key from the ignition. It was Respondent’s intention to detain the woman to determine what she was doing. Contrary to Respondent’s effort, the vehicle began to pull away, and Respondent hurriedly pulled himself from harm’s way and stepped back away from the vehicle. In the excitement of the moment, Respondent drew his 9 mm semi-automatic pistol and discharged it, in an effort to hit the tire of the exiting vehicle. Respondent did not hit the tire. It is unknown what, if anything, was struck by the bullet discharged. Respondent’s G-license expired on June 2, 2010. Respondent’s D-license is still valid. The course Respondent took to obtain the G-license required a 28-hour course taught by a state-licensed instructor. The course training includes a manual that contains scenarios for licensees to consider as examples of when one should retreat from potentially dangerous situations. Generally, licensees should avoid using deadly force (equivalent to discharging a firearm) whenever possible. Only under limited situations should a licensee discharge a weapon. To further explain and provide guidance for the use of deadly force, the manual sets forth the following examples: Situation #1 You are guarding a liquor store and are advised by a customer that there is an armed robbery in progress. You look around the corner and see a man rushing out the front door with a firearm in his hand. Instructor Discussion: Instead of immediately looking around the corner, call the police first. The suspect could turn around and see you as you look around the corner, thus increasing the probability of armed conflict. The man is running away from you and there is no threat of death or great bodily injury. Don’t shoot. Situation #2 You have been advised that a burglary has occurred at a warehouse you are guarding. The suspects were observed leaving the scene in a blue, 1972 Dodge. Later that night, while patrolling the grounds in a well- marked security vehicle, you observe the suspects’ vehicle traveling through the parking lot at a high rate of speed with the headlights off. You see a flash come from the driver’s side of the suspects’ vehicle and almost simultaneously the front windshield of your patrol car cracks. The suspect vehicle continues through the parking lot at a high rate of speed. Instructor Discussion: Don’t shoot. Record license number and description of vehicle and suspects if it is possible to do so from a covered position. Pursuit could result in serious injury to you or to innocent bystanders who may get in the way. Call for police as soon as possible. Respondent created the incident in this case by reaching into the vehicle. Had he used the methods outlined in the manual, Respondent would have responded to the room, contacted police with the information concerning the description of the car and its occupants, and followed up by determining whether a theft had occurred. Instead, by injecting himself into the car and attempting to remove the ignition key, Respondent could have easily been injured. Even so, such an injury would not have supported the discharge of Respondent’s weapon in a location where others could have been injured. This is especially true in light of the fact that the vehicle was pulling away from Respondent and not toward him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services, Division of Licensing, enter a final order denying the renewal of Respondent’s G-license and placing Respondent’s D-license on probation with such additional terms as the Department might deem appropriate. DONE AND ENTERED this 1st day of December, 2010, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 2010. COPIES FURNISHED: James A. Thomas, Esquire 334 South Hyde Park Avenue Tampa, Florida 33606 Tracy Sumner, Esquire Division of Licensing Division of Agriculture and Consumer Services 2520 North Monroe Street Tallahassee, Florida 32301 Constance N. Crawford, Director Division of Licensing Division of Agriculture and Consumer Services Post Office Box 3168 Tallahassee, Florida 32315-3168
The Issue Whether Respondent violated provisions of Chapter 493, Florida Statutes, as more specifically alleged in the Administrative Complaint dated April 15, 1991.
Findings Of Fact On March 14, 1991, Respondent performed the services of a security guard at a Best Western Motel in Orange County, Florida, As such he was employed by the motel. While performing the services above noted Respondent carried a 9mm Berretta automatic pistol in a holster external to his clothes. While performing the above-noted services Respondent's firearm was unloaded and he had hollow point 9mm shells in his pocket. While performing the above-noted services Respondent held neither a Class D nor Class G license. Respondent was performing the services of security guard while substituting for a relative who was ill. Respondent was working solely for the motel and was not associated with any security guard agency. The motel manager had requested that Respondent carry a unloaded firearm because several crimes had been committed in the vicinity of the motel. Respondent believed that as an employee of the motel, as contrasted with being employed by a security guard agency, Respondent did not need a security guard license. Further, Respondent believed he had a Second Amendment U.S. Constitutional right to overtly carry the firearm in the holster outside his clothing. At the time of this hearing Respondent was unemployed.
The Issue This is a license discipline proceeding in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations set forth in a two-count Administrative Complaint in which the Respondent is charged with violations of Sections 493.6118(1)(j), 493.6106(1)(b), 493.6118(1)(t), and 493.6101(7), Florida Statutes.
Findings Of Fact The Respondent is a licensed security officer holding a Class "D" Security Officer License and a Class "G" Statewide Firearm License.1 On May 25, 1996, the Respondent was driving himself and his wife, Tracee Kinlock, to the home of the latter's brother. During the course of that drive an argument began on the subject of whether the Respondent had been seeing another woman. During the course of the argument, Ms. Kinlock became angry about the Respondent's refusal to discuss the subject and began hitting him on the arm and side. The argument continued to escalate, and eventually Ms. Kinlock became so upset that she insisted that the Respondent stop the car and let her get out. The Respondent refused to do so. Eventually, Ms. Kinlock took matters in her own hands and grabbed the gear shift lever and pushed it into the neutral or park position.2 The Respondent told Ms. Kinlock to take her hands off of the gear shift lever and made several efforts to pull her hands off of the lever, but Ms. Kinlock refused to move her hands and refused to release the gear shift lever. The Respondent became so angry or frustrated that he leaned over and bit Ms. Kinlock on the hand. He bit her hard enough to make her cry and release the gear shift. The bite did not draw blood, but it was sufficiently severe to leave visible marks and to cause the hand to swell. After biting Ms. Kinlock, the Respondent was able to put the car in gear and resume driving. When they arrived at the home of Ms. Kinlock's brother, Ms. Kinlock threw her wedding rings at the Respondent, got out of the car, and began walking rapidly towards her brother's home in an effort to get away from the Respondent. The Respondent chased after her, grabbed her from behind, and then swung his foot in a sweeping motion in such a way as to intentionally trip Ms. Kinlock and cause her to fall down. Ms. Kinlock fell to the ground, and the Respondent fell on top of her. Ms. Kinlock's brother immediately pulled the Respondent away from Ms. Kinlock and then restrained the Respondent while Ms. Kinlock went into the house. The police were called and shortly thereafter the Respondent was arrested and charged with the battery of Ms. Kinlock. The Respondent ultimately entered a plea of "no contest" to the charge of battery. Adjudication was withheld on the charge of battery.
Recommendation Pursuant to Rule 1C-3.113(2)(n), Florida Administrative Code, it is RECOMMENDED that Respondent's Class "D" Security Officer License and Class "G" Statewide Firearm License be revoked pursuant to Section 493.6118(2)(e), Florida Statutes. DONE AND ENTERED this 10th day of November, 1997, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1997.
Findings Of Fact Robert W. Barnard was initially issued a Class "D" security guard license on May 12, 1986, by the Florida Department of State, Division of Licensing. At the time of licensure the agency was aware that Barnard had been found guilty of the felony of aggravated assault by a jury verdict, but that adjudication of guilt was withheld and he was placed on probation for five years, on September 3, 1974. (Exhibit #1, Respondent's Memorandum in Response to Petition. Effective October 1, 1986, the legislature added the following to Chapter 493, F.S., relating to licensing for investigative and patrol services: 493.319 Grounds for disciplinary action.-- * * * (1) The following constitutes grounds for which disciplinary action specified in subsection (2) may be taken: * * * (p) The department shall deny an applicant or revoke a license when the person or licensee has been convicted of a felony, regardless of whether adjudication was withheld or whether imposition of sentence was suspended, unless and until civil rights have been restored and a period of 10 years has expired: * * * Chapter 86-193, Laws of Fla. This provision was renumbered and was amended in 1987, as follows: (3) Notwithstanding the provisions of paragraph (1)(c) and subsection (2), the department shall deny an application or revoke a license when the person or licensee has been convicted of a felony, regardless of whether adjudication was withheld or whether imposition of sentence was suspended, unless and until civil rights have been restored and a period of 10 years has expired. A conviction based on a plea of nolo contendere shall create a presumption of guilt to the underlying criminal charges, and the department shall allow the person being disciplined to present any evidence relevant to the underlying charges and the circumstances surrounding his plea. Chapter 87-274, Laws of Fla. The agency issued a renewal certificate to Robert Barnard on March 17, 1988. (Exhibit #1, Respondent's Memorandum in Response to Petition) On September 19, 1989, the Department of State, Division of Licensing issued its Administrative Complaint, Case #89-01377, alleging that Robert W. Barnard's guard license should be revoked, based on his violation of Section 493.319(3), F.S.. Count I of the complaint alleges, "On September 3, 1974, Respondent was found guilty of one felony count of aggravated assault in Orange County, Florida." No other convictions or violations were alleged. Through counsel, Robert Barnard requested a formal hearing in response to the complaint. On November 1, 1989, Department of State Assistant General Counsel, Henri C. Cawthon, wrote to Richard Wallsh, Barnard's attorney, stating that it did not appear that material facts were in dispute and that an informal hearing would be more appropriate. The letter provided, in pertinent part: ... Because the Division will stipulate to the factual allegations in your petition, the only issue is a legal one: does Section 493.319(3), Florida Statutes (1987), require revocation when a licensee had adjudication withheld on a felony over ten years ago. It can also be stipulated that Mr. Barnard was licensed in spite of his criminal record, and that the Division is applying the statute retroactively. * * * (Attachment to Petition for Fees and Costs) On November 3, 1989, Robert Barnard petitioned for an informal hearing based on Mr. Cawthon's letter. On November 30, 1989, Robert Barnard filed his "suggestion of sealing of record", stating that on November 8, 1989, the ninth Judicial Circuit Court, in and for Orange County, entered its order sealing the pertinent criminal records pursuant to Section 943.058, F.S. and Fla. R. Criminal Procedure 3.692. (Attachment to Petition for Fees and Costs) Counsel for the agency claims that he had informed Petitioner's counsel that sealing the criminal record would result in dismissal of the administrative complaint, although the agency was under no obligation to inform Petitioner of this option. (Memorandum of Law in Response to Petition) On December 11, 1989, in a letter from Assistant General Counsel, Henri Cawthon, to Richard Wallsh, the agency informed Robert Barnard that, based on the order sealing records, the administrative complaint was being withdrawn. The informal hearing scheduled for December 19, 1989, was cancelled. Robert W. Barnard is a "prevailing small business party", as defined in Section 57.111(3)(c) and (d), F.S. (parties' Stipulation of Facts). The agency was not a "nominal party" as provided in Section 57.111(4)(d), F.S. (parties' Stipulation of Facts) In successfully defending the administrative complaint, Robert Barnard incurred reasonable attorneys fees and costs totalling $1,527.07. (parties' Stipulation of Facts) In successfully pursuing fees and costs, Robert Barnard incurred additional reasonable fees and costs in the amount of $1,281.53, for a total of $2,808.60.
Recommendation Based on the foregoing, it is hereby, ORDERED: That the Department of State, Division of Licensing pay Robert Barnard's attorney fees and costs in the amount of $2,808.60. DONE AND ORDERED this 3rd day of July, 1990, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July, 1990. COPIES FURNISHED: Richard I. Wallsh, Esquire 2699 Lee Road, Suite 505 Winter Park, FL 32789 Henri C. Cawthon, Esquire Department of State Division of Licensing The Capitol, Mail Station No. 4 Tallahassee, FL 32399-0250 Honorable Jim Smith Secretary of State The Capitol Tallahassee, FL 32399-0250 Ken Rouse General Counsel Department of State The Capitol, LL-10 Tallahassee, FL 32399-0250
The Issue The issues in the case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulation of pari-mutuel wagering pursuant to Chapter 550, Florida Statutes (2003), and is responsible for licensing employees of pari-mutuel facilities. Respondent is a card dealer holding Florida occupational license number 6927724-1012 for employment as a card dealer at the Tampa Bay Downs racetrack. By application filed at the racetrack on December 3, 2003, Respondent applied for the referenced license. Persons unknown apparently conducted the application process for all employees of the facility. Employees completed the applications and submitted them at the racetrack, again to persons unknown. The application includes a section titled "Background Information." Question 1 asks in relevant part the following question: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contender (no contest) to, even if you received a withhold of adjudication? Question 1 further provides as follows: YOUR ANSWER TO THIS QUESTION WILL BE CHECKED AGAINST LOCAL, STATE AND FEDERAL RECORDS. FAILURE TO ANSWER THIS QUESTION ACCURATELY MAY RESULT IN DENIAL OR REVOCATION OF YOUR LICENSE. IF YOU DO NOT FULLY UNDERSTAND THIS QUESTION, CONSULT WITH AN ATTORNEY OR CONTACT THE DEPARTMENT. Respondent answered the question in the affirmative. The question provides that if the applicant responds in the affirmative to the question, "form 0050-1" should be completed to disclose additional information about the convictions. Form 0050-1 includes space to list three criminal convictions. The application instructions related to the form state: "[i]f you have more than seven offenses to document on form 0050-1, attach additional copies . . . as necessary." Respondent completed a form 0050-1. On the form, he stated that he had been convicted of a misdemeanor in 1987. The Respondent identified the offenses as "trespassing," "suspended license," and "cashed check." Respondent stated that the penalty had been probation, which was violated, and that he was required to finish the sentence. Respondent initially identified the location of the conviction as Pasco County, but crossed through the writing and changed it to Hillsborough County. Above Respondent's signature on the application is a statement that in material part provides as follows: I hereby certify that every statement contained herein is true and correct and that I understand that any misstatement or omission in this application may result in denial or revocation of my pari-mutuel license. Other than the information on the application, there was no evidence offered at the hearing that Petitioner was convicted of a misdemeanor in 1987 in Hillsborough County. Petitioner asserts that at the time he filed the application, he completed a second form 0050-1 on which he disclosed additional information related to felony convictions. At the hearing, he testified that an unidentified person allegedly involved in the application process instructed him to make the felony disclosures on a second form. Although there is no evidence contradicting Respondent's account of the events, the application submitted through the racetrack to Petitioner did not include a second form 0050-1. In 1983, Respondent was adjudicated guilty of felony charges, including Forgery and Uttering a Forged Check in Pasco County, Florida (Circuit Court, Sixth Judicial Circuit, Case No. 8101927CFAWS). In 1990, Respondent was adjudicated guilty of a felony charge of Grand Theft, Third Degree in Hillsborough County, Florida (Circuit Court, Thirteenth Judicial Circuit, Case No. 90-279). In 1991, Respondent was adjudicated guilty of a felony charge of Grand Theft in Pasco County, Florida (Circuit Court, Sixth Judicial Circuit, Case No. 8701762CFAWS). A few days after the application was completed, Respondent met with an employee of Petitioner (identified as "Nick") to discuss the felony convictions. "Nick" did not testify at the hearing. As filed with Petitioner, Respondent's application failed to include a second form 0050-1 and did not disclose the felony convictions identified herein. There is no evidence that Respondent has had any involvement in criminal activity since 1991.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order suspending Respondent's occupational license for a period of three months. DONE AND ENTERED this 17th day of December, 2004, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 17th day of December, 2004. COPIES FURNISHED: Ralf E. Michels, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Stefan Thomas Hoffer Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Jerry M. Bonett 7801 Willowbrook Court Hudson, Florida 34667 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 David J. Roberts, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue As to DOAH Case No. 96-4984, whether Respondent committed the offenses alleged in the Administrative Action dated March 13, 1996, and the penalties, if any, that should be imposed. As to DOAH Case No. 97-0708, whether Respondent committed the offenses alleged in the Administrative Action dated November 4, 1996, and the penalties, if any, that should be imposed.
Findings Of Fact On December 29, 1995, Respondent applied for a license authorizing the sale of beer and wine for consumption on the premises of her business known as Mrs. B's Restaurant and Lounge, which was located at 342 Martin Luther King, Jr., Boulevard, Stuart, Florida. Thereafter a temporary license, numbered 53-01741, series 2-COP, was issued to Respondent. The application executed by Respondent on December 29, 1995, contained a Personal Questionnaire that the applicant submitted under oath. The Personal Questionnaire required certain information about the individual applicant, including her criminal history. Respondent answered in the affirmative to the question whether she had ever been arrested, and in the negative to the question whether she had ever been convicted of a crime. As part of the application process, Respondent was fingerprinted so that the Florida Department of Law Enforcement could check her criminal record. Respondent was arrested on four separate occasions and was convicted of a crime on one occasion. On May 31, 1998, Respondent was arrested by the St. Lucie County Sheriff's office for failure to redeliver a hired vehicle. On September 16, 1988, Respondent was placed on probation for this offense, but adjudication of guilt was withheld. On January 29, 1989, Respondent was arrested by the Martin County Sheriff's Office for violation of probation. On January 4, 1992, Respondent was arrested by the St. Lucie County Sheriff's Office on a charge of robbery, a felony. On November 10, 1992, Respondent entered a plea of nolo contendre to a reduced charge of resisting a merchant, a first degree misdemeanor, and was subsequently sentenced. On March 20, 1992, Respondent was arrested by the St. Lucie County Sheriff's Office on charges of robbery and battery. These charges were subsequently dismissed. Respondent's answers on her Personal Questionnaire failed to disclose the required particulars of her criminal history, including information as to the charges, the dates and places of the arrests, the arresting agencies, and the dispositions. Respondent failed to disclose that she had been convicted of a crime. The uncontroverted evidence was that a permanent license was never issued by Petitioner to Respondent and that, prior to the formal hearing, Respondent's temporary license was revoked by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order that, pursuant to Section 559.791, Florida Statutes, denies Respondent's application for permanent licensure and sustains the revocation of her temporary license. It is further recommended that DOAH Case No. 96-4984 be dismissed. DONE AND ENTERED this 2nd day of June, 1998, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 2nd day of June, 1998. COPIES FURNISHED: James D. Martin, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Mrs. Mary Ann Brinkley, pro se Mrs. B's Restaurant Post Office Box 765 Stuart, Florida 34995 Richard Boyd, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
