The Issue At issue in Case No. 94-5463S is whether the Petitioner's application for a Class 'G' Statewide Firearm License should be granted or denied. At issue in Case No. 94-6872 is whether the Respondent's Class 'D' Security Officer License should be revoked or otherwise disciplined based upon the violations of Chapter 493, Florida Statutes, alleged in the Amended Administrative Complaint filed by the Department.
Findings Of Fact On or about March 15, 1994, Jean-Baptiste submitted to the Department an application for a Class 'G' Statewide Firearm License pursuant to Chapter 493, Florida Statutes. At all times material to this case, Jean-Baptiste held Class 'D' Security Officer License Number D91-05252, issued by the Department pursuant to Chapter 493, Florida Statutes. On February 29, 1992, Jean-Baptiste was the driver of an automobile involved in a minor traffic accident in Homestead, Florida. The accident was investigated by Trooper Talton B. Dunn of the Florida Highway Patrol. When, in the course of his investigation, Trooper Dunn asked Jean- Baptiste for his driver's license, Jean-Baptiste replied that he did not have a license in his possession. Trooper Dunn asked his name, and Jean-Baptiste gave the name 'Joseph Jean Pierre.' Trooper Dunn was unable to obtain confirmation that a Florida driver's license had been issued to anyone by that name. Trooper Dunn then asked one of the small children who were passengers in the car driven by Jean-Baptiste if she knew the driver's name. The child, who identified herself as the driver's daughter, stated that his name was 'Jimmy Baptiste,' and Jean-Baptiste agreed that this was his name when asked by Trooper Dunn. Trooper Dunn was unable to obtain confirmation that a Florida driver's license had been issued to anyone by the name of 'Jimmy Baptiste.' When Trooper Dunn again asked for his name, Jean-Baptiste stated that his correct name was the first name he had given, 'Joseph Jean Pierre.' At some point in the discussion, Jean-Baptiste told Trooper Dunn that his license had been suspended. Trooper Dunn arrested Jean-Baptiste for, among other infractions, giving false information on an accident report and obstructing justice. Jean- Baptiste gave his correct name to the authorities at the jail when he was being fingerprinted.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: In Case Number 94-5463S, the Department of State, Division of Licensing, enter a Final Order finding that the evidence is insufficient to establish that Petitioner lacks good moral character and granting his application for a Class 'G' Statewide Firearm License; and, In Case Number 94-6872, the Department of State, Division of Licensing, enter a Final Order finding that the evidence is insufficient to establish that Respondent lacks good moral character and dismissing the Amended Administrative Complaint. DONE AND ENTERED this 17th day of March 1995, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of March 1995. APPENDIX The proposed findings of fact included in the Department's Proposed Recommended Orders submitted in Case Nos. 94-5463S and 94-6872 are virtually identical, differing only in paragraph one to reflect the different licenses at issue. The following are my specific rulings on these proposed findings of fact: Paragraphs 1 through 9: Accepted as true and incorporated in substance though not repeated verbatim. COPIES FURNISHED: Kristi Reid Bronson Assistant General Counsel Department of State Division of Licensing The Capitol, M.S. #4 Tallahassee, Florida 32399-0250 Frantz Olivier The Causeway Professional Bldg. 777 Northeast 79 St., Causeway Suite 104 Miami, Florida 33138 Don Bell General Counsel Department of State The Capitol Tallahassee, Florida 32300-0250 The Honorable Sandra B. Mortham Secretary of State The Capitol Tallahassee, Florida 32399-0250
The Issue The issue presented is whether Petitioner's application for licensure should be granted.
Findings Of Fact l. Petitioner became a certified law enforcement officer and was employed by the Metro-Dade Police Department in 1981. He worked for that agency through 1994, and his employment was terminated in 1996. During his employment with the Metro-Dade Police Department, he was trained as an investigator and was specifically trained in traffic accident investigation and reconstruction. He subsequently became an instructor for the Department and trained other police officers. During his employment with that agency, he received 12 commendations for good deeds and heroism. Initially, he received above-satisfactory evaluations. During his last seven years, he was rated as an outstanding employee. Although no longer employed by the Police Department, he continues to be used by the Metro-Dade Police Department, by the County Attorney's Office, and by the State Attorney's Office as a consultant on a regular basis and testifies on behalf of those agencies as an expert in traffic accident reconstruction. In 1994 he was charged with several felonies in Broward County. The jury found him not guilty of those charges, but he was convicted of lewd and lascivious behavior on June 10, 1995. The convictions were for five misdemeanors. Petitioner has engaged in no criminal activity either before or after his conviction and continues to maintain his innocence regarding the activity for which he was convicted. Petitioner was given six months' probation and has completed all conditions of that probation. None of the conditions of probation involved contact with people or restrictions on the employment in which he can engage. For the past three years, Petitioner has been employed in an administrative capacity by an investigative and security agency licensed by the Department. For a while he worked there under temporary licensing by the Department without incident. The agency which employs Petitioner performs a substantial amount of investigation and traffic accident reconstruction for insurance carriers. If licensed, Petitioner would perform that work in the field. Petitioner's ability to perform the duties of that employment is enhanced by his extensive educational background and experience. Petitioner even has a degree in photography, which further enhances his ability to perform surveillance, investigations, and traffic accident reconstruction. Petitioner's employers, who are both certified law enforcement officers, rely on Petitioner's "outstanding" investigative abilities and guidance. He is considered very knowledgeable in the requirements of Chapter 493, Florida Statutes, the framework for investigative and security services administered by the Department. His skills are considered superior, and he is respectful to all with whom he comes in contact. He conducts himself with the utmost professionalism. Petitioner respects the law and asserts that he has never knowingly broken it. He further respects the rights of others as evidenced by his testimony, the testimony of other law enforcement officers, and the many awards, letters of praise from citizens, and commendations from his superiors admitted in evidence. There is no relationship between the misdemeanors for which Petitioner was convicted and the licenses for which he has made application.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT a Final Order be entered granting Petitioner's application and issuing to him a Class "C" Private Investigator license, a Class "D" Security Officer license, and a Class "G" Statewide Firearm license. DONE AND ENTERED this 31st day of July, 1997, at Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 31st day of July, 1997. COPIES FURNISHED: C. Michael Cornely, Esquire Hartman and Cornely, P.A. 10680 Northwest 25 Street, Suite 200 Miami, Florida 33172 Kristi Reid Bronson, Esquire Department of State Division of Licensing The Capitol, Mail Station 4 Tallahassee, Florida 32399-0250 Honorable Sandra B. Mortham Secretary of State The Capitol Tallahassee, Florida 32399-0250 Don Bell, General Counsel Department of State The Capitol, Plaza 2 Tallahassee, Florida 32399-0250
The Issue Does Petitioner, Captain Ronald G. Beermunder, have standing to bring this action? Does the Division of Administrative Hearings (DOAH) have jurisdiction over this matter? Do the 2008 Firearms Instructor's Training Manual and the 2011 Certificate of Firearms Proficiency for Statewide Firearm License constitute agency statements that amount to a rule as defined in section 120.52(16), Florida Statutes (2014)?1/ If so, has the Division adopted the statements through the chapter 120 rulemaking procedure?
Findings Of Fact The Parties The Division licenses and regulates private investigative, security, and repossession services in Florida. §§ 493.6100 and 493.6101, Fla. Stat. Some Division licensees may bear firearms in the course of regulated activities. § 493.6115(2), Fla. Stat. A licensee who bears a firearm must also possess a Class "G" license. § 493.6115(2), Fla. Stat. An applicant for a Class "G" license must satisfy minimum training criteria for firearms established by statute and rule of the Department. The criteria include 28 hours of range and classroom training taught and administered by a Class "K" licensee. § 493.6105(5), Fla. Stat. Additionally, each Class "G" licensee must submit proof annually that he or she has received a minimum of four hours of firearms recertification training, also taught by a Class "K" licensee during each year of the license period. § 493.6113(3)(b), Fla. Stat. Captain Beermunder has been a licensed Class "K" firearms instructor since 2009. A Brief History of the Manual, the Certificate, and Rules Over the years, the Division has prepared various versions of a Firearms Instructor's Training Manual for Class "K" instructors to use when teaching Class "G" students. The Division has also prepared various versions of a Certificate of Firearms Proficiency for Statewide Firearm License for use by Class "K" instructors to certify a Class "G" student's completion of training. In 1996, the Division, housed, at the time, at the Secretary of State, incorporated the existing versions of the manual and the certificate in Florida Administrative Code Rule 1C-3.1000(6), now rule 5N-1.100. Over the following years, the Division prepared and relied upon various updated versions of the manual and the certificate, including the 2008 version of the Manual and the 2011 Certificate. It did not adopt these versions by reference in a rule. In the euphemistic words of Mr. Wilkinson, the assistant director of the Division, who took that position in 20113/: "Well, I have to acknowledge that my predecessors were not observant in their duties to update manuals and go through the proper rulemaking process." In 2014, after Captain Beermunder began his challenges to use of the 2008 Manual and the 2011 Certificate, the Department amended rule 5N-1.134. The amendment incorporated revised versions of the manual and the certificate as permitted by section 120.54(1)(h). The rule, as amended, became effective May 21, 2014. The Division stopped relying on the 2008 Manual on May 21, 2014, upon adoption of the 2014 version. On May 20, 2014, the Division sent all Class "K" instructors an "Important Notice," along with a compact disc (CD) containing an electronic version of the 2014 Firearms Instructor's Training Manual. The notice informed instructors of the changes to the 2008 Manual and that a supply of revised 2011 Certificates would be forwarded in June 2014. On June 25, 2014, the Division issued another "Important Notice" to Class "K" instructors, along with a supply of the newly adopted 2014 Certificates. It sent a second CD because the one sent in May contained typographical errors. The "Important Notice" informed Class "K" instructors that they could continue using the 2011 Certificate until their stock of certificates ran out. If an applicant submitted the 2011 Certificate, the Division would accept it. New Criminal Statute in 2013 and Investigation of Beermunder The Legislature amended section 493.6120, Florida Statutes (2012), in 2013 to make it a third-degree felony to knowingly possess, issue, sell, submit, or offer "a fraudulent training certificate, proficiency form, or other official document that declares an applicant to have successfully completed any course of training required for licensure under this chapter." § 493.6120(5), Fla. Stat.; Ch. 2013-251, § 6, Laws of Fla. The Division began investigating several Class "K" instructors, including Captain Beermunder, for violation of the new statute. The Division turned the investigation of Captain Beermunder over to the Department of Agriculture Law Enforcement unit. Investigator Padgett issued a probable cause statement that led to the State Attorney of Santa Rosa County charging Captain Beermunder with multiple felony violations. During the Department's investigation and determination of probable cause, the Division relied upon the 2008 Manual and the 2011 Certificate, neither of which were ever adopted as rules. Before this rule challenge hearing, Captain Beermunder entered a no contest plea to nine felony counts of issuing fraudulent certificates, reserving the right to appeal the ruling on a motion in limine raising an issue of whether charges relied upon an unpromulgated rule. The Division is acting against Captain Beermunder's license on the basis of his no contest plea. The nine counts of amended information that Captain Beermunder pled no contest to in criminal case no. 13001343CFMXAX charged him, using identical language except for the differing names of the applicants and different dates in 2013, with issuing a Certificate of Proficiency for the Security Officer G-License applicants when he "knew or reasonably should have known that the certificate, form, or document was fraudulent in violation of Sections 493.6120(7) and 493.6105(5), Florida Statutes." Section 493.6105(5) states among other things: In addition to the requirements outlined in subsection (3), an applicant for a Class "G" license must satisfy minimum training criteria for firearms established by rule of the department, which training criteria includes, but is not limited to, 28 hours of range and classroom training taught and administered by a Class "K" licensee; however, no more than 8 hours of such training shall consist of range training. Every one of the charges to which Captain Beermunder pled no contest were based upon issuing certificates of firearms proficiency fraudulently stating that the applicant had completed 28 hours of training. The Legislature established the requirement for 28 hours of training in 1997 when chapter 97-248, section 3, Laws of Florida, amended section 493.6105, Florida Statutes (1996), to raise the hours of training requirement to 28. The requirement has been in effect ever since. It was in effect when Captain Beermunder was first licensed in 2009.
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.
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
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.
The Issue The issue in the case is whether the allegations of the Administrative Complaint are correct, and if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, the Respondent held a Class "MB" Security Agency Manager License, numbered MB95- 00125, and a Class "D" Security Officer License, numbered D07- 09924. At all times material to this case, the Respondent was the manager of a licensed Class "B" Security Agency, identified as "Florida Protection Officer." In December 1996, a potential employee of the Respondent’s agency sought to obtain from the Department a Temporary Class "G" Statewide Firearms License to permit him to carry a firearm during the course of his employment. On or about December 13, 1996, the Respondent filed an "Agency Character Certification" on behalf of the employee’s application for a Temporary Class "G" Statewide Firearms License. The Agency Character Certification requires the employer to certify that the "employee has been determined to be mentally and emotionally stable" and requires the employer to identify the method used to determine the employee’s mental condition. In response to the inquiry, the Respondent indicated that the employee’s mental condition was determined through a "[v]alidated written psychological test or evaluation by a psychologist or psychiatrist." The Respondent indicated that the evaluation had been completed by McKinley’s Florida Security Academy, Inc. Review of the evaluation indicates that the evaluator did not determine that the employee was mentally and emotionally stable. To the contrary, the report indicated that the employee distorted his answers to questions and should be retested. The evaluation also noted that the employee acknowledged having previously committed four crimes and admitted that he had illegally carried a concealed firearm seven times in the preceding 24-month period. The Department relies on Security Agency Managers to provide accurate information on the Agency Character Certification forms. The Department apparently has no other method of validating the mental and emotional condition of licensed individuals. Falsification of an "Agency Character Certification" poses a danger to the public safety and welfare by permitting a person with a potentially unstable mental and emotional condition to be employed as an armed security guard. Prior to submitting the Certification, the Respondent contacted an investigator for the Department to ascertain whether the Department would receive a copy of the evaluation. After being informed that the Department did not normally receive a copy of the evaluation, the Respondent submitted his Certification. The Respondent was aware of the statements contained within the evaluation at the time he submitted the false "Agency Character Certification." The Respondent was aware that his certification was false.
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 "MB" Security Agency Manager License, numbered MB95-00125, and the Class "D" Security Officer License, numbered D07-09924, held by Anthony Thomas Appel. DONE AND ENTERED this 5th day of May, 2000, in Tallahassee, Leon County, Florida. 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 5th day of May, 2000. COPIES FURNISHED: Steve Bensko, Esquire Department of State The Capitol, Mail Station 4 Tallahassee, Florida 32399-0250 R. Michael Robinson, Esquire 701 49th Street North St. Petersburg, Florida 33701 Honorable Katherine Harris Secretary of State The Capitol, Plaza Lever 02 Tallahassee, Florida 32399-0250 Deborah K. Kearney, General Counsel Department of State The Capitol, Lower Level 10 Tallahassee, Florida 32399-0250
