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 the Department of State, Division of Licensing, should revoke Respondent's license to carry concealed weapons or firearms for the reason set forth in the Administrative Complaint, to wit: that "Respondent is ineligible for licensure pursuant to Sections 790.06(2)(d) and 790.23, Florida Statutes."
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Respondent currently holds a concealed weapons or firearms license (license number W96-09874, effective June 14, 1996). On September 21, 1981, in the Superior Court of Cochise County, Arizona, Respondent was adjudicated guilty (based upon a guilty plea that he had previously entered) of two counts of forgery, a class 4 felony under the laws of the State of Arizona, and placed on probation for a period of three years under the supervision of the Cochise County Adult Probation Department. He had no prior criminal record at the time of his convictions. As a condition of his probation, Respondent was required to "pay restitution through the Adult Probation Department in the amount of $1,617.19, less the $350.00 payment he ha[d] already made, such amount payable in monthly installments of $100.00, beginning with the month of October 1981." On September 11, 1984, Respondent's probation was "extended for three (3) years to provide additional time for full payment of restitution." Respondent made such "full payment of restitution" on or about September 8, 1987. By court order issued September 24, 1987, Respondent was "discharged absolutely" from his probation. The order contained the following advisement: The defendant is advised that rights may be restored as provided in the following statutes: 13-912 Restoration of civil rights; automatic for first offenders. 2/ 13-905 Restoration of civil rights; persons completing probation 13-907 Setting aside judgment of convicted person upon discharge; making of application; release from disabilities; exceptions. 13-908 Restoration of civil rights in the discretion of the Superior Court Judge. Because he was a "first offender," Respondent was under the impression that, following his discharge from probation, he enjoyed the same rights that he had enjoyed prior to his convictions.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order revoking Respondent's concealed weapons or firearms license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of February, 1997. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1997.
Findings Of Fact The Respondent filed a license application with the Division of Licensing, Department of State for a Class "D" Unarmed Guard License on January 27, 1983. The Division of Licensing did not approve or deny the license application of Carlos Hernan Garcia within the 90-day period from the date of receipt of the application and, accordingly, by operation of Section 120.60(2), Florida Statutes, the Division issued to Respondent a Class "D" Unarmed Security Guard License which expires on May 14, 1983. But for the operation of the 90-day rule, the Division of Licensing would not have issued the Respondent an Unarmed Security Guard License. On July 17, 1983 the Division of Licensing issued an administrative complaint to revoke the license on grounds that the Respondent willfully misrepresented his criminal record in his application in violation of Section 495.319(1)(a), Florida Statutes, committed an assault and battery other than in self defense and committed criminal acts which directly relate to the business for which the license was sought in violation of Sections 493.319(1)(c) and (j), Florida Statutes. On May 19, 1979, the Respondent (while intoxicated) struck a police officer who was investigating a traffic accident in which the Respondent was involved. The Respondent was convicted of assault and battery upon a police officer and received six months probation and adjudication was withheld. On August 5, 1980, the Respondent was responsible for a fire which occurred in the bathroom of a restaurant during business hours for which he was convicted of criminal mischief. On or about October 29, 1982, the Respondent was carrying a concealed firearm, a 25-caliber pistol, without a license or permit required by Sections 790.05 and 790.06, Florida Statutes (1981). Following an argument which took place outside an apartment house, the Respondent shot and injured another person with the pistol. No criminal charges were brought and there was no prosecution as a result of this incident. The Respondent, who reads and writes English, failed to complete question number 13 on his security guard application, pertaining to past criminal arrests and convictions, by omitting any reference to the assault and battery and criminal mischief convictions, since the Respondent knew that he could be denied a license for having committed such crimes, and knowing that the omission, if discovered, would be grounds for denial of his license.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered revoking the Class "D" license of the Respondent Carlos Hernan Garcia. DONE and ENTERED this 15th day of March, 1984, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 904/480-9675 Filed with the Clerk of the Division of Administrative Hearings this 15 day of March, 1984. COPIES FURNISHED: James V. Antista, Esquire Department of State The Capitol Tallahassee, Florida 32301 Carlos Hernan Garcia 9380 West Flagler Street, #120 Miami, Florida 33130 George Firestone Secretary of State The Capitol Tallahassee, Florida 32301 Mary Gast, Director Division of Licensing The Capitol Tallahassee, Florida 32301
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.
The Issue The issues are whether Tunstall has ever been convicted of a felony, whether Tunstall has ever been convicted of a crime involving moral turpitude, and whether Tunstall falsified his application.
Findings Of Fact Leonard P. Tunstall made application for licensure as an unarmed and armed security guard to the Department of State. His application was received by the Department in February of 1981. The application indicates it was signed by Tunstall on October 29, 1980. Question #13 on the application was answered "no," as indicated by a check mark. When he originally received the application, Tunstall filled it out up to Question #13. He had not completed that question because he lacked all the data. Subsequently, Albert Simmons, his supervisor, stopped by Tunstall's residence and picked up the application, which Simmons completed with assistance from Tunstall's girlfriend. Neither Simmons nor Tunstall's girl friend had knowledge of Tunstall's record. Subsequently, Tunstall advised Simmons about his arrests, and Simmons told him that his arrests would not disqualify him. Tunstall signed the application with the understanding that his arrests would be disclosed. However, Simmons was subsequently fired, and Tunstall's application was found by Simmons' successor who submitted it with the arrests undisclosed. Tunstall's application, Respondent's Exhibit 1, indicates that answers to Questions #1 through #12 were hand-written, Question #13 was answered by placing a check mark in the "no" block, and answers to Questions #14 through #17 were type-written. Simmons was the notary who authenticated Tunstall's signature. Tunstall further testified that he began work for Florida Merchant Police in June of 1979, as a uniformed rail crossing guard. In approximately January of 1980, he was assigned to work at an unarmed security guard post. It was after this that he was given an application for licensure by the company. Tunstall's FBI records reveal the following arrests and convictions: 1939 - Disorderly conduct, NJ (Fined) 1940 - Disorderly conduct, NJ (Fined) 1947 - Burglary and attempted larceny, NJ (Felony conviction, sentenced to 1 to 2 years - served 8 months) 1958 - Assault and battery, NJ (Fined) 1958 - Disorderly conduct, NJ (Fined) 1960 - Burglary, NJ (Felony conviction, sentenced to 2 to 3 years) 1975 - Keeping a house of ill fame, FL (Dismissed) Tunstall testified that his civil rights had been restored in New Jersey, but he could not introduce any documentation to support his testimony.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and considering the factors in mitigation, the Hearing Officer recommends that Leonard Tunstall's application for licensure as an armed guard be denied, and recommends that Tunstall's application for licensure as an unarmed guard be granted. DONE and ORDERED this 24th day of July, 1981, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the clerk of the Division of Administrative Hearings this 24th day of July, 1981. COPIES FURNISHED: Mr. Leonard P. Tunstall Suite 996 12555 Biscayne Boulevard North Miami, Florida 33181 George Firestone, Secretary Department of State The Capitol Tallahassee, Florida 32301 James V. Antista, Esquire Assistant General Counsel Department of State The Capitol Tallahassee, Florida 32301
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 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
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 or not Petitioner's application for a Class "D" security officer's license should be approved.
Findings Of Fact On November 8, 1990, the Respondent, Department of State, Division of Licensing, received Petitioner, Marco A. Sanchez' application for a Class "D" security officer's license. The application was signed by Petitioner on October 24, 1990. In Section five of Petitioner's application, Petitioner indicated he had never been convicted of a crime regardless of whether adjudication was withheld or imposition of sentence was suspended. By amended denial letter dated June 11, 1991, Respondent advised Petitioner that his application for licensure would be denied for alleged violation of Section 493.6118(1)(a), to wit, fraud or willful misrepresentation in applying for a license; and Section 493.6118(3), lack of good moral character. On March 1, 1990, in Hillsborough County Circuit Court, Case No. 89- 20164, Petitioner pled guilty and had adjudication of guilt withheld on the charge of petit theft. The initial charge was strong arm robbery but was reduced at trial. Petitioner was placed on probation for a period of six months, however, he successfully performed his community service within two (2) weeks of sentencing and the probationary period was suspended following his completion of the community service.. The guilty plea resulted from an incident in which Petitioner attempted to steal a dress shirt from a local department store. Petitioner became angry when he was unsuccessful in his effort to exchange a shirt that he received as a gift. Petitioner was ultimately able to have the shirt exchanged at a different department store of the same chain. Following the exchange, Petitioner attempted to steal another shirt. Petitioner was observed by the store's security officers who followed him and apprehended him as he left the store. Petitioner and the officers engaged in a scuffle when they detained him. Based on Petitioner's confrontation with the store clerk at the first store, he was motivated to attempt to take the shirt from the second store. On December 9, 1989, Petitioner was originally charged with strong arm robbery on the basis that one of the security officers was injured on the lip. At hearing, Petitioner credibly testified that the security officer in question was not involved in his apprehension in December 1989. Petitioner is remorseful for attempting to steal the shirt from the department store in December 1989. During November 1988, in Miami, Florida, Petitioner was arrested and charged with the possession of cocaine and marijuana. The charges were nolle prossed. Petitioner credibly testified that the drugs in question belonged to a female companion in his car at the time of his arrest and he was unaware that she had any contraband on her person. Petitioner completed his application for a Class "D" security officer and was aware of his requirement to truthfully respond to the inquiry in Section Five of the application. Petitioner failed to credibly explain his omission of the March 1, 1990 disposition of the charges filed against him in Hillsborough County Circuit Court, Case No. 89-20164.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Respondent enter a Final Order denying Petitioner's application for licensure as a Class "D" security officer. DONE and ENTERED this 29th day of August, 1991, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 29th day of August, 1991.
