00-005131PL Department Of State, Division Of Licensing vs. William Shane Scott Status: Closed Recommended Order on Thursday, May 24, 2001.

Summary: Evidence shows owner of security agency carried unauthorized weapons, allowed employees to do so, and interfered with department investigation. Owner`s son, also licensed, also carried unlawful weapon. Owner`s license revoked; son`s license on probation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, DIVISION )

OF LICENSING , )

)

Petitioner , )

)

vs. ) Case No. 00-4749

)

UNLIMITED CRIME PREVENTION, INC. , )

and WILLIAM LARUE SCOTT, )

PRESIDENT/MANAGER , )

)

Respondents. )

___________________________________)

DEPARTMENT OF STATE, DIVISION )

OF LICENSING , )

)

Petitioner , )

)

vs. ) Case No. 00- 5131PL

)

WILLIAM SHANE SCOTT , )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

A hearing was held in this case in Tampa, Florida, on

March 22, 2001, before Arnold H. Pollock, an Administrative

Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner : Steve Bensko, Esquire

Department of State

The Capitol, Mail Stat ion 4

Tallahassee, Florida 32399-0250

For Respondent : Louis Kwall, Esquire

Kwall , Showers & Coleman, P.A.

133 North Fort Harrison Avenue

Clearwater, Florida 33755

STATEMENT OF 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.

PRELIMINARY MATTERS

By Administra tive Complaint dated September 15, 2000,

John M. Russell, Director of the Department of State's

Division of Licensing (Division) alleged that Unlimited Crime

Prevention, Inc. ( UCP ) and William Larue Scott, its President/

Manager, holders of a security agency and of a security

officer, an organizational officer position, and a statewide

firearms license, respectively, had violated various

provisions of Subsection 493.6118(1), Florida Statutes, by

carrying and allowing other employees to carry semi-automatic

weapons, by impersonating a law enforcement officer, by

failing to properly supervise those employees allowed to carry

semi-automatic weapons, by failing to truthfully respond to

questions asked by a state investigator in the conduct of his

duties, by making a false written report to the Division with

intent to mislead and committing fraud thereby, and by

refusing to cooperate with an investigator of the Division in

the conduct of his duties.

In a separate Administrative Complaint dated

August 29, 2000, Mr. Russi charged Respondent William Shane

Scott with carrying an unauthorized semi-automatic weapon in

the performance of regulated duties, in violation of

Subsection 493.118(1) Florida Statutes. All Respondents

requested a formal hearing, and this hearing ensued.

At the hearing, Petitioner presented the testimony of

Garry Floyd, an investigator with the Division; Robert Shank,

a bail bondsman and former employer of UCP ; Boin Gerard Upton ,

a security officer employed by Excelsior Defense, a security

company; Joshua T. Wilson and James Phelps, former employees

of UCP ; and Jason Routzahn , a police officer employed by

Indian Shores, Florida. Petitioner also introduced

Petitioner's Exhibits 1 through 9. Respondent called

Mr. Floyd as a witness but did not introduce any documentary

evidence.

A Transcript of the proceedings was furnished on April 2,

2001. Subsequent to the receipt thereof, counsel for

Respondents filed an agreed-upon motion for an extension of

time to file their Proposed Recommended Orders due to

counsel's ill health. A 30-day extension was granted and

subsequent to the expiration thereof, counsel for Petitioner

submitted matters in writing which were carefully considered

in the preparation of this Recommended Order.

FINDINGS OF FACT

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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."

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

CONCLUSIONS OF LAW

19. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. Subsection 120.57(1), Florida Statutes.

20. Section 493.6118, Florida Statutes, authorizes the

Division to discipline the license of a license holder for

specified misconduct. Included in those activities which

support discipline, as outlined in Subsection 493.6118(1),

Florida Statutes, are:

(f ) Proof that the . . . licensee is

guilty of fraud or deceit, or of

negligence, incompetency, or misconduct in

the practice of the activities regulated .

. .

( i ) Impersonating, or permitting or

aiding and abetting an employee to

impersonate, a law enforcement officer or

an employee of the state, the United

States, or any political subdivision

thereof by identifying himself

. . . as a . . . law enforcement officer,

. . . by wearing a uniform or presenting

or displaying a badge or credentials that

would cause a reasonable person to believe

that he or she is a law enforcement

officer, or that he or she has official

authority, by displaying any flashing or

warning vehicular lights other than amber

colored, . . .

(k ) Knowingly violating, advising,

encouraging, or assisting the violation of

any statute, court order, capias, warrant,

injunction, or cease and desist order, in

the course of business regulated under this

chapter.

* * *

(t ) Violating any provision of this

chapter.

21. The burden of proof in this case rests with the

Division to establish by clear and convincing evidence that

Respondents committed the misconduct alleged. Department of

Banking and Finance v. Osborne Stern and Company , 670 So. 2d

932 (Fla. 1996).

22. In the instant case, the Division alleged that

Respondent William L. Scott wrongfully carried and permitted

his employees to carry unauthorized semi-automatic weapons

while performing security guard duties; failed to respond

truthfully to questions asked by a state investigator in the

course of an investigation into Respondent's activities; made

a false report to the Division with the intent to mislead; and

refused to cooperate with an investigator of the Division in

the course of his duties by directing his employees to refuse

to answer questions posed by the investigator. Respondent

William S. Scott is charged with carrying an unauthorized

semi-automatic weapon in the performance of his regulated

duties. The allegations against both Respondents, if proven,

would constitute violations of Subsection 493.6118(1), Florida

Statutes.

23. T he evidence of record is clear and convincing that

both Scotts, repeatedly carried unauthorized semi-automatic

weapons while engaged in the performance of regulated security

guard duties and that William L. Scott knew that at least one

of his employees, Mr. Shank, did so as well. Carrying an

unauthorized weapon in the performance of security duties

constitutes a violation of Section 493.6118, Florida Statutes.

The personal misconduct of William L. Scott, as President and

Manager of UCP, is attributable to the corporate licensee as

well.

24. The evidence of record also clearly and convincingly

establishes that William L. Scott used green and red lights on

his UCP vehicle. This action is improper and prohibited by

Sections 316.2397 and 316.2398, Florida Statutes. As such it

is a violation of Subsections 493.6118(f), ( i), and (k),

Florida Statutes.

25. Subsection 493.6121(2), Florida Statutes, provides

in part:

(2 ) In any investigation by the

department, each licensed or unlicensed

person, applicant, agency, or employee

shall, upon request of the department

provide records and shall truthfully

respond to questions concerning activities

regulated under this chapter. Such records

shall be maintained in this state for a

period of 2 years at the principal place of

business of the licensee, . . . Upon

request by the department the records must

be made available immediately to the

department unless the department determines

that an extension may be granted.

26. The evidence of record is clear that not on ly did

William L. Scott refuse to answer the legitimate questions

posed to him by Mr. Floyd, he also directed his employees to

refuse to answer as well. Though the instructions given to

the employees superficially appear legitimate, it is clear

from the other evidence of record, including the graphic

comments regarding the Department's inquiry made by the elder

Mr. Scott, that they were no more than a screen to cover this

attempt to conceal his activities from legitimate

investigation. It is also clear from the evidence of record

that when he did agree to speak with Mr. Floyd, William L.

Scott misrepresented the comments of his employees which

confirmed his misconduct. Mr. Scott's actions fell within the

parameters of Subsection 493.6121(2), Florida Statutes, and

constitute grounds for discipline as a violation of Subsection

493.6118(t), Florida Statutes, which authorizes discipline for

a violation of any provision of Chapter 493.

27. When the Department finds any violation has been

committed by a licensee, pursuant to the provisions of

Subsection 493.6118(2), Florida Statutes, it may take one or

more of the following actions:

(a ) Deny an application for the issuance

or renewal of a license.

(b ) Issue a reprimand.

(c ) Impose an administrative fine not to

exceed $1,000 for every count or separate

offense.

(d ) Place the licensee on probation for

a period of time and subject to such

conditions as the department may specify.

(e ) Suspend or revoke a license.

29. The Department's guidelines fo r the imposition of

discipline of licensed personnel shown to have committed

actionable violations of the law are contained in

Rule 1C-3.113(1), Florida Administrative Code. For each

incident of allowing an employee to carry an unauthorized

firearm, as alleged in Counts I, II, and III of the

Administrative Complaint, the Department may impose a penalty

which ranges from an administrative fine of from $300 to $700

and place the licensee on probation.

30. For the offense of impersonating a law enforceme nt

officer as alleged in Count IV of the Administrative

complaint, William L. Scott is subject to a penalty ranging

from an administrative fine of $500 to $1,000 to suspension or

revocation of his license. For the offense of carrying an

unauthorized firearm, both William L. Scott and William S.

Scott each are subject to a penalty ranging from an

administrative fine of from $150 to $300 to revocation or

suspension of their licenses.

31. For the offense of failing to properly supervise

armed employees, Mr. Shank and William S. Scott, Respondent

William L. Scott is subject to a penalty ranging from an

administrative fine of from $250 to $750 to probation or a

suspension of his license for one month. The Departmental

disciplinary guidelines are silent regarding a licensee's

failure to respond truthfully to legitimate questions posed by

a Department investigator engaged in the conduct of an

official investigation, regarding a willful making of a false

written report, and regarding the licensee's instructions to

his employees to refuse to cooperate with Department

investigators.

32. There are, however, sufficient proven incidents of

misconduct by each of Respondents to allow the tailoring of a

penalty appropriate to the circumstances of this case. The

Department suggests that all licenses held by William L. Scott

be revoked and that he be administratively fined in the amount

of $1,000. This recommendation is made based upon the

Department's determination that William L. Scott presents a

danger to the public in his capacity as a security agency

owner and a security officer, as well as a holder of a firearm

license. This determination appears to have been made based

on his attitude toward the Department's investigation and

toward the investigator as well. The Department suggests that

Mr. Scott has demonstrated an attitude of contempt toward

authority and appeared willing to attempt to subvert the

investigatory process, both of which demonstrate a lack of

integrity which is inconsistent with the performance of

security duties. Based on the evidence presented at hearing,

this determination appears well founded. While it is obvious

Mr. Scott should not be engaged in the security profession at

this time, imposition of an administrative fine would serve no

rehabilitory purpose.

33. As for William S. Scott, the Department suggests as

an appropriate penalty the suspension of his firearms license

for one year. Implementation of this penalty would not

prevent him from performing the duties of an unarmed security

officer and appears appropriate, but absent a showing of any

prior discipline, imposition of probation rather than

suspension would appear appropriate.

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 [phone]

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any

exceptions to this Recommended Order should be filed with the

agency that will issue the Final Order in this case.