07-005753 Department Of Agriculture And Consumer Services, Division Of Licensing vs. Nova Security Agency, Inc., Joseph M. Conover, President Status: Closed Recommended Order on Thursday, March 20, 2008.

Summary: Security guard was wearing weapon while engaged in supervisory duties and violated the statute because his weapon was not required for such duties, and he was not near guards being supervised. Reprimand and $100 fine based upon mitigating circumstances.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE AND )

CONSUMER SERVICES, DIVISION OF )

LICENSING, )

)

Petitioner, )

)

vs. ) Case No. 07-5753

)

NOVA SECURITY AGENCY, INC., )

JOSEPH M. CONOVER, PRESIDENT, )

)

Respondent. )

)

RECOMMENDED ORDER

A duly-noticed final hearing was held in this case by

Administrative Law Judge T. Kent Wetherell, II, on February 26,

2008, by video teleconference between sites in Orlando and

Tallahassee, Florida.

APPEARANCES

For Petitioner: Suzanne V. Estrella, Esquire

Division of Licensing

Department of Agriculture and

Consumer Services

2520 North Monroe Street

Tallahassee, Florida 32301

For Respondents: John Urban, Esquire

Urban & Their, P.A.

200 South Orange Avenue, Suite 2025

Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue is whether Respondent Joseph M. Conover committed

the acts alleged in the Administrative Complaint, and, if so,

what discipline should be imposed.

PRELIMINARY STATEMENT

In separate Administrative Complaints dated July 20, 2007,

the Department of Agriculture and Consumer Services (Department)

alleged that Respondents violated various provisions of

Chapter 493, Florida Statutes. 1/ Respondents disputed the

allegations in the Administrative Complaints and timely

requested a hearing.

On December 18, 2007, the Department referred this matter

to the Division of Administrative Hearings (DOAH) for the

assignment of an Administrative Law Judge to conduct the hearing

requested by Respondents. DOAH received the referral on

December 20, 2007.

The parties entered into a stipulation prior to the final

hearing that resolved Administrative Complaint No. CD2006-1317

against Respondent Nova Security Agency, Inc. (Nova). The case

proceeded to hearing only on Administrative Complaint

No. CD2006-1316, which alleges that on two occasions in 2006,

Respondent Joseph M. Conover "carried a firearm that was not

required by [his] duties, which is prohibited by Section

493.6115(3), Florida Statutes."

At the final hearing, the Department presented the

testimony of Mr. Conover, Robert Baird, and Richard Jacobsen;

and Respondents presented the testimony of Mr. Conover, who was

accepted as an expert in the private security industry. The

Department's Exhibits P1 and P2 were received into evidence, as

were Respondents' Exhibits R1 through R3.

No transcript of the final hearing was filed with DOAH.

The parties were given ten days from the date of the hearing to

file proposed recommended orders (PROs). The PROs were timely

filed and have been given due consideration.

FINDINGS OF FACT

1. Mr. Conover is a licensed security officer. He holds

Class D, DI, G, and MB licenses from the Department. His

license numbers are D9817475, DI2000134, G2003451, and

MB9900202.

2. Mr. Conover's Class G license allows him to carry a

firearm, subject to the provisions of Section 493.6115, Florida

Statutes.

3. Mr. Conover has been licensed by the Department since

1998, and he has been an armed security officer since 2000 or

2001.

4. Mr. Conover is the president and chief operating

officer of Nova, which has its principle office in Brevard

County.

5. Mr. Conover resides in Brevard County. Nova's

principle office is located within his home.

6. Mr. Conover has managerial and supervisory duties in

his position as president and chief operating officer of Nova.

The duties include scheduling armed security guards for clients,

ensuring the guards' compliance with applicable regulations,

soliciting new clients, and maintaining contact with clients and

the guards that are on duty.

7. At the time of the events giving rise to the

Administrative Complaints, Nova provided armed security guard

services for ten apartment complexes and residential communities

in Orlando. Nova did not provide security services for any

location in Brevard County.

8. On April 29, 2006, while in route to an armed security

post in Orlando, Mr. Conover stopped to render aid at a motor

vehicle accident in Brevard County. He rendered emergency

medical care 2/ to one of the individuals involved in the

accident, and he also directed traffic at the scene. He was

wearing his security guard uniform and carrying his firearm in

plain view at the time.

9. On May 1, 2006, while in route to an armed security

post in Orlando, Mr. Conover stopped at a Starbucks in Brevard

County. He got out of his car and went into the store to

purchase a cup of coffee. He was wearing his uniform and

carrying his firearm in plain view at the time.

10. Mr. Conover testified that he was "on duty" at the

time of each incident because he was performing managerial and

supervisory duties while in route to Orlando. He testified that

immediately prior to the accident on April 29, 2006, he was

fielding calls on his two-way radio from the armed security

guards who were on duty in Orlando, and he can be seen talking

on his radio or cell phone on the videotape of the May 1, 2006,

incident. However, there is no credible evidence that

Mr. Conover was providing any managerial or supervisory duties

to the security guards during the time that he was rendering

emergency medical care and directing traffic at the accident

scene.

11. The managerial and supervisory duties that Mr. Conover

was performing at the time of the incidents did not require him

to be armed.

12. First, as Mr. Conover acknowledged, there is a

difference between managerial and supervisory duties and armed

security guard duties. A Class G license is not required in

order to perform managerial and supervisory duties for armed

security guards, particularly where such duties are being

performed off-site.

13. Second, Mr. Conover was nowhere near the sites that

Nova was providing armed security services at the time of the

incidents. He was approximately 40 miles, and at least 25 to 30

minutes, away from the sites.

14. Criminal charges were brought against Mr. Conover for

impersonating a police officer and carrying a weapon in plain

view based upon his activities at the accident scene on

April 29, 2006. The charges were nol prossed by the State.

15. The Department began its investigation of Mr. Conover

in May 2006 based upon information received from the Indialantic

Police Department in Brevard County concerning the incidents

described above.

16. In July 2006, Mr. Conover's attorney sent a letter to

the Department requesting the Department's "official

interpretation of Florida Statutes § 493.6115 regarding carrying

of weapons and firearms." The letter included the following

summary of a conversation between Mr. Conover's attorney and Art

Varnadore, who the letter represented to be the Chief of

Regulation and Enforcement for the Department:

[A]ccording to Florida Statutes Chapter 493,

a security officer can only carry a firearm

while on duty at an armed post. A security

agency manager can only carry a firearm

while on duty at an armed post. A security

agency manager or security officer traveling

between armed posts may keep his firearm on

him in the car. However, he cannot leave

the vehicle with a firearm unless at an

armed post.

17. The Department did not respond to this letter or a

follow-up letter sent by Mr. Conover's attorney in August 2006.

18. The letters were sent after the Department began its

investigation into the incidents giving rise to the

Administrative Complaint. There is no evidence that Mr. Conover

ever sought guidance from the Department prior to the incidents.

19. Mr. Conover has been complying with the procedures

quoted above since July 2006.

20. The Department publishes a "Security Officer

Handbook," as required by Section 493.6123(2), Florida Statutes,

in order to provide guidance to licensees regarding "the legal

authority, rights, and obligations of his or her specific

license." A copy of the handbook is supposed to be provided to

each licensee.

21. The handbook includes the following provisions

pertinent to this case:

e. Class "D" Security Officers who also

possess a Class "G" license may carry a

firearm only when the duty assignment

requires armed security and only while on

the post of duty.

Section 493.6115(3), F.S.

Example : A Class "D" Security Officer who

also has a Class "G" license and is normally

assigned to an armed post is assigned,

temporarily, to an unarmed post. He may not

carry his firearm on the temporary

assignment.

Example : The same security officer, while

serving on his usual armed post, may not

wear his firearm when he leaves his assigned

post for other than duty purposes, such as

for lunch, or when traveling to or from

home. During such non-duty periods, the

firearm must be removed and secured.

* * *

g. While the licensee is on duty, his

firearm must be carried in a holster and in

plain view. It may only be carried

concealed under those conditions addressed

in VIII.c.

Section 493.6115(3), F.S. [3/]

22. The handbook does not include a specific example

addressing the conduct of licensees responsible for managing and

supervising armed security guards. The examples in the handbook

focus on licensees with assigned "posts of duties."

23. Mr. Conover did not rely on any of the guidance in the

handbook; he testified that he did not recall ever receiving a

copy of the handbook.

24. Mr. Conover has no disciplinary history with the

Department.

25. There is no credible evidence that the Department

investigated or prosecuted this case for an "improper purpose,"

as alleged by Respondents.

CONCLUSIONS OF LAW

26. DOAH has jurisdiction over the parties to and subject

matter of this proceeding pursuant to Sections 120.569 and

120.57(1), Florida Statutes.

27. The Department is the state agency responsible for

licensing and regulating security officers under Chapter 493,

Florida Statutes.

28. The Department has the burden to prove the allegations

in the Administrative Complaint by clear and convincing

evidence. See Dept. of Banking & Finance v. Osborne, Stern &

Co. , 670 So. 2d 932 (Fla. 1996).

29. The clear and convincing evidence standard requires

that the evidence "must be of such weight that it produces in

the mind of the trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the allegations sought to

be established." In re Davey , 645 So. 2d 398, 404 (Fla. 1994).

30. Section 493.6115(3), Florida Statutes, provides:

No employee shall carry or be furnished a

weapon or firearm unless the carrying of a

weapon or firearm is required by her or his

duties, nor shall an employee carry a weapon

or firearm except in connection with those

duties. When carried pursuant to this

subsection, the weapon or firearm shall be

encased in view at all times except as

provided in subsection (4).

31. The Department's interpretation of this statute must

be given "closer scrutiny" because it has the authority to

discipline licensees for violating the statute, but the

Department's interpretation is still entitled to considerable

deference. See Garcia-Cantero v. Dept. of State , 615 So. 2d

804, 805-06 (Fla. 3d DCA 1993).

32. It is undisputed that Mr. Conover was carrying a

firearm in plain view on April 29, 2006, and May 1, 2006, at

locations where he was not under contract to provide armed

security services. The parties disagree, however, whether

Mr. Conover was required by his duties to carry a firearm at

those times and whether carrying the firearm was in connection

with his duties.

33. Mr. Conover argues that he was engaged in managerial

and supervisory duties at the time of the incidents, and, as

such, he was required to carry his firearm. In support of this

argument, Mr. Conover cites Section V.g. of the Security Officer

Handbook, which requires the licensee to carry his firearm while

he is "on duty."

34. The handbook must be read in pari materia with Section

493.6115(3), Florida Statutes, which permits a licensee to carry

a firearm only if doing so (1) is "required by her or his

duties" and (2) is "in connection with those duties."

35. Mr. Conover acknowledged that he did not need to carry

a firearm in performance of his managerial and supervisory

duties, and even if it was determined that he was required to do

so by virtue of the language in Section V.g. of the handbook,

the carrying of the firearm had no connection to the managerial

and supervisory duties. Simply put, there was no need for

Mr. Conover to carry a firearm in Brevard County in order to

manage or supervise armed guards providing security to locations

in the Orlando area.

36. Thus, the Department met its burden to prove that

Mr. Conover violated Section 493.6115(3), Florida Statutes.

37. The Department may discipline a licensee for violating

Section 493.6115(3), Florida Statutes. See § 493.6118(1)(t),

Fla. Stat.

38. The disciplinary action that may be imposed by the

Department includes the issuance of a reprimand, imposition of

an administrative fine of up to $1,000 for each offense,

placement of the licensee on probation, and suspension or

revocation of the license. See § 493.6118(2), Fla. Stat.

39. The penalty range for violations of Section

493.6115(3), Florida Statutes, set forth in the disciplinary

guidelines adopted by the Department is "[f]rom an

administrative fine of $250 - $450 or probation to suspension or

denial of license." See Fla. Admin. Code R. 5N-1.113(2)(c).

40. The Department is authorized to deviate from the

penalty range based upon aggravating and mitigating

circumstances presented to the finder of fact. See Fla. Admin.

Code R. 5N-1.113(5).

41. The Department represented at the final hearing that

it is seeking a $1,000 fine ($500 for each incident) and one

year of "reporting probation" in this case.

42. The record does not support that level of discipline.

First, the requested fine exceeds the penalty range of $250 to

$450 per offense in the disciplinary guidelines. Second, the

guidelines call for the imposition of a fine or probation to

suspension, not imposition of a fine and probation. Third,

there are no aggravating circumstances present that warrant an

upward departure from the penalty range. Fourth, as discussed

below, there are mitigating circumstances that warrant a

downward departure from the penalty range.

43. A $100 fine and a reprimand is a more reasonable and

appropriate discipline under the circumstances of this case.

First, Mr. Conover has been licensed by the Department for ten

years and has had no prior disciplinary actions against his

licenses. Second, his conduct was based upon a good faith,

albeit erroneous understanding of his responsibilities under

Section 493.6115(3), Florida Statutes. Third, it has been

almost two years since the incidents, and Mr. Conover has

conformed his behavior to the guidance that his attorney

received from the Department in July 2006. Fourth, the handbook

prepared by the Department to provide guidance to licensees does

not squarely address the responsibilities of managers and

supervisors under Section 493.6115(3), Florida Statutes.

44. Respondents are not entitled to an award of prevailing

party attorney's fees under Section 120.595, Florida Statutes. 4/

Mr. Conover cannot be considered the prevailing party even

though the recommended discipline is lower than that sought by

the Department because it was determined that he violated

Section 493.6115(3), Florida Statutes. Nova cannot be

considered a prevailing party because it entered into a

stipulated settlement with the Department prior to the final

hearing. Moreover, even if Mr. Conover and/or Nova were somehow

considered prevailing parties, the evidence fails to establish

that the Department initiated or prosecuted this case for an

"improper purpose," as defined by Section 120.595(1)(e)1.,

Florida Statutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Department issue a final order that:

1. Finds Mr. Conover guilty of carrying a firearm in

violation of Section 493.6115(3), Florida Statutes, on April 29,

2006, and on May 1, 2006, as charged in Administrative Complaint

No. CD2006-1316;

2. Imposes an administrative fine of $100 on Mr. Conover;

and

3. Issues a formal reprimand to Mr. Conover.

DONE AND ENTERED this 20th day of March, 2008, in

Tallahassee, Leon County, Florida.

S

T. KENT WETHERELL, II

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of March, 2008.

ENDNOTES

1/ All references to provisions in Chapter 493, Florida

Statutes, are to the 2005 version in effect at the time of the

events giving rise to the Administrative Complaints. All other

statutory references are to the 2007 version of the Florida

Statutes.

2/ Mr. Conover is a licensed emergency medical technician.

3/ Security Officer Handbook, Section V (included in

Exhibit P1).

4/ Respondents made an ore tenus motion for attorney's fees at

the final hearing. The statutory basis for the request

identified in Respondents' PRO is Section 120.595, Florida

Statutes. That statute provides for an award of attorney's fees

and costs to the prevailing party only if it is determined that

the non-prevailing adverse party participated in the proceeding

for an "improper purpose." See § 120.595(1), Fla. Stat.

COPIES FURNISHED :

John Urban, Esquire

Urban & Their, P.A.

200 South Orange Avenue, Suite 2025

Orlando, Florida 32801

Suzanne V. Estrella, Esquire

Division of Licensing

Department of Agriculture and

Consumer Services

2520 North Monroe Street

Tallahassee, Florida 32301

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.