STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DENNIS F. DARNELL, )

)

Petitioner, )

)

vs. ) CASE NO. 79-2010S

)

DEPARTMENT OF STATE, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Ocala, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on January 9, 1980. At the hearing the parties were represented by counsel:

APPEARANCES

For Petitioner: Daniel L. Hightower, Esquire

116 South East Fort King Street Ocala, Florida 32670

For Respondent: William J. Gladwin, Jr., Esquire

Room 1801, The Capitol Tallahassee, Florida 32301

On March 16, 1979, respondent received petitioner's application for a private investigative agency license. By letter dated September 14, 1979, respondent tentatively disapproved petitioner's application, citing Section 493.04(1), Florida Statutes (1979), which requires that an applicant "shall have had at least 3 years' experience performing the type of service permitted under the license. . .or the equivalent." In the letter of disapproval, respondent took the position that "the experience referred to in [petitioner's] application was gained while conducting a business without the benefit of a proper license." At the hearing, counsel for respondent argued that such unlicensed experience should not be counted for purposes of the three year requirement laid down by Section 493.04, Florida Statutes (1979). Respondent's counsel abandoned all other grounds for denial, at the hearing, and conceded that petitioner's experience was such that the three year requirement would have been met, but for its allegedly unlawful character on account of petitioner's not having had a license when he obtained it.

FINDINGS OF FACT

1. Since 1972, petitioner Dennis F. Darnell has been in the tow truck business. He owns and operates one such truck. In addition to towing disabled cars to garages, petitioner has had five years' experience in locating and repossessing all types of vehicles. Typically, a financial institution would engage him to retrieve an automobile from a borrower in default, after

   telephoning the borrower that a tow truck was coming. In such cases, the lender furnished petitioner a "route sheet" with the name and address of the borrower and a description of the car. At one time or another, petitioner has worked in this way for every bank in Marion County.

   
   

2. Petitioner has also been hired by private investigators to tow away vehicles the investigators had already tracked down. Occasionally, petitioner himself has used information obtained from utility companies, the courthouse and the post office to locate vehicles for repossession.

   
   

3. In the winter of 1979, Mr. Reister, an employee of the respondent, told petitioner that petitioner needed a license in order to continue to do the work he had been doing for the banks. This was the first petitioner had heard of any such requirement. He agreed to stop working for the banks until he obtained a license and asked Mr. Reister to send him application forms. One week after he received the forms, petitioner submitted the completed forms to respondent.

   From the time he spoke to Mr. Reister until the time of the hearing, petitioner did not tow any repossessed cars for banks.

   
   

4. On receiving respondent's letter of disapproval, petitioner retained counsel who requested a formal administrative hearing. Respondent referred petitioner's counsel's request for an administrative hearing to the Division of Administrative Hearings.

   
   

   CONCLUSIONS OF LAW

   
   

5. Florida Law requires that each applicant for a private investigative agency license "shall have had at least 3 years' experience performing the type of service permitted under the license applied for or the equivalent in related fields Section 493.04(1), Florida Statutes (1979). The same subsection specifies, with respect to this experience: "One year of such experience shall be within this state." Section 493.04(1), Florida Statutes (1979). The statute reflects no legislative intent to exclude experience an applicant has obtained in Florida before licensure from consideration as part of the prerequisite three years experience. Indeed, the statute contemplates experience in Florida before licensure. The sole ground urged at the hearing for disapproving petitioner's application has no basis in law.

   
   

6. Incidentally, unless respondent made requests of petitioner for additional information (which were not reflected in the record), the lapse of 90 days after respondent received petitioner's application without action by respondent requires the issuance to petitioner of the license for which he applied, pursuant to Section 120.60(2), Florida Statutes (1979).

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That respondent grant petitioner's application for private investigative agency license,

DONE and ENTERED this 4th day of February, 1980, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1980.

COPIES FURNISHED:

Daniel L. Hightower, Esquire

116 South East Fort King Street Ocala, Florida 32670

William J. Gladwin, Jr., Esquire Department of State

Room 1801, The Capitol Tallahassee, Florida 32301

Docket for Case No: 79-002010

Orders for Case No: 79-002010