vs. ) CASE NO. 82-280S
Respondent. )
Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. This hearing was conducted in the City Council Chambers, City Hall, 2200 Second Street, Fort Myers, Florida, on April 28, 1982.
John Eric Elbon, 1604 Passaic Avenue, Fort Myers, Florida 33901, Petitioner. James V. Antista, Esquire, Assistant General Counsel, Department of State, Division of Licensing, Room 106, R. A. Gray Building, Tallahassee, Florida 32301, for Respondent.
The issues presented here concern the matter of the Petitioner's entitlement to be licensed as a Detection of Deception Examiner, Class "P". See Part II, Chapter 493, Florida Statutes (1981).
Petitioner had been licensed beginning in August, 1978, through June 30, 1980, in the categories of Detection of Deception-Intern and Detection of Deception Examiner, Class "P". The most recent license applied to the position, Detection of Deception Examiner, Class "P", which was for the years 1979-80 with an expiration date of June 30, 1980. Elbon failed to renew that license within the grace period set forth in Sections 493.313 and 574, Florida Statutes (1981). He was subsequently informed by correspondence dated January 15, 1981, that his license had expired on December 30, 1980, and was advised that any renewal of his license must be achieved through the requirement of the submittal of a new application, a $150 fee and certificate of insurance. This task was to be performed on or before February 16, 1981. Elbon was told that his failure to so comply on or before the date in question would promote the closing of his license file and the necessity for mandatory reapplication to reobtain a license. This information was provided by the' Bureau Chief of the Regulation and Enforcement Division of Respondent. (Respondent's Exhibit No. 1, admitted into evidence, is a compilation of materials related to the facts found in this paragraph.)
Notwithstanding the fact that his license had expired on December 30, 1980, discussion was entered into with one Peter Towle, the owner of a vending machine company in Lee County, Florida, on the subject of Elbon conducting polygraph examinations for the benefit of Towle related to the alleged theft of video equipment by relatives of one of Towle's employees. This video equipment was owned by Towle's company. In the preliminary discussions Elbon held himself out to be a polygraph examiner, a position which required a license pursuant to Chapter 493, Florida Statutes (1981), in the specialty of Detection of Deception Examiner, Class "P", before conducting a polygraph examination. This same requirement for licensure as a Detection of Deception Examiner, Class "P", existed at all times pertinent to this case.
Towle hired the Petitioner on February 13, 1981, to assist him in the investigation; however, Elbon did not conduct a polygraph examination on the suspects in view of the minority of those persons and the necessity to receive parental permission prior to such examination. Instead, Elbon interrogated the two suspects and charged a fee of $600 for his services. Towle felt that the fee was not reasonable and indicated had he known that Elbon was not a licensed examiner that he would not have hired him.
On February 23, 1981, Chris Provenzano hired Elbon to conduct polygraph examinations, thinking Elbon was licensed. At the time that the employment arrangement was made, Provenzano did not suspect that Petitioner was unlicensed, having known that Petitioner was licensed in the past. Provenzano did not learn of the true circumstance related to the Petitioner's license situation until October, 1981. Provenzano would not have hired Elbon to conduct the examinations had he known that Elbon did not have a license.
On February 23, 1981, Petitioner conducted, four polygraph examinations and was unsupervised in the course of these examinations.
Out of the four examinations conducted, there were three complaints from the examinees, which Provenzano found to be an unusual number, even though in those instances in which there is some indication of deception it is not unusual for an examinee to protest. In this instance, there were indications that some of the examinees were deceitful. In addition, one of Provenzano's clients who had requested the conduct of an examinations), asked that Elbon not conduct further examinations for that client. The examinations in question took place in Lee County, Florida.
Patricia Slader, a motel manager for the Song of the Sea Motel, which is located in Lee County, Florida, hired Petitioner to conduct polygraph examinations on two of the motel's employees and one guest. He was hired on the belief that he was in fact a Detection of Deception Examiner and upon the recommendation of third parties. Elbon never indicated that his license had expired. The employment arrangement was made in July, 1981, and the tests were conducted on July 14 and 15, 1981. The charges were found to be satisfactory and the results of the tests were acceptable to the manager. Slader stated that she would not have hired Elbon had she realized that he was unlicensed at the time he conducted the examinations.
In October, 1981, Ken Stephenson, a management official with Shop-N-Go retail stores hired Elbon to conduct polygraph examinations. The examinations were performed by Petitioner in keeping with his, employment agreement and those examinations were performed in Florida in October, 1981. The purpose of the use of those examination results, in terms of the employer's position, was for
background information as opposed to a determining reason for hiring or firing employees. Of the ten or fifteen examinations conducted, there were several complaints by examinees concerning intimidation. This led Stephenson to check with Respondent, at which point it was discovered that Elbon was not licensed and Elbon was dismissed from his duties as examiner for the benefit of Shop-N- Go. Stephenson stated that he would not have hired Elbon to perform the examinations had he known Elbon was unlicensed.
With the exception of Provenzano, all those individuals for whom Elbon had provided services in the periods in question, indicated they would consider hiring Elbon to conduct polygraph examinations for them in the future should he be relicensed.
Respondent officially notified the Petitioner of what it deemed to be violations for practicing as a Detection of Deception Examiner without the benefit of license. The violations related to the arrangements with Towle, Slader and Stephenson. The notices of violations were issued on May 22, 1981; August 12, 1981; and December 3, 1981, respectively, and dealt specifically with the procedures performed by Elbon. Copies of these notices of violations may be found in Respondent's Exhibit No. 2, admitted into evidence.
Respondent also wrote to the Petitioner on the subject of the May 22, 1981, notice of violation. This letter was written June 15, 1981, by Dennis English, Chief of Bureau of Regulation and Enforcement. A copy may be found in Respondent's Exhibit No. 4, admitted into evidence. Through this correspondence, Petitioner was apprised that his Class "P" license could not be renewed beyond the six-month period of the expiration date; referred to the necessity for a new application; cautioned Respondent not to conduct further polygraph examinations, and advised of the possibility that the violation might lead to a fine of $1,000 or other administrative action. This correspondence also attached an application form for the Class "P" license, for the convenience of Elbon, and closed by reminding Elbon that a representative of the Respondent would check to see that he had ceased his operations related to polygraph examinations. Elbon was told that if he had questions about the letter that he could refer those questions to the Department.
Through the investigative process related to the three notices of violation, i.e., interviews and telephone conversations with Elbon, he admitted to the facts related in the notices of violation, and as reflected in the facts found in prior paragraphs of this Recommended Order. The explanation Elbon gave for not renewing his license, both in the course of the investigation and in the course of the hearing, was that he did not have sufficient money to allow the payment for the license fee and for the necessary insurance related to renewal of his license.
Following conversations with officials of the Respondent and written notification, Elbon reapplied for license in October, 1981. The license application was received October 6, 1981, by Respondent. A copy of the license application may be found as Respondent's Exhibit No. 3, admitted into evidence., (He continued to do some polygraph-type work following the filing of the application. These activities had ceased prior to the date of the final hearing.)
After reviewing the request for licensure, that request was denied by action of the agency on December 21, 1981, based upon the contention that Elbon had been conducting business as a Detection of Deception Examiner without a license or with a revoked or suspended license. The facts found herein
demonstrate that Petitioner was conducting business as a Detection of Deception Examiner without having a Florida license for such purpose.
Petitioner disagreed with the license denial decision and requested a Subsection 120.57(1), Florida Statutes, hearing. Following transmittal of the case to the Division of Administrative Hearings, the formal hearing which is the subject of this Recommended Order, was conducted.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties to this action. See Subsection 120.57(1), Florida Statutes, and Chapter 493, Florida Statutes.
When dealing with licenses for Detection of Deception Examiners, the issue of license renewal is spoken to in Section 493.574, Florida Statutes (1981), which provision makes the disposition of that question a matter to be considered in the same manner and under the same provisions outlined in Section 493.313, Florida Statutes (1981), dealing with investigative and patrol services. Likewise, disciplinary proceedings for Detection of Deception licensees is set forth in Section 493.575, Florida Statutes (1981), which causes those disciplinary actions to be pursued on the same grounds set forth in Section 493.319, Florida Statutes (1981), again dealing with investigative and patrol services.
Subsection 493.313(1), Florida Statutes (1981), empowers Respondent to renew Detection of Deception Examiner licenses. In that same section, wherein the renewal authority or grant is announced, there are provisions which set forth the method for such renewal. It outlines the fact that that renewal shall occur within six months of the expiration date of the license. On the failure of the licensee to renew the license in the period prescribed, the following provision shall pertain:
* * *
(5) No license shall be renewed 6 months or more after its expiration date unless the applicant submits a new appli- cation and the respective fees. Such an applicant may be subject to a background investigation.
This provision places the delinquent individual in the position of making new application for license, together with a possible background investigation. See Subsection 493.309(1)(a), Florida Statutes (1981).
Elbon having failed to renew his license in the prescribed period, had to reapply, pay respective fees, and subject himself to the background investigation In this circumstance he is more similar to a new applicant than to the person who is renewing his license by having Respondent perform the ministerial duties associated with license fees. Following December 30, 1980, Elbon no longer had a Detection of Deception Examiner's license and continues to be without the license.
Respondent has reviewed Petitioner's application of October, 1981, and has elected to deny the license request. The basis of that denial is Subsection 493.319(2)(a), Florida Statutes (1981), which states:
(2) When the department finds any violation of subsection (1), it may do one of the following:
(a) Deny an application for licensure.
In particular, Respondent has alleged that Subsection 493.313(1)(g), Florida Statutes (1981), has been violated. That law indicates that it is a violation for a person to conduct business without the benefit of a license or with a revoked or suspended license. This prohibition is complemented by Subsection 493.313(6), Florida Statutes (1981), which prohibits a person from carrying on the business of operating as a Detection of Deception Examiner during the period between the expiration date of a license which has not been renewed timely and the date of reissuance of that license.
In the present case Elbon conducted business on numerous occasions following the expiration date of his license on December 30, 1980, and prior to any license renewal or reissuance. He did so knowing that his license had expired, knowing that his activities were contrary to law, and in the face of repeated warnings by the Respondent that he was violating the law. This violation, of conducting business without a license, forms a sufficient basis to deny his application for licensure and, under the circumstances depicted by the facts found in this case, it was appropriate for the Respondent to deny the application for license as Detection of Deception Examiner.
That a final order be entered which denies John Eric Elbon's application to be licensed as a Detection of Deception Examiner in the state of Florida.
DONE AND ENTERED this 12th day of May, 1982, in Tallahassee, Florida.
James V. Antista, Esquire Assistant General Counsel Department of State
Room 106, R. A. Gray Building Tallahassee, Florida 32301
CHARLES C. ADAMS
FILED with the Clerk of the Division of Administrative Hearings this 12th day of May, 1982.
