STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT POWERS, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2359S

)

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, R. L. Caleen, Jr., Hearing Officer with the Division of Administrative Bearings, conducted a formal hearing in this case on December 6, 1983, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Robert Powers, pro se

1881 1/2 Smith Drive

Juno Beach, Florida 33458

For Respondent: Thomas G. Tomasello, Esquire

Office of General Counsel Department of State, The Capitol Tallahassee, Florida 32301

ISSUE

Whether petitioner's application for licensure as a detection of deception examiner should be denied on grounds that he lacks two years' experience as an investigator or detective.

BACKGROUND

By letter of June 24, 1983, respondent Department of State, Division of Licensing ("Department") notified petitioner Robert Powers ("the applicant") that it intended to deny his application for a detection of deception license for failure to meet the educational and experience requirements of Section 493.566(3), Florida Statutes (1981). The applicant disputed the Department's action and requested a formal hearing. On July 26, 1983, the Department forwarded this case to the Division of Administrative Hearings for assignment of a hearing officer. Hearing was thereafter set for December 6, 1983.

At hearing, the applicant testified on his own behalf and offered into evidence Petitioner's Exhibit No. l, which was received. The Department presented the testimony of Pam Pingree, and offered Respondent's Exhibit Nos. 1 and 2 into evidence, both of which were received. Both parties filed post- hearing proposed findings of fact by December 19, 1983.

Based on the evidence presented at hearing, the following facts are determined:

FINDINGS OF FACT

1. The Department concedes that the applicant meets all criteria for licensure as a detection of deception examiner except for the Section 493.566(3) requirement of "two years experience as an investigator or detective." Id. This requirement applies when, as here, an applicant has a high school diploma but has not completed at least two years at a university, college, or a junior college approved by the Department.

   
   

2. For the past four years, the applicant has been employed as a dispatcher for the Jupiter Police Department in Jupiter, Florida. During the past two and one-half years, he has also administered polygraph tests for the Jupiter Police Department. 2 He administered these polygraph examinations after 4:90 P.M.--while off-duty and on his own time--under the supervision of a licensed examiner. His subjects were new employees of the police department, or criminal suspects presented by his department or other police departments in the area. His supervisors report that he was a skillful and competent examiner.

   (R-1, P-1)

   
   

3. The applicant, however, has failed to show that as a dispatcher, or an off-duty polygraph examiner, he performed investigative activities ordinarily - performed by investigators or detectives. His experience as a polygraph (or detection of deception) examiner simply does not equate to experience as an investigator or detective.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. 120.57(1), Fla.Stat. (1981).

   
   

5. An applicant is qualified for licensure as a detection of deception examiner upon satisfying the requirements of Section 493.566, Fla.Stat. (1981), which include:

   
   

   (3) Has at least 2 years of attendance at a university, college, or junior college recognized and approved by the department; however, this requirement may be waived for those persons who have a high school diploma and 2 years' experience as an investigator or detective;

   * * *

   (5) Has completed a minimum of 1 year as a licensed intern examiner under the supervision of a licensed examiner in this state.

   
   

   The Department asserts that the applicant does not qualify for licensure because he lacks the requisite two years experience as an investigator or detective.

   The applicant asserts that his experience as a polygraph examiner satisfies this requirement.

6. In licensing proceedings, the burden of proving entitlement to a license lies on the applicant. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981)

   
   

7. The applicant has failed to sustain this burden. He has not shown that two years' experience as a polygraph examiner is equivalent to two years' experience as an investigator or detective, within the meaning of Section 493.566, Florida Statutes (1981).

   
   

8. The applicant's assertion that polygraph experience equates to investigative or detective experience is inconsistent with Chapter 493, Florida Statutes (1981). Under this statute, investigators and detection of deception examiners provide separate and distinct services and have different licensing requirements. In requiring specific experience as an investigator or detective-

   -to qualify for a detection of deception license-- the legislature intended that these terms be interpreted in the context of Chapter 493.

   
   

9. Under Section 493.30, private investigators, not unlike investigators employed by law enforcement agencies, per- form services which include obtaining information about crimes, credibility of witnesses, whereabouts of missing persons, and location of stolen property, in addition to securing evidence for trial. "Detectives," although not defined by Chapter 493, provide similar services. They are "employed or engaged in detecting lawbreakers or in getting information that is not readily or publicly accessible." Webster's New Collegiate Dictionary, 307 (1981).

   
   

10. In contrast, the services provided by detection of deception examiners, licensed under Part II of Chapter 493, are more limited in scope. Such examiners use instruments which record as "minimum standards, permanently and simultaneously, the examinees' cardiovascular (blood pressure and pulse) and respiratory (breathing) patterns, in order to examine individuals for the purpose of detecting truth or deception." 493.561(1), Fla.Stat. (1981).

    
    

11. Furthermore, in specifying one criterion for licensure as a detection of deception examiner, the legislature maintained the distinction between these professions, requiring experience in one to qualify for the other. In Section 493.566, an applicant (who lacks two years college education) must have two years experience as an investigator or detective in addition to at least one year of experience as a licensed intern (detection of deception) examiner.

    
    

12. In summary, polygraph experience does not equate to investigator or detective experience, as these terms are used in Section 493.566. Since the applicant has failed to show that he qualifies for licensure, his application must be denied.

    
    

13. The parties' proposed findings of fact have been considered in preparing this recommended order. To the extent their proposed findings were not consistent with the weight of credible evidence, they have been either rejected, or, when possible, modified to conform to the evidence. Additionally, proposed findings which were subordinate, cumulative, immaterial, or unnecessary, have been rejected.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the applicant's application for licensure as a detection of deception examiner be denied for failure to satisfy the criteria of Section 493.566, Florida Statutes (1981).

DONE and ENTERED this 13th day of January, 1984, in Tallahassee, Florida.

R. L. CALEEN, JR. 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 13th day of January, 1984.

COPIES FURNISHED:

Robert Powers

1881 1/2 Smith Drive

Juno Beach, Florida 33458

Thomas G. Tomasello, Esquire Office of General Counsel Department of State

The Capitol

Tallahassee, Florida 32301

Docket for Case No: 83-002359

Orders for Case No: 83-002359