STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARTIN BROYLES, )

)

Petitioner, )

)

vs. ) CASE NO. 87-5349

) FLORIDA DEPARTMENT OF STATE, ) DIVISION OF LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Don W. Davis, on June 1, 1988 in Miami, Florida. The following appearances were entered:

APPEARANCES

FOR PETITIONER: Mr. Martin Broyles, Pro Se

985 North East 149th Street Miami, Florida 33161

FOP RESPONDENT: R. Timothy Jansen, Esquire

Department of State The Capitol

Tallahassee, Florida 32399-0250 BACKGROUND

The Petitioner submitted an application for licensure as a private investigator to Respondent. The type of license sought by the Petitioner was a Class "C". This particular type of license, pursuant to section 493.306, Florida Statutes, requires certain experience in private investigative work or in related fields providing equivalent experience. The Respondent determined Petitioner's application to be deficient because his related field of employment was not deemed an adequate equivalent for substitution in lieu of private investigative work. The Petitioner requested a formal administrative proceeding in response to the denial of licensure. This administrative hearing followed.

At hearing, Petitioner presented testimony of eight witnesses and seven evidentiary exhibits. The Respondent presented testimony of two witnesses and one evidentiary exhibit. Proposed findings of fact submitted by Respondent are addressed in the appendix to this recommended order. The Petitioner did not timely submit any proposed findings and none had been received at the time of preparation of this recommended order.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. On June 22, 1987, Petitioner submitted to Respondent an application for a Class "C" private investigator license. After review of the application and verification of the previous work experience listed in it, Respondent determined the work experience did not meet the statutory requirement of section 493.306 (4), Florida Statutes, that an applicant for the Class "C" license have two years training or experience in private investigative work or related work areas providing equivalent experience. The Respondent denied Petitioner's application on October 5, 1987.

   
   

2. The Petitioner is presently employed as a process server. He was employed for varying periods of time between July, 1984, and May of 1987, by four law firms. In the course of this employment, Petitioner sometimes assisted lawyers and witnesses prepare for trial by retrieval of information from records within the particular firm where he was working, or from public records at various public institutions. Among the public records he is accustomed to reviewing are those of Respondent's Division of Corporations. On one occasion, he did, pursuant to instructions from his employer, search through a garage in Tampa, Florida, for certain records.

   
   

3. In the course of his work experience, Petitioner has never conducted any kind of surveillance, located a missing person, or investigated a homicide or arson case. He has never testified at a trial or conducted an electronic "debugging" or "bugging" exercise.

   
   

4. The Petitioner completed a short prescribed program at the Miami-Dade Community College in August of 1979, and was awarded a "planned certificate" as a legal assistant. To obtain this certificate, he completed various courses at the college during the period stretching from January, 1976, until July, 1979. Among those courses completed by the Petitioner were three hour courses in legal research, business law, legal writing, domestic relations and criminal law, and legal writing.

   
   

5. Alan Rollins, assistant director for Respondent's licensing division, testified that Respondent's policy has been to define the statutorily required licensing prerequisite of "[p]rivate investigative work or related fields of work" as a requirement that an applicant for a Class "C" license possess field investigatory experience beyond the mere review of public records. Rollins noted that even law enforcement officers could not be licensed under this policy, unless equipped with investigatory experience. He further stated that the policy is the result of Respondent's desire to be consistent with the perceived legislative intent of the statute to protect the public welfare.

   
   

6. Harvey Morse, owner of several private investigator agencies, holder of a law degree and a practicing private investigator, testified as an expert witness for the Respondent. The testimony of Morse establishes that surveillance experience is essential to the conduct of investigations by private investigators. Since the purpose of licensing private investigators is to protect the interest of the public in obtaining competent services from persons holding themselves out as private investigators, the legal research experience and education of the Respondent is not, standing alone, an adequate substitute for the statutory requirement of experience in the areas of "[p]rivate investigative work or related fields of work". Morse, who also serves as chairman of the advisory council which advises the Respondent on licensing of this profession, opined that the Petitioner was qualified only to obtain information from public records. Experience in a related field of work should

   involve surveillance. Such experience could be obtained by the Petitioner through first obtaining a Class "CC" license and working as an intern to a licensed investigator.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes.

   
   

8. The primary issue for consideration in this case is whether the Petitioner's work experience as a legal assistant provided a level of experience or training equivalent to private investigative work.

   
   

9. The pertinent portion of section 493.306 (4), (a), (b), and (c), relied upon by the Respondent in its denial, reads as follows:

   
   

   [A]n applicant for a Class "C" license must have two years experience or training in one, or a combination of more than one, of the following:

   1. Private investigative work or related fields of work that provided equivalent experience or training;

   2. College course work and seminars related to private investigation, except that no more than 1 year may be used from this category; or

   3. Work as a Class "CC"-licensed intern.

      
      

10. "Private Investigation" is extensively defined ,in section 493.30 (4), Florida Statutes, to mean "investigation for the purpose of obtaining information" regarding an array of subjects ranging from alleged crimes against the government of a state or the United States, to the causes of such matters as fires and damage to property. While the statute does not set forth a definition of "investigation", the common meaning of that term is the act of observation or "study by close examination and systematic inquiry". Webster's Seventh New Collegiate Dictionary, 1965.

    
    

11. The Petitioner contends his work is in a related field and is equivalent in training and experience. The argument that Petitioner has participated in a related field of endeavor to private investigative work since systematic inquiry and close examination are part and parcel of legal research, is not persuasive. Such inquiry and examination is essential to the practice of many unrelated professions and occupations. The equivalency value of such employment, as pointed out by expert Morse, within the context of providing experience in the essential area of surveillance is absent.

    
    

12. The educational credits under this statutory criteria are limited to a maximum of one year. Therefore, assuming arguendo that Petitioner's college course work met requirements of being "related to private investigation", he would still need to provide at least one year of "[p]rivate investigative work or related fields of work".

    
    

13. Notably, the only experience obtained by the Petitioner which could be applicable under the definition of "[p]rivate investigation", set forth in section 493.30 (4) , Florida Statutes, are those instances when he obtained

    information regarding corporations from Respondent's public records. No showing was made that this experience comprised the sole activity of his previous employment or that the quantity of such experience was sufficient to meet the entire time requirement of two years, or even one year.

    
    

14. The construction given to Chapter 493, Florida Statutes, by the Respondent is entitled to great deference and should be upheld unless clearly erroneous. Department of Insurance v. Southeast Volusia Hospital District, 438 So.2d 815, 820 (Fla. 1983). Based upon the facts adduced at hearing, such construction appears to have a sound and rational basis.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying the Petitioner's

application for licensure.

DONE AND RECOMMENDED this 21st day of June, 1988, in Tallahassee, Leon County, Florida.

DON W. DAVIS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this

21st day of June, 1988.

APPENDIX

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.

RESPONDENT'S PROPOSED FINDINGS:

1. Included in finding 1.

2. Included in finding 2.

3. Unnecessary to result reached.

4. Included in finding 1.

5.-14. Unnecessary to result reached.

15. Included in finding 5. 16.-19. Included in finding 6.

1. Included in finding 3.

2. Unnecessary to result reached.

3. Included in finding 2.

COPIES FURNISHED:

R. Timothy Jansen, Esquire Department of State

The Capitol, Mail Station #4 Tallahassee, FL, 32399-0250

Mr. Martin Broyles

985 N.E. 149th Street Miami, Florida 33161

Ken Rouse, Esquire General Counsel Department of State 1801 The Capitol

Tallahassee, Florida 32399-0250

Hon. Jim Smith Secretary of State Department of State The Capitol

Tallahassee, Florida 32399-0250

Docket for Case No: 87-005349

Orders for Case No: 87-005349