STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 89-0949

) JOHN L. TROUTNER, PAM TROUTNER and ) ATLAS PRIVATE INVESTIGATING AGENCY, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on September 20, 1989, in New Port Richey, Florida.

APPEARANCES

For Petitioner: Henri C. Cawthon, Esquire

Assistant General Counsel Department of State Division of Licensing

The Capitol, Mail Station 4 Tallahassee, Florida 32399-0250

For Respondents: Daniel P. Rock, Esquire

One East Main Street

New Port Richey, Florida 34652 STATEMENT OF THE ISSUES

Whether Respondents provided security guard services to Michael Friedman without licenses to conduct security guard & services; hired James McCullough, an unlicensed private investigator, to perform private investigative services; whether Respondent John Troutner, engaged in misconduct, to wit: harassing subjects of his investigations, and falsified his application for licensure and whether Respondents John and Pam Troutner electronically recorded telephone conversations without the knowledge and/or consent of those being recorded.

PRELIMINARY STATEMENT

Petitioner called as witnesses Vickie Friedman, Gerald D. Townsend, Karl Damm, Glenn Morrison, Mary Marconi, James Blade, Harold Enders and Dwight Chastain. Petitioner introduced into evidence the following exhibits: Petitioner's Exhibit 1, a cassette tape of telephone conversations; Composite Exhibit 2, sworn statements of Tommy Joe House; Exhibit 3, applications for Class A, C, B, E and M, licenses for Respondent John L. Troutner; Composite Exhibit 4, depositions of Tommy Joe House. Respondent called as witnesses Adam

Friedman, Pamela L. Troutner, James MacFarland, Roger Garrison and John Troutner. Respondents introduced into evidence the following exhibits: Exhibit 1, field report of Deputy Karl Damm; Exhibit 2, deposition of Deputy George Yarborough, Exhibit 3, deposition of Joe Beckwith, Composite Exhibit 4, sworn statement and deposition of James McCullough; Exhibit 5, deposition of Michael Friedman; and Exhibit 6, letter from Dennis Corbin.

The parties submitted proposed findings which were considered in preparation of this Recommended Order. Proposed findings which are not incorporated herein are the subject of specific rulings in an Appendix.

FINDINGS OF FACT

1. Petitioner, Department of State, Division of Licensing, is the licensing authority which has statutory jurisdiction over private investigative and security guard licensees.

   
   

2. During times material, Respondent, John L. Troutner held a Class C private investigator's license and a Class "A" private investigative agency license. Respondent John Troutner is the owner of Atlas Private Investigating Agency located at 5466 Springhill Drive, Springhill, Florida.

   
   

3. Respondent Pamela L. Troutner, during times material, held a Class "CC" private investigator's intern license and worked for her husband, Respondent John L. Troutner. Neither Respondent held Class "B" or "D" security guard licenses.

   
   

4. During October 1988, Michael Friedman hired Atlas Private Investigating Agency (Atlas) to investigate his wife Vickie Friedman, pending their divorce proceeding.

   
   

5. As part of their duties, Respondents provided Friedman with home security and guard services. Pam Troutner was posted at the Friedman residence and was told by Mr. Friedman to deny entrance to house guests, specifically Ms. Friedman, without his permission. John Troutner checked in at the Friedman residence on a regular basis and at times, stayed overnight.

   
   

6. Between October 25 and November 25, 1988, Respondent employed James McCullough, an unlicensed person, to perform the services of a private investigator without a Class "C" private investigator'S license. McCullough was paid with checks drawn on the account of Atlas which referenced investigative case numbers and he was accompanied by an Atlas investigator, Tommy House, who was engaged to surveil Vickie Friedman on November 23, 1988.

   
   

7. During times material, Vickie Friedman and her stepfather, Gerald Townsend, were employed by a local newspaper, the Sun Journal. During November 1988, John Troutner and employees of Atlas harassed Vickie Friedman while they were surveilling Ms. Friedman, by attempting to and successfully getting Mr. Townsend fired from his employment with the Sun Journal and threatened to file suit against the Sun Journal if Ms. Friedman and Mr. Townsend were not fired.

   
   

8. Vickie Friedman had a friend who lived across the street from Respondent John Troutner, a Ms. Mary Marconi. Respondent John Troutner instigated Ms. Marconi's eviction as a means of harassment and based on her friendship with Vickie Friedman. Vickie Friedman utilized Ms. Marconi's home, which was near Respondent Troutner's residence, to store property at the Marconi home when she and her husband separated.

9. On May 7, 1987, and May 5, 1988, Respondent John Troutner submitted to Petitioner signed applications for Class A, B, C, E and M licenses without disclosing his previous ownership of the Scuba Den and without divulging his use of an alias, John Delaney.

   
   

10. During early 1988 and between October 25 and December 31, 1988, Respondents electronically recorded telephone conversations without the knowledge of or consent of the parties being recorded. Specifically, Respondent, John Troutner, engaged in conversations with Rick Guyette, Don West and several other unidentified people, and their conversations were electronically recorded without their knowledge or consent.

    
    

11. Respondent Pamela Troutner engaged in a conversation with Vickie Friedman and this conversation was also recorded without Ms. Friedman's authorization or knowledge.

    
    

12. As the owner of Atlas, John Troutner engaged his wife, Pamela Troutner to surveil the Friedman residence. Respondent knew, or should have known that his wife, Pamela Troutner was illegally recording telephone conversations without the knowledge of and consent of such persons.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action pursuant to Subsection 120.57(1), Florida Statutes.

    
    

14. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida statutes.

    
    

15. The authority of the Petitioner is derived from Chapter 493, Florida Statutes.

    
    

16. Respondents, as licensees under Chapter 493, Florida Statutes, is subject the disciplinary guidelines of Chapter 493, Florida Statutes.

    
    

17. Competent and substantial evidence was offered herein to establish that Respondents, during November 1988, provided unlicensed security guard services to Michael Friedman in violation of Subsections 493.319(1)(g) and 493.304(2) and (5), Florida Statutes.

    
    

18. Respondent John L. Troutner, by hiring James McCullough, an unlicensed investigator, to perform investigative services in the Friedman case, engaged in conduct in violation of Subsections 493.319(1)(f) and (g), Florida Statutes.

    
    

19. Competent and substantial evidence was offered herein which establishes that Respondent engaged in the harassment of subjects of his surveillance, to wit: Vickie Friedman, Gerald Townsend and Mary Marconi, in violation of Section 493.319(1)(f), Florida Statutes.

    
    

20. Competent and substantial evidence was offered herein to establish that Respondent John L. Troutner, by intentionally misrepresenting on his license applications his prior ownership interest in the Scuba Den, Inc., and by failing to list the alias he used, John Delaney, engaged in conduct in violation of Subsections 493.319(1)(a) and (f) , Florida Statutes.

21. Insufficient evidence was offered herein to establish that Respondent John L. Troutner was convicted of assault with a firearm in Maryland as alleged.

    
    

22. Respondents John L. Troutner and Pamela Troutner, by taping telephone conversations without the knowledge of or consent of the persons being recorded, engaged in conduct in violation of Subsection 493.319(1)(f), Florida statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That Respondents John L. Troutner, Pamela L. Troutner and Atlas Private Investigating Agency, Inc., licenses be suspended for a period of one (1) year.

DONE and ENTERED this 31st day of January, 1990, in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 1990.

COPIES FURNISHED:

Henri C. Cawthon, Esquire Assistant General Counsel Department of State,

Div. of Licensing

The Capitol, Mailstation 4 Tallahassee, Florida 32399-0250

Daniel P. Rock, Esquire One East Main Street

New Port Richey, Florida 34652

Jim Smith Secretary of State The Capitol

Tallahassee, Florida 32399-0250

Ken Rouse, Esquire General Counsel Department of State The Capitol, LL-10

Tallahassee, Florida 32399-0250

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF STATE

DEPARTMENT OF STATE, DIVISION OF LICENSING,

Petitioner,

DOS CASE NOS.: C88-598, C89-229

vs DOAH CASE NO.: 89-0949

JOHN L. TROUTNER, PAMELA L. TROUTNER AND ATLAS PRIVATE INVESTIGATING AGENCY,

Respondents.

/

FINAL ORDER

This cause came before the Department of State, Division of Licensing, for consideration and final agency action. A formal administrative hearing was conducted pursuant to Section 120.57(1), Florida Statutes, on September 20, 1989, in New Port Richey, Florida, before James E. Bradwell, a duly assigned Hearing Officer of the Division of Administrative Hearings. A Recommended Order was submitted by the Hearing Officer on February 6, 1990. Respondents filed exceptions to the Recommended Order on February 15, 1990.

RULING ON EXCEPTIONS FILED BY RESPONDENTS

1. Respondents except to Finding of Fact 5. The finding is supported by competent, substantial evidence; therefore, the exception is denied.

   
   

2. Respondents except to Finding of Fact 6. The finding is supported by competent, substantial evidence; therefore, the exception is denied.

   
   

3. Respondents except the last sentence of Finding of Fact 7. The finding is supported by competent, substantial evidence; therefore, the exception is denied.

   
   

4. Respondents except to the second sentence of Finding of Fact 8. The finding is supported by competent, substantial evidence; therefore, the exception is denied.

   
   

5. Respondent's except to Finding of Fact 9. The finding is supported by competent, substantial evidence; therefore, the exception is denied.

   
   

6. Respondents except to Finding of Fact 10. The finding is supported by competent, substantial evidence; therefore, the exception is denied.

FINDINGS OF FACT

The Department hereby adopts and incorporates by reference the Findings of Fact set forth in the Recommended Order.

CONCLUSIONS OF LAW

The Department hereby adopts and incorporates by reference the Conclusions of Law set forth in the Recommended Order.

RECOMMENDATION

The Department takes exception to the Hearing Officer's recommendation of a one year suspension of the Respondents' licenses.

The harassment committed by Respondent John L. Troutner was extreme and indefensible. The Department discourages private investigators from maintaining constant and open surveillance of a subject primarily for the purpose of harassment and intimidation. Here, Mr. Troutner by far exceeded the normal bounds of harassment by his persistent attempts to have his client's wife and father fired from their jobs, and by his efforts to have the wife's friend evicted from her residence.

By Final Order dated June 8, 1988, Respondent was fined for providing unlicensed armed security guard services. Department of State v. John L. Troutner, Case No. C88-T14. Therefore, the finding that he provided his client Michael Friedman with unlicensed security services establishes that Respondent is a repeat offender.

The finding that he and Respondent Pamela Troutner recorded numerous telephone conversations without the consent of the other parties is the most egregious of the violations in that it is grounds for felony charges pursuant to Chapter 934, Florida Statutes.

Coupled with the intentional misrepresentations on his licensing applications and the fact that he hired an unlicensed private investigator in the Friedman case, the foregoing grounds support the revocation of Respondent John L. Troutner's licenses for five (5) years. Inasmuch as the facts demonstrate that Respondent Pamela Troutner was directly involved in the submission of her husband's applications, the providing of unlicensed security guard services, and the unlawful wiretapping, her license should be revoked for a period of three (3) years.

Based upon the foregoing, it is ORDERED that Respondent John L. Troutner's licenses be revoked for a period of five (5) years; and that Respondent Pamela Troutner's license(s) be revoked for a period of three (3) years.

NOTICE OF RIGHTS

This Order constitutes final Agency action. Any party who is adversely affected by this Order may seek judicial review under Section 120.68, Florida Statutes. Such proceedings are commenced by filing a Notice of Appeal, pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the Clerk of the Department of State, Office of Legal Affairs, The Capitol, Room LL-10, Tallahassee, Florida 32399-0250; and by filing a copy of the Notice of Appeal, accompanied by the applicable filing fees, with the First District Court of

Appeals, or with the District Court of Appeals in the appellate district where the party resides. The Notice of Appeal must be filed within (30) days of the day this Order is filed with the Clerk of the Department.

DONE AND ORDERED at Tallahassee, Florida this 6th day of March, 1990.

John M. Russi, Director Division of Licensing

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing Final Order has been sent by

U. S. Mail this 6th day of March, 1990, to Daniel P. Rock, Attorney at Law, One East Main Street, New Port Richey, Florida 34652.

COPIES FURNISHED: Filed with Agency Clerk

Orlando Regional Office Office of Legal Affairs License File

Henri C. Cawthon Assistant General Counsel Department of State Division of Licensing

The Capitol, MS #4

Tallahassee, Florida 32399-0250

(904) 487-0482

Docket for Case No: 89-000949

Orders for Case No: 89-000949