STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 89-3718

) HAROLD W. CHARLTON, President, )

Highlander Detective Bureau, ) Orlando Detective Agency, and ) Tampa Bay Detective Bureau, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on November 14, 1989, in Orlando, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Henri C. Cawthon, Esquire

Assistant General Counsel Department of State

The Capital Tallahassee, Florida

For Respondent: Marina C. Nice, Esquire

Foster and Kelly First Union Building

20 North Orange Avenue Suite 600

Orlando, Florida STATEMENT OF THE ISSUES

Whether Respondent failed to produce records for inspection by the Petitioner regarding the repossession of a 1986 Amberjack Sea Ray Boat after demand, in violation of Section 493.322(2), Florida Statutes.

Whether Respondent failed to produce records for inspection by the Respondent regarding the repossession of a 1982 Chrysler New Yorker motor vehicle after demand, in violation of Section 493.322(2), Florida Statutes.

Whether Respondent is guilty of fraud or deceit, or of negligence, incompetency, or misconduct in the practice of his business by failing to turn over the proceeds of the sale of a repossessed 1982 Chrysler New Yorker to his client, Chrysler Credit Corporation, in violation of Section 493.319(1)(f), Florida Statutes.

Whether Respondent gave a check in the amount of $621.16 to Winter Park Executive Center for rent, which check was returned for insufficient funds, in violation of Section 493.319(1)(f), Florida Statutes.

Whether Respondent failed to disclose the location of a repossessed 1986 Amberjack Sea Ray boat to his client, Naval Air Federal Credit Union, after repeated requests, in violation of Section 493.319(1)(f), Florida Statutes.

PRELIMINARY STATEMENT

On June 27, 1989, Petitioner filed a five count Administrative Complaint charging Respondent with various violations of Section 493.319 and 493.322, Florida Statutes. Respondent denied the allegations in the complaint and signed an election of rights requesting a formal hearing under Section 120.57(1), Florida Statutes, on July 5, 1989. This matter was referred to the Division and a formal hearing was scheduled. After a timely motion was filed anal good cause shown, the formal hearing was rescheduled for November 14, 1989 by Order, dated October 20, 1989. On November 10, Respondent telephonically requested a continuance and on November 13, 1989, the Clerk of the Division received a letter from Respondent requesting a continuance, without a certificate of service attached. At the hearing convened on November 14, 1989, Respondent was not personally present but was represented by counsel. Counsel renewed the Respondent's motion for continuance on the grounds that Respondent was presently located in Tampa, Florida, and was unable to travel due to a disability incurred in August 1989; that counsel had only been retained by Respondent on the day of the hearing and could not adequately prepare for the hearing; and that counsel's law firm had a conflict of interest and would be seeking to withdraw from representation of the Respondent. Petitioner objected to the granting of the motion on the grounds that it was untimely, the medical excuse was not corroborated and that Petitioner was present and ready for `the hearing. On the merits, the motion was denied. Counsel for Respondent telephonically communicated the ruling to the Respondent, and that the motion to withdraw would be granted after the conclusion of the hearing. Following the hearing, counsel's motion to withdraw was granted by Order, dated November 16, 1989.

At the hearing, Petitioner offered three exhibits in evidence and the deposition of one witness, George C. Tallant, and the live testimony of its investigator, Jon H. Matlach. Although Respondent had been notified of the telephonic deposition of the witness Tallant he had declined to cross-examine him. However, Respondent had not been represented by counsel at that time. The Hearing Officer granted Respondent the opportunity to examine the witness if said examination was conducted within 30 days of the date of the formal hearing. Respondent was so advised by his counsel at the hearing, however as of the date of this Order Respondent has not taken the testimony of the witness Tallant.

His deposition is therefore admitted in evidence.

A transcript was not filed in this matter. Neither party submitted proposed findings of fact.

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

FINDINGS OF FACT

1. Respondent holds a Class "A" Private Investigative Agency license Number A88-00071, in the name of Orlando Detective Bureau, effective March 21, 1988.

   
   

2. Respondent holds a Class "A" Private Investigative Agency license Number A86-00182, in the name of Tampa Bay Detective Bureau, effective August 1, 1988.

   
   

3. Respondent holds a Class "AA" Private Investigative Branch Agency license Number AA88-00026, in the name of Highlander Detective Agency, effective August 18, 1988.

   
   

4. Respondent holds a Class "C" Private Investigator license Number COO- 01501, effective October 20, 1987.

   
   

5. Respondent holds a Class "E" Repossessor license Number EOQ-00103, effective August 1, 1988.

   
   

6. Respondent holds a Class "MA" Private Investigative Agency Manager license Number MA86-00215, effective August 1, 1988.

   
   

7. In May 1989, during an investigation of Respondent for suspected violations of Chapter 493, Florida Statutes, Respondent failed to submit information concerning his business practices or methods regarding the repossession of a 1986 Amberjack Sea Ray boat, after proper demand by the Petitioner.

   
   

8. In May 1989, during an investigation of Respondent for suspected violations of Chapter 493, Florida Statutes, Respondent failed to submit information concerning his business practices or methods regarding the repossession and sale of a 1982 Chrysler New Yorker automobile, after proper demand by the Petitioner.

   
   

9. On February 15, 1988, Respondent, his agents or employees, repossessed a 1982 Chrysler Newyorker automobile in Indian Rocks Beach, Florida, on behalf of Chrysler Credit Corporation. Subsequently, Chrysler Credit Corporation authorized Respondent to sell the automobile and turn the proceeds over to them. Respondent failed to account to Chrysler Credit Corporation as to the disposition of the vehicle or the proceeds of the sale thereof.

   
   

   CONCLUSIONS OF LAW

   
   

10. 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.

    
    

11. Petitioner is charged with the administration of private investigative agencies, private investigators and repossessors, pursuant to Chapter 493, Part I, Florida statutes (1987), and to discipline those licensed thereunder who are charged by administrative complaint with a violation of the law.

12. The Petitioner has the burden to prove, by clear and convincing evidence, the violation of Chapter 493, Florida Statutes, alleged in the administrative complaint issued against Respondent. Ferris v. Turrlington, 510 So.2d 292 (Fla. 1987).

    
    

13. Sections 493.322(2) and 493.319(1)(p), Florida Statutes (1987), make it grounds for which disciplinary action may be taken for a licensee or employee to fail to submit information concerning his business practices or methods, upon request of the department when it is conducting an investigation.

    
    

14. Section 493.319(1)(f), Florida Statutes (1987), makes it grounds for which disciplinary action may be taken if a licensee is guilty of fraud or deceit, or of negligence, incompetency, or misconduct, in the practice of his business for which the license is held or sought.

    
    

15. When a violation has been proven, one or more of the following disciplinary actions may be taken:

    
    

    "...(b) Revoke, suspend, or refuse to renew a license.

    1. Impose an administrative fine not to exceed $1,000 for every count or separate offense.

    2. Issue a reprimand.

    3. Place the licensee on probation for a period of time and subject to such conditions as the department may specify." Section 493.319(2), Florida Statutes (1987).

       
       

16. Petitioner has met its burden of proof as to Counts I, and II of the Administrative Complaint. However, it has failed to provide any evidence in regard to Counts IV and V. As to Count III, Petitioner introduced competent evidence to sustain a finding of misconduct, but there was insufficient evidence to sustain a finding of fraud or deceit.

    
    

17. Respondent had a statutory obligation to provide information to the Petitioner while it was conducting an investigation. Respondent knew of the two investigations and the demand by the Petitioner's investigator for information concerning them but deliberately ignored the requests. This was a violation of the statute for which Respondent can be disciplined.

    
    

18. In early 1988, the Respondent and his agencies were hired by the Chrysler Credit Corporation to repossess and then to sell on their behalf a 1982 Chrysler New Yorker automobile. Respondent repossessed the vehicle and was paid for the service. He was also authorized to sell the vehicle and forward the proceeds to his client. This Respondent has failed to do. Such a material failure constitutes misconduct in the practice of his business, a violation of the statute for which Respondent can be disciplined.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty on Counts I and II of the

Administrative Complaint, and that all licenses of the Respondent be suspended for a period of one year and that he pay an administrative fine of $250 for each count; that Respondent be found guilty of misconduct on Count III, and that all licenses of the Respondent be suspended for a period of five years and that he pay an administrative fine of $1,000.

DONE AND ENTERED this 29th day of December, 1989, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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 29th day of December, 1989.

COPIES FURNISHED:

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

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

Harold W. Charlton,

c/o Tampa Bay Detective Agency 8430 40th Street North

Tampa, FL 33604

Honorable Jim Smith Secretary of State The Capitol

Tallahassee, FL 32399-0250

Ken Rouse General Counsel

Department of State The Capitol, LL-10

Tallahassee, FL 32399-0250

Docket for Case No: 89-003718

Orders for Case No: 89-003718