STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

)

Petitioner, )

)

vs. ) CASE NO. 89-6620

)

MICHAEL R. HEILAND, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in this case was held on February 6, 1990, in Tampa, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Henri C. Cawthon, Esquire

Department of State

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

For Respondent: Michael R. Heiland

P. O. Box 152143

Tampa, FL 33614 STATEMENT OF THE ISSUE

The issue in this case is whether disciplinary action should be taken against the private investigator's licenses of Michael R. Heiland (Respondent) based upon violations of Section 493.319(1)(i), Florida Statutes, as alleged in the Administrative Complaint filed against Respondent in this case.

PRELIMINARY STATEMENT

At the hearing, the Petitioner callled Joseph and Karen King, and John Matlack, and also introduced one exhibit. The Respondent testified on his own behalf. No transcript of the final hearing was filed, and therefore, the parties were allowed to file proposed recommended orders within ten days of the final hearing. A ruling on each timely filed proposed finding of fact included in the parties' proposed recommended orders is included in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent has been licensed as a Class "C" private investigator and Class "MA" agency manager, having been issued licenses numbered C-0002856 and NA-8600240, respectively.

2. On or about November 10, 1988, Respondent was engaged in an investigation and surveillance involving Joseph King to determine if King was disabled for purposes of a worker's compensation claim which was being disputed by the insurance carrier. As a result of Respondent's investigation, King was eventually denied certain benefits which he would otherwise have received. Respondent was performing this work through the Hillsborough County branch office of TRACE, Inc., a licensed private investigative agency which he managed. He was accompanied in this investigation and surveillance of King by two other licensed private investigators.

   
   

3. During the course of this investigation,and surveillance, King became aware of Respondent and the other two investigators who were following him. He confronted one of the investigators named Tony Hobbs, and after it became apparent that King was preventing Hobbs from leaving, Respondent came to his aid and attempted to calm down the situation. King continued to refuse to allow the investigators to leave, and eventually Deputy Sheriffs arrived and secured Hobbs' release.

   
   

4. At hearing, Mr. and Mrs. King both testified that Respondent and the other investigator, Hobbs, falsely identified themselves as federal agents who were allegedly involved in an undercover drug investigation. Respondent denies that he ever made such a representation to the Kings. Hobbs was not present to testify, but in a statement given to the Petitioner's investigator, John Matlack, in the regular course of his investigation of this incident Hobbs stated that he had been told by one of the Deputy Sheriffs that Respondent had made this statement. However, Hobbs was fired from TRACE, Inc., a couple of weeks after this incident, and therefore, has a motive for placing Respondent's license in jeopardy.

   
   

5. Based upon the demeanor and testimony of Respondent and the Kings at hearing, as well as the motive which existed for the Kings to try to get back at Respondent for their loss of certain benefits resulting from his investigation, it is found that Respondent did not falsely identify himself as a federal agent at any time during the course of this investigation. Respondent was calm, orderly, logical, coherent and professional in his recollection of events, while Mr. King was aggressive and hostile towards Respondent. It was King who provoked the confrontation with Hobbs by restraining and preventing him from leaving. It was King who was angry with the investigators, including Respondent, and who allowed them to leave only after Deputy Sheriffs arrived.

   At hearing, it was King who was unclear in his recollection of specific details about the events of November 10, 1988, and he was clearly still angry with Respondent.

   
   

6. The Petitioner also alleges that Respondent falsely identified himself as a federal agent to a neighbor of King, but that neighbor was not present to testify and his absence was not explained. Therefore, there is no competent substantial evidence in the record to support this allegation concerning a statement allegedly made by Respondent to King's neighbor.

   
   

7. It is against the policy of Respondent's company, TRACE, Inc., for any agent to represent himself to be a federal agent, and such misrepresentation is a basis for termination. Respondent is well aware of this policy, and credibly testified that he did not violate it in his investigation of King.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties, and the subject matter in this cause. Section 120.57(1), Florida Statutes. Since this is a case in which the Petitioner is seeking to discipline the Respondent's license, and could thereby adversely affect his ability to continue to conduct private investigations, the Petitioner has the burden of establishing the basis for license disciplinary action by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). In order to meet this clear and convincing standard, "The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of conviction, without hesitancy, as to the truth of the allegations sought to be established." Evans Packing Co. v. Department of Agriculture and Consumer Services, 14 FLW 2326, 2327, n.5 (Fla. 1st DCA 1989), citing Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

   
   

9. As it relates to the evidence adduced at hearing, the Petitioner has charged Respondent with violating Sections 493.319(1)(i), Florida Statutes, which provides in pertinent part, as follows:

   
   

   Section 493.319 Grounds for disciplinary action.--

   1. The following constitute grounds for which disciplinary action specified in subsection (2) may be taken:

      1. Impersonating, or permitting or aiding and abetting an employee to impersonate, a law enforcement officer or an employee of this state, the United States, or any political subdivision thereof . . .

         
         

10. Petitioner has failed to prove, by clear and convincing evidence, that Respondent has violated the above-referenced statutory provision. The witnesses called by the Petitioner, the Kings, had a motive to place Respondent's license in jeopardy because his investigation resulted in Mr. King being denied certain benefits which he otherwise would have received. Mr. King's demeanor at hearing made his testimony less credible than the testimony offered by Respondent. The statement made by Hobbs to the Petitioner's investigator that he had heard a Deputy Sheriff attribute this false representation to Respondent is hearsay within hearsay, and is neither competent nor substantial due to the fact that Hobbs' absence from the hearing was unexplained, and he also had a motive for trying to assist in action against Respondent's license since he had been fired from his employment with Respondent's company. The Petitioner did not offer any competent substantial evidence concerning the alleged statement made by Respondent to one of King's neighbors.

RECOMMENDATION

Based upon the foregoing, it is recommended that the Petitioner enter a Final Order dismissing the charge that Respondent violated Section 493.319(1)(i) Florida Statutes, as set forth in the Administrative Complaint.

DONE AND ENTERED this 5th day of March, 1990 in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 1990.

APPENDIX

Rulings on the Petitioner's Proposed Findings of Fact:

1. Adopted in Finding of Fact 1.

   
   

2. Adopted and Rejected in part in Findings of Fact 2-5.

   
   

3. Rejected in Finding of Fact 6.

Rulings cannot be made on the narrative statement filed by the Respondent on March 1, 1990, since it does not contain separately numbered proposed findings of fact and does not evidence that Respondent has provided a copy to counsel for the Petitioner.

COPIES FURNISHED:

Henri C. Cawthon, Esquire Department of State

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

Michael R. Heiland P. O. Box 152143

Tampa, FL 33614

Ken Rouse, Esguire General Counsel The Capitol, LL-10

Tallahassee, FL 32399-0250

The Honorable Jim Smith Secretary of State

The Captol

Tallahassee, FL 32399-0250

Docket for Case No: 89-006620

Orders for Case No: 89-006620