STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 92-4315

) ABA PROFESSIONAL ASSOCIATION, ) INCORPORATED, and WENCESLAO )

MANUEL LORA, Owner, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on September 24, 1992, in Miami, Florida.

APPEARANCES

For Petitioner: Henri C. Cawthon, Esquire

Assistant General Counsel Division of Licensing

The Capitol MS #4

Tallahassee, Florida 32399-0250

For Respondent: Gonzalo R. Dorta, P.A.

Suite 801

1401 Brickell Avenue

Miami, Florida 33131 STATEMENT OF THE ISSUES

At issue in this proceeding is whether respondent committed the offenses alleged in the administrative complaint and, if so, what disciplinary action should be taken.

PRELIMINARY STATEMENT

By administrative complaint dated March 20, 1992, petitioner charged that respondents conducted or advertised the business of a private investigative agency without benefit of licensure, contrary to the provisions of Section 493.6118(1)(g), Florida Statutes. Respondents disputed the allegations of fact contained in the administrative complaint, and requested a formal hearing.

Consequently, the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At hearing, petitioner called Jimmy Thompson as a witness, and its exhibits 1-4 were received into evidence. Respondents presented the testimony of Wenceslao Manuel Lora, Perry Wood, and Robert Seitz, and their exhibits 1-3 were received into evidence.

The transcript of hearing was filed October 2, 1992, and the parties were granted leave until October 12, 1992, to file proposed findings of fact. The parties' proposals have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. At all times material hereto, respondent, Wenceslao Manuel Lora (Lora), was the chief executive officer of, as well as a director of, respondent, ABA Professional Association, Inc. (ABA), a business located in Miami, Florida.

   
   

2. On November 6, 1990, the Florida District Court of Appeal, Third District, affirmed the decision of the Department of State, Division of Licensing, to revoke the licensure of Lora, a private investigator and repossessor, based on his 1985 conviction for burglary, unlawful interception of oral and wire communication, and criminal conspiracy. Since such time, neither Lora nor ABA have been licensed to provide private investigative services in the State of Florida.

   
   

3. In April 1991, Lora met with a salesperson for Bellsouth Advertising & Publishing Corporation (Southern Bell) to renew the advertisements ABA had run in the Southern Bell yellow page directory for Dade County, Florida, the previous year. As ultimately approved by Lora in June 1992, the display advertisement for the 1991-92 yellow page directory was substantially the same as that run the prior year, and ABA secured listings under the yellow page headings of "Detective Agencies," "Investigators," "Lie Detection Services," and "Polygraph Examiners & Service."

   
   

4. As published in the September 1991 Southern Bell yellow page directory the display advertisement appearing under the yellow page heading of "Detective Agencies" stated that ABA was available to provide the following services:

   
   

   . MISSING PERSONS-SPECIALTY WITH CHILDREN

   . SURVEILLANCE-VIDEO-PHOTOGRAPHY

   . INTELLECTUAL ELECTRONIC COUNTERMEASURES

   . BACKGROUND INVESTIGATIONS (CRIMINAL & CIVIL)

   . REPORTS WITHIN MINUTES . MULTI LINGUAL STAFF

   . INTELLIGENCE DATA AVAILABLE & FINANCIAL REPORTS

   . POLYGRAPH TEST

   
   

   The display advertisement further represented that most major credit cards were acceptable forms of payment, and that ABA was licensed, bonded and insured.

   
   

5. In addition to the display advertisement that appeared under the heading "Detective Agencies," the 1991-92 Southern Bell yellow page directory also carried at Lora's request, a similar, although smaller, display advertisement for ABA under the heading of "Investigators," and under the headings of "Lie Detection Services" carried ABA's name and telephone number and under the heading "Polygraph Examiners & Service" directed the reader to "See Our Ad At Detective Agencies."

6. As a consequence of the appearance of the foregoing advertisements in the 1991-92 Southern Bell yellow page directory, petitioner filed the administrative complaint at issue in this proceeding, which charges respondents with violating the provisions of Section 493.6118(1)(g), Florida Statutes, by conducting or advertising the business of a private investigative agency after revocation of licensure. However, apart from demonstrating that respondents advertised as providing, for consideration, private investigations, there was no compelling proof that, as a consequence of such advertisements or otherwise, the respondents actually engaged in the business of furnishing private investigations. 1/

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sections 120.57(1) and 493.6121, Florida Statutes.

   
   

8. At issue in these proceeding is whether respondents' conduct violated the provisions of Section 493.6118(1)(g), Florida Statutes. In cases of this nature, petitioner bears the burden of proving its charges by clear and convincing evidence. See: Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). Here, petitioner has sustained its burden of proof.

   
   

9. Pertinent to this case, Section 493.6118, Florida Statutes, provides:

   
   

   1. The following constitute grounds for which disciplinary action specified in subsection (2) may be taken by the department against . . . any unlicensed person engaged in activities regulated under this chapter.

      * * *

      (g) Conducting activities under this chapter without a license or with a revoked or suspended license.

      
      

10. Among the activities regulated under chapter 493 are those of private investigative services, and licensure is required of any person or corporation which engages in business as a private investigative agency, as well as any individual who performs the services of a manager for such agency. Sections 493.6201, et seq., Florida Statutes.

    
    

11. A "private investigative agency" is defined by Section 493.6101(15), Florida Statutes, to mean:

    
    

    . . . any person who, for consideration, advertises as providing or is engaged in the business of furnishing private investigations. (Emphasis added)

    
    

    "Person" includes "any individual, firm, company, agency, organization, partnership, or corporation." Section 493.6101(2), Florida Statutes.

    
    

12. "Private investigation" is defined by Section 493.6101(17), Florida Statutes, to mean:

    
    

    (17) "Private investigation" means bodyguard services or the investigation by a person or

    persons for the purpose of obtaining information with reference to any of the following matters:

    1. Crime or wrongs done or threatened against the United States or any state or territory of the United States, when operating under express written authority of the governmental official responsible for authorizing such investigation.

    2. The identity, habits, conduct, movements, whereabouts, affiliations, associations, transactions, reputation, or character or any society, person, or group of persons.

    3. The credibility of witnesses or other persons.

    4. The whereabouts of missing persons, owners of abandoned property or escheated property, or heirs to estates.

    5. The location or recovery of lost or stolen property.

    6. The causes and origin of, or responsibility for, fires, libels, slanders, losses, accidents, damage, or injuries to real or personal property.

    7. The business of securing evidence to be used before investigating committees or boards of award or arbitration or in the trial of civil or criminal cases and the preparation therefor.

    
    

13. The advertisements placed by respondents in the 1991-92 Southern Bell yellow page directory included matters that constitute, by law, the business of private investigation. Consequently, respondents are guilty of operating a "private investigative agency," as that term is defined by Section 493.6106(15), Florida Statutes, and therefore in violation of Section 493.6118(1)(g), Florida Statutes.

    
    

14. In assessing the appropriate penalty in the instant case, the provisions of Section 493.6118(2), Florida Statutes, and the disciplinary guidelines, as well as the aggravating and mitigating circumstances, set forth in Rule 1C-3.113, Florida Administrative Code, have been considered. So considered, it is concluded that an appropriate penalty for respondents' violation of Section 493.6118(1)(g), Florida Statutes, is an administrative fine of $1,000.00.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered finding the respondents guilty

of violating Section 493.6118(1)(g), Florida Statutes, and imposing an administrative fine in the sum of $1,000.00 against respondents, jointly and severally.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 6th day of November 1992.

WILLIAM J. KENDRICK

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 6th day of November 1992.

ENDNOTE

1/ In concluding that ABA, through its chief executive officer, Mr. Lora, did advertise that it would, for consideration, provide private investigations, the testimony of Mr. Lora that he did not approve the display advertisement and did not intend for it to be printed as written has not been overlooked. Mr. Lora's testimony was not, however credible, and has been rejected as unpersuasive.

APPENDIX

Petitioner's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 1.

2 & 3. Addressed in paragraph 2.

4-13. Subordinate to the findings made in paragraphs 3-5.

14. Not relevant.

15 & 16. Rejected as a recitation of testimony and not a finding of fact.

17. Not relevant.

Respondents' proposed findings of fact are addressed as follows:

1. Addressed in paragraph 7.

2 & 3. Addressed in paragraph 6.

4-6. Addressed in paragraphs 4 and 5.

7 & 8. Rejected as recitation of testimony or argument and not a finding of fact. As to the conclusion drawn, rejected as contrary to the credible proof. See paragraphs 3 and 4, and endnote 1.

1. Rejected as contrary to the credible proof. See paragraphs 3 and 4, and endnote 1.

2. Addressed in paragraph 6.

3. Accepted, there being no proof to the contrary.

4. Addressed in paragraph 6.

5. Rejected as contrary to the credible proof. See paragraphs 4 and 5, and endnote 1.

COPIES FURNISHED:

Henri C. Cawthon, Esquire Assistant General Counsel Division of Licensing

The Capitol MS #4

Tallahassee, Florida 32399-0250

Gonzalo R. Dorta, P.A. Suite 801

1401 Brickell Avenue

Miami, Florida 33131

The Honorable Jim Smith Secretary of State

The Capitol

Tallahassee, Florida 32399-0250

Phyllis Slater General Counsel Department of State The Capitol, PL-02

Tallahassee, Florida 33299-0250

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 92-004315

Orders for Case No: 92-004315