STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, DIVISION ) OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 93-0334

) SOUTH FLORIDA DETECTIVE BUREAU, )

JAMIE J. POLERO, President, )

)

Respondent. )

) DEPARTMENT OF STATE, DIVISION ) OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 93-0335

)

WILLIAM POLERO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held in this case before Errol H. Powell, a duly designated Hearing Officer of the Division of Administrative Hearings, on April 28, 1993, in Miami, Florida.

APPEARANCES

For Petitioner: Henri C. Cawthon, Esquire

Department of State Division of Licensing

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

For Respondents: No appearance

STATEMENT OF THE ISSUE

The ultimate issue for determination at final hearing was whether Respondents committed the offenses set forth in the administrative complaints, and if so, what disciplinary action should be taken against Respondents' licenses.

PRELIMINARY STATEMENT

On December 16, 1992, the Department of State, Division of Licensing (Petitioner), filed an administrative complaint against South Florida Detective Bureau, Inc. (Respondent Bureau), Jamie J. Polero (Respondent J. Polero), alleging that they had violated Subsections 493.6118(1)(f) and (n), Florida Statutes, by reporting false information to a client, through the conduct of reporting to a client that an investigation had been conducted, when in fact it had not, and by employing an unlicensed person to perform private investigative services. On December 14, 1992, Petitioner filed an administrative complaint against William Polero (Respondent W. Polero) alleging that he had violated Subsection 493.6118(1)(f) and (k), Florida Statutes, by conducting an investigation without a license, failing to research public records and reporting false information to a client, and by knowingly violating a cease and desist order issued by Petitioner, through the conduct of performing private investigative services without a license.

Respondents disputed the allegations of fact and requested a formal hearing. The matter was referred to the Division of Administrative Hearings for assignment of a Hearing Officer. A formal hearing was scheduled on April 28, 1993, pursuant to Notice of Hearing.

At the formal hearing, Petitioner presented the testimony of four witnesses and entered 14 exhibits into evidence. There was no appearance by or on behalf of the Respondents. 1/

A transcript of the formal hearing was ordered. Petitioner submitted proposed findings of fact and conclusions of law. All proposed findings of fact are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Frank Wallberg was going through a divorce and wanted a background investigation on his wife's attorney. On June 19, 1992, he went to the office of South Florida Detective Bureau, Inc. (Respondent Bureau) and specifically requested the services of William Polero (Respondent W. Polero) who he had met a few years prior to this. Respondent Bureau's secretary contacted Respondent W. Polero by telephone, and Wallberg explained to him what he wanted. Respondent

   W. Polero agreed to perform the background investigation on the attorney, requiring Wallberg to first pay a $1,500 retainer which he was to bring to Respondent W. Polero's home, approximately two blocks from Respondent Bureau's office.

   
   

2. As agreed, Wallberg met Respondent W. Polero at his home and gave him a check for $1,500 as a retainer, made payable to Respondent Bureau. For the

   $1,500 Respondent W. Polero indicated that a complete written report on the attorney could be performed. Wallberg provided Respondent W. Polero with the attorney's complete name, address and telephone number. Respondent W. Polero made several telephone calls while Wallberg was at his home, attempting to obtain information on the attorney but all were unsuccessful.

   
   

3. Approximately two days later, Wallberg contacted Respondent W. Polero inquiring about the progress of the investigation. Respondent W. Polero indicated that he was waiting for responses from inquiries and to contact him again that following Friday.

4. Wallberg called back as directed. Respondent W. Polero indicated that after searching public records and court records and contacting The Florida Bar and other attorneys, the attorney had nothing irregular in his background.

   
   

5. Feeling that he had not gotten his money worth, Wallberg questioned the cost of the investigation. Respondent W. Polero responded that there was nothing else to report, so there was nothing to report in writing and that the cost of the investigation was $1,500.

   
   

6. By that time, the $1,500 check had been cashed.

   
   

7. Being very disappointed, on or about July 11, 1992, Wallberg contacted another investigative agency, the Wackenhut Corporation, and obtained their services. He provided Wackenhut's investigator, John Rose, with the same information that he had provided Respondent W. Polero, i.e., the attorney's name, address and telephone number. On July 13, 1992, Rose began his investigation.

   
   

8. By July 15, 1992, Rose had completed his investigation and prepared an

   18 page written report with numerous exhibits attached. His report reflected the numerous sources he utilized, which included researching public records at the Dade County Courthouse, records maintained by the State of Florida, Department of Highway Safety and Motor Vehicles, including vehicle and driver license information, criminal records maintained by Dade County Corrections and Rehabilitation Department and public records of The Florida Bar. Through these sources, Rose was able to obtain a plethora of information on the attorney, including a history of federal and state tax liens having been filed against the attorney's property, criminal arrests and convictions, and disciplinary action against the attorney by The Florida Bar, with the specifics thereon.

   
   

9. With his written report, Rose submitted an itemized invoice dated July 15, 1992, for his services, totaling $650.30. The invoice reflected that he had expended 10 hours on the investigation (generally outlining what was done), at a charge of $60 an hour, equalling $600 for the time, and that there were $50.30 in additional costs ($27 document copies, $2 for parking and $21.30 for mileage).

   
   

10. By letter dated September 23, 1992, which was mailed and faxed, Wallberg informed Respondents that he had obtained the services of Wackenhut Corporation and requested that they provide Wackenhut with all the information in their file when requested by Wackenhut. By fax transmission on that same date, Jamie Polero (Respondent J. Polero), President of Respondent Bureau and the son of Respondent W. Polero, responded indicating, among other things, that there was no new or different information from what Respondent W. Polero had provided him and that since Wallberg had not contacted them for almost three months, he had assumed that Wallberg did not wish to continue the investigation. This was the first time that Wallberg had had any contact with Respondent J. Polero.

    
    

11. By letter dated September 24, 1992, which was mailed and faxed, Wallberg informed Respondent J. Polero of his dissatisfaction with the investigation performed by Respondent Bureau and requested a $1,350 refund of the $1,500 within 24 hours. Wallberg never received any refund.

    
    

12. Several communications between Wallberg and Respondent J. Polero failed to resolve the dispute. Finally, Wallberg contacted State of Florida, Department of State, Division of Licensing (Petitioner) and filed a complaint.

13. Respondent Bureau's investigative file for Wallberg consisted of nine pages, most of which were communications back and forth with Wallberg. Approximately eight hours were expended on Wallberg's case. Even though little investigative work was done, Respondent J. Polero admitted that most of it was performed by Respondent W. Polero, and not by himself.

    
    

14. The investigative work performed by Respondents failed to meet industry standards in that the minimum investigation was not conducted, public records were not properly researched and false information was provided to Wallberg, their client.

    
    

15. At all times material hereto, Respondent W. Polero was unlicensed.

    
    

16. At all times material hereto, Respondent J. Polero was a licensed private investigator (Class "C" license) and a licensed recovery agent (repossessor) (Class "E" license). Also, at all times material hereto, Respondent Bureau was a licensed private investigative agency (Class "A" license) and a licensed recovery (repossession) agency (Class "R" license).

    
    

17. No prior disciplinary action has been taken against Respondent J. Polero.

    
    

18. Both Respondent Bureau and Respondent W. Polero have prior disciplinary history. In 1989, Petitioner filed administrative complaints against both Respondents for, among other things, unlicensed activity which resulted in the parties stipulating to a penalty of an administrative fine totalling $1,800, 2/ which was paid on or about August 30, 1989. 3/ Additionally, in 1989, Petitioner filed an administrative complaint against Respondent Bureau and in 1990 against Respondent W. Polero for unlicensed activity which resulted in the parties stipulating to an administrative fine of

    $2,000 4/ which was paid by Respondent Bureau on or about May 25, 1990. 5/

    As a related issue to the 1990 complaint, on April 27, 1990, Petitioner issued a Notice to Cease and Desist to Respondent W. Polero's unlicensed activity-- performing private investigative work without a license and managing a private investigative agency without a license--and served him on May 8, 1990.

    
    

    CONCLUSIONS OF LAW

    
    

19. 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. The parties were duly noticed for the formal hearing.

    
    

20. License revocation proceedings are penal in nature. The burden of proof is on the Petitioner to establish the truthfulness of the allegations of the administrative complaints by clear and convincing evidence. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977); Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

21. Petitioner has shown by clear and convincing evidence that Respondent Bureau and Respondent J. Polero violated Subsections 493.6118(1)(f) and (n), Florida Statutes, by reporting false information to a client, through the conduct of reporting to a client that an investigation had been conducted, when in fact it had not, and by employing an unlicensed person to perform private investigative services. Further, Petitioner has also shown by clear and convincing evidence that Respondent W. Polero violated Subsection 493.6118(1)(f)

    and (k), Florida Statutes, by conducting an investigation without a license, failing to research public records and reporting false information to a client, and by knowingly violating a cease and desist order issued by Petitioner, through the conduct of performing private investigative services without a license.

    
    

22. As to disciplinary action for the violations committed, Subsection 493.6118(2), Florida Statutes, provides that a licensee may be reprimanded, or placed on probation, that the license may be suspended or revoked, or that an administrative fine of not more than $1,000 per count or separate offense may be imposed; or a combination thereof.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of State, Division of Licensing enter a

Final Order:

1. Suspending South Florida Detective Bureau, Inc.'s Class "A" private investigative agency license and Class "R" recovery (repossession) agency license for one year and imposing an administrative fine of $2,000.

   
   

2. Suspending Jamie J. Polero's Class "C" private investigator license and Class "E" recovery agent (repossessor) license for one year 6/ and imposing an administrative fine of $2,000.

   
   

3. Imposing an administrative fine of $2,000 against William Polero.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of March 1994.

ERROL H. POWELL

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 21st day of March 1994.

ENDNOTES

1/ The formal hearing began 30 minutes beyond the time scheduled for it to commence to afford the Respondents additional time to appear due to their pro se status; however, neither Respondent appeared. At the beginning of the hearing, Petitioner's counsel represented to the Hearing Officer on the record that he had spoken by telephone to Respondent J. Polero, President of Respondent Bureau and son of Respondent W. Polero, that morning. Respondent J. Polero informed him (Petitioner's counsel) that he was aware of the date and time of the hearing but that he would seek a continuance of the hearing and that he was attempting

to contact his attorney. The formal hearing adjourned, without an appearance by either of the Respondents or anyone on their behalf, or the receipt of any communication from either of the Respondents or on their behalf.

2/ An administrative fine of $850 regarding the complaint against Respondent W. Polero and $950 regarding the complaint against Respondent Bureau.

3/ Even though Petitioner's Composite Exhibit #12 contained a copy of only one of the complaints, an inference is made from a review of the entire Exhibit that another complaint was filed, which included allegations of unlicensed activity.

4/ An administrative fine of $1,000 each.

5/ Even though Petitioner's Composite Exhibit #13 contained a copy of only one of the complaints, an inference is made from a review of the entire exhibit that another complaint was filed, which included allegations of unlicensed activity.

6/ Petitioner presented no evidence and made no recommendation regarding a Class "G" statewide firearm license held by Respondent J. Polero even though the administrative complaint made reference to such a license.

APPENDIX

The following rulings are made on the proposed findings of fact: Petitioner's Proposed Findings of Fact

1-19, 22-24, and 26. Accepted in substance.

1. Partially accepted in substance; and partially rejected regarding the Class "G" license. *

2. Partially accepted in substance; and partially rejected regarding William Polero's ineligibility. *

25. Partially accepted in substance; and partially rejected regarding the stipulation and settlement. *

* Rejected as subordinate to the issues herein, irrelevant to the issues herein, unnecessary, contrary to the evidence, recitation of testimony, argument, or conclusions of law.

COPIES FURNISHED:

Henri C. Cawthon, Esquire Department of State Division of Licensing

The Capitol, MS #4

Tallahassee, Florida 32399-0250

Mr. William Polero Mr. Jamie J. Polero

1401 Northeast 117th Street Miami, Florida 33161

The Honorable Jim Smith Secretary of State

The Capitol

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: 93-000334

Orders for Case No: 93-000334