STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GILBERT HEVIA, )

)

Petitioner, )

)

vs. ) CASE NO. 94-2511S

)

DEPARTMENT OF STATE, ) DIVISION OF LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on August 3, 1994, in Miami, Florida, before J. Stephen Menton, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: J. James Donnellan, III, Esquire

1900 Brickell Avenue

Miami, Florida 33129

For Respondent: Richard R. Whidden, Jr., Esquire

Assistant General Counsel Department of State Division of Licensing

The Capitol, Mail Station No. 4 Tallahassee, Florida 32399-0250

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner Gilbert Hevia's application for a Class "C" private investigator's license should be granted.

PRELIMINARY STATEMENT

By letter dated March 30, 1994, the Department of State, Division of Licensing (the "Department"), advised Petitioner, Gilbert Hevia, that his application for a Class "C" private investigator's license was denied because he had not provided sufficient information to establish that he was qualified for licensure by lawfully gained experience and training. The letter advised Petitioner of his right to a Chapter 120 administrative hearing to challenge the Department's decision. Petitioner timely requested a hearing and the matter was referred to the Division of Administrative Hearings which noticed and conducted the hearing.

Pursuant to Section 493.6203(4), Florida Statutes, an applicant for a Class "C" license must have two years of lawfully gained verifiable experience. At least one year of that experience must be directly in private investigative work

or work as a Class "CC" licensed intern. Such work experience or internship can also satisfy the second year of the experience requirement or that second year can be satisfied through college coursework related to criminal justice, criminology or law enforcement administration or successful completion of a law enforcement-related training program or any combination of these experiences.

As discussed in more detail in the Findings of Fact below, Petitioner submitted his application for a class "C" license to the Department in November 1993. In that application, the only experience listed by Petitioner was his employment under the sponsorship of Carlos A. Fernandez from March 1991 through September 1993.

In a letter dated February 24, 1994, the Department advised Petitioner that it had conducted an investigation regarding the information provided by Petitioner to support his claim that he had two years of lawfully gained experience as required by Section 493.6203(4)(a), Florida Statute. The February 24th letter states that the Department had been able to verify two months experience for the Petitioner from June 10, 1991 through August 1991, under the sponsorship of Rolando Baldomero. The letter indicates, however, that the Department was unable to verify any experience Petitioner claimed under the sponsorship of Carlos A. Fernandez. According to the letter, Mr. Fernandez returned the Department's verification form indicating that he no longer had any records of Petitioner's employment, could not verify the dates of employment and did not believe that Petitioner's employment included any investigative experience. When Petitioner was unable to provide any additional information to establish that his employment with Mr. Fernandez constituted lawfully gained experience for purposes of Section 493.6203(4)(a), Florida Statutes, the Department issued the March 30, 1994 denial letter.

At the hearing, Petitioner testified on his own behalf and presented the testimony of four other witnesses: Carlos Fernandez, who was called as an adverse witness; Armando Garcia; Roy Hevia; and Umberto Lopez. Petitioner did not offer any exhibits into evidence.

Respondent recalled Carlos Fernandez and also presented the testimony of Ivan Iberra. Respondent offered two exhibits into evidence, both of which were accepted without objection.

Prior to the commencement of the hearing, the parties apparently discussed and agreed that the sole issue to be decided was whether Petitioner's job duties while he was employed by Mr. Fernandez included sufficient active investigative experience to qualify under Section 493.6203(4), Florida Statutes. During the course of the hearing, a question arose as to the dates that the Petitioner was employed by Mr. Fernandez. In view of the conflicting evidence that was presented on this matter, the Department stated that it could no longer abide by the earlier stipulation (which had been entered at Petitioner's request) that the issue in this case be limited to the nature of the Petitioner's employment with Mr. Fernandez. Petitioner argued that he was prejudiced by this change in the Department's position during the hearing. Petitioner claimed that he had relied upon the understanding between counsel, which Respondent did not dispute, and had appeared at the hearing prepared to address only the issues related to his employment with Mr. Fernandez. Petitioner claimed that he was not able to present all of the pertinent evidence regarding other matters that he believes could qualify as acceptable experience under the statute.

Petitioner did testify that he had completed some college coursework and he also argued that his military experience qualified as active investigative

experience to meet the requirements of Section 493.6203(4). These issues are discussed in more detail in the Findings of Facts below. In addition, subsequent to the hearing, Petitioner submitted an affidavit from Peter Wm.

Ferrin, Petitioner's supervisor while he was in the military, and a certificate attesting to Petitioner's completion of a training course for a Class "D" license at Miami Dade Community College in September of 1990. No objection to these documents has been received from Respondent. Those documents have been reviewed and considered in accordance with Section 120.58(1), Florida Statutes.

No transcript of the hearing has been filed. Both parties have submitted proposed Recommended Orders in accordance with the schedule established at the conclusion of the hearing. A ruling on each of the parties' proposed findings of fact is included in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made:

1. On November 18, 1993, Petitioner submitted an application dated October 18, 1993, to the Department for a Class "C" private investigator's license.

   
   

2. Paragraph 8 of the application directed the applicant to list the sponsor and time period for any internship he had completed. Petitioner listed an internship under the sponsorship of Carlos A. Fernandez for the period from March 15, 1991 through September 17, 1993.

   
   

3. In a letter dated February 24, 1994, Cindi Merritt, a Service Representative for the Department's Bureau of License Issuance, advised Petitioner that the Department was investigating his experience for the Class "C" license. The letter confirmed that the Petitioner was entitled to two months credit for investigative experience under the sponsorship of Mr. Rolando Baldomero of Tri-Star Security Systems, Inc. ("Tri-Star") from June 10, 1991 through August 1991. The record in this proceeding does not reveal how the Department became aware of Petitioner's experience with Mr. Baldomero since that internship is not listed on Petitioner's application. Apparently, Petitioner presented some supplemental information to the Department to be considered. However, it is not clear when or how such information was presented. At the hearing, the Department agreed that Petitioner was entitled to two months credit for his internship with Tri-Star.

   
   

4. The February 24, 1994 letter states that the Department's service representative "asked Mr. Carlos A. Fernandez (who sponsored you after Mr. Baldomero) to complete the completion/termination of Sponsorship Form. Mr. Fernandez sent the completed form back on February 22, 1994. He indicated that he could not supply your dates of employment because he no longer had your records. He also stated 90 percent of your job duties entailed office work and that you did not successfully complete your internship with him."

   
   

5. As set forth in the Preliminary Statement above, counsel for the parties apparently discussed and agreed prior to the commencement of the hearing in this matter that the sole issue to be resolved in this case was whether Petitioner's employment with Mr. Fernandez's company, CAF Associates, Inc. ("CAF"), qualified as lawfully gained investigative experience for purposes of Section 493.6203, Florida Statutes. Mr. Fernandez testified at the hearing and claimed that Petitioner's job duties with his company were mainly clerical and

   only 10 percent of Petitioner's work was investigative in nature. This contention is rejected as not credible. Mr. Fernandez has apparently decided to try to thwart Petitioner's effort to obtain his own license. The more persuasive evidence established that, from at least March of 1992 through September of 1993, Petitioner was intricately involved in all aspects of the operations of CAF, which is a private investigative agency. At some point during this time period, Petitioner was made President of the company.

   
   

6. Respondent worked 45-60 hours a week for CAF. He did field work on his own and with subcontractors of the company. He was also actively involved in the administration of the business, but he only spent 5-15 hours per week on administrative duties.

   
   

7. In sum, the evidence conclusively established that Petitioner had qualifying experience under Mr. Fernandez for at least eighteen (18) months from March of 1992 through September of 1993. It appears that Petitioner actually began working for Mr. Fernandez prior to March of 1992, but the exact date his employment began has not been established in this proceeding. Furthermore, it is not clear that Petitioner's job duties prior to March of 1992 would qualify as experience for purposes of Section 493.6203, Florida Statutes.

   
   

8. As noted above, there is no dispute that Petitioner obtained two (2) months of qualifying experience with Tri-Star Security from June of 1991 through August of 1991. The evidence also conclusively established that Petitioner obtained qualifying experience with CAF from March, 1992 through September 1993. The evidence was not conclusive as to Petitioner's activities from August 1991 through March 1992. Thus, the evidence presented only established that Petitioner had twenty (20) months of qualifying experience.

   
   

9. At the hearing, Petitioner claimed that he had several other forms of experience that qualified for credit under Section 493.6023(4), Florida Statutes. Specifically, Petitioner contended that he had successfully completed some college coursework in criminal justice and had also completed some law enforcement training. These items are not listed on his application.

   
   

10. Petitioner testified that he completed two semesters of college work in "pre-law." No evidence was presented as to the specific courses taken, how many hours were completed or how such coursework should be translated into credit for purposes of the experience requirement of the statute.

    
    

11. Subsequent to the hearing, Petitioner submitted certain additional information which he contends supports his claim to experience arising from matters not previously considered by the Department. As discussed in more detail below, the evidence presented was not sufficient to reach a conclusion as to the amount of credit, if any, which should be afforded to Petitioner for these matters. However, in view of the confusion arising from the stipulation as to the scope of the hearing, these matters should be reviewed and considered by the Department prior to the entry of a Final Order in this case.

    
    

12. With his post-hearing submittal, Petitioner filed a Certificate of Completion awarded to him by the Southeast Florida Institute of Criminal Justice/Miami-Dade Community College. This information was apparently not provided to the Department when it initially reviewed Petitioner's application. The certificate indicates that Petitioner completed a course for "State Certified Security Training for "D" License" on September 13, 1990. Petitioner contends that this certificate evidences completion by Petitioner of "college coursework related to criminal justice, criminology, or law enforcement

    administration" or "law enforcement-related training received from any federal, state, county, or municipal agency" as described in Section 493.6203(4), Florida Statutes. The Department has not commented on whether this program can qualify under the statute. The evidence presented in this case was insufficient to conclude how much, if any, credit should be given to Petitioner for the completion of the training for the class "D" license.

    
    

13. During the hearing, Petitioner claimed that his work experience while a member of the United States Marine Corps should also be considered towards the experience necessary for licensing. The evidence established that Petitioner was stationed in the Persian Gulf from approximately November 1990, through April 1991. During that period, he was assigned to an intelligence officer who was responsible for investigations and hearings in a wide variety of matters. Petitioner claims his job duties included investigation and quasi-law enforcement duties. Petitioner did not list his military experience on his application. Section VI of the Class "C" license application states that "if military experience is to be used towards satisfaction of the experience requirement . . ., a copy of [the Respondent's] DD 214 must be provided with the application." The required form has not been provided so Petitioner's military experience has not been verified.

    
    

14. The Department contends that Petitioner deliberately submitted a misleading application that claimed he was employed by CAF from March 1991 through September 1993. The evidence presented in this case is insufficient to reach such a conclusion. There is obviously some confusion as to when Petitioner actually began working for CAF. This confusion has been exacerbated by Mr. Fernandez's claim that Petitioner's employment records have been lost. The more persuasive evidence in this case established that Mr. Fernandez has sought to keep Petitioner from obtaining a license.

    
    

15. Petitioner apparently thought there was little doubt that he met the experience requirement. His application failed to list several matters that could potentially be credited towards the total experience needed for licensure. The evidence in this case, however, is insufficient to conclude that the twenty- four (24) month total has been met.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

    
    

17. Petitioner has the burden of proof in this proceeding to establish that he has met all of the licensure requirements. See, Balino v. Dept. of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977); Dept. of Transportation v. J.W.C. Company, Inc., 396 So.2d 778, 786-789 (Fla. 1st DCA 1981).

    
    

18. To be eligible for a Class "C" Private Investigator license, an applicant must have two (2) years of lawfully gained private investigative experience. Section 493.6203(4), Florida Statutes, specifically states:

    
    

    An applicant for a Class "C" license shall have 2 years of lawfully gained, verifiable, full-time experience, or training in one, or

    a combination of more than one of the following:

    1. Private investigative work or related fields

       of work that provided equivalent experience or training.

    2. College coursework related to criminal justice, criminology, or law enforcement admini- stration, or successful completion of any law enforcement related training received from any federal, state, county, or municipal agency, expect that no more than 1 year may be used from this category.

    3. Work as a Class "CC" licensed intern.

       
       

19. During the approximately eighteen (18) months Petitioner was with CAF, Petitioner performed private investigative work which qualifies as full-time experience required for a Class "C" license. Petitioner was actively involved in all aspects of the business and actually managed and supervised much of the work done by the company. The administrative work performed by Petitioner was only part of his job. Therefore, the eighteen (18) months that Petitioner worked at CAF qualifies as lawfully obtained, verifiable, full-time experience as private investigator for purposes of Class "C" licensure.

    
    

20. Petitioner has also obtained two months of experience with Tri-Star Security Systems which is not disputed by the Department.

    
    

21. Petitioner did not provide the Department with any indication of his purported military experience prior to the formal hearing. The Department in its proposed recommended order points out that it has not had an opportunity to verify if Petitioner's experience with the military can qualify as providing equivalent training or experience as investigative work. While Petitioner may be entitled to some credit for his military experience, that conclusion cannot be reached based upon the record in this case.

    
    

22. In sum, the evidence in this case clearly established that Petitioner was entitled to credit for a total of twenty (20) months experience as a result of his employment with CAF and Tri-Star. However, the evidence was insufficient to establish that Petitioner had the remaining four (4) months experience necessary for licensure. There is some indication that Petitioner may be able to meet this remaining experience requirement through his college coursework, his Class "D" certification course and/or his military experience. Because of the confusion surrounding the nature and scope of this proceeding, Petitioner should be afforded an opportunity to present further documentation regarding these matters.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Petitioner has

gained eighteen (18) months of verifiable full-time experience or training as a result of his employment with CAF and two (2) months as a result of his employment with Tri-Star. Petitioner should be afforded an opportunity to produce additional evidence within sixty (60) days to establish that he has met the remaining four (4) months experience requirement.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 7th day of December 1994.

J. STEPHEN MENTON 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 7th day of December 1994.

APPENDIX TO RECOMMENDED ORDER

Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties.

Petitioner's Proposed Findings of Fact.

1. Addressed in the preliminary statement and in Findings of fact five

   (5).

2. Rejected as unnecessary. The evidence did not establish that Mr.

   Fernandez was a formal sponsor pursuant to Section 493.6116.

3. Rejected as argumentative.

4. Adopted in substance in Findings of Fact five (5), six (6) and seven

   (7).

   
   

   (7).

   
   

5. Adopted in substance in Findings of Fact five (5), six (6) and seven

   
   

6. Rejected as unnecessary.

7. Adopted in substance in Findings of Fact seven (7).

8. Addressed in the Preliminary Statement and in Findings of Fact eleven

   (11).

9. Subordinate to Findings of Fact twelve (12).

10. Subordinate to Findings of Fact thirteen (13).

Respondent's Proposed Findings of Fact.

1-2. Adopted in substance in the Preliminary Statement.

1. Adopted in substance in the Preliminary Statement.

2. Adopted in substance in Findings of Fact one (1) and two (2).

3. Subordinate to Findings of Fact two (2) and fourteen (14).

4. Adopted in substance in Findings of Fact thirteen (13).

5. Subordinate to Findings of Fact five (5), six (6), and seven (7).

6. Adopted in substance in Findings of Fact three (3) and seven (7).

COPIES FURNISHED:

Richard R. Whidden, Jr., Esquire Assistant General Counsel Department of State/Division of

Licensing

The Capitol, MS #4

Tallahassee, Florida 32399-0250

J. James Donnellan, III, Esquire 1900 Brickell Avenue

Miami, Florida 33129

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 32399-0250

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: 94-002511

Orders for Case No: 94-002511