STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, DIVISION ) OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NOS. 94-6750

) 95-1984S

KEITH P. ACUFF, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in these cases was held before Larry J. Sartin, Hearing Officer, on March 16, 1995.

APPEARANCES

For Petitioner: Michele Guy

Assistant General Counsel Department of State Division of Licensing

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

For Respondent: Jeffrey Grainger, Esquire

1722 University Boulevard South Jacksonville, Florida 32216

STATEMENT OF THE ISSUE

The issue in case number 94-6750 is whether Respondent's Class "A" private investigative agency license should be disciplined.

The issue in case number 95-1084S is whether Respondent's application for a Class "C" license should be denied.

PRELIMINARY STATEMENT

On October 20, 1994, Petitioner, the Department of State, Division of Licensing, entered an Administrative Complaint against Respondent, Keith P. Acuff, alleging violations of Sections 493.6118(1)(f) and (o), Florida Statutes. Mr. Acuff executed an Election Rights form requesting a formal administrative hearing to contest the allegations of the Administrative Complaint.

The request for hearing was filed with the Division of Administrative Hearings on December 2, 1994. The matter was designated case number 94-6750 and was assigned to the undersigned.

The final hearing was scheduled for March 16, 1995, by Notice for Hearing entered February 23, 1995.

On or about December 16, 1994, Petitioner issued a letter to Mr. Acuff informing him that his application for a Class "C" license had been denied. Mr. Acuff executed an Election Rights form requesting a formal administrative hearing to contest the denial of his application.

The request for hearing was filed with the Division of Administrative Hearings on March 6, 1995. The matter was designated case number 95-1084S and was assigned to the undersigned.

The case were consolidated by an Order Granting Motion to Consolidate entered March 15, 1995.

The final hearing was conducted by teleconferencing equipment. The parties were located in Jacksonville, Florida. The undersigned participated in the hearing through a video and audio link to the Jacksonville location from a hearing room in Tallahassee, Florida.

At the commencement of the final hearing, Petitioner dismissed the first count of the Administrative Complaint in case number 94-6750.

At the final hearing Petitioner presented the testimony of Janice Lambert, Norma Benvenuto and Cynthia Cartwright. Petitioner offered four exhibits, which were marked as "Petitioner's exhibits 1, 5, 6 and 7". The exhibits were accepted into evidence.

Mr. Acuff testified on his own behalf and offered 5 exhibits. Mr. Acuff's exhibits were marked as "Respondent's exhibits 1-5". Respondent's exhibits 2-5 were accepted into evidence. A ruling on Respondent's exhibit 1 was reserved. Respondent's exhibit 1 is hereby accepted into evidence.

A transcript of the final hearing was filed by letter dated March 29, 1995.

Proposed recommended orders were, therefore, required to be filed on or before April 10, 1995. Petitioner's proposed order was filed on April 10, 1995. A ruling on each proposed finding of fact proposed by Petitioner has made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

Respondent did not file a proposed order.

FINDINGS OF FACT

1. The Parties.

   
   

   1. Petitioner, the Department of State, Division of Licensing (hereinafter referred to as the "Division"), is responsible for, among other things, the licensing of privateinvestigators and private investigative agencies in the State of Florida. Chapter 493, Florida Statutes.

      
      

   2. In pertinent part, the Division may issue, pursuant to Section 493.611, Florida Statutes, the following classes of licenses:

      
      

      1. Class "C": private investigator;

      2. Class "CC": private investigator intern; and

      3. Class "A": private investigative agency.

   3. At all times relevant to this proceeding, Respondent, Keith P. Acuff, was licensed by the Division as a private investigator intern. Mr. Acuff holds a Class "CC" license from the Division.

      
      

   4. Mr. Acuff is also the owner of a private investigative agency known as Chatoyant Executive Protection and Investigative Services (hereinafter referred to as "Chatoyant"). Mr. Acuff holds a Class "A" license from the Division for Chatoyant.

      
      

2. License Requirements.

   
   

   1. In order to qualify for a Class "C" license, an individual must operate for a minimum of twenty-four months as a private investigator intern. Section 493.6203(4), Florida Statutes. During those twenty-four months, the intern must be sponsored and supervised by an individual holding a Class "C" license. See Sections 493.6101(11) and 493.6116, Florida Statutes.

      
      

   2. Anyone, regardless of licensure, may hold a Class "A" license. In order for the business to operate as a private investigative agency, however, the agency must be managed by a person holding a Class "C" license.

      
      

3. Mr. Acuff's Investigatory Experience.

   
   

   1. Mr. Acuff first received his Class "CC" license in July of 1990.

      
      

   2. In October of 1994 Mr. Acuff applied for a Class "C" license. See Petitioner's exhibit 1. The Division denied the application based upon its conclusion that Mr. Acuff had failed to verify that he had accrued twenty-four months of sponsored service as a private investigator intern.

      
      

   3. Mr. Acuff was first employed by Don Hubbard Investigations. Mr. Acuff had not claimed, nor does the evidence support a finding, that he is entitled to any time toward a Class "C" license for his employment with Don Hubbard Investigations.

      
      

   4. From the middle of September, 1990, until December, 1991, Mr. Acuff was employed by The Brown Group.

      
      

      1. Mr. Acuff's sponsor at The Brown Group was Steve Brown.

         
         

      2. The Division was able to verify from documentation submitted by Mr. Brown that Mr. Acuff was entitled to 12 months of investigatory work while employed at The Brown Group.

         
         

      3. Mr. Acuff failed to prove that he was entitled to more than 12 months credit for his employment with The Brown Group. Although Mr. Acuff testified that he believes he worked at least 15 months under Mr. Brown's sponsorship, he offered no proof from Mr. Brown to substantiate his testimony.

      
      

   5. From December 15, 1991, to February 15, 1992, Mr. Acuff was employed by Intercontinental Detective Agency.

      
      

      1. Mr. Acuff's sponsor at Intercontinental Detective Agency was Sean Mulholland.

      2. The Division was able to verify that Mr. Acuff had performed investigatory duties for Mr. Mulholland for 1 month.

      3. Mr. Acuff failed to prove that he was entitled to more than 1 month credit for his employment with Intercontinental Detective Agency. Mr. Acuff testified that he believes he worked at least 3 months under Mr. Mulholland's sponsorship but he offered no proof from Mr. Mulholland to substantiate his testimony. Mr. Acuff's testimony that he submitted a Sponsorship Term Addendum completed by Mr. Mulholland to the Division was not credible and, even if it had been credible, was insufficient to constitute substantiation from Mr. Mulholland of Mr. Acuff's work for him.

      
      

   6. Mr. Acuff's next investigatory work was for MG Detective Agency.

      
      

      1. Mr. Acuff's sponsor at MG Detective Agency was Michael G. Hatcher.

         
         

      2. Mr. Hatcher agreed to sponsor Mr. Acuff by executing a Letter of Intent to Sponsor Private Investigator Intern on October 27, 1992. See Respondent's exhibit 2. Cynthia L. Cartwright signed the form agreeing to be an alternative sponsor.

         
         

      3. Mr. Acuff did not list any time under Mr. Hatcher's sponsorship for credit on his application for Class "C" license. See Petitioner's exhibit 1. The Division was not able to verify that Mr. Acuff had performed any investigatory duties for Mr. Hatcher.

         
         

      4. Mr. Acuff failed to prove that he was entitled to any credit for his employment with MG Detective Agency. Mr. Acuff testified that he believes he worked at least 3 months under Mr. Hatcher's sponsorship but he offered no proof from Mr. Hatcher to substantiate his testimony.

      
      

   7. Mr. Acuff claimed on his application for Class "C" license that, upon leaving MG Detective Agency, he worked for Chatoyant from June of 1993 until August 1994.

      
      

      1. Mr. Acuff claimed that he was sponsored by Ms. Cartwright while employed for Chatoyant.

         
         

      2. Mr. Acuff also claimed that he performed investigatory work under Ms. Cartwright's sponsorship during the period he worked for Chatoyant for at least

         3 and 1/2 months.

         
         

      3. Initially the Division planned to issue Mr. Acuff a Class "C" license. The Division concluded that Mr. Acuff was entitled to at least 11 months of sponsored investigatory work under Ms. Cartwright's sponsorship. Before the Class "C" license was issued to Mr. Acuff, however, the Division concluded that Mr. Acuff was not entitled to any sponsored time under Ms. Cartwright's sponsorship.

         
         

      4. The evidence, as discussed, infra, proved that Mr. Acuff is not entitled to any credit for work performed under Ms. Cartwright's sponsorship.

      
      

   8. Based upon the foregoing, Mr. Acuff provided verification that he had

      13 months of sponsored investigatory service. Mr. Acuff is, therefore, 11 months shy of the 24-months of experience required for a Class "C" license.

      
      

4. Mr. Acuff's Association with Ms. Cartwright.

   
   

   1. Mr. Acuff met Ms. Cartwright in late 1992 when he was employed briefly at MG Detective Agency.

   2. Ms. Cartwright has held a Class "C" license since 1991.

      
      

   3. Upon Mr. Acuff's termination of employment at MG Detective Agency, Ms. Cartwright was told by Mr. Acuff and a mutual friend, Carolyn Barber, that he only needed 2 or 3 months to complete the 2 years of internship required for a Class "C" license. Ms. Cartwright was asked if she would sponsor Mr. Acuff and act as the manager of Chatoyant for 2 or 3 months.

      
      

   4. Ms. Cartwright agreed to Mr. Acuff's request. She did so because Ms. Barber had asked her to and she felt sorry for Mr. Acuff because he had been terminated by MG Detective Agency only needing, Ms. Cartwright thought, 2 or 3 more months of sponsorship.

      
      

   5. Ms. Cartwright signed a Letter of Intent to Sponsor. The form she signed was blank. The Letter of Intent to Sponsor was subsequently completed, dated April 14, 1993 and filed with the Division. Ms. Cartwright admits she signed a blank form even though she understands that it was improper for her to do so.

      
      

   6. After agreeing to sponsor Mr. Acuff and act as the manager of Chatoyant, Ms. Cartwright changed her mind. She telephoned the Division's offices in Tallahassee in August of 1993 to ask how she could have her name removed as manager of Chatoyant. Ms. Cartwright was informed that her name did not appear as manager of Chatoyant.

      
      

   7. In the fall of 1993 Mr. Acuff asked Ms. Cartwright to sign a form terminating her position with Chatoyant. Ms. Cartwright told Mr. Acuff she did not see why she needed to sign a form based upon what she had been told during her conversation with the Division. When Mr. Acuff suggested that the Division might have made a mistake, Ms. Cartwright agreed to sign the form.

      
      

   8. In January or February of 1994 Ms. Cartwright signed a blank copy of a Termination/Completion of Sponsorship for Private Investigator Intern form. She gave the signed form to Ms. Barber. This form was ultimately completed, Ms. Cartwright's signature was notarized by Mr. Acuff's girlfriend, the form was dated August 30, 1994 and was then filed with the Division as part of Mr. Acuff's application for licensure. See Petitioner's exhibit 6.

      
      

   9. It was represented on Petitioner's exhibit 6 that Ms. Cartwright had sponsored Mr. Acuff from June 3, 1993 to August 26, 1994.

      
      

   10. An Employee Action Report was also filed with the Division. Petitioner's exhibit 5. The form indicates that Ms. Cartwright had resigned as manager of Chatoyant as of August 30, 1994. Ms. Cartwright did not sign the form.

       
       

   11. On October 5, 1994, Ms. Cartwright executed a Termination/Completion of Sponsorship for Private Investigator Intern form attesting that "I did not sponsor Patrick Acuff to my knowledge. I was not aware of Intent to Sponsor." Petitioner's exhibit 7.

       
       

   12. Ms. Cartwright did not sponsor any investigatory work by Mr. Acuff or act as the manager of Chatoyant.

       
       

5. The Administrative Complaint.

   1. During the summer of 1994, the Division's office in Jacksonville received a letter questioning how Mr. Acuff could be working for Chatoyant without an appropriate license or manager. Ms. Norma Benvenuto, an investigator for the Division, checked the Division's records and determined that there was no sponsor listed for Chatoyant.

      
      

   2. Ms. Benvenuto spoke with Mr. Acuff and asked that he come to her office. Mr. Acuff complied. Mr. Acuff informed Ms. Benvenuto that Ms. Cartwright was the sponsor of Chatoyant. When asked for documentation, Mr. Acuff was only able to produce a blank form signed by Ms. Cartwright.

      
      

   3. Ms. Benvenuto asked Mr. Acuff to bring any documentation that would support his assertion that Ms. Cartwright was the manager of Chatoyant and that they had met to discuss his work during her sponsorship of him. Ms. Benvenuto telephoned Mr. Acuff more than once to remind him to bring the documentation. Mr. Acuff failed to provide any such documentation.

      
      

   4. Ms. Benvenuto contacted Ms. Cartwright in an effort to verify Mr. Acuff's assertions. Ms. Cartwright denied ever sponsoring Mr. Acuff or every actually performing any duties as the manager of Chatoyant. Ms. Cartwright also admitted that she had initially agreed to sponsor Mr. Acuff but had subsequently changed her mind.

      
      

   5. On October 20, 1995, the Division entered an Administrative Complaint against Mr. Acuff.

      
      

6. The Denial of Mr. Acuff's Application for a Class "C" License.

1. By letter dated December 16, 1994, the Division notified Mr. Acuff that his application for a Class "C" license was denied.

   
   

   CONCLUSIONS OF LAW

   
   

   1. Jurisdiction.

      
      

2. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1993).

   
   

   1. Burden of Proof.

      
      

3. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue of the proceeding. Antel v. Department of Professional Regulation, 522 So.2d 1056 (Fla. 5th DCA 1988); Department of Transportation v. J.W.C. Co., Inc. 396 So.2d 778 (Fla. 1st DCA 1981); and Balino v. Department of Health and Rehabilitative Services, 348 So.2d

   249 (Fla. 1st DCA 1977).

   
   

4. In this proceeding, the Division has the ultimate burden to establish that Mr. Acuff committed the violations alleged in Counts I and II of the Administrative Complaint entered by the Division and heard in case number 94- 6750. The Division may also have the burden of proof in case number 95-1084S. See Osborne Stern and Company v. Department of Banking and Finance, 19 F.L.W. D882 (Fla. 1st DCA 1994). Whether the Division or Mr. Acuff had the ultimate

   burden of proof in case number 95-1084S need not be decided for, if the burden was on the Division, it met it, and if the burden was on Mr. Acuff, he failed to meet it.

   
   

   1. The Division's Charges.

      
      

5. Petitioner is charged with authority to impose discipline against persons licensed pursuant to Chapter 493, Florida Statutes. Section 493.6118, Florida Statutes.

   
   

6. In this proceeding, Petitioner has alleged the following grounds for disciplinary action against Mr. Acuff:

   
   

   Count II

   
   

   On or about August 30, 1994, in Duval County, Florida, Respondent committed misconduct in the practice of regulated activities under Chapter 493, Florida Statutes, in that Respondent submitted to the Division of Licensing a Termination/Completion of Sponsor- ship form alleging investigative activity conducted by Respondent Acuff under the direc- tion and control of a sponsor who had no knowledge of the activity nor the completion/ submission of the form. Respondent is in violation of Section 493.6118(1)(f), Florida Statutes.

   
   

   Count III

   
   

   On or about August 30, 1994, in Duval County, Florida, Respondent committed misconduct in the practice of regulated activities under

   Chapter 493, Florida Statutes, in that Respondent submitted to the Division of Licensing an Employee Action Report alleging sponsor termination with sponsor having no knowledge

   of the completion or submission of the form. Respondent violated Section 493.6118(1)(f), Florida Statutes.

   
   

7. The Division also denied Mr. Acuff's application for a Class "C" license based upon the same allegations quoted, supra.

   
   

   1. Section 493.6118, Florida Statutes.

      
      

8. Section 493.6118(1)(f), Florida Statutes, provides, in pertinent part:

   
   

   1. The following constitute grounds for which disciplinary action specified in sub- section (2) may be taken by the department against any licensee, agency, or applicant regulated by this chapter, or any unlicensed person engaged in activities regulated under this chapter.

      * * *

      (f) Proof that the applicant or licensee is guilty of fraud or deceit, or of negligence, incompetency, or misconduct, in the practice

      of the activities regulated under this chapter.

      * * *

      
      

      1. Mr. Acuff's Violations.

         
         

9. The evidence in this case proved that Mr. Acuff submitted a Termination/Completion of Sponsorship for Private Investigator Intern form, Petitioner's exhibit 6, and an Employee Action Report, Petitioner's exhibit 5, to the Division. These forms were submitted to the Division to substantiate Mr. Acuff's claim in support of his application for a Class "C" license that he had been sponsored by Ms. Cartwright.

   
   

10. Mr. Acuff submitted Petitioner's exhibits 5 and 6 knowing that Ms. Cartwright had not performed the necessary duties to sponsor him or to substantiate her alleged management of Chatoyant.

    
    

11. Mr. Acuff's actions constitute a violation of Section 493.6118(1)(f), Florida Statutes. In particular, Mr. Acuff's actions constitute "misconduct" in the practice of the activities regulated under Chapter 493, Florida Statutes. "Misconduct" has been defined as any acts "which offend generally accepted standards of conduct within the profession, thereby jeopardizing the interest of the profession and the public it serves." Richardson v. Florida State Board of Dentistry, 326 So.2d 231, 233 (Fla. 1st DCA 1976). The submission of official Division forms completed without the knowledge of the a sponsor and submitted false information to the Division is such an act.

    
    

    1. Action of Mr. Acuff's License Application and Penalty.

    
    

12. Section 493.6118(2), Florida Statutes, provides, in pertinent part, the following disciplinary action for a violation of Section 493.6118(1), Florida Statutes:

    
    

    1. When the department finds any violation of subsection (1), it may do one or more of the following:

       1. Deny an initial or renewal application for license.

       2. Issue a reprimand.

       3. Impose an administrative find not to

          exceed $1,000 for every count or separate offense.

       4. Place the licensee on probation for a period of time and subject to such conditions as the department may specify.

       5. Suspend or revoke a license.

    
    

13. Pursuant to the foregoing, Mr. Acuff's application for Class "C" license was properly denied by the Department. Additionally, Mr. Acuff does not meet the requirements of Section 493.6203(4), Florida Statutes, that he have 24- months of verified experience to qualify him for a Class "C" license.

    
    

14. Additionally, pursuant to Rule 1C-3.113(1)(b)20, Florida Administrative Code, Mr. Acuff may be fined $1,000.00.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Division sustaining Counts

II and III of the Administrative Complaint against Mr. Acuff in case number 94- 6750, requiring that he pay a fine of $1,000.00 and denying the application for a Class "C" license filed by Mr. Acuff or about August 30, 1994 in case number 95-1084S.

DONE AND ENTERED this 28th day of April, 1995, in Tallahassee Florida.

LARRY J. SARTIN, 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 28th day of April, 1995.

APPENDIX

The Division has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Mr. Acuff did not file a proposed order.

The Division's Proposed Findings of Fact

1 Hereby accepted. See 4-5. 2-3 Hereby accepted.

1. Accepted in 22.

2. Accepted in 22, 28 and hereby accepted.

3. Hereby accepted.

4. Accepted in 25 and hereby accepted.

5. Accepted in 22 and hereby accepted.

6. Accepted in 17 and hereby accepted.

7. See 26 and hereby accepted.

8. Hereby accepted.

9. Accepted in 16 and hereby accepted.

10. Accepted in 14.

11. Accepted in 13,

COPIES FURNISHED:

Michele Guy

Assistant General Counsel Department of State Division of Licensing

The Capitol, MS #4

Tallahassee, Florida 32399-0250

Jeffrey Grainger, Esquire

1722 University Boulevard South Jacksonville, Florida 32216

Honorable Sandra B. Mortham Department of State

The Capitol

Tallahassee, Florida 32399

Don Bell

Department of State The Capitol

Tallahassee, Florida 32399

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: 94-006750

Orders for Case No: 94-006750