STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 95-1564

) LIBBY INVESTIGATIONS, MARVIN W. ) LIBBY, OWNER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, Don W. Davis, a duly designated Hearing Officer of the Division of Administrative Hearings, held a formal hearing in the above-styled case on March 4 through 5, 1996, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Douglas D. Sunshine

Assistant General Counsel Department of State Division of Licensing

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

For Respondent: Theodore E. Mack

Attorney at Law Cobb, Cole and Bell

131 North Gadsden Street Tallahassee, Florida 32301

STATEMENT OF ISSUE

The issue for determination is whether Respondent committed violations of provision of Chapter 493, Florida Statutes, sufficient to justify the imposition of disciplinary action against Respondent's Class "A" Private Investigative Agency License; his Class "C" Private Investigator License; his Class "D" Security Officer License; his Class "G" Statewide Firearm License; and his Class "M" Private Investigative/Security Agency Manager License.

PRELIMINARY STATEMENT

By Administrative Complaint dated February 17, 1995, Petitioner's representative informed Respondent of proposed disciplinary action with regard to Respondent's licenses.

Respondent subsequently requested a formal administrative hearing and the matter was transferred to the Division of Administrative Hearings to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

On October 31, 1995, Petitioner filed an Amended Administrative Complaint in response to the undersigned's order granting Respondent's motion for a more definite statement of those facts deemed by Petitioner to constitute the basis of alleged violations by Respondent.

At the final hearing, the parties presented two joint exhibits. Petitioner presented the testimony of four witnesses and seven other exhibits. Respondent presented testimony of four exhibits. Petitioner presented the testimony of four witnesses and seven other exhibits. Respondent presented testimony of four witnesses, including himself, and two other exhibits. A transcript of the final hearing was filed with the Division of Administrative Hearings on March 12, 1996.

The parties requested and were granted leave to file posthearing submissions more than 10 days after the filing of the transcript, and in accordance with Rule 60Q-2.031, Florida Administrative Code.

Proposed findings of fact submitted by the parties are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Respondent is a licensed private investigator who holds a Class "A" Private Investigative Agency License, Number A93-00352, effective October 11, 1993; a Class "C" Private Investigator License, Number C93-00189, effective March 8, 1993; a Class "D" Security Officer License, Number D93-10584, effective July 15, 1993; a Class "G" Statewide Firearm License, Number G93-01133; and a Class "M" Private Investigative/Security Agency Manager License, Number M93- 00074, effective July 15, 1993.

   
   

2. Prior to licensure as a private investigator, Respondent worked as a service manager at an automobile dealership where he met and agreed to go to work for Elizabeth Maxwell at her private investigator agency.

   
   

   Class "C" Licensure

   
   

3. On March 2, 1993 and prior to the beginning of Respondent's employment with Maxwell, Petitioner received a completed application from Respondent for a Class "C" Private Investigator License.

   
   

4. In that application, Respondent indicated that attached "army records" were submitted in verification of stated employment with the United States Army as a military police investigator. Attachments submitted with the application included three training certificates from the Army, an Honorable Discharge certificate from the Army, and a certificate of release or discharge from active duty commonly known as a DD Form 214 (DD-214).

   
   

5. Among the three training certificates attached to the application was a "Certificate Of Training" attesting to Respondent's successful completion of "Military Policy School-MOS 95B." Notably, the name of Fort Gordon, GA., is recited on the certificate as "Ft. Gordon" and the date of the certificate's issuance (November 1973) predates the form's printed adoption date of October 1, 1978. Due to lack of corroboration by other credible evidence inclusive of

   Respondent's official service records from the National Archives and Records Administration, this document is determined to be bogus.

   
   

6. Another certificate in Respondent's application package for the Class "C" Private Investigator License was dated June 10, 1977, and purported to document Respondent's successful completion of a course of "Military Police Investigation." This certificate also predates the form's issuance of October 1, 1978. In view of the lack of corroboration by other credible evidence inclusive of Respondent's official service records from the National Archives and Records Administration, this document is deemed fraudulent.

   
   

7. During subsequent investigation, Respondent told Petitioner's investigator on October 26, 1994, that the documents submitted with the application package for the Class "C" Private Investigator License were genuine. On October 27, 1994, he requested another interview with Petitioner's investigator and during that interview recanted his claim that the documents were authentic. Instead, he asserted he had not submitted those forms. He feigned a lack of knowledge of their inclusion with his application. Due to the inconsistency of his statements to Petitioner's investigator and his demeanor while testifying Respondent's testimony that he did not include these forms in his application package for a Class "C" Private Investigator License is not credited.

   
   

8. A third document included with the application package for a Class "C" Private Investigator License is another certificate dated and given at Fort Hood, Texas, on October 20, 1981, purporting to document the successful completion by Respondent of a course in drug recognition and identification. Respondent was stationed in Germany during the period of August 1979 until April 1982, and in the absence of credible corroborative testimony the third certificate is also found to be fraudulent.

   
   

9. In the application package for a Class "C" Private Investigator License, Respondent also swore that he was employed by the U. S. Army and had devoted 100 percent of his time to military police investigations in Nuremberg, Germany during the period of November 1972 until February 1978. These facts were misrepresented by Respondent. As established by his official service records from the National Archives and Records Administration, Respondent left Germany in February of 1976, returned there in 1979 and left again in 1982.

   
   

10. Although Respondent also swore in the application package for a Class "C" Private Investigator License that he was employed as a private investigator with Harrison's Detective agency from March 1976 until November 1978, the evidence establishes that he, in fact, is unsure of even the name of his alleged Texas employer. Further, at final hearing, he offered no credible corroborative evidence of his Texas experience. Based upon the testimony of Petitioner's investigator that he was unable to find any one who had employed Respondent in the capacity of investigator in Texas; the stipulation of the parties that no company by the name of the Harrison Detective Agency is currently licensed in Texas; and Respondent's official service records from the National Archives and Records Administration which establish his presence at Fort Ben Harrison, Indianapolis, Indiana, as a recruiter in May, 1978, the affirmation of Respondent of employment with Harrison Detective Agency in Texas is determined to be false.

    
    

11. Also, by affirmation in the application package for a Class "C" Private Investigator License, Respondent claimed that he had been licensed in Texas from 1976 through 1978, as an investigator, contrary to the admitted facts

    of the parties that Respondent has not been licensed in any capacity by that state's licensing body, the Texas Board of Private Investigators and Private Security Agencies.

    
    

12. In the course of initially reviewing Respondent's application, personnel in Petitioner's verification section telephoned Respondent for further information regarding investigative experience. Respondent told Petitioner's representative, Lois Sholtz, that he had additional investigative experience in the insurance industry with Conger Life Insurance Company. Respondent contacted Lance Locke, a Conger Life Insurance Company employee in Pensacola, Florida. Locke then faxed a letter to Sholtz on Conger Life Insurance Company stationary confirming that Respondent "did some investigative work for me" from June, 1985 through October 1987. In reliance upon this certification of additional investigative experience, Sholtz approved Respondent is not and has never been employed in any capacity by Conger Life Insurance Company.

    
    

    Class "M" Licensure

    
    

13. On June 24, 1993, Petitioner's representatives received a completed application from Respondent for a Class "M" Private Investigative/Security Agency Manager License.

    
    

14. In Section XIII, Affidavit of Experience, of the application, Respondent indicated that his DD-214 and diplomas attached to the application could verify his employment with the U. S. Army as a military police investigator. These were the same documents submitted previously with Respondent's application for a Class "C" licensure. As previously noted above in paragraph 5., the "Certificate Of Training" attesting to Respondent's successful completion of "Military Police School-MOS 95B" is determined to be fraudulent. Likewise, the certificate dated June 10, 1977, purporting to document Respondent's successful completion of a course of "Military Police Investigation" is addressed in paragraph 6., above, and is bogus. The third document, a certificate dated and given at Fort Hood, Texas, on October 20, 1981, purporting to document the successful completion by Respondent of a course in drug recognition and identification is addressed above in paragraph 8., and is fraudulent.

    
    

15. Respondent again, in the application package for a Class "M" licensure, swore that he had been employed by the U. S. Army and had devoted 100 percent of his time to military police investigations in Nuremberg, Germany during the period of November 1972 until February 1978. These facts were misrepresented by Respondent. As established by his official service records from the National Archives and Records Administration, Respondent left Germany in February of 1976, returned there in 1979 and left again in 1982. During the period of August, 1979, through April 1982, Respondent devoted half of his time while at Wiesbaden, Germany to automotive maintenance duty.

    
    

16. Respondent also swore in the application package for a Class "M" License that he was employed as a private investigator 1978. As addressed in paragraph 10., above, the affirmation of Respondent of employment with the Harrison Detective Agency for in Texas is determined to be false.

    
    

17. Also, by affirmation in the application package for a Class "M" License, Respondent again claimed that he had been licensed in Texas from 1976 through 1978, as an investigator, contrary to the admitted facts of the parties that Respondent has not been licensed in any capacity by that state's licensing body, the Texas Board of Private Investigators and Private Security Agencies.

18. In the course of processing Respondent's application for Class "M" Licensure, Petitioner's employee, Lois Sholtz, again contacted Respondent to advise him that the DD-214 submitted with the application did not reflect sufficient military time. Respondent advised Sholtz that he would send her a later DD-214 reflecting the required military police experience. Subsequently, Sholtz received a DD-214 by fax indicating that Respondent had an MOS 95B of eight years and three months as a military policeman. In reliance upon the faxed document, Sholtz approved Respondent's application for Class "M" licensure.

    
    

19. On October 26, 1994, Respondent told Petitioner's investigator that the documents submitted with the application package for the Class "M" License were genuine. On October 27, 1994, he requested another interview with Petitioner's investigator during which interview Respondent recanted his claim that the documents were authentic, including the DD-214 faxed to Sholtz, or that he had submitted those documents with his applications.

    
    

20. On November 4, 1994, Respondent met again at his request with Petitioner's investigator and disavowed that he had ever received an MOS 95B documenting his military police work, contradicting his previous statements to the investigator. For the same reasons cited in paragraph 7., above, Petitioner's statements that he had not submitted the forms attached to the application for Class "M" licensure or faxed the DD-214 to Sholtz are not credited.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

22. The evidence of Respondent's guilt of the violations alleged in the Amended Administrative Complaint must be clear and convincing. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

23. Count I and Count II of the Amended Administrative Complaint contain the allegations that Respondent committed acts of fraud or willful misrepresentation in applying for and obtaining Class "C" and Class "M" licenses.

    
    

24. Respondent is clearly guilty of Count I and Count II of the Amended Administrative Complaint.

    
    

25. Section 493.6118(1)(a), Florida Statutes, provides that disciplinary action may be taken in the event of "[f]raud or willful misrepresentation in applying for or obtaining a license."

    
    

26. There are no guideline penalties established by rule for violations of Section 493.6118(1), Florida Statutes, like those committed by Respondent and alleged in Count I and Count II of the Amended Administrative Complaint. Petitioner, however, is authorized to impose penalties ranging from reprimand to license revocation and/or administrative fine imposition for such licensees. Section 493.6118(2)(a) -(e), Florida Statutes.

    
    

27. Count III of the Amended Administrative Complaint alleges that Respondent failed or refused to cooperate with a representative of the Department engaged in an official investigation through the giving of false

    statements to Petitioner's investigator during interviews conducted on October

    26 and October 27, 1994. Respondent is guilty of this offense, punishable in accordance with Rule 1C-3.113(2)(q), Florida Administrative Code, through the imposition of an administrative fine of $300-$700 and suspension of licensure.

    
    

28. Respondent's defense to the allegations of the Amended Administrative Complaint is essentially that other persons conspired to implant false documents in his application packages. Respondent's position is farfetched and unpersuasive. Respondent's guilt is clear and convincing.

    
    

29. Pursuant to Section 493.6118(2), Florida Statutes, and disciplinary guidelines contained in Rule 1C-3.113(2), Florida Administrative Code, Petitioner recommended that Respondent's licenses be revoked and that he be subjected to an administrative fine of $2,000 for the violations contained in Count I and Count II of the Amended Administrative Complaint, as well as $700 for the violation alleged in Count III of the Amended Administrative Complaint. Petitioner's recommendation of licensure revocation is well taken.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered finding Respondent guilty of allegations contained in Counts I, II and III of the Amended Administrative Complaint, and it is

FURTHER RECOMMENDED that such final order revoke Respondent's Class "A" Private Investigative Agency License, Number A93-00352, effective October 11, 1993; his Class "C" Private Investigator License, Number C93-00189, effective March 8, 1993; his Class "D" Security Officer License, Number D93-10584, effective July 15, 1993; his Class "G" Statewide Firearm License, Number G93- 01133; and his Class "M" Private Investigative/Security Agency Manager License, Number M93-00074, effective July 15, 1993.

DONE and ENTERED this 26th day of April, 1996, in Tallahassee, Leon County, Florida.

DON W. DAVIS

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 26th day of April, 1996.

APPENDIX

The following constitutes my ruling pursuant to Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties.

Petitioner's Proposed Findings

1.-12. Accepted in substance, though not verbatim.

13. Incorporated by reference. 14.-17. Accepted in substance.

18.-19. Incorporated by reference.

20.-23. Rejected, unnecessary to result.

24.-38. Accepted in substance, though not verbatim.

39. Rejected, unnecessary to result. 40.-42. Incorporated by reference.

Respondent's Proposed Findings

1. Accepted in substance. 2.-4. Rejected, argument.

5. Rejected, Class C license was effective in March. 6.-10. Rejected, unnecessary to result reached.

11. Incorporated by reference.

12.-15. Unnecessary to result, rejected.

1. Rejected, hearsay.

2. Rejected, not supported by the weight of the evidence.

3. Accepted.

4. Accepted.

20.-26. Rejected, subordinate to HO findings.

27. Rejected, credibility. 28.-29. Accepted.

30.-31. Rejected, credibility, not supported by weight of the evidence.

32.-38. Rejected, relevance.

39. Accepted in substance. 40.-41. Rejected, credibility.

42. Accepted in substance.

43.-46. Rejected, subordinate to HO findings. 47.-48. Accepted in substance.

1. Rejected, subordinate, credibility.

2. Rejected, credibility. 51.-52. Rejected, subordinate.

53.-54. Rejected, relevance, credibility.

1. Rejected, subordinate, credibility.

2. Rejected, subordinate to HO findings.

3. Rejected, subordinate, relevance, credibility. 58.-59. Rejected, credibility, weight of the evidence. 60.-62. Rejected, relevance, subordinate to HO findings.

1. Rejected, credibility.

2. Rejected, weight of the evidence.

3. Incorporated by reference.

66.-68. Rejected, subordinate to HO findings.

70.-77. Rejected, subordinate, argumentative, legal conclusions.

COPIES FURNISHED:

Douglas D. Sunshine, Esquire Division of Licensing

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

Theodore E. Mack, Esquire Cobb, Cole and Bell

131 North Gadsden Street Tallahassee, Florida 32301

Sandra B. Mortham Secretary of State Department of State The Capitol

Tallahassee, Florida 32399-0250

Don Bell General Counsel

Department of State

The Capitol, Plaza Level 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.

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, DIVISION OF LICENSING,

Petitioner,

DOAH Case No. 95-1564

v. Case No: C94-02266

D93-00189

LIBBY INVESTIGATIONS, MARVIN W. LIBBY, OWNER,

Respondent.

/

FINAL ORDER

This cause came before the Department of State, Division of Licensing, for consideration and final agency action. A formal administrative hearing was

conducted pursuant to Section 120.57(1), Florida Statutes, on March 4 through 5, 1996, before Don W. Davis a duly assigned Hearing Officer of the Division of Administrative Hearings. A Recommended Order was submitted by the Hearing Officer on April 26, 1996, a copy of which is attached. Neither party filed exceptions.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The Department of State hereby adopts and incorporates herein by reference the Findings of Fact and Conclusions of Law in the Recommended Order.

WHEREFORE, based upon the foregoing, it is ORDERED that Respondent's Class "A" Private Investigative Agency License, Number A93-00352, effective October 11, 1993; his Class "C" Private Investigator License, Number C93-00189, effective March 8, 1993; his Class "D" Security Officer License, Number D93- 10584, effective July 15, 1993; his Class "G" Statewide Firearm License, Number G93-01 133; effective May 24,1993, and his Class "M" Private Investigative/Security Agency Manager License, Number M93-00074, effective July 15, 1993, are hereby REVOKED. It is further ORDERED based on a complete review of the record and in accordance with the Hearing Officer's Conclusion of Law Number 27 and the Hearing Officer's finding of aggravating circumstances pursuant to Rule 1 C-3. 113(5), Florida Administrative Code, that as to Count III of the Administrative Complaint, Respondent be and is hereby FINED $700.00 pursuant to Rule 1C-3.113(2)(q), Florida Administrative Code. Payment of the administrative fine shall be by cashier's check or money order payable to the Department of Stated Division of Licensing within thirty (30) days.

NOTICE OF RIGHTS

This order constitutes final agency action. Any party who is adversely affected by this Order may seek judicial review under Section 120.68, Florida Statutes. Such proceedings are commenced by filing a Notice of Appeal, pursuant to Rule 9.110, Florida Rules of Appellate Procedure with the Deputy Clerk of the Division of Licensing, Department of State, The Capitol, Mail Station No. 4, Tallahassee, Florida 32399-0250; and by filing a copy of the Notice of Appeal, accompanied by the applicable filing fees, with he First District Court of Appeal, or with the District Court of Appeal in the appellate district where the party resides. The Notice of Appeal must be filed within thirty (30) days of the day this Order is filed with the Clerk of the Department.

DONE AND ORDERED at Tallahassee, Florida this 24th day of May, 1996.

John M. Russi, Director Division of Licensing

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing Final Order has been sent by

U.S. Mail this 24th day of 1996, to Theodore E. Mack, Esquire, Cobb, Cole and Bell, 131 North Gadsden Street, Tallahassee, Florida 32301.

Michele Guy

Assistant General Counsel Department of State Division of Licensing

The Capitol, MSNo. #4 Tallahassee, Florida 32399-0250

=================================================================

DISTRICT COURT OPINION

=================================================================

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

LIBBY INVESTIGATIONS. NOT FINAL UNTIL TIME EXPIRES TO MARVIN W. LIBBY, OWNER, FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED.

Appellant,

CASE NO. 96-2173

vs. DOAH CASE NO. 95-1564

DEPARTMENT OF STATE, DIVISION OF LICENSING,

Appellee.

/ Opinion filed December 20, 1996.

An appeal from an order of the Department of State.

Theodore E. Mack of Cobb, Cole & Bell, Tallahassee, for Appellant.

Douglas D. Sunshine, Assistant General Counsel, Tallahassee, for Appellee.

DAVIS, J.

Mr. Libby, a licensed private investigator, appeals a final order of the Department of State, Division of Licensing, imposing a fine of $700 and ordering the revocation of five (5) licenses issued to him by the State of Florida. Mr. Libby argues that the Division erred in imposing a $700 fine without adeguately explaining a reason for departing from the penalty suggested in the hearing

officer's recommended order. He also contends the amended administrative complaint failed as a matter of law to provide notice that all his licenses were at risk, as compared to the specific licenses he was charged with having obtained by fraud, and therefore, the Division erred in revoking all of his licenses. We affirm the revocation of Mr. Libby's licenses because the complaint was adequate to put Mr. Libby on notice of the charges against him.

However, while the record contains evidence which might support a decision to increase the penalty, the only reason for doing so which was actually stated with particularity by the Division (that the hearing officer had found the existence of aggravating circumstances) is not supported by the record.

Therefore, we reverse the imposition of the $700 fine and remand for reconsideration.

The licenses issued to Mr. Libby consist of a Class "A" Private Investigative Agency License; a Class "C" Private Investigator License; a Class "D" Security Officer License; a Class "G" Statewide Firearm License; and a Class "M" Private Investigative/Security Agency Manager License. He was charged in the administrative complaint with having obtained his Class "C" and Class "M" licenses through fraud, and with failing to cooperate in the investigation. Mr. Libby does not dispute the findings of fact that he submitted, as attachments to his application for the Class "C" Private Investigator License and his application for a Class "M" Private Investigative/Security Agency Manager License, a falsified "Certificate of Training" as a military investigator; as well as another false document which purported to document successful completion of a course in "Military Police "; as well as another false document which purported to document successful completion of a course in drug recognition and identification. Nor does he dispute that he stated that these documents were genuine (during the course of the investigation) and later feigned a lack of knowledge that they had even been included in his application packages.

Additionally, Mr. Libby does not dispute the findings of fact that he falsely misrepresented that he had been stationed in Germany from November 1972 through February 1978, and devoted 100 percent of that time to military police investigations; falsely represented that he had experience as an investigator while employed by the Harrison Detective Agency in Texas; falsely represented that he had been licensed as an investigator from 1976 through 1978 by the State of Texas; and falsely represented that he had been employed as an investigator by The Conger Life Insurance Company.

Mr. Libby does not contest that the facts alleged are sufficient, standing alone, to justify the revocation of all of his licenses. He contends that the complaint was deficient because it did not expressly recite that the penalty sought was the revocation of all five licenses. The amended administrative complaint alleged that Mr. Libby held all five of the licenses described above, that all five licenses were issued pursuant to Chapter 493, Florida Statutes, and that the allegations of the complaint justified action provided for in section 493.6118(2), providing for suspension or revocation of licenses for enumerated acts, including obtaining a license by fraud.

The administrative complaint adequately alleged the facts necessary for Mr.

Libby to prepare his defense. See, e.g., Seminole County Board of County Commissioners v. Long, 422 So 2d 938 (Fla 5th DCA 1982), petition for review denied mem., 431 So.2d 989 (Fla. 1983)(administrative complaint was not so vague or indefinite as to mislead the appellee in preparing her defense because it sufficiently alleged the underlying facts upon which her dismissal was based).

The allegations in the complaint were sufficient to inform Mr. Libby that all five licenses were at risk in this administrative proceeding. In Florida Board of Massage v. Thrall, 164 So.2d 20, 22 (Fla. 3d DCA 1964), a license suspension

case, the court held that "in administrative proceedings of this nature it is not necessary that the information or accusation be cast with that degree of technical nicety required in a criminal prosecution." The court then quoted State ex rel. Williams v. Whitman, 156 So. 705, 710 (1934): "in such proceedings it is sufficient if the accused is informed with reasonable certainty of the nature and cause of the accusation against him, has reasonable opportunity to defend against attempted proof of such charges, and the proceedings are conducted in a fair and impartial manner...

Id. While we recognize "the tension between the strict construction required in a license revocation proceeding and the deference an appellate court is called upon to accord administrative findings of fact," Davis v. Dep't of Professional Regulation, 457 So.2d 1074, 1076 (Fla. 1st DCA 1984), we conclude that this administrative complaint was adequate to put Mr. Libby on notice of the charges against him and the fact that all of his licenses were at stake in these proceedings. Therefore, we affirm the revocation of all five licenses.

As to the imposition of the $700 fine, however, we reverse. The hearing officer's recommended order recommended revocation of the licenses, but did not recommend an additional fine. The Division admits the fine was imposed based upon its erroneous belief that the hearing officer had found the existence of aggravating circumstances. Although conceding this error, the Division contends that the error was harmless because the penalty was within the limits allowed by law.

We reject the Division's argument that this court cannot reverse an agency's decision to increase the penalty as long as the penalty was within the limits permitted by the statute. Under Criminal Justice Standards and Training Comm'n v. Bradley, 596 So.2d 661 (Fla. 1992), an agency may adopt the hearing officer's findings of fact and conclusions of law, yet increase the penalty, while remaining within the statutory guidelines, upon stating with particularity reasons for doing so, which reasons are supported by the facts in the record.

See also Boulton v. Morgan, 643 So.2d 1103 (Fla. 4th DCA 1994)(reversing a final order because the reasons given by the agency for increasing the penalty were not supported by the record). In the present case, the only reason given for increasing the penalty by adding the $700 fine was that the hearing officer had found the existence of aggravating circumstances. The Division now admits that the hearing officer did not make a finding concerning the existence of aggravating circumstances. Thus, the reason given for increasing the penalty is not supported by the record.

Accordingly, we AFFIRM the revocation of all five of Mr. Libby's licenses, but we REVERSE the imposition of the fine, and REMAND for reconsideration whether the fine is justified by the facts contained in the record.

ERVIN and KAHN, JJ., CONCUR.

Docket for Case No: 95-001564

Orders for Case No: 95-001564