STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 95-2138

) FOREMAN INVESTIGATIVE AGENCY, ) GENERAL G. FOREMAN, OWNER, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on August 23, 1995, in Fort Lauderdale, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kristie Reid Bronson, Esquire

Department of State, Division of Licensing The Capitol, Mail Station 4

Tallahassee, Florida 32399-0250

For Respondent: Bruce L. Glaskin, Esquire

9500 Park Lane

Plantation, Florida 33324 STATEMENT OF THE ISSUES

1. Whether Respondent General G. Foreman committed the violations alleged in the Amended Administrative Complaint (as further amended, at hearing)?

   
   

2. If so, what disciplinary action should be taken against him?

PRELIMINARY STATEMENT

On February 6, 1995, the Department of State, Division of Licensing (hereinafter referred to as the "Department") issued an Administrative Complaint against Respondent Foreman Investigative Agency (hereinafter referred to as the "Agency" or "Respondent Agency"), the holder of a Class "A" private investigative agency license, and the Agency's owner, General G. Foreman (hereinafter referred to as "Foreman" or "Respondent Foreman"), the holder of a Class "C" private investigator license. Respondents denied the allegations of wrongdoing advanced in the Administrative Complaint and requested a formal hearing. On May 5, 1995, the Department referred the matter to the Division of Administrative Hearings (hereinafter referred to as the "Division") for the assignment of a Division hearing officer to conduct the formal hearing Respondents had requested.

On July 17, 1995, the Department filed an unopposed motion requesting leave to file an Amended Administrative Complaint against Respondents. The motion was granted by order issued July 19, 1995. The Amended Administrative Complaint that the Department filed alleged the following:

COUNT I

On or about December 12, 1994, in Broward County, Florida, Respondent, Foreman Investigative Agency, failed to notify the department within ten (10) days of a change of business location from 1720 Northwest Third Court, Ft. Lauderdale, Florida 33311 as required by Section 493.6106(2)(a), Florida Statutes. Respondent is in violation of Section 493.6118(1)(t), Florida Statutes.

Count II

On or about September 30, 1994, in Broward County, Florida, Respondent, General G. Foreman, utilized a facsimile reproduction or pictorial portion of the Great Seal of the State of Florida on a badge or other means of identification used in connection with licenses issued under Chapter 493, Florida

Statutes, as prohibited by Section 493.6124, Florida Statutes. Respondent is in violation of Section 493.6118(1)(t), Florida Statutes.

Count III

On or about September 30, 1994, in Broward County, Florida, Respondent, General G. Foreman, impersonated or permitted or aided another to impersonate a law enforcement officer or employee of the State or United States. Respondent is in violation of

Section 493.6118(1)(i), Florida Statutes.

Count IV

On or about September 30, 1994, in Broward County, Florida, Respondent, General G. Foreman, carried a firearm in the performance of regulated private investigative activities without a valid Class "G" Statewide Firearms License, as required by Section 493.6115(2), Florida Statutes. Respondent is in

violation of Section 493.6118(1)(g), Florida Statutes.

Count V

On or about September 30, 1994, in Broward County, Florida, Respondent, General G. Foreman, openly carried a firearm in the performance of regulated private investigative activities. Respondent is in violation of Sections 493.6115(4) and 493.6118(1)(t), Florida Statutes.

The Amended Administrative Complaint indicated that the Department intended "to take disciplinary action pursuant to Section 493.6118(2), Florida Statutes, including, but not limited to, a reprimand, probation, an administrative fine, suspension of license, or revocation of license."

At the outset of the final hearing in the instant case, which was held on August 23, 1995, the Department announced that it was voluntarily dismissing Count I of the Amended Administrative Complaint against the Respondent Agency. 1/

During the evidentiary portion of the hearing, the Department presented the testimony of two witnesses, Joel Maney, a detective with the Fort Lauderdale Police Department, and Jack D'Ambrosio, an investigator with the Department. In addition to the testimony of these two witnesses, the Department offered, and the Hearing Officer received, five exhibits (Petitioner's Exhibits 1 through 5) into evidence. Respondent Foreman testified in his own behalf. The only other evidence he offered was a copy of his recently obtained Class "G" Statewide Firearm Permit, which was received into evidence as Respondent's Exhibit 1.

At the conclusion of the evidentiary portion of the hearing, the Hearing Officer, on the record, advised the parties of their right to file post-hearing submittals and he established a deadline (15 days from the date of the Hearing Officer's receipt of the transcript of the hearing) for the filing of such submittals with the Division. The Hearing Officer received the hearing transcript on September 11, 1995.

On September 25, 1995, the Department filed with the Division a proposed recommended order containing proposed findings of fact and proposed conclusions of law. The Hearing Officer has carefully considered the Department's proposed recommended order. The findings of fact the Department has proposed are specifically addressed in the Appendix to this Recommended Order. To date, Foreman has not filed any post-hearing submittal.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:

1. The Department is a state government licensing and regulatory agency.

   
   

2. Respondent Agency is a Florida-licensed (Class "A" license number A88- 00297 private investigative agency.

   
   

3. Respondent Foreman is the owner of the Agency.

   
   

4. He is a Florida-licensed (Class "C" license number C00-02486) private investigator. He has been licensed for approximately the past 20 years.

   
   

5. At no time during the period of his licensure has the Department taken any disciplinary action against him.

   
   

6. At around 10:00 a.m. on the morning of September 30, 1994, Foreman interrupted his work schedule to drive a male tenant living in an apartment that he owned (hereinafter referred to as the "Tenant") to the Henderson Mental Health Clinic, an outpatient mental health facility located in Broward County, Florida. The Tenant needed to receive treatment at the clinic.

   
   

7. After parking his vehicle, Foreman escorted the Tenant to the reception area of the facility.

   
   

8. Foreman was wearing a gun belt and a holster. A loaded firearm was encased in the holster.

9. It was a warm day and Foreman did not have on a jacket. 2/ Consequently, the holstered firearm was in plain view.

   
   

10. At the time, Foreman had a Department-issued Class "W" Concealed Weapon or Firearm License, but he did not have a Class "G" Statewide Firearm Permit. 3/

    
    

11. Detective Joel Maney of the Fort Lauderdale Police Department was working a uniformed off-duty security detail at Henderson Mental Health Clinic that morning.

    
    

12. From his position behind the reception counter, Detective Maney observed Foreman enter the reception area with the Tenant and noticed that Foreman was carrying a firearm.

    
    

13. Not wanting to cause a disturbance inside the facility, Detective Maney did not immediately confront Foreman. He did, however, monitor Foreman's activity.

    
    

14. After informing the receptionist that the Tenant had arrived and was waiting to be seen, Foreman left the facility. Detective Maney followed Foreman outside. As Foreman was walking on the sidewalk toward his vehicle, Detective Maney approached him and asked for identification.

    
    

15. Foreman responded to the request by stating that he was a detective/investigator and that he did not have time to talk inasmuch as he was in the middle of an investigation.

    
    

16. Eventually, Foreman produced his Florida driver license, his Class "C" Private Investigator License, and his Class "W" Concealed Weapon or Firearm License for Detective Maney.

    
    

17. He also showed Detective Maney a five-pointed, star-shaped badge. In the center of the badge was a replica of the Great Seal of the State of Florida. The words, "Special Investigator Foreman Investigative," were inscribed around the seal.

    
    

18. When Detective Maney first saw the badge, he thought it was a Broward County deputy sheriff's badge because of its shape and because it bore the Great Seal of the State of Florida.

    
    

19. Unlike a Broward County deputy sheriff's badge, however, Foreman's badge did not have a map of Florida superimposed on the seal. Moreover, the written inscription on the badge was different than that found on a Broward County deputy sheriff's badge.

    
    

20. Throughout the period that he has been licensed, Foreman has used this badge as a means of identifying himself in connection with the performance of his duties as a private investigator.

    
    

    CONCLUSIONS OF LAW

    
    

21. The Department is statutorily empowered to take disciplinary action against licensees, such as Foreman, based upon any of the grounds enumerated in Section 493.6118(1), Florida Statutes. Such disciplinary action may include one or more of the following penalties: license denial; license revocation;

    license suspension; imposition of an administrative fine not to exceed $1,000 for every count or separate offense; issuance of a reprimand; and placement of the licensee on probation. Section 493.6118(2), Fla. Stat.

    
    

22. Where the disciplinary action sought is the revocation or suspension of the licensee's license, the proof of guilt must be clear and convincing. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Nair v. Department of Business and Professional Regulation, 654 So.2d 205, 207 (Fla. 1st DCA 1995); Pic N' Save v. Department of Business Regulation, 601 So.2d 245 (Fla. 1st DCA 1992); Munch v. Department of Professional Regulation, 592 So.2d 1136 (Fla. 1st DCA 1992); Newberry v. Florida Department of Law Enforcement, 585 So.2d 500 (Fla. 3d DCA 1991). "The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

    
    

23. Where the discipline sought does not involve the loss of licensure, the licensee's guilt need be established by only a preponderance of the evidence. See Allen v. School Board of Dade County, 571 So.2d 568, 569 (Fla. 3d DCA 1990).

    
    

24. Regardless of the disciplinary action taken, it may be based only upon the violations specifically alleged in the administrative complaint. See Klein

    v. Department of Business and Professional Regulation, 625 So.2d 1237, 1238-39 (Fla. 2d DCA 1993); Celaya v. Department of Professional Regulation, Board of Medicine, 560 So.2d 383, 384 (Fla. 3d DCA 1990); Kinney v. Department of State,

    501 So.2d 129, 133 (Fla. 5th DCA 1987); Sternberg v. Department of Professional Regulation, 465 So.2d 1324, 1325 (Fla. 1st DCA 1985); Hunter v. Department of Professional Regulation, 458 So.2d 842, 844 (Fla. 2d DCA 1984).

    
    

25. Furthermore, in determining whether Section 493.6118(1), Florida Statutes, has been violated in the manner charged in the administrative complaint, one "must bear in mind that it is, in effect, a penal statute. . . This being true the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it. Furthermore, if there are any ambiguities included such must be construed in favor of the . . . licensee." Lester v. Department of Professional and Occupational Regulations, 348 So.2d 923, 925 (Fla. 1st DCA 1977).

    
    

26. The Amended Administrative Complaint issued in the instant case (as further amended, at hearing, by the Department's voluntary dismissal of Count I) alleges that Foreman committed four violations of Section 493.6118(1), Florida Statutes: two violations of subsection (1)(t) (Counts II and V); one violation of subsection (1)(i) (Count III); and one violation of subsection (1)(g) (Count IV). Subsections (1)(g), (i) and (t) of Section 493.6118, Florida Statutes, provide as follows:

    
    

    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.

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

       (i) Impersonating, or permitting or aiding and abetting an employee to impersonate, a law enforcement officer or an employee of the state, the United States, or any political subdivision thereof by identifying himself as a federal, state, county, or municipal law enforcement officer or official representative, by wearing a uniform or presenting or displaying a badge or credentials that would cause a reasonable person to believe that he is a law enforcement officer or that he has official authority, by displaying any flashing or warning vehicular lights other than amber colored, or by committing any act

       that is intended to falsely convey official status.

       (t) Violating any provision of this chapter.

       
       

27. The Department had the burden of proving Foreman's guilt of the violations of these subsections of Section 493.6118, Florida Statutes, alleged in Counts II, III, IV and V of the Amended Administrative Complaint by clear and convincing evidence, rather than by a preponderance of the evidence, inasmuch as the Amended Administrative Complaint seeks, among other penalties, the "suspension of license or revocation of license."

    
    

28. Count II of the Amended Administrative Complaint alleges that, on or about September 30, 1994, Foreman violated subsection (1)(t) of Section 493.6118, Florida Statutes, by "utiliz[ing] a facsimile reproduction or pictorial portion of the Great Seal of the State of Florida on a badge or other means of identification used in connection with licenses issued under Chapter 493, Florida Statutes, as prohibited by Section 493.6124, Florida Statutes."

    
    

29. Section 493.6124, Florida Statutes, provides as follows:

    
    

    No person or licensee shall use any facsimile reproduction or pictorial portion of the Great Seal of the State of Florida on any badge, credentials, identification card, or other means of identification used in connection

    with any activities regulated under this chapter.

    
    

30. The evidence clearly and convincingly establishes that, on or about September 30, 1994, Foreman used, as a means of identifying himself in connection with his duties as a private investigator, a badge that contained a "facsimile reproduction or pictorial portion of the Great Seal of the State of Florida" in violation of Section 493.6124, Florida Statutes, and therefore also in violation of subsection (1)(t) of Section 493.6118, Florida Statutes, as alleged in Count II of the Amended Administrative Complaint. Foreman should be disciplined for having committed this alleged violation, which the Department has proven by clear and convincing evidence.

    
    

31. Count III of the Amended Administrative Complaint alleges that, on or about September 30, 1994, Foreman violated subsection (1)(i) of Section 493.6118, Florida Statutes, by "impersonat[ing] or permitt[ing] or aid[ing] another to impersonate a law enforcement officer or employee of the State or United States."

    
    

32. The Department takes the position that Foreman should be found guilty of this count of the Amended Administrative Complaint based upon what he said

    when Detective Maney first approached him outside the Henderson Mental Health Clinic on September 30, 1994, and also based upon the identification, specifically the aforementioned badge, he thereafter produced upon Detective Maney's request for identification.

    
    

33. While it appears that Foreman told Detective Maney that he was a detective/investigator, the evidence does not clearly and convincingly establish that he told Detective Maney that he was a police (as opposed to a private) detective/investigator 4/ or that he was any other type of law enforcement officer or public employee.

    
    

34. The evidence, however, does clearly and convincingly establish that Foreman presented to Detective Maney a badge which, because of its resemblance to a deputy sheriff's badge and, more significantly, because it bore a replica of the Great Seal of the State of Florida, would cause a reasonable person to believe that Foreman had some official authority or status. In so doing, Foreman violated subsection (1)(i) of Section 493.6118, Florida Statutes, as alleged in Count III of the Amended Administrative Complaint, and he should be disciplined therefor.

    
    

35. Count IV of the Amended Administrative Complaint alleges that, on or about September 30, 1994, Foreman violated subsection (1)(g) of Section 493.6118, Florida Statutes, by "carr[ying] a firearm in the performance of regulated private investigative activities without a valid Class 'G' Statewide Firearms License, as required by Section 493.6115(2), Florida Statutes."

36. Section 493.6115(2), Florida Statutes, provides as follows: Only Class "C," Class "CC," Class "D," Class "M,"

    Class "MA," or Class "MB" licensees are permitted

    to bear a firearm and any such licensee who bears a firearm shall also have a Class "G" license.

    
    

37. The evidence clearly and convincingly establishes that, on September 30, 1994, while in and around the Henderson Mental Health Clinic, Foreman carried a firearm without possessing a Class "G" license. The evidence, however, does not clearly and convincingly establish that, at the time, he was conducting a "private investigation," as that term is used in Chapter 493, Florida Statutes, 5/ or engaging in any other "activities regulated under this chapter." Although it appears that Foreman did engage in such "regulated" activities that day both before and after his non-work related trip to the clinic, the evidence does not clearly and convincingly establish that he carried a firearm while conducting these "regulated" activities. 6/ Accordingly, Count IV of the Amended Administrative Complaint should be dismissed.

    
    

38. Count V of the Amended Administrative Complaint alleges that, on or about September 30, 1994, Foreman violated subsection (1)(t) of Section 493.6118, Florida Statutes, by "openly carr[ying] a firearm in the performance of regulated private investigative activities . . . in violation of Section 493.6115(4)," Florida Statutes.

    
    

39. Section 493.6115(4), Florida Statutes, provides, in pertinent part, as follows:

    
    

    A Class "C" . . . licensee 21 years of age or older who has also been issued as Class "G" license may carry, in the performance of his

    duties, a concealed firearm. . . .

    
    

40. It is apparent from a reading of subsection (4) of Section 493.6115, Florida Statutes, that it authorizes, but does not require, Class "C" licensees who also have a Class "G" license to conceal any firearms they carry in the performance of their duties. See Brooks v. Anastasia Mosquito Control District,

    148 So.2d 64, 66 (Fla. 1st DCA 1963)("[i]t must be presumed that the Legislature of this state must know the plain and ordinary meaning of words and that the word 'may' when given its ordinary meaning, denotes a permissive term rather than the mandatory connotation of the word 'shall'"). That it does not prohibit Class "C" licensees with a Class "G" license from "openly carr[ying] a firearm in the performance of regulated private investigative activities" becomes even more obvious when it is read in pari materia with the immediately preceding subsection of Section 493.6115, Florida Statutes, which provides as follows:

    
    

    No employee shall carry or be furnished a weapon or firearm unless the carrying of a weapon or firearm is required by his duties, nor shall an employee carry a weapon or firearm except in connection with those duties. When carried pursuant to this subsection, the weapon or firearm shall be encased in view at all times except as provided in subsection (4).

    
    

    See Forsythe v. Longboat Key Beach Erosion Control District, 604 So.2d 452, 455 (Fla. 1992)("[i]t is axiomatic that all parts of a statute must be read together in order to achieve a consistent whole"). Therefore, even if the evidence clearly and convincingly established that Foreman "openly carried a firearm in the performance of regulated private investigative activities" on or about September 30, 1994, which it does not, 7/ he would not, in addition to being guilty of the violation of subsection (1)(g) of Section 493.6118, Florida Statutes, alleged in Count IV of the Amended Administrative Complaint, 8/ also be guilty of the violation alleged in Count V of the Amended Administrative Complaint inasmuch as subsection (4) of Section 493.6115, Florida Statutes, does not prohibit the carrying of firearms in an "open" manner. Accordingly, Count V of the Amended Administrative Complaint should be dismissed.

    
    

41. In determining which of the penalties authorized by Section 493.6118(2), Florida Statutes, the Department should impose against Foreman for having committed the violations alleged in Counts II and III of the Amended Administrative Complaint, it is necessary to consult Rule 1C-3.113, Florida Administrative Code, which contains the disciplinary guidelines adopted by the Department. Cf. Williams v. Department of Transportation, 531 So.2d 994, 996 (Fla. 1st DCA 1988)(agency is required to comply with its disciplinary guidelines in taking disciplinary action against its employees).

    
    

42. Subsection (2) of Rule 1C-3.113, Florida Administrative Code, sets forth "the range of penalties" that will ordinarily be imposed for "violations committed by individuals," such as those committed by Foreman.

    
    

43. Subsection (2)(m) of Rule 1C-3.113, Florida Administrative Code, provides that for "impersonating a law enforcement officer or government employee" in violation of subsection (1)(i) of Section 493.6118(1)(i), Florida Statutes, the normal "range of penalties" is "[f]rom an administrative fine of

    $500-$1,000 to suspension, revocation or denial of license."

44. Subsection (2)(u) of Rule 1C-3.113, Florida Administrative Code, provides that "the unauthorized use of the Great Seal of the State of Florida" in violation of Section 493.6124, Florida Statutes, will ordinarily result in "[a]n administrative fine of $100-$200."

    
    

45. Subsection (5) of Rule 1C-3.113, Florida Administrative Code, provides that the Department may impose a penalty outside the normal range where there are "aggravating or mitigating circumstances." These "aggravating or mitigating circumstances" that may warrant such a deviation are as follows:

    
    

    1. The violation was committed maliciously.

    2. The danger to public safety or welfare.

    3. The number of previous violations for the same type of offense, whether or not disciplinary action was taken.

    4. The length of time the violator engaged in the prohibited activity.

    5. The length of time since the violation occurred.

    6. Previous disciplinary action against the violator in this or any other jurisdiction.

    7. The amount of damage to persons or property caused by the violation.

    8. The deterrent effect of the penalty imposed.

    9. Any efforts by the violator at rehabilitation.

    10. Attempts by the violator to correct violations or the failure to correct violations.

    11. The violator's prior knowledge of Chapter 493, F.S.

    12. Whether the violation resulted from negligence or an intentional act.

    13. Financial hardship.

    14. The cost of disciplinary proceedings.

    15. The number of other violations proven in the same proceeding.

    16. The violation occurred while on probation.

    17. Any other aggravating or mitigating circumstances.

    
    

46. Having carefully considered the facts of the instant case in light of the foregoing provisions of Section 493.6118(2), Florida Statutes, and Rule 1C- 3.113, Florida Administrative Code, the Hearing Officer concludes that, for having committed the violations alleged in Counts II and III of the Amended Administrative Complaint, Respondent Foreman should be fined $500.00.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Department enter a final order (1) finding the evidence sufficient to establish that Respondent Foreman committed the violations alleged in Counts II and II of the Amended Administrative Complaint,

1. disciplining Respondent Foreman him for having committed these violations by imposing an administrative fine in the amount of $500.00, and (3) dismissing the remaining counts of the Amended Administrative Complaint.

   DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of October, 1995.

   
   

   
   

   STUART M. LERNER

   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 12th day of October, 1995.

   
   

   ENDNOTES

   
   

   1/ All of the remaining counts of the Amended Administrative Complaint are against Respondent Foreman.

   
   

   2/ He had brought a jacket with him, but had left it in his parked vehicle.

   
   

   3/ Foreman subsequently obtained a Class "G" Statewide Firearm Permit, which is still valid.

   
   

   4/ At hearing, Detective Maney and Foreman gave differing accounts of what the latter had said during their encounter on September 30, 1994. Detective Maney testified that Foreman had claimed to be "a Fort Lauderdale police detective." Foreman, on the other hand, denied having made such a claim. While the Hearing Officer does not doubt that Detective Maney honestly related at hearing what he thought Foreman had said, having weighed all of the evidence, including Foreman's testimony to the contrary, the Hearing Officer is not convinced that Foreman actually told Detective Maney that he was a police detective.

   
   

   5/ "Private investigation" is defined in Chapter 493, Florida Statutes, specifically Section 493.6101(17), Florida Statutes, as follows:

   "Private investigation" means bodyguard services or the investigation by a person or persons for the purpose of obtaining information with reference to any of the following matters:

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

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

   3. The credibility of witnesses or other persons.

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

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

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

6/ While it may not be unreasonable to suspect that Foreman did carry a firearm on these occasions, mere suspicion and conjecture cannot constitute a basis upon which a finding of guilt may be made in this disciplinary proceeding.

7/ The evidence clearly and convincingly establishes that Foreman "openly carried a firearm" on or about September 30, 1994, but, as noted above, it does not clearly and convincingly establish that he did so "in the performance of regulated private investigative activities."

8/ A Class "C" licensee who carries a firearm while "[c]onducting activities regulated under . . . [C]hapter" 493, Florida Statutes, without possessing a Class "G" license violates subsection (1)(g) of Section 493.6118, Florida Statutes, regardless of whether the firearm is carried in a concealed or open manner.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-2138

The following are the Hearing Officer's specific rulings on the findings of facts proposed by the Department in its proposed recommended order:

1. First and second sentences: Accepted as true and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order; Third sentence: Rejected as a finding of fact because it is more in the nature of a statement of law.

2-5. Accepted as true and incorporated in substance.

1. Rejected because it is not supported by clear and convincing evidence.

2. Accepted as true and incorporated in substance.

3. First sentence: Accepted as true and incorporated in substance;

Second sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

9-10. Accepted as true and incorporated in substance.

1. To the extent that this proposed finding states that Foreman told the Department's investigators that, at the time of the incident, he had been on (as opposed to taking a break from) a surveillance, it has been rejected because it is not supported by clear and convincing evidence.

2. To the extent that this proposed finding states that Foreman told the Department's investigators that, when confronted by Detective Maney, he had stated that he was a detective "with" (as opposed to "in") Fort Lauderdale, it has been rejected because it is not supported by clear and convincing evidence.

COPIES FURNISHED:

Kristie Reid Bronson, Esquire Department of State, Division

of Licensing

The Capitol, MS #4

Tallahassee, Florida 32399-0250

Bruce L. Glaskin, Esquire 9500 Park Lane

Plantation, Florida 33324

Honorable Sandra B. Mortham Secretary of State

The Capitol

Tallahassee, Florida 32399-0250

Don Bell, Esquire 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 of time 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: 95-002138

Orders for Case No: 95-002138