STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, DIVISION ) OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 95-2945

)

ORLANDO HERNANDEZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on August 8, 1995, in Miami, Florida.

APPEARANCES

For Petitioner: Douglas D. Sunshine, Esquire

Assistant General Counsel Department of State, Division

of Licensing

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

For Respondent: Orlando Hernandez, pro se

511 East 38 Street Miami, Florida 33013

STATEMENT OF THE ISSUES

Whether the Respondent committed the offenses set forth in the Administrative Complaint and the penalties, if any, that should be imposed.

PRELIMINARY STATEMENT

Respondent holds a Class "C" Private Investigator License and a Class "E" Recovery Agent License. On April 28, 1995, the Petitioner filed an administrative complaint against Respondent that alleged he impersonated a police officer during the course of a repossession in violation of Section 493.6118(1)(i), Florida Statutes. Respondent timely denied the material allegations of the administrative complaint and requested a formal administrative hearing. The matter was referred to the Division of Administrative Hearings, and this proceeding followed.

At the formal hearing, the Petitioner presented the testimony of Wedlyne Horenstein and Mike Schulgen. Ms. Horenstein was present when the car was repossessed. Mr. Schulgen is an investigator employed by the Petitioner.

Petitioner presented three exhibits, each of which was admitted into evidence. Respondent testified on his own behalf, but he presented no other witness and no exhibits.

No transcript of the proceedings has been filed. The deadline for the filing of post-hearing submittals was set at ten days after the hearing.

Rulings on the Petitioner's proposed findings of fact may be found in the Appendix to this Recommended Order. The Respondent did not file a post-hearing submittal.

FINDINGS OF FACT

1. At all times pertinent to this proceeding, Respondent held a Class "C" Private Investigator License, number C93-00868, and a Class "E" Recovery Agent License, number E93-00065.

   
   

2. Respondent conducted a repossession of a Jaguar automobile at 565 Northwest 120 Street, Miami, Florida, on January 23, 1995. There was one other man with Respondent when he went to the subject premises to repossess the vehicle. This other man was not called as a witness in this proceeding.

   
   

3. Wedlyne Horenstein is a twenty year old female and the stepdaughter of the owner of the Jaguar that was being repossessed. She is a resident of the household located at 565 Northwest 120 Street, Miami, Florida, and was present at that address when the repossession occurred.

   
   

4. Ms. Horenstein testified that she was inside the house watching television when she saw two men in the driveway of the property. She testified that she went to the driveway and asked the two men what they were doing. She also testified that she asked one of the two men to provide proof that they were authorized to repossess the automobile. She testified that this man showed her a badge that was in a wallet and said, "Don't worry, I'm with Miami Police."

   
   

5. When Ms. Horenstein saw the Respondent at the formal hearing, she could not identify him as being present when the car was repossessed. On July 27, 1995, some seven months after the repossession, Ms. Horenstein was shown two photographs. One of the two photographs, taken from the file Petitioner maintained on the Respondent, was of the Respondent. There was no description of the second photograph. Ms. Horenstein identified the photograph of the Respondent as being the person with whom she talked when the car was repossessed and as being the man who allegedly showed her a badge and represented himself to be with the Miami Police Department. 1/

   
   

6. Respondent admitted that he repossessed the automobile on January 23, 1995, and that he talked to Ms. Horenstein. Respondent denied that he showed Ms. Horenstein a badge or that he said he was with the Miami Police. 2/ According to Respondent, he told Ms. Horenstein that he was there to repossess the automobile for a bank and gave her a copy of the repossession order when asked for proof that they were authorized to repossess the automobile. Ms. Horenstein admitted that she was given a copy of the repossession order.

   
   

7. Based on their demeanor and their entire testimony, it is found that Ms. Horenstein's testimony that Respondent showed her a badge and told her he was with the Miami Police Department is entitled to no more credibility than Respondent's denial of those acts.

   CONCLUSIONS OF LAW

   
   

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

   
   

9. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So.2d 112 (Fla. 1st DCA 1989). Evans Packing, supra, 550 So. 2d 112, 116, fn. 5, provides the following pertinent to the clear and convincing evidence standard:

   
   

   That standard has been described as follows:

   [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must

   be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of (sic) 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).

   
   

10. The Administrative Complaint alleges that Respondent violated the provisions of Section 493.6118(1)(i), Florida Statutes, which provides, in pertinent part, as follows:

    
    

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

       * * *

       (i) Impersonating ... a law enforcement officer

       ... by identifying himself as a federal, state, county, or municipal law enforcement officer ... by ... 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 ... .

       
       

11. Section 493.6118(1)(i), Florida Statutes, was created by Section 2 of Chapter 90-364, Laws of Florida, and became law without the Governor's signature on July 7, 1990.

    
    

12. As heretofore noted, Ms. Horenstein's testimony that Respondent showed her a badge and told her he was with the Miami Police Department is entitled to no more credibility than Respondent's denial of those acts. Consequently, it is concluded that the Petitioner failed to establish by clear and convincing evidence the facts that underpin its administrative complaint.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner adopt the findings of fact and conclusions

of law contained herein and DISMISSES the administrative complaint brought against Respondent.

DONE AND ENTERED this 11th day of September, 1995, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 11th day of September, 1995.

ENDNOTES

1/ Petitioner asserted that Ms. Horenstein could not identify the Respondent at the formal hearing because his weight had changed and he had grown a mustache.

That argument is rejected. While the photograph shown to Ms. Horenstein was of the Respondent without a mustache, the Respondent testified that he had worn a mustache for several years and that he had a mustache when he repossessed the automobile on January 23, 1995. Ms. Horenstein testified that she recalled the man she talked to was larger physically than the Respondent appeared to be at the formal hearing. Respondent testified that he weighed less when the car was repossessed than he did at the time of the formal hearing because he had not recovered as of January 1995 weight that he lost after having been shot in July 1994. The Respondent's testimony as to his mustache and his weight is credible. Consequently, it is concluded that these factors do not explain Ms. Horenstein's inability to identify the Respondent at the formal hearing. Instead, her inability to identify the Respondent is a factor considered in determining her ability to accurately recall the events that occurred. Her ability to accurately recall the events that occurred is further called into question by her inability to state the approximate date the repossession occurred and her uncertainty as to the details of the repossession. For example, Ms. Horenstein testified that the yard was fenced and that there was a gate on the driveway to the property. On cross examination, she testified that what she referred to as a gate was only a chain and that she thought the chain was up so as to block access to the driveway. The Respondent's testimony that the chain was on the ground when he first came to the premises is more credible than the testimony of Ms. Horenstein since he was able to remove the car from the driveway without interference from the chain.

2/ In evaluating the evidence, the undersigned has considered that Respondent testified he has shown a badge during the course of a repossession on four occasions since 1979. (There was no evidence that any of these four incidents

occurred after the effective date of Chapter 90-364, Laws of Florida.) He denied that this was a police badge, but the clear implication from his testimony was that he wanted the people to whom he showed the badge to believe he was a law enforcement officer. This testimony conflicts with a letter submitted to the Petitioner in which he states that he has ".. never flashed a badge at anyone, nor have I ever tried to impersonate a police detective." He further testified that he has not carried a badge since July 1994, and that he was not carrying a badge in January 1995. Despite the contradiction between his testimony and the letter he submitted to the Petitioner, it is concluded, based on his demeanor and his entire testimony, that his testimony is as credible as that of Ms. Horenstein.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2945

The following rulings are made as to the proposed findings of fact submitted by the Petitioner.

1. The proposed findings of fact in paragraphs 1, 2, 4, 5, 6, 8, 9, 10, 11, 12, and 13 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraph 3 are adopted in part by the Recommended Order. The proposed findings that the entry was through a closed gate and without authority are rejected to the extent they are contrary to the findings made.

3. The proposed findings of fact in paragraph 7 are rejected since they were not established by clear and convincing evidence.

COPIES FURNISHED:

Douglas D. Sunshine, Esquire Department of State, Division

of Licensing

The Capitol, MS #4

Tallahassee, Florida 32399-0250

Mr. Orlando Hernandez

511 East 38th Street Hialeah, Florida 33013

Honorable Sandra B. Mortham Secretary of State

The Capitol

Tallahassee, Florida 32399-0250

Don Bell, 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 ten 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: 95-002945

Orders for Case No: 95-002945