STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, DIVISION OF ) LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 95-4238

) ENTRUST RECOVERY CORPORATION, ) PHILLIP DOUGLAS HOBBS, PRESIDENT, )

)

Respondent. )

) DEPARTMENT OF STATE, DIVISION OF ) LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 95-4239

)

PATRICK C. SIMONE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Susan B. Kirkland, held a formal hearing in these cases on November 30, 1995, in Miami, Florida.

APPEARANCES

For Petitioner: Kristi Reid Bronson

Assistant General Counsel

Department of State, Division of Licensing The Capitol, Mail Station Number 4 Tallahassee, Florida 32399-0205

For Respondents: Mark A. Kamilar, Esquire

Penthouse I, United States Justice Building

155 South Miami Avenue Miami, Florida 33130

STATEMENT OF THE ISSUES

Whether the Respondent Entrust Recovery Corporation violated Section 493.6118(1)(n), Florida Statutes, and if so, what penalty should be imposed and whether Respondent Patrick C. Simone violated Section 493.6118(1)(g), Florida Statutes, and if so what penalty should be imposed.

PRELIMINARY STATEMENT

On July 18, 1995, Petitioner, Department of State, Division of Licensing, issued an administrative complaint against Respondent Entrust Recovery Corporation (Entrust), alleging that it violated Section 493.6118(1)(n), Florida Statutes, by allowing Patrick C. Simone to perform a repossession without a valid Class "E" Recovery Agent license or Class "EE" Recovery Agent Intern license. On July 18, 1995, Petitioner issued an administrative compliant against Respondent, Patrick C. Simone (Simone), alleging that he violated Section 493.6118(1)(g), Florida Statutes, by performing the services of a recovery agency without a valid Class "E" Recovery Agent license. Respondents requested administrative hearings and the cases were forwarded to the Division of Administrative Hearings for assignment to a hearing officer. The cases were originally assigned to Hearing Officer Michael M. Parrish, but were transferred to Hearing Officer Susan B. Kirkland to conduct the final hearing. By order dated September 21, 1995, the cases were consolidated.

At the final hearing, Petitioner called Jeff Paull, Catherine Robinson, and Jack D' Ambrosio as its witnesses. Petitioner's Exhibits 1-4 were admitted in evidence. Respondents called Patrick Simone and Phillip Hobbs as their witnesses. Respondents' Exhibit 1 was admitted in evidence.

The parties agreed to file proposed recommended orders within ten days of the filing of the transcript. The transcript was filed on December 15, 1995. Petitioner filed its proposed recommended order on December 26, 1995. On January 4, 1996, Respondents filed Respondents' Motion for Additional Time to file a proposed recommended order stating that Counsel for Respondents did not receive notice that the transcript had been filed. On January 8, 1996, Respondents filed an Amended Motion for Additional Time stating that counsel for Petitioner objected to the granting of the motion. On January 12, 1996, Respondents filed their proposed recommended order and a Motion to Strike Petitioner's Proposed Recommended Order. Respondents' Motion to Strike is DENIED. Respondents Motion for Additional Time to file a proposed recommended order is GRANTED. The parties' proposed findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Phillip Hobbs (Hobbs), is the president of Respondent, Entrust Recovery Corporation (Entrust). Mr. Hobbs holds a Class "C" Private Investigator license; a Class "R" Recovery Agency license; a Class "E" Recovery Agent license; a Class "RI" Recovery School Instructor license; and a Class "RS" Recovery School/Training Facility license.

   
   

2. Respondent, Patrick Simone (Simone) did not have a Class "E" Recovery Agent license or a Class "EE" Recovery Agent Intern license on January 13, 1995.

   
   

3. On January 13, 1995, Simone was employed as a private investigator for Entrust.

   
   

4. On January 13, 1995, at the request of Hobbs, Simone went to Jeff Paull's (Paull) residence to determine if Paull's car was there.

   
   

5. Simone advised Hobbs by two-way radio that a white Toyota was parked in the driveway. Hobbs told Simone to wait for him to get to the residence. When Hobbs arrived, he parked his car approximately 100 feet west of Paull's house. Hobbs told Simone to go and knock on the door.

6. Simone walked up to Paull's door and knocked to see if anyone was home. Paull came to the door, identified himself as Jeff Paull and came out of the house to speak with Simone.

   
   

7. Simone identified himself as a representative of World Omni and told Paull that he was there to take the car, that he needed to talk to Paull about the car payments, and that World Omni would like to talk to him. Simone, using a cellular telephone, dialed World Omni's number and gave the telephone to Paull to talk to World Omni. After Paull talked to World Omni, he tossed the car keys to Simone. Paull went back into his house to get his own portable telephone and made another telephone call.

   
   

8. While the transaction was taking place between Paull and Simone, Hobbs was down the street with a pair of binoculars and a two-way radio trying to find out what was going on.

   
   

9. Based on the location of Paull's house, the front door and courtyard are visible only from directly in front of Paull's house. The front door area is not visible from the west because of the foliage and construction of the house. Thus, Hobbs could not have observed the interactions between Paull and Simone as he testified at the final hearing.

   
   

10. Because Hobbs was trying to monitor the transaction from a distance with a two-way radio, he could not hear what was being said at the time it was being said and relied on Simone to tell him what was going on when Paull was not there.

    
    

11. After Paull gave Simone the keys, Paull asked Simone if he would give him a ride to his luncheon appointment. Simone agreed to do so. Paull went back into the house to finish dressing and someone banged on the door while he was getting ready. When Paull went back outside, only Simone was present. Simone took the white Toyota and dropped Paull off on his way back to Hobbs' office.

    
    

12. During the scenario between Paull and Simone, Hobbs did not approach Paull to speak with Paull and did not identify himself to Paul as the repossessor.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

14. Petitioner alleges that Simone violated Section 493.6118(1)(g), Florida Statutes, which provides:

    
    

    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.

       
       

15. Repossession is an activity which is regulated under Chapter 493, Florida Statutes. "Repossession" is defined by 493.6101(22), Florida Statutes, as "the recovery of a motor vehicle . . . by an individual who is authorized by the legal owner, lienholder, or lessor to recovery, or to collect money payment in lieu of recovery of, that which has been sold or leased under a security agreement that contains a repossession clause. "

    
    

16. The intent of the legislature as set forth in Section 493.6100, Florida Statutes, is to have recovery services provided by trained and licensed persons. Section 493.6401(4), Florida Statutes, provides that an individual performing recovery service such as a repossession much have a Class "E" license. If a person performs repossession as an intern under the direction and control of a designated, sponsoring Class "E" license, the person must have Class "EE" license.

    
    

17. Repossession activity involves more than the simple act of taking or driving an item to be repossessed away from the repossession site. Repossession activities also include locating the item to be repossessed, surveillance, contacting debtors, and collecting money in lieu of recovery. See, Rod's Recovery Agency v. Department of State, Division of Licensing, 606 So.2d 458 (Fla. 1st DCA 1992).

    
    

18. Simone was performing a repossession of Paull's car on January 13, 1995. He located the car, contacted Paull and attempted to collect money from Paull. He had neither a Class "E" license nor a Class "EE" license. Thus, Simone was in violation of Section 493.6118(1)(g), Florida Statutes.

    
    

19. Respondents argue that Hobbs was actually conducting the activities via binoculars and a two-way radio. Respondents' argument is without merit. Hobbs could not see what was going on from 100 feet away from Paull's house because the view was obstructed. Hobbs could not hear what was being said between Simone and Paull and had to rely on Simone to radio to Hobbs what had transpired when Paull was either not present or was talking on the telephone. The evidence does not establish that Hobbs was conducting the activities so that Simone was relieved of the responsibility of having a license. Even if Hobbs were to be said to be directing and controlling the activities of Simone, Simone would still have to have had a Class "EE" license, which he did not have.

    
    

20. Petitioner alleges that Entrust violated Section 493.6118(1)(n), Florida Statutes, which states that the following activities constitute grounds for disciplinary action:

    
    

    Employing or contracting with any unlicensed or improperly licensed person or agency to

    conduct activities regulated under this chapter, or performing any act that assists aids, or abets a person or business entity in engaging

    in unlicensed activity, when the licensure status was known or could have been ascertained by reasonable inquiry.

21. Entrust employed Simone and allowed him to conduct repossession activities without possessing either a Class "E" license or a Class "EE" license. Thus, Entrust violated Section 493.6118(1)(n), Florida Statutes.

    
    

22. Section 493.6118(2), Florida Statutes, provides that when the Department finds any violation of Section 493.6118(1), Florida Statutes, it may impose one or more disciplinary sanctions against a license. Rule 1C-3.113, Florida Administrative Code, sets forth certain specific penalties to be used as guidelines in imposing fines against agencies and individuals.

    
    

23. Rule 1C-3.113(2)(k), Florida Administrative Code, provides that the guideline penalty for performing regulated activity without a valid license or with an inactive license ranges from a $100 to $300 fine to denial of license.

    
    

24. Rule 1C-3.113(1)(v), Florida Administrative Code, provides that the guideline fine for employing an unlicensed recovery agent is $250 to $500.

    
    

25. Pursuant to Rule 1C-3.113(5)(k), Florida Administrative Code, the fact that Hobbs, who was president of Recovery and who was aware of Simone's activities, has been involved in the recovery business for over ten years and has been a Recovery Agent Instructor for five years is an aggravating factor which should be taken into consideration when determing the appropriate administrative fine for Entrust.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Patrick C. Simone

violated Section 493.6118(1)(g), Florida Statutes, that Entrust Recovery

Corporation violated Section 493.6118(1)(n), Florida Statutes, that an administrative fine of $150 be imposed on Patrick C. Simone, and that an administrative fine of $500 be imposed on Entrust Recovery Corporation.

DONE AND ENTERED this 17th day of January, 1996, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

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 17th day of January, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NOS. 95-4238 & 95-4239

To comply with the requirements of Section 120.59(2), Florida Statutes, the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1. Paragraphs 1-5: Accepted.

2. Paragraphs 6-9: Accepted in substance.

Respondents' Proposed Findings of Fact

1. Paragraph 1: Accepted.

2. Paragraph 2: Rejected as subordinate to the facts found.

3. Paragraph 3: Accepted.

4. Paragraph 4: Rejected as subordinate to the facts found based on the finding that Simone told Paull that he was there to take the car.

5. Paragraph 5: Rejected as subordinate to the facts found.

6. Paragraph 6: Accepted in substance. Hobbs had directed Simone to see if the car was there.

7. Paragraph 7: Rejected that Hobbs could observe and hear what was going on, otherwise accepted that Hobbs parked down the street from the house.

8. Paragraphs 8-9: Accepted in substance.

9. Paragraph 10: Accepted that Paull gave up his car. Rejected that he was given the option to wait until Monday as not supported by the record. Paull stated that he asked Omni to wait until Monday but the evidence does not support a finding that Omni agreed to wait until Monday.

10. Paragraph 11: Accepted in substance.

11. Paragraph 12: Rejected as subordinate to the facts found.

COPIES FURNISHED:

Kristi Reid Bronson Assistant General Counsel

Department of State, Division of Licensing The Capitol, Mail Station Number 4 Tallahassee, Florida 32399-0205

Mark A. Kamilar, Esquire

Penthouse I, United States Justice Building

155 South Miami Avenue Miami, Florida 33130

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: 95-004238

Orders for Case No: 95-004238