STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF STATE, DIVISION ) OF LICENSING, )
)
Petitioner, )
)
vs. ) Case No. 97-0369
) SHAW INVESTIGATIONS, MITCHELL )
D. SHAW, OWNER, )
)
Respondent. )
) DEPARTMENT OF STATE, DIVISION ) OF LICENSING, )
)
Petitioner, )
)
vs. ) Case No. 97-1761
)
SHAW INVESTIGATION AGENCY, )
INCORPORATED, MITCHELL D. )
SHAW, OWNER, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case on July 10, 1998, in Panama City, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge, Suzanne F. Hood.
APPEARANCES
For Petitioner: Michele Guy, Esquire
Department of State Division of Licensing
The Capitol, Mail Station 4 Tallahassee, Florida 32399-0250
For Respondent: Michel L. Stone, Esquire
Stone and Sutton, P.A.
119 East Fourth Street Panama City, Florida 32401
STATEMENT OF THE ISSUE
The issues in these consolidated cases are as follows: (1) whether Shaw Investigations aided or abetted Shaw Investigation Agency, Incorporated, an Alabama private investigative corporation not licensed to conduct business in Florida, and that corporation's private investigator employees, in engaging in unlicensed activity in Florida in violation of Section 493.6118(10(n), Florida Statutes; (2) whether Shaw Investigations failed or refused to cooperate with an agency representative's official investigation by not furnishing documentation required under a subpoena duces tecum in violation of Sections 493.6118(1)(o) and 493.6121(4), Florida Statutes; (3) whether Shaw Investigations committed misconduct in the course of regulated activity by failing to provide a client with written reports and accounting of investigative expenditures in violation of Section 493.6118(1)(f), Florida Statutes; (4) whether Shaw Investigations Agency, Incorporated, performed private investigations in Florida without a license in violation of Section 493.6118(1)(g), Florida Statutes, and Rule 1C- 3.120(1)(c), Florida Administrative Code; (5) whether Shaw Investigation Agency, Incorporated, allowed unlicensed persons to perform private investigative services in Florida in violation of
Section 493.6118(1)(n), Florida Statutes; (6) and if so, what penalty should be imposed.
PRELIMINARY STATEMENT
On or about December 19, 1996, Petitioner Department of State, Division of Licensing (Petitioner), filed an Amended Administrative Complaint against Respondent Shaw Investigations, Mitchell D. Shaw, Owner (Shaw Investigations.) Mr. Shaw requested a formal hearing to contest the allegations in the Amended Administrative Complaint on January 7, 1997.
Petitioner referred Mr. Shaw's request to the Division of Administrative Hearings (DOAH) on January 27, 1997. DOAH assigned an Administrative Law Judge to hear this matter in Case No. 97-0369.
The Administrative Law Judge issued a Notice of Hearing on February 18, 1997. Said notice scheduled DOAH Case No. 97-0369 for hearing on May 2, 1997.
On or about February 28, 1997, Petitioner filed an Administrative Complaint against Respondent Shaw Investigation Agency, Incorporated, Mitchell D. Shaw, President (Shaw Investigation Agency, Inc.) On or about March 24, 1997, the Alabama investigative agency demanded a formal hearing to contest the allegations in the Administrative Complaint.
Petitioner referred the Alabama investigative agency's request to DOAH on April 4, 1997. DOAH assigned an Administrative Law Judge to hear this matter in Case No. 97-1761.
On April 14, 1997, the parties filed a Joint Motion for Continuance in Case No. 97-0369. Said motion advised the Administrative Law Judge that Petitioner intended to file a Motion for Leave to File an Amended Administrative Complaint.
On April 17, 1997, Petitioner filed a Motion for Consolidation in Case Nos. 97-0369 and 97-1716. The Administrative Law Judge entered an order dated April 22, 1997, consolidating Case Nos. 97-0369 and 97-1761. This order scheduled the consolidated cases for hearing on August 4-5, 1997.
On May 2, 1997, Petitioner filed a Motion for Leave to File Amended Administrative Complaints. Enclosed with the motion was a Second Amended Administrative Complaint in Case No. 97-0369 and an Amended Administrative Complaint in Case No. 97-1761. The Administrative Law Judge granted this motion by order dated
May 14, 1997.
On July 17, 1997, Petitioner filed a Motion for Abeyance. The Administrative Law Judge granted this motion by order dated July 24, 1997.
On November 4, 1997, Petitioner filed a Status Report requesting the Administrative Law Judge to set the consolidated cases for hearing. A Notice of Hearing dated November 7, 1997, scheduled the cases for hearing on March 20, 1998.
The parties filed a Joint Prehearing Statement on March 12, 1998.
Respondent filed an Emergency Motion for Continuance of Hearing on March 18, 1998. The Administrative Law Judge granted this motion and rescheduled the case for hearing on July 10, 1998.
At the hearing, Petitioner voluntarily dismissed Counts V and VI of the Second Amended Administrative Complaint in Case No. 97-0369 and Counts III and V of the Amended Administrative Complaint in Case No. 97-1761.
Petitioner presented the testimony of two witnesses. A third witness, Junive Tucker, was unable to make an appearance at the hearing due to illness.
Petitioner offered ten exhibits which were admitted into evidence. Petitioner's exhibits P1-P3 were depositions which were accepted in evidence in lieu of live testimony.
Additionally, the Administrative Law Judge granted Petitioner's ore tenus motion to submit a posthearing exhibit from the Alabama Department of Revenue.
Respondent presented the testimony of five witnesses. Respondent offered five exhibits which were admitted into evidence.
On July 15, 1998, the Administrative Law Judge entered an Order granting a continuance and rescheduling the hearing for October 7, 1998. The purpose of this continuance was to allow Petitioner to present the live testimony of its witness, Junive Tucker.
On October 2, 1998, Petitioner filed a Motion to Enter Evidence and to Close Record. The motion offered documents from the Alabama Department of Revenue as a post-hearing submission. The motion sought to dismiss portions of both Administrative Complaints which refer to Ms. Tucker, Counts X through XII of the Second Amended Administrative Complaint in Case No. 97-0369, and Count VIII of the Amended Administrative Complaint in Case
No. 97-1761. The Administrative Law Judge granted this motion on October 5, 1998. As a consequence, further session of the administrative hearing scheduled for October 7, 1998, was cancelled.
A transcript of the proceeding was filed on August 3, 1998.
The parties filed their proposed recommended orders on October 12, 1998.
FINDINGS OF FACT
At all times relevant to these consolidated cases, Shaw Investigations, Mitchell D. Shaw, Owner, had a Class "A" Private Investigative Agency license, no. A89-00262, and Mitchell D. Shaw had a Class "C" Private Investigator license, no. C89-00625.
Shaw Investigations currently has a valid Class "A" license, which was effective February 3, 1998, and expires on November 8, 1999. Mitchell D. Shaw has a valid Class "C" license, which was effective September 16, 1997, and expires on August 2, 1999.
Shaw Investigation Agency, Inc., Mitchell D. Shaw, President, is an Alabama corporation. It is not licensed as a Class "A" Private Investigative Agency in Florida.
Michelle Davis, Linda Moulton, and Ricky Tharpe are former employees of Shaw Investigation Agency, Inc. They worked for the Alabama investigative agency at all times relevant here. However, they were not licensed Florida private investigators or private investigator interns on those dates.
Ms. Davis worked for Shaw Investigations Agency, Inc. as a private investigator intern and secretary. Ms. Moulton worked as a private investigator for the Alabama investigative agency. Mr. Tharpe was hired to work as a sales manager and private investigator in Alabama. His duties included conducting surveillance and checking tag numbers.
F. Page Whatley was an employee of Shaw Investigations Agency, Inc., at all times relevant here. He did not have a Florida private investigator or private investigator intern license on those dates. Mr. Whatley obtained licensure as a Florida private investigator on February 6, 1997. The earliest that Mr. Whatley could have worked as a private investigator in Florida was upon submission of his complete application on November 5, 1996.
Jeffery Lee Fears (Fears) was a resident of Georgia. In April of 1994, Fears was in Panama City Beach, Florida, on spring
break when he died at a condominium complex, Ocean Towers. The Panama City Beach Police Department ruled his death a suicide.1
The Fears family hired Shaw Investigation Agency, Inc., to conduct a private investigation into the death of their son. They specifically hired the Alabama private investigative corporation because they did not agree with Florida law enforcement authorities that Fears' death was the result of suicide.
The Fears investigation consisted of numerous witness interviews in Georgia, Florida, and other states, the gathering of evidence and witness information, and an examination of the physical site of death in Panama City Beach, Florida.
When the Fears investigation was initiated and until March of 1996, Mr. Shaw was president of Shaw Investigations Agency, Inc. Sometime between March 15, 1996, and March 15, 1997, Mr. Whatley became president of the Alabama corporation.
When the Fears investigation was initiated, the Florida investigative agency was the employer of investigators, other than Mr. Shaw, who held Florida Class "C" Private Investigators licenses. However, Mr. Shaw did not utilize the services of the other licensed Florida investigators in the Fears case.
On May 3, 1994, Ms. Davis traveled alone from Dothan, Alabama, to Panama City, Florida, at the direction of Mr. Shaw. While she was there, Ms. Davis attempted to locate Charles Russell, the security guard who was on duty at Ocean Towers the
night that Fears died. She also obtained a copy of a report from the Panama City Beach Police Department relative to an accident that occurred the same night as the Fears death. Upon her return to Dothan, Alabama, Ms. Davis prepared a written report of her investigation for Shaw Investigation Agency, Inc.
On May 4, 1994, Mr. Tharpe traveled to Panama City, Florida, with Mr. Shaw and another employee of Shaw Investigations Agency, Inc. They first went to the Panama City Beach Police Department, where Mr. Tharpe attempted to get the gun that allegedly killed Fears. The men then went to the Ocean Towers complex where they talked to the manager, took pictures of the accident scene, measured the time required to walk up and down stairs and to go up and down in the elevator, observed blood stains, and looked for bullets on the outside of the building.
On May 5, 1994, Mr. Shaw directed Ms. Moulton to travel alone to Panama City, Florida, from Dothan, Alabama, to locate the security guard, Charles Russell. After making inquiries at the apartment complex where Mr. Russell lived, Ms. Moulton learned that he was out of town. She then returned to Dothan where she prepared a report of her investigation for Shaw Investigation Agency, Inc.
On May 19, 1994, Mr. Tharpe traveled with Mr. Shaw and the Fears attorney to Panama City, Florida. The men went first to the Panama City Beach Police Department in an unsuccessful attempt to get the gun that allegedly killed Fears. Next,
Mr. Tharpe went with Mr. Shaw and the attorney to the Ocean Towers complex where they observed the site of Fears' death. Lastly, the men attempted unsuccessfully to locate Mr. Russell at his apartment. Upon his return to Dothan, Alabama, Mr. Tharpe prepared a written report describing the investigation conducted that day on behalf of Shaw Investigation Agency, Inc.
On May 27, 1994, Ms. Moulton again traveled alone to Panama City, Florida, as directed by Mr. Shaw. She first inquired whether two local television stations had any news footage relative to the death of Fears. She learned that the stations did not have any such footage.
Next, Ms. Moulton went to Mr. Russell's apartment complex. Her inquiries revealed that he was back in town but not at home. Ms. Moulton set up surveillance to wait for Mr. Russell's return. She subsequently took pictures of a man entering Mr. Russell's apartment and got the tag numbers of six vehicles in the parking lot behind the apartment.
Ms. Moulton went to the local tag registration office. She got the names of all the owners of the vehicles except one, which was unregistered.
Ms. Moulton returned to Mr. Russell's apartment and continued her surveillance. When Mr. Russell left his apartment, Ms. Moulton took a picture of him with his car, noting his physical description and the make, model, and color of his car.
She then returned to Dothan, Alabama, where she made a written report of her investigation for Shaw Investigation Agency, Inc.
On June 1, 1994, Mr. Shaw directed Ms. Moulton to travel from Dothan, Alabama, to Panama City, Florida, to set up surveillance on Mr. Russell's apartment. She waited outside Mr. Russell's apartment until Mr. Shaw arrived to conduct an interview.
Ms. Moulton then traveled to the local library to research the newspaper coverage on Fears' death. She retained a copy of a newspaper story about the incident.
Next, Ms. Moulton went to the Panama City Police Department to obtain information on shootings between March 28, 1994 and April 6, 1994. She learned that there were no such incidents.
Ms. Moulton went to the Bay County Sheriff's Department to obtain information on shootings that occurred between
March 28, 1994 through April 6, 1994. She learned that her request would require payment for the research and copies of the results.
Ms. Moulton went to the Panama City Beach Police Department to obtain the same type of information. She retained a computer print-out on all calls that the department responded to between the relevant dates.
Ms. Moulton then returned to Dothan, Alabama. She prepared a written report of her investigations conducted on June 1, 1994, for Shaw Investigation Agency, Inc.
On June 22, 1994, Ms. Davis went to Panama City Beach with the Shaw Investigation Agency, Inc., investigators and the Fears family. While she was there, she participated in the investigation by timing the walk from a Burger King restaurant to the sixth floor of the Ocean Towers.
On July 18, 1994, Mr. Tharpe traveled alone to Panama City, Florida, on behalf of Shaw Investigation Agency, Inc. He first went to the Panama City Beach Police Department in an attempt to pick up the gun that allegedly killed Fears. Next, Mr. Tharpe conducted an interview with Mr. Russell at his apartment. Mr. Tharpe prepared a written report of his investigation for Shaw Investigation Agency, Inc.
On October 18, 1994, Ms. Moulton traveled with Mr. Shaw to Panama City, Florida. She did not independently conduct any investigative work. However, she was present when Mr. Shaw interviewed Dr. William Eckerd, the Bay County coroner.
On at least one other occasion, Mr. Tharpe traveled alone to Panama City Beach, Florida, on behalf of Shaw Investigation Agency, Inc. He took a blood test kit to locate spots of blood at the scene of Fears' death at Ocean Towers.
Mr. Shaw testified that Mr. Tharpe's primary involvement in the Fears investigation was as an expert hired to
build a model of the crime scene. This testimony is not persuasive.
On November 18, 1995 or November 19, 1995, Henry Locke of Panama City, Florida, decided to hire a private investigator to research the work history of a co-worker, Ron Barlow.
Mr. Locke looked in the local phone book and called Shaw Investigations using a local number.
Mr. Locke spoke with a man who identified himself as a private investigator. The man on the phone said that he would meet with Mr. Locke the next day on his way back to Dothan, Alabama, from working on a case in Panama City Beach, Florida. Until that time, Mr. Locke did not know that the investigator was from Dothan, Alabama.
Page Whatley was the man who showed up at Mr. Locke's home the next day. Mr. Locke believed Mr. Whatley was the man he had spoken to on the phone. Mr. Locke told Mr. Whatley that he wanted a background check on the work history of Ron Barlow, a
co-worker. Specifically, Mr. Locke explained that he wanted to know the places where Mr. Barlow had worked and the type of work he had done. The information that Mr. Locke provided to
Mr. Whatley was personal and confidential; Mr. Locke did not want anyone, especially Mr. Barlow, to know about the private investigation.
Mr. Whatley agreed to provide Mr. Locke with the requested information for a fee in the amount of $750. Mr. Locke
and Mr. Whatley signed a contract dated November 20, 1995, indicating that the work to be performed included a background check. The contract heading was "Shaw Investigations Agency, Inc." The "Inc." on the contract was crossed out, indicating that the contract was with Shaw Investigations, the Florida Agency.
In November of 1995, Mr. Shaw was president of the Alabama investigative agency. Mr. Whatley was not licensed in Florida at that time.
Mr. Locke mailed a check in the amount of $750 the next day. He sent the check to a Dothan, Alabama, address. The check is dated November 20, 1995, and made payable to Shaw Investigation Agency. Shaw Investigation Agency, Inc., subsequently cashed the check.
Shaw Investigations, the Florida agency, does not perform computer-generated background checks because it does not have the necessary technical equipment and staff. Mr. Shaw uses the equipment owned by the Alabama corporation and its employees, who are unlicensed in Florida, to do the research necessary for that type of work. Mr. Locke was not aware of these facts when he sent his check to Dothan, Alabama. He thought the Alabama office was a branch of the Florida agency.
In December of 1995, an employee from Shaw Investigation Agency, Inc., called Mr. Locke on the telephone to tell him that a background check on Ron Barlow did not reveal a
criminal record. The Alabama employee also discussed the results of Ron Barlow's workman's compensation claim history. At that time, Locke did not complain that the information provided was not satisfactory because it did not include Ron Barlow's work history.
Isabel Shaw, an employee of Shaw Investigations Agency, Inc., testified at hearing that she mailed Mr. Locke a copy of the report in January of 1996 in accordance with company procedure. This testimony is not credible.
About one year later, Mr. Locke contacted other local investigators. One of those investigators recommended that Mr. Locke contact Petitioner to file a complaint against Shaw Investigations. Petitioner received Mr. Locke's complaint on February 28, 1997.
Around the time that Mr. Locke filed his complaint with Petitioner, he called the Dothan, Alabama, office to complain that he had not gotten a report. An employee in the Alabama office told him that he had been given a verbal report in December of 1995. He and the employee got into an argument and the employee hung up the phone.
Mr. Whatley wrote Mr. Locke a letter dated April 7, 1997, apologizing for any misunderstanding and enclosing a copy of a two page report containing Ron Barlow's workman's compensation claim history. Mr. Locke has never received the
information he originally requested concerning Ron Barlow's work history.
In March of 1995, Petitioner received a complaint from officials in the Florida Department of Law Enforcement (FDLE) concerning Mr. Shaw's investigation of the Fears case.
Petitioner directed its investigator, Robert Cousson, to hold his investigation in abeyance until FDLE completed its investigation of the Fears case.
On June 28, 1996, Mr. Cousson contacted Mr. Shaw by telephone and requested a copy of expenses involved with the Fears case, the entire case file, a list of investigators who had worked on the case, and a list of the code numbers of those investigators. Mr. Shaw responded that the case was confidential. He stated that he would need to obtain the permission of his clients.
On July 2, 1996, Mr. Cousson again telephoned Mr. Shaw. In that conversation, Mr. Shaw stated that the Fears family would not consent to release the case file. According to Mr. Shaw, the Fears family threatened to sue if the file was released.
Mr. Cousson responded that he would cure that problem by issuing a subpoena for the file.
On July 3, 1996, Petitioner faxed the subpoena to Shaw Investigations, Mitchell D. Shaw, Owner. On July 10, 1996,
Mr. Cousson personally served the subpoena on Mr. Shaw in his office.
During that visit, Mr. Shaw produced a letter dated July 8, 1996, from Mr. Shaw's attorney. The letter states that the Fears hired Shaw Investigations Agency, Inc., to conduct the Fears investigation. According to the letter, Shaw Investigations Agency, Inc., was not subject to Petitioner's regulations or subpoena power.
The attorney's letter reveals that the Florida agency was hired by the Alabama agency to do some work on the Fears case. However, according to the letter, the work of the Florida agency was completed more than two years prior to the issuance of the subpoena. The letter states the records of the Florida agency were not subject to preservation or disclosure under Section 493.6121(2), Florida Statutes.
Nevertheless, the attorney's letter enclosed two investigative reports, stating that Shaw Investigations was not in possession of any other records that were responsive to the subpoena. The first report, dated July 18, 1994, was prepared by Mr. Tharpe. The second report, dated October 18, 1994, was dictated by Mr. Shaw and typed by Ms. Moulton.
At a later date, Mr. Cousson received a copy of a contract between Shaw Investigations and Shaw Investigations Agency, Inc. The contract is dated April 14, 1994. According to the contract, the Florida agency was paid to take pictures, interview a witness, and provide a scale diagram of the accident scene for a possible model.
Mr. Shaw produced no other documents as responsive to the subpoena. However, he verbally provided Mr. Cousson with the code numbers of the Alabama investigators used on the Fears case.
The investigation of the Fears case by Shaw Investigation Agency, Inc., was ongoing at the time of the hearing. The entire case file of the Fears investigation is still in existence, including documents generated as a result of the contract between the Florida investigative agency and the Alabama investigative agency.
In addition to not providing the subpoenaed investigative files, Mr. Shaw did not provide any records pertaining to the fees and costs paid by the Fears, a list of all personnel employed during the period of April 18, 1994 through June 30, 1995, including the coded list of all employees and payroll records for the period of April 18, 1994 through June 30, 1995. Mr. Shaw did not provide any documents relating to the Florida investigative agency's activities in the Fears investigation other than as set forth above.
CONCLUSIONS OF LAW
53 The Division of Administrative Hearings has jurisdiction over this subject matter and the parties to this action pursuant to Sections 120.569 and 120.57(1), Florida Statutes.
Petitioner is charged with enforcing and implementing Chapter 493, Florida Statutes, as it relates to activities of licensed or unlicensed private investigators or investigative
agencies in Florida. Section 493.6118(1), Florida Statutes, provides as follows in pertinent part:
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 this chapter, or any unlicensed person engaged in activities regulated under this chapter.
* * *
Proof that the . . . licensee is guilty of fraud or deceit, or of negligence, incompetency, or misconduct, in the practice of the activities regulated under this chapter.
Conducting activities regulated under this chapter without a license . . . .
* * *
Employing . . .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 engaging in unlicensed activity, when the licensure status was known or could have been ascertained by reasonable inquiry.
* * *
Failure or refusal to cooperate with or refusal of access to an authorized representative of the department engaged in an official investigation pursuant to this chapter.
Petitioner must prove the violations alleged in a license disciplinary action by clear and convincing evidence. Dept. of Banking and Finance v. Osbourne Stern, 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292, 294 (Fla. 1987); Pic n' Save Central Florida, Inc. v. Dept. of Business Regulation, Div. Of Alcoholic Beverages & Tobacco, 601 So. 2d 245 at 249 (Fla. 1st DCA 1992).
Section 493.6201(1), Florida Statutes, states as follows in pertinent part:
Any person, firm, company, partnership or corporation which engages in business as a private investigative agency shall have a Class "A" license. A Class "A" license is valid for only one location.
A private investigative agency is defined in Florida as "any person who, for consideration, advertises as providing or is engaged in the business of furnishing private investigations." Section 493.6101(15), Florida Statutes.
A person is defined as "any individual, firm, company, agency, organization, partnership, or corporation." Section 493.6101(1), Florida Statutes.
Section 493.6101(6), Florida Statutes, defines advertising as "the submission of bids, contracting, or making known by any public notice or solicitation of business, directly or indirectly, that services regulated under this chapter are available for consideration." In this case, Shaw Investigation Agency, Inc., the Alabama corporation, indirect solicited business for itself by utilizing the licensed Florida agency's advertisements in the Panama City, Florida telephone directory. The Alabama investigative agency performed work for Mr. Locke as a result of the advertisement.
"Any individual who performs the services of a private investigator shall have a Class 'C' license." Section 493.6201(5), Florida Statutes
Section 493.6201(6), Florida Statutes, states as follows:
Any individual who performs private investigation work as an intern under the direction and control of a designated, sponsoring Class "C" licensee or a designated, sponsoring Class "MA" or Class "M" licensee must have a Class "CC" license.
Section 493.6101(16), Florida Statutes, defines private investigator as follows:
. . . any individual who, for consideration, advertises as providing or performs private investigation . . . does not include an informant who, on a one-time or limited basis, as a result of a unique expertise, ability, vocation, or special access and who, under the direction and control of a Class "C" licensee or a Class "MA" licensee, provides information or services that would otherwise be included in the definition of private investigation.
The record contains no credible evidence that
Ms. Davis, Ms. Moulton, or Mr. Tharpe had any unique expertise, ability, vocation or special access. The type of activities that they performed in Florida in the Fears investigation should have been performed by licensed Florida private investigators.
Section 493.6101(17), Florida Statutes, defines private investigation as follows in pertinent part:
(17) . . . the investigation by a person or person for the purpose of obtaining information with reference to any of the following matters:
* * *
(b) The identity, habits, conduct, movements, whereabouts, affiliations, association, transactions, reputation, or
character of any society, person, or group of persons.
* * *
(g) The business of securing evidence to be used before investigating committees or boards of award or arbitration or in the trial of civil or criminal cases and the preparation therefor.
The definition of private investigation includes, but is not limited to, such activities as witness interviews, conducting surveillance by watching a residence, locating persons, checking tag registrations, gathering information from police records and/or the news media, and securing any kind of evidence in preparation for a civil or criminal case. The Fears investigation included the performance of these types of activities. The Fears investigation resulted in a formal presentation to Florida law enforcement authorities in an effort to prove that Fears' death was a homicide and not a suicide.
Rule 1C-3.120(1)(c), Florida Administrative Code, states in pertinent part:
Each license issued by the Division shall specify on its face the classification of such license. No licensed agency or individual so licensed and classified shall engage in regulated activities reserved for any other classification without possessing the appropriate license.
Shaw Investigation Agency, Inc., engaged in an unlicensed activity in Florida when Mr. Whatley solicited Locke's business and signed the contract. Additionally, Mr. Whatley engaged in an unlicensed activity when he interviewed Locke,
gathering information that Locke considered personal and confidential.
The unlicensed Alabama agency is guilty of advertising as providing and performing unlicensed private investigation activities in Florida through its unlicensed Alabama private investigator employees Davis, Moulton, and Tharpe in the Fears case and Whatley in the Locke case. Petitioner has met its burden of proving that Shaw Investigation Agency, Inc., violated Sections 493.6118(1)(g) and 493.6118(1)(n), Florida Statutes, as alleged in Counts I, II, IV, VI, and VII of the Amended Administrative Complaint in Case No. 97-1761.
The Fears family did not retain the Florida investigative agency to perform any investigative work in Florida. However, the Alabama agency could not have worked at all in Florida without the benefit of licenses held by Shaw Investigations and Mr. Shaw. As Florida licensees, they are guilty of aiding or abetting the unlicensed Alabama Corporation, and its unlicensed private investigative employees, in engaging in unlicensed private investigation activity in violation of Section 493.6118(1)(n), Florida Statutes, as alleged in Counts I- IV and IX of the Second Amended Administrative Complaint in Case No. 97-0369.
Locke retained Shaw Investigations to provide him with information concerning Ron Barlow's work history. The Alabama investigative agency provided Locke with information relative to
Ron Barlow's criminal and workman's compensation history. Neither investigative agency provided Locke with the information he sought. Locke did not receive a written report of any description until after he filed his complaint with Petitioner and after he called the Alabama office to complain that he had
not received a report. Locke never received a written accounting of the $750 fee that he paid. At the very least, the Florida agency is guilty of misconduct in violation of Section 493.6118(1)(f), Florida Statutes, as alleged in Count VIII of the Second Amended Administrative Complaint in Case No. 97-0369.
Section 493.6119, Florida Statutes, states as follows in pertinent part:
Except as otherwise provided by this chapter or other law, no licensee, or any employee of a licensee or licensed agency shall divulge or release to anyone other than her or his client or employer the contents of an investigative file acquired in the course of licensed investigative activity. However, the prohibition of this section shall not apply . . . when the prior written consent of the client to divulge or release such information has been obtained.
* * *
Any licensee or employee of a licensee or licensed agency who, in reliance on subsection (1), denies access to an investigative file to any authorized representative of the department shall state such denial in writing within 2 working days of the request for access. Such statement of denial shall include the following:
That the information requested was obtained by a licensed private investigator on behalf of a client, and
That the client has been advised of the request and has denied permission to grant access, or
* * *
(d) That the requested investigative file will be provided pursuant to a subpoena issued by the department.
Section 493.6121, Florida Statutes, states as follows in pertinent part:
The department shall have the power to enforce the provisions of this chapter, irrespective of the place or location in which the violation occurred, and, upon the complaint of any person or on its own initiative, to cause to be investigated any suspected violation thereof or to cause to be investigated the business and business methods of any licensed or unlicensed person, agency or employee thereof . . . .
In any investigation undertaken by the department, each licensed or unlicensed person, applicant, agency, or employee shall, upon request of the department provide records and shall truthfully respond to questions concerning activities regulated under this chapter. Such records shall be maintained in this state for a period of two years at the principal place of business of the licensee . . . .
The department shall have the authority to investigate any licensed or unlicensed person, firm, company, partnership, or corporation when such person, firm, company, partnership, or corporation is advertising as providing or is engaged in performing services which require licensure under this chapter or when a licensee is engaged in activities which do not comply with or are prohibited by the chapter. . . . .
In the exercise of its enforcement responsibility and in the conduct of any investigation authorized by this chapter, the department shall have the power to subpoena and bring before it any person in the state, require the production of any papers it deems necessary, administer oaths, and take depositions of any persons so subpoenaed . .
. . Such failure or refusal shall also be grounds for revocation, suspension, or other disciplinary action.
Shaw Investigations received an investigative subpoena duces tecum requesting production of numerous documents related to the Fears investigation. Mr. Shaw produced two 1994 reports detailing investigative work in Florida. Later he produced a copy of a contract between the two private investigation agencies.
The record clearly reveals that the entire case file of Fears investigation still existed when Mr. Shaw was served with the subpoena. It is also clear that the case file contains documents related to work performed in Florida which were never produced pursuant to the subpoena.
The subpoena was not directed to Shaw Investigation Agency, Inc. However, Mr. Shaw and Shaw Investigations, as Florida licensees, cannot perform private investigation activities in Florida, then claim that the documents generated by those activities still exist but are not subject to a subpoena addressed to Shaw Investigations.
Placing those documents in a file drawer labeled Shaw Investigation Agency, Inc., instead of a file drawer labeled Shaw Investigation does not protect the documents from production under the facts of this case. Accordingly, Petitioner has met its burden of proving that Shaw Investigations failed to cooperate with representatives of Petitioner who were engaged in
an official investigation as alleged in Count VII of the Second Amended Administrative Complaint, Case No. 97-0369, in violation of Sections 493.6118(1)(o) and 493.6121(40, Florida Statutes.
Section 493.6118(2), Florida Statutes, provides as follows in pertinent part:
When the department finds any violation of subsection (1), it may do one or more of the following:
Deny an application for the issuance or renewal of a license.
Issue a reprimand.
Impose an administrative fine not to exceed $1,000 for every count or separate offense.
Place the licensee on probation for a period of time and subject to such conditions as the department may specify.
Suspend or revoke a license.
Pursuant to Rule 1C-3.113(1)(o), Florida Administrative Code, the guideline penalty for violation by an investigative agency of Section 493.6118(1)(g), Florida Statutes, ranges from an administrative fine of $250 to $750 to revocation or denial of license.
Pursuant to Rule 1C-3.113(1)(v), Florida Administrative Code, the guideline penalty for violation of Section 493.6118(1)(n), Florida Statutes, ranges from an administrative fine of $250 to $500.
There is no guideline penalty for a violation of Section 493.6118(10(f), Florida Statutes. However, Section 493.6118(2)(e), Florida Statutes, allows Petitioner to impose a
$1,000 fine.
Pursuant to Rule 1C-3.113(2)(q), Florida Administrative Code, the guideline penalty for violation by an investigative agency of Section 493.6118(1)(o), Florida Statutes, ranges from an administrative fine of $300 to $700 to three months' suspension or denial of license.
Pursuant to Rule 1C-3.113(5), Florida Administrative Code, Petitioner may deviate from the guideline penalties and impose any penalty authorized under Section 493.6118(2), Florida Statutes, upon a showing of one or more enumerated aggravating or mitigating circumstances presented at the formal hearing. Petitioner established the following pursuant to Rule 1C- 3.113(5), Florida Administrative Code: (1) Based on Mr. Shaw's prior knowledge of Chapter 493, Florida Statutes, he knew or should have known that unlicensed private investigation activities were being performed in Florida pursuant to his direction; (2) the violations resulted from intentional acts; and
numerous violations were proven in the same proceeding.
Based upon the Findings of Fact and Conclusions of Law, it
is,
RECOMMENDED:
That Petitioner enter a Final Order suspending the Florida
licenses of Shaw Investigations and Mitchell D. Shaw for three months, and imposing the maximum fine for Counts I-IV and VII-IX
in Case No. 97-0369 and for Counts I-II, IV, and VI-VII in Case No. 98-1761.
DONE AND ENTERED this 25th day of November, 1998, in Tallahassee, Leon County, Florida.
SUZANNE F. HOOD
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847
Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 1998.
ENDNOTE
1/ The police concluded that Fears shot himself and fell from a sixth story balcony.
COPIES FURNISHED:
Michele Guy, Esquire Department of State Division of Licensing
The Capitol, Mail Station 4 Tallahassee, Florida 32399-0250
Michel L. Stone, Esquire Stone and Sutton, P.A.
116 East Fourth Street Panama City, Florida 32501
Don Bell, General Counsel Department of State
The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0250
Honorable Sandra B. Mortham Secretary of State 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 within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Proceedings |
|---|---|
| Jan. 04, 1999 | Respondents` Motion for Extension of Time to File Exceptions to Recommended Order and for Consideration filed. |
| Dec. 23, 1998 | Final Order filed. |
| Dec. 11, 1998 | Respondent`s Exceptions to Recommended Order filed. |
| Nov. 25, 1998 | Recommended Order sent out. CASE CLOSED. Hearing held 07/10/98. |
| Oct. 12, 1998 | Petitioner`s Proposed Recommended Order filed. |
| Oct. 12, 1998 | Respondent`s Proposed Recommended Order (filed via facsimile). |
| Oct. 05, 1998 | Order Granting Motion to Enter Evidence and to Close Record sent out. (10/7/98 hearing cancelled; PRO`s due by 10/12/98) |
| Oct. 02, 1998 | (Petitioner) Motion to Enter Evidence and to Close Record filed. |
| Sep. 24, 1998 | Notice of Video Hearing and Order of Instructions sent out. (Video Hearing set for 10/7/98; 1:00pm; Pensacola & Tallahassee) |
| Aug. 03, 1998 | Transcript filed. |
| Jul. 15, 1998 | Order Rescheduling Hearing sent out. (7/10/98 hearing cancelled & reset for 10/7/98; 9:30am; Pensacola) |
| Jul. 13, 1998 | (M. Stone) Notice of Filing Depositions (No Enclosures) filed. |
| Jul. 13, 1998 | Letter to Judge from Medical Center (RE: notice that witness is unavailable to testify at hearing); Deposition of Henry Locke; Deposition of Junive Tucker (tagged/filed w/judge at hearing) filed. |
| Jul. 10, 1998 | CASE STATUS: Hearing Partially Held, continued to 10/7/98. |
| Mar. 23, 1998 | Order of Continuance to Date Certain sent out. (3/20/98 hearing cancelled & reset for 7/10/98; 9:30am; Panama City) |
| Mar. 18, 1998 | (Respondent) Emergency Motion for Continuance of Hearing (filed via facsimile). |
| Mar. 17, 1998 | (Respondent) Notice of Taking Deposition filed. |
| Mar. 12, 1998 | Joint Prehearing Statement filed. |
| Nov. 07, 1997 | Order of Prehearing Instructions sent out. |
| Nov. 07, 1997 | Notice of Hearing sent out. (hearing set for 3/20/98; 9:30am; Panama City) |
| Nov. 04, 1997 | (Petitioner) Status Report in Response to Order of Abeyance filed. |
| Oct. 09, 1997 | Order of Abeyance sent out. (parties to file status report by 11/5/97) |
| Oct. 09, 1997 | (Petitioner) Status Report in Response to Order of Abeyance and Motion for Continued Abeyance (filed via facsimile). |
| Jul. 24, 1997 | Order of Abeyance, Providing for Future Filings sent out. (parties to file status report by 9/5/97) |
| Jul. 17, 1997 | (Petitioner) Motion for Abeyance filed. |
| May 14, 1997 | Order sent out. (Motion for Leave to File Amended Administrative Complaints GRANTED) |
| May 02, 1997 | Motion for Leave to File Amended Administrative Complaint; Amended Administrative Complaint; Second Amended Administrative Complaint filed. |
| Apr. 22, 1997 | Order of Consolidation and Notice of Hearing (hearing set for August 4-5, 1997, 10:30am; Panama City; 97-369 & 97-1761 consolidated) sent out. |
| Apr. 17, 1997 | (Petitioner) Motion for Consolidation filed. (Cases requested to be consolidated: 97-369, 97-1761) |
| Apr. 14, 1997 | Joint Motion for Continuance filed. |
| Apr. 04, 1997 | (Petitioner) Notice of Related Case (for 97-0369 & 97-1761) filed. |
| Feb. 18, 1997 | Order of Prehearing Instructions sent out. |
| Feb. 18, 1997 | Notice of Hearing sent out. (hearing set for 5/2/97; 10:30am; Panama City) |
| Feb. 11, 1997 | Ltr. to EJD from M. Guy re: Reply to Initial Order filed. |
| Jan. 30, 1997 | Initial Order issued. |
| Jan. 27, 1997 | Amended Statement of Disputed Issues of Material Facts; Agency referral letter; Amended Administrative Complaint; Election of Rights filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 21, 1998 | Agency Final Order | |
| Nov. 25, 1998 | Recommended Order | Respondents engaged in unlicensed private investigation activities and failed to respond appropriately to the agency's investigative subpoena. |
