STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) Case No. 98-0574

)

JON BOWDOIN AND ASSOCIATES, )

JON BOWDOIN, OWNER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on May 5, 1998, in Largo, Florida, before Carolyn S. Holifield, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Michele Guy

Assistant General Counsel Department of State,

Division of Licensing

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

For Respondent: Jon Bowdoin, Owner

Jon Bowdoin and Associates 3323 U. S. Highway 19

Suite 901

Palm Harbor, Florida 34684 STATEMENT OF THE ISSUE

Whether Respondent failed to maintain general liability insurance coverage as required by Section 493.6110, Florida Statutes, and, if so, what penalty should be imposed on his Class "A" Private Investigative Agency License and his Class "C"

Private Investigator License.

PRELIMINARY STATEMENT

On or about January 7, 1998, Petitioner, Department of State, Division of Licensing (Department), filed an Administrative Complaint (Complaint) against Respondent, Jon Bowdoin (Respondent). In the Complaint, the Department alleged in one count that Respondent failed to maintain in full force and effect the general liability insurance coverage required by Section 493.6110, Florida Statutes, and that such failure constitutes a violation of Section 493.6118(1)(h), Florida Statutes. Respondent challenged the allegations and timely requested a hearing. On January 30, 1998, the matter was referred to the Division of Administrative Hearings for assignment of an administrative law judge to conduct the formal hearing.

At commencement of the hearing, several preliminary matters were considered. First, counsel for Petitioner made an ore tenus motion to have Admissions previously served on Respondent. The motion was denied deemed as admitted. Respondent had not responded to said admissions. Next, Respondent renewed an earlier filed Demand for Trial by Jury (Demand), and objected to the hearing going forward without a jury. The renewed demand was denied and the hearing provided after the undersigned advised Respondent that there was neither authority, for nor a right to, a jury trial in an administrative forum.

At hearing, Petitioner called no witnesses. Petitioner

offered eight exhibits into evidence, seven of which were received into evidence over Respondent’s objection. The basis of Respondent’s objection to Petitioner’s Exhibit 7, the deposition testimony of Cheri Hill, customer service representative, Contanza Insurance Company, was that due to receiving short notice of the deposition and having a prior commitment, he had been unable to participate in the telephone deposition. In response to Respondent’s objection to Petitioner’s Exhibit 7, the undersigned offered to leave the record open for a reasonable time after the hearing to allow Respondent to depose Ms. Hill.

However, Respondent indicated that leaving the record open for that purpose was unnecessary, in that he did not intend to depose Ms. Hill because he believed her testimony was irrelevant.

Respondent called no witness and offered no exhibits into evidence.

The proceeding was recorded but not transcribed. Both Petitioner and Respondent timely filed proposed recommended orders.

FINDINGS OF FACT

1. Respondent currently holds a Class “A” Private Investigative Agency License, having been issued License No. A96- 00005 pursuant to Chapter 493, Florida Statutes, effective

   June 15, 1996, and expiring on June 15, 1998.

   
   

2. Respondent currently holds a Class “C” Private Investigator License No. C94-00709, issued pursuant to

   Chapter 493, Florida Statutes, effective January 23, 1997, and

   
   

   expiring on December 7, 1998.

   
   

3. As of June 28, 1996, Respondent had general liability insurance coverage relative to his Class “A” license through Scottsdale Insurance Company, West Palm Beach, Florida. This insurance policy expired on June 28, 1997.

4. Respondent currently has insurance coverage relative to his Class “A” license through Costanza Insurance Agency, Inc., Dallas, Texas. The effective period of this insurance coverage is from August 5, 1997, through August 5, 1998.

5. Respondent did not file Form LC2E018, Certificate of Insurance, with the Department as required to evidence that his agency, Jon Bowdoin and Associates, had insurance coverage in force during the period beginning June 29, 1997, through

   August 4, 1997.

   
   

6. Respondent had no insurance coverage relative to his Class “A” license for the period June 29, 1997, through August 4, 1997.

7. Respondent’s Class “A” Private Investigative Agency License was not in an inactive status during the period June 29, 1997, through August 4, 1997.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.569 and 120.57(1), Florida Statutes.

9. The Department has jurisdiction over private investigative agencies and private investigators licensed under Chapter 493, Florida Statutes. Section 493.6121, Florida Statutes.

10. In the Administrative Complaint, the Department alleges in one count that Respondent failed to maintain in full force and effect general liability insurance as required by

    Section 493.6110, Florida Statutes. The Department further alleges that such failure constitutes a violation of Section 493.6118(1)(h), Florida Statutes, and is the basis for imposing disciplinary action against Respondent and/or his licenses issued under this chapter.

11. In disciplinary proceedings such as this, the Department has the burden of proving by clear and convincing evidence that Respondent committed the violation alleged in the Administrative Complaint. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 292 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

12. Section 493.6110, Florida Statutes, provides that "no agency license shall be issued unless the applicant first files with the Department a certificate of insurance evidencing" such coverage. With regard to licensed agencies, that provision states in pertinent part the following:

    1. The licensed agency shall notify the department immediately upon

       cancellation of the insurance policy, whether such cancellation was initiated by the insurance company or the insured agency.

    2. The agency shall be automatically suspended upon the date of cancellation unless evidence of insurance is provided to the department prior to the effective date of cancellation.

13. Pursuant to its rulemaking authority, the Department promulgated Rule 1C-3.116(2), Florida Administrative Code, which provides:

    1. Insurance. Each Class 'A', 'B' or 'R' agency must file Form LC2E018, Certificate of Insurance, . . . evidencing liability coverage issued by an insurance company licensed in Florida which provides coverage for the actions of all licensed employees in an amount and manner as delineated in

       Section 493.6110, Florida Statutes.

       
       

       * * *

       
       

       (b) Cancellation of coverage automatically renders an agency's license suspended and requires termination of all activities regulated under chapter 493. Such suspension remains in effect until valid coverage has been obtained and proof of coverage has been provided to the Division. . . .

14. Section 493.6118, Florida Statutes, enumerates the conduct or offenses for which the Department may take disciplinary action against licensees, agencies, or persons regulated by that chapter provides in pertinent part:

    (1) The following constitute[s] 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 persons engaged in activities regulated under this chapter.

    
    

    * * *

    
    

    (h) Failure of licensee to maintain in full force and effect the general liability insurance coverage required by s. 493.6110.

    
    

15. Section 493.6114, Florida Statutes, provides a limited exception to the aforementioned insurance requirement for licensees who have placed his or her license in an inactive status. However, that exception is inapplicable in the instant case.

16. The Department has met its burden in this case. It is undisputed that from June 29, 1997, through August 4, 1997, Respondent's Class "A" Private Investigative Agency License was in an "active" status. Furthermore, the Department has established by clear and convincing evidence that Respondent failed to file a Form LC2EO18 evidencing that he had insurance coverage for the period June 29, 1997, through August 4, 1997.

17. Because the Department established that the required proof of insurance was not filed by Respondent, there is a rebuttable presumption that Respondent does not have the required insurance coverage. In order to overcome this presumption, Respondent must demonstrate by competent and substantial evidence that he had the required insurance coverage during the time in question. Here, Respondent offered no such evidence.

18. Based on the foregoing, the Department has met its

    burden. It has shown by clear and convincing, and undisputed, evidence that Respondent failed to maintain in full force and effect the general liability coverage for the period June 29, 1997 through August 4, 1997, as required by Section 493.6110, Florida Statutes. This violation constitutes grounds for which the Department may take disciplinary action.

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

    
    

19. Section 493.6118(2), Florida Statutes, provides that when the Department finds any violation of subsection(1) of 493.6118, Florida Statutes, it may issue a reprimand, impose an administrative fine, place a license on probation, or suspend or revoke a license. In furtherance of this statutory scheme, the Department has adopted Rule 1C-3.113, Florida Administrative Code, which sets forth penalties to be used as guidelines in imposing disciplinary action.

20. The penalty sought to be imposed by the Department, an administrative fine of $700, is within the prescribed disciplinary range and is appropriate in light of the facts of this case.

RECOMMENDATION

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

RECOMMENDED that the Department enter a final order (1) finding that Respondent committed the violation alleged in the Administrative Complaint filed herein; (2) imposing an

administrative fine of $700.00; and (3) placing Respondent's Class "A" Private Investigative Agency License on one year non- reporting probation.

DONE AND ENTERED this 16th day of June, 1998, in Tallahassee, Leon County, Florida.

CAROLYN S. HOLIFIELD

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 16th day of June, 1998.

COPIES FURNISHED:

Michelle Guy

Assistant General Counsel Department of State,

Division of Licensing

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

Jon Bowdoin, Owner

Jon Bowin and Associates 3323 U. S. Highway 19

Suite 901

Palm Harbor, Florida 34684

Don Bell, General Counsel Department of State

The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0250

Honorable Sandra B. Mortham Secretary of State

The Capitol

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.

Docket for Case No: 98-000574

Orders for Case No: 98-000574