STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PATRICIA T. UYAAN, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1377S

)

DIVISION OF LICENSING, )

DEPARTMENT OF STATE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before R. L. Caleen, Jr., Hearing Officer with the Division of Administrative Hearings ("DOAH"), on September 1, 1981, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Lee S. Carlin, Esquire

333 East Monroe Street Jacksonville, Florida 32202

For Respondent: James Antista, Esquire

Room 106, Gray Building Tallahassee, Florida 32301

ISSUE PRESENTED

Whether Petitioner has sufficient experience in private investigative work to qualify her for licensure as a Class "C" private investigator under Section 493,306(4), Florida Statutes (Supp. 1980).

BACKGROUND

Petitioner Patricia T. Uyaan ("Applicant") filed her first application for a private detective's license in 1979.

The Division of Licensing, Department of State ("Department") denied her application on the ground that she lacked the three years' experience required for licensure; Applicant then requested a hearing on the Department's denial.

At hearing before a DOAH hearing officer on August 10, 1979, Applicant established that, as operator of ABC Locating Service, she had four years' experience "conducting investigations and searches to locate runaway children and investigations into the activities of spouses" (R-3). The Department presented no evidence that controverted Applicant's testimony or was adverse to her qualifications. In his Recommended Order, the hearing officer concluded that Applicant possessed the necessary experience and recommended that the Department issue the requested license.

However, in its final order issued during October, 1979, the Department rejected the hearing officer's recommendations and denied the license based on Applicant's failure to supply sufficient details about her investigative experience:

The applicant did not produce any testimony as to the specific dates that she performed the services relied upon to establish her experience under the statute, nor did she present any testimony as to the number and types of cases handled monthly, yearly or cumulatively during the three year period, nor did she provide competent, substantial testimony as to the manner in which she conducted the investigations upon which she relied to establish her experience. (R-3, p. 2.)

In July, 1980, Applicant applied--once again-- for a license as a private detective. By letter dated April 19, 1981, the Department notified her that it intended to deny her application because (according to its investigative report) she did not meet the "2 years experience and/or training" requirement of Section 493.306(4), Florida Statutes (Supp. 1980).

Applicant timely requested a formal hearing on the Department's intended denial of her application; the Department granted her request and referred this case to the Division of Administrative Hearings on May 12, 1981. Hearing was thereafter set for September 1, 1981.

At final hearing, the Applicant testified in her own behalf and called Jeanette Harvey, Kenneth Kosobud, Linda Franasiak, and Deann Rose as witnesses; she offered Petitioner's Exhibit 1/ Nos. 1 through 3 into evidence, each of which was received.

The Department called no witnesses but offered Respondent's Exhibit 1/ Nos. 1 through 3 into evidence, which was received.

The testimony was mechanically preserved but not transcribed. Neither party submitted proposed findings of fact or conclusions of law.

Based on the evidence presented at hearing, the following facts are determined:

FINDINGS OF FACT

1. In July, 1980, Applicant applied for a Class "C" license as a private detective. By letter dated April 9, 1981, the Department denied the requested license solely on the ground that she failed to meet the minimum "2 years experience and/or training" requirement of Section 493.306(4), Florida Statutes (Supp. 1980. 2/ The Department concedes that, except for her alleged lack of investigative experience, she is qualified for the requested license. (Stipulation of counsel; R-1, R-2)

2. Since 1973, Applicant has engaged in the business of furnishing for- hire private investigative services under the name of ABC Locating Service, a business located in Orange Park, Florida. She started the business as a modest venture; she was unaware that a private investigator's license was required and was also unsure of her ability to conduct private investigations. (Testimony of Applicant.)

   
   

3. Over the years, her small and tentative investigation agency has grown into a substantial business. Since January, 1978, she has conducted more than

   200 private investigations; from 1979 to 1980, her investigations consumed over 5,000 hours. The gross receipts from her investigative work exceeded $8,400 during 1978 and $12,100 during 1979. If issued a license by the Department, she plans to expand her activities and relocate her business to a commercial office building. 3/ (Testimony of Applicant; P-3)

   
   

4. In the operation of her business, Applicant has conducted numerous private investigations for the purpose of obtaining information with reference to: (a) the identify, habits, conduct, movements, whereabouts, and character of persons; (b) the credibility of witnesses and other persons; (c) the whereabouts of missing persons; (d) the location of lost or stolen property; and (e) the preparation and trial of civil or criminal cases. 4/ Several typical investigations are described below:

   
   

   1. February, 1977; Criminal Investigation (four weeks): A mother hired Applicant to investigate son's arrest on shoplifting charges.

      Applicant questioned merchant about incident and investigated behavior and past records of son's accomplices; investigation revealed that client's son had a peripheral role in crime and

      resulted in his receiving a probationary sentence rather than imprisonment.

   2. December, 1979; Criminal Investigation (nine months): A teenager hired Applicant to investigate the circumstances surrounding his conviction on drug-related charges and placement in the Lancaster Correctional Institution for a six-year term. She investigated witnesses and police officers, examined court records, and identified conflicting accounts of the incident. The evidence she gathered was presented to a court, and resulted in her client's release and placement on five years' probation.

   3. August, 1977 Surveillance Investigation

      (two weeks): A wife hired Applicant to investigate the conduct and movements of her husband who was neglecting his family responsibilities. Applicant visited subject's place of employment, questioned his coworkers and placed under surveillance the

      bar which he commonly frequented. Eventually, the subject visited the bar and left in the company

      of a female with whom he spent the night. This information, with photographs, was presented to Applicant's client and led to a dissolution of the marriage.

   4. November, 1980; Surveillance Investigation (four weeks): A wife hired Applicant to investigate the conduct and movements of her husband. After questioning the subject's friends and placing him under surveillance, Applicant gathered evidence indicating that he was having an illicit relation- ship with another woman and using heavy drugs.

   5. August, 1977; Missing Person Investigation (approximately ten days): A mother hired Applicant to locate her missing daughter. Applicant inter- viewed subject's friends, checked popular gathering places for teenagers, and eventually located her daughter at a local movie theater.

   6. February, 1979; Surveillance Investigation (three days): A wife hired Applicant to investigate conduct, habits, and movements of her husband who was neglecting his family responsibilities. Applicant placed him under surveillance and discovered that he was suffering from a serious drinking problem.

   7. February, 1979; Missing Person Investigation (three days): A mother hired Applicant to locate her missing 12-year-old son. Applicant found the subject by visiting his school and interrogating his friends and classmates.

   8. February, 1979; Surveillance Investigation (two weeks): A mother hired Applicant to locate and identify an individual who was selling illicit drugs to her son. With the assistance of the Orange Park Police Department, Applicant conducted a joint undercover investigation; she made a "buy" using marked money which resulted in the drug dealer's arrest and conviction.

      
      

      (Testimony of Harvey, Kosobud, Franasiak, Rose; P-3.)

      
      

5. On several occasions, Applicant worked closely with and assisted Sergeant Mike Probst, Orange Park Police Department, in recovering stolen property and locating missing persons. Information which she gave to Sergeant Probst resulted in several drug arrests and convictions. (Testimony of Applicant; P-2.)

   
   

6. Prior to opening ABC Locating Service, Applicant applied for and obtained a Clay County occupational license to engage in business as a clairvoyant. (She testified that she has unique psychic abilities which have sometimes proven helpful in locating missing persons.) Although she still has a clairvoyant license, she has little time available to practice that occupation; almost all of her energies are devoted to her investigation service. The two occupations are unrelated in that when she occasionally practices as a clairvoyant, she operates out of a separate building and keeps a separate set of business records. (Testimony of Applicant.)

   
   

7. As part of her second application for a private investigator's license, Applicant executed an Affidavit of Experience (on a one-page Department form) attesting that she had conducted over 400 private investigations in the last three years; that those investigations involved locating missing persons, checking the background of employees and in-laws, recovering stolen property,

   investigating thefts, and aiding in the defense of accused persons. In an effort to supply additional specific information, she attached a 4 1/2 page, single-spaced description of 17 separate private investigations she had conducted from 1977 to 1980. In spite of this seemingly ample description and substantiation of her investigative experience, the Department concluded that "according to [its] . . . investigative report, you [Applicant] do not meet the [experience] requirements" for licensure. (R-1, R-2.)

   
   

8. Yet, at hearing, the Department presented no investigator, no investigative report, no witnesses, and no evidence to rebut or controvert the testimony of Applicant. The only affirmative position taken by the Department was that the burden was on Applicant to demonstrate investigative experience sufficient for licensure under Chapter 493, Part 1, Florida Statutes (Supp. 1980).

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57, Florida Statutes (1979).

   
   

10. Section 493.304, Florida Statutes (Supp. 1980), provides in part:

    
    

    (3) Any person who performs the services of a private investigator shall have a Class "C" license.

    
    

    The Department is empowered to issue such licenses. s. 493.305, Fla. Stat. (Supp. 1980).

    
    

11. In order to qualify for a Class "C" license, an applicant must be at least 18 years of age, of good moral character, and have two years' experience or training in one, or a combination of the follows:

    
    

    1. Private investigative work or related fields of work that provided equivalent experience or training;

    2. College course work and seminars related to private investigation, except that no more than 1 year may be used from this category; or

    3. Work as a Class "CC"-licensed intern. (Emphasis supplied.)

       
       

       s. 493.306(1), (4), Fla. Stat. (Supp. 1980).

       
       

12. "Private investigation" is defined by Section 493.30(4), Florida Statutes (Supp. 1980), to include investigation by a person for the purpose of obtaining information with reference to, inter alia, the following:

    
    

    1. The identity, habits, conduct, movements, whereabouts, affiliations, association, trans- actions, reputation, or character of any person, group of persons, association, organization, society, other group of persons or partnership, or corporation.

    2. The credibility of witnesses or other persons.

    3. The whereabouts of missing persons.

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

    * * *

    (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.

    
    

13. In licensing proceedings, the applicant ordinarily has the burden of establishing entitlement to the license. s. 28-6.08(3), F.A.C. In this case, Applicant has sustained her burden by presenting clear, convincing, and uncontroverted evidence. It is concluded that Applicant has demonstrated that she has had two years or more of experience in "private investigative work" within the meaning of Section 493.306(4)(a), Florida Statutes (Supp. 1980).

    See, s. 493.30(4), supra. Since the Department concedes that she meets all other requirements for licensing, the Applicant is entitled to the issuance of a private investigator's Class "C" license.

    
    

14. Agencies subject to the Administrative Procedure Act ("APA") are required to conduct licensing proceedings "with reasonable dispatch and with due regard to the rights and privileges of all affected parties . . . ." s. 120.60(2), Fla. Stat. (1979). When an agency intends to deny a license, it must "set forth in writing the grounds or basis for denial . . . ." Rule 28-6.08, F.A.C.

    
    

15. On the record of this case, it appears that Applicant has been subjected to a time-consuming, difficult, and financially burdensome licensing ordeal. Since January, 1979, she has filed two applications and participated in two formal hearings 5/ in an effort to overcome the Department's repeated denials of her applications.

    
    

16. The Department denied her first application because it concluded that, at hearing, she did not provide sufficient details concerning her investigative experience. 6/ When the Applicant reapplied with a lengthy and specific description of her investigative experience, the Department again denied her application because of her inadequate experience as shown by its "investigative report." How, or why Applicant's experience was deemed inadequate was not explained then, and was not explained later at hearing.

    
    

17. The APA places burdens upon all parties to a licensing hearing. Cf., Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981). An agency has a duty to explain and justify its reasons for denying a license application. In this case, we are left to speculate on the true reasons for the Department's denial. Under such circumstances, it may fairly be questioned whether the Applicant's rights and privileges have been treated with "due regard." See, s. 120.60(2), supra.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That the Department issue Applicant a private investigator's Class "C" license.

DONE AND RECOMMENDED this 29th day of September, 1981, in Tallahassee, Florida.

R. L. CALEEN, JR. Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Telephone: (904) 488-9675

FILED with the clerk of the Division of Administrative Hearings this 29th day of September, 1981.

ENDNOTES

1/ Petitioner's and Respondent's Exhibits will be referred to as "P- ," and "R- ," respectively.

2/ Prior to July 1, 1980, private investigators were licensed as "private detectives." s. 493.06(1), Fla. Stat. (1977). By enactment of Chapter 80-268, Laws of Florida (1980), effective July 1, 1980, the Legislature replaced the term "private detective" with the term "private investigator." In addition, the new statute reduced the "investigative experience" requirement from three to two years.

3/ Until now, her business has been located in a small building next to her residence.

4/ These activities fall within the statutory definition of "private investigations." See s. 493.30(4), Fla. Stat. (Supp. 1980).

5/ In the first hearing, she represented herself, without an attorney; at the hearing in this case, she was represented by counsel.

6/ On the surface, this seems to be a deficiency that could easily have been addressed by the Department's cross-examination of Applicant.

COPIES FURNISHED:

Lee S. Carlin, Esquire

333 East Monroe Street Jacksonville, Florida 32202

James Antista, Esquire Room 106, Gray Building Tallahassee, Florida 32301

The Honorable George Firestone Secretary of State

The Capitol

Tallahassee, Florida 32301

Docket for Case No: 81-001377

Orders for Case No: 81-001377