STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRUCE HAHN, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2325S

)

DEPARTMENT OF STATE, )

DIVISION OF LICENSING )

)

Respondent. )

)

RECOMMENDED ORDER

Consistent with notice furnished to the parties a hearing was held in this case in West Palm Beach, Florida, on May 31, 1984, before Arnold II. Pollock, a Hearing Officer with the Division of Administrative Hearings. The issue for consideration was whether the Petitioner should be issued a Class C Private Investigator's License.

APPEARANCES

For Petitioner: Norman D. Zimmerman, Esquire

737 East Atlantic Boulevard Pompano Beach, Florida 33060

For Respondent: James V. Antista, Esquire

Office of the General Counsel Department of State, The Capitol Tallahassee, Florida 32301

BACKGROUND

On June 17, 1983, Respondent, Department of State, denied Petitioner's application for a Class C Private Investigator's license on the basis that he had been found guilty of a crime which directly relates to the business for which the license is held and was guilty of assault.

Thereafter, on July 6, 1983, Petitioner executed an Election of Rights form in which he indicated he disputed the facts on which the agency action was based and requested a formal hearing. After several continuances, the hearing was held as stated above.

At the hearing, Petitioner testified in his own behalf, but presented no exhibits, Respondent presented the testimony of Pam Pingree, Chief, Regulation and Enforcement Division for Respondent, and introduced Respondent's Exhibit A.

Petitioner's counsel has submitted a proposed Recommended Order which was considered in the preparation of this Recommended Order. To the extent that the proposed findings, conclusions of law and recommendation are not incorporated in

this Recommended Order, they were deemed irrelevant, immaterial or not otherwise supported by record evidence.

FINDINGS OF FACT

1. On or about January 25, 1983, Petitioner, Bruce Hahn, submitted an application for licensure as a Class A Private Investigative Agency to the State of Florida, Department of State, Division of Hearing. Thereafter, on April 5, 1983, he submitted an amendment to the application applying as well for a Class C Private Investigator's License. The Class A License was granted.

   
   

2. On his application Petitioner indicated he had been arrested for disorderly conduct and assault but had not been convicted of either. Records of the Circuit/County Court for Broward County, Florida, reflect that he was arrested for armed robbery, a felony, in Pompano Beach, Florida, on or about February 15, 1981, but was tried on a lesser offense of assault, a misdemeanor. Adjudication of guilt was withheld, but Petitioner was sentenced to six (6) months report probation.

   
   

3. Based on this, Respondent, on June 17, 1983, denied Petitioner's application for a Class C License. Grounds for denial cited the time were that Petitioner has been found guilty of the commission of a crime which directly relates to the business for which the license was to be held, regardless of adjudication, and the commission of an assault except in self-defense or the defense of a client, both of which related to his February 14, 1981 arrest.

   
   

4. According to Pan Pingree, Respondent considered the court ruling on the assault a determination of Petitioner's guilt of a criminal charge relating to the business of private investigation because in that job, he would have to be involved with the public. Respondent considers the statutory grounds for denial, as above, as a legislative fiat to consider crimes of violence in determining whether an applicant is fit to hold a license. Petitioner's offense was considered to be a crime of violence based on the assault which is specifically listed in the statutes. In addition, it was considered that the job of private investigation involves stress situations and the licensing agency must be satisfied licensees can be depended upon to react properly.

   
   

5. In making the decision to deny, Respondent carefully considered the arresting officer's report, the court charge, and the form on which the court listed its action withholding adjudication of guilt, and sentence. Petitioner contends he tried to submit his explanatory information to Respondent by phone, but admits he did not do so in writing. He contends he was interviewed by two

   (2) investigators to whom he told his story, who indicated to him there was no problem. Notwithstanding Petitioner's phone call to a secretary at the Division of Licensing and his attorney's phone call to Ms. Pingree (which she does not recall), there is no evidence that Respondent considered anything other than the documents referred to above in making its decision to deny him the Class C License.

   
   

6. In authorizing the Class A, Agency License, Respondent concluded that since Petitioner would have to have a manager who had a Class C License for the agency, this would insulate the owner (Petitioner) from the public, providing a degree of protection to the public.

   
   

7. At the time of the offense on which the denial was based, Petitioner was working for the Broward County (Florida) Building and Zoning office. At the time of the hearing, he was employed as an investigator for the Broward County

   Coroner. According to the Affidavit of Experience submitted with his application, Petitioner had previously been licensed as a Private investigator under State license #1052-A, doing business as Hahn Investigative Services, in Hollywood, Florida, during 1975 through 1977.

   
   

8. On the night of the offense, Petitioner, who had just undergone a divorce and was feeling sorry for himself, contends he was called to meet a friend of his at the lounge outside of which he was arrested. Unfortunately, he had too many drinks without eating and, on the way to his car to go home, he got sick to his stomach. He went behind a dumpster to vomit. While he was doing this, he heard steps behind him and, knowing he was in an unsavory area, he became concerned. When he turned around, he saw two (2) men behind him and said to them, "I don't want to get my ass kicked and I'm drunk. Leave me alone." At this point, he raised his hands. On cross examination, Petitioner admitted he was so drunk on the night in question he does not remember what time he went to the dumpster. He could not even find his car. Based on this admission, it is most likely he could not remember his words with such clarity and it is so found.

   
   

9. The arresting officer's report shows that when he arrived at the scene he observed an individual who matched the Petitioner's description, standing in the parking lot with his hands raised consistent with Petitioner's story. However, based on the report of another individual present, and not upon his own observation, he arrested the petitioner, not as the victim, but as the perpetrator of the offense. Petitioner contends that at the time he owned an

   $85,000.00 home and drove a Cadillac Seville to indicate he had no reason to steal, and he categorically denies he had a weapon or tried to assault or rob anyone. Though no weapon was found on the Petitioner, he does own one which, at the time in question, was in his nightstand at home. He does not now nor did he then have a permit to carry it. He was not carrying his wallet at the time of his arrest because, he contends, during the evening, he knocked over a chair in the bar and broke it and the bartender kept his wallet as security for the damage.

   
   

10. Petitioner claims he has no drinking problem now. He also contends, and there was no evidence to show otherwise, that he has no other arrest record nor was any disciplinary action taken against him at work because of this. At the time of his plea of Nolo Contendere, the court case had been set for hearing on three different occasions all of which had been cancelled. The suspense, he states, was eating him up because in his mind he had done nothing wrong. It is his testimony that when he explained all this to the judge, he said he understood and it was Hahn's attorney who advised him to enter that plea.

    Though he was sentenced in July to six (6) months probation, he did so well, he was released from probation the day before Thanksgiving--somewhat early.

    
    

11. If he is granted his Class C License it is his intention to form a partnership to perform star escort service and do missing children work.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of the proceedings.

13. Section 493.306, Florida Statutes, requires that each individual licensed by the Department of State shall:

    
    

    1. Be at least 18 years of age.

    2. Be of good moral character.

       
       

       "Good moral character" is defined in the Statute as a "... personal history of honesty, fairness, and respect for the rights of others and for the laws of this state and nation."

       
       

14. Under the provisions of Section 493.319(1), disciplinary action, including the denial of an application for licensure, can be taken when a licensee (or applicant) has:

    
    

    "(c)...been found guilty of the commission of a crime which directly relates to the business for which the license is held, regardless of adjudication."; and,

    * * * * * * * * *

    "(f) [committed] assault, battery, or kidnapping or use of force or violence or any person except in self-defense or in the defense of a client."

    
    

15. The Respondent has the responsibility to regulate the licensing of private investigators and has the discretion to take action denying an application for licensure if the evidence supports such action. Here, Respondent seeks to deny Petitioner's license as an investigator based on the violent nature of the offense to which he pleaded Nolo Contendere, and was sentenced, and it's potential relationship to the business for which the application was submitted. Petitioner admits that, on the face of it, Respondent probably had a basis for denial based on the record. It was this hearing at which Petitioner had the opportunity and responsibility to establish his entitlement to licensure by the preponderance of evidence.

    
    

16. Petitioner told his story of what happened, but, on cross examination, admitted he was so drunk at the time he could not remember what actually happened. He brought no witnesses to clarify the situation or testify to his good character. Good character is one of the prerequisites for licensure as a private investigator. Respondent's concerns regarding the risk of misconduct under stress by Petitioner are well taken and legitimate. Assault is an offense which has a definite relationship to the conduct of private investigators. Petitioner has failed to present any evidence, aliunde his own self-serving testimony, to reasonably dispel these concerns. This misconduct on the part of Petitioner constitutes a violation of Section 493.319(1)(c), above, and supports denial of his license application.

    
    

17. In substance then taken at it's best, the evidence presented by the Petitioner was insufficient to establish that his application for a Class C License should be granted.

RECOMMENDATION

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

RECOMMENDED THAT Respondent deny Petitioner's application for a Class C Private Investigator's License.

RECOMMENDED This 28th day of August, 1984, in Tallahassee, Leon County, Florida.

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1984.

COPIES FURNISHED:

The Honorable George Firestone Secretary of State

Department of State The Capitol

Tallahassee, Florida 32301

James V. Antista, Esquire Office of the General Counsel Department of State

The Capitol

Tallahassee, Florida 32301

Pam Pingree, Chief

Bureau of Regulation and Enforcement Division of Licensing

Department of State The Capitol

Tallahassee, Florida 32301

Norman D. Zimmerman, Esquire 737 East Atlantic Boulevard Pompano Beach, Florida 33060

Docket for Case No: 83-002325

Orders for Case No: 83-002325