STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3372

)

GEORGE S. WILLIAMS )

)

Respondent. )

)

RECOMMENDED ORDER

After notice was given to the parties, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, in Orlando, Florida, on February 17, 1984. The issue for consideration here was whether Respondent should be disciplined because of the misconduct alleged in the Administrative Complaint.

APPEARANCES

For Petitioner: Carole J. Barice, Esquire

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

For Respondent: Hal Uhrig, Esquire

22 East Pine

Orlando, Florida 32801 BACKGROUND

On September 26, 1983, Mary Gast, Director, Division of Licensing in the office of the Secretary of State, filed an Administrative Complaint in this case against the Respondent, George S. Williams, alleging that during two separate periods, from January 1979 to October 1980, and from October 1982 to May 3, 1983, the Respondent operated in the State of Florida as a repossessor without being licensed to do so, in violation of Section 493.319(1)(9), Florida Statutes (1981). Respondent signed an Election of Rights form on October 19, 1983, in which he disputed the alleged facts and requested a formal hearing.

At this hearing, which Respondent did not attend, though he was represented by counsel, Petitioner presented the testimony of Mary Gast,' Director of Petitioner, Division of Licensing; and Willie Rister and Harvey Matthews, both investigators for Petitioner; and introduced Petitioner's Exhibit l, the Respondent's application for licensure and the documents allied thereto. The Respondent called no witnesses, but introduced Respondent's Exhibit A, a memorandum dated March 30, 1981, from the former Director of Licensing to all Class "A" licensees. The Hearing Officer also took official recognition of Chapter 493, Florida Statutes (1983), and Chapter 80-268, Laws of Florida.

RECOMMENDATION

That Respondent pay an administrative fine of $50.

RATIONALE FINDINGS OF FACT

1. On January 25, 1983, the Respondent, George S. Williams, submitted to the Division of Licensing, office of the Secretary of State, an application form for a Class "E" Repossessor's license in the State of Florida and enclosed with it the $25 filing fee. In Section 7 of the form, dealing with the applicant's employment history for the five years prior to the application, Respondent listed, inter alia, employment with Adams' Investigations, Inc., in Orlando, Florida, during the periods November 1979 to October 1980, and October 1982 to May 3, 1983. In the sworn Affidavit of Experience attached to the application, Respondent indicated that during the first period of employment with Adams, he handled actual repossessions in the field.

   
   

2. During the course of his case investigation leading up to the issuance of Respondent's license, Willie Rister, an investigator for the Division of Licensing, interviewed the Respondent. During this interview, Respondent told Mr. Rister that during both periods of employment with Adams Investigations, Inc., listed in the application, he was performing repossessions for Adams as a salaried employee at $400 per week.

   
   

3. The "EE" repossessor intern license did not exist under Florida Law until July 1, 1980, when the Florida Legislature revised Chapter 493, Florida Statutes. Notice of the change in the law requiring the need for "EE" licenses was not sent out to current "A" license holders until March 30, 1981. In fact, forms did not exist for applying for the Class "EE" license until well after the effective date of the new legislation.

   
   

4. Under the preexisting legislation, holders of Class "A" or Class "C" licenses could conduct repossessions. The new law provided that holders of Class "A" licenses could apply for and receive a new Class "E" license by submitting a complete application, along with an application fee, by May 14, 1981. This savings clause applied to holders of Class "A" licenses, But not to those who had no license at all. Under the new law, repossession work required either a Class "E" license, to work alone, or a Class "EE" license, to work for a licensed agency with an "E" license. Here, Respondent had not been previously licensed and held no license at all, "A," "C," "E," or "EE," until his "E" license was issued on May 21, 1983, and acted as are possessor, unlicensed, until that date.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties and tie subject matter of these proceedings.

   
   

6. In the Administrative Complaint, Respondent is alleged to have operated as a repossessor, without benefit of a license, from January 1979 to October 1980, and from October 1982 to May 3, 1983, in violation of Section 493.319(1)(g), Florida Statutes.

7. The former period would be covered by the 1979 edition of the Florida Statutes, which, at Section 493.01(6)(e), includes in the definition of the term "private investigation" the business of repossessing. Section 493.02(2), Florida Statutes (1979), prohibits the conduct of private investigations without receipt of a license. Section 493.319(1)(g), Florida Statutes (1981), is a follow on to that provision, and the conduct proscribed by the latter was also proscribed by the former.

   
   

8. The evidence in the form of Respondent's admission, both in his affidavit of experience and in his interview with Mr. Rister, coupled with his licensing history, which shows he was not licensed until May 21, 1983, clearly establishes his violation of the statute for that period in question.

   
   

9. During the latter period alleged, from October 1982 to May 3, 1983, the pertinent statute is Section 493.319(1)(g), Florida Statutes (1981), which permits disciplinary action against anyone who is "[c]onducting business without a license or with a revoked or suspended license."

   
   

10. As in the former case, again here, Respondent admitted to having acted as a repossessor working for Adams Investigations, Inc., for the period in question in his discussion with Mr. Rister. The license history showing his initial license issued on May 21, 1983, establishes the Respondent's violation of this latter statutory provision.

    
    

11. Counsel for Respondent made much of the fact that since the application forms were not available until mid- to late 1981, and since Respondent's employer, Mr. Adams, could not have, therefore, secured an "E" license on the basis of his existing "A" license, therefore, Respondent, working for Adams, could not get the "EE" license because of the requirement that a Class "E" Repossessor agree to sponsor the applicant for a year.

    
    

12. This argument might be relevant if it could be shown that Respondent tried to get a license and could not. However, here, the evidence shows that Respondent did not even try to get the "FE" license and did not apply for the "E" license until January 25, 1983, at least 18 months after the notice of change was sent out by Petitioner.

    
    

13. The parties have submitted posthearing legal memoranda which include proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law above. They have been otherwise rejected as contrary to the better weight of the evidence, not supported by the evidence, irrelevant to the issues, or legally erroneous.

RECOMMENDATION

Based on the foregoing, it is, therefore,

RECOMMENDED that Respondent, George S. Williams, pay a fine of $50.

RECOMMENDED this 15th day of March, 1984, in Tallahassee, 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 15th day of March, 1984.

COPIES FURNISHED:

Carole J. Barice, Esquire Office of General Counsel Department of State

The Capitol

Tallahassee, Florida 32301

Hal Uhrig, Esquire

22 East Pine

Orlando, Florida 32801

The Honorable George Firestone Secretary of State

The Capitol

Tallahassee, Florida 32301

Docket for Case No: 83-003372

Orders for Case No: 83-003372