STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3395

)

RON ADAMS, )

)

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 INFORMATION

On September 23, 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, Ron Adams, alleging that Respondent allowed an unlicensed employee to perform repossessions in violation of Section 493.319(1)(f), Florida Statutes. No particulars were alleged in the Administrative Complaint, however, Respondent did not move for a more definite statement or in any way object to the pleadings. Instead, through counsel, Respondent participated in the hearing and in no way objected to Petitioner's evidence, which more specifically defined the allegation. Respondent, on October 19, 1983, signed an Election of Rights form in which he disputed the facts and requested a formal hearing.

At the hearing, which Respondent did not attend, but at which he was represented by counsel, Petitioner presented the testimony of Mary Gast, the Director of Petitioner, Division of Licensing; and Willie Rister and Harvey Matthews, both investigators for Petitioner; and introduced Petitioner's Exhibit 1, George S. Williams' application for licensure as a repossessor. 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" licenses. 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 $100.

RATIONALE FINDINGS OF FACT

1. From November 1979 to October 1980, and again from October 1982 to May 3, 1983, the Respondent, Ron Adams, who operated Adams Investigations, Inc., in Orlando, Florida, employed George S. Williams as, among other duties, a repossessor for the sum of $400 per week.

   
   

2. During both periods of employment, Mr. Williams held no type of license covered or provided for by the provisions of Chapter 493, Florida Statutes.

   This fact was known by Mr. Adams, who admitted it to Mr. Willie Rister, an investigator for the Petitioner.

   
   

3. At the time of the hearing, Respondent held a valid Class "A" license, a Class "C" license, and a Class "E" license. At the times in question, Respondent held at least a valid Class "A" license. No evidence was presented as to the "C" license, and the "E" license was not available until sometime in 1981.

   
   

4. The Florida Legislature revised Chapter 493, Florida Statutes, effective July 1, 1980, to require a Class "E" or "EE" license for repossessors. Prior to that time, holders of a Class "A" or "C" license could repossess. The Division of Licensing was not prompt in notifying individuals of the change to the law or in making application forms available to the public.

   
   

5. However, during the period leading up to the passage of the legislation in question, and afterwards, Respondent Adams served on the Private Security Advisory Council, an advisory body of the Department of State, to serve as liaison between the agency and the regulated industry. Members of this body generally are very familiar with the rules and regulations of the industry; and, according to Ms. Gast, who worked with the Council and who knows Respondent, Mr. Adams was instrumental in drafting the repossessor rules. Ms. Gast recalls that when the Council took the position that the Department of State should not allow credit for unlicensed experience in determining if an application meets the criteria for licensure as a repossessor, Respondent was present and voted for that position. Therefore, he was intimately familiar with the new legislation, its history, and its intended application.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding.

   
   

7. Petitioner has alleged that Respondent is guilty of a violation of Section 493.319(1)(g), Florida Statutes, by allowing an unlicensed employee to perform repossessions. As was stated above, the pleading is extremely loose in defining the time, place, and other particulars of the alleged infraction.

   However, since Petitioner alleged the statute violated as Section 493.319(1)(f), Florida Statutes, it must be construed to mean the 1981 version, since that particular language first appeared in the 1981 Florida Statutes, where it states:

   
   

   1. The following constitute grounds for which disciplinary action specified in subsection (2) may be taken:

      * * *

      (f) Proof that the licensee is guilty of fraud or deceit, or of negligence, incompetency, or misconduct, in the practice of his business for which the license is held. . . .

      
      

8. Similar language appears in the 1979 edition of Florida Statutes, where, at Section 493.14(1)(f), the Department is given authority to discipline a licensee:

   
   

   (f) If the licensee or any of his employees is incompetent, or is guilty of conduct against the interest of the general public, or has been convicted of a felony in this, or any other state, and has not had his civil rights restored.

   
   

   It could well be said that allowing an unlicensed individual to act as a repossessor is conduct against the interest of the general public since, at that time, though the "E" or "EE" licenses did not exist, repossessors had to have either an "A" or "C" license to operate. Mr. Williams had neither.

   
   

9. However, when Petitioner alleged violation of only Section 493.319(1)(f), Florida Statutes, it limited itself to misconduct which occurred during the effective period of that provision. The unlicensed repossessions of Mr. Williams in 1979 and 1980 do not meet that restriction, and Respondent cannot be held to have violated a statute which was not in existence at the time. On the other hand, Mr. Williams did not have a license of any nature in 1982 and 1983, and Respondent knew it. He also knew the requirements of the legislation, having worked closely with the Department in the development of the rules by which his industry was regulated. In light of this, it is clear that by knowingly allowing Mr. Williams to work for him as an unlicensed repossessor, he is guilty of misconduct which violated the terms of the statute, without justification or excuse.

   
   

10. 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.

RECOMMENDED ACTION

Based on the foregoing, it is, therefore,

RECOMMENDED that Respondent, Ron Adams, pay an administrative fine of $100.

DONE AND ENTERED 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: 83-003395

Orders for Case No: 83-003395