STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, ) DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 86-0077

)

ARTHUR LETOURNEAU, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on October 8, 1986, in Hollywood, Florida. The parties were afforded leave through November 3, 1986 to submit memoranda supportive of their respective positions. Petitioner's Counsel submitted a proposed Recommended Order on November 3, 1986, which was considered by me in preparation of this Recommended Order. Proposed findings and conclusions which are not incorporated in this Recommended Order are the subject of specific rulings in an Appendix to this Recommended Order.

APPEARANCES

For Petitioner: James V. Antista, Esquire

Senior Attorney Department of State The Capitol, LL10

Tallahassee, Florida 32301

For Respondent: W. Douglas Moody, Esquire

Post Office Drawer 11007 Tallahassee, Florida 32302

ISSUE

The issue presented for decision herein is whether or not the Respondent's private investigator licenses should be revoked based on conduct, set forth hereinafter in detail contained in an Amended Administrative Complaint filed herein mailed October 11, 1985.

Preliminary Statement

The Petitioner, Department of State, Division of Licensing, issued an Administrative Complaint to assess an Administrative fine against Respondent Arthur Letourneau, on November 9, 1984. The complaint was amended on March 5, 1985. A second amended complaint was issued on October 11, 1985 seeking revocation of Respondent's license. That complaint is the charging document which is the focus of this hearing. That document alleges as follows:

1. Count I: The Respondent operated a private investigative agency for hire utilizing unlicensed investigators and process servers prior to becoming licensed as a Class "A" agency in violation of Sections 493.319(1)(g) and 493.304(1), Florida Statutes.

   
   

2. Count II: The Respondent performed the services of a Private Investigator for hire without a Class "C" license in violation of Section 493.319(1)(g);

   
   

3. Count III: Respondent has incurred and has failed to satisfy two judgments for outstanding fees for private investigations which constitute misconduct under Section 493.319(1)(f).

   
   

   The investigations were performed by David Tracy and Anthony Luizzi and judgments and fees are outstanding in the amount of $5,314.44 (Tracy) and

   $1,731.00 (Luizzi).

   
   

   At the hearing, Respondent's Counsel filed an ore tenus Motion for Continuance of the hearing based on a claimed lack of timely notice to prepare for the hearing. Respondent's Motion was tentatively denied. 1/ Additionally, Respondent's Counsel challenged the constitutionality of Chapter 493, Florida Statutes, alleging, inter alia that the referenced statute violated Respondent's due process in that the statute was overbroad, ambiguous and may involve the prohibition of innocuous activities. Counsel also alleged that the statutes as enacted violated Respondent's First Amendment Right to freedom of speech.

   Finally, Respondent's counsel averred that conduct proscribed by Section 493.301, F.S. involved conduct which although improper to be engaged in by an unlicensed investigator, is the type conduct considered permissible by attorneys utilizing the services of investigators. The undersigned lacks authority to render determinations of the alleged unconstitutionality of statutes and therefore denied Respondent's Motion to Dismiss based on the alleged unconstitutionality of Chapter 493, Florida Statutes.

   
   

   FINDINGS OF FACT

   
   

   1. During times material, the Petitioner, Division of Licensing is the state agency having authority and jurisdiction to license and regulate private investigators and private investigative agencies pursuant to Chapter 493, Florida Statutes.

      
      

   2. Respondent, Arthur Leteurneau, applied for a Class "C" private investigator's license and a Class "A" private investigative agency's license on April 9, 1984. (Petitioner's Exhibit 2). The applied for licenses were issued to Respondent on September 21, 1984. Respondent holds Class "A" private investigative agency's license No. GA8400007 and Class "C" private investigation's license No. GC0400013, both effective September 21, 1984.

      
      

   3. Prior to his licensure in Florida, Respondent worked (in Florida) for various attorneys and law offices in Dade and Broward counties. (TR 211-225; Petitioner's Exhibit 1. Respondent performed a variety of services for said attorneys including the photographing of accident scenes, taking sworn witness statements, locating the whereabouts of witnesses and other persons and service of legal process. Additionally, while working for attorney Richard Auerbach, Respondent recruited two other individuals, Anthony Liuzzi and David Tracy to assist him in the performance of investigative work.

   4. David Tracy worked with Respondent from January thru September, 1983. (TR 91-95). Respondent gave Tracy specific work assignments such as the taking of witness statements, photographing accident scenes and completing client's interview sheets. At the time Tracy performed the services, he was not licensed as a investigator or as an intern. Tracy worked without a surety bond or insurance. A dispute arose between Respondent and Tracy concerning the payment of fees for Tracy's services. Tracy filed a claim against Respondent in Circuit Court, Broward County, regarding the payment for services and on September 18, 1984, a judgment was entered in his behalf in the amount of $5,314.44 for services rendered. (Petitioner's Exhibit 4, TR 100-103). That judgment was outstanding at the time of this hearing. (TR 107).

      
      

   5. Anthony Liuzzi began working with Respondent in July, 1883 and continued through September, 1983. At the time Liuzzi was a licensed investigator intern and was working under the sponsorship and insurance of the Intercounty Investigative Agency. (TR 133). Liuzzi, like Tracy, also assisted Respondent in completing work assignments including taking pictures of accident scenes, researching property ownership, interviewing clients and taking witness statements relating to personal injury claims. Like Tracy, Liuzzi also had a dispute with Respondent over fees for his services and filed a claim in Circuit Court for unpaid wages in the amount $1,731.00. Liuzzi received a judgment against Respondent in the amount climbed which was unsatisfied at the time of the hearing herein. (Petitioner's Exhibit 4; TR 138- 139).

      
      

   6. Prior to his licensure, Respondent spoke to several employees employed by Petitioner concerning the requirements for and his need to obtain an investigator's license in circumstances similar to the arrangements he had with the several lawyers for whom he performed investigative work. Excluding employee Pam Pingree, Respondent was advised (by Petitioner's staff) that he was not required to be licensed by Petitioner. Ms. Pingree advised Respondent that although it was not required that he be licensed, inasmuch as he was eligible for licensure and to remove any cloud concerning the need for him to be licensed, he should apply for and obtain a license.

      
      

   7. Respondent first spoke to Petitioner's employee Seymour Klosky on August 20, 1980. During the meeting with Klosky, Respondent also net with John Bianco, an investigator employed by Petitioner. Respondent later met with Harvey Matthews, also an employee of Petitioner, who related that what he was doing was permissible based on Respondent's detailed description of the manner in which he conducted assignments for the various attorneys. Respondent met with Matthews on October 8, 1983 and on February 9, 1984. TR 207-208.

      
      

   8. During the February 9, 1984 meeting with Matthews, Respondent requested a meeting with Pam Pingree who advised him of Petitioner's policy with respect to the need for licensure to engage in the type work that he was performing for attorneys. Ms. Pingree related that it "wasn't the policy of the Department to prosecute people if they have the qualification [Respondent] had, why don't he [Respondent] get a license." (TR 208). Respondent agreed to, and in fact applied for licenses, as indicated, on April 9, 1984.

      
      

   9. Respondent's application for licensure was investigated by Petitioner's employee Richard Chauncy. Respondent was investigated by investigator Chauncy on April 10, 1984. During the investigation, Respondent offered his experiences with law firms in Dade and Broward Counties as examples of the investigative experience he had. Additionally, Respondent listed his experience as a Deputy Sheriff with the Cook County Sheriff's office in Chicago, Illinois. Respondent was employed by the Cook County Sheriff's office from December 1970 thru July,

      1979 as a Deputy Sheriff. Respondent also served as a private investigator in Chicago from the period June, 1970 to October, 1981 as a self employed private investigator on a part time basis.

      
      

   10. Petitioner was well aware of the fact that Respondent conducted private investigative work for various law firms in the Miami area during a period in which he was not licensed as a private investigator or licensed to conduct a private investigative agency. (Petitioner's Exhibit 1) Additionally, Petitioner was aware that Anthony Liuzzi and David Tracy had filed complaints against Respondent based on the dispute for unpaid wages which is the subject of the amended administrative complaint filed herein. (Petitioner's Exhibit 1, Page 3, Section v.) Additionally, Liuzzi had filed with Respondent at least three complaint letters which were the subject of investigation by Petitioner, prior to the time Respondent filed his application for licensure. (Respondent's Exhibits 1, 3 and 4). The judgments, which are the subject of the amended administrative complaint, were entered shortly (three days) prior to Respondent's licensure. The operative facts forming the basis for the issuance of the judgments involve the disputed wage claims of Anthony Liuzzi and David Tracy.

       
       

   11. Respondent was qualified to hold a private investigative and private investigator's agency license based on the experience requirements set forth in Section 493.306(4), Florida Statutes (1985). Petitioner's policy is to "take disciplinary action against an applicant who performs investigative services without a license, generally in the form of an administrative fine, and at the same time grant an otherwise qualified person a license." (TR 26-28, Testimony of Petitioner's Division Director, Shelley Bradshaw).

       
       

   12. All of the work performed by Respondent, which is the basis of the complaint filed herein, was work performed prior to Respondent's licensure either as a private investigator or a private investigative agency.

       
       

       CONCLUSIONS OF LAW

       
       

   13. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.

       
       

   14. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

       
       

   15. The authority of the Petitioner is derived from Chapter 493, Florida Statutes and Rule Chapter 10, Florida Administrative Code.

       
       

   16. Based on Respondent's full and complete disclosure of his activities to Petitioner's employees prior to and during the period when his application for licensure was being investigated, and in the absence of any claims that Respondent fraudulently completed his application, which maybe a ground for revocation (See Godwin v. Department of Professional Regulation, 461 2d 226) Fla 1st DCA 1984)(rehearing denied 1985), all of the misconduct alleged in the administrative complaint herein which is the basis for disciplinary action against Respondent occurred before his licensure. As such, this conduct even though proscribed by Section 493.319(1)(g), Florida Statutes, cannot serve as a basis for Petitioner, as the licensing agency, to exercise disciplinary jurisdiction over Respondent. Nor is the alleged misconduct here complained of actionable on grounds that it resulted in placing Respondent in a disqualified status. See Cirnigliaro v. Florida Police Standards and Training Commission,

409 2d 80) Fla 1st DC-1982, where one who had been convicted of a misdemeanor involving moral turpitude was declared disqualified. A cardinal principle of administrative law is that a licensing agency cannot exercise disciplinary jurisdiction over a licensee for misconduct which occurred prior to the date of licensure, unless such misconduct was continuing in nature and extended beyond the date of licensure, or was committed as a result of false statements in or a material omission from the licensure application itself (See Department of Professional Regulation, Board of Real Estate v. Bruner DOAH Case No. 81-1658, entered April 26, 1982). There is no showing of such misconduct involved here.

RECOMMENDATION

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

That the Amended Administrative Complaint filed herein be DISMISSED with prejudice.

RECOMMENDED this 15th day of December, 1986, in Tallahassee Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 1986.

ENDNOTE

1/ The motion was not renewed following the conclusion of Petitioner's case-in- chief. Respondent's motion was therefore denied.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-0077

1. Proposed Findings of Fact 4(a), (b) and (c) separately stated in the Preliminary Statement of the Recommended Order.

2. Proposed Finding of Fact paragraph 6, substantially adopted page 3, paragraph 3. Remainder irrelevant or unnecessary to determine issue presented.

3. Proposed Finding of Fact paragraph 7, substantially adopted page 4, paragraph 1. Remainder rejected as irrelevant or unnecessary.

4. Proposed Finding of Fact paragraph 8, substantially adopted page 4, paragraph 2. Remainder rejected as irrelevant to determine issues presented.

5. Proposed Finding of Fact paragraph 9, rejected as irrelevant to determine issues presented. Last sentence of paragraph 9 adopted and cited on page 5, paragraph 3 of Recommended Order.

6. Proposed Finding of Fact paragraph 10, paragraph 1, substantially adopted, page 6, paragraphs 1 and 2 of Recommended Order. Paragraphs 2 and 3 rejected as legal argument and conclusions.

COPIES FURNISHED:

James V. Antista, Esquire Senior Attorney Department of State

The Capitol, LL10 Tallahassee, Florida 32301

W. Douglas Moody, Esquire Post Office Drawer 11007 Tallahassee, Florida 32302

Honorable George Firestone Secretary of State

The Capitol

Tallahassee, Florida 32301

Docket for Case No: 86-000077

Orders for Case No: 86-000077