vs. ) CASE NO. 88-0863
Respondent. )
Before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.
R. Timothy Jansen, Esquire, of Tallahassee, for Petitioner.
Velda Sue Hopkins, of Plant City, pro se.
A formal administrative hearing was held in Tampa, Florida on April 22, 1988, on an Administrative Complaint filed by the Petitioner, the Department of State, Division of Licensing, charging the Respondent, Velda Sue Hopkins, formerly known as Velda Sue Histed, with violating Chapter 493, Florida Statutes, which regulates private investigators, by working as a private investigator on an expired license and by failing to return unearned fees.
Until August 1986, the Respondent, Velda Sue Hopkins, formerly known as Velda Sue Histed, was licensed by the Petitioner, the Department of State, Division of Licensing (the Department), as a private investigator intern under the sponsorship of Robert Byrnes of the Byrnes Detective Agency.
As her Class "CC" intern license was about to expire, Hopkins arranged for Byrnes to handle the paperwork to get her license renewed. At the time there would have been no renewal fee.
The Department's evidence did not dispel indications raised by the evidence that Byrnes only very loosely supervised and trained Hopkins while she was an intern. The standards he required her to meet were low. Generally, he seems to have had Hopkins do investigative work for him for half of the fees his agency charged. Hopkins would make oral reports to Byrnes from time to time.
Byrnes' substandard method of supervising Hopkins either was the result of, or was worsened by, the effects his wife's cancer had on him. Concerned about his wife, he was distracted from the business of his agency and became forgetful about details of his business.
Among the things Byrnes did not attend to was the renewal of Hopkins' intern license. The license expired and was not renewed. Both Hopkins and Byrnes knew or should have known that Hopkins' license had expired.
In January 1987, David Stepp contacted Byrnes to have his ex-wife investigated in connection with a child custody proceeding. Stepp wanted evidence that his ex-wife was using illegal drugs. He believed that she was smoking marijuana. Byrnes referred him to Hopkins.
Stepp and Hopkins met on January 28, 1987. Neither showing much experience or competence in investigating, Stepp and Hopkins settled on a dubious scheme supposedly designed to have Hopkins catch Stepp's ex-wife "in the act." It was decided that Hopkins and a girlfriend would "stage a breakdown" in the parking lot of the Davis Island campus of Hillsborough Community College, where Stepp's ex-wife worked. Somehow, this was supposed to lead to an opportunity for Hopkins to observe the ex-wife "in the act.1,
During the meeting, Stepp paid Hopkins a $200 retainer, plus $100 for expenses, including to pay the girlfriend, who supposedly was to serve as a "lookout" and was to help engage the ex-wife socially, and to buy drugs, if necessary. Out of the retainer, the Byrnes agency was to get $25 per hour for Hopkins' time. Half of this would go to the agency and half to Hopkins. The "lookout" was to be paid $5 an hour.
On the same day, January 28, 1987, Hopkins and Stepp began their bumbling efforts to carry out the plan. They drove to the college campus so Stepp could show Hopkins the ex- wife's car. For some reason, Hopkins drove Stepp's car. Stepp pointed out his ex-wife's car but Hopkins was unable to write down the license tag number. Hopkins wanted to drive by a second time but Stepp was afraid his ex-wife might happen to look out onto the parking lot and recognize his car. Besides, he had given Hopkins pictures of his ex-wife and would be able to get the license tag number by other means (although he never did.)
On the afternoon of the next day, January 29, 1987, Hopkins went to the college with her friend, the so-called "lookout," and waited for an hour but the ex-wife never showed up. Hopkins had the wrong car but it didn't matter because after she called Stepp to report, Stepp found out that the ex-wife had left work early.
On February 3, 1987, Hopkins and her "lookout" tried again and waited for twenty minutes but could not find the ex-wife's car.
For some unexplained reason, nothing else happened for about another month. It was determined that Hopkins would try again on March 3, 1987. Stepp and his business partner, Jack Widi, drove to the college to be sure his ex-wife was there this time, and they saw her car in the parking lot at about 10 a.m. They then met with Hopkins and her friend, the "lookout," at about 11 a.m. Hopkins asked for and got an additional $75 retainer, and Stepp also directly paid the "lookout" another $15 or $20 cash.
At the meeting on the morning of March 3, 1987, Stepp and Widi also discussed enlisting Hopkins in another scheme they had concocted, this time to "set up" a business competitor that supposedly had been slandering the work their glass company was doing. Stepp and Widi wanted to catch them in the act by having Hopkins get an estimate for a wall mirror from Stepp Glass Company and then call for an estimate from the competitor, Harmon Glass, presuming that this
would result in Harmon Glass making a slanderous comment about Stepp Glass. Hopkins suggested she pose as the owner of a house. (She rented an apartment.) Stepp and Widi said the true owner of the house had to have an "impeccable reputation." Hopkins told them that she had just the person for the job.
The evidence is not clear whether an agreement was reached for Hopkins to start on the "slander case" before she left supposedly to investigate the ex- wife again. At some point on March 3, 1987, Widi gave Hopkins a company check for $150 as a retainer for the "slander case."
At about 2-2:30 p.m., Hopkins reported to Stepp that his ex-wife had not returned from lunch. Stepp, Widi, Hopkins, and her friend decided that they would try again on Friday, March 6, pay day, and then further discussed the "slander case." Hopkins understood that she and her girlfriend should go directly to Harmon Glass to try to engage the manager in conversation preliminary to calling for an estimate. Stepp said the manager liked pretty girls and easily could be manipulated by them.
When Hopkins and her friend left, Stepp drove to the college and found his ex-wife's car parked in the same space it was in that morning. He concluded that Hopkins had been lying to him and was just trying to string out both of the so-called investigations to bilk Stepp and Stepp Glass for more money.
Stepp then called another investigator to get some advice and discovered that Hopkins' license had expired. Stepp and Widi concurred that Hopkins should be fired, but Stepp viewed the situation as touchy because he had a child custody hearing that Friday, March 6, and he decided to just put Hopkins off while getting back the pictures he had given her for use at the custody hearing.
Meanwhile, Hopkins and her friend went to Harmon Glass on March 3 in an unsuccessful attempt to speak to the manager. On March 4 or 5, Hopkins reported to Stepp by phone. Hopkins' friend later set up an appointment to meet with the Harmon Glass manager on Monday, March 9. On Friday, March 7, Hopkins tried to call Stepp and was told he was not available to talk but had left a message for her to bring the pictures to Stepp's office. She did, and Stepp still was not available to talk. Hopkins kept trying to call and did not reach him until around noon on Saturday, March 8. Stepp told Hopkins that he had been in court Friday and won custody of his child. He also said he would no longer need her services and asked for any money and reports due him. He expected to get back all $150 of the retainer for the "slander case."
In addition to going to court on Friday, March 7, Stepp also had gone to the Tampa Police and had sworn out a complaint against Hopkins for grand theft of $525 by fraud.
Stepp also filed a complaint with the Department on March 17, 1987.
On May 21, 1987, the Department investigator interviewed Hopkins and advised her that it was illegal for her to do investigation work until she got either a new "CC" intern license or a "C" investigator license. Notwithstanding the pending charges, Hopkins got a new "CC" license on July 21, 1987. Later, Hopkins applied for and got a "C" license.
Neither Hopkins nor Byrnes Detective Agency has paid back any money to Stepp or Stepp Glass. Although Stepp filed charges for grand theft and made one general request for the return of money due him, he never again contacted Hopkins or Byrnes for payment. Hopkins did not believe any money was owed after Byrnes got his half of the fees, she got her fees and expenses, and her girlfriend was paid, as agreed.
There were no written reports other than Hopkins's handwritten notes. Neither Hopkins nor Byrnes arranged to have Hopkins's handwritten notes put in report form and given to Stepp. Stepp never pursued this request either.
CONCLUSIONS OF LAW
Section 493.319(2), Florida Statutes (1987), provides:
When the department finds any violation of subsection (1), it may do one or more of the following:
Deny an application for licensure.
Revoke, suspend, or refuse to renew a license.
Impose an administrative fine not to exceed $1,000 for every count or
separate offense.
Issue a reprimand.
Place the licensee on probation for a period of time and subject to such conditions as the department may
specify.
The Administrative Complaint charges that, by working as an investigator without a valid license and by failing to return unearned fees, Hopkins violated Section 493.319(1)(p), Florida Statutes (1987), which prohibits violating any provision of Chapter 493.
At and after the hearing, the Department elaborated, charging that, by working as an investigator without a valid license, Hopkins violated Sections 493.304(4), 493.313(6), and 493.319(1)(g), Florida Statutes. Section 493.304(4), Florida Statutes, provides that "any person who performs private investigative work as an intern . . shall have a Class `CC' license." Section 493.313(6), Florida Statutes, provides that "[no person . . . shall carry on any business regulated by this part during any period which may exist between the date of expiration and the date of renewal of a license." Section 493.319(1)(g), Florida Statutes, prohibits "conducting business without a license or with a revoked or suspended license."
In addition, at and after the final hearing, the Department charged that, by working without a valid license and failing to return unearned fees, Hopkins violated Section 493.319(1)(f), Florida Statutes (1987), which authorizes discipline upon "[p]roof 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 or sought."
As already concluded, Hopkins did work as an investigator without a valid license, a violation in itself. But Section 493.319(1)(g) should not be interpreted to provide another basis for discipline of a licensee for the same offense. Otherwise, the evidence discloses a fee dispute between Byrnes Detective Agency, on the one hand, and Stepp and Stepp Glass, on the other. A fee dispute is not grounds for discipline of Hopkins.
It should be noted that the evidence raised serious questions as to Hopkins' overall lack of competency in private investigation. But the Department neither alleged this violation nor attempted to prove the standards
of performance to which it investigators, if any. 2/ Besides, Hopkins still was an intern (albeit with an expired license) at the time of the facts of this case, supposedly being trained and supervised by Byrnes so as to become a competent investigator. If Hopkins fell short, Byrnes was supposed to have corrected her.
As to the violation for working as an investigator without a valid license, it should be noted once again that she was working under the sponsorship of a licensed investigator who also knew her intern license had expired. While this is not a defense, it should be taken into consideration in assessing the appropriate discipline.
Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Petitioner, the Department of State, Division of Licensing, enter a final order finding the Respondent, Velda Sue Hopkins, guilty of violating Sections 493.304(4), 493.313(6), and 493.319(1)(g) , Florida Statutes (1987), and imposing a fine of $500.
RECOMMENDED this 27th day of June, 1988, in Tallahassee, Florida.
J. LAWRENCE JOHNSTON Hearing Officer
Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 1988.
1/ Explicit rulings on the parties' proposed findings of fact may be found in the attached Appendix To Recommended Order, Case No. 88-0863.
2/ It is noted that, despite her questionable competency as an investigator based on the facts in this case, the Department not only re-licensed Hopkins as an intern on July 21, 1987, but subsequently gave her a "C" license as an investigator.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0863
To comply with Section 120.59(2), Florida Statutes (1987), the following explicit rulings are made on the parties' proposed findings of fact:
(The Respondent's proposed findings of fact were not numbered but, for purposes of these rulings, are assigned consecutive numbers.)
1. Rejected as contrary to facts found.
3. Second sentence, rejected as contrary to facts found; rest, rejected but the facts show a fee dispute between the clients and the detective agency.
R. Timothy Jansen, Esquire Department of State Division of Licensing
