STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, DIVISION ) OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 89-6750

)

FRANK ROBERT KUIKEN, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tallahassee, Florida on March 12, 1990, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For the Petitioner: Henri C. Cawthon, Esquire

Assistant General Counsel Department of State Division of Licensing

The Capitol, Mail Station #4 Tallahassee, Florida 32399-0250

For the Respondent: Was not present and was

not represented by counsel.

STATEMENT OF THE ISSUES

The issue for consideration was whether the Respondent, Frank R. Kuiken, Jr., should be disciplined because of the misconduct alleged in the Administrative Complaint filed herein.

PRELIMINARY STATEMENT

On November 9, 1989, John M. Russi, Director, Division of Licensing for the Department of State, executed an Administrative Complaint in this case alleging that the Respondent, Frank R. Kuiken had violated various provisions of Chapter 493, Florida Statutes, by conducting business as a private investigative agency without being licensed as a private investigative agency; conducting business as a private investigator without being licensed as a private investigator; failing to have appropriate required insurance coverage; and failing to have the required occupational license. On December 1, 1989, the Respondent requested a formal hearing on the allegations, and by letter dated December 7, 1989, the matter was forwarded to the Division of Administrative Hearings for the appointment of a Hearing Officer.

By Notice of Hearing dated January 3, 1990, the undersigned set the case for hearing on February 16, 1990, but because there appeared to be a substantial possibility that Respondent had misunderstood the instructions from the undersigned relative to the potential for holding the hearing by telephone conference call, and to afford Respondent all reasonable opportunity to participate, with the consent of counsel for Petitioner, the undersigned, on February 16, 1990, continued the scheduled hearing and reset it for March 12, 1990 in Tallahassee. The Order granting the continuance specifically provided for a telephone conference call and outlined the steps to be taken, including notice, by either party requesting such a hearing. No request for a telephone conference hearing was received by either the undersigned or counsel for Petitioner, and the hearing was held in a hearing room at the Division of Administrative Hearings in Tallahassee, Florida, as noticed in the Notice of Hearing. Neither Respondent nor counsel for Respondent appeared.

At the hearing, Petitioner presented the testimony, by deposition, of Michael Kenyon, a Manatee County, Florida Deputy Sheriff, and Eugene Blitch, a special investigator for the Department of State, Division of Licensing. The depositions were received as Petitioner's Exhibits 2 and 3. Petitioner also introduced Petitioner's Exhibit 1.

No transcript was provided and neither party submitted Proposed Findings of Fact.

FINDINGS OF FACT

1. At approximately 3:00 PM on August 30, 1989, Manatee County Sheriff's Deputy Michael Kenyon saw Respondent's wife, Michelle, driving their automobile in the city of Bradenton with a blue flasher posted on the dash board inside the windshield. Because the unauthorized use of such a light is prohibited by law, Deputy Kenyon stopped Ms. Kuiken and when he approached the car, noticed she had moved the light from the dashboard to the floor. When he asked her why she had such a light in the car, she replied that her husband, a private investigator, used it in the course of his business in emergency situations.

   
   

2. Deputy Kenyon requested Respondent be contacted and come to the scene. When he arrived, Kuiken advised Kenyon that he was a private investigator and used the light only in cases of extreme emergency in the performance of those duties. He further related he had not yet had the opportunity to use it. Mr. Kuiken also indicated that in addition to being a private investigator, he was a process server appointed by two local judges, and a court officer.

   
   

3. Deputy Kenyon attempted to verify Respondent's claim to being a court officer but was unable to do so. Upon request, Respondent refused to show a private investigator's license, but indicated he had a permit to carry a concealed weapon. Several days later, Mr. Eugene Blitch, an investigator with the Department of State's Division of Licensing, was contacted by the Bradenton Police Department regarding Mr. Kuiken's claim to being a private investigator, and requested to confirm the licensing status. Blitch's inquiry and search of official state records revealed that Kuiken was the holder of a concealed weapon permit but did not hold, does not now hold, and never has held a license as either a private investigator or a private investigative agency. There was no evidence presented with reference to the occupational license.

4. Respondent's business card, which he gave to the Deputy Sheriff indicates he holds himself out, without qualification, as an "investigator" offering surety recovery, missing persons searches, and service of process services. He claims this card was not given out to the general public but only to attorneys and finance companies for whom he worked on a contract basis.

   
   

5. On September 7, 1989, Mr. Blitch, in the company of a Manatee County detective, went to the Respondent's home in Bradenton where upon inquiry from Blitch, Respondent admitted he did not hold a license to do private investigative work. He also indicated he carried no liability insurance but claimed, however, that he did not work for the public and did not advertise or hold himself out to the general public as a private investigator. He indicated he worked for attorneys, as a process server, and as an employee of ITT Financial Services. Inquiry of the manager of this concern revealed Respondent was not an employee of the company but did security and investigative work for it on a contract basis from time to time.

   
   

6. During his interview with Blitch, Respondent denied having admitted to the deputy that he was a private investigator, but the other evidence contradicts this and is found to be more credible. The evidence of record clearly indicates that Respondent held himself out as an investigator, and the hearsay statement of the ITT manager confirms this.

   
   

7. Respondent asserted to Mr. Blitch that since he did no work for the general public and limited his activity solely to process serving, work for attorneys, and for ITT, he was not required to be licensed. When advised that his understanding was incorrect, he quickly agreed to do whatever was necessary to "get legal".

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

   
   

9. Section 493.319(1), Florida Statutes, permits disciplinary action to be taken for:

   
   

   1. Conducting business without a license or with a revoked or suspended license;

   2. Failure of the licensee to maintain in full force and effect the general liability insurance coverage, if required, referred to in s. 493.31; and

      (p) Violating any provision of this chapter.

      
      

10. If appropriate in a given case, the department may impose one or more of the following:

    
    

    (2)(a) Deny an application for licensure.

    1. Revoke, suspend, or refuse to renew a license.

    2. Impose an administrative fine not to exceed $1,000.00 for every count or separate offense.

    3. Issue a reprimand.

    4. Place the licensee on probation for a period of time and subject to such

    conditions as the department may specify.

    
    

11. In its Administrative Complaint, Petitioner has alleged that the Respondent conducted business in Florida as a private investigative agency from early 1989 to September 7, 1989 without a Class "A" license, (Count I); as a private investigator during the same period without a Class "C" license, (Count II); as an agency during the same period without proper insurance coverage, (Count III); and that he failed to obtain an occupational license as an agency, (Count VI [sic]); and seeks to impose a fine of up to $1,000.00 for each count.

    
    

12. Section 439.322(3), Florida Statutes, provides:

    
    

    The department shall have the authority to enjoin any licensed or unlicensed person, firm, ..., from operating when such person, ..., is advertising as providing or is engaged in performing services which require licensing under this part.

    
    

13. Section 493.30, Florida Statutes, defines a "private investigative agency" as:

    
    

    . . . . any person, firm, ... which, for consideration, advertises as providing or is engaged in the business of furnishing private investigations.

    
    

    and a "private investigator" as:

    
    

    any person who, for consideration, advertises as providing or performs the services of private investigation ....

    
    

14. Were it not for Respondent's admissions that he gave to attorneys and selected businesses his business card, advertising his credentials and his willingness to do security recovery and missing person searches, there would be scant evidence of misconduct upon which to base disciplinary action against him. The comments regarding his work by the ITT manager was clearly hearsay in character and as such, by itself, could not support a finding that he had done the work. In addition, his admissions to both the police and Mr. Blitch were devoid of any specifics.

    
    

15. Nonetheless, the statute is issue here lists as grounds for action, "conducting business without a license." It does not limit its application to licensed persons. Respondent freely admitted to both the deputy sheriff and Mr. Blitch that he was conducting investigations. His business card, freely given to Mr. Kenyon, indicates he held himself out as prepared to do that, and the hearsay testimony of the ITT manager is admissible to corroborate his admissions and confirms them. Applying all reasonable inferences from the evidence presented results in the inescapable conclusions that Respondent was violating Section 439.319(1)(g), by conducting the business of private investigation without a license as an individual, but absent any evidence of his operating an

    agency, not in that latter capacity. He is, therefore, subject to discipline under the provisions of Section 493.319(2). See Department of State, Division of Licensing v. Wingard, DOAH Case 89-5307, Final Order dated March 6, 1990.

    
    

16. The only appropriate disciplinary action available under the statute is an administrative fine. In light of the relatively minor nature of the infraction and the absence of any aggravating circumstances, a maximum fine is not appropriate.

RECOMMENDATION

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

RECOMMENDED that the Respondent, Frank Robert Kuiken, Jr., be assessed an administrative fine of $250.00.

RECOMMENDED this 11th day of April, 1990, in Tallahassee, Florida.

ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 1990.

COPIES FURNISHED:

Henri C. Cawthon, Esquire Department of State Division of Licensing

The Capitol, Mail Station #4 Tallahassee, Florida 32399-0250

Docket for Case No: 89-006750

Orders for Case No: 89-006750