STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT FILECCI, )

)

Petitioner, )

)

vs. ) CASE NO. 90-7171S

)

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on February 6, 1991, at Fort Lauderdale, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.

Appearances at the hearing were as follows:

APPEARANCES

FOR PETITIONER: Joseph Whitehead, Esquire

2455 Hollywood Boulevard

Hollywood, Florida 33020

FOR RESPONDENT: Henri C. Cawthon, Esquire

Assistant General Counsel Department of State Division of Licensing

The Capitol, MS #4

Tallahassee, Florida 32399-0250 STATEMENT OF THE ISSUES

The issue in this case is whether the Petitioner, Mr. Robert Filecci, is entitled to a Class "C" Private Investigator license. The Respondent proposes to deny the license on the grounds that the Petitioner has failed to establish sufficient experience to qualify for the license. The Petitioner claims entitlement to the license on the grounds that the Respondent is estopped to deny issuance of the license.

PRELIMINARY STATEMENT

At the commencement of the hearing it was stipulated by the parties that the original style of this case was incorrect and that the style should be corrected to show Mr. Filecci as the Petitioner and the Division of Licensing as the Respondent. At the hearing the parties introduced one joint exhibit. The Petitioner also introduced as separate Petitioner's exhibits portions of the joint exhibit. The Petitioner testified on his own behalf, but did not call any additional witnesses. The Respondent introduced two additional exhibits but did not call any witnesses. At the conclusion of the hearing the parties were

granted ten days within which to file their proposed recommended orders. No transcript was ordered. The Respondent filed a timely proposed recommended order on February 15, 1991; the Petitioner filed a late one on February 25, 1991. 1/ All proposed findings of fact submitted by all parties are specifically addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. On January 15, 1987, the Division received Petitioner's application for a Class "CC" Private Investigator Intern License. The Division issued Petitioner's "CC" Intern's License on March 19, 1987.

   
   

2. On October 12, 1987, the Division received Petitioner's application for an upgrade to a Class "C" Private Investigator's License. Included with the application was a Completion of Sponsorship Letter reflecting a total internship of twenty-three months, and a letter from Troopers International Security Corp. reflecting investigative and bodyguard experience from May 1976 to June 1979. The Division issued the Class "C" license on December 14, 1987.

   
   

3. On February 13, 1989, the Division filed an Administrative Complaint seeking to revoke Petitioner's Class "C" license based on two violations of Section 493.319(1)(c), Florida Statutes (1989), conviction of crimes directly related to the business for which the license is held.

   
   

4. On April 13, 1989, prior to final disposition of the Administrative Complaint seeking to revoke Petitioner's Class "C" license, he applied for a Class "A" Private Investigative Agency License.

   
   

5. A Final Order revoking Petitioner's Class "C" license for the criminal violations was entered on June 29, 1989.

   
   

6. On July 10, 1989, eleven days after revocation of the Class "C" license, the Division issued Petitioner's Class "A" agency license.

   
   

7. Petitioner subsequently filed a Notice of Appeal of the Final Order revoking his Class "C" license.

   
   

8. On February 27, 1990, the parties entered into a Stipulation and Agreement wherein Petitioner would withdraw his appeal and be allowed to apply for a Class "C" Private Investigator's License. The Division stipulated that it would not take disciplinary action against Petitioner's Class "A" agency license based solely upon the criminal convictions, and Petitioner would be placed on probation for a period of one year. The parties stipulated that Petitioner would also be allowed to apply for a Class "G" Statewide Gun Permit on September 1, 1990. The agreement also provided that the Division would not deny Petitioner's Class "C" license application based solely upon his 1988 misdemeanor convictions.

   
   

9. On April 3, 1990, Petitioner applied for a Class "C" Private Investigator License.

   
   

10. The Division of Licensing investigated Petitioner's experience background and concluded that Petitioner did not have the required experience. By letter dated July 13, 1990, the Division informed Petitioner he did not have the required two years experience and gave him thirty days to respond with additional information. Petitioner did not respond in writing within the thirty day period.

11. By letter dated August 30, 1990, the Division informed Petitioner his Class "C" application was denied based on his failure to respond to the letter of July 13, 1990, and because he did not have two years of verifiable experience as required by Section 493.306(4), Florida Statutes.

    
    

12. Petitioner obtained the Class "A" license mentioned above in order to be better able to pursue a full time career as a private investigator. Petitioner also abandoned his furniture refinishing business in order to operate the private investigation agency. The abandonment of the furniture refinishing business was sometime prior to the revocation of Petitioner's Class "C" license in 1989.

    
    

13. Much of the same experience that was listed on Petitioner's 1987 application was also listed on his 1990 application. The July 13, 1990, letter from the Division of Licensing proposing to deny Petitioner's application states that the basis for denial is Petitioner's failure to demonstrate the required experience. The denial letter also states that much of the experience listed by Petitioner cannot be credited as qualifying experience because it was obtained under circumstances which required the Petitioner to have certain licenses that he did not have.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

15. In a case of this nature, the party seeking licensure bears the burden of demonstrating entitlement to the license sought. See Rule 28-6.08(3), Florida Administrative Code, and Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981). If the proof is insufficient to demonstrate entitlement to the license, the license application must be denied.

    
    

16. It was stipulated at the commencement of the hearing that Petitioner meets all requirements for a Class "C" license other than the experience requirements. Accordingly, in order to demonstrate entitlement to licensure, Petitioner must prove either that he has obtained the required experience or that the Division of Licensing is estopped from denying his license application on the basis of insufficient experience.

    
    

17. Section 493.306, Florida Statutes, sets forth the requirements for licensure by the Division of Licensing. Subsection (4) of that statute reads:

    
    

    1. In addition to the above requirements, an applicant for a Class "C" license must have 2 years' experience or training in one, or a combination of more than one, of the following:

       1. Private investigative work or related fields of work that provided equivalent experience or training;

       2. College course work and seminars related to private investigation, except that no more than 1 year may be used from this category; or

       3. Work as a Class "CC"-licensed intern.

18. Apparently because of his reliance on the estoppel theory, Petitioner did not present any evidence regarding his experience or training beyond the information that is contained in his application. 2/ It cannot be determined from the information in the application whether Petitioner's experience and training is sufficient to meet the requirements of Section 493.306(4), Florida Statutes.

    
    

19. Turning now to Petitioner's theory of estoppel, it is clear that the doctrine of equitable estoppel may be effectively applied against state agencies, but only in rare situations and under exceptional circumstances. See cases collected at 16 Florida Digest 2d, Estoppel, key number 62.2. The elements necessary to establish equitable estoppel in Florida are described as follows in Fiorentino v. Department of Administration, Division of Retirement,

    463 So.2d 338 (Fla. 1st DCA 1985), at page 341:

    
    

    In Florida, equitable estoppel consists of four elements: (1) a representation by the

    party estopped to the party claiming the estoppel as to some material fact; (2) which representation

    is contrary to the condition of affairs later asserted by the estopped party; (3) a reliance upon the representation by the party claiming the estoppel;

    and (4) a change in the position of the party claiming the estoppel to his detriment, caused by the representation and his reliance thereon.

    
    

20. The essence of Petitioner's argument is that the act of the Division of Licensing in granting Petitioner's 1987 application for a Class "C" license constituted a representation that the Petitioner did in fact have the requisite two years of experience, and that in stipulating to dismiss the appeal of his license revocation proceedings, he relied to his detriment on that representation. 3/ For the reasons which follow, the argument fails.

    
    

21. When the Division of Licensing issued Petitioner's 1987 Class "C" license it relied on Petitioner's representations in that application regarding his experience and on an investigation of that background that tended to confirm Petitioner's representations. Petitioner made similar representations regarding his experience on the instant application. Investigation of Petitioner's background in this instance tended to refute the Petitioner's assertions, thus prompting the proposed denial. The important point is that the 1987 application was granted in reliance on Petitioner's representations to the Division of Licensing; not on the basis of the Division's representations to Petitioner. Under such circumstances, the issuance of a license or permit does not estop the state from later seeking to revoke or deny such a license or permit. See Bill Salter Outdoor Advertising, Inc. v. Department of Transportation, 492 So.2d 408 (Fla. 1st DCA 1986), and T & L Management, Inc. v. Department of Transportation,

    497 So.2d 685 (Fla. 1st DCA 1986), in both of which cases the court held that the Department of Transportation was not estopped from revoking permits issued on the basis of information provided by the applicant which information was later discovered to be false or misleading.

    
    

22. Petitioner's estoppel argument also fails because an essential element of estoppel is a representation as to some material fact. The issuance of a license or permit does not appear to be a representation of fact. Rather, it is more in the nature of a conclusion of law or a legal opinion based on the information provided by the applicant. Thus, if the act of issuing a license or permit is treated as being a "statement," it is more nearly a statement of law

rather than a statement of fact. As a general rule, state agencies are not estopped by mistaken statements of law. Dept. of Revenue v. Hobbs, 368 So.2d

367 (Fla. 1st DCA 1979); Austin v. Austin, 350 So.2d 102 (Fla. 1st DCA 1977).

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that the Division of Licensing issue a Final Order in this case denying the Petitioner's application for a Class "C" license.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of March 1991.

MICHAEL M. PARRISH

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 4th day of March 1991.

ENDNOTES

1/ Even though filed late, the Petitioner's proposed recommended order has been carefully considered and his proposed findings of fact have been specifically addressed. But counsel are cautioned that such may not always be the case in the future. It appears to be within the discretion of a Hearing Officer to disregard a late-filed proposed recommended order absent a showing of good cause for its tardiness.

2/ That information is at page 19 of Joint Exhibit 1.

3/ The Petitioner's estoppel argument also seeks to rely on Petitioner's testimony that Division of Licensing employees told him he would be granted a Class "C" license if he filed a new application. No findings of fact have been made based on that testimony because it was too vague and general to be of legal significance. Specifically, there is no showing that any of the employees who allegedly made such statements were fully informed of the facts, nor is there any showing that they were authorized to make such representations. The state may not be estopped by unauthorized acts or representations of its officers.

Greenhut Const. Co. v. Henry A. Knott, 247 So.2d 517 (Fla. 1st DCA 1971). Further, a statement predicting the action to be taken on an application that had not yet been filed is more in the nature of a legal opinion, rather than a representation of fact. As a general rule, administrative officers are not estopped by mistaken statements of law. Dept. of Revenue v. Hobbs, 368 So.2d

367 (Fla. 1st DCA 1979); Austin v. Austin, 350 So.2d 102 (Fla. 1st DCA 1977).

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-7171S

The following are the specific rulings on all proposed findings of fact submitted by all parties.

Findings proposed by Petitioner:

Paragraphs 1 through 11: Accepted.

Paragraph 12: First three sentences covered in prior findings. Fourth and fifth sentences rejected as contrary to the greater weight of the evidence, especially as contrary to the written stipulation. Last sentence rejected as irrelevant because the evidence fails to show the circumstances under which any such assurances were made and fails to show that anyone who made such a statement was authorized to do so. Also, this testimony is simply too vague and imprecise to support an estoppel argument.

Paragraph 13: Accepted in substance.

Paragraph 14: First two sentences accepted in substance. Last two sentences rejected as irrelevant because the Petitioner did not attempt to prove his prior experience.

Findings proposed by Respondent:

Paragraphs 1 through 11: Accepted.

Copies furnished:

Joseph Whitehead, Esquire 2455 Hollywood Boulevard

Hollywood, Florida 33020

Henri C. Cawthon, Esquire Assistant General Counsel Department of State Division of Licensing

The Capitol, MS #4

Tallahassee, Florida 32399-0250

The Honorable Jim Smith Secretary of State

The Capitol

Tallahassee, Florida 32399-0250

Phyllis Slater, Esquire General Counsel Department of State

The Capitol

Tallahassee, Florida 32399-0250

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-007171

Orders for Case No: 90-007171