STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 92-4294

)

DAVID J. BERRY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above- styled case on September 30, 1993, in Sarasota, Florida.

APPEARANCES

For Petitioner: Henri C. Cawthon

Assistant General Counsel Department of State

Division of Licensing

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

For Respondent: Ronald L. Jones, Esquire

1020 East Lafayette Street, Suite 108

Tallahassee, Florida 32301 STATEMENT OF THE ISSUES

Whether Respondent violated section 493.6118(1)(f) and 934.03, F.S. by placing wireless microphones on intern private investigators to intercept oral communications during an investigation.

PRELIMINARY STATEMENT

By Administrative Complaint dated February 27, 1992, as amended May 25, 1993, the Department of State, Division of Licenses, Petitioner, seeks to revoke, suspend, or otherwise discipline the licenses of David J. Berry, Respondent, as a Class "C" Private Investigator License and a Class "G" Statewide Firearms License. As grounds therefor it is alleged that in April 1991 Respondent placed wireless microphones on investigator trainees to intercept oral communications with the subject of an investigation and taped those communications.

At the hearing petitioner called two witnesses, Respondent called two witnesses and four exhibits were offered into evidence. Exhibit 1 was subsequently withdrawn as it was included in Exhibit 4. Exhibit 3, offered by

Respondent was objected to on the grounds that it was not an original and the original was not produced or accounted for. This objection was sustained.

Respondent stipulated that he was licensed as alleged.

The parties were given ten days following the filing of a transcript to submit proposed recommended orders. The proposed recommended order timely submitted by Petitioner is accepted. Respondent did not submit any proposed findings. Having fully considered all evidence the following is submitted.

FINDINGS OF FACT

1. At all times relevant hereto, Respondent held a Class "C" Private Investigator's License Number C90-00727 and a Class "G" Statewide Firearms License, Number G90-02226.

   
   

2. In April 1991 Respondent taught a Saturday morning class, the third or fourth week of that month, in which Beatrice Price and Ryan Martin were trainees.

   
   

3. At the conclusion of the lecture Respondent took the two trainees on a "real" investigation.

   
   

4. The subject of the investigation was a dentist, Dr. Kathleen Gerreaux, under surveillance on either a worker's compensation claim or a liability claim (conflict in the testimony and the type of surveillance is not relevant).

   
   

5. Respondent placed a microphone under the blouse of Beatrice Price a/k/a Beatrix Herrera and had her go to the office of Dr. Gerreaux to try and learn in what activities she was engaging. The conversation was recorded in Respondent's van parked some distance away.

   
   

6. When Herrera returned to the van the tape was replayed in her presence and the words of the investigator and Dr. Gerreaux could be clearly understood.

   
   

7. Shortly thereafter Dr. Gerreaux left her office and returned to her home. Respondent took the van to the vicinity of the residence, parked several houses away and rigged Ryan Martin with a microphone under his shirt and had him go to Dr. Gerreaux's home to attempt to get her to go jogging or perform some other exercise which could be videotaped. Herrera overheard the conversation between Martin and Dr. Gerreaux while waiting in the van.

   
   

8. This incident was not reported to Petitioner until several months later after Herrera had contacted plaintiff's investigator to complain about an incident which she was told she had been taped without her knowledge or consent. When told that her evidence was insufficient to support her claim Herrera told the investigator about the taping of the conversation with Dr. Gerreaux. This initiated the investigation which led to the Administrative Complaint filed herein.

   
   

9. After talking to Herrera and Martin the investigator also interviewed Respondent regarding the taping incident. Respondent admitted to the investigator that he had used Herrera and Martin to intercept the conversations with Dr. Gerreaux, but said the tapes were unintelligible. Respondent's version of this incident was similar to the testimony given at the hearing by Herrera except for the clarity of the taped conversation.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

11. Respondent is here charged with violating section 493.6118(1)(f), F.S. which lists activities constituting grounds for disciplinary action against the license which include:

    
    

    (f) Proof that the applicant or licensee is guilty of... misconduct in the practice of activities regulated under this chapter.

    
    

12. Section 934.03(1)(a) and (4)(a), F.S. provide that except as otherwise specifically provided in this chapter, any person who intentionally intercepts or endeavors to intercept any oral or electronic communication is guilty of a felony of the third degree.

    
    

13. Intentionally intercepting oral communications while acting under his license as an investigator constitutes misconduct as defined in section 493.6118(1)(f), F.S.

    
    

14. Respondent's contention that statements made by Respondent to the investigator are inadmissible because he was not given a Miranda warning is without merit. Respondent was not under arrest and the investigator had no authority to arrest him.

    
    

15. The fact that Respondent was teaching private investigative interns to use illegal methods of surveillance is an aggravating factor in determining the appropriate disciplinary action.

    
    

16. Guidelines for the imposition of punishment for violation of section 493.6118(1) are contained in Rule 1C-3.113, F.A.C. For violation of section 493.6118(1)(f) the appropriate penalty listed for misconduct in practice of regulated activities in violation of s. 493.6118(1)(f) is a $1000 fine.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That a final order be entered finding David J. Berry guilty of violating section 493.6118(1)(f), F.S. and that an Administrative fine of $1000 be imposed.

DONE AND RECOMMENDED this 2nd day of November, 1993, in Tallahassee, Leon County, Florida.

K. N. AYERS 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 2nd day of November, 1993.

COPIES FURNISHED:

Honorable Jim Smith Secretary of State The Capitol

Tallahassee, Florida 32399-0250

Phyllis Slater, General Counsel Department of State

The Capitol, PL-02

Tallahassee, Florida 32399-0250

Henri C. Cawthon Assistant General Counsel Department of State

Division of Licensing

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

Ronald L. Jones, Esquire

1020 East Lafayette Street, Suite 108

Tallahassee, Florida 32301

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: 92-004294

Orders for Case No: 92-004294