STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, DIVISION ) OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 92-4379

) AND NOTHING BUT THE TRUTH ) PRIVATE INVESTIGATOR, FRANK )

J. LANZILLO, OWNER, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, the Division of Administrative Hearings, by its duly- assigned Hearing Officer, William R. Cave, held a formal administrative hearing in the above-captioned case on September 9, 1992, in Bradenton, Florida.

APPEARANCES

For Petitioner: Henri C. Cawthon, Esquire

Assistant General Counsel Department of State Division of Licensing

The Capitol, MS-4

Tallahassee, Florida 32399-0250

For Respondent: James D. Carter, Esquire

1111 3rd Avenue West Suite 150

Bradenton, Florida 34205 STATEMENT OF THE ISSUES

Whether Respondent's Class "A" Private Investigative Agency License and Class "C" Private Investigator License should be revoked, suspended or otherwise disciplined.

PRELIMINARY STATEMENT

By an Administrative Complaint dated May 11, 1992, the Petitioner, Department of State, Division of Licensing (Department), is attempting to revoke, suspend or otherwise discipline Respondent's Class "A" Private Investigative Agency License and Class "C" Private Investigator License, and as grounds therefor, alleges that Respondent recorded and listened to a cellular telephone conversation without prior notice to the parties, in violation of Section 943.03, Florida Statutes, thereby constituting a violation of Section 493.6118(1)(f), Florida Statutes. The Respondent disputed these allegations and requested a formal hearing, pursuant to Section 120.57(1), Florida Statutes. By

letter dated July 17, 1992, the Department transferred the matter to the Division of Administrative Hearings requesting the assignment of a Hearing Officer and the conduct of a formal hearing. The matter was assigned to a Hearing officer and scheduled for hearing on September 9, 1992, in Bradenton, Florida.

At the hearing, the Department presented the testimony of Daniel J. Cabrana, Jerry W. Bolton and Edward R. Judy. The Department's exhibits 1, 2 and

3 were received into evidence. Respondent testified on his own behalf but presented no other witness or any documentary evidence.

A transcript of the proceedings was filed with the Division of Administrative Hearings on September 23, 1992. The Department timely filed its proposed findings of fact and conclusions of law. The Respondent has failed to file any proposed findings of fact and conclusions of law. A ruling on each proposed finding of fact submitted by the Department has been made, as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. At all times relevant to this proceeding, the Respondent held an active Class "A" Private Investigative Agency License and an active Class "C" Private Investigator License, bearing numbers A89-00270 and C88-00259, respectively.

   
   

2. Sometime during August, 1991, the Respondent was in his vehicle driving on Interstate 75 in Hillsborough County, Florida with his scanner on scan mode with a voice-activated tape recorder set on voice activator mode so that Respondent could record notes without having to turn the tape recorder on or off.

   
   

3. The Respondent was aware that the scanner was on scan mode and was randomly picking through fire reports, police reports and other communications which the scanner was capable of picking up. Respondent was also aware that the communications being picked up by the scanner were most likely being recorded since the tape recorder was on voice activator mode.

   
   

4. During this particular time, the Respondent's tape recorder taped a conversation that was transmitted over the scanner between two individuals, one in Bradenton, Florida and the other in Sefner, Florida, which the Respondent later learned were connected with ABC Liquors.

   
   

5. The Respondent, after listening to the taped conversation later, determined that it involved ABC Liquors and that someone from ABC Liquors should be made aware of the contents of the conversation.

   
   

6. Later, the Respondent contacted Margaret Spaniak, an employee of ABC Liquors, and made an appointment to share with her the contents of the conversation.

   
   

7. Before meeting with Respondent, Spaniak contacted ABC Liquors' corporate investigator, Jerry W. Bolton. Bolton advised Spaniak to meet with the Respondent but not to leave the meeting place alone with Respondent. Bolton also advised Spaniak that he would be in the restaurant, and at the proper time would join her and Respondent at their table.

8. Upon meeting with Spaniak, Respondent allowed Spaniak to review that portion of the tape containing the conversation pertaining to ABC Liquors. Spaniak did not testify at the hearing, and the Respondent does not remember whether Spaniak identified the parties to that conversation at that time.

   
   

9. After a short period of time, Bolton joined Spaniak and the Respondent at the table. Bolton asked the Respondent for a business card, which the Respondent gave him.

   
   

10. The Respondent did not directly or indirectly solicit any business from ABC Liquors, through Spaniak, Bolton, or anyone else connected with ABC Liquors. There is no competent, substantial evidence in the record to establish facts to show that the Respondent intended to solicit business or, in fact, solicited any business from ABC Liquors.

    
    

11. Spaniak and the Respondent are the only persons who have listened to the conversation in question recorded by the Respondent and, other than hearsay, there is nothing in the record to establish who the parties were to that conversation. Additionally, there is no competent, substantial evidence in the record to establish facts to show that the conversation was being transmitted over a cellular telephone. In fact, there is no evidence to show how the conversation was being transmitted (C. B. Radio, cordless telephone, cellular telephone, etc.).

    
    

12. The Respondent did not give the parties notice prior to their conversation being recorded and, other than possibly through Spaniak or Bolton, has not advised the parties that their conversation was recorded.

    
    

13. There were no criminal charges filed against the Respondent as a result of this matter being investigated by the Manatee County Sheriff's Office.

    
    

14. The Respondent has performed undercover work for the Manatee County Sheriff's Office where the Respondent has taped wire and oral communications or conversations that were used in criminal investigations and prosecutions. Respondent's work with the Manatee County Sheriff's Office began sometime in August, 1991 and ended in the latter part of November, 1991. The record is not clear, but it appears that the Manatee County Sheriff's Office had intended to extract certain information from other tapes recorded in the same manner by the Respondent that were eventually turned over to the Manatee County Sheriff's Office by the Respondent. However, on advise of counsel and the federal authorities the Manatee County Sheriff's Office did not review any of the tapes, including the one involved in this proceeding.

    
    

15. There is insufficient evidence to show that Respondent's action in recording this conversation violated Section 934.03, Florida Statutes.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

17. Section 493.6118(2), Florida Statutes, empowers the Department to revoke, suspend or otherwise discipline the license of a licensee when the Department finds that a licensee has violated any one of those acts enumerated in Section 493.6118(1)(a) through (t), Florida Statutes.

18. The Administrative Complaint alleges that the Respondent listened to and tape recorded a cellular telephone conversation without giving the parties prior notice in violation of Section 934.03, Florida Statutes, which constitutes a violation of Section 493.6118(1)(f), Florida Statutes. Section 493.6118(1)(f), Florida Statutes, provides as follows:

    
    

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

    
    

19. In a disciplinary proceeding, the burden is upon the regulatory agency to establish facts upon which its allegations of misconduct are based. Balino

1. Department of Health and Rehabilitative Services, 348 So.2d 349 (2d DCA Fla. 1977). The Department must prove the material allegations of the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 191 (Fla. 1987). The Department has proven that the Respondent did listen to and record a conversation but has failed to prove that the conversation recorded by the Respondent was transmitted over a cellular telephone or any other type of transmission that would be a violation of Section 934.03, Florida Statutes. The Department has failed to sustain its burden in this regard.

   
   

   RECOMMENDATION

   
   

   Having considered the foregoing Findings of Fact and Conclusions of Law, it is, therefore,

   
   

   RECOMMENDED that the Department enter a Final Order dismissing the Administrative Complaint against the Respondent.

   
   

   DONE AND ENTERED this 28th day of October, 1992, in Tallahassee, Leon County, Florida.

   
   

   
   

   WILLIAM R. CAVE

   Hearing Officer

   Division of Administrative Hearings The DeSoto Building

   1230 Apalachee Parkway

   Tallahassee, FL 32399-1550

   (904) 488-9675

   
   

   Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1992.

   
   

   APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-4379

   
   

   The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all proposed findings of fact submitted by the Petitioner in this case.

   Rulings on Proposed Findings of Fact Submitted by the Petitioner

   
   

   1. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the finding(s) of fact which so adopts the preceding proposed finding(s) of fact: 1(1); 2(9); 3(8); 4(4,5 & 12); 6(9,11) and 7(10).

      
      

   2. Proposed findings of fact 5 and 8 are neither material or relevant to this proceeding.

The Respondent did not submit any proposed findings of fact.

COPIES FURNISHED:

The Honorable Jim Smith Secretary of State Department of State

The Capitol

Tallahassee, FL 32399-0250

Phyllis Slater, Esq. General Counsel Department of State The Capitol, PL-02

Tallahassee, FL 32399-0250

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

The Capitol, MS-4 Tallahassee, FL 32399-0250

James D. Carter, Esq. 1111 3rd Avenue West Suite 150

Bradenton, FL 34205

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT TO THE AGENCY WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST TEN DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONSULT WITH THE AGENCY CONCERNING ITS RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER.

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AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, DIVISION OF LICENSING,

Petitioner,

v. CASE NO. 92-4379

AND NOTHING BUT THE TRUTH PRIVATE INVESTIGATOR, FRANK J. LANZILLO, OWNER,

Respondent.

/

FINAL ORDER

This cause came before the Department of State, Division of Licensing, for consideration and final agency action. A formal administrative hearing was conducted pursuant to Section 120.57(1), Florida Statutes, on September 9, 1992, in Bradenton, Florida, before William R. Cave, a duly assigned Hearing Officer of the Division of Administrative Hearings. A Recommended Order was submitted October 30, 1992. Neither party filed objections.

FINDINGS OF FACT

The Department hereby adopts and incorporates by reference the Findings of Fact in the Recommended Order with the exception of paragraphs 11 and 15.

There is competent, substantial evidence that the conversation recorded by Respondent was transmitted over a cellular telephone. Not only did Respondent admit to Division of Licensing Investigator Daniel Cabrera that the recording in question was of a cellular telephone conversation, he testified to that fact at hearing (T 8, 60). Therefore, there was sufficient evidence to show that Respondent's action in recording this conversation violated Section 934.03(4)(b)2., Florida Statutes (1990).

CONCLUSIONS OF LAW

The Department hereby adopts and incorporates by reference the Conclusions of Law in the Recommended Order with the exception of paragraph 19.

Respondent's sworn admission at hearing that the conversation that he recorded was transmitted over a cellular telephone was consistent with his previous statements to Investigator Cabrera and was sufficient evidence for the Department to meet its burden. Therefore, Respondent is in violation of Section 493.6118(1)(f), Florida Statutes, by virtue of having violated Section 934.03(4)(b)2., Florida Statutes.

It is noted that Respondent was previously disciplined for unlicensed activity, among other violations, by Final Order dated December 12, 1989 (Petitioner's Exhibit 1). This factor may be considered in imposing administrative action. Rule 1C-3.113(2)(e), Florida Administrative Code.

WHEREFORE, it is ORDERED that Respondent's Class "A" Private Investigative Agency License, number A89-00270 and Class "C" Private Investigator License, number C88-00259, are hereby SUSPENDED for a period of one year and shall be returned to the

Department.

IT IS FURTHER ORDERED, that Respondent pay an administrative fine in the amount of $1,000.00 dollars within thirty days. Payment must be made in full by cashier's check or money order to the Department of State, Division of Licensing. Failure to make timely payment shall result in the automatic suspension or denial of all licenses issued or applied for pursuant to Chapter 493, Florida Statutes.

NOTICE OF RIGHTS

This Order constitutes final agency action. Any party who is adversely affected by this Order may seek judicial review under Section 120.68, Florida Statutes. Such proceedings are commended by filing a Notice of Appeal, pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the Deputy Clerk of the Division of Licensing, Department of State, The Capitol, Mail Station #4, Tallahassee, Florida 32399-0250; and by filing a copy of the Notice of Appeal, accompanied by the applicable filing fees, with the First District Court of Appeals, or with the District Court of Appeal in the appellate district where the party resides. The Notice of Appeal must be filed within thirty (30) days of the day this Order is filed with the Clerk of the Department.

DONE AND ORDERED at Tallahassee, Florida this 8th day of December, 1992.

John M. Russi, Director Division of Licensing

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing has been furnished by U.S. Mail to James D. Carter, Attorney at Law, 1111 Third Avenue, West, Suite 150, Bradenton, Florida 34205, this 8th day of December, 1992.

Benjamin E. Poitevent Assistant General Counsel Department of State Division of Licensing

The Capitol, M.S. #4 Tallahassee, Florida 32399-0250

Docket for Case No: 92-004379

Orders for Case No: 92-004379