STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF STATE, )
DIVISION OF LICENSING, )
)
Petitioner, )
)
vs. ) CASE NO. 92-6554
)
JACOBS AND ASSOCIATES )
INVESTIGATIONS, P.A., )
JAMES R. JACOBS, OWNER, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, final hearing in the above-styled case was held in Naples, Florida, on April 18, 1994, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
The parties were represented at the hearing as follows: For Petitioner: Henri C. Cawthon
Assistant General Counsel Department of State Division of Licensing
The Capitol, Mail Station No. 4 Tallahassee, Florida 32399-0250
For Respondent: Attorney Ken Muszynski
850 Fifth Avenue South Naples, Florida 33940
STATEMENT OF THE ISSUE
The issue in this case is whether Respondent is guilty of violating the law regulating private investigators and, if so, what penalty should be imposed.
PRELIMINARY STATEMENT
By Amended Administrative Complaint served May 13, 1993, Petitioner alleged that Respondent holds a Class "A" Private Investigative Agency license effective January 24, 1992, and a Class "C" Private Investigator License effective January 10, 1993.
Count I alleges that, from 1991 through January 24, 1992, Respondent conducted or advertised the business of an investigative agency without a valid Class "A" license, in violation of Section 493.6118(1)(g), Florida Statutes, and Rule 1C-3.122(1), Florida Administrative Code.
Count II alleges that, from 1991 until December 26, 1992 [sic], Respondent conducted or advertised the business of an investigative agency without liability insurance, as required by Section 493.6110, in violation of Section 493.6118(1)(l).
Count III alleges that, from 1991 through January 24, 1992, Respondent employed Raymond Trotta and James Coady to perform private investigative services when they did not hold valid Class "C" licenses, in violation of Section 493.6118(1)(n).
Count IV alleges that, from August 11, 1992, to September 2, 1992, Respondent failed or refused to cooperate with a representative of Petitioner engaged in an official investigation by failing or refusing to provide files on the Trotta investigation, in violation of Section 493.6118(1)(o).
Count V alleges that, from August 11, 1992, to September 2, 1992, Respondent failed or refused to cooperate with a representative of Petitioner engaged in an official investigation by failing or refusing to provide files on the Sparkman/Hayes investigation, in violation of Section 493.6118(1)(o).
Count VI alleges that, from January 30, 1992, to March 4, 1992, Respondent failed to report to Petitioner the hire/termination of Raymond Trotta, Heidi Trotta, and James Coady, and the reasons for such action, as required by Section 493.6112(2), in violation of Section 493.6118(1)(s).
Count VII alleges that, on or about January 5, 1992, Respondent committed misconduct and conducted regulated activities in a deceitful manner by filing with Petitioner a sponsorship form that falsely stated that Respondent was a licensed Class "A" Private Investigative Agency, in violation of Section 493.6118(1)(f).
Count VIII alleges that, on or about December 31, 1992, Respondent committed misconduct and conducted regulated activities in a deceitful manner by composing a letter of false accusations and causing a complaint to be filed against Frank Coto, a licensed private investigator, in violation of Section 493.6118(1)(f).
Count IX alleges that, on or about August 11, 1992, Respondent conducted regulated activities in a deceitful manner and failed to cooperate with an official investigation of Petitioner by failing to answer truthfully the allegations cited in Count VIII, in violation of Section 493.6118(1)(f) and (o).
Respondent demanded a formal administrative hearing by Election of Rights dated October 23, 1992.
Petitioner called two witnesses and offered into evidence two exhibits. Respondent called one witness and offered into evidence 12 exhibits, although Exhibit 10, which was admitted, was never submitted and is deemed withdrawn. The parties offered one joint exhibit. All exhibits were admitted.
At the hearing, Petitioner dropped Count VIII. However, Petitioner retained the factual allegations contained in Count VIII as grounds for the violation alleged in Count IX. In its proposed recommended order, Petitioner dropped Count VII.
The transcript was filed June 8, 1994. Neither party filed proposed findings of fact.
FINDINGS OF FACT
Respondent holds a Class "C" Private Investigator License bearing license number is C91-00006. Petitioner's files indicate that this license was issued January 10, 1991. Respondent testified that he has been licensed since December 1990.
Despite records indicating that the Class "C" license was issued January 10, 1991, Petitioner, by letter dated May 24, 1991, informed Respondent that his Class "C" license "has been issued and is forthcoming."
The May 24 letter adds:
File review indicates that you are not currently employed. Chapter 493, Florida Statutes, requires you to either own or
be employed by a licensed Class "A" Private Investigative Agency. To work as a private investigator without meeting one of the foregoing conditions is a violation of law and subjects you to administrative action up to and including revocation of your Class "C" license.
During 1991, Respondent was employed by A & W Investigations, which holds a Class "A" agency license. However, by July 7, 1991, he had completed his duties for A & W Investigations and was not employed by a Class "A" agency after that date.
During the period between the termination of his employment with A & W Investigations and the meeting described below with Petitioner's investigator in October 1991, Respondent performed investigations related to workers' compensation for a company known as FEISCO. Serving as an independent contractor, Respondent also hired and paid James Coady for investigative work that he performed on Respondent's behalf for FEISCO.
In August 1991, a new attorney in the area, Darren Young, received a letter from Respondent announcing his availability to serve as a consultant in criminal cases involving allegations of driving under the influence (DUI). Respondent had been employed for a couple of years by the Collier County Sheriff's Office and drew upon his experience in local law enforcement in providing DUI consultation services. Respondent and Mr. Young later met and began a business/social relationship.
In October or November, Mr. Young hired Respondent as a DUI consultant in a pending case. Respondent served as an independent contractor, not an employee of Mr. Young. Although Mr. Young did not need Respondent to testify, he paid Respondent for his services.
By letter dated September 23, 1991, Petitioner advised Respondent that it had learned that he was no longer employed by A & W Investigations as a Class "C" Private Investigator licensee. The letter contains the same warning as that quoted in the last two sentences of the above-cited May 24 letter.
In early October 1991, an investigator of Petitioner met Respondent to discuss informal complaints made by two or three Naples private investigators that Respondent was conducting private investigations without a license. Respondent told the investigator that he was working for a tile company association doing investigations of its members and serving as an expert witness for attorneys in DUI cases.
Petitioner's investigator explained that if Respondent intended to do any private investigations, he needed a Class "A" agency license with which to place his Class "C" private investigator's license. At the urging of Petitioner's investigator, Respondent agreed to begin the process of obtaining a Class "A" license, and, on October 3, 1991, Petitioner received Respondent's application for a Class "A" license.
On December 26, 1991, Respondent obtained the general liability coverage required for the Class "A" license. By letter dated December 27, 1991, and received by Petitioner on January 6, 1992, Respondent submitted to Petitioner a money order in the amount of $300 in payment of the application fee, proof of liability insurance, and a copy of the fictitious name registration form. The letter states in part:
I have contacted your office several times and have been informed that my fingerprints have not returned from FDLE. This is the only thing that I am waiting for before my license can be issued. The 90 days will be up in January and I was wondering if there is some provision that would allow me to
start operations before they return. I would appreciate your advice on this matter.
Prior to receiving the December 27 letter from Respondent, on January 3, 1992, Petitioner mailed Respondent a letter "to notify you that your application for a Class "A" license had been approved." The letter states that Respondent needed to provide several items "so your license can be issued "
The required items were a license fee of $300, certificate of insurance, and proof of filing a fictitious name.
On January 8, 1992, Respondent mailed two letters. One was to Petitioner's investigator, stating that Respondent had "received the notice of approval for the issuance of my Agency license" and advising that he had "forwarded all of the required documentation to Tallahassee."
The other letter of January 8, 1992, was to Petitioner and accompanies the certificate of liability insurance. The letter states that, on December 30, 1991, Respondent had sent Petitioner the application fee, copy of the fictitious name registration, and copy of the insurance binder.
Petitioner received the certificate of liability insurance on January
Noting that the certificate was not properly notarized, Petitioner mailed Respondent a letter, on January 15, 1992, advising that the certificate of liability insurance was missing.
By letter dated January 16, 1992, Respondent forwarded the certificate of liability insurance with proper notarization. Receiving the letter on January 22, 1992, Petitioner mailed a letter on January 24, 1992, advising Respondent
that he had been issued on that date a Class "A" license, which was good from January 24, 1992, through January 24, 1994.
Respondent engaged in at least two investigations during December 1991, at which time he clearly knew that he did not have a Class "A" license and needed one for the work in which he was engaged.
In one case, he performed two days' surveillance on Kelly Trotta for Ray Trotta on December 6 and 7, 1991. By letter dated December 9, 1991, to Mr. Trotta, Respondent described the investigatory services that he provided and suggested future spot checks in order to avoid "running up the costs of the investigation."
In another case, Mr. Young was retained on the day after Thanksgiving 1991 by Lawrence Harrison to provide legal services in connection with pending federal and state litigation. Mr. Young introduced Respondent to Mr. Harrison, who agreed to retain Respondent or allow Mr. Young to retain Respondent, in either case as an independent contractor. According to Respondent's invoice, Mr. Young hired him on December 16, 1991.
The following day, Respondent checked corporate records as part of his investigative work and conveyed the information to Mr. Young. In the following days, Respondent researched Chapter 493, Florida Statutes, concerning the state litigation, which involved a legal action brought by Frank Coto against Mr. Harrison for unpaid private investigative services. Respondent drafted a complaint against Mr. Coto to be sent to Petitioner. Still in December, Respondent obtained character information on Mr. Coto and directly communicated it to the client.
The complaint against Mr. Coto included allegations that he attempted to extort from Mr. Harrison the balance allegedly owed by Mr. Harrison to Mr. Coto for investigative services rendered. Mr. Harrison sent the complaint, under his signature, to Petitioner, which eventually elected not to prosecute.
On January 9 and 10, 1992, according to Respondent's invoice of January 13, 1993, Respondent met with Mr. Harrison. By separate invoice, Respondent requested $1200 for the costs of a trip to Oklahoma in connection with investigative services related to the federal litigation. This sum was paid prior to January 24, 1992, which was when Respondent was to depart.
On or about January 18, 1992, Mr. Young terminated his employment with Mr. Harrison. On January 23, 1992, Respondent contacted the FBI and informed them that Mr. Young had proposed a criminal conspiracy with Respondent to kill one or more persons involved with the Harrison matter. Subsequent investigations revealed no basis for criminal prosecution, nor professional discipline, against Mr. Young. The record is insufficient to determine if Respondent's charges were made in good faith.
Instead of going himself, Respondent sent Mr. Coady and Mr. Trotta to perform investigative services for Respondent on behalf of Mr. Harrison. They departed either January 24 or 25, 1991, and performed the investigative services.
There is no competent evidence as to whether Mr. Coady had a Class "C" license and, if so, when he obtained it. The evidence is unclear as to when Mr. Trotta obtained his Class "C: license, but he obtained or renewed a Class "C" license, possibly as early as January 23, 1994.
Respondent allowed Mr. Coady and Mr. Trotta to place their Class "C" licenses, or the Class "C" licenses for which they were applying. The record establishes the date of sponsorship only as to Mr. Trotta. Respondent signed the form on January 5 and it was notarized on January 7, 1992. Respondent used his Class "A" license number, which he obtained by telephone from one of Petitioner's representatives prior to the official issuance of Respondent's Class "A" license.
On March 4, 1992, Respondent sent a letter to Petitioner advising that his firm was no longer sponsoring Mr. Trotta, Mr. Coady, or a third person, Heidi Trotta. Except for this letter, there is no evidence that Respondent ever employed Ms. Trotta, and Petitioner has failed to prove that anyone by that name was ever so employed by Respondent. The letter states that, as of January 30, 1992, Respondent's firm would no longer be responsible for their actions. The record does not indicate when Mr. Trotta and Mr. Coady were terminated.
On August 11, 1992, Petitioner's investigator visited Respondent's office and demanded his files for the Harrison and Trotta investigation, as well as a third investigation known as Sparkman/Hayes. Respondent offered to drive home and get the Trotta and Sparkman/Hayes files, but declined to provide the Harrison file until he received approval from Mr. Harrison's attorney, through whom he claimed to work.
Petitioner's investigator told Respondent not to go home and get the two files, but to provide them to the investigator later. Respondent agreed to mail them, but did not. Petitioner's investigator never gave Respondent a deadline, nor did he ever again demand that Respondent give him the files. The failure to produce the Harrison file is not the subject of any allegations in the present case.
During the course of the August 11 interview, Petitioner's investigator asked Respondent about Mr. Coto and the complaint that had been filed with Petitioner against him. Respondent initially lied, denying knowing anything about Mr. Coto or the complaint. But Petitioner's investigator showed Respondent a letter that Respondent had sent to Mr. Young, which effectively contradicted these denials. Respondent then admitted to Petitioner's investigator that he had drafted the complaint against Mr. Coto and that it had been intended to "muddy the waters." The intent of Respondent was to undermine Mr. Coto's civil action against Mr. Harrison.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)
Section 493.6118(1) provides that Petitioner may take disciplinary action against licensees regulated under Chapter 493.
Petitioner must prove the material allegations against Respondent by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
Section 493.6101(15) defines "private investigation agency" as "any person who, for consideration, advertises as providing or is engaged in the business of furnishing private investigations."
Section 493.6101(17) defines "private investigation" as:
. . . the investigation by a person or persons for the purpose of obtaining information with reference to any of the following matters:
Crime or wrongs done or threatened against the United States or any state or territory of the United States, when operating under express written authority of the governmental official responsible for authorizing such investigation.
The identify, habits, conduct, movements, whereabouts, affiliations, associations, transactions, reputation, or character of any society, person, or group of persons.
The credibility of witnesses or other persons.
The whereabouts of missing persons, owners of abandoned property or escheated property, or heirs to estates.
The location or recovery of lost or stolen property.
The causes and origin of, or responsibility for, fires, libels, slanders, losses, accidents, damage, or injuries to real or personal property.
The business of securing evidence to be used before investigating committees or boards of award or arbitration or in the trial of civil or criminal cases and the preparation therefor.
Section 493.6102(3) provides that Chapter 493 does not apply to: "Any individual solely, exclusively and regularly employed as an unarmed investigator or recovery agent in connection with the business of his employer, when there exists an employer-employee relationship."
Section 493.6118(1)(g) provides that discipline may be imposed for: "Conducting activities regulated under this chapter without a license or with a revoked or suspended license."
Count I alleges that Respondent conducted or advertised the business of a Class "A" agency during 1991 through January 24, 1992, without holding a Class "A" license. The only evidence of advertising consists of a mailing, possibly part of a direct- mail solicitation, in which Respondent informed Mr. Young of Respondent's availability as a DUI consultant.
The definition of "private investigation" does not include the employment of a former sheriff officer as an expert witness in the area of DUI. Therefore, Petitioner failed to prove that Respondent advertised private
investigation services during the period in question or that, with respect to such consultation services, Respondent conducted private investigations during this period.
However, Petitioner proved that, on three occasions, Respondent engaged in the business of private investigations prior to obtaining a Class "A" license and while his Class "C" license was not placed with a Class "A" agency. The three clients were FEISCO, Mr. Trotta, and Mr. Harrison.
Section 493.6110 states: "No agency license shall be issued unless the applicant first files with [Petitioner] a certification of insurance evidencing coverage as delineated below." Section 493.6118(1)(l) provides that discipline may be imposed for: "Soliciting business for an attorney in return for compensation."
Count II alleges that during 1992 until December 26, 1992, Respondent conducted or advertised the business of a Class "A" private investigative agency without the liability insurance required by law.
Respondent conducted the FEISCO, Trotta, and part of the Harrison private investigations without general liability insurance. However, Section 493.6110 establishes liability insurance as a prerequisite for obtaining a Class "A" license. Petitioner reasons that insurance is required to do business because insurance is required to obtain a license and a license is required to do business. In this light, Petitioner's argument in Count II is a restatement of Count I, which is that Respondent practiced without a license. Therefore, Petitioner has failed to establish any separate violations in Count II.
Section 493.6118(1)(n) provides that discipline may be imposed for:
Employing or contracting with any unlicensed or improperly licensed person or agency to conduct activities regulated under this chapter when such licensure status was known or could have been ascertained by reasonable inquiry.
Count III alleges that Respondent employed Mr. Trotta and Mr. Coady to perform investigative services when they did not hold Class "C" licenses.
Petitioner proved that Respondent hired both individuals to perform investigative services. However, Petitioner failed to prove the licensing status of Mr. Coady or Mr. Trotta as of the time that they performed private investigations. Mr. Trotta may in fact have been licensed one or two days before, based on the record, he commenced his first investigative work for Respondent. Petitioner thus failed to prove the allegations of Count III.
Section 493.6118(1)(o) provides that discipline may be imposed for:
Failure or refusal to cooperate with or refusal of access to an authorized representative of [Petitioner] engaged in an official investigation pursuant to this chapter.
Counts IV and V allege that Respondent failed or refused to cooperate with an official investigation by failing or refusing to provide the Trotta and
Sparkman/Hayes files. However, Petitioner failed to prove that Respondent unequivocally refused a clear demand for these files. He initially offered to drive home and get them, but Petitioner's investigator told him not to bother. Respondent agreed to mail them, but had no deadline. Respondent never mailed the files, but Petitioner never again asked for them.
Section 493.6112(2) requires each agency to report the termination of employment of a licensee "immediately" and to "report the reason or reasons therefor." Section 493.6118(1)(s) provides that discipline may be imposed for a violation of Chapter 493.
Count VI alleges that Respondent failed to report the terminations of Mr. Trotta, Ms. Trotta, and Mr. Coady immediately and the reasons for their termination. Petitioner failed to show when these employees were terminated or that Ms. Trotta was ever employed by Respondent. It is possible that Respondent selected a termination date in advance of the actual time of termination. Petitioner thus failed to prove that the notice was untimely. However, Petitioner proved two separate violations because the notice did not state the reasons for the terminations of Mr. Trotta and Mr. Coady.
Petitioner dropped Counts VII and VIII.
Section 493.6118(1)(o) is set forth above. Section 493.6118(1)(f) states that discipline may be imposed upon:
Proof that the licensee is guilty of fraud
or deceit, or of negligence, incompetency, or misconduct in the practice of the activities regulated under this chapter.
Count IX alleges that Respondent conducted regulated activities in a deceitful manner and failed to cooperate with an official investigation when he failed to answer truthfully questions posed to him concerning the Coto professional complaint. Petitioner proved that Respondent lied to Petitioner's investigator when first asked questions about this matter.
Rule 1C-3.113(1)(a)2 provides that a violation of Section 493.6118(1)(g) shall result in a fine in the amount of $500. Rule 1C- 3.113(1)(a)19 provides that a violation of Section 493.6118(1)(s), through a violation of Section 493.6112(2), shall result in a fine of $100. Rule 1C- 3.113(1)(b)24 provides that a violation of Section 493.6118(1)(f), for conducting regulated activities in a deceitful manner, shall result in a fine of
$1000.
The fines set forth in the rules are for "acts," under Rule 1C-3.113. Section 493.6118(2) authorizes an administrative fine of up to $1000 "for every count or separate offense." Count I contains three separate offenses or acts, and Count IV contains two separate offenses or acts. Thus, the total amount of the fines is $2700 (($500 x 3) + ($100 x 2) + $1000).
Rule 1C-3.113(2) provides that the penalty may be increased or decreased by 50 percent in the presence of the various factors, including the severity of the offense, danger to the public, number of repetitions, number of times that the licensee has been previously disciplined, the length of time that the licensee engaged in the prohibited activity, and actual knowledge of the licensee pertaining to the violation. Presumably, the 50 percent rule is inapplicable to the $1000 fine for conducting regulated activities in a
deceitful manner. The statutes authorize no more than a $1000 fine per separate offense.
A mitigating factor is that Respondent has not previously been disciplined. The evidence is unclear as to whether there was public injury as a result of the violations. Aggravating factors include the number of offenses prior to early January, at which time some ambiguity may have legitimately arose in Respondent's mind as to the status of the Class "A" license. More significantly, Respondent practiced throughout December 1991 without a Class "A" license despite the visit two months earlier by Petitioner's investigator, at which time Petitioner was specifically warned against repeating this violation.
Based on the foregoing, the guideline fine of $2700 should be increased to the maximum allowed by the rules. The result is an administrative fine of $3550 (($1500 x 150 percent) + ($200 x 150 percent) + $1000).
Petitioner's rules are seriously flawed concerning penalties. Section 493.6118(2) gives Petitioner the usual range of disciplinary consequences ranging from reprimands through probation, suspension, and revocation. Yet, Petitioner has in its rules limited itself almost exclusively to fines for violations of the regulatory statutes.
The lead language of Rule 1C-3.113(1) provides that Petitioner "shall issue a final order imposing penalties found in the following guidelines." As noted in Rule 1C-3.113(2), Petitioner is "entitled to deviate from the penalties
. . ." in the event of aggravating or mitigating circumstances, but only to the extent of a 50 percent increase or decrease in the penalty.
Rule 1C-3.113(3) adds cryptically that Petitioner may impose the penalties set forth in the guidelines, as modified by the 50 percent rule, "individually or in combination of [sic] the following when applicable[.]" The "following" refers to the typical statutory range of penalties, including probation, suspension, and revocation.
But nothing in the rules indicates when such additional penalties are "appropriate." In view of the rule specifically authorizing, for mitigating or aggravating circumstances, the 50 percent increase or decrease in the guideline penalty, "appropriate" does not seem to refer to aggravating or mitigating circumstances.
Perhaps Petitioner intended by these rules to reserve probation, suspension, or revocation for cases, such as the present case, in which the aggravating factors were especially strong. In this case, for instance, in the absence of the rules, the hearing officer would have recommended a penalty of
$5000 plus suspension for two years. However, it would be easier to infer such intent if the guidelines contained only monetary penalties and ignored all other forms of penalty. In such a case, the guideline rules, as well as the 50 percent rule, would be applicable exclusively to situations in which administrative fines were imposed. However, two of the guideline rules call for revocation. So, the rules really provide no guidance whatsoever as to what circumstances, if any, Petitioner is authorized to pursue nonmonetary penalties, except for the two guideline rules calling for revocation.
Based on the foregoing, it is hereby
RECOMMENDED that the Department of State enter a final order ordering Respondent to pay an administrative fine of $3550.
ENTERED on June 24, 1994, in Tallahassee, Florida.
ROBERT E. MEALE
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 on June 24, 1994.
COPIES FURNISHED:
Hon. Jim Smith Secretary of State The Capitol
Tallahassee, FL 32399-0250
Phyllis Slater, General Counsel Department of State
The Capitol, PL-02 Tallahassee, FL 32399-0250
Henri C. Cawthon Assistant General Counsel Department of State Division of Licensing
The Capitol, MS #4 Tallahassee, FL 32399-0250
Attorney Ken Muszynski 850 Fifth Ave. South Naples, FL 33940
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.
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF STATE
DEPARTMENT OF STATE, DIVISION OF LICENSING,
Petitioner,
v. CASE NO.: C92-00413
A91-00321
JACOBS AND ASSOCIATES DOAH CASE NO.: 92-6554 INVESTIGATIONS, P.A.,
JAMES R. JACOBS, 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 April 18, 1994, in Naples, Florida, before Robert E. Meale, a duly assigned Hearing Officer of the Division of Administrative Hearings. A Recommended Order was submitted by the Hearing Officer on June 24, 1994. Neither party filed exceptions to the Recommended Order.
FINDINGS OF FACT
The Department hereby adopts and incorporates by reference the Findings of Fact set forth in the Recommended Order.
CONCLUSIONS OF LAW
The Department hereby adopts and incorporates by reference the Conclusions of Law set forth in the Recommended Order with one exception. The Hearing Officer's conclusion that the disciplinary guidelines in Rule lC-3.113, Florida Administrative Code prevent the suspension or revocation of licenses under the circumstances in their cases is erroneous. Section 493.6118(2), Florida Statutes, clearly gives the Department the discretion to impose any one or combination of penalties ranging from denial of an application, issuance of a reprimand, imposition of an administrative fine not to exceed, $1,000.00, placement of a license on probation, suspension of a license, or revocation of a license. That discretion is restated in Rule 1C-3.113(3), Florida Administrative Code. However, in the instant case there are no aggravating circumstances sufficient enough to depart from the recommended penalty.
WHEREFORE, based upon the Foregoing, it is ORDERED that Respondent pay an administrative fine of $3,550.00 by cashier's check or money order, made payable to the Department of State, Division of Licensing within thirty (30) days.
Failure to make timely payment shall result in the automatic suspension of any licenses issued to Respondent or the denial of any licenses applied for pursuant to Section 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 commenced 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 Appeal, 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 Departmentcf.
DONE AND ORDERED at Tallahassee, Florida this 16th day of August, 1994.
John M. Russi, Director Division of Licensing
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing Final Order has been sent by
U.S. Mail to Ken Muszynski, 850 Fifth Avenue, South, Naples, Florida 33940, this 17th day of August, 1994.
Richard R. Whidden, Jr. Assistant General Counsel Department of State Division of Licensing
The Capitol, MS #4
Tallahassee, Florida 32399-0250
(904) 488-3492
COPIES FURNISHED:
Tampa Regional Office Filed with Agency Clerk
License File Division of Administrative Hearings
| Issue Date | Proceedings |
|---|---|
| Jul. 27, 1995 | Final Order filed. |
| Jun. 24, 1994 | Recommended Order sent out. CASE CLOSED. Hearing held 04/18/94. |
| Jun. 20, 1994 | Petitioner`s Proposed Recommended Order filed. |
| Jun. 08, 1994 | Transcript (Volumes I, II, tagged) filed. |
| Apr. 28, 1994 | Letter to REM from H. Cawthon (RE: enclosing Respondent`s exhibits 11& 12) filed. |
| Apr. 18, 1994 | CASE STATUS: Hearing Held. |
| Mar. 14, 1994 | (Petitioner) Notice of Taking Deposition filed. |
| Feb. 18, 1994 | Order Continuing and Rescheduling Formal Hearing sent out. (hearing rescheduled for 4/18/94; 10:00am; Naples) |
| Feb. 16, 1994 | (Respondent) Motion for Continuance w/attached copy of Summons (from circuit court) filed. |
| Nov. 18, 1993 | Notice of Hearing sent out. (hearing set for 2/22/94; 2:00pm; Naples) |
| Oct. 19, 1993 | (Respondents) Response to Department`s Second Motion to Relinquish Jurisdiction filed. |
| Oct. 12, 1993 | (Petitioner) Second Motion to Relinquish Jurisdiction filed. |
| Sep. 24, 1993 | Order sent out. (Re: Procedures) |
| Sep. 24, 1993 | Order Establishing Prehearing Procedure sent out. |
| Sep. 10, 1993 | (Respondent) Motion to Resume DOAH Proceedings filed. |
| Aug. 18, 1993 | Order sent out. (Parties to file status report by 8/23/93; case in abeyance). |
| Aug. 17, 1993 | Petitioner`s Response to Request to Retain DOAH Jurisdiction filed. |
| Aug. 04, 1993 | (Respondent) Request to Temporarily Retain DOAH Jurisdiction filed. |
| Aug. 02, 1993 | (Respondents) Notice of Substitution of Counsel filed. |
| Jul. 26, 1993 | (Petitioner) Motion to Relinquish Jurisdiction w/Stipulation and Settlement filed. |
| Jul. 13, 1993 | Order to Show Cause sent out. |
| May 25, 1993 | (Petitioner) Motion for Continuance filed. |
| May 13, 1993 | Motion for Leave to File Amended Administrative Complaint; Amended Administrative Complaint filed. |
| May 10, 1993 | (Petitioner) Response to Motion for Order Compelling Discovery filed. |
| May 06, 1993 | (Respondent) Notice of Filing w/Subpoena & Affidavit of Service filed. |
| May 03, 1993 | Notice of Filing; Affidavit; Subpoena Duces Tecum filed. (from C. Mast) |
| May 03, 1993 | (Respondent) Motion for Order Compelling Discovery filed. |
| Mar. 29, 1993 | Notice of Hearing sent out. (hearing set for 5-27-93; 12:00 noon; Fort Myers) |
| Mar. 08, 1993 | TAGGED (Request for Subpoenas) Subpoena Duces Tecum Without Deposition (unsigned) filed. (From Christopher E. Mast) |
| Feb. 12, 1993 | Letter to WFQ from Henri C. Cawthon filed. |
| Feb. 08, 1993 | (Respondent) Notice of Production From Non-party w/Subpoena Duces Tecum Without Deposition filed. |
| Feb. 02, 1993 | Order Granting Continuance sent out. (hearing date to be rescheduled at a later date; parties shall not later than 2-15-93, jointly file a list of dates within 120 days on which the parties are not available for hearing) |
| Feb. 02, 1993 | (Respondent) Reply to Petitioner`s Response to Motion for Continuance/Motion to Compel filed. |
| Jan. 25, 1993 | (Petitioner) Response to Motion for Continuance filed. |
| Jan. 11, 1993 | (Respondent) Motion for Continuance and Motion to Compel filed. |
| Dec. 09, 1992 | Notice of Hearing sent out. (hearing set for 2/11/93; 9:30am; Naples) |
| Dec. 09, 1992 | Order Establishing Prehearing Procedure sent out. |
| Nov. 30, 1992 | Ltr. to WFQ from Christopher E. Mast re: Reply to Initial Order filed. |
| Nov. 20, 1992 | Ltr. to WFQ from Henri C. Cawthon re: Reply to Initial Order filed. |
| Nov. 13, 1992 | (Respondent) Request for Production of Documents filed. |
| Nov. 05, 1992 | (Completed) Administrative Complaint filed. |
| Nov. 03, 1992 | Initial Order issued. |
| Oct. 30, 1992 | Agency referral letter; Notice of Appearance and Request for Administrative hearing, letter form; Answer to Administrative Complaint; Final Judgment; Administrative Complaint; Election of Rights filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 16, 1994 | Agency Final Order | |
| Jun. 24, 1994 | Recommended Order | Fine of $3550 for conducting private investigative business while unlicensed and for lying to agency investigator. |
