STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 93-1624

) FRANK J. LANZILLO, owner of ) AND NOTHING BUT THE TRUTH ) PRIVATE INVESTIGATOR, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in Bradenton, Florida, on September 13, 1993, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Attorney Henri C. Cawthon

Department of State Division of Licensing

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

For Respondent: Frank J. Lanzillo, pro se

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent is guilty of fraud or deceit in the practice of activities regulated under Chapter 493 and knowingly violating a statutory prohibition against carrying a concealed firearm in the course of business regulated by Chapter 493.

PRELIMINARY STATEMENT

By Administrative Complaint dated January 22, 1993, Petitioner alleged that Respondent holds a Class "A" Private Investigative Agency License, a Class "C" Private Investigator License, and a Class "PD" Proprietary Security Officer License.

Count I of the Administrative Complaint alleges that, on or about September 19, 1991, Respondent conducted regulated activities in a deceitful manner. He allegedly falsely reported to a representative of Petitioner engaged in an official investigation and to the Bradenton Police Department that certain

investigative files had been stolen. Count I alleges that Respondent thereby violated Section 493.6118(1)(f), Florida Statutes.

Count II alleges that, on or about November 26, 1991, Respondent knowingly violated Section 790.01, Florida Statutes, by carrying a concealed firearm into the police department. Count II alleges that Respondent thereby violated Section 493.6118(1)(k), Florida Statutes.

By undated letter, Respondent requested a hearing with respect to certain disputed facts. These facts were whether Respondent had filed a false police report and had been convicted of carrying a concealed firearm.

At the hearing, Petitioner called three witnesses and offered into evidence one exhibit. Respondent called one witness and offered into evidence no exhibits. The exhibit was admitted.

Neither party ordered a transcript or filed a proposed recommended order.

FINDINGS OF FACT

1. At all material times, Respondent has held a Class "A" Private Investigative Agency License, a Class "C" Private Investigator License, and a Class "PD" Proprietary Security Officer License.

   
   

2. By final order entered December 8, 1992, Petitioner suspended Respondent's Class "A" and "C" licenses for one year for unlawfully intercepting oral communications. The final order also imposes an administrative fine of

   $1000 for this violation.

   
   

3. In August, 1991, Respondent was retained by a client to perform an asset check of another person. Respondent did not perform the work to the client's satisfaction, so the client filed a complaint with Petitioner.

   
   

4. On September 17, 1991, Petitioner's investigator visited Respondent at his office to conduct an interview. When the investigator asked to see Respondent's file on the case, he went to his filing cabinet, pulled out a drawer, and exclaimed that the file was missing.

   
   

5. The investigator asked what happened, and Respondent said that someone must have stolen the file. The investigator advised Respondent that, if so, he should report the theft to the police.

   
   

6. Respondent did report the theft to the police. In so doing, he made a false report to the police. The file was not missing or stolen; Respondent was trying to obstruct the investigation into the complaint that the client had made against him.

   
   

7. When requested to visit the police station for an interview in November, 1991, Respondent wore his handgun in a shoulder holster under his jacket.

   
   

8. The evidence is unclear as to the status of Respondent's Class "C" license at the time of the interview at the police department. There is some evidence that it had expired due to nonrenewal, but Respondent also testified that he had already mailed a check and the paperwork necessary for the renewal. However, Respondent may be presumed to be aware that even a current Class "C"

   license does not authorize the licensee to carry a concealed firearm into a police station.

   
   

   CONCLUSIONS OF LAW

   
   

9. 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.)

   
   

10. Petitioner must prove the material allegations against Respondent by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

11. Section 493.6118(1) provides that Petitioner may discipline Respondent's license upon:

    
    

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

    (k) Knowingly violating . . . any statute

    ... in the course of business regulated under this chapter.

    
    

12. Lying to Petitioner's investigator constitutes a violation of Section 493.6118(1). Respondent was guilty of fraud or deceit in making this serious misrepresentation. When made to Petitioner's investigator, the misrepresentation was in the practice of regulated activities, of which an agency investigation is a part.

    
    

13. Section 790.01(12) provides that a Class "C" license to carry a concealed firearm does not authorize a person to carry a concealed firearm into a police station. Thus, it is irrelevant whether Respondent's Class "C" license was in effect when he visited the police station. His knowledge of the legal limitations of his license may also be implied.

    
    

14. However, Respondent did not bring the firearm into the police station in the course of his private investigation business. He was not present at the police station on behalf of a client. He entered the police station to report a theft in which he claimed to be the victim. The only involvement of a client was that the property supposedly taken was a client file, of which Respondent was the owner.

    
    

15. Section 493.6118(2) provides that Petitioner may, for a violation of Section 493.6118(1), issue a reprimand, impose an administrative fine of not more than $1000 per count, place the licensee on probation, or suspend or revoke a license.

    
    

16. Giving due regard to the pending suspension and the behavior necessitating the imposition of discipline in that case, as well as the nature of the present offense, the most appropriate discipline would be the issuance of a reprimand and imposition of an administrative fine of $1000.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Department of State, Division of Licensing, enter a final order dismissing Count II, finding Respondent guilty of violating Section 493.6118(1)(f), issuing a reprimand, and imposing an administrative fine of

$1000.

ENTERED on September 24, 1993, 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 September 24, 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

Attorney Henri C. Cawthon Department of State Division of Licensing

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

Frank J. Lanzillo

520 - 12 Street West, #203 Bradenton, Florida 32405

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.

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AGENCY FINAL ORDER

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

STATE OF FLORIDA DEPARTMENT OF STATE

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

v. ) CASE NO. 93-1624

) 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 13, 1993, 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 September 28, 1993. Neither party filed exceptions or objections to the Recommended Order.

FINDINGS OF FACT

The Department of State hereby adopts and incorporates herein by reference the Findings of Fact in the Recommended Order.

CONCLUSIONS OF LAW

The Department hereby adopts and incorporates herein by reference paragraphs 9 through 13 in the Recommended Order and rejects paragraphs 14 through 16.

When Respondent entered the police station to provide details concerning the alleged theft from his office of a client's investigative file, he was acting in the course of business regulated under Chapter 493, Florida Statutes. The business of a private investigative agency and private investigator is not limited to carrying out the directives of a client during an investigation. It also includes the daily activities of office management and records maintenance. Sections 493.6119(2) and Section 493.6121(2), Florida Statutes, require each agency to maintain business and operational records for a period of two years.

By reporting the theft of his client's investigative file, Respondent was ostensibly attempting to locate the file. In reality, he was trying to obstruct the Department of State's investigation, and also happened to be carrying a concealed firearm in violation of a criminal statute. The fact that Respondent's business methods are illegal does not take those activities outside the realm of the business of a private investigative agency.

Therefore, Respondent is in violation of Section 493.6118(1)(k), Florida Statutes, for knowingly violating Section 790.01, Florida Statutes.

WHEREFORE, based upon the foregoing, it is ORDERED that all licenses held by Respondent pursuant to Chapter 493, Florida Statutes, be and are hereby REVOKED. The revocation of Respondent's licenses would be appropriate based solely upon prior disciplinary action and the violation of Section 493.6118(1)(f), Florida Statutes, found in the instant case.

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 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 4th day of November, 1993.

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 Mr. Frank J. Lanzillo, 520 - 12 Street West, #203, Bradenton, Florida 34205, this 4th day of October, 1993.

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

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

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

AGENCY AMENDED FINAL ORDER

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

STATE OF FLORIDA DEPARTMENT OF STATE

DIVISION OF LICENSING, )

)

Petitioner, )

)

v. ) CASE NO. 93-1624

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

)

Respondent. )

)

AMENDED 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 13, 1993, 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 September 28, 1993. Neither panty filed exceptions or objections to the Recommended Order.

FINDINGS OF FACT

The Department of State hereby adopts and incorporates herein by reference the Findings of Fact in the Recommended Order.

CONCLUSIONS OF LAW

The Department hereby adopts and incorporates herein by reference paragraphs 9 through 13 in the Recommended Order and rejects paragraphs 14 through 16.

When Respondent entered the police station to provide details concerning the alleged theft from his office of a client's investigative file, he was acting in the course of business regulated under Chapter 493, Florida Statutes. The business of a private investigative agency and private investigator is not limited to carrying out the directives of a client during an investigation. It also includes the daily activities of office management and records maintenance. Sections 493.6119(2) and Section 493.6121(2), Florida Statutes, require each agency to maintain business and operational records for a period of two years.

By reporting the theft of his client's investigative file, Respondent was ostensibly attempting to locate the file. In reality, he was trying to obstruct the Department of State's investigation, and also happened to be carrying a concealed firearm in violation of a criminal statute. The fact that Respondent's business methods are illegal does not take those activities outside the realm of the business of a private investigative agency.

Therefore, Respondent is in violation of Section 493.61l8(1)(k), Florida Statutes, for knowingly violating Section 790.01, Florida Statutes.

WHEREFORE, based upon the foregoing, it is ORDERED that all licenses held by Respondent pursuant to Chapter 493, Florida Statutes, be and are hereby REVOKED. The revocation of Respondent's licenses would be appropriate based solely upon prior disciplinary action and the violation of Section 493.6118(1)(f), Florida Statutes, found in the instant case.

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 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 10th day of November, 1993.

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 Mr. Frank J. Lanzillo, 520 - 12 Street West, #203, Bradenton, Florida 34205, this 10th day

of November, 1993.

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

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

Docket for Case No: 93-001624

Orders for Case No: 93-001624