STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FENEL ANTOINE, )

)

Petitioner, )

)

vs. ) CASE NO. 94-0086S

) DEPARTMENT OF STATE, DIVISION OF ) LICENSING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on February 24, 1994, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Fenel Antoine, pro se

1019 Northwest 5th Avenue, #2 Fort Lauderdale, Florida 33311

For Respondent: Richard R. Whidden, Jr., Esquire

Assistant General Counsel Department of State Division of Licensing

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

STATEMENT OF THE ISSUE

The issue presented is whether Petitioner's application for a Class "C" private investigator license should be granted.

PRELIMINARY STATEMENT

Respondent denied Petitioner's application for a Class "C" private investigator license for his failure to have the required experience, and Petitioner timely requested a formal hearing regarding that denial. This cause was thereafter transferred to the Division of Administrative Hearings to conduct the formal proceeding.

Some of Petitioner's documentation filed in this cause shows his name to be Antoine Fenel and some shows his name to be Fenel Antoine. At the beginning of the formal hearing in this cause, clarification was sought, and Petitioner at that time represented his name to be Fenel Antoine. The style of this cause was accordingly amended and is not again amended despite the name shown by Petitioner on his post-hearing submittals.

Although an attorney filed a Notice of Appearance on behalf of Petitioner two days before the final hearing, that attorney has filed nothing else in this cause. That attorney did not appear for the final hearing. Petitioner attempted to contact his attorney for two hours but only reached an answering machine. The final hearing was thereafter commenced with Petitioner choosing to represent himself rather than withdraw and later re-file his application and rather than failing to meet his burden of proof by presenting no evidence on his behalf.

Petitioner testified on his own behalf, and the Department presented the testimony of Mark Spatz. Additionally, Petitioner's Exhibit numbered 1 and Petitioner's late-filed Exhibit numbered 2 were admitted in evidence.

Both parties submitted post-hearing proposed findings of fact in the form of proposed recommended orders. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner applied for a Class "C" private investigator license. The Department denied that application by letter dated November 24, 1993, for the reason that Petitioner had not shown that he had the two years of full-time experience or training required for licensure.

   
   

2. As evidence of his two years of full-time experience or training, Petitioner had submitted to the Department an affidavit from attorney Mark M. Spatz of the law firm Simons and Spatz and an affidavit from attorney Lawrence

   S. Ben of the law firm Chikovsky and Ben. Both of those affidavits had been altered.

   
   

3. Although Petitioner did perform some services for attorney Spatz' law firm by assisting in the investigation and preparation of some cases for trial from September of 1990 to June of 1992, he did so as an independent contractor and not as an employee. That law firm provided Petitioner with no training or equipment and exercised no control over him. Petitioner was simply given an assignment and told to complete it for a flat rate. Petitioner was not held out by the law firm to be an employee, he was not carried on any of the firm's insurance policies, no taxes were withheld from his pay check when he carried out an assignment, and Petitioner did not receive a weekly paycheck. Petitioner's contacts with that law firm were minimal and numbered less than ten.

   
   

4. Petitioner worked as an employee at the law firm of Chikovsky and Ben. He performed both janitorial work and investigative work. The amount of his time spent working as a janitor versus the time spent working as an investigator while employed by that law firm is unknown as is the length of time he was employed there.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

   
   

6. Section 493.6203(4), Florida Statutes, provides as follows:

   1. An applicant for a Class "C" license shall have 2 years of lawfully gained, verifiable, full-time 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 coursework related to criminal justice, criminology, or law enforcement administration, or successful completion of any law enforcement-related training received from any federal, state, county, or municipal agency, except that no more than 1 year may be used from this category.

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

         
         

7. To be lawfully-obtained experience, the experience cannot be contrary to the law. For an individual to perform private investigative services without proper supervision, that investigator must have a Class "C" license. Section 493.6201(5), Florida Statutes. An exception to the Class "C" licensure requirement is made where an unarmed private investigator is engaged in an employer-employee relationship. Section 493.6102(3), Florida Statutes. That exemption does not apply to a person engaged to perform private investigative work as an independent contractor or a subcontractor and who does not enjoy an employer-employee relationship.

   
   

8. In computing Petitioner's experience, no credit can be given for his services rendered to the law firm of Simons and Spatz. Those services were rendered as an independent contractor, not as an employee, and, therefore, do not constitute lawfully-obtained experience. Further, although attorney Spatz' affidavit submitted by Petitioner in support of his application was prepared and executed by attorney Spatz, Spatz testified that the portion of the affidavit purporting to state that Petitioner spent 75 percent of his time doing investigative work was not contained in the affidavit when Spatz signed it and Spatz never authorized anyone to so alter his affidavit. Spatz also testified that the 75 percent time allocation is false.

   
   

9. Even a quick glance at the affidavit reveals that it has been obviously altered. The remainder of the affidavit uses good grammar and punctuation and is typed with professional spacing. The alteration uses a different type, is grammatically wrong, and was patently added as an afterthought.

   
   

10. Similarly, Petitioner can be given no credit for the services he performed at the law firm of Chikovsky and Ben. The affidavit of attorney Ben has also been obviously altered to show the length of Petitioner's employment by using a different type and bad grammar. The addition is even written out in the margin of an affidavit where the typist had justified the margins. Further, even though the affidavit states that Petitioner was an employee, there is no representation as to how much of Petitioner's time was spent doing investigation work as opposed to his time spent performing his janitorial duties. Lastly, the only non-hearsay evidence offered to prove the length of employment and amount of investigative work performed for that law firm was the testimony of Petitioner who has shown himself to not be a credible witness.

    
    

11. Although Petitioner was granted leave to file post-hearing a copy of attorney Ben's affidavit to be considered as part of the evidence in this cause,

    he did not request leave, and none was granted, for Petitioner to also file post-hearing an affidavit from King's Men Security Service, Inc. Petitioner's post-hearing submittal mentions that affidavit. The affidavit was filed with the Division of Administrative Hearings on January 6, 1994, prior to the final hearing in this cause but was not offered in evidence at the final hearing and no testimony was offered by Petitioner regarding any employment by King's.

    Further, that affidavit which is dated November 30, 1993, could not have been submitted to, or considered by, the Department as part of Petitioner's application since Petitioner's application for licensure was denied by the Department on November 24, 1993.

    
    

12. Accordingly, Petitioner has failed to prove that he has the two years of lawfully gained, verifiable, full-time experience or training required for licensure.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application

for licensure as a Class "C" private investigator.

DONE and ENTERED this 28th day of March, 1994, at Tallahassee, Florida.

LINDA M. RIGOT

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 28th day of March, 1994.

APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 94-0086S

1. Petitioner's proposed findings of fact delineated by letters A-I have been rejected as not constituting findings of fact but rather as constituting argument, conclusions of law, or recitation of the testimony.

2. Respondent's proposed findings of fact numbered 1-3 and 5-10 have been adopted either verbatim or in substance in this Recommended Order.

3. Respondent's proposed finding of fact numbered 4 has been rejected as not being supported by the weight of the competent evidence in this cause.

COPIES FURNISHED:

Fenel Antoine

1019 Northwest 5th Avenue, #2 Fort Lauderdale, Florida 33311

Richard R. Whidden, Jr., Esquire Assistant General Counsel Department of State

Division of Licensing The Capitol, M.S. #4

Tallahassee, Florida 32399-0250

Honorable Jim Smith Secretary of State Department of State The Capitol

Tallahassee, Florida 32399-0250

Phyllis Slater, General Counsel Department of State

The Capitol, PL-02

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: 94-000086

Orders for Case No: 94-000086