STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 94-0143

)

EDWARD W. SALVATO, )

)

Respondent. )

)

RECOMMENDED ORDER

On April 28, 1994, a formal administrative hearing was held in this case in Orlando, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

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

Assistant General Counsel Department of State

The Capitol, Mail Station No. 4 Tallahassee, Florida 32399-0250

For Respondent: Edward W. Salvato, pro se

1051 South Hiawassee Road, No. 2121

Orlando, Florida 32835 STATEMENT OF THE ISSUE

The issue in this case is whether the Department of State, Division of Licensing, should discipline the Respondent, Edward W. Salvato, for impersonating a law enforcement officer, in violation of Section 493.6118(1)(i), Fla. Stat. (1993).

PRELIMINARY STATEMENT

On or about November 30, 1993, the Department of State, Division of Licensing, filed a two-count Administrative Complaint against Respondent, Edward

1. Salvato, and gave it Department Case No. C93-01976. The first count alleged that the Respondent impersonated a law enforcement officer, in violation of Section 493.6118(1)(i), Fla. Stat. (1993). The second count alleged fraud or deceit, in violation of Section 493.6118(1)(f), Fla. Stat. (1993), in gaining free entry into Sea World in Orlando and also trying to get a receipt for payment of an admissions ticket.

   
   

   The Respondent denied the charges and asked for formal administrative proceedings. The matter was referred to the Division of Administrative Hearings

   (DOAH), where it was given DOAH Case No. 94-0143 and noticed for final hearing on April 19, 1994. Later, the final hearing date was changed to April 28, 1994.

   
   

   At the final hearing, the Department announced that it was dismissing the second count of the Administrative Complaint. The Department then called three witnesses and had Petitioner's Exhibit 1 admitted in evidence. The Respondent called two witnesses before testifying in his own behalf. He also had Respondent's Exhibits 1 and 2 admitted in evidence.

   
   

   At the end of the hearing, the Department ordered the preparation of a transcript, and the parties were given ten days from the filing of the transcript in which to file proposed recommended orders. The transcript was filed on May 26, 1994. The Department filed a proposed recommended order, but the Respondent did not. The proposed findings of fact contained in the Department's proposed recommended order are accepted and incorporated to the extent not subordinate or unnecessary.

   
   

   FINDINGS OF FACT

   
   

   1. The Petitioner, Department of State, Division of Licensing, licenses and regulates private investigators in Florida.

      
      

   2. The Respondent, Edward W. Salvato, is licensed in Florida as a Class C private investigator.

1. On August 31, 1993, while working in his capacity as a private investigator, the Respondent was monitoring the movements of a subject who entered Sea World in Orlando, Florida.

   
   

2. As he entered Sea World, the Respondent hurriedly "flashed" his Class C private investigator license credentials and told the admissions gate attendant that he was a "state investigator" who was following a subject into the park.

   He told the attendant that, under those circumstances, he normally does not have to purchase a ticket. The Respondent's gestures and words gave the gate attendant the impression that the Respondent was a law enforcement investigator with official status.

   
   

3. The gate attendant was new on the job and was unsure how to handle the situation. She referred the Respondent to a supervisor. The Respondent repeated essentially the same gestures and words to the supervisor. Understanding from the Respondent's gestures and words that the Respondent was a law enforcement investigator with official status, the supervisor authorized the Respondent to enter the park without having to purchase a ticket.

   
   

4. Before he left the park, the Respondent telephoned his employer and reported on his activities. The employer advised the Respondent that it was against the employer's policies for the Respondent to seek free admission to Sea World under the conditions described by the Respondent. The employer instructed the Respondent to purchase a ticket and get a receipt for reimbursement by the Respondent's client.

   
   

5. Before leaving Sea World, the Respondent proceeded to the "Special Services" window to purchase a ticket and get a receipt. He also told "Special Services" that he was a "state investigator." Subsequent misunderstandings resulted in the Respondent being arrested by Sea World security guards.

6. When a law enforcement officer responded to a call from Sea World, the Respondent also told the officer that he was a "state investigator." The officer cautioned him that his use of the term "state investigator" to describe himself could lead one to believe he was a law enforcement officer. He advised the Respondent to stop using the term to describe himself to members of the public.

   
   

7. Evenually, the Respondent's admission to the park was paid.

   
   

   CONCLUSIONS OF LAW

   
   

8. Section 493.6118(1)(i), Fla. Stat. (1993), authorizes the Department of State, Division of Licensing, to discipline a Class C licensed private investigator for:

   
   

   Impersonating . . . a law enforcement officer or an employee of the state, the United States, or any political subdivision thereof by identifying himself as a federal, state, county, or municipal law enforcement officer or official representative, by wearing a uniform or presenting or displaying a badge or credentials that would cause a reasonable

   person to believe that he is a law enforcement officer or that he has official authority, by displaying any flashing or warning vehicular lights other than amber colored or by committing any act that is intended fo falsely convey official status. (Emphasis added.)

   
   

9. As reflected in the findings of fact, the Respondent was guilty of violating Section 493.6118(1)(i), Fla. Stat. (1993), on August 31, 1993, in that he identified himself as a "state investigator."

   
   

10. Under F.A.C. Rule 1C-3.113(1)(b)22., a $500 fine is the appropriate penalty for a violation of Section 493.6118(1)(i), Fla. Stat. (1993). A higher fine is not appropriate under F.A.C. Rule 1C-3.113(2). (Even if it were, the maximum fine would be $750.)

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of State, Division of Licensing, enter a final order finding the Respondent, Edward W. Salvato, guilty of violating Section 493.6118(1)(i), Fla. Stat. (1993), and fining him $500.

RECOMMENDED this 29th day of June, 1994, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 29th day of June, 1994.

COPIES FURNISHED:

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

The Capitol, MS #4

Tallahassee, Florida 32399-0250

Edward W. Salvato, pro se

1051 South Hiawassee Road, #2121

Orlando, Florida 32835

Hon. Jim Smith Secretary of State The Capitol

Tallahassee, Florida 32399-0250

Phyllis Slater, Esquire 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 to the Department of State, Division of Licensing 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 Department of State, Division of Licensing concerning its rules on the deadline for filing exceptions to this Recommended Order.

Docket for Case No: 94-000143

Orders for Case No: 94-000143