STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, DIVISION OF ) LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 94-0853

) SPECIAL SECURITY SERVICE, INC., ) CARL J. CLAUSEN, OWNER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held in this case before Diane Cleavinger, a duly designated Hearing Officer of the Division of Administrative Hearings, on October 11, 1994, at Tallahassee, Florida.

APPEARANCES

For Petitioner: Kristi Reid Bronson

Assistant General Counsel Department of State Division of Licensing

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

For Respondent: John Wardlow

Attorney at Law Post Office Box 84

Tallahassee, Florida 32302 STATEMENT OF THE ISSUES

Whether Respondent conducted or advertised the business of a private investigative agency without a valid Class "A" Investigative Agency license, in violation of Section 493.6118(1)(g), Florida Statutes, and Rule 1C-3.122(2), Florida Administrative Code, and, if so, what discipline Respondent should receive for such violations.

PRELIMINARY STATEMENT

On January 14, 1994, the Florida Department of State, Division of Licensing filed an Administrative Complaint against Respondent, alleging that Respondent violated Subsection 493.6118(1)(g), Florida Statutes, and Rule 1C

Florida Administrative Code. Specifically, the Administrative Complaint alleges that Respondent violated Section 493.6118(1)(g), Florida Statutes, and Rule

1C

business of a private investigative agency without a valid Class "A" Private Investigative Agency license. Respondent disputed the allegations made in the

Administrative Complaint and requested a formal hearing. The case was then forwarded to the Division of Administrative Hearings.

At the hearing, Petitioner called two witnesses and introduced five exhibits into evidence. Respondent testified in his own behalf and called two additional witnesses. Respondent also offered one exhibit into evidence.

Petitioner and Respondent filed Proposed Recommended Orders on November 3, 1994, and November 1, 1994, respectively. The parties' Proposed Findings of Fact have been considered and utilized in the preparation of this Recommended Order except where such proposals were not supported by the weight of the evidence or were immaterial, cumulative, or subordinate. Specific rulings on the parties' Proposed Findings of Fact are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. In 1993, Respondent Carl Clausen, along with some acquaintences, was interested in opening a private investigative business or becoming associated with a private investigative agency. Mr. Clausen had an extensive background in police investigative and security work and was well qualified to be licensed as a private investigator. In pursuit of getting into the business of private investigations, Mr. Clausen attended a business recruiting meeting held by a private investigative company on March 19, 1993. Ms. Bronson, owner of Prosearch International, then the holder of a valid Class A Private Investigative Agency license, also attended the meeting where she met Respondent. After the meeting, Ms. Bronson and Respondent discussed various ways he might became associated with her investigative agency in order to expand the services Prosearch could offer potential clients. These discussions included buying part or all of Prosearch.

   
   

2. At some point after the recruiting meeting, Ms. Gentry, a local attorney in Tallahassee, Florida, was appointed to represent a man accused of murder in Quincy, Gadsden County, Florida. Ms. Gentry felt the defense team needed an experienced investigator who could effectively work within a predominately minority community in Quincy. Ms. Gentry contacted Ed Rawls about possibly working the case. However, Mr. Rawls was a reserve Gadsden County Sheriff's Deputy, and had an obvious conflict in investigating the case for Ms. Gentry. Mr. Rawls recommended Mr. Clausen as a potential investigator.

   
   

3. Ms. Gentry called Mr. Clausen on March 24, 1993, and requested that he come the next day for an interview.

   
   

4. On March 25, 1993, Mr. Clausen asked Ms. Bronson to meet him for lunch to discuss her employing him as an intern private investigator. An intern private investigator holds a Class "CC" license once the sponsorship becomes effective. Eventually, the intern can obtain a Class "C" investigative license. Mr. Clausen and Ms. Bronson met for lunch and Ms. Bronson agreed to sponsor Mr. Clausen. Mr. Clausen also told Ms. Bronson about his scheduled meeting with Ms. Gentry. Soon after the meeting, Ms. Bronson left town to take care of some personal matters.

   
   

5. After lunch, Mr. Clausen went directly to Ms. Gentry's office for the meeting she had scheduled. Ms. Gentry interviewed Respondent to determine whether he had the experience and ability to perform the investigation she felt was necessary to prepare for her client's murder trial.

6. Ms. Gentry discussed some general details of the case with Respondent in order to more fully assess Respondent's abilities to investigate her case should the Respondent become licensed as an investigator. Respondent did not receive the case file from Ms. Gentry, nor did Respondent receive information such as addresses which would have enabled him to begin an investigation. Ms. Gentry felt that Mr. Clausen was very well qualified.

   
   

7. At the initial meeting Respondent made it very clear to Ms. Gentry that he would not begin any investigation until he was properly licensed or could conduct the investigation under one of the exemption categories in Chapter 493, Florida Statutes, such as an employee for an attorney. Mr. Clausen also told Ms. Gentry he was not at present in business as a private investigator, but that he wanted to be and was working on the prospect.

   
   

8. However, Ms. Gentry did not want to deal with the paperwork or potential liability of an employment relationship with Mr. Clausen. Therefore, Mr. Clausen needed to become licensed as quickly as possible so that the investigation could begin.

   
   

9. Respondent and Ms. Gentry met again on March 30, 1993. However, the meeting contered on the quickest way Respondent could become licensed as an investigator.

   
   

10. Mr. Clausen also told Ms. Gentry that his license would most likely be in order April 2, 1993, when Ms. Bronson, through Prosearch, would return to formalize his application at the Department of State for the internship. In short, Mr. Clausen would have a Class "CC" license.

    
    

11. Prior to licensure as a Class "C" or "CC" licensee, Respondent did not advertise or solicit any investigative business on his behalf. Respondent only participated in an employment interview for future employment after he was licensed and discussed various methods of becoming legally able to pursue Ms. Gentry's case. Likewise no investigation was begun prior to his licensure.

    
    

12. On April 2, 1993, Ms. Bronson filed Respondent's sponsorship papers and Respondent filed an application for a Class "CC" Private Investigator Intern license issued under Chapter 493, Florida Statutes.

    
    

13. Because of the sponsorship, Respondent was employed by Prosearch International, a Class "A" private investigative agency, under Chapter 493, Florida Statutes. Ms. Bronson furnished Mr. Clausen with letters of introduction and appointment as her investigator. These letters were given to Ms. Gentry and a contract for services was entered into.

    
    

14. On April 6, 1993, Ms. Gentry met with Mr. Clausen at her office where he was furnished with names, addresses, physical evidence and access to Ms. Gentry's case file. The case file contained police reports and probable cause affidavits on the case. Ms. Gentry requested Mr. Clausen to proceed immediately with the investigation.

    
    

15. Mr. Clausen began the investigation on the morning of April 7, 1993, by interviewing the defendant in jail. Around April 21, 1993, Prosearch presented its first invoice for services to Ms. Gentry. The invoice contained charges for Mr. Clausen's meetings on March 25 and 30, 1993. However, the charges were not for investigative services. Ms. Gentry felt it was appropriate

    for Prosearch to bill for those hours even though she was aware no investigative work had begun and she had no contract with Respondent or Prosearch until April 6, 1993.

    
    

16. Thereafter, Gadsden County paid the first invoice to ProSearch.

    
    

17. Aroung May 7, 1993, ProSearch submitted a second invoice to Ms. Gentry.

    
    

18. The investigation and report were completed and delivered by Ms. Bronson to Ms. Gentry's office around June 22, 1993. Both Ms. Gentry and Ms. Bronson praised Mr. Clausen's investigation and report as excellent.

    
    

19. From March 25, 1993, to July 3 or 4, 1993, discussions between Mr. Clausen and Ms. Bronson regarding the future organization and market strategy for ProSearch or another business occurred almost daily. At the July meeting it became clear that Ms. Bronson had decided to associate with two others and gave Mr. Clausen a ProSearch check for his commission on the first invoice. On July 6, 1993, Ms. Bronson sent letters firing Mr. Clausen and notifying the Division that she would no longer sponsor Mr. Clausen.

    
    

20. However, there was still billable time for investigative services outstanding for the investigation for Ms. Gentry. Additionally, Mr. Clausen was due his commission for those hours. Ms. Bronson said she had no money to pay wages or workman's compensation and therefore did not have funds to pay Mr. Clausen's his commission or expenses. Anxious to resolve the situation and not having contact with Ms. Bronson, Mr. Clausen submitted a final invoice on Specialty Security Services, Inc., letterhead to Gadsden County. The invoice referenced the first and second ProSearch invoices, showing the first invoice as paid and the second invoice as unpaid. The Gadsden County Commission approved and paid the invoice. Mr. Clausen used Special Security Services, Inc., letterhead because his word processor is programmed to always include the "Special Security Services, Inc." (SSS) letterhead. Otherwise, Special Security Services, had no role in this matter and should be dismissed as a party.

    
    

21. Further, none of Mr. Clausen's activities violates Chapter 493, Florida Statutes. Therefore, the administrative complaint against Respondent should be dismissed.

    
    

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).

    
    

23. Section 493.6101(15), Florida Statutes, defines "private investigative agency." Section 493.6101(15), Florida Statutes, states:

    
    

    "Private investigative agency" means any person who, for consideration, advertises as providing or is engaged in the business of furnishing private investigations.

    
    

24. Section 493.6101(16), Florida Statutes, defines "private investigator." Section 493.6101(16), Florida Statutes, states:

    (16) "Private investigator" means any individual who, for consideration, advertises as providing or performs private investigations. This does not include an informant who, on a one-time or limited basis, as a result of a unique expertise,

    ability, vocation, or special access and who, under the direction and control of a Class "C" licensee or a Class "MA" licensee, provides information or services that would otherwise be included in the definition of private investigation.

    
    

25. Section 493.6106(6), Florida Statutes, defines "advertising" as the submission of bids, contracting, or making known by any public notice or solicitation of business, directly or indirectly, that service regulated under Chapter 493, is available for consideration.

    
    

26. The definition of "private investigation" is found in Section 493.6101(17), Florida Statutes, Section 493.6101(17), Florida Statutes, states, in pertinent part:

    
    

    (17) "Private investigation" means bodyguard services or the investigation by a person or persons for the purpose of obtaining information with reference to any of the following matters:

    1. 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.

    2. The identity, habits, conduct, movements, whereabouts, affiliations, associations, transac- tions, reputation, or character of any society, person, or group of persons.

    (g) 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.

    
    

27. Section 493.6201(1), Florida Statutes, provides, in part, that any person, firm, company, partnership, or corporation which engages in business as a private investigative agency shall have a Class "A" license.

    
    

28. Section 493.6201(4), Florida Statutes, provides, in part, that Class "C" or "CC" licensees shall own or be an employee of a Class "A" agency, a Class "A" and Class "B" agency, or a branch office. See also, 493.6116, Florida Statutes.

    
    

29. Section 493.6201(5)(b), Florida Statutes, provides that any individual who performs the services of a private investigator shall have a Class "C" or Class "CC" license.

    
    

30. When Respondent met with Ms. Gentry on March 25, 1993, only general details of the case were mentioned by Ms. Gentry. The purpose of these discussions were to facilitate an employment interview by Ms. Gentry. The discussions were not in preparation of securing evidence in a criminal case and therefore did not fall within the definition of private investigation.

Moreover, the evidence did not demonstrate that Respondent submitted any bid, or

contracted for or represented that his investigative services were immediately available. Respondent only engaged in an employment interview and made it very clear that no services were available until he was licensed. Discussions of a person's qualifications to perform an investigation is not the same as advertising or representing that those services are presently available or that the individual is currently in the investigative business. If the opposite were true, no person could ever be employed under the categories of exemption ulisted in Chapter 493, Florida Statutes, without first violating Chapter 493, Florida Statutes. Given these facts, Respondent did not violate any provisions of Chapter 493, Florida Statutes. Therefore, the administrative complaint should be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly,

RECOMMENDED:

That the Department of State, Division of Licensing, enter a Final Order finding that Respondent has not violated Chapter 493, Florida Statutes, or Chapter 1C-3.122(2), Florida Administrative Code, and that the petition be dismissed.

DONE and ENTERED this 30th day of December, 1994, in Tallahassee, Florida.

DIANE CLEAVINGER

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 30th day of December, 1994.

APPENDIX TO CASE NO. 94-0853

1. The facts contained in paragraphs 4 and 6 of Petitioner's Findings of Fact are adopted in substance, insofar as material.

2. The statements contained in paragraphs 1, 5 and 7 of Petitioner's Proposed Findings of Fact were subordinate.

3. The statement contained in paragraph 3, of Petitioner's Proposed Findings of Fact were not shown by the evidence.

4. The facts contained in paragraphs 3, and 4 of Respondent's Proposed Findings of Fact are subordinate.

5. The facts contained in paragraphs 1, 2, 5, 6, 7, 8, 9, 10, 11 and 12 of Respondent's Proposed Findings of Fact are either introductory or conclusions of law.

COPIES FURNISHED:

Kristi Reid Bronson Assistant General Counsel Department of State Division of Licensing

The Capitol, M.S. #4

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.: C93-01699

XA93-00083

SPECIAL SECURITY SERVICE, DOAH NO.: 94-0853 INCORPORATED,

CARL J. CLAUSEN, OWNER,

Respondent.

/

FINAL ORDER

This cause came before the Department of State, Divisionof Licensing, for consideration and final agency action. A formaladministrative hearing was conducted pursuant to Section 120.57(1),Florida Statutes, on October 11, 1994, before Diane Cleavinger, aduly assigned Hearing Officer of the Division of AdministrativeHearings. The Recommended Order was submitted by the HearingOfficer on December 30, 1994, a copy of which is attached. Neitherparty filed exceptions.

FINDINGS OF FACT

The Department of State hereby adopts and incorporatesherein by reference the Findings of Fact in the Recommended Orderwith the exception of paragraphs 11, 15 and 21 which containerroneous conclusions of law. These legal conclusions are addressedbelow.

CONCLUSIONS OF LAW

The Department of State hereby adopts and incorporatesherein by reference the Conclusions of Law in the Recommended Orderwith the exception of paragraph

30 wherein the Hearing Officerconcluded that Respondent's discussions with Ms. Gentry prior tolicensure did not constitute "private investigation." It isundisputed that the client, Ms. Gentry, imparted information abouther criminal case to Respondent in their meeting of March 25, 1993(Findings of Fact, paragraph 6), and that Respondent billed Ms.Gentry for those services (Findings of Fact, paragraph 15). WhileRespondent and Ms. Gentry do not characterize those meetings asbeing investigative in nature, their opinions are given littleweight because they are self-serving legal conclusions. It is notunreasonable for a private investigator to charge the client forinterviews and meetings before and during an investigation and thiswould clearly come within the jurisdiction of the Department ofState as regulated activity under Chapter 493, Florida Statutes.Respondent's invoicing of his services prior to

licensure is proofof unlicensed investigative activity as well as solicitation oradvertising prior to licensure. These violations occurredsimultaneously since Ms. Gentry and Respondent discussed hisemployment and the "general details" of a criminal case in which sheserved as defense counsel (Findings of Fact, paragraph 6). TheDepartment of State also makes a clerical correction to paragraph 25to correct the cite from Section 493.6106(6), Florida Statutes, toSection 493.6101(6), Florida Statutes, as the correct cite to thedefinition of "advertising."

WHEREFORE, based upon the foregoing, it is found thatRespondent is in violation of Section 493.6118(1)(g), FloridaStatutes and Rule 1C-3.122(2), Florida Administrative Code, andwithin thirty (30) days shall pay an administrative fine of $500.00,made payable to the Department of State, Division of Licensing.

NOTICE OF RIGHTS

This Order constitutes final agency action. Any party whois adversely affected by this Order may seek judicial review underSection 120.68, Florida Statutes. Such proceedings are commenced byfiling a Notice of Appeal, pursuant to Rule 9.110, Florida Rules ofAppellate Procedure, with the Deputy Clerk of the Division ofLicensing, Department of State, The Capitol, Mail Station #4,Tallahassee, Florida 32399-0250; and by filing a copy of the Noticeof Appeal, accompanied by the applicable filing fees, with the FirstDistrict Court of Appeal, or with the District Court of Appeal inthe appellate district where the party resides. The Notice ofAppeal must be filed within thirty (30) days of the day this Orderis filed with the Clerk of the Department.

DONE AND ORDERED at Tallahassee, Florida this 3rd day of February, 1995.

John M. Russi, Director Division of Licensing

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing Final Orderhas been sent by

U.S. Mail this 3rd day of February, 1995, to John Wardlow, Esquire, Post Office Box 84, Tallahassee,Florida 32302.

Michele Guy

Assistant General Counsel Department of State Division of Licensing

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

(904) 488-3492

COPIES FURNISHED:

License File

Tallahassee Regional Office

Filed with Agency Clerk

Division of Administrative Hearings DOAH Case No. 94-0853

Docket for Case No: 94-000853

Orders for Case No: 94-000853