STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 94-5889

) FLORIDA BUREAU OF INVESTIGATIONS, ) AND DANIEL GOLDBERG RECOVERY, ) DANIEL D. GOLDBERG, OWNER, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was held in this case before Patricia Hart Malono, Hearing Officer of the Division of Administrative Hearings, on May 18 and 19, 1995, at Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Michele Guy, Esquire

Kristi Reid Bronson, Esquire Assistant General Counsel Department of State

Division of Licensing

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

For Respondents: Daniel D. Goldberg

2812 Southwest 65 Avenue

Miramar, Florida 33023 STATEMENT OF THE ISSUE

At issue is whether the respondents committed the violations alleged in the Administrative Complaint, and, if so, the penalties which should be imposed.

PRELIMINARY STATEMENT

In an eight-count Administrative Complaint dated August 8, 1994, petitioner, the Department of State, Division of Licensing ("Department"), charged Florida Bureau of Investigations, Daniel Goldberg Recovery, and Daniel

D. Goldberg, owner, with violations of various provisions of section 493.6118(1), Florida Statutes. The respondents, through Daniel D. Goldberg, timely requested a formal hearing pursuant to section 120.57(1), Florida Statutes, disputing the allegations stated in the Administrative Complaint. The case was referred to the Division of Administrative Hearings and, after several continuances, was set for final hearing on May 18 and 19, 1995.

The Department dismissed Counts III and VI of the Administrative Complaint in its Prehearing Statement filed January 25, 1995, and dismissed Counts IV and VII at hearing. Therefore, the hearing went forward on four counts. In Count I, the Department charged that, between September 16 and December 13, 1993, the respondent 1/ conducted the business of a recovery agency without a valid Class "R" recovery agency license, a violation of section 493.6118(1)(g); in Count II, the Department charged that, between September 16, 1993, and February 16, 1994, the respondent performed the services of a recovery agent or a recovery agent intern without a valid Class "E" recovery agent license or a valid Class "EE" recovery agent intern license, a violation of section 493.6118(1)(g); in Count V, the Department charged that, on or about January 7, 1994, the respondent impersonated a law enforcement officer in violation of section 493.6118(1)(I); and, in Count VIII, the Department charged that, on or about June 21, 1994, the respondent was convicted in New Jersey of transportation of firearms, a felony, and that, pursuant to section 493.6118(4), he is ineligible to hold any licenses issued under chapter 493.

At the hearing, the Department presented the testimony of six witnesses: Peter Tuttle, Thomas Tolbert, Claudio DeBonis, Vicki Goldstein, Fred Speaker, and Jack D'Ambrosio. The Department's Exhibits 1-5, 7-16, 19-21, 26, and 31-33 were offered into evidence and admitted without objection. The respondent called Shel Douglas Higgens as his only witness, and Respondent's Exhibits 1-3 were offered into evidence and admitted without objection. Respondent's Exhibit

4 was offered into evidence but was rejected as not relevant.

On May 12, 1995, an order was entered granting the Department's motion to deem admitted those facts stated in requests numbered 1 through 7 of the request for admissions served on the respondent by the Department on March 14, 1995.

The motion was filed on April 25, 1995, and stated as grounds the respondent's failure to respond to the requests. The Certificate of Service appended to the motion indicates that service was accomplished by United States mail on April 25, 1995, to "Daniel D. Goldberg, 2812 S.W. 65th Avenue, Miramar, Florida 33023." The respondent did not file a response in opposition to the motion within the time allowed by rule 60Q-2.016(1), Florida Administrative Code, and the order was entered without oral argument.

At the hearing, the respondent objected to entry of the order deeming the matters admitted. He claimed, first, that he had not received a copy of the April 25 motion and, secondly, that the March 14 request for admissions was incorrectly identified as "Petitioner's First Request for Admissions," when it was really the Department's second request for admissions. The respondent stated that, on the basis of the title of the pleading, he assumed that he did not have to respond because he had already responded to Petitioner's First Request for Admissions, which was served December 23, 1994.

The respondent was advised that he could present evidence at the hearing regarding the matters raised in this argument and was asked to submit a memorandum of law within fifteen days of the close of the hearing in support of his request that the May 12 order be withdrawn. The respondent did not adduce any evidence at the hearing relating to the issue of whether he received a copy of the April 25 motion, but he filed a Motion to Strike the May 12 order, together with a memorandum of law, within the allotted time. The Department timely filed a response in opposition to this motion. Upon careful consideration of the arguments presented by the respondent at hearing and raised in his motion and memorandum, it is concluded that the respondent has not stated sufficient grounds to justify reconsideration of the May 12 order. The Motion to Strike is, therefore, DENIED.

At the conclusion of the hearing, the Department stated that a transcript of the proceedings would be filed. Over the objection of the Department, the parties were allowed thirty days in which to file proposed findings of fact and conclusions of law. The Department timely filed its Proposed Recommended Order, but no proposed findings of fact and conclusions of law have been filed by the respondent. A ruling on each of the Department's proposed findings of fact is contained in the appendix to this Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and the entire record of this proceeding, the following findings of fact are made:

1. Daniel D. Goldberg, either as an individual or as owner, currently holds, or held at all times material to this proceeding, the following licenses issued pursuant to chapter 493:

   
   

   1. Class "EE" recovery agent intern license, number EE 9200054, a renewal license 2/ which expires December 30, 1995;

   2. Class "R" recovery agency license, number R 9200003, which was issued December 13, 1993, and expires December 13, 1995;

   3. Class "C" private investigator license, number C 0000984, a renewal license which was to expire March 11, 1995;

   4. Class "D" security officer license, number D 9111909, a renewal license which was to expire August 6, 1995;

   5. Class "M" private investigative/security agency manager's license, number M 9100061, a

      renewal license which was to expire September 6, 1995;

   6. Class "A" private investigative agency license, number A 0001510, which was issued March 31, 1995.

      
      

      1. Counts I and II: Engaging in the business of performing repossessions without a Class "R" license and performing repossessions without a Class "E" license or a valid Class "EE" license.

         
         

2. Bradford Gray, a Class "E" licensee, sponsored Mr. Goldberg as a Class "EE" recovery agent intern from April 1992, to August 22, 1993. Mr. Gray's sponsorship allowed Mr. Goldberg to perform repossessions under Mr. Gray's direct supervision and control. When Mr. Gray terminated his sponsorship, Mr. Goldberg was no longer authorized to perform repossessions even though he retained his Class "EE" intern's license.

   
   

3. Mr. Gray notified the Department on the appropriate form of the date his sponsorship of Mr. Goldberg terminated; the form was received by the Department on September 3, 1993. The Department sent Mr. Goldberg a letter dated November 23, 1993, notifying him that he was no longer sponsored by a licensed Class "E" recovery agent and that he was not authorized to work as a recovery agent intern until the Department received notification that he had a new sponsor. On February 16, 1994, Mr. Goldberg was personally advised by Fred

   Speaker, supervisor/investigator for the Department's West Palm Beach regional office, that he did not have a valid recovery agent's license because he lacked a sponsor.

   
   

4. From on or about September 16, 1993, until on or about December 30, 1993, Mr. Goldberg performed repossessions for Motor World, a used car dealer located in Plantation, Florida. Mr. Goldberg performed these repossessions as an independent contractor of Motor World, not as an employee. He was paid an agreed amount for each motor vehicle he repossessed.

   
   

5. Mr. Goldberg submitted requests for payment to Motor World on September 16, September 28, October 11, November 10, November 24, December 3, December 10, December 23, and December 30, 1993; the vehicles which Mr. Goldberg repossessed and for which he claimed payments were identified on each request. Payment was made by check, drawn on the account of Motor World and made payable to "Daniel Goldberg"; the checks were endorsed by "Daniel Goldberg."

   
   

6. Mr. Goldberg also performed two repossessions for Motor World on January 7, 1994.

   
   

7. "Daniel Goldberg Recovery," owned by Daniel David Goldberg, was issued a Class "R" recovery agency license by the Department on December 13, 1993. At some point in time after December 13, 1993, when Daniel Goldberg Recovery was licensed and had the appropriate insurance and federal tax identification number, Motor World began doing business with the agency and paying it rather than Mr. Goldberg for the repossessions.

   
   

8. On February 17, 1994, Bradford Gray notified the Department that, as of February 16, 1994, he was again acting as Mr. Goldberg's sponsor and would supervise him as a recovery agent intern until Mr. Goldberg was issued his Class "E" recovery agent's license.

   
   

9. From on or about September 16, 1993, until on or about December 30, 1993, Mr. Goldberg performed repossessions for consideration, without being properly licensed.

   
   

   1. Impersonating a law enforcement officer.

      
      

10. In January 1994, Peter Tuttle owned a blue, 1985, two- door Ford Mustang, which he had purchased from and financed with Motor World.

    
    

11. On January 7, 1994, Mr. Goldberg approached Mr. Tuttle at his place of employment. Mr. Goldberg identified himself as "Detective Goldberg" and opened his wallet, showed Mr. Tuttle a badge, folded his wallet, and put it back in his pocket. Mr. Tuttle did not get a good look at the badge because Mr. Goldberg opened and closed his wallet quickly, but the badge was metal and appeared to Mr. Tuttle to be a police officer's badge. Mr. Goldberg told Mr. Tuttle that he was investigating a hit-and-run accident involving Mr. Tuttle's car and that he needed to see the car to check for damages. Mr. Goldberg also told Mr. Tuttle that concealing mortgaged property was a crime and that he could be arrested and go to jail if the case ended up in court.

    
    

12. Mr. Tuttle told Mr. Goldberg that he did not know the location of his car because he could not keep up with the payments and had lent the car to his uncle, John Talirico, who had been driving it for several months. Because Mr. Tuttle thought Mr. Goldberg was a police officer on official business, he

    telephoned his uncle, and Mr. Goldberg spoke with him. After this telephone conversation, Mr. Goldberg left the premises.

    
    

13. Later in the day on January 7, 1994, Mr. Goldberg telephoned Claudio DeBonis, an automobile mechanic who worked for Bullard Enterprises in Pembroke Park. He identified himself to Mr. DeBonis as ""Detective" so-and-so" 3/ and indicated that he was calling in reference to a hit-and-run accident involving a vehicle in Mr. DeBonis's shop. Mr. DeBonis gave Mr. Goldberg the address of the repair shop.

    
    

14. When Mr. Goldberg arrived at the shop, located at 2690 South Park Road, Pembroke Park, Florida, he walked up to Mr. DeBonis, pulled out his wallet, flashed his wallet open and shut so quickly that Mr. DeBonis was not sure whether there was a badge in the wallet, and identified himself as ""Detective" so-and-so." Mr. Goldberg told Mr. DeBonis that he was investigating a hit-and-run accident involving a blue Mustang. Although Mr. DeBonis asked Mr. Goldberg for a business card, Mr. Goldberg did not give him one.

    
    

15. Mr. Goldberg located the blue Mustang in the shop, looked it over, and found a small scratch on the fender. He told Mr. DeBonis he had to take the car, but Mr. DeBonis objected. Mr. Goldberg then began speaking on what appeared to be a two-way Motorola radio, asking for the "BSO" and the "DMV."

    Mr. DeBonis believed these references were to the Broward County Sheriff's Office and to the Department of Motor Vehicles. Although Mr. DeBonis initially thought Mr. Goldberg was a police officer, he became suspicious when Mr.

    Goldberg said he needed to take the car and went upstairs in the shop to call the sheriff's office. Before his call could get through, he saw Mr. Goldberg pushing the Mustang through the alley, with a woman in the driver's seat steering the car.

    
    

16. Mr. DeBonis and Mr. Goldberg had a brief altercation when Mr. DeBonis tried to stop Mr. Goldberg from removing the car from the shop's premises. When Mr. DeBonis was told by a sheriff's deputy, who arrived after the car had been pushed into the street, that Mr. Goldberg was repossessing the vehicle, that he had the proper paperwork, and that there was nothing Mr. DeBonis could do, Mr. DeBonis turned and walked away.

    
    

17. Mr. Goldberg impersonated a law enforcement officer in these two incidents in order to gain access to the motor vehicle he sought to repossess. He identified himself to Peter Tuttle as "Detective" Goldberg and displayed a metal badge to Mr. Tuttle in such a fashion that Mr. Tuttle reasonably believed that Mr. Goldberg was a law enforcement officer. By telling Mr. Tuttle that he was investigating a hit-and-run accident involving Mr. Tuttle's 1985 Mustang and that he needed to see the car in furtherance of this investigation, Mr. Goldberg intended to further convince Mr. Tuttle of his official status so Mr. Tuttle would divulge the whereabouts of his car.

    
    

18. Mr. Goldberg represented himself in virtually the same way to Claudio DeBonis. He identified himself as a "Detective" and flashed his wallet open and shut in a manner calculated to convey the impression that he was carrying a badge. Mr. Goldberg told Mr. DeBonis that he was investigating a hit-and-run accident involving the blue Mustang which had been left for repairs at the shop where Mr. DeBonis was employed. By such conduct, he intended to give Mr. DeBonis the impression he was a law enforcement officer on official business in order to convince Mr. DeBonis to give him access to the blue Mustang.

    1. Conviction in New Jersey of a crime of the fourth degree.

    
    

19. On June 21, 1994, a Judgment of Conviction was entered in the New Jersey Superior Court, Essex County, Law Department - Criminal, finding Mr. Goldberg guilty of the offense of transport of a firearm under statute 2C:39-5b, identified in the judgment as a crime of the fourth degree.

    
    

20. Mr. Goldberg was placed on one year's probation, to be transferred to Florida, and the court recommended that "any right to carry firearm in Florida be continued."

    
    

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. 120.57(1), Fla. Stat.

    
    

22. The Department of State, Division of Licensing, has jurisdiction over the activities of recovery agencies and recovery agents, whether licensed or not, pursuant to section 493.6121, Florida Statutes. The Department also has the authority to take disciplinary action against both licensees and those performing regulated activities without a license, based on the grounds stated in section 493.6118(1), Florida Statutes. Section 493.6118(2), Florida Statutes, specifies that the Department may impose one or more of the penalties listed for a violation of subsection (1); among the permissible penalties is imposition of an administrative fine not to exceed $1,000 for every count or offense, placement of the licensee on probation for a specified period of time, or denial, suspension, or revocation of the license.

    
    

23. When seeking to take disciplinary action against a licensee or an unlicensed person engaging in regulated activities, the Department has the burden of proving the allegations contained in the Administrative Complaint by clear and convincing evidence. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Pic n' Save Central Florida, Inc. v. Department of Business Regulation, Div. of Alcoholic Beverages & Tobacco, 601 So. 2d 245 (Fla. 1st DCA 1992).

    
    

24. Clear and convincing evidence, as defined by the court in Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983),

    
    

    requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue.

    The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

25. The Department seeks to impose penalties on Mr. Goldberg for violations of section 493.6118(1)(g) and (I) and to revoke the Class "B," "R," "C," "D," "EE," and "M" licenses held by Mr. Goldberg individually or as owner of an agency pursuant to section 493.6118(4). Each of these charges will be considered separately.

    
    

    1. Section 493.6118(1)(g): Engaging in regulated activities without a valid license.

26. Section 493.6118(1)(g), Florida Statutes, provides:

    
    

    (1) The following constitute grounds for which disciplinary action specified in subsection (2)

    may be taken by the department against any licensee, agency, or applicant regulated by this chapter, or any unlicensed person engaged in activities regulated under this chapter.

    ***

    (g) Conducting activities regulated under this chapter without a license or with a revoked or suspended license.

    
    

27. The "activities regulated under this chapter" at issue in this case are the activities alleged in Count I of the Administrative Complaint that "Respondent" conducted the business of a recovery agency without a license during the period from September 16, 1993, through December 13, 1993, and, in Count II of the Administrative Complaint, that "Respondent" performed repossessions without a valid license during the period from September 16, 1993, through February 16, 1994.

    
    

28. The Department has proven by clear and convincing evidence that Mr. Goldberg repossessed motor vehicles for Motor World, for consideration, during the period from on or about September 16, 1993, until on or about December 30, 1993. 4/

    
    

29. With regard to Count I, section 493.6401(1) provides that "[a]ny person, firm, company, partnership, or corporation which engages in business as a recovery agency shall have a Class "R" license." In section 493.6101(20), a recovery agency is defined as "any person who, for consideration, advertises as providing or is engaged in the business of performing repossessions." Section 493.6101(2) defines a person as "any individual, firm, company, agency, organization, partnership, or corporation."

    
    

30. A literal reading of these statutes leads inevitably to the conclusion that Mr. Goldberg was operating as a "recovery agency" when he performed repossessions for Motor World: He was a "person" engaged in the business of performing repossessions for consideration. Because "Daniel Goldberg Recovery" was not issued a Class "R" license until December 13, 1993, Mr. Goldberg engaged in regulated activities without a recovery agency license from on or about September 16, 1993, until December 13, 1993.

    
    

31. Rule 1C-3.113(1), Florida Administrative Code, specifies "disciplinary guidelines for violations committed by agencies," and rule 1C-3.113(1)(o) permits "an administrative fine of $250-$750 to revocation or denial of license" to be levied against an agency for "[c]onducting or advertising the business of an agency without a valid license or with an inactive license."

    
    

32. With regard to Count II, section 493.6401(4) provides that "[a]ny individual who performs the services of a recovery agent must have a Class "E" license." In section 493.6101(21), a recovery agent is defined as "any individual who, for consideration, advertises as providing or performs repossessions." 33. Repossessions can also be performed by recovery agent interns. Section 493.6101(12) defines an intern as "an individual who studies as a trainee or apprentice under the direction and control of a designated sponsoring licensee." Section 493.6116(1) specifies that only a Class "E" or a Class "MR" licensee may sponsor a recovery agent intern, and section 493.6401(5)

requires that "[a]ny individual who performs repossession as an intern . . . shall have a Class "EE" license." Sections 493.6116(2), (3), and (5) provide, inter alia, that designated sponsors must supervise their interns; that an intern cannot "operate independently" of the control, direction, and supervision of a designated sponsor; that an internship commences only when the Department receives notice from the sponsor; and that notice of the termination of an internship must be provided to the Department.

1. Between September 16, 1993, and February 16, 1994, Mr. Goldberg was licensed as a Class "EE" recovery agent intern. However, because he had no sponsor during that period of time, he was not "licensed" to perform repossessions. Therefore, Mr. Goldberg engaged in regulated activities without a Class "E" recovery agent's license, or its equivalent, a sponsored Class "EE" recovery agent intern license, from on or about September 16, 1993, until on or about December 30, 1993.

   
   

2. Rule 1C-3.113(2), Florida Administrative Code, specifies "disciplinary guidelines for violations committed by individuals," and rule 1C-3.113(2)(k) permits "an administrative fine of $100- $300 to denial of license" to be levied against an individual for "[p]erforming regulated activities without a valid license or with an inactive license."

   
   

3. In determining the appropriate penalty for Mr. Goldberg's violation of section 493.6118(1)(g), consideration must be given to the question of whether, as recommended by the Department, Mr. Goldberg should be penalized for his conduct under both rule 1C- 3.113(1)(o), applicable to agencies, and rule 1C- 3.113(2)(k), applicable to individuals. The Department has proven by clear and convincing evidence that Mr. Goldberg conducted the business of performing repossessions for consideration without a Class "R" recovery agency license and that he performed repossessions for consideration without a Class "E" recovery agent license or a valid Class "EE" recovery agent intern license.

   
   

4. Nevertheless, Mr. Goldberg has committed only one statutorily-defined violation, engaging in regulated activities without a license, and he cannot be disciplined both as an agency and as an individual for performing the same repossessions simply because the Department has, in rule 1C-3.113, provided separate penalties for agencies and for individuals guilty of violating section 493.6118(1)(g). Mr. Goldberg would be guilty of two violations of this statute, and could be penalized both as an agency and as an individual for performing the same repossessions, only if an individual were required to have both a Class "R" agency license and a Class "E" or valid Class "EE" individual license in order to lawfully perform repossessions. There is no such requirement in chapter 493.

   
   

5. An individual performing repossessions must hold either a Class "E" or a valid, i.e., sponsored, Class "EE" intern license. 493.6401(4) and (5), Fla. Stat. An individual holding a Class "E" or a valid Class "EE" intern license must "either own or be an employee of a Class "R" agency or branch." 493.6401(6), Fla. Stat. Because Mr. Goldberg could not lawfully perform repossessions for consideration without a Class "E" or valid Class "EE" license, regardless of whether he had been issued a recovery agency license or was employed by a licensed recovery agency, the penalty in this case should be determined on the basis of the guidelines contained in rule 1C-3.113(2)(k) governing violations by individuals.

   1. Section 493.6118(1)(I): Impersonating a law enforcement officer.

      
      

6. If, while engaging in activities regulated by chapter 493, an individual impersonates a law enforcement officer by displaying a badge which "would cause a reasonable person to believe that he is a law enforcement officer," or by "committing any act that is intended to falsely convey official status," that individual is guilty of violating section 493.6118(1)(I), whether licensed or not.

   
   

7. The Department has proven by clear and convincing evidence that, in two separate incidents on January 7, 1994, Mr. Goldberg impersonated a law enforcement officer in violation of section 493.6118(1)(I).

   
   

8. Rule 1C-3.113(2) specifies disciplinary guidelines applicable to violations by individuals, and rule 1C-3.113(2)(m) permits a penalty for a violation of section 493.6118(1)(I) ranging from "an administrative fine of $500 to $1000 to suspension, revocation, or denial of license."

   
   

   1. Section 493.6118(4): Ineligibility for licensure based on conviction of a felony or a criminal offense punishable by a term of imprisonment exceeding one year.

   
   

9. Section 493.6118(4) provides in pertinent part:

   
   

   [I]f the applicant or licensee has been convicted of a felony in any state or of a crime against the United States which is designated as a felony, or convicted of an offense in any other state, territory, or country punishable by imprisonment for a term exceeding 1 year, the department shall deny the application or revoke the license unless and until civil rights have been restored by the State of Florida or by a state acceptable to Florida and a period of 10 years has expired since final release from supervision.

   
   

10. The Department has proven by clear and convincing evidence that, on June 21, 1994, Mr. Goldberg was convicted in New Jersey of transport of a firearm, an offense of the fourth degree. The Department has, however, failed to prove that the conviction renders Mr. Goldberg ineligible to hold any licenses issued pursuant to chapter 493. There is no evidence of record to prove that the crime for which Mr. Goldberg was convicted was a "felony" or was "punishable by imprisonment for a term exceeding 1 year." 493.6118(4).

    
    

11. The Department did not offer into evidence at the final hearing any evidence establishing the punishment New Jersey law specifies for a crime of the fourth degree, nor did the Department request that official recognition be taken of the relevant New Jersey statute. 5/ The term of imprisonment which may be imposed in New Jersey for the crime of transport of a firearm is a fact which is determinative of whether Mr. Goldberg can be disciplined pursuant to section 493.6118(4) and must be "established through formal proof." W. Eleazer & G. Weissenberger, Florida Evidence: 1995 Courtroom Manual 52-58 (1995). Because there is no evidence in the record to support the conclusion that a crime of the fourth degree in New Jersey is either a felony or punishable by a term of imprisonment exceeding one year, Count VIII should be dismissed.

    
    

12. Rule 1C-3.113(5) permits deviation from the penalty guidelines set out in subsections (1), (2), (3), and (4) of the rule, and imposition of any penalty authorized by section 493.6118(2), upon a finding of one or more aggravating or mitigating factors. Due consideration has been given to the factors listed in rule 1C-3.113(5)(a)-(q) in determining the recommended penalties.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of State, Division of Licensing, enter a

Final Order

1. Finding Daniel D. Goldberg guilty of violating section 493.6118(1)(g), Florida Statutes, and imposing a $300 administrative fine pursuant to rule 1C- 3.113(2)(k), Florida Administrative Code;

   
   

2. Finding Daniel D. Goldberg guilty of violating section 493.6118(1)(I), Florida Statutes, in two separate incidents occurring on January 7, 1994, and imposing a $1,500 administrative fine pursuant to rule 1C-3.113(2)(m), Florida Administrative Code, and section 493.6118(2)(c), Florida Statutes;

   
   

3. Placing Mr. Goldberg on probation for a period of two (2) years, upon such conditions as the Department deems appropriate, pursuant to rule 1C- 3.113(2)(k) and (m), Florida Administrative Code, and section 493.6118(2)(d), Florida Statutes; and,

   
   

4. Dismissing Count VIII of the Administrative Complaint.

DONE AND ENTERED this 2d day of October 1995, in Tallahassee, Leon County, Florida.

PATRICIA HART MALONO

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Filed with the Clerk of the Division of Administrative Hearings this 2d day of October 1995.

ENDNOTES

1/ It is clear from the allegations in the Department's Administrative Complaint, the evidence it presented at the hearing, and its proposed findings of fact and conclusions of law, that the issues in this proceeding deal exclusively with the conduct of "Respondent Goldberg," and not with the activities of either of the two agencies named in the Administrative Complaint as respondents.

2/ Licenses are valid for two years after issue or renewal and must be renewed biennially. 493.6111(2); .6113(1), Fla. Stat.

3/ Mr. DeBonis doesn't remember the name given, but he identified Mr. Goldberg as the person involved in the incident.

4/ There is no evidence that Mr. Goldberg received payment for the repossessions he performed on January 7, 1994.

5/ The Department attached to its Proposed Recommended Order and "incorporated by reference" what is represented to be a copy of the New Jersey statute defining the term of imprisonment which may be imposed for a crime of the fourth degree. This is not sufficient to make the statute evidence of record.

APPENDIX

The following are my specific rulings on petitioner's Proposed Findings of Fact.

Paragraph 1: The proposed finding of fact stated in the first sentence is adopted in substance in paragraph 1.b. of the Recommended Order. The proposed finding of fact stated in the second sentence is rejected as unnecessary.

Paragraph 2: Adopted in substance in paragraphs 1.a, 2, 3, and 8 of the Recommended Order.

Paragraph 3: Rejected as unnecessary.

Paragraph 4: Adopted in substance in paragraph 1.f. of the Recommended Order, as modified to reflect that there is no evidence that this license was a renewal.

Paragraphs 5, 6, and 7: Adopted in substance in paragraphs 1.c, d, and e of the Recommended Order.

Paragraph 8: The proposed finding of fact stated in the first sentence is adopted in substance in paragraphs 4 and 9 of the Recommended Order. The proposed findings of fact stated in the last two sentences are rejected as unnecessary.

Paragraph 9: Rejected as unnecessary.

Paragraph 10: The proposed findings of fact stated in the first three sentences are adopted in substance in paragraphs 4, 5, and 6 of the Recommended Order. The proposed findings of fact in the remaining three sentences are rejected as unnecessary.

Paragraph 11: Rejected as unnecessary.

Paragraph 12: Adopted in substance in paragraphs 3 and 8 of the Recommended Order.

Paragraphs 13 through 16: Rejected as unnecessary.

Paragraph 17: Adopted in substance in paragraphs 4 and 5 of the Recommended Order.

Paragraphs 19 through 25: Rejected as unnecessary.

Paragraphs 26 through 28: Adopted in substance in paragraphs 10 and 11 of the Recommended Order.

Paragraph 29: Rejected as unnecessary.

Paragraphs 30 through 35: Adopted in substance in paragraphs 12 through 16 of the Recommended Order.

Paragraph 36: Rejected as unnecessary.

Paragraphs 37 through 39: Adopted in substance in paragraphs 19 and 20 of the Recommended Order.

Paragraphs 40 through 44: Rejected as unnecessary.

COPIES FURNISHED:

Michele Guy, Esquire Kristi Reid Bronson Assistant General Counsel Department of State Division of Licensing

The Capitol, M.S. 4 Tallahassee, Florida 32399-0250

Daniel D. Goldberg

2812 Southwest 65 Avenue

Miramar, Florida 33023

Don Bell General Counsel

Department of State The Capitol

Tallahassee, Florida 32300-0250

The Honorable Sandra B. Mortham Secretary of State

The Capitol

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.

================================================================= AGENCY FINAL ORDER

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

STATE OF FLORIDA DEPARTMENT OF STATE

DEPARTMENT OF STATE, DIVISION OF LICENSING,

Petitioner,

vs. CASE NO. 94-5889

CASE NO: C93-02262

DANIEL GOLDBERG RECOVERY, XR92-00010 DANIEL D. GOLDBERG, OWNER,

Respondent.

/

FINAL ORDER

This cause came before the Department of State, Division of Licensing, for consideration and final agency action. A formal hearing was conducted pursuant to Section 120.57(1), Florida Statutes, on May 18 and 19, 1995, before Patricia

1. Malono, a duly assigned Hearing Officer of the Division of Administrative Hearings. The Recommended Order was submitted by the Hearing Officer on October 2, 1995, a copy of which is attached. Petitioner timely filed exceptions.

   
   

   RULINGS ON EXCEPTIONS FILED BY PETITIONER

   
   

   1. Petitioner takes exception to the Hearing Officer's Conclusion of Law Number 27 which concluded that there is nothing in Chapter 493, Florida Statutes, that requires an individual to have a Class "R" Recovery Agency License and either a Class "E" Recovery Agent License or valid Class "EE" Recovery Agent Intern Licese in order to lawfully perform repossessions. This exception is accepted, as the Division has consistently interpreted Chapter 493, Florida Statutes, to require that any person performing the business of recoveries, or advertising that he performs the business of recoveries, have both a Class "R" Recovery Agency License and either a Class "E" Recovery Agent License or valid Class "E" Recovery Agent Intern License, if the "R" licensee will be personally performing repossessions. From a complete review of the entire record, it is clear that Mr. Goldberg was performing the "business" of a recovery agency, as he was paid for repossessions he conducted as an independent contractor for Motor World. See, Hearing Officer's Finding of Fact Number 4.

      
      

   2. Petitioner takes exception to the Hearing Officer's Conclusion of Law Number 44 which concluded that the term of imprisonment which may be imposed in New Jersey for the crime of transport of a firearm, a crime of the fourth degree, is a fact which be established through formal proof. This exception is also accepted, as the question of what penalty is affixed to a crime of the fourth degree in New Jersey is a question of law, not fact. A conclusion of law is a determination arrived at by the application of fixed rules of law. Feldman

      v. Department of Transportation, 389 So.2d 692, 693 (Fla. 4th DCA 1980). As the

      crime for which Respondent was convicted of in New Jersey is punishable by imprisonment not to exceed 18 months, pursuant to Section 493.6118(4), Florida Statutes, the Division is required to revoke Respondent's licenses as he was convicted of an offense punishable by imprisonment for a term exceeding one year.

      
      

   3. Petitioner also takes exception to paragraphs 1 and 4 of the Hearing Officer's Recommendation. As these paragraphs are only a recommendation to the Division, there is no need to respond to the exception.

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 of State hereby adopts and incorporates herein by reference the Conclusions of Law in the Recommended Order with the exception of Conclusion of Law Numbers 37 and 41 which are amended by the exceptions accepted and addressed in paragraphs 1 and 2 of the Ruling on Exceptions above.

WHEREFORE, based upon the foregoing, it is ORDERED that the Class "B" Security Agency, Class "R" Recovery Agency, Class "C" Private Investigator, and Class "D" Security Officer Licenses of Respondent are REVOKED, and it is further ORDERED that Respondent shall pay an administrative fine in the amount of

$2,250.00, made payable to the Department of State, Division of Licensing, no later than 30 days from the date of this Final Order.

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 number 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 14th day of November, 1995.

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 this 14th day of November, 1995, to Daniel Goldberg Recovery, Daniel D. Goldberg, 2812 Southwest 65 Avenue, Miramar, Florida 33023.

Douglas D. Sunshine Assistant General Counsel Department of State Division of Licensing

The Capitol, M.S. Number 4 Tallahassee, Florida 32399-0250

Docket for Case No: 94-005889

Orders for Case No: 94-005889