STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 94-6949

) JACKSONVILLE DETECTIVE AGENCY, ) CLARENCE D. ENGLAND, OWNER, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Jacksonville, Florida on November 14, 1995, before Suzanne F. Hood, a Hearing Officer with the Division of Administrative Hearings.

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: Henry Wells

Attorney At Law 8015 Tara Drive

Jacksonville, Florida 32216 STATEMENT OF THE ISSUE

The issue is whether Respondent committed misconduct in the practice of activities regulated under his license in violation of Section 493.6118(1)(f), Florida Statutes.

PRELIMINARY STATEMENT

On November 9, 1994, Petitioner Department of State, Division of Licensing (Petitioner), filed an Administrative Complaint against Respondent Jacksonville Detective Agency, Clarence D. England, Owner (Respondent). Count one (1) of the complaint charged that Respondent volunteered to buy witness testimony for use in a pending civil action in violation of Section 493.6118(1)(f), Florida Statutes. Count two (2) of the complaint alleged that Respondent misrepresented the services his agency could provide and failed to provide a client with investigative reports, statement, or billings.

On December 8, 1994, Respondent requested a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes. Petitioner forwarded Respondent's request for hearing to the Division of Administrative Hearings on December 14, 1994.

The Division of Administrative Hearings issued an Initial Order dated December 21, 1994 directing the parties to file a joint response within ten (10) days. Receiving no response to said Initial Order, Hearing Officer David Maloney issued a Notice of Hearing dated January 10, 1995, setting this matter for formal hearing on February 17, 1995, in Tallahassee, Florida. Petitioner filed a late response to the Initial Order on January 13, 1995.

On February 2, 1995, Petitioner filed a Motion for Continuance and Relocation of Hearing. Respondent also filed a request for a continuance on February 9, 1995. By order dated February 17, 1995 the undersigned granted the parties' motions and required them to file a Status Report on or before March 15, 1995. The parties timely filed a Status Report on March 15, 1995.

The undersigned issued a Notice of Video Hearing on March 20, 1995, setting this matter for hearing on August 7, 1995. On August 1, 1995, Respondent filed a Motion for Continuance. By order dated August 2, 1995 the undersigned granted Respondent's motion and required them to file a Status Report on or before September 1, 1995. On August 18, 1995, the parties filed a Status Report.

On August 22, 1995, the undersigned issued an Amended Notice of Hearing setting this matter for formal hearing in Jacksonville, Florida, on November 14, 1995.

At the hearing, the Petitioner presented the testimony of three (3) witnesses and offered four (4) exhibits, including the deposition testimony of Karlene Goller, all of which are accepted into evidence. Respondent testified on his own behalf but offered no exhibits.

The transcript was filed with the Division of Administrative Hearings on December 4, 1995. Petitioner filed a Proposed Recommended Order on December 14, 1995. The Appendix to this Recommended Order contains rulings on each of Petitioner's proposed findings of facts.

FINDINGS OF FACT

1. At all times material to this proceeding, Respondent held a Class "A" Private Investigative Agency License, Number A00-01205, and a Class "C" Private Investigator Licence, Number C00-01229. Respondent has been licensed as a private investigator since 1962. During that time, there has been no disciplinary action against his licenses.

   
   

2. On or about May 26, 1994, Leslie Dillingham hired Respondent to obtain proof of her husband's homosexuality for use in a divorce and custody proceeding.

   
   

3. During the initial meeting between Respondent and Ms. Dillingham, she requested that Respondent conduct a surveillance of her husband, Mr. Dillingham, and his alleged boyfriend. She also requested that Respondent send someone who could pass as being gay to attend a meeting of an alleged support organization for homosexual men at a branch of the public library on May 28, 1994. Ms. Dillingham wanted to find out the names and addresses of the gay men who were members of the support group.

4. Respondent represented to Ms. Dillingham that he would conduct the surveillance and that he had employees that could assist him in performing these services. He told Ms. Dillingham that he had an employee who could pass as being gay and infiltrate the organization of gay men. However, that employee was out of town. Respondent said he would contact this employee and have him attend the meeting at the library.

   
   

5. During the initial meeting between Respondent and Ms. Dillingham, she expressly informed Respondent of the time constraints involved in the investigation. She needed all available information before June 7, 1994, which was the trial date for her divorce and child custody proceeding.

   
   

6. Ms. Dillingham specifically requested an oral daily report, an itemized statement of the work done, and a written report of the outcome of Respondent's investigation. Respondent was to make his daily reports by telephone to Ms. Dillingham's home or office.

   
   

7. Ms. Dillingham gave Respondent some pictures of her husband and his alleged boyfriend along with the tag numbers for their automobiles. She also gave Respondent a retainer in the amount of $1,500. She agreed to pay Respondent and/or his employees $40 per hour.

   
   

8. Respondent immediately began his surveillance of Mr. Dillingham's residence on May 26, 1994.

   
   

9. At all times relevant to this proceeding, Respondent worked alone and did not engage any employee or other investigator to assist him with the investigation.

   
   

10. On May 27, 1994, Respondent continued his surveillance of Mr. Dillingham's apartment and made spot checks at the home of the alleged boyfriend who lived in a different part of town. The surveillance revealed no contact between the two subjects.

    
    

11. Respondent did not attempt to make his daily report to Ms. Dillingham.

    
    

12. On May 28, 1994, Respondent conducted surveillance of the subjects' residences, first one and then the other, until 4:00 p.m. At that time, Respondent went to the library branch where the support group was scheduled to meet. He had been unable to arrange for his employee to infiltrate the meeting. Instead, Respondent sat outside the door of the meeting where he could hear the group planning a Memorial Day picnic. He was able to record the tag numbers of some of the men attending the meeting. Neither of the subjects attended the support group meeting.

    
    

13. After the meeting, Respondent resumed his surveillance at the residences of Mr. Dillingham and the alleged boyfriend. They did not have any contact with each other.

    
    

14. Again, Respondent did not attempt to contact his client to make his daily report.

    
    

15. The next day was Sunday, May 29, 1994. Once again Respondent's surveillance of the subjects' residences was not fruitful. Respondent contacted his client, Ms. Dillingham, who directed him not to begin surveillance of the husband until after noon the next day. Ms. Dillingham did not want Respondent

    to conduct surveillance on the morning of May 30, 1994, because her husband would have visitation with their son during that time.

    
    

16. Monday, May 30, 1994, was Memorial Day. Respondent's surveillance from 1:30 p.m. to 11:30 p.m. did not reveal any contact between the subjects. However, Respondent made his daily report to his client. Ms. Dillingham informed Respondent that she was attempting to serve her husband's male friends with subpoenas for deposition. She told Respondent that once "the cat was out of the bag," continued surveillance probably would not be useful.

    
    

17. On May 31, 1994, Respondent was unable to locate the vehicle of the client's husband at home or at work. Spot checks throughout the day revealed no activity between the subjects. When Respondent made his daily report, Ms. Dillingham told him that depositions of her husband's friends would take place on June 2, 1994, and mediation on June 3, 1994. After this conversation, Respondent understood that the surveillance part of the investigation was complete.

    
    

18. Ms. Dillingham's husband had visitation with their son on Wednesday evening, June 2, 1994, and on the weekend from Friday, June 3, 1994, through Sunday, June 5, 1994. Ms. Dillingham did not want surveillance conducted during visitation periods.

    
    

19. Ms. Dillingham and her sister, Karlene Goller, tried to reach Respondent by phone several times everyday from June 1, 1994, through June 4, 1994. They were not successful.

    
    

20. On Sunday, June 5, 1994, Respondent returned one of Ms. Dillingham's calls and agreed to meet her at her office. During the meeting, Respondent returned the photographs of Ms. Dillingham's husband and his alleged boyfriend. He also gave her the tag numbers of some of the men who attended the support group meeting at the public library.

    
    

21. Ms. Dillingham was dissatisfied with the results of Respondent's investigation because it had not produced any evidence of her husband's homosexuality. Respondent informed Ms. Dillingham that he had worked for 60 hours on the case. Ms. Dillingham was so upset that Respondent agreed to continue the investigation without charging her for his time in excess of the

    $1,500 retainer. Respondent said he would visit some gay bars to determine whether anyone knew Mr. Dillingham. Respondent told Ms. Dillingham that he might have to pay someone at the gay bars to contact him if they saw Mr.

    Dillingham at a bar.

    
    

22. On Monday, June 6, 1994, Respondent went to some gay bars. At a bar known as the Metro, Respondent made contact with a bartender/security man, Bruce Long, who knew most of the gay men in town. However, Mr. Long did not know Mr. Dillingham by name and verbal description. Respondent gave $50 dollars to Mr. Long and promised to furnish him with a photograph of Mr. Dillingham. In exchange for the money, Mr. Long agreed to call Respondent if he saw Mr. Dillingham.

    
    

23. Around 11:00 p.m. on June 6, 1994, Respondent met with Ms. Dillingham and her sister at a Waffle House on Roosevelt Boulevard. She gave a photograph of Mr. Dillingham to Respondent to show to Mr. Long at the Metro.

24. Later that night, Respondent returned to the Metro. He gave the photograph of Mr. Dillingham to Mr. Long who agreed to show it around to friends and bartenders at other gay clubs.

    
    

25. June 7, 1994, was the date of the final hearing in Ms. Dillingham's divorce and custody proceeding. After checking with Mr. Long to find out if any of his gay friends knew Mr. Dillingham, Respondent beeped Ms. Dillingham indicating that he had no new information.

    
    

26. Ms. Dillingham never saw Respondent's investigative report marked as Petitioner's Exhibit One (1) until an investigator from Petitioner's office showed it to her. She never received an itemized statement or bill indicating how Respondent spent her retainer.

    
    

    CONCLUSIONS OF LAW

    
    

27. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

28. Respondent is the state agency responsible for licensing and regulating the activities of licensed private investigative agencies and private investigators. Section 493.6121, Florida Statutes.

    
    

29. Respondent has the burden to prove the allegations set forth in the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

30. Section 493.6118 (1)(f), Florida Statutes, provides that disciplinary action may be taken against any licensee upon proof that the licensee is guilty of "misconduct" in the practice of activities regulated under Chapter 493, Florida Statutes.

    
    

31. "'Misconduct' justifying suspension or revocation of a professional license includes acts done in persistent disregard of the law, those which are malum in se, and those which offend generally accepted standards of conduct within the profession, thereby jeopardizing the interests of the profession and the public it serves." Richardson v. Florida State Board of Dentistry, 326 So. 2d 231, 233 (Fla. 1st DCA 1976).

    
    

32. Additionally, in determining whether Section 493.6118(1), Florida Statutes, has been violated in the manner charged in the administrative complaint, one "must bear in mind that it is, in effect, a penal statute . . . .

    This being true, the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it.

    Furthermore, if there are any ambiguities included, such must be construed in favor to the . . . licensee." Lester v. Department of Professional and Occupational Regulation, 348 So. 2d 923, 925 (Fla. 1st DCA 1977).

    
    

33. In the instant case, Petitioner did not clearly and convincingly prove that Respondent offered to buy witness testimony during an investigation. Respondent told Ms. Dillingham that it might be necessary to pay someone for assistance in identifying Mr. Dillingham as a member of the gay community. Respondent subsequently paid Mr. Long for showing the photograph of Mr. Dillingham to friends at other gay bars. There is no merit to the allegations in Count I.

34. Petitioner clearly has met its burden of proof as to some of the allegations in Count II. First, Respondent represented to Ms. Dillingham that he had other employees who would assist him with the surveillance but failed to involve them during the investigation. Respondent also failed to arrange for his employee to infiltrate the support group of gay men. Respondent did pay Mr. Long to make discrete inquiries about Mr. Dillingham in the gay bars.

    
    

35. Respondent did not provide Ms. Dillingham with a daily report of his activities on six (6) days of the twelve (12) day investigation.

    
    

36. Respondent did not provide Ms. Dillingham with a written report of his investigation prior to the date of her divorce proceeding. He also failed to give her an itemized statement accounting for the expenditure of the $1,500 retainer.

    
    

37. Respondent misrepresented the services that he or his agency would provide to Ms. Dillingham. His failure to follow through with the investigation as agreed is misconduct which violates Section 493.6118(1)(f), Florida Statutes. Accordingly, there are grounds to impose disciplinary action against Respondent.

    
    

38. Rule 1C-3.113, Florida Administrative Code, sets forth the disciplinary guidelines adopted by Petitioner. However, these guidelines do not speak to the specific violation of Section 493.6118, Florida Statutes, at issue here. Therefore, the appropriate penalty is controlled by statute, the facts as set forth above, and consideration of Respondent's long term professional practice with no previous disciplinary actions.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, hereby, RECOMMENDED that Petitioner issue a final order reprimanding Respondent, imposing an administrative fine in the amount of $250 and placing the licensee on probation for a period of time and subject to such conditions as the department may specify.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of February 1996.

SUZANNE HOOD, HEARING OFFICER

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 21st day of February, 1996.

APPENDIX

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

Petitioner's Proposed Findings of Fact

1. Accepted in Findings of Fact 1.

2. Accepted in Findings of Fact 2.

3. Accepted in Findings of Fact 3 except for last sentence in 3(a) of the Proposed Facts which is rejected. No persuasive evidence that Respondent and his client discussed the need to make inquiries at gay bars during the initial meeting.

4. Accepted in Findings of Fact 4.

5. Accepted in Findings of Fact 4.

6. Accepted in Findings of Fact 5.

7. Accepted in Findings of Fact 7.

8. Rejected as contrary to greater weight of evidence.

9. Rejected as contrary to greater weight of evidence.

10. Accepted in Findings of Fact 15 and 16.

11. Accepted in Findings of Fact 16.

12. Accepted as restated in Findings of Fact 10 and 16-17.

13. Accept in Findings of Fact 17 that Respondent agreed to visit some gay bars but reject that Respondent offered to buy testimony.

14. Accepted in Findings of Fact 18.

15. Accepted in Findings of Fact 18-20.

16. Accepted in Findings of Fact 21.

17. Accepted but subordinate to Findings of Fact 21.

Respondent's Proposed Findings of Fact

Respondent did not file Proposed Findings of Fact.

COPIES FURNISHED:

Henry H. Wells Attorney at Law 8015 Tara Lane

Jacksonville, Florida 32216

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

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

Honorable Sandra B. Mortham Secretary of State Department of State

The Capitol

Tallahassee, Florida 32399-0250

Don Bell General Counsel

Department 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.

Docket for Case No: 94-006949

Orders for Case No: 94-006949