STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, DIVISION ) OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 95-1960

)

RAUL JUAN ESCOBAR, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on September 13, 1995, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Kristi Reid Bronson, Esquire

Assistant General Counsel Department of State Division of Licensing

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

For Respondent: Raul Juan Escobar

15272 Southwest 144 Place

Miami, Florida 33177 STATEMENT OF THE ISSUES

Whether Respondent committed the offenses alleged in the Amended Administrative Complaint and the penalties that should be imposed.

PRELIMINARY STATEMENT

Petitioner filed an amended administrative complaint against Respondent that contained three counts. Count I charged that Respondent violated the provisions of Section 493.6118(1)(g), Florida Statutes, by performing the services of a private investigator without a valid Class "C" Private Investigator License. At the formal hearing, Respondent admitted the allegations of Count I. Count II alleged that Respondent violated the provisions of Section 493.6118(1)(i), Florida Statutes, on February 9, 1994, by impersonating a law enforcement officer. Count III alleged that Respondent violated the provisions of Section 493.6118(1)(i), Florida Statutes, on January 26, 1994, by impersonating a law enforcement officer. Respondent timely requested a formal hearing to challenge the allegations in the administrative complaint, the matter was referred to the Division of Administrative Hearings, and this proceeding followed.

At the formal hearing, the Petitioner presented the testimony of Mike Levine, Matthew Ross, Frances M. Ross, Catherine Robinson, and Ronald Muliolis. Mr. Levine, Mr. Ross, and Ms. Ross are individuals with whom Respondent had conversations during the course of an investigation. Ms. Robinson is an investigator employed by the Petitioner. Mr. Muliolis is the president of American Recovery Specialist, Inc., the employer of the Respondent at the times pertinent to this proceeding. Petitioner presented two exhibits, both of which were admitted into evidence. Respondent testified on his own behalf but presented no other testimony and no exhibits.

A transcript of the proceedings has been filed. The proposed findings of fact submitted by the Petitioner are adopted in material part by the Recommended Order or are subordinate to the findings made. Respondent did not file a post- hearing submittal.

FINDINGS OF FACT

1. During the period January 26, 1994, to September 28, 1994, in Broward County, Florida, Respondent performed the services of a private investigator without a valid Class "C" Private Investigator License. 1/

   
   

2. Petitioner is the agency of the State of Florida responsible for the licensure of persons providing private investigative, private security, and private repossession services in Florida pursuant to Chapter 493, Florida Statutes. Respondent first applied to Petitioner for licensure as a private investigator on October 4, 1994. At no time prior to that application was the Respondent licensed as a private investigator by the Petitioner.

   
   

3. At all times pertinent to this proceeding, Respondent was employed by American Recovery Specialist of Fort Lauderdale, Florida (American Recovery).

   
   

4. On January 1994, American Recovery was employed by Riverside National Bank (Riverside) to locate Ms. Chaan S. Capps and her 1993 Nissan Maxima that she had financed through Riverside. Respondent performed investigative services pertaining to this account with Riverside in January and February 1994.

   
   

5. Matthew Ross is the boyfriend of Ms. Capps. Mike Levine and Matthew Ross are friends. On January 26, 1994, Respondent called Mike Levine pertaining to this investigation. During this telephone conversation, Respondent identified himself to Mr. Levine as a detective from the Metro-Dade Police Department and asked him questions about Ms. Capps.

   
   

6. Frances Ross is the mother of Matthew Ross. On February 9, 1994, Matthew Ross found one of the Respondent's business cards in the gate of his mother's residence. The business card contained Respondent's name, the name of his employer, and his telephone number. The card also contained the handwritten notation "call ASAP." Mr. Ross called from his mother's house the telephone number listed on the business card and he spoke with the Respondent. Respondent told Mr. Ross during this telephone conversation on February 9, 1995, that he was an investigator with the Metro-Dade Police investigating the Chaan Capps case. The conversation between Respondent and Mr. Ross terminated when Mr. Ross became upset, handed the telephone to his mother, and walked out of the house.

   
   

7. Respondent thereafter told Frances Ross that Ms. Capps was wanted by Metro-Dade Police and that he was investigating the case for Metro-Dade Police.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding.

   
   

9. In its Amended Administrative Complaint, Petitioner alleges that it has grounds to impose discipline against Respondent ". . . pursuant to Section 493.6118(2), Florida Statutes, including, but not limited to, a reprimand, probation, an administrative fine, suspension of license or revocation of licensure." Based on the assertion that the penalty that may be imposed may include the revocation or suspension of licensure, it is concluded that Petitioner is required to establish its case against Respondent by clear and convincing evidence. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); and Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So.2d

   112 (Fla. 1st DCA 1989).

   
   

10. Section 493.6118, Florida Statutes, provides, in pertinent part, as follows:

    
    

    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.

       * * *

       (i) Impersonating . . . a law enforcement officer . . . by identifying himself as a federal, state, county, or municipal law enforcement officer. . . .

       * * *

    2. When the department finds any violation

       of subsection (1), it may do one or more of the following:

       1. Deny an initial or renewal application for license.

       2. Issue a reprimand.

       3. Impose an administrative fine not to

          exceed $1,000 for every count or separate offense.

       4. Place the licensee on probation for a period of time and subject to such conditions as the department may specify.

       5. Suspend or revoke a license.

          
          

11. Rule 1C-3.113(2)(k) and (m), Florida Administrative Code, provide disciplinary guidelines pertinent to this proceeding. For a violation of Section 493.6118(1)(g), Florida Statutes, the recommended discipline range is from an administrative fine of $100 - $300 to denial of license. For a violation of Section 493.6118(1)(i), Florida Statutes, the recommended discipline range is from an administrative fine of $500 - $1,000 to suspension, revocation, or denial of license.

12. Respondent admitted the violation alleged in Count I of the Amended Administrative Complaint. Consequently, it is found that Respondent violated the provisions of Section 493.6118(1)(g), Florida Statutes, as alleged in Count I of the Amended Administrative Complaint.

    
    

13. Petitioner established by clear and convincing evidence that on February 9, 1994, Respondent violated the provisions of Section 493.6118(1)(i), Florida Statutes, as alleged in Count II of the Administrative Complaint by identifying himself as a police investigator during a telephone conversation with Matthew Ross and by telling Frances Ross that he was investigating the Capps case for Metro-Dade Police Department.

    
    

14. Petitioner established by clear and convincing evidence that on January 26, 1994, Respondent violated the provisions of Section 493.6118(1)(i), Florida Statutes, as alleged in Count III of the Administrative Complaint by identifying himself as a police investigator during a telephone conversation with Mike Levine.

    
    

15. In its proposed recommended order, the Petitioner recommends that administrative fines pursuant to Section 493.6118(2), Florida Statutes, and Rule 1C-3.113(2)(k) and (m), Florida Administrative Code, be imposed against the Respondent.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order that adopts the

findings of fact and conclusions of law contained herein and imposes

administrative fines against the Respondent as follows:

1. An administrative fine in the amount of

   $100 for the violation of Section 493.6118(1)(g), Florida Statutes, as alleged in Count I of the Amended Administrative Complaint.

2. An administrative fine in the amount of

   $500 for the violation of Section 493.6118(1)(i), Florida Statutes, as alleged in Count II of the Amended Administrative Complaint.

3. An administrative fine in the amount of

$500 for the violation of Section 493.6118(1)(i), Florida Statutes, as alleged in Count III of the Amended Administrative Complaint.

DONE AND ENTERED this 14th day of November, 1995, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 14th day of November, 1995.

ENDNOTE

1/ These findings track the factual allegations of Count I of the Amended Administrative Complaint and are based on the Respondent's admission that these facts are true.

COPIES FURNISHED:

Kristi Reid Bronson, Esquire Department of State, Division

of Licensing

The Capitol, MS Number 4 Tallahassee, Florida 32399-0250

Mr. Raul Juan Escobar 15272 Southwest 144 Place

Miami, Florida 33177

Honorable Sandra B. Mortham Secretary of State

The Capitol

Tallahassee, Florida 32399-0250

Don Bell, 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 ten 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: 95-001960

Orders for Case No: 95-001960