STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 96-0324

) CARSWELL INVESTIGATIONS, ) DEXTER B. CARSWELL, OWNER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Hearing Officer, Joyous D. Parrish, held a formal hearing in the above-styled case on July 17, 1996, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Michele Guy, Esquire

Department of State Division of Licensing

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

For Respondent: Dexter B. Carswell, pro se

Carswell Investigations

3101 Northwest 47 Terrace, Number 119 Lauderdale Lakes, Florida 33319

STATEMENT OF THE ISSUE

Whether Respondent, Carswell Investigations, Dexter B. Carswell, owner, committed the violations alleged in the administrative complaint dated September 20, 1995; and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case began on September 20, 1995, when the Department of State, Division of Licensing (Department) issued an administrative complaint against the Respondent, Carswell Investigations, Dexter B. Carswell, owner, that alleged five violations of Chapter 493, Florida Statutes. Four of the alleged violations stemmed from one incident which occurred in Bibb County, Georgia, on or about August 22, 1994. The Department alleged that Respondent, who was arrested on that date, carried an unauthorized 40 caliber Glock firearm; knowingly violated a Georgia State statute by carrying a concealed weapon; impersonated an employee of the state of Florida by presenting a badge which was intended to denote official status; and violated Georgia law by performing private investigator services in that state while being unlicensed there. The

fifth charge alleged that Respondent failed to notify the Department of additional corporate officers for the licensed agency.

Respondent executed an election of rights which disputed the facts upon which the complaint was based, and timely requested an administrative hearing. The matter was then forwarded to the Division of Administrative Hearings for formal proceedings on January 16, 1996.

The Department requested, and official recognition has been taken, of provisions of the Georgia Code marked in this record as "official recognition." At the hearing, the Department presented the testimony of Richard Harned, a certified law enforcement officer formerly employed by the Bibb County Board of Education as a campus police officer in Bibb County, Georgia. Its exhibits numbered 1 through 3, 4A, 4B, 4C, and 5 through 12 have been admitted into evidence.

Respondent testified in his own behalf. Respondent's exhibits numbered 1 and 2 were admitted into evidence.

The transcript of the proceedings was filed with the Division of Administrative Hearings on August 12, 1996. Specific rulings on the proposed findings of fact submitted by the parties are included in the appendix at the conclusion of this order.

FINDINGS OF FACT

1. At all times material to the allegations of this case, Respondent held a class "A" private investigative agency license, number A94-00095; a class "C" private investigator license, number C93-00488; and a class "G" statewide firearm license, number G94-02105.

   
   

2. Petitioner is the state agency charged with the responsibility of regulating such licenses.

   
   

3. On August 22, 1994, Respondent, Dexter B. Carswell, was in Bibb County, Georgia.

   
   

4. On that date, Respondent was riding in an automobile which went onto the school grounds of the Northeast High School, a Bibb County school property where Richard Harned was employed as a campus police officer.

   
   

5. Posted conspicuously on those grounds were signs which notified the public that persons, vehicles, and personal belongings on school property were subject to search and that state law prohibited the possession of a deadly weapon on school property.

   
   

6. While on school property on that date, Respondent was in possession of a handgun which is described as a 40 caliber Glock.

   
   

7. On August 22, 1994, in Bibb County, Georgia, Respondent did not have a license to carry a concealed weapon in Georgia. Respondent knew a license was needed to carry a concealed weapon in Georgia.

   
   

8. On August 22, 1994, in Bibb County, Georgia, Respondent did not have a license to conduct private investigations in Georgia. Respondent knew a license was required to conduct private investigations in Georgia.

9. On August 22, 1994, in Bibb County, Georgia, Respondent carried a badge with the words "Investigator Detective" at the top, and "State of Florida, Broward County, FLA" along with an official-looking outline of the state of Florida. This badge did not denote Respondent was a licensed private investigator but could easily be misread as an official police badge.

   
   

10. On or about January 5, 1995, by the grand jury for the December, 1994 term of the Bibb Superior Court, Respondent was indicted for the offenses of possession of a weapon on school property and carrying a concealed weapon in violation of Georgia law.

    
    

11. As a result, Respondent pled guilty to the charges and, as a first time offender, adjudication was withheld, and he received time served (seven days), paid fines, and was placed on three years probation. Respondent is currently serving that probation.

    
    

12. When Respondent filed his application for the class "A" investigative agency license he represented himself as the sole proprietor of Carswell Investigations. This application (Petitioner's exhibit 8) was submitted on March 18, 1994.

    
    

13. Respondent subsequently incorporated Carswell Investigations and filed articles of incorporation with the office of the Secretary of State. Those articles represent that the corporate officers of the company are: Dexter Carswell, President; Jimmy Carswell, Vice President; Ethel Carswell, Secretary; and Alvaro Valdez, Treasurer. Respondent remained the sole owner of the corporation.

    
    

14. Despite the incorporation of the business, Respondent did not update the licensing information with the Division of Licensing.

    
    

15. Alvaro Valdez, who is also known as Alvara Valdel or Alvara Valdez, is a convicted felon.

    
    

16. On August 22, 1994, Alvaro Valdez had in his possession a business card in the name of Carswell Investigations, Inc. No. A-94-00095, which certified Mr. Valdez as an employee of the company.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

18. The Petitioner bears the burden of proof to establish by clear and convincing evidence the allegations of the administrative complaint.

    
    

19. Section 493.6118, Florida Statutes, provides, in pertinent part:

    
    

    1. The following constitute grounds for which disciplinary action specified in subsection (2) may be taken by the depart- ment against any licensee, agency, or applicant regulated by this chapter, or

       any unlicensed person engaged in activities regulated under this chapter.

       * * *

       (f) Proof that the applicant or licensee is guilty of fraud or deceit, or of negligence, incompetency, or misconduct, in the practice of the activities regulated under this chapter.

       * * *

       (i) Impersonating, or permitting or aiding and abetting an employee to imper- sonate, 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 dis- playing 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 to falsely convey official status.

       * * *

       (k) Knowingly violating, advising, encouraging, or assisting the violation of any statute, court order, capias, warrant, injunction, or cease and desist order, in the course of business regulated under this chapter.

       * * *

       (n) Employing or contracting with any unlicensed or improperly licensed person or agency to conduct activities regulated under this chapter, or performing any act that assists, aids, or abets a person or business entity in engaging in unlicensed activity, when the licensure status was known or could have been ascertained by reasonable inquiry.

       * * *

       (t) Violating any provision of this chapter.

       * * *

    2. When the department finds any violation of subsection (1), it may do one or more of the following:

       1. Deny an application for the issuance or renewal of a 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.

20. Section 493.6112(1), Florida Statutes, provides:

    
    

    After filing the application, unless the department declines to issue the license or revokes it after issuance, an agency or school shall, within 5 working days of the withdrawal, removal, replacement, or addition of any or all partners or officers, notify and file with the department complete applications for such individuals. The agency's or school's good standing under this chapter shall be contingent upon the department's approval of any new partner

    or officer.

    
    

21. Section 493.6115, Florida Statutes, provides, in part:

    
    

    1. The provisions of this section shall apply to all licensees in addition to the other provisions of this chapter.

       * * *

       (6) Unless otherwise approved by the department, the only firearm a Class "CC," Class "D," Class "M," or Class "MB" licensee who has been issued a Class "G" license may carry is a .38 or .357 caliber revolver with factory .38 caliber ammunition only. In addition to any other firearm approved by the department, [a Class "C" and Class "MA" licensee who has been issued a Class "G" license may carry a .38 caliber revolver; or a .380 caliber or 9 millimeter semiautomatic pistol; or a .357 caliber revolver with .38 caliber ammunition only.] [Emphasis added.]

       
       

22. Georgia law requires persons acting as private detectives or security agents to comply with provisions governing licensure or registration. Conducting such business without being legally licensed or registered is a misdemeanor under Georgia law.

    
    

23. Georgia law also prohibits carrying a concealed weapon without proper registration.

    
    

24. Rule 1C-3.113, Florida Administrative Code, sets forth the disciplinary guidelines for the imposition of penalties. Subparagraph (1) of the rule provides the guidelines for violations committed by agencies, subparagraph (2) addresses violations committed by individuals, and subparagraph

    1. sets forth provisions for aggravating or mitigating circumstances. Pertinent to this case are the following:

       
       

       VIOLATION (1)(g)Failure to notify the Division of changes in corporate officers. RANGE OF PENALTIES (1)(g)From an administra- tive fine of $150-$350 to one month's suspension of license.

       VIOLATION (2)(d)Carrying a firearm or

       ammunition not authorized by the Division. RANGE OF PENALTIES (2)(d)From an administra- tive fine of $150-$350 or probation to suspension or denial of the Class "G" State- wide Firearm License.

       VIOLATION (2)(m)Impersonating a law enforce- ment officer or government employee.

       RANGE OF PENALTIES (2)(m)From an administra- tive fine of $500-$1,000 to suspension, revocation or denial of license.

       
       

       1. The division shall be entitled to deviate from the above-mentioned guidelines and impose any penalty authorized under Section 493.6118(2), Florida Statutes, upon a showing of one or more of the following aggravating or mitigating circumstances presented to the finder of fact:

          1. The violation was committed maliciously.

          2. The danger to public safety or welfare.

          3. The number of previous violations for the same type of offense, whether or not disciplinary action was taken.

          4. The length of time the violator engaged in the prohibited activity.

          5. The length of time since the violation occurred.

          6. Previous disciplinary action against

             the violator in this or any other jurisdiction.

          7. The amount of damage to persons or property caused by the violation.

          8. The deterrent effect of the penalty imposed.

          9. Any efforts by the violator at rehabilitation.

          10. Attempts by the violator to correct violations or the failure to correct violations.

          11. The violator's prior knowledge of Chapter 493, F.S.

          12. Whether the violation resulted from negligence or an intentional act.

          13. Financial hardship.

          14. The cost of disciplinary proceedings.

          15. The number of other violations proven in the same proceeding.

          16. The violation occurred while on probation.

          17. Any other aggravating or mitigating circumstances.

    
    

25. In this case the Department has proved, by clear and convincing evidence, the Respondent violated multiple provisions of Section 493.6118, Florida Statutes. Specifically, the Respondent's badge, which would lead a reasonable person to believe he was a detective with a law enforcement unit in Broward County, falsely conveyed official status. Respondent offered no

    credible explanation as to why he possessed the badge or why it did not clearly state "private" detective. The badge was as official-looking as one would expect law enforcement to carry.

    
    

26. Secondly, Respondent was in possession of a concealed weapon which was not permissible under his class "G" license. Respondent's explanation (that he had driven from Florida with the gun on, like "a beeper") was inadequate to explain why he would carry an impermissible firearm. Respondent's Florida license did not authorize the weapon in Florida; it was clearly unlawful in Georgia.

    
    

27. Finally, Respondent failed to update the corporate license for the agency by reporting officers which were added subsequent to licensure. As a convicted felon Mr. Valdez was not eligible to serve as a corporate officer. Incidentally, Mr. Valdez was an unlicensed employee of the company as well.

    
    

28. As to the allegations claiming Respondent committed the violations on August 22, 1994, in the performance of private investigative activities regulated under Chapter 493, Florida Statutes, it is concluded Respondent was not conducting private investigative activities at the time.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That the Department of State, Division of Licensing, enter a final order imposing an administrative fine in the amount of $1,350.00; suspending Respondent's class "C" license for a period of time to coincide with his probation from the Georgia criminal proceeding; and revoking Respondent's class "G" license.

DONE AND ENTERED this 27th day of September, 1996, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH, 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 27th day of September, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0324

Rulings on the proposed findings of fact submitted by the Petitioner:

1. Paragraphs 1, and 3 through 12 are accepted.

2. Paragraph 2 is rejected as contrary to the weight of the credible evidence.

Rulings on the proposed findings of fact submitted by the Respondent:

1. None submitted.

COPIES FURNISHED:

Sandra B. Mortham, Secretary Department of State

The Capitol

Tallahassee, Florida 32399-0250

Don Bell, General Counsel Department of State

The Capitol, PL-02

Tallahassee, Florida 32399-0250

Michele Guy, Esquire Department of State Division of Licensing

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

Dexter B. Carswell Carswell Investigations

3101 Northwest 47 Terrace, Number 119 Lauderdale Lakes, Florida 33319

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: 96-000324

Orders for Case No: 96-000324