HARRY P. SCHLENTHER, )
vs. ) Case No. 96-5306S
Respondent. )
On May 6, 1997, a formal administrative hearing was held in this case in Largo, Florida, before J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings.
For Petitioner: Harry P. Schlenther, pro se
The issues in this case are whether the Respondent, the Department of State, Division of Licensing, should grant the Petitioner’s application for a Class “C” Private Investigator license and the application he filed as President on behalf of Info, Inc., for a Class “A” Private Investigative Agency license.
The Respondent gave the Petitioner notice of its intent to deny both his application for a Class “C” Private Investigator license and the application he filed on behalf of Info, Inc., for a Class “A” Private Investigative Agency license. The reasons given for the denials were: (1) that the Class “C” application was not supported by the minimum three years of verifiable and lawful experience; and (2) that the Petitioner committed fraud or made willful misrepresentations when he presented his qualifying experience in the Class “C” application.
The Petitioner timely requested formal administrative proceedings, contending that both applications should be granted because: (1) his Class “C” application must be granted by default; (2) he did not commit fraud or make willful misrepresentations; and (3) he has the experience required for a Class “C” license.
After the case was referred to the Division of Administrative Hearings (DOAH) on November 7, 1996, the Petitioner moved to limit the hearing to the Class “C” application. The motion was denied, and the case was set for final hearing on both applications in Largo, Florida, on March 4, 1997.
On February 17, 1997, a telephone hearing was held on the Petitioner’s Motion to Deny Taking Deposition. Primarily because it was apparent that the Petitioner would not be prepared either
for the deposition or for final hearing, an Order Continuing Final Hearing and Postponing Deposition was entered, and final hearing was continued until May 6, 1997.
On March 14, 1997, the Petitioner filed a Motion to Compel Respondent to Answer and Provide Requested Documentation to Interrogatories. An Order Compelling Discovery was entered on March 28, 1997, in part granting and in part denying the Petitioner’s motion.
On April 28, 1997, the parties filed a Joint Prehearing Stipulation, which the Petitioner supplemented on May 5, 1997. A telephone prehearing conference also was held and the parties agreed to the posthearing deposition of two witnesses (one for the Petitioner and one for the Respondent).
At final hearing on May 6, 1997, the parties had the applications at issue admitted in evidence as Joint Exhibits 1 and 2. The Petitioner then called two witnesses and testified in his own behalf; he also had Petitioner’s Exhibits 4, 5, 7, 9-11, 13-14, 21 and 23 admitted into evidence. (The Respondent asked that 21 be considered a joint exhibit.) The Petitioner then rested subject to the filing of the posthearing deposition transcript of his additional witness.
The Respondent called four witnesses and had Respondent’s Exhibit 5 admitted into evidence. The Respondent then rested subject to the filing of the posthearing deposition transcript of its additional witness.
The Respondent ordered the preparation of a transcript of the final hearing, and the parties were given ten days from the later of the filing of the hearing transcript or the filing of the posthearing deposition transcripts in which to file proposed recommended orders. The hearing transcript was filed on May 12, the posthearing deposition transcript of the Respondent’s additional witness was filed on June 5, and the posthearing deposition transcript of the Petitioner’s additional witness was filed on June 16, 1997. Both parties timely filed proposed recommended orders.
The Petitioner applied for his Class “C” Private Investigator license on April 29, 1996. The application included the Petitioner’s Affidavit of Experience, which represented the following qualifying experience:
employment with Telephonic Collections, Inc., from 3/91 to 9/93, during which employment the Petitioner devoted himself full-time to: “credit and asset investigations for recovery of debts; did skip-tracing full-time to locate subjects for debt recovery; utilized collection network and data base information.” Joseph Apter, President of Telephonic Collections, Inc., was listed as the individual who could verify this employment.
employment with Telephonic Info, Inc., from 9/93 to 2/96, during which employment the Petitioner devoted himself
full-time to: “administrative processing of investigation files; computer data base research and information recovery; computer preparing or reports; administrative dutys [sic] in investigation agency.” Joseph Apter, President of Telephonic Info, Inc., was listed as the individual who could verify this employment.
employment as an auxiliary policeman with the City of West Haven, Connecticut, from 1965 to 1967, during which employment the Petitioner devoted himself part-time as follows: “received police training and performed assignments as required.” The Petitioner did not specify how much time was devoted to those duties. Captain Stephen D. Rubelman was listed as the individual who could verify this employment.
Processing of the Petitioner’s Applications
The Respondent began the process of verifying the information in the Petitioner’s Class “C” application on
May 8, 1996, when it had referred the Petitioner’s fingerprint card to the Florida Department of Law Enforcement (FDLE) for a criminal history.
The Respondent subsequently began its own verification of the information in the application by telephoning Apter. On June 26, 1996, the Respondent telephoned Apter, who verified the representations in the Petitioner’s application as to his experience with Telephonic Collections. Specifically, Apter stated that Telephonic Collections was a collection agency and that, for two years and five months, “100% of the applicant’s job
was skiptracing [sic] individuals with delinquent accounts for the purpose of collecting the money owed to creditor.” Since this experience exceeded minimum requirements, no further verification was considered necessary, and the Respondent awaited the criminal history report from the FDLE.
While the Respondent was awaiting the criminal history report from the FDLE, the Petitioner telephoned the Respondent to inquire as to the status of his application. On August 2, 1996, after being told the status, the Petitioner filed an application as president on behalf of Info, Inc., for a Class “A” Private Investigative Agency license.
Eventually, on August 27, 1996, the Respondent received the Petitioner’s criminal history report from the FLDE, and it showed no reason not to grant the Petitioner’s applications. But earlier in August, Garry Floyd, an investigator in the Respondent’s Tampa office, learned that the Petitioner had filed applications for licensure. From prior dealings with the Petitioner and Apter, Investigator Floyd was unaware that the Petitioner had any qualifying experience. To the contrary, during a June 1994, investigation Floyd was conducting into unlicensed activities by employees of Telephonic Info, a licensed private investigation agency, the Petitioner emphatically denied that he was conducting investigations for the company. The Petitioner told Floyd that the Petitioner did not know how to
conduct an investigation and did not want to know how; he said his role in the company was strictly administrative.
Investigator Floyd obtained a copy of the Petitioner’s applications and saw the Petitioner’s representations as to his experience with Telephonic Info as well as Telephonic Collections. Since those representations did not comport with statements the Petitioner made to Floyd in June 1994, and did not comport with Floyd’s understanding as to the nature of the Petitioner’s experience, Floyd recommended on August 13, 1997,
that the Respondent allow him to investigate further before approving the Petitioner’s applications and issuing any licenses.
During his investigation, Floyd obtained statements from three individuals thought to be former employees of Telephonic Collections to the effect that they had no knowledge of any skip- tracing or other investigative work being conducted by the Petitioner. All three—C.J. Bronstrup, Jason Gillard, and Duncan Tate—thought that the Petitioner’s role was strictly administrative.
Investigator Floyd also was aware that Apter’s applications for renewal of his Class “C” and Class “A” licenses had been denied due to what Floyd understood to be a felony conviction. (Although Apter’s testimony on the criminal charges against him was confusing, it would appear that he entered a plea on the felony charge, and adjudication was withheld. There
apparently also were unconnected charges of perjury against him, but the disposition of those charges is not clear from Apter’s testimony.)
Finally, Investigator Floyd also recalled that Apter once told Floyd that Apter thought he might have the beginnings of Alzheimer’s disease.
For these reasons, Investigator Floyd recommended that the Respondent not credit the Petitioner with any qualifying experience from his employment with Telephonic Collections and also recommended that the representations on the application regarding that employment experience be considered fraudulent misrepresentations.
When the Petitioner’s experience with Telephonic Collections was called into question, the Respondent attempted to verify the Petitioner’s experience with the City of West Haven Police Department but was unable to contact Stephen Rubelman at the telephone number given in the application. (According to the Respondent’s witness, “the phone rang off the hook.”) Then, on September 26, 1996, the Respondent telephoned the City of West Haven Police Department but was informed that the Respondent’s employment there between 1965 and 1967 was too old to verify.
For these reasons, on September 27, 1996, Investigator Floyd recommended that the Respondent deny the Petitioner’s applications.
On October 7, 1996, the Respondent mailed the Petitioner a letter giving notice of intent to deny the Petitioner’s applications. The letter was addressed to the Petitioner as president of INFO, Inc., at “13575 - 58 Street North, Clearwater, Florida 34620.” This mailing was returned undelivered on October 14, 1996, and the letter was returned undelivered. On October 15, 1996, the letter was re-sent in another envelope to “Post Office Box 1241, Largo, Florida 34649,” the mailing address on the Class “A” application. But apparently this time the mailing was returned for postage. The envelope was meter-stamped on October 26, and was received by the Petitioner on October 29, 1996.
Verification of Petitioner’s Qualifying Experience
The Petitioner did not directly dispute the testimony of Investigator Floyd as to what the Petitioner told him during Floyd’s June 1994, investigation. See Finding 5, supra. Instead, the Petitioner testified essentially that he in fact knew how to do skip-tracing and conduct investigations, having been taught and trained by Apter, and that the Petitioner had extensive experience doing skip-tracing and conducting investigations working for Telephonic Collections, which was a debt collection agency.
While not directly disputing Floyd’s testimony as to what the Petitioner said to Floyd, the Petitioner alleged that Floyd may have been biased against him (due to his association
with Apter) and suggested that Floyd knew or should have known that the Petitioner knew how to do investigation work because Floyd once asked the Petitioner to get some information for him and watched as the Petitioner placed a pretext call.
Regardless of Floyd’s alleged bias or pertinent knowledge, it is found that Floyd accurately related what the Petitioner said to him and that the Petitioner’s purpose in making those statements was to avoid any further investigation into whether the Petitioner also was participating in unlicensed investigative activities during his employment by Telephonic Info.
Even assuming that the Petitioner did skip-tracing and investigations for Telephonic Collections, it is clear from the testimony that the Petitioner did not do skip-tracing and investigations full-time, 100 percent of the time, as represented in the Class “C” application and as verified by Apter upon telephone inquiry.
At final hearing, Apter testified that, when he verified the Petitioner’s experience for the Respondent on June 26, 1996, he did not mean that the Petitioner had no other duties but rather that the Petitioner did no collection work— i.e., the collection employees would take the information the Petitioner developed from his skip-tracing and asset location
efforts and telephone the debtors to try to get satisfaction of
the debt. Apter conceded that the Petitioner also had administrative duties.
It is the Respondent’s policy, when an applicant has employment experience in a full-time job that involves some investigative work or training in addition to other duties, to credit the applicant for a pro rata amount of qualifying experience based on the quantifiable percentage of time devoted to the investigative work or training.
It could not be determined from the evidence what percentage of the Petitioner’s work at Telephonic Collections was devoted to skip-tracing and investigation work and how much was administrative. The Petitioner and Apter testified that Apter trained the Petitioner in skip-tracing and investigation work and that the Petitioner did a substantial amount of skip-tracing and investigation work from March 1991, through September 1993; but both conceded that the Petitioner also had administrative duties. Apter did not break down the Petitioner’s time spent between the two. The Petitioner made a rough approximation that 25 percent of his time was spent on administrative matters. Sharon Jones, who worked for both Telephone Collections and Telephone Info, testified that the Petitioner did some skip-tracing work, as well as other duties, between June through September 1993, but she also could not estimate the percentage of time spent between the two.
Other witnesses, including Bronstrup and Tate, were not aware that the Petitioner was doing any skip-tracing at all during the times they were working for Telephonic Collections. (Bronstrup worked there for approximately ten weeks between March and June 1993; Tate worked there from February 1993, through the time it became Telephonic Info in September 1993.)
In partial response to the testimony of Bronstrup and Tate, the Petitioner suggested that it was not surprising for them not to be aware of the Petitioner’s skip-tracing and other investigative work because much of it was done at the Petitioner’s home after hours and because most of the employees were treated on a “need to know” basis. (The Petitioner also contended that Bronstrup did not spend much time at work for Telephonic Collections, as he also had another part-time job and did some personal investigation work on the side.) But even if it is true that the Petitioner did much of his skip-tracing and other investigative work at home after hours, only the Petitioner and Apter even knew about it, and the amount of time the Petitioner spent doing investigative work at home clearly was not verified.
The Petitioner continues to maintain that he stopped doing any skip-tracing or investigative work after Telephonic
Collections, the debt collection agency, ceased doing business and became Telephonic Info, the private investigation agency.
As for the Petitioner’s experience as a part-time auxiliary policeman with the City of West Haven police department, the application does not give any indication as to how much time, if any, the Petitioner spent doing investigation work or being trained in that work. The Rubelman affidavit introduced in evidence to verify his experience likewise does not give that kind of information. It only states generally that the Petitioner received training in and assisted in police work. It does not indicate that any of the training or work was in investigations. It also indicates that no records of the Petitioner’s employment exist and that Rubelman cannot reconstruct even the months the Petitioner worked, much less what the work consisted of.
Although it is not clear, at final hearing it appeared that the Petitioner may have been claiming credit for work he did collecting Telephonic Info’s accounts receivable. However, the amount of any such work was not quantified.
It also appeared at final hearing that the Petitioner also was claiming credit for doing background investigations on prospective employees of Telephonic Info. However, the Petitioner also did not quantify the amount of any of this work.
Alleged Fraud or Willful Misrepresentation
The Petitioner stated in the Affidavit of Experience in his Class “C” application that the “approximate percentage of time devoted to” the qualifying skip-tracing and investigation
duties listed for his employment with Telephonic Collections from March 1991 to September 1993 was “full time.” This statement clearly was false. All of the witnesses confirmed that the Petitioner spent at least some time doing administrative work; several thought that was all the Petitioner was doing. The Petitioner conceded in his testimony at final hearing that at least 25 percent of his time was devoted to administrative work, and it is found that the actual percentage probably was much higher. Unlike Apter, the Petitioner made no attempt to explain his false representation, and it is found to be a fraudulent or willful misrepresentation.
CONCLUSIONS OF LAW
Section 120.60(2), Florida Statutes (1995), the statute governing the processing of the Petitioner’s applications, provided in pertinent part:
(2) . . . Every application for license shall be approved or denied within 90 days after receipt of the original application or receipt of the timely requested additional information or correction of errors or omissions unless a shorter period of time for agency action is provided by law. The 90-day or shorter time period will be tolled by the initiation of a proceeding under Sec. 120.57 and will resume 10 days after the recommended order is submitted to the agency and the parties. Any application for a license which is not approved or denied within the 90-day or shorter time period, within 15 days after conclusion of a public hearing held on the application, or within 45 days after the recommended order is submitted to the agency and the parties, whichever is latest, shall be deemed approved; and, subject to the satisfactory completion of an examination, if required as a prerequisite to licensure, the license shall be issued. The Public Service Commission, when issuing a license, and any other agency, if specifically exempted by law, shall be
exempt from the time limitations within this subsection.
However, Section 493.6108(1)(a), Florida Statutes (1995), provides in pertinent part:
Except as otherwise provided, prior to the issuance of a license under this chapter, the department shall make an investigation of the applicant for a license. The investigation shall include:
1. An examination of fingerprint records and police records. When a criminal history analysis of any applicant under this chapter is performed by means of fingerprint card identification, the time limitations prescribed by Sec. 120.60(2) shall be tolled during the time the applicant's fingerprint card is under review by the Department of Law Enforcement or the United States Department of Justice, Federal Bureau of Investigation.
In the case of the Petitioner’s Class “C” application, the Section 120.60(2) time deadline was tolled from May 8 through August 27, 1996. Therefore, the notice of intent to deny the Petitioner’s applications clearly was timely as to both the Class “C” and the Class “A” applications.
Section 493.6203(4)(a), Florida Statutes (1995), requires an applicant for a Class “C” license to “have 2 years of lawfully gained, verifiable, full-time experience or training in
. . . [p]rivate investigative work or related fields of work that provided equivalent experience or training.” (The Petitioner did not claim to have any qualifying college course work under subsection (4)(b) and was not a Class “CC” intern under subsection (4)(c).)
Although Section 493.6203(4)(a) states that an applicant for a Class “C” license must have two years of “full- time experience or training in . . . [p]rivate investigative work or related fields of work,” it is the Respondent’s policy, when an applicant has employment experience in a full-time job that involves some investigative work or training in addition to other duties, to credit the applicant for a pro rata amount of qualifying experience based on the quantifiable percentage of time devoted to the investigative work or training. This policy interpretation of the statute is accepted. See PW Ventures, Inc., v. Nichols, 533 So. 2d 281, 283 (Fla. 1988); Florida Ins. Guaranty Ass’n v. Renfroe, 568 So. 2d 962 (Fla. 1st DCA 1990); Natelson v. Dept. of Ins., 454 So. 2d 31, 32 (Fla. 1st DCA 1984).
It was the Petitioner’s burden to prove that he is entitled to licensure. See Dept. of Transp. v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).
The evidence did not verify that the Petitioner had two years of full-time experience or training in private investigative work at Telephonic Collections. At most, 75 percent of his time was spent doing private investigative work, probably less. The rest of his time was spent doing administrative functions for the company.
Based on the Affidavit of Experience in the Petitioner’s Class “C” application, it does not appear that the Petitioner has claimed full-time experience or training in
private investigative work based on his work for Telephonic Info. If he had the experience would not be “lawfully gained” since he did not have either a Class “C” license or a Class “CC” intern license to do it, and he was not exempt from licensure. See Section 493.6102, Florida Statutes (1993).
To the extent that the Petitioner might be claiming an exemption under Section 493.6102(3), Florida Statutes (1993), for work he did collecting Telephonic Info’s accounts receivable, the exemption does not apply because the Petitioner was not “solely, exclusively, and regularly employed as an unarmed investigator or recovery agent in connection with the business of his employer
. . ..” Besides, the amount of any such work was not quantified.
To the extent that the Petitioner might be claiming an exemption under Section 493.6102(11), Florida Statutes (1993), for doing background investigations on prospective employees of Telephonic Info, the exemption does not apply because the Petitioner was not “employed as a proprietary security officer by any business entity which conducts or contracts for background investigations on its own applicants for proprietary security positions . . . .” Besides, the amount of any such work was not quantified.
As for the Petitioner’s work at the City of West Haven police department between 1965 and 1967, the evidence did not verify that it was full-time work or that any of it was
“experience or training in . . . [p]rivate investigative work or related fields of work ”
Finally, Section 493.6118(1)(a) and (2), Florida Statutes (1995), authorizes the Respondent to deny an application for issuance of a license for “[f]raud or willful misrepresentation in applying for or obtaining a license.” As found, the Petitioner’s license was guilty of “[f]raud or willful misrepresentation” when he stated in the Affidavit of Experience in his Class “C” application that the “approximate percentage of time devoted to” the qualifying skip-tracing and investigation duties listed for his employment with Telephonic Collections from March 1991 to September 1993 was “full time.”
The Petitioner’s Class “A” license application depends on the Petitioner’s Class “C” licensure. In addition, Section 493.6118(1)(a) and (2), Florida Statutes (1995), applies to the Petitioner’s Class “A” license application.
Finally, the Petitioner seems to make the argument that he was entitled to licensure as of right when the FDLE criminal history report was submitted on August 27, 1996, because the procedures undertaken by the Respondent before Investigator Floyd’s involvement verified the Petitioner’s entitlement to licensure (and possibly also because Floyd allegedly was biased against the Respondent due to his association with Apter.) But such a view of the licensure process has no merit. It would require the licensing authority to ignore adverse information
obtained after preliminary verification, including information tending to show an applicant’s “[f]raud or willful misrepresentation in applying for or obtaining a license.”
RECOMMENDED that the Department of State, Division of Licensing, enter a final order denying both the Petitioner’s Class “C” license application and his Class “A” license application.
RECOMMENDED this 22nd day of July, 1997, at Tallahassee, Leon County, Florida.
J. LAWRENCE JOHNSTON Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1997.
Harry P. Schlenther 12155 Meadowbrook Lane
Sandra B. Mortham, Secretary Department of State
All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
