STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, DIVISION ) OF LICENSING, )

)

Petitioner, )

)

vs. ) Case No. 97-5272

)

FENEL ANTOINE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case by video teleconference from Fort Lauderdale, Florida, on February 11, 1999, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Steve Bensko, Esquire

Department of State Division of Licensing

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

For Respondent: David C. Rash, Esquire

Law Offices of Johnson & Rash 1509 Northeast Fourth Avenue Fort Lauderdale, Florida 33304

STATEMENT OF THE ISSUE

Whether the Respondent committed the violation alleged in the Administrative Complaint and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case began on October 9, 1997, when the Department of State, Division of Licensing (Department) issued an Administrative Complaint against the Respondent, Fenel Antoine. Such complaint alleged that Respondent had violated Section 493.6118(2), Florida Statutes, by conducting or advertising the business of private investigation without a proper license.

Thereafter, Respondent timely filed an Election of Rights which requested a formal hearing. The matter was forwarded to the Division of Administrative Hearings for formal proceedings on November 7, 1997.

At the hearing, Petitioner presented testimony from Catherine Robinson, an investigator employed by the Division of Licensing; and John Esposito, an investigator with the Department of Business and Professional Regulation, formerly a private investigator. Respondent testified in his own behalf.

Respondent's Exhibit numbered 13 was admitted into evidence. Respondent's Exhibit numbered 14 was proffered for the record but not admitted.

The Transcript of the proceedings was filed with the Division of Administrative Hearings on February 24, 1999. The parties were granted leave until March 24, 1999, to file their proposed recommended orders. Petitioner's Proposed Recommended Order was filed with the Division of Administrative Hearings on March 24, 1999, and Respondent's Proposed Recommended Order was

filed on March 29, 1999. The parties’ orders have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner is the state agency charged with the responsibility of regulating persons engaged in the business of private investigation.

2. At all times material to the allegations of this case, Respondent was licensed as a class "CC" private investigator intern, license number CC97-00449.

3. Respondent also holds a class "G" statewide firearms license, license number G97-01406.

4. During some period prior to September 3, 1997, Respondent was employed by J.R. Investigative Agency.

   Mr. Onativia owns and operates J.R. Investigative Agency.

   
   

5. In August 1997, Mr. Onativia filed a complaint with the Department that Respondent was conducting private investigations without a license.

6. Ms. Robinson, an investigator for the Division of Licensing, was assigned to review the complaint.

7. Ms. Robinson contacted Respondent and advised him that the agency had received a complaint that he was conducting investigations on his own without an agency license.

8. Respondent admitted he was doing investigations but claimed Mr. Onativia knew of his activities. He further admitted to Ms. Robinson that he was doing investigations on his own for

   attorneys in order to support his family.

   
   

9. Respondent had also admitted to the investigation activities to John Esposito.

10. After Ms. Robinson confirmed the information with Mr. Esposito as to the admissions made by Respondent, investigation of the complaint stopped.

    CONCLUSIONS OF LAW

    
    

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

12. 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.

       
       

13. Section 493.6201(1), Florida Statutes, provides:

    
    

    1. Any person, firm, company, partnership, or corporation which engages in business as a private investigative agency shall have a Class "A" license. A Class "A" license is valid for only one location.

       
       

14. Section 493.6101, Florida Statutes, provides, in pertinent part:

    1. "Department" means the Department of State.

       
       

    2. "Person" means any individual, firm, company, agency, organization, partnership, or corporation.

       
       

    3. "Licensee" means any person licensed under this chapter.

       * * *

       (6) "Advertising" means the submission of bids, contracting, or making known by any public notice or solicitation of business, directly or indirectly, that services regulated under this chapter are available for consideration.

       
       

       * * *

       
       

       1. "Sponsor" means any Class "C," Class "MA," or Class "M" licensee who supervises and maintains under his or her direction and control a Class "CC" intern; or any Class "E" or Class "MR" licensee who supervises and maintains under his or her direction and control a Class "EE" intern.

          
          

       2. "Intern" means an individual who studies as a trainee or apprentice under the direction and control of a designated sponsoring licensee.

       
       

       * * *

       
       

       1. "Private investigative agency" means any person who, for consideration, advertises as providing or is engaged in the business of furnishing private investigations.

          
          

       2. "Private investigator" means any individual who, for consideration, advertises as providing or performs private investigation. This does not include an informant who, on a one-time or limited basis, as a result of a unique expertise, ability, vocation, or special access and who, under the direction and control of a Class "C" licensee or a Class "MA" licensee, provides information or services that would otherwise be included in the definition of private investigation.

          
          

       3. "Private investigation" means the investigation by a person or persons for the purpose of obtaining information with reference to any of the following matters:

       
       

       1. Crime or wrongs done or threatened against the United States or any state or territory of the United States, when

          operating under express written authority of the governmental official responsible for authorizing such investigation.

          
          

       2. The identity, habits, conduct, movements, whereabouts, affiliations, associations, transactions, reputation, or character of any society, person, or group of persons.

          
          

       3. The credibility of witnesses or other persons.

          
          

       4. The whereabouts of missing persons, owners of abandoned property or escheated property, or heirs to estates.

          
          

       5. The location or recovery of lost or stolen property.

          
          

       6. The causes and origin of, or responsibility for, fires, libels, slanders, losses, accidents, damage, or injuries to real or personal property.

          
          

       7. The business of securing evidence to be used before investigating committees or boards of award or arbitration or in the trial of civil or criminal cases and the preparation therefor.

       
       

15. Rule 1C-3.120(1)(c), Florida Administrative Code, provides:

    1. Procedures. Any person who meets the qualifications prescribed by chapter 493, Florida Statutes, and desires a license in the profession or services provided for in the law, shall file with the Division an application using the applications and support forms in Rule 1C-3.100.

       
       

       * * *

       
       

       (c) Each license issued by the Division shall specify on its face the classification of such license. No licensed agency or individual shall engage in regulated activities reserved for any other

       classification without possessing the appropriate license. No license issued in any of the licensed classifications shall be transferable from the original licensee to any other person. In addition, all licenses will expire at midnight of every second year after date of issuance.

       
       

16. In this case the Department has established that the Respondent conducted investigations without being properly licensed. Respondent admitted the wrongdoing to at least two individuals, Ms. Robinson and Mr. Esposito. Respondent argues that since neither person personally observed Respondent in the performance of such investigative duties, Petitioner has failed in its burden of proof. Such argument is rejected.

17. Respondent admitted performing investigations for attorneys whose work was not channeled through his former employer. Respondent's after-the-fact attempt to reverse himself and explain the circumstances of such unlicensed work has not been deemed credibly persuasive.

18. Having considered the testimony of Ms. Robinson and Mr. Esposito controlling in this matter, it is concluded Petitioner has established by clear and convincing evidence the allegations of this case.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of State, Division of Licensing, enter a Final Order revoking Respondent's class "CC" license.

DONE AND ENTERED this 1st day of April, 1999, in Tallahassee, Leon County, Florida.

J. D. PARRISH Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 1999.

COPIES FURNISHED:

Honorable Katherine Harris, Secretary of State Department of State

The Capitol, Plaza 02 Tallahassee, Florida 32399-0250

Deborah K. Kearney, General Counsel Department of State

The Capitol, Lower Level 10 Tallahassee, Florida 32399-0250

Steve Bensko, Esquire Department of State Division of Licensing

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

David C. Rash, Esquire

Law Offices of Johnson and Rash 1509 Northeast Fourth Avenue Fort Lauderdale, Florida 33304

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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.

Docket for Case No: 97-005272

Orders for Case No: 97-005272