The Issue Whether Respondent violated Section 493.6118(1)(n), Florida Statutes, as alleged in Counts I, II, IV and V of the Administrative Complaint by subcontracting with individuals named therein to provide private investigative services at a time when they were not licensed as a Class "A" investigative agency. Whether Respondent violated Section 493.6118(1)(n), Florida Statutes, as alleged in Count III of the Administrative Complaint, by allowing an improperly licensed person, John Polk, to direct the activities of licensees, or exercise operational control over the regulated activities of Morse Security Group, Incorporated. Whether Respondent violated Section 493.6118(1)(s), Florida Statutes, as alleged in Count VI in the Administrative Complaint, by failing to report to the Department the termination of persons listed in that count. Whether Respondent violated Section 493.6118(1)(s), Florida Statutes, as alleged in the Administrative Complaint, by directing the activities of licensees, thereby acting as a manager, subsequent to the voluntary deactivation of his Class "C" private investigator's license and Class "M" private investigative/security agency manager's license. Whether Respondent violated Section 493.6118(1)(f), Florida Statutes, as alleged in the Administrative Complaint, by misrepresenting his agency by advertising in the Martindale-Hubbell Law Directory 1993, that his agency is "Florida's largest and oldest private investigative agency", when it is not. Whether Respondent violated Section 493.6118(1)(r), Florida Statutes, as alleged in the Administrative Complaint, by failing to certify the completion or termination of the internship of William J. Smithberger when he had the duty as a sponsor to do so.
Findings Of Fact Morse Security Group holds a Class "A" Private Investigative Agency License, Number AOO-00919, effective June 30, 1993, which was originally issued in 1976, and is currently active. Harvey Morse, the principal of Respondent, holds a Class "C" private investigator license, number COO-008861, effective November 24, 1992, which was originally issued in 1975, and was placed on inactive status by the Department on January 21, 1993. Harvey Morse also was issued a Class "DI" Security Officer Instructor License, No. DI89-00348, effective January 8, 1993, a Class "G" Statewide Firearms License, No. GOO-11067, effective December 6, 1991, which was placed on inactive status with the Department on January 21, 1993, and a Class "M" Private Investigative/Security Agency Manager license No. M85-00112, effective August 7, 1992, which was placed on inactive status with the Department on January 21, 1993. Craig Hull became employed with Respondent in February of 1993, as a part-time investigator. Hull worked under the direct supervision and control of Respondent, and held himself out to the public as an employee. When Hull entered into his contractual employment agreement with Respondent, he was given a vacation/sick day policy document noting his status as a full-time employee of Respondent. Hull executed an Employment Agreement which referred to him as the "employee" and also referred to him as an "independent subcontractor" for the purpose of withholdings. At the time of Hull's employment with Respondent, he held a Class "C" private investigator license. In all aspects of Hull's employment with Respondent, he conducted himself, and was treated as an employee. Hull did business for Respondent under the Respondent's corporate name; held himself out to the public as being Respondent's employee; signed contracts on behalf of Respondent; received letters and correspondence as an employee; was directed when and were to show up for work; how to answer to the telephone; when to answer the telephone; and in all other respects was under the direct control and supervision of Respondent. During the course of employment with Morse Security Group, Hull possessed no occupational license, business cards, stationery, telephone listing, brochures or printed material that identified him as having any relationship with Respondent other than employee and filed no fictitious name with the Department of State. In dealing with clients and the general public, Hull held himself out as an employee of Respondent and his business cards indicated that he was an employee of Respondent. Of the five cases that Hull handled on behalf of Respondent, he at no time attempted to limit the Respondent's liability to any of those clients by asserting that he was an independent contractor, or had any other relationship with Respondent other than employee. Respondent never identified Hull to others an anything other than an employee. At no time did Respondent attempt to limit its general liability to the public as to Hull's employment by the use of the term subcontractor. Respondent never attempted to perpetrate a fraud on the public by the use of the term subcontractor as to Hull's employment. Respondent's liability insurance in effect from 1991 through 1994, specifically covered Hull as an employee of Respondent. John K. Polk was employed by Respondent from February 5, 1992 through March 27, 1993. At the inception of Polk's employment, he entered into an employment contract with Respondent. The agreement for employment was entitled "Employment Agreement", and consisted of twelve paragraphs. Throughout the employment agreement Polk is referred to as employee and Respondent is referred to as employer except in paragraph 10. Paragraph 10 informed Polk that as employee he would be regarded as a subcontractor or independent contractor for the purposes of taxes, workers' compensation, licenses, permits, and insurance. During the course of Polk's employment his relationship with Respondent was governed by the employment agreement. In addition to the employment agreement signed by Polk, he received a separate document entitled, "Employee Vacation/Sick Leave Policy". The vacation/sick leave document further identified and regulated Polk as an employee. During the course of Polk's employment with Respondent Polk did not maintain a separate general liability policy. At no time during the course of Polk's employment with Respondent did Respondent attempt to limit its liability to its clients by treating Polk as anything other than as an employee. Polk never attempted to use the fact that the term "subcontractor" had been used in paragraph 10 of the employment agreement in order to limit Respondent's liabilities to clients. Polk's employee fidelity bond questionnaire for State Farm Fire and Casualty Company Insurance was submitted by Respondent listing Polk as an employee, and Polk was covered under the policy for any acts of negligence of omissions. During the period of Polk's employment with Respondent he held no separate occupational license. Polk's business cards and stationery was provided by Respondent, and identified Polk as an employee of Respondent. The business telephone employed by Polk during his employment with Respondent was identified as Respondent. Polk worked under the direct supervision and control of Respondent. At all times Polk held himself out as an employee to Respondent's clients. During the course of his employment with Respondent, Polk was covered under Respondent's general liability policy for any acts of negligence or omission committed by Polk. Randy Morgan was employed with Respondent as an investigator from January 1, 1991, to approximately December, 1992. Morgan did not have a written contract for employment with the Respondent. Morgan was compensated by the case on an hourly basis by Respondent. Morgan was responsible for withholding his own Social Security and federal income taxes. Morgan considered himself as an employee of Respondent, and was under the supervision and control of Respondent. At all times during the course of his employment Morgan held himself out as an employee of Respondent, not as a subcontractor. Robert O. Sutley was employed by Respondent from November of 1992, until approximately March, 1993. During his employment with Respondent, Sutley held "DD", "B", and "G" licenses from the Department. Sutley entered into an employment agreement with Respondent which consisted of twelve paragraphs entitled "Employment Agreement". Within the employment agreement, the term "independent contractor" was a term used in relation to the workers' compensation and the withholding of taxes. Respondent did not attempt to limit its liability to the general public in regard to Sutley. Throughout the course of his employment with Respondent, Sutley held himself out as an investigator employee of Respondent. During his employment with Respondent, Sutley was under the supervision and control of Respondent. Respondent was contacted on a cold call by Martindale-Hubbell Law Directory for the purposes of advertising. After negotiations, Respondent caused to be issued an advertisement in the Martindale-Hubbell directory. Respondent initially instructed Martindale-Hubbell to advertise that Respondent was "one of the oldest and largest investigative agencies in Florida". The basis for the requested advertisement that Respondent was one of the oldest and largest was Respondent's purchase of a statewide detective agency, which had been in business in Florida since the 1950's, and that Respondent has an affiliate office in Europe and other parts of the United States. Pinkerton's of Florida has been licensed in Florida as an investigative agency since 1968. Pinkerton's has employed over 25 investigator employees on an annual basis over the last five years. Prior to its publication in Martindale-Hubbell, Respondent was not aware of the contents of the advertisement. The ad, as published, stated that the Respondent was the oldest and largest investigative agency in Florida. Respondent became aware of the contents of the advertisement upon receipt of the complaint filed against him by the State. Respondent then sent a letter to Martindale-Hubbell, inquiring why the advertisement read "Florida's oldest and largest private investigative agency", as opposed to "one of Florida's largest and oldest private investigative agencies" as previously instructed by Respondent. Martindale-Hubbell acknowledged that the final draft of the advertisement had been done without Respondent's approval and that an error had been made by Martindale-Hubbell in the advertisement, as it appeared in their publication. Respondent instructed Martindale-Hubbell to cease further advertisement. Respondent reported on his letterhead stationery to the Department the termination of the following persons: Colard, Crews, Fitzgerald, Martin, Morgan, Polk, and Stebbins within the statutory time limit. When Respondent was advised by Mr. Matlack that the computer printout from the Department showed that the above named people were still on a list indicating that they were associated with Respondent, Respondent sent another letter dated April 27, 1993 to the Department advising them of the termination of those listed individuals. As of October 15, 1993, the above named persons were still listed as in Respondent's employ. During the period from January 1, 1993 to April 1993, Harvey E. Morse voluntarily deactivated Class "C" Private Investigator's License and Private Investigative Security Agency Manager's License. Morse voluntarily deactivated licenses upon his graduation from the police academy and his association with the Florida Highway Patrol as a full time auxiliary trooper. Upon voluntary deactivation of Morse's licenses, Morse notified each of the company's employees that Morse would not be involved in any more investigations, and that the employees were to receive their direction from either Dwayne Rutledge or Maria Morse. Morse continued to engage in non-regulated functions such as marketing, sales, computer functions, bookkeeping, and payroll and teaching, training and instruction. During the periods of voluntary deactivation of his license, Morse would run a driver's license record on the computer, receive a printout, and hand it to an employee. Morse refrained, however, from being involved in an investigation based upon that printout. Morse has refrained from involvement in any regulated activities from the time that he voluntarily deactivated his license. Once Morse voluntarily deactivated his license, the primary person responsible for investigations and management of employees was Dwayne Rutledge. During the period from September 1992 to January 1993, Harvey E. Morse supervised and trained John Polk. Morse was always available by way of pager or cellular phone, and in constant contact with John Polk during that time period. Further, Respondent installed a two-way radio system so that Morse could talk with and supervise John Polk on a constant basis. Morse was never more than 60 miles from John Polk during his internship from September 1992 till January 1993, and Morse was in daily contact with John Polk in regard to pending investigations, new matters, old matters, and the general business of the Respondent's office. On several occasions during the above stated time period, Polk would communicate with Morse while he was on patrol in a Florida Highway Patrol vehicle, and ask questions of Morse concerning how investigative matters should be handled. Polk was afforded certain latitude by Morse to make administrative decisions on a day-to-day basis as his training progressed, and Morse placed more confidence in Polk's abilities in certain areas. However, Morse still oversaw those decisions. At all times, Polk's supervision of Respondent's employees was under the direct supervision and control of Morse or other licensed managers in Respondent's employ. The purpose of the Respondent's purchase of a two way radio system was twofold: One, to communicate with other investigators during the course of an investigation; and the other was to afford constant communication among Morse, the office managers, Dwayne Rutledge and Maria Morse, and the investigators, in case of a question would arise in the performance of their duties. Rutledge, as well as Maria Morse, became employed as office manager(s) shortly after 1990, and both he and Mrs. Morse were continuously available to the employees and oversaw, in conjunction with the Morse, the performance of their regulated duties.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is WHEREFORE, it is RECOMMENDED: Petitioner having failed to prove by clear and convincing evidence that Respondent violated those sections as alleged in Counts I through IX of the Administrative Complaint, it is hereby recommended that said Counts be DISMISSED. DONE and ENTERED this 31st day of January, 1994, in Tallahassee, Florida. DANIEL M. KILBRIDE 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 31st day of January, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3890 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Proposed findings of fact submitted by Petitioner. Petitioner waived the filing of proposed findings of fact. Proposed findings of fact submitted by Respondent. Accepted in substance: Count I, unnumbered paragraphs 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18; Count II, paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 20, 22; Count IV, unnumbered paragraphs 1, 2, 3, 4, 6, 7, 8; Count V, unnumbered paragraphs 1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18; Count VIII, unnumbered paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9; Count VI, unnumbered paragraphs 1, 2 (in part), 3, 5, 6, 7, 8, 9; Count VII, unnumbered paragraphs 1, 2, 3, 5, 6, 7, 8, 9, 10, 11, 12; Count III, unnumbered paragraphs 1, 2, 3, 5, 6, 7, 8, 10, 11, 12. Rejected as argument or conclusory: Count I, unnumbered paragraphs 2, 21; Count IV, paragraphs 9; Count V, paragraph 2(in part); Count VII, paragraphs 4; Count III paragraphs 4, 9. Rejected as redundant or surplusage, or irrelevant and immaterial: Count II, unnumbered paragraphs 13, 18, 19; Count IV, paragraph 5; Count VI, paragraph 4. COPIES FURNISHED: Henri C. Cawthon, Esquire Department of State Division of Licensing The Capitol Mail Station-4 Tallahassee, Florida 32399-0250 William J. Sheaffer, Esquire William J. Sheaffer, PA. 609 East Central Boulevard Orlando, Florida 32801 Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater, Esquire General Counsel The Capitol, PL-02 Tallahassee, Florida 32399-0250
Findings Of Fact The charges Respondent, Gary W. Ciani Private Investigations, Gary Wayne Ciani, Owner (Ciani), holds a Class "A" private investigative agency license, number A88-00273, effective October 31, 1990, and a Class "C" private investigator license, number C87-00530, effected August 6, 1989. Both licenses were issued pursuant to Chapter 493, Florida Statutes. On September 14, 1990, in the United States District Court, Southern District of Florida, Case No. 87-6021-CR-Gonzalez, Ciani, based on a plea of guilty, was convicted of a felony, to wit: violation of Title 28, USC Section 5861(d) and 5871-- possession of a firearm (one silencer) that was not registered to him in the National Firearms Registration and Transfer Record. The court withheld the imposition of a period of confinement, and placed Ciani on probation for a period of 24 months. As a special condition, the court directed that, without regard to any existing policies of the U.S. Probation Office, Ciani be permitted to maintain his employment as a private investigator so long as he was so licensed by the State of Florida. The person Ciani has been a resident of Fort Lauderdale, Florida, since 1954. He is married, the father of three daughters, and was, until being charged with the offense leading to his conviction discussed supra, a career officer with the Fort Lauderdale Police Department. In all, Ciani dedicated 17 years and 8 months of his life as a police officer to the City of Fort Lauderdale, the last 8 years of which were served with the Homicide Division. During such period, Ciani earned a reputation, which he continues to enjoy, as a very competent officer and investigator, as well as an excellent reputation for honesty and truthfulness. The firearms violation, which ultimately resulted in Ciani's guilty plea and conviction, had its genesis when Ciani sought to sell an automatic weapon he had previously acquired for use in his employment. Regarding such firearms, the proof demonstrates that other officers owned similar weapons, used such weapons in the course of their employment, and that no officer had ever been prosecuted for possessing such a weapon. The proof is, however, silent as to whether such other officers had registered their firearms as required by law. Notwithstanding, Ciani was, more likely than not, targeted for prosecution by Federal authorities in retribution for his refusal to curtail an investigation he had undertaken of a Federal confidential informant (CI) who he suspected of murder. In this regard, the proof demonstrates that shortly after securing an indictment against the CI, Ciani was approached out-of-the-blue by a licensed gun dealer, who inquired as to whether Ciani was interested in selling his weapon. Ciani, having no further use for the weapon, and believing a sale to a licensed dealer would be permissible, subsequently met with the dealer at his premises to make the sale, and was shortly thereafter arrested and charged with the subject offense. Recognizing that federal law made no provision for withholding an adjudication of guilt, Ciani, upon advice of his counsel, entered into a plea agreement with the federal prosecutor which, if consummated, would have allowed him to plead guilty to a State weapons charge in exchange for a sentence of five years probation with adjudication of guilt withheld. Additionally, Ciani agreed to resign from his position as a law enforcement officer for the Fort Lauderdale Police Department, and not seek any law enforcement employment during his period of probation. In return, the United States agreed to dismiss the federal indictment. In reliance upon the plea agreement, Ciani resigned from the Fort Lauderdale Police Department, and forfeited the eighteen years he had accrued toward his pension. Thereafter, he opened a new business for the support of his family as a private investigator, and has been so employed since August 1987. During that period, he has acquired twelve of the largest civil law firms in Dade and Broward Counties as clients, and has earned a reputation as a responsible private investigator, whose conduct conforms to the highest of moral and ethical standards. While Ciani had complied with those terms of the plea agreement within his control, his counsel and the U.S. Attorney were unsuccessful in convincing the State Attorney to file the requisite State charges that would consummate the agreement. Accordingly, in August or September 1990, more than three years after the plea agreement had been executed, Ciani was informed that such agreement was, by its terms, void, and that he would have to plead guilty to the charge or stand trial. Recognizing the uncertainties of criminal prosecution, Ciani elected to plead guilty to count two of the indictment, and the remaining four counts were dismissed. Petitioner, at least since November 23, 1987, has been aware of the criminal charges pending against Ciani, as well as the plea agreement that had been entered into between Ciani and the United States Attorney, and continually renewed his licenses until the subject conviction was rendered and these revocation proceedings were commenced. Additionally, the Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), was aware of the criminal charges pending against Ciani. In apparent recognition that Ciani's actions did not demonstrate that he failed to possess the requisite good moral character demanded of law enforcement officers, the Commission limited the disciplinary action it took against Ciani to a suspension of his certification for the period of January 31, 1988 through January 31, 1990. Overall, the proof offered in this proceeding demonstrates that Ciani is a person of good moral character, who ascribes to the highest of ethical standards, and a responsible investigator. It further demonstrates that, were Ciani afforded the opportunity to continue as a private investigator, the public would not be adversely affected.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered revoking the Class "A" private investigative agency license and Class "C" private investigator license of Respondent, Gary W. Ciani Private Investigations, Gary Wayne Ciani, Owner. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of June 1991. WILLIAM J. KENDRICK 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 June 1991. APPENDIX Petitioner's proposed findings of fact are addressed as follows: Addressed in paragraph 1. Addressed in paragraph 2. Respondent's proposed findings of fact are addressed as follows: Addressed in paragraph 2. Addressed in paragraphs 4 and 5. Addressed in paragraphs 6-8. 4 & 5. Addressed in paragraph 9. 6. Addressed in paragraphs 3, 7, and 10. Copies furnished: Henri C. Cawthon, Esquire Assistant General Counsel Department of State Division of Licensing The Capitol, MS 4 Tallahassee, Florida 32399-0250 Michael G. Widoff, Esquire 2929 East Commercial Boulevard Suite 501 Fort Lauderdale, Florida 33308 The Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 488-3680 Phyllis Slater General Counsel Department of State The Capitol Tallahassee, Florida 32399-0250
Findings Of Fact In 1993, Respondent Carl Clausen, along with some acquaintences, was interested in opening a private investigative business or becoming associated with a private investigative agency. Mr. Clausen had an extensive background in police investigative and security work and was well qualified to be licensed as a private investigator. In pursuit of getting into the business of private investigations, Mr. Clausen attended a business recruiting meeting held by a private investigative company on March 19, 1993. Ms. Bronson, owner of Prosearch International, then the holder of a valid Class A Private Investigative Agency license, also attended the meeting where she met Respondent. After the meeting, Ms. Bronson and Respondent discussed various ways he might became associated with her investigative agency in order to expand the services Prosearch could offer potential clients. These discussions included buying part or all of Prosearch. At some point after the recruiting meeting, Ms. Gentry, a local attorney in Tallahassee, Florida, was appointed to represent a man accused of murder in Quincy, Gadsden County, Florida. Ms. Gentry felt the defense team needed an experienced investigator who could effectively work within a predominately minority community in Quincy. Ms. Gentry contacted Ed Rawls about possibly working the case. However, Mr. Rawls was a reserve Gadsden County Sheriff's Deputy, and had an obvious conflict in investigating the case for Ms. Gentry. Mr. Rawls recommended Mr. Clausen as a potential investigator. Ms. Gentry called Mr. Clausen on March 24, 1993, and requested that he come the next day for an interview. On March 25, 1993, Mr. Clausen asked Ms. Bronson to meet him for lunch to discuss her employing him as an intern private investigator. An intern private investigator holds a Class "CC" license once the sponsorship becomes effective. Eventually, the intern can obtain a Class "C" investigative license. Mr. Clausen and Ms. Bronson met for lunch and Ms. Bronson agreed to sponsor Mr. Clausen. Mr. Clausen also told Ms. Bronson about his scheduled meeting with Ms. Gentry. Soon after the meeting, Ms. Bronson left town to take care of some personal matters. After lunch, Mr. Clausen went directly to Ms. Gentry's office for the meeting she had scheduled. Ms. Gentry interviewed Respondent to determine whether he had the experience and ability to perform the investigation she felt was necessary to prepare for her client's murder trial. Ms. Gentry discussed some general details of the case with Respondent in order to more fully assess Respondent's abilities to investigate her case should the Respondent become licensed as an investigator. Respondent did not receive the case file from Ms. Gentry, nor did Respondent receive information such as addresses which would have enabled him to begin an investigation. Ms. Gentry felt that Mr. Clausen was very well qualified. At the initial meeting Respondent made it very clear to Ms. Gentry that he would not begin any investigation until he was properly licensed or could conduct the investigation under one of the exemption categories in Chapter 493, Florida Statutes, such as an employee for an attorney. Mr. Clausen also told Ms. Gentry he was not at present in business as a private investigator, but that he wanted to be and was working on the prospect. However, Ms. Gentry did not want to deal with the paperwork or potential liability of an employment relationship with Mr. Clausen. Therefore, Mr. Clausen needed to become licensed as quickly as possible so that the investigation could begin. Respondent and Ms. Gentry met again on March 30, 1993. However, the meeting contered on the quickest way Respondent could become licensed as an investigator. Mr. Clausen also told Ms. Gentry that his license would most likely be in order April 2, 1993, when Ms. Bronson, through Prosearch, would return to formalize his application at the Department of State for the internship. In short, Mr. Clausen would have a Class "CC" license. Prior to licensure as a Class "C" or "CC" licensee, Respondent did not advertise or solicit any investigative business on his behalf. Respondent only participated in an employment interview for future employment after he was licensed and discussed various methods of becoming legally able to pursue Ms. Gentry's case. Likewise no investigation was begun prior to his licensure. On April 2, 1993, Ms. Bronson filed Respondent's sponsorship papers and Respondent filed an application for a Class "CC" Private Investigator Intern license issued under Chapter 493, Florida Statutes. Because of the sponsorship, Respondent was employed by Prosearch International, a Class "A" private investigative agency, under Chapter 493, Florida Statutes. Ms. Bronson furnished Mr. Clausen with letters of introduction and appointment as her investigator. These letters were given to Ms. Gentry and a contract for services was entered into. On April 6, 1993, Ms. Gentry met with Mr. Clausen at her office where he was furnished with names, addresses, physical evidence and access to Ms. Gentry's case file. The case file contained police reports and probable cause affidavits on the case. Ms. Gentry requested Mr. Clausen to proceed immediately with the investigation. Mr. Clausen began the investigation on the morning of April 7, 1993, by interviewing the defendant in jail. Around April 21, 1993, Prosearch presented its first invoice for services to Ms. Gentry. The invoice contained charges for Mr. Clausen's meetings on March 25 and 30, 1993. However, the charges were not for investigative services. Ms. Gentry felt it was appropriate for Prosearch to bill for those hours even though she was aware no investigative work had begun and she had no contract with Respondent or Prosearch until April 6, 1993. Thereafter, Gadsden County paid the first invoice to ProSearch. Aroung May 7, 1993, ProSearch submitted a second invoice to Ms. Gentry. The investigation and report were completed and delivered by Ms. Bronson to Ms. Gentry's office around June 22, 1993. Both Ms. Gentry and Ms. Bronson praised Mr. Clausen's investigation and report as excellent. From March 25, 1993, to July 3 or 4, 1993, discussions between Mr. Clausen and Ms. Bronson regarding the future organization and market strategy for ProSearch or another business occurred almost daily. At the July meeting it became clear that Ms. Bronson had decided to associate with two others and gave Mr. Clausen a ProSearch check for his commission on the first invoice. On July 6, 1993, Ms. Bronson sent letters firing Mr. Clausen and notifying the Division that she would no longer sponsor Mr. Clausen. However, there was still billable time for investigative services outstanding for the investigation for Ms. Gentry. Additionally, Mr. Clausen was due his commission for those hours. Ms. Bronson said she had no money to pay wages or workman's compensation and therefore did not have funds to pay Mr. Clausen's his commission or expenses. Anxious to resolve the situation and not having contact with Ms. Bronson, Mr. Clausen submitted a final invoice on Specialty Security Services, Inc., letterhead to Gadsden County. The invoice referenced the first and second ProSearch invoices, showing the first invoice as paid and the second invoice as unpaid. The Gadsden County Commission approved and paid the invoice. Mr. Clausen used Special Security Services, Inc., letterhead because his word processor is programmed to always include the "Special Security Services, Inc." (SSS) letterhead. Otherwise, Special Security Services, had no role in this matter and should be dismissed as a party. Further, none of Mr. Clausen's activities violates Chapter 493, Florida Statutes. Therefore, the administrative complaint against Respondent should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED: That the Department of State, Division of Licensing, enter a Final Order finding that Respondent has not violated Chapter 493, Florida Statutes, or Chapter 1C-3.122(2), Florida Administrative Code, and that the petition be dismissed. DONE and ENTERED this 30th day of December, 1994, in Tallahassee, Florida. DIANE CLEAVINGER 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 30th day of December, 1994. APPENDIX TO CASE NO. 94-0853 The facts contained in paragraphs 4 and 6 of Petitioner's Findings of Fact are adopted in substance, insofar as material. The statements contained in paragraphs 1, 5 and 7 of Petitioner's Proposed Findings of Fact were subordinate. The statement contained in paragraph 3, of Petitioner's Proposed Findings of Fact were not shown by the evidence. The facts contained in paragraphs 3, and 4 of Respondent's Proposed Findings of Fact are subordinate. The facts contained in paragraphs 1, 2, 5, 6, 7, 8, 9, 10, 11 and 12 of Respondent's Proposed Findings of Fact are either introductory or conclusions of law. COPIES FURNISHED: Kristi Reid Bronson Assistant General Counsel Department of State Division of Licensing The Capitol, M.S. #4 Tallahassee, Florida 32399-0250 John Wardlow Attorney at Law Post Office Box 84 Tallahassee, Florida 32302 Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399 Phyllis Slater General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399
The Issue Whether Michael Clay Bishop, d/b/a J and M Enterprises (“Respondent”), failed to secure the payment of workers’ compensation insurance coverage for its employees; and, if so, whether the Department of Financial Services, Division of Workers’ Compensation (“Petitioner” or “Department”), correctly calculated the penalty to be assessed against Respondent.
Findings Of Fact The Department is the state agency charged with enforcing the requirement of chapter 440, Florida Statutes, that employers in Florida secure workers’ compensation coverage for their employees. § 440.107(3), Fla. Stat. Respondent purports to be a “Private Common Law Non- Associated Unincorporated Business Trust Organization,” or “UBTO,” engaged in business in Florida.2/ Michael Clay Bishop is one of Respondent’s trustees. The nature of Respondent’s business was a disputed issue at the final hearing. Mr. Bishop testified that he performed handyman services, such as cleaning, yardwork, removal of old furniture, and repair of flood-damaged properties. The record contains Respondent’s business card, which Mr. Bishop provided to the Department’s Compliance Investigator, Carl Woodall, on January 31, 2017. The business card reads, “J & M Enterprises,” and advertises as follows: Quality repairs, restoration and remodels; paint interior/exterior, flooring, fencing, decks, crown molding, concrete. BIG OR SMALL WE DO IT ALL! The business card indicates the business is “Insured” and has “references available.” Mr. Bishop did not dispute that the business card belonged to Respondent, or that it accurately represented the services provided by Respondent. Respondent accepts monetary payments for work performed by check made out to J and M Enterprises.3/ Respondent maintains a business checking account in the name of J and M Enterprises to which Respondent deposits payments for services performed by Respondent. On January 31, 2017, Mr. Woodall encountered Mr. Bishop at a residence undergoing remodeling at 8623 Lagoon Drive in Panama City Beach. Mr. Woodall observed Mr. Bishop engaged in the act of filling cracks in a bar area of the residence with putty, presumably to prepare the surface for painting. Mr. Bishop testified that he was “cleaning some caulking that wasn’t done very well.” Mr. Bishop objected to characterization of his work as painting, or preparing the surface for painting. However, Mr. Bishop admitted that he was hired by Chris Roberts of Rainbow International as a subcontractor on the remodel. Mr. Woodall testified that he spoke with Chris Roberts on the date in question, who informed him that Mr. Bishop was hired to perform painting services on the remodel, and that he was compensating J and M Enterprises at the rate of $20 per hour for the painting services. Mr. Woodall’s notes, made on his Field Interview Worksheet, corroborate his testimony on these facts. Mr. Bishop’s testimony was neither credible nor reliable. It is inconceivable that Rainbow International hired Respondent to clean caulking at $20 per hour. The evidence supports a finding that Respondent is engaged in the business of residential painting, including preparation of surfaces for painting. It is uncontested that Respondent was not covered by workers’ compensation insurance at all times material hereto. Mr. Bishop testified that he was under a mistaken assumption that he was exempt from workers’ compensation insurance since he had no employees. However, at final hearing, he explained that he had been made aware that the requirement applies to any business in the construction industry with one or more employees. Mr. Woodall personally served Mr. Bishop with a Stop-Work Order and Request for Production of Business Records on January 31, 2017. At all times material hereto, Mr. Bishop maintained that Respondent’s business records were confidential, pursuant to the business trust agreement, and that to disclose those business records would violate his obligation to Respondent’s trustees. A document purported to be Respondent’s trust indenture was admitted in evidence as Respondent’s Exhibit R4. Article 29, Section 29.1, of the Indenture is titled, “Disclosure of Documents,” and provides as follows: NO document, record, bank account, or any other written information dealing with the internal affairs or the operations of this UBTO shall be disclosed to any third party, except upon formal written board approval of the Board of Trustees given at a regular or special meeting of the Board of Trustees as set forth above. Respondent did not comply with the Department’s request for business records, such as check stubs, bank statements, or tax returns, from which the Department could establish Respondent’s payroll for the audit period.4/ Department Penalty Auditor, Eunika Jackson, was assigned to calculate the penalty to be assessed against Respondent. Pursuant to section 440.107(7)(d), Florida Statutes, the Department’s audit period is the two-year period preceding the date of the Stop-Work Order. The audit period in this case is from February 1, 2015 through January 31, 2017. Respondent provided no evidence that Respondent was not engaged in business at any time during the audit period. Respondent’s trust indenture is dated January 19, 2012. Because Respondent provided no business records from which the Department could establish Respondent’s payroll for the audit period, Ms. Jackson imputed Respondent’s payroll, pursuant to section 440.112(2). Based upon Mr. Woodall’s observations of the work being performed at the jobsite, Ms. Jackson determined that the type of construction work performed was painting. Ms. Jackson consulted the Scopes Manual published by the National Council on Compensation Insurance (NCCI) and utilized classification code 5474, the general painting classification, for purposes of calculating the penalty. Ms. Jackson then applied the corresponding approved manual rates for classification code 5474 for the related periods of non-compliance. Ms. Jackson applied the correct approved manual rates and correctly utilized the methodology specified in section 440.107(7)(d)1. and Florida Administrative Code Rules 69L-6.027 and 69L-6.028 to determine the penalty to be imposed. Because Respondent did not provide records sufficient to determine its payroll during the audit period, Ms. Jackson correctly assigned the statewide average weekly wage (AWW) to Mr. Bishop, the only employee identified on the jobsite on the date in question. § 440.107(7)(e), Fla. Stat. Ms. Jackson likewise correctly utilized the AWW multiplied by two when applying the statutory formula for calculating the penalty to be assessed. See § 440.107(7)(d)1., Fla. Stat. On April 18, 2017, by certified mail, the Department served Respondent with an Amended Order of Penalty Assessment assessing a penalty of $30,600.44, which was fully imputed. Respondent made a payment of $1,000 to the Department which has been applied to the imputed penalty. The Department’s Penalty Calculation worksheet notes a balance due of $29,600.44.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Financial Services, Division of Workers’ Compensation, finding that Michael Clay Bishop, d/b/a J and M Enterprises, violated the workers’ compensation insurance law and assessing a penalty of $30,600.44. DONE AND ENTERED this 28th day of September, 2017, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 2017.
The Issue As to each case, whether the Respondents committed the offenses alleged in the respective administrative complaints and the penalties, if any, that should be imposed.
Findings Of Fact At all times pertinent to this proceeding, Respondent, Robert C. Seitz, held a valid Class "C" Private Investigator License, Number C88-00643 and Respondent, Investigative Services International, Incorporated (ISI), held a valid Class "A" Investigative License. Mr. Seitz is the president of ISI. All acts described in this Recommended Order committed by Mr. Seitz were in his capacity as an employee and officer of ISI. CASE NO. 95-3553 On December 30, 1994, Mr. Seitz executed a contract on behalf of ISI by which he agreed that his agency would perform investigative services for Jacqueline Alfaro. The nature of the investigation was the surveillance, videotaping, and documentation of the activities of Ms. Alfaro's sister-in-law. Ms. Alfaro suspected that her sister-in-law was engaged in an extramarital affair and wanted proof of her suspicions to give to her brother, who was incarcerated on federal drug charges. Ms. Alfaro gave to Mr. Seitz a retainer of $1,000 in cash, as requested by Mr. Seitz. The contract for services executed by Ms. Alfaro authorized ISI to bill for the expenses of computer research. Petitioner asserts that Ms. Alfaro provided Mr. Seitz with all pertinent information that was required for the investigation and that additional computer research was not necessary. Mr. Seitz testified, credibly, that some computer research was appropriate to assist him in preparing for his surveillance of Ms. Alfaro's sister-in-law by identifying suspects and possible locations of meetings. Consequently, it is concluded that some of the computer research done by Mr. Seitz was appropriate. In addition to the computer research that was in furtherance of the investigation, Mr. Seitz conducted computer research on his own client. The computer research on Jacqueline Alfaro was inappropriate and was not in furtherance of the investigation of the sister-in-law. The records of ISI for the Alfaro investigation consists of a bookkeeping entry that merely reflects that expenses in the lump-sum amount of $100.00 were incurred for computer research. This record is insufficient to substantiate what was being billed. 1/ Mr. Seitz testified that his company's records of the expenses for the computer research excluded the time he spent researching his own client. This testimony is accepted and, consequently, it is concluded that Petitioner failed to establish by clear and convincing evidence that the bill to Ms. Alfaro 2/ included expenses for inappropriate computer research. The contract authorizes charges for mileage incurred outside of Dade County at the rate of 45 per mile. Ms. Alfaro was told by Mr. Seitz that she would not be charged mileage because the investigation would be exclusively within Dade County. The bill submitted to Ms. Alfaro included a charge for mileage of $33.75 incurred on January 5, 1995. This mileage was purportedly incurred for 75 miles driven by Mr. Seitz in Broward County. There was also a billing of $32.50 for one-half hour driving time on the same date. Respondent's testified that he was spending time on a weekend with his family in Broward County when he was summoned by Ms. Alfaro back to Dade County. He further testified that he billed for only the mileage he incurred while in Broward County traveling to Dade County. This explanation is rejected as lacking credibility for two reasons. First, January 5, 1995, fell on a Thursday, not on a weekend. Second, it is doubtful that Mr. Seitz would have traveled 75 miles going from Broward County to Dade County. It is concluded that Ms. Alfaro was inappropriately billed for the 75 miles that Mr. Seitz allegedly drove in Broward County on January 5, 1995. Petitioner did not establish that the billing of $32.50 for driving time on January 5, 1995, was inappropriate since that was for time spent driving within Dade County, Florida. Ms. Alfaro frequently spoke with Mr. Seitz about the investigation, requesting details. She came to believe that Mr. Seitz was not performing his investigation and sent her nephew to check on him. On different occasions, the nephew went to the locations where Mr. Seitz had told Ms. Alfaro he would be conducting a surveillance of the sister-in-law. The nephew reported to Ms. Alfaro that Mr. Seitz was not at those locations. On or about January 9, 1995, Ms. Alfaro instructed Mr. Seitz to terminate the investigation because her nephew caught his stepmother with another man. There was a dispute as to whether Ms. Alfaro requested a written report of the investigation and copies of video tapes taken during the investigation. Ms. Alfaro testified that she wanted a written report and copies of videotapes because she did not believe that Mr. Seitz had conducted an investigation. Mr. Seitz testified that she did not ask for a written report because she did not want her brother to know that she had been investigating his wife. This conflict is resolved by finding that Ms. Alfaro did ask for a written report of the investigation and that she wanted copies of any video tapes. This finding is reached, in part, because Ms. Alfaro clearly did not believe that Mr. Seitz had performed an investigation as he had verbally reported to her. A request for a written report would be consistent with that belief. The finding is also based on an evaluation of the credibility of the witnesses offering the conflicting testimony. On or about January 12, 1995, Mr. Seitz left Ms. Alfaro a handwritten note and $170.00 cash under the door of her business. The note reflected that the total of time and mileage for the investigation was $830.00. The $170.00 purported to represent the difference between the amounts incurred by Ms. Alfaro pursuant to the contract and the amount of the retainer. Ms. Alfaro requested an itemized statement to substantiate this billing. She never received a written report, any videotape, or an itemized billing. Mr. Seitz and ISI failed to maintain investigative notes of the surveillance activities on behalf of Ms. Alfaro. Mr. Seitz produced to Petitioner's investigator what purports to be a computer record of the charges incurred by Ms. Alfaro. The hourly rate specified by the contract was $65.00. The charges reflected by the computer record are as follows: A. 1-4-95 Computer Research $100.00 B. 1-5-95 Surveillance 130.00 C. 1-5-95 Travel Time 32.50 D. 1-5-95 Mileage (75 @ 45 ) 33.75 E. 1-6-95 Surveillance 325.00 F. 1-6-95 Travel Time 65.00 G. 1-7-95 Standby Time 65.00 $751.25 The computer records also reflected that the agency agreed to absorb taxes in the amount of $48.83. Mr. Seitz rounded these figures and determined that Ms. Alfaro was entitled to a refund of $250.00. Mr. Seitz testified that he actually returned to Ms. Alfaro the sum of $250.00 in the note he left for her on January 12, 1995. He testified that his note reflecting that the sum of $170.00 was being returned to her was an error on his part. Ms. Alfaro's testimony was that she was returned only $170.00. Since Ms. Alfaro's testimony is consistent with Mr. Seitz's handwritten note, the conflicting evidence is resolved by finding that Mr. Seitz returned to Ms. Alfaro the sum of $170.00. His testimony that he simply made a mistake as to the amounts due to be refunded is found to be credible and is, consequently, accepted. CASE 95-4775 At the times pertinent to this proceeding, Robin Bloodworth held a Class "CC" Private Investigator Intern license issued by Petitioner. Prior to January 17, 1995, Ms. Bloodworth was told by a friend of hers that he knew someone who might be interested in employing her. This friend asked her to fax to him a copy of her resume. On January 17, 1995, Ms. Bloodworth was contacted by telephone twice by Mr. Seitz. She faxed to him her resume in response to the request he made during the first conversation. He thereafter called a second time, at approximately 10:15 p.m. and asked whether she could be available for a surveillance the following Sunday (January 22, 1995). In response, Ms. Bloodworth told him that she could be available for that assignment on Sunday. On January 18, 1995, Ms. Bloodworth received another telephone call from Mr. Seitz. He asked if she could be on a surveillance by 11:00 a.m. that day in Hollywood, Florida. Ms. Bloodworth accepted that assignment after Mr. Seitz told her what he wanted her to do, thereby beginning her employment with ISI. Ms. Bloodworth did not meet Mr. Seitz in person until 6:30 p.m. on January 18, 1995. During that first meeting, Ms. Bloodworth gave to Mr. Seitz a copy of her Class "CC" Private Investigator Intern license and was told by him that he was going to fill out her sponsor forms and send them to the Petitioner. Mr. Seitz knew that Ms. Bloodworth was a novice investigator with little field experience, other than process serving. Ms. Bloodworth never actually saw any documentation from Mr. Seitz or ISI regarding forms pertaining to her employment that were required to be submitted to the Petitioner. She never received a copy of a letter notifying Petitioner that either Mr. Seitz or ISI intended to sponsor her. Prior to being employed by ISI, Ms. Bloodworth had held her Class "CC" Private Investigator Intern license for approximately six months and had conducted only two or three surveillances. Ms. Bloodworth received no formal training from ISI. During the course of her employment with ISI, which lasted approximately three months, she conducted approximately 35 investigations. Ms. Bloodworth was not directly supervised by Mr. Seitz or by anyone else while she was in the field conducting her investigations. Prior to undertaking an assignment, Mr. Seitz would explain to her the assignment and generally instruct her as to what she would need to do. He frequently told her to use her "judgment" as she was a "big girl". He told her that he did not have time to "baby-sit" her. Ms. Bloodworth had a cellular telephone at her disposal and she knew Mr. Seitz' pertinent telephone numbers at all times. She was instructed to only call him in the event of an emergency. The only time Mr. Seitz visited Ms. Bloodworth in the field was on one assignment for approximately an hour. That visit was prompted by her needing batteries for a camcorder. During the latter part of her employment with ISI, Ms. Bloodworth was told to contact Michael Graff, the lead investigator for ISI, and not Mr. Seitz. During her employment with ISI, Ms. Bloodworth was assigned to conduct an investigation in Haiti. Prior to being sent to Haiti, Ms. Bloodworth was briefed as to the assignment, which included instructions as to where to go, who to meet, and what to do. Ms. Bloodworth was able to contact ISI personnel by telephone. Petitioner does not regulate investigations outside of the United States. Ms. Bloodworth's official Class "CC" Private Investigator Intern application file as maintained by the Department of State, Division of Licensing, does not contain a notification that ISI or Mr. Seitz intended to sponsor her. This file does not contain any documentation relating to Ms. Bloodworth's hiring by ISI, her termination, or an intern biannual report. Mr. Seitz testified that he submitted to Petitioner a form notifying it that ISI intended to sponsor Ms. Bloodworth. He displayed to Petitioner's investigator a form that he represented was a file copy of the notification form. That form was dated January 13, 1995, which was four days before he first talked to Ms. Bloodworth and five days before he met her in person and received a copy of her license. He was unable to produce any other documentation as to this notification. Mr. Seitz's testimony as to this issue is rejected as lacking credibility. Mr. Seitz admits that ISI did not submit any documentation relating to the termination of Ms. Bloodworth's employment and it did not submit an intern biannual report that would have been due as a result of her employment having been terminated. Mr. Seitz testified that he did not file these reports when Ms. Bloodworth's employment was terminated because she threatened him and he was awaiting the results of a police investigation before filing the reports. 3/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order containing the findings of fact and conclusions of law contained herein. It is further recommended that Respondents, Investigative Services International, Inc., and Robert C. Seitz, be fined in the total amount of $1,600.00. DONE AND ENTERED this 22nd day of August, 1996, 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 22nd day of August, 1996.
Findings Of Fact Respondent, Heartland Private Industry Council (Council), is a thirty- four member council established under an interlocal agreement by five area counties in Central Florida. The counties are Polk, DeSoto, Hardee, Highlands and Okeechobee. The Council's office is located at 300 Parkview Place, Lakeland, Florida. The Council has entered into a contract with petitioner, Department of Labor and Employment Security, Division of Labor, Employment and Training (Division), under which it receives federal grant monies provided by the Job Training Partnership Act (JTPA). As is pertinent here, the Council used the funds to provide summer job training for disadvantaged youths. The Division is charged with the responsibility of ensuring that all grant moneys are properly expended. Under federal regulations, the Council was required to engage the services of an independent public accounting firm to perform a financial and compliance audit on its contract expenditures made during the fiscal period July 1, 1985 through June 30, 1986. During the period in question, the Council had total expenditures of approximately $7.9 million. Under the audit program developed by the accounting firm, the firm sampled and reviewed at random various expenditures. Among those reviewed were two checks dated August 23 and October 10, 1985 in the amount of $239 each payable to one Joyce Barber, a JTPA participant from the City of Auburndale. The expenditure was questioned, but not disallowed, on the ground the first check written to Joyce Barber had apparently been stolen and cashed by another person. A second check in the same amount was then issued to Barber. The auditors questioned whether, under these circumstances, the first expenditure was appropriate. In addition, the auditors noted a $13 mathematical error and recommended that amount be disallowed. Other than these two items, which totaled $252, there were no other proposed adjustments in the audit report. The audit report was forwarded by the Council to the Division on or about June 29, 1987. The report itself is not in evidence. The Division then reviewed the audit report and preliminarily concluded that both expenditures ($239 and $13) should be disallowed. After the matter could not be resolved informally, the Division issued proposed agency action in the form of a "Final Determination" on January 4, 1988. That prompted the Council to request a hearing to contest the action. Barber was one of approximately fourteen hundred youth participants during the summer of 1985 who received job training sponsored by the Council. In addition to their training, these youths were compensated by the Council for their services. There were several hundred employers in the five county area who were involved in the project. Because of the sheer number of participants and employers, the Council mailed its checks directly to the participants, including Barber. According to the Council's in-house certified public accountant (CPA), this was a reasonable manner of disbursing the payroll. The CPA also concluded that the Council's internal controls were adequate. After the checks had been mailed, the Council received a complaint that Barber did not receive her $239 check. It then requested that the Sheriff's office investigate the matter. Based upon that investigation, the Council concluded that the check had been stolen and cashed by another person, and it sent a second check to Barber. From this factual setting, it can be reasonably inferred that the money was either stolen or was not received by Barber. The Council could have obtained insurance to cover this type of loss. However, it would not be economically prudent to do so when comparing the money lost to the cost of a policy. The Council did not deny that a $13 mathematical error was made on one expenditure. Therefore, it is found that such an error occurred, and an adjustment in favor of the Division is appropriate. There are no Division or federal regulations governing the loss of grant monies under the circumstances that occurred here. However, the Division bases its disallowance on the theory that the contractor (Council) received no benefit from the first $239 check sent to Barber. The specific regulation which supports this theory was not cited or offered in evidence. Even so, the Council did not show what benefits, if any, it received from the lost moneys.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered requiring respondent to repay $252 in JTPA funds to petitioner. DONE and ENTERED this 16th day of March, 1989, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 16th day of March, 1989.
Findings Of Fact On or about January 25, 1983, Petitioner, Bruce Hahn, submitted an application for licensure as a Class A Private Investigative Agency to the State of Florida, Department of State, Division of Hearing. Thereafter, on April 5, 1983, he submitted an amendment to the application applying as well for a Class C Private Investigator's License. The Class A License was granted. On his application Petitioner indicated he had been arrested for disorderly conduct and assault but had not been convicted of either. Records of the Circuit/County Court for Broward County, Florida, reflect that he was arrested for armed robbery, a felony, in Pompano Beach, Florida, on or about February 15, 1981, but was tried on a lesser offense of assault, a misdemeanor. Adjudication of guilt was withheld, but Petitioner was sentenced to six (6) months report probation. Based on this, Respondent, on June 17, 1983, denied Petitioner's application for a Class C License. Grounds for denial cited the time were that Petitioner has been found guilty of the commission of a crime which directly relates to the business for which the license was to be held, regardless of adjudication, and the commission of an assault except in self-defense or the defense of a client, both of which related to his February 14, 1981 arrest. According to Pan Pingree, Respondent considered the court ruling on the assault a determination of Petitioner's guilt of a criminal charge relating to the business of private investigation because in that job, he would have to be involved with the public. Respondent considers the statutory grounds for denial, as above, as a legislative fiat to consider crimes of violence in determining whether an applicant is fit to hold a license. Petitioner's offense was considered to be a crime of violence based on the assault which is specifically listed in the statutes. In addition, it was considered that the job of private investigation involves stress situations and the licensing agency must be satisfied licensees can be depended upon to react properly. In making the decision to deny, Respondent carefully considered the arresting officer's report, the court charge, and the form on which the court listed its action withholding adjudication of guilt, and sentence. Petitioner contends he tried to submit his explanatory information to Respondent by phone, but admits he did not do so in writing. He contends he was interviewed by two (2) investigators to whom he told his story, who indicated to him there was no problem. Notwithstanding Petitioner's phone call to a secretary at the Division of Licensing and his attorney's phone call to Ms. Pingree (which she does not recall), there is no evidence that Respondent considered anything other than the documents referred to above in making its decision to deny him the Class C License. In authorizing the Class A, Agency License, Respondent concluded that since Petitioner would have to have a manager who had a Class C License for the agency, this would insulate the owner (Petitioner) from the public, providing a degree of protection to the public. At the time of the offense on which the denial was based, Petitioner was working for the Broward County (Florida) Building and Zoning office. At the time of the hearing, he was employed as an investigator for the Broward County Coroner. According to the Affidavit of Experience submitted with his application, Petitioner had previously been licensed as a Private investigator under State license #1052-A, doing business as Hahn Investigative Services, in Hollywood, Florida, during 1975 through 1977. On the night of the offense, Petitioner, who had just undergone a divorce and was feeling sorry for himself, contends he was called to meet a friend of his at the lounge outside of which he was arrested. Unfortunately, he had too many drinks without eating and, on the way to his car to go home, he got sick to his stomach. He went behind a dumpster to vomit. While he was doing this, he heard steps behind him and, knowing he was in an unsavory area, he became concerned. When he turned around, he saw two (2) men behind him and said to them, "I don't want to get my ass kicked and I'm drunk. Leave me alone." At this point, he raised his hands. On cross examination, Petitioner admitted he was so drunk on the night in question he does not remember what time he went to the dumpster. He could not even find his car. Based on this admission, it is most likely he could not remember his words with such clarity and it is so found. The arresting officer's report shows that when he arrived at the scene he observed an individual who matched the Petitioner's description, standing in the parking lot with his hands raised consistent with Petitioner's story. However, based on the report of another individual present, and not upon his own observation, he arrested the petitioner, not as the victim, but as the perpetrator of the offense. Petitioner contends that at the time he owned an $85,000.00 home and drove a Cadillac Seville to indicate he had no reason to steal, and he categorically denies he had a weapon or tried to assault or rob anyone. Though no weapon was found on the Petitioner, he does own one which, at the time in question, was in his nightstand at home. He does not now nor did he then have a permit to carry it. He was not carrying his wallet at the time of his arrest because, he contends, during the evening, he knocked over a chair in the bar and broke it and the bartender kept his wallet as security for the damage. Petitioner claims he has no drinking problem now. He also contends, and there was no evidence to show otherwise, that he has no other arrest record nor was any disciplinary action taken against him at work because of this. At the time of his plea of Nolo Contendere, the court case had been set for hearing on three different occasions all of which had been cancelled. The suspense, he states, was eating him up because in his mind he had done nothing wrong. It is his testimony that when he explained all this to the judge, he said he understood and it was Hahn's attorney who advised him to enter that plea. Though he was sentenced in July to six (6) months probation, he did so well, he was released from probation the day before Thanksgiving--somewhat early. If he is granted his Class C License it is his intention to form a partnership to perform star escort service and do missing children work.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED THAT Respondent deny Petitioner's application for a Class C Private Investigator's License. RECOMMENDED This 28th day of August, 1984, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1984. COPIES FURNISHED: The Honorable George Firestone Secretary of State Department of State The Capitol Tallahassee, Florida 32301 James V. Antista, Esquire Office of the General Counsel Department of State The Capitol Tallahassee, Florida 32301 Pam Pingree, Chief Bureau of Regulation and Enforcement Division of Licensing Department of State The Capitol Tallahassee, Florida 32301 Norman D. Zimmerman, Esquire 737 East Atlantic Boulevard Pompano Beach, Florida 33060
Findings Of Fact During April or May 1988, Respondent solicited business as a private investigator from two credit unions in Hillsborough County, Florida. He approached employees of the credit unions and held himself out as a private investigator by discussing repossession services he could provide. He distributed a brochure and introductory materials describing the fees charged and services provided by Recovery, which included missing persons, child custody, investigations, escorts, surveillance, as well as repossessions. According to two former employees of Recovery, these solicitations continued through the Summer of 1988. The materials distributed to these credit unions by Respondent included a purported license number A-8700255 for Recovery issued by Petitioner on February 26, 1988. In fact, this license was a forgery, and had never been issued to Recovery. The license number shown on this forgery is that of another private investigative agency, the Boucher Agency located in Lutz, Florida. Respondent employed Janice Boucher during April and May 1988, for the specific purpose of using her license to operate Recovery. During an investigation into these matters in May 1988, Respondent gave to Petitioner's special investigator, Daniel Cabrera, a business card showing the name of Recovery with Boucher's license number. The card states that Recovery is "licensed," and includes the name of Respondent, as chairman. Finally, Respondent's business card represents that Recovery is specializing in collateral recovery. Respondent was responsible for, and ordered another employee of Recovery to prepare a forged license for Recovery using Boucher's license. Respondent was the owner of Recovery, at all times material hereto. Boucher did not authorize or participate in this forgery. In May 1988, Respondent obtained a Hillsborough County occupational license for Recovery which states it is for a "private investigative agency, Lic. A-8700255." The private investigative agency number shown on this occupational license is for the Boucher Agency, not Recovery. Neither Respondent nor Recovery have ever been licensed by Petitioner to engage in the business of a private investigative agency, and have never possessed either a "Class A" private investigative agency license, or a "Class C" private investigator license.
Recommendation Based upon the foregoing, it is recommended that Petitioner enter a Final Order imposing an administrative fine in the amount of $2,000 on Respondent, Jack Warren. DONE and ENTERED this 14th day of March, 1989, in Tallahassee, Leon County, Florida. DONALD D. CONN 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 March, 1989. APPENDIX (DOAH CASE No. 88-4313) Rulings on Petitioner's Proposed Findings of Fact Adopted in Finding of Fact 6. Adopted in Findings of Fact 1, 4. 3-4. Adopted in Findings of Fact 1, 2. 5-6. Adopted in Finding of Fact 4. Adopted in Finding of Fact 3. Adopted in Findings of Fact 3,5. 9-10. Adopted in Findings of Fact 1, 4, but otherwise rejected as irrelevant. COPIES FURNISHED: R. Timothy Jansen, Esquire Department of State The Capitol Tallahassee, Florida 32399-0250 Jack Warren 1502 East Trampnell Road Plant City, Florida 33566 Ken Rouse, Esquire General Counsel Department of State The Capitol, LL-10 Tallahassee, Florida 32399-0250 The Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: State Road Number 688, also known as Ulmerton Road, is a major east- west arterial road in Pinellas County. The Paradyne Corporation owns property south of Ulmerton Road and the intervenors, the Millers and the Benjamins, own property located immediately adjacent and to the west of the Paradyne property. Located on the Paradyne property are six or eight commercial buildings, parking lots and a road which runs between Ulmerton Road and 126th Avenue, a county road. At the present time Paradyne employs approximately 1,700 persons who park approximately 1,400 cars per day in the parking lots located on Paradyne's property. On a form entitled "State of Florida Department of Transportation Driveway Permit," Paradyne requested "permission for the construction of a driveway(s) on Department of Transportation right-of-way" at State Road No. 688, Section No. 15120, Mile Post No. 6.350 in Pinellas County. The request was approved by the Department of Transportation on June 6, 1981. Attached to the approved permit were various conditions and stipulations and a sketch or drawing of the proposed construction. Paradyne constructed the connection with the Ulmerton Road light- controlled intersection, as well as a private road leading to it, in a manner whereby only vehicles utilizing the Paradyne property would have access to the intersection. The actual location or configuration of the connection on the State's right-of-way deviated somewhat from the location or configuration shown on the sketch or drawing attached to the permit. The permit issued to Paradyne in 1981 did not include any provisions regarding or sketches illustrating an access road on private property. The property owners adjacent to Paradyne, the intervenors herein, also desired a means of access to the light- controlled intersection on Ulmerton Road. Paradyne refused to allow intervenors to use the private road on its property. The intervenors' request to DOT for a separate connection to Ulmerton Road was denied for safety reasons. The DOT also denied the intervenors' request that a cease and desist order be issued that would require Paradyne to allow the intervenors the use of Paradyne's road. DOT's reason for refusing such a request was that it was beyond the jurisdiction of the DOT to order a 250- foot access road over the parties' private property. Apparently, the construction of a 250-foot joint use road was the subject of preliminary discussions between Paradyne and persons who had previously held an option to purchase the intervenors' land. However, as noted above, the permit was issued only to Paradyne and there is no mention therein of a 250-foot joint use drive on the private property of either Paradyne or the intervenors. Having failed in their attempts with Paradyne and the DOT to gain access to the Ulmerton Road light-controlled intersection, the intervenors filed an action in the Pinellas County Circuit Court seeking a declaratory judgment and a mandatory injunction requiring Paradyne to participate with them in the construction of a 250-foot joint use drive. The Circuit Court ordered Paradyne to so participate in accordance with the driveway permit and the DOT drawing. On appeal to the District Court of Appeal, Second District, it was concluded that there was substantial evidence to support the Circuit Court's finding that DOT intended that the owners of both parcels would have access to the light- controlled intersection. However, the appellate court found "that the circuit court violated due process of law because it did not have authority to order appellant to participate with appellees in the construction of the 250-foot-connector road. The permit, as issued, did not require a 250-foot connector road. The circuit court is only authorized to enforce the DOT permit under section 120.69. The authority to regulate connectors to state roads has been delegated to DOT pursuant to section 335.18, Florida Statutes (1981). Therefore, we reverse and remand to the circuit court to enforce the DOT permit pursuant to section 120.69, so both parcels will have access to the light-controlled intersection. Upon remand, DOT may intervene as a matter of right pursuant to section 120.69(1)(d), or be joined as an indispensable party based on its duties under section 335.18: It is possible that DOT will find that the intersection, as designed, does not meet the standards in section 335.18, Florida Statutes (1981). In this event, DOT should be allowed to re- design the connector road to meet the standards of section 335.18, and to have minimal impact on the property rights of appellant and appellees. In the event it becomes impossible to provide the parties access to the intersection as contemplated by DOT's permit, DOT has authority under section 335.18(4) to deny access and revoke the permit. Affirmed in part and reversed in part and remanded with instructions." Paradyne Corporation v. Miller, 455 So.2d 432, at 434 (Fla. 2nd DCA, 1984). On remand, the DOT intervened in the proceeding. By Order filed on December 23, 1985, the Circuit Court of Pinellas County noted that the intervenors herein and the DOT sought to present a redesign of the intersection and connector road and that Paradyne objected. The Court denied the proceedings sought by the intervenors herein and the DOT, concluding that "this hearing is premature in view of the fact that a new permit must be issued for a material change of the intersection, and that Defendant (Paradyne), in the issuance of a new permit has all the rights of objection and administrative process that it had under the first permit..." Irvin E. Miller, et al v. Paradyne Corporation, et al, Case No. 82-3441-8 (Circuit Court for Pinellas County, December 23, 1985). The instant "Alleged Violation of the Florida Statutes and Notice to Show Cause" is dated March 31, 1986. That document charges that the highway connection constructed by Paradyne is in violation of Section 335.18(3) and 335.18(1) for the reasons that: it was not constructed in accordance with the permit design plan to provide joint access to Paradyne and the intervenors' adjoining properties, and (b) a material redesign of the existing connection in accordance with an attached drawing is required due to disruption of traffic and safety hazards caused by the greatly increased numbers of vehicles using the road connection. Paradyne was ordered to comply or show cause why its connection permit should not be revoked and access denied to the connection. On the south side of Ulmerton Road, the DOT's right-of-way extends 38 feet from the berm of Ulmerton Road. There is no dispute over the fact, and petitioner so admits, that the connection Paradyne constructed on the State's right-of-way was not in accordance with the drawing attached to its 1991 permit. However, the DOT presented no evidence that it now desires Paradyne to alter the connection so as to be in compliance with the 1981 permit drawing. In late 1984, after the remand from the District Court of Appeal, Second District, the intervenors retained the DSA Group, formerly Diaz-Seckinger & Associates, Inc., to prepare a report on the joint use of improvements at the intersection of Ulmerton Road and the Paradyne entrance. The DSA Group conducted traffic studies and prepared a "Report on Existing Conditions and Joint Use Access Proposal at Ulmerton Road and Entrance to Paradyne." The report recommended a redesign and contained drawings for a major revision of the intersection actually on Ulmerton Road, the connection on the right-of-way and a 250-foot long joint access road on the private property of Paradyne and the intervenors. While DOT employees were consulted regarding this report and its recommendations and had some input during its preparation, there was no showing that Paradyne participated in the report or the recommended redesign of Ulmerton Road, the connection or the joint use drive. Indeed, according to the engineer responsible for the DSA report, the report and redesign were developed and submitted to the intervenors and the DOT "for their use in meeting and negotiating with the Paradyne. At the time we took the contract we were under the opinion that they were hopefully resolving things with the property owners and they wanted something to go to Paradyne as an offering of one alternative, frankly, with the expectation that there may be something coming back saying "Well, we need to modify this and this." As it turns out, this plan as of a year ago or over a year ago, it's the one that stands right now." (Transcript, pages 98 and 99). Apparently, the intervenors, prior to commissioning the DSA report, requested the DOT to perform a survey or study. DOT declined to do so on the ground that "this had to do with private drives, private property and it was DOT's position that we did not fund evaluations for access into private development." (Transcript, page 136). The redesign of the Ulmerton Road intersection and entrance to the Paradyne/Intervenors property, along with the 250-foot joint use road, recommended by the DSA Group is identical to the redesign required under specification (b) of the Notice of Violation and to Show Cause issued by the DOT. The drawing attached to the Notice to Show Cause is the drawing prepared by the DSA Group. Traffic has increased at the intersection of Ulmerton Road and the entrance to the Paradyne property. The traffic signal in the center of Ulmerton Road allows Paradyne employees traveling westward on Ulmerton to turn south into Paradyne's parking lots, allows exiting employees to turn westward or eastward and also allows traffic exiting from a development known as Tall Pines Estates on the north side of Ulmerton to turn east or west. During two peak traffic flow hours in 1981, 780 vehicles traversed the intersection straight through from east to west, and 235 westbound vehicles turned left or southward into the Paradyne parking lot from Ulmerton Road. In 1985, the through vehicles numbered 1,224 and the left-turning vehicles numbered 379 during the peak traffic hours. It was not established by the testimony and evidence that the increase in through traffic from east to west is the result of any increased activity on the part of either Tall Pines Estates on the north side of Ulmerton or Paradyne on the south side. The increased number of westbound, left-turning vehicles into the Paradyne parking lots causes some backup from the existing stacking lane during the morning and afternoon peak hours, thus causing some congestion on the north or westbound half of Ulmerton Road. The single, existing stacking lane for westbound, left-turning vehicles is approximately 120 to 150 feet long. A survey conducted in late 1984 demonstrated that for the morning peak period, the level of service was an "E", indicating forced flow with traffic backing up. In the afternoon peak period, the level of service was a "D", meaning that drivers had to wait two or three cycles to get through the intersection. The desirable or comfortable level of service is a "C", meaning that the motorist has to stop for only one change of lights. The DOT's minimum accepted design standard in an urban area is a level "D" service. In 1985, the actual accident rate in ratio to the critical accident rate slightly exceeded 1 in the area of the subject intersection. The recommendations of the DSA Group, and the redesign required by the DOT in its Notice to Show Cause, calls for the construction of a dual or double stacking area, 350 feet in length, for the westbound approach on Ulmerton Road and a widened receiving approach on the property to the south to accommodate the dual left-turning traffic. The plan also calls for two westbound turning lanes out of Paradyne property. The median barrier for westbound traffic on Ulmerton Road would need modification. In addition to the widened entrance on the private property to the south, the DSA design calls for the private access road to be extended to a point 250 feet south, with a fence or curb barrier to control the flow of traffic from Paradyne's parking lots at designated points into the access road. The access road would require approximately 22,700 square feet for a joint use area, with 13,980 square feet located on Paradyne's property and 8,750 square feet located on the intervenors' property. The joint use road could either be maintained as a private road pursuant to an agreement between the property owners or it could, perhaps, be dedicated to public use. There was no evidence as to whether Pinellas County would be agreeable to accepting the dedication and thereby becoming responsible for the road's maintenance. It is anticipated that this redesign, primarily because of the dual left turn lanes on Ulmerton Road, would improve the level of service in the morning peak hours to a level "D", and in the afternoon peak period to a level "C". The cost for construction on Ulmerton Road is estimated to be $310,000.00 and the cost for the private 250-foot long drive is estimated to be $50,000.000. In the opinion of the designer of the DSA plan, there is no practical method of design that would allow two separate accesses for Paradyne's and the intervenors' use. The provision of separate accesses would create a five-lead intersection which would cause "even more difficulties in traffic operations." (Transcript, page 86). The DOT's traffic engineer would not approve the traffic signal operation which would be required if there were separate access roads ingressing and egressing the two properties south of the subject intersection. All the proposed modifications at the approach to the property south of Ulmerton Road could be located on Paradyne's property. This would cause a slight offset of the intersection and would cause Paradyne to lose some property now used as a parking lot.
Recommendation Based upon the findings of fact and conclusions of law recited herein, IT IS RECOMMENDED THAT the "Alleged Violation of the Florida Statutes and Notice to Show Cause" be dismissed. IT IS FURTHER RECOMMENDED THAT said dismissal be without prejudice to the Department of Transportation to issue to Paradyne Corporation a new permit specifying the location and design it considers appropriate for Paradyne's connection to Ulmerton Road, said design containing specifications for construction on Ulmerton Road and its right-of-way, as well as any requirements at Paradyne's entrance beyond the DOT's right-of-way deemed necessary to accommodate proper traffic flow and eliminate safety hazards. Should a new permit be issued, Paradyne should be afforded thirty (30) days within which to indicate its intent to either comply with the new permit terms and conditions or forfeit its access rights to Ulmerton Road. Respectfully submitted and entered this 4th day of February, 1987, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1709 The proposed findings of fact submitted by each of the parties have been fully considered and have been accepted and/or incorporated in this Recommended Order, except as noted below: Petitioner, Department of Transportation Rejected as irrelevant and immaterial to the issues in dispute. Respondent, Paradyne Corporation NOTE: The respondent's proposed "findings of fact" contain many statements which constitute legal argument or restate the legal positions of counsel for the parties. To that extent, those statements are not proper "findings of fact" and are rejected as factual findings. All but the last sentence is rejected. The documents referenced were not the subject of a proper request for official notice and, therefore, cannot be considered evidence in this proceeding. 4 and 5. Rejected. Under proper circumstances, as discussed in the conclusions of law, the term "connection" may include more than the DOT right-of-way. First sentence rejected as contrary to the evidence. Rejected as irrelevant and immaterial. Accepted only insofar as it correctly states that the responsibility for cost of construction on Ulmerton Road was not made an issue in this proceeding. Intervenors, Miller and Benjamin NOTE: The intervenors have filed a proposed recommended order which is not separated into "findings of fact" and "conclusions of law." To the extent that proposed factual findings are suggested in said filing, they are accepted with the exception of: Page 1, last sentence: Rejected; the document does not cite Paradyne for refusing the redesign. It simply states that a redesign is required. Page 4, next to last paragraph: Rejected as contrary to the evidence and contrary to the law. Page 5, 3rd paragraph: Rejected as erroneous legal conclusion insofar as "joint access" is intended to encompass a "joint use road" on private property. COPIES FURNISHED: Vernon L. Whittier, Esquire Haydon Burns Building M.S. 58 Tallahassee, Florida 32301-8064 John R. Bush, Esquire Bush, Ross, Gardner, Warren & Rudy 220 South Franklin Street Tampa, Florida 33602 Bruce Marger, Esquire Gardner, Reams, Marger, Davis, Piper & Bartlett, P.A. 1700 66th Street North - 501 Post Office Drawer 41600 St. Petersburg, Florida 33743 Kaye Henderson, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 =================================================================
