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
The Issue The issues in this case are whether the Respondent, the Department of State, Division of Licensing, should grant the Petitioner’s application for a Class “C” Private Investigator license and the application he filed as President on behalf of Info, Inc., for a Class “A” Private Investigative Agency license.
Findings Of Fact The Petitioner’s Class “C” Application The Petitioner applied for his Class “C” Private Investigator license on April 29, 1996. The application included the Petitioner’s Affidavit of Experience, which represented the following qualifying experience: employment with Telephonic Collections, Inc., from 3/91 to 9/93, during which employment the Petitioner devoted himself full-time to: “credit and asset investigations for recovery of debts; did skip-tracing full-time to locate subjects for debt recovery; utilized collection network and data base information.” Joseph Apter, President of Telephonic Collections, Inc., was listed as the individual who could verify this employment. employment with Telephonic Info, Inc., from 9/93 to 2/96, during which employment the Petitioner devoted himself full-time to: “administrative processing of investigation files; computer data base research and information recovery; computer preparing or reports; administrative dutys [sic] in investigation agency.” Joseph Apter, President of Telephonic Info, Inc., was listed as the individual who could verify this employment. employment as an auxiliary policeman with the City of West Haven, Connecticut, from 1965 to 1967, during which employment the Petitioner devoted himself part-time as follows: “received police training and performed assignments as required.” The Petitioner did not specify how much time was devoted to those duties. Captain Stephen D. Rubelman was listed as the individual who could verify this employment. Processing of the Petitioner’s Applications The Respondent began the process of verifying the information in the Petitioner’s Class “C” application on May 8, 1996, when it had referred the Petitioner’s fingerprint card to the Florida Department of Law Enforcement (FDLE) for a criminal history. The Respondent subsequently began its own verification of the information in the application by telephoning Apter. On June 26, 1996, the Respondent telephoned Apter, who verified the representations in the Petitioner’s application as to his experience with Telephonic Collections. Specifically, Apter stated that Telephonic Collections was a collection agency and that, for two years and five months, “100% of the applicant’s job was skiptracing [sic] individuals with delinquent accounts for the purpose of collecting the money owed to creditor.” Since this experience exceeded minimum requirements, no further verification was considered necessary, and the Respondent awaited the criminal history report from the FDLE. While the Respondent was awaiting the criminal history report from the FDLE, the Petitioner telephoned the Respondent to inquire as to the status of his application. On August 2, 1996, after being told the status, the Petitioner filed an application as president on behalf of Info, Inc., for a Class “A” Private Investigative Agency license. Eventually, on August 27, 1996, the Respondent received the Petitioner’s criminal history report from the FLDE, and it showed no reason not to grant the Petitioner’s applications. But earlier in August, Garry Floyd, an investigator in the Respondent’s Tampa office, learned that the Petitioner had filed applications for licensure. From prior dealings with the Petitioner and Apter, Investigator Floyd was unaware that the Petitioner had any qualifying experience. To the contrary, during a June 1994, investigation Floyd was conducting into unlicensed activities by employees of Telephonic Info, a licensed private investigation agency, the Petitioner emphatically denied that he was conducting investigations for the company. The Petitioner told Floyd that the Petitioner did not know how to conduct an investigation and did not want to know how; he said his role in the company was strictly administrative. Investigator Floyd obtained a copy of the Petitioner’s applications and saw the Petitioner’s representations as to his experience with Telephonic Info as well as Telephonic Collections. Since those representations did not comport with statements the Petitioner made to Floyd in June 1994, and did not comport with Floyd’s understanding as to the nature of the Petitioner’s experience, Floyd recommended on August 13, 1997, that the Respondent allow him to investigate further before approving the Petitioner’s applications and issuing any licenses. During his investigation, Floyd obtained statements from three individuals thought to be former employees of Telephonic Collections to the effect that they had no knowledge of any skip- tracing or other investigative work being conducted by the Petitioner. All three—C.J. Bronstrup, Jason Gillard, and Duncan Tate—thought that the Petitioner’s role was strictly administrative. Investigator Floyd also was aware that Apter’s applications for renewal of his Class “C” and Class “A” licenses had been denied due to what Floyd understood to be a felony conviction. (Although Apter’s testimony on the criminal charges against him was confusing, it would appear that he entered a plea on the felony charge, and adjudication was withheld. There apparently also were unconnected charges of perjury against him, but the disposition of those charges is not clear from Apter’s testimony.) Finally, Investigator Floyd also recalled that Apter once told Floyd that Apter thought he might have the beginnings of Alzheimer’s disease. For these reasons, Investigator Floyd recommended that the Respondent not credit the Petitioner with any qualifying experience from his employment with Telephonic Collections and also recommended that the representations on the application regarding that employment experience be considered fraudulent misrepresentations. When the Petitioner’s experience with Telephonic Collections was called into question, the Respondent attempted to verify the Petitioner’s experience with the City of West Haven Police Department but was unable to contact Stephen Rubelman at the telephone number given in the application. (According to the Respondent’s witness, “the phone rang off the hook.”) Then, on September 26, 1996, the Respondent telephoned the City of West Haven Police Department but was informed that the Respondent’s employment there between 1965 and 1967 was too old to verify. For these reasons, on September 27, 1996, Investigator Floyd recommended that the Respondent deny the Petitioner’s applications. On October 7, 1996, the Respondent mailed the Petitioner a letter giving notice of intent to deny the Petitioner’s applications. The letter was addressed to the Petitioner as president of INFO, Inc., at “13575 - 58 Street North, Clearwater, Florida 34620.” This mailing was returned undelivered on October 14, 1996, and the letter was returned undelivered. On October 15, 1996, the letter was re-sent in another envelope to “Post Office Box 1241, Largo, Florida 34649,” the mailing address on the Class “A” application. But apparently this time the mailing was returned for postage. The envelope was meter-stamped on October 26, and was received by the Petitioner on October 29, 1996. Verification of Petitioner’s Qualifying Experience The Petitioner did not directly dispute the testimony of Investigator Floyd as to what the Petitioner told him during Floyd’s June 1994, investigation. See Finding 5, supra. Instead, the Petitioner testified essentially that he in fact knew how to do skip-tracing and conduct investigations, having been taught and trained by Apter, and that the Petitioner had extensive experience doing skip-tracing and conducting investigations working for Telephonic Collections, which was a debt collection agency. While not directly disputing Floyd’s testimony as to what the Petitioner said to Floyd, the Petitioner alleged that Floyd may have been biased against him (due to his association with Apter) and suggested that Floyd knew or should have known that the Petitioner knew how to do investigation work because Floyd once asked the Petitioner to get some information for him and watched as the Petitioner placed a pretext call. Regardless of Floyd’s alleged bias or pertinent knowledge, it is found that Floyd accurately related what the Petitioner said to him and that the Petitioner’s purpose in making those statements was to avoid any further investigation into whether the Petitioner also was participating in unlicensed investigative activities during his employment by Telephonic Info. Even assuming that the Petitioner did skip-tracing and investigations for Telephonic Collections, it is clear from the testimony that the Petitioner did not do skip-tracing and investigations full-time, 100 percent of the time, as represented in the Class “C” application and as verified by Apter upon telephone inquiry. At final hearing, Apter testified that, when he verified the Petitioner’s experience for the Respondent on June 26, 1996, he did not mean that the Petitioner had no other duties but rather that the Petitioner did no collection work— i.e., the collection employees would take the information the Petitioner developed from his skip-tracing and asset location efforts and telephone the debtors to try to get satisfaction of the debt. Apter conceded that the Petitioner also had administrative duties. It is the Respondent’s policy, when an applicant has employment experience in a full-time job that involves some investigative work or training in addition to other duties, to credit the applicant for a pro rata amount of qualifying experience based on the quantifiable percentage of time devoted to the investigative work or training. It could not be determined from the evidence what percentage of the Petitioner’s work at Telephonic Collections was devoted to skip-tracing and investigation work and how much was administrative. The Petitioner and Apter testified that Apter trained the Petitioner in skip-tracing and investigation work and that the Petitioner did a substantial amount of skip-tracing and investigation work from March 1991, through September 1993; but both conceded that the Petitioner also had administrative duties. Apter did not break down the Petitioner’s time spent between the two. The Petitioner made a rough approximation that 25 percent of his time was spent on administrative matters. Sharon Jones, who worked for both Telephone Collections and Telephone Info, testified that the Petitioner did some skip-tracing work, as well as other duties, between June through September 1993, but she also could not estimate the percentage of time spent between the two. Other witnesses, including Bronstrup and Tate, were not aware that the Petitioner was doing any skip-tracing at all during the times they were working for Telephonic Collections. (Bronstrup worked there for approximately ten weeks between March and June 1993; Tate worked there from February 1993, through the time it became Telephonic Info in September 1993.) In partial response to the testimony of Bronstrup and Tate, the Petitioner suggested that it was not surprising for them not to be aware of the Petitioner’s skip-tracing and other investigative work because much of it was done at the Petitioner’s home after hours and because most of the employees were treated on a “need to know” basis. (The Petitioner also contended that Bronstrup did not spend much time at work for Telephonic Collections, as he also had another part-time job and did some personal investigation work on the side.) But even if it is true that the Petitioner did much of his skip-tracing and other investigative work at home after hours, only the Petitioner and Apter even knew about it, and the amount of time the Petitioner spent doing investigative work at home clearly was not verified. The Petitioner continues to maintain that he stopped doing any skip-tracing or investigative work after Telephonic Collections, the debt collection agency, ceased doing business and became Telephonic Info, the private investigation agency. As for the Petitioner’s experience as a part-time auxiliary policeman with the City of West Haven police department, the application does not give any indication as to how much time, if any, the Petitioner spent doing investigation work or being trained in that work. The Rubelman affidavit introduced in evidence to verify his experience likewise does not give that kind of information. It only states generally that the Petitioner received training in and assisted in police work. It does not indicate that any of the training or work was in investigations. It also indicates that no records of the Petitioner’s employment exist and that Rubelman cannot reconstruct even the months the Petitioner worked, much less what the work consisted of. Although it is not clear, at final hearing it appeared that the Petitioner may have been claiming credit for work he did collecting Telephonic Info’s accounts receivable. However, the amount of any such work was not quantified. It also appeared at final hearing that the Petitioner also was claiming credit for doing background investigations on prospective employees of Telephonic Info. However, the Petitioner also did not quantify the amount of any of this work. Alleged Fraud or Willful Misrepresentation The Petitioner stated in the Affidavit of Experience in his Class “C” application that the “approximate percentage of time devoted to” the qualifying skip-tracing and investigation duties listed for his employment with Telephonic Collections from March 1991 to September 1993 was “full time.” This statement clearly was false. All of the witnesses confirmed that the Petitioner spent at least some time doing administrative work; several thought that was all the Petitioner was doing. The Petitioner conceded in his testimony at final hearing that at least 25 percent of his time was devoted to administrative work, and it is found that the actual percentage probably was much higher. Unlike Apter, the Petitioner made no attempt to explain his false representation, and it is found to be a fraudulent or willful misrepresentation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of State, Division of Licensing, enter a final order denying both the Petitioner’s Class “C” license application and his Class “A” license application. RECOMMENDED this 22nd day of July, 1997, at Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1997. COPIES FURNISHED: Harry P. Schlenther 12155 Meadowbrook Lane Largo, Florida 33774 Kristi Reid Bronson, Esquire Department of State Division of Licensing The Capitol, Mail Station 4 Tallahassee, Florida 32399-0250 Sandra B. Mortham, Secretary Department of State The Capitol Tallahassee, Florida 32399-0250 Don Bell, General Counsel Department of State The Capitol Tallahassee, Florida 32399-0250
Findings Of Fact At all times material hereto, Respondent has been licensed as a Class "C" private investigator and Class "MA" agency manager, having been issued licenses numbered C-0002856 and NA-8600240, respectively. On or about November 10, 1988, Respondent was engaged in an investigation and surveillance involving Joseph King to determine if King was disabled for purposes of a worker's compensation claim which was being disputed by the insurance carrier. As a result of Respondent's investigation, King was eventually denied certain benefits which he would otherwise have received. Respondent was performing this work through the Hillsborough County branch office of TRACE, Inc., a licensed private investigative agency which he managed. He was accompanied in this investigation and surveillance of King by two other licensed private investigators. During the course of this investigation,and surveillance, King became aware of Respondent and the other two investigators who were following him. He confronted one of the investigators named Tony Hobbs, and after it became apparent that King was preventing Hobbs from leaving, Respondent came to his aid and attempted to calm down the situation. King continued to refuse to allow the investigators to leave, and eventually Deputy Sheriffs arrived and secured Hobbs' release. At hearing, Mr. and Mrs. King both testified that Respondent and the other investigator, Hobbs, falsely identified themselves as federal agents who were allegedly involved in an undercover drug investigation. Respondent denies that he ever made such a representation to the Kings. Hobbs was not present to testify, but in a statement given to the Petitioner's investigator, John Matlack, in the regular course of his investigation of this incident Hobbs stated that he had been told by one of the Deputy Sheriffs that Respondent had made this statement. However, Hobbs was fired from TRACE, Inc., a couple of weeks after this incident, and therefore, has a motive for placing Respondent's license in jeopardy. Based upon the demeanor and testimony of Respondent and the Kings at hearing, as well as the motive which existed for the Kings to try to get back at Respondent for their loss of certain benefits resulting from his investigation, it is found that Respondent did not falsely identify himself as a federal agent at any time during the course of this investigation. Respondent was calm, orderly, logical, coherent and professional in his recollection of events, while Mr. King was aggressive and hostile towards Respondent. It was King who provoked the confrontation with Hobbs by restraining and preventing him from leaving. It was King who was angry with the investigators, including Respondent, and who allowed them to leave only after Deputy Sheriffs arrived. At hearing, it was King who was unclear in his recollection of specific details about the events of November 10, 1988, and he was clearly still angry with Respondent. The Petitioner also alleges that Respondent falsely identified himself as a federal agent to a neighbor of King, but that neighbor was not present to testify and his absence was not explained. Therefore, there is no competent substantial evidence in the record to support this allegation concerning a statement allegedly made by Respondent to King's neighbor. It is against the policy of Respondent's company, TRACE, Inc., for any agent to represent himself to be a federal agent, and such misrepresentation is a basis for termination. Respondent is well aware of this policy, and credibly testified that he did not violate it in his investigation of King.
Recommendation Based upon the foregoing, it is recommended that the Petitioner enter a Final Order dismissing the charge that Respondent violated Section 493.319(1)(i) Florida Statutes, as set forth in the Administrative Complaint. DONE AND ENTERED this 5th day of March, 1990 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 1990. APPENDIX Rulings on the Petitioner's Proposed Findings of Fact: Adopted in Finding of Fact 1. Adopted and Rejected in part in Findings of Fact 2-5. Rejected in Finding of Fact 6. Rulings cannot be made on the narrative statement filed by the Respondent on March 1, 1990, since it does not contain separately numbered proposed findings of fact and does not evidence that Respondent has provided a copy to counsel for the Petitioner. COPIES FURNISHED: Henri C. Cawthon, Esquire Department of State The Capitol, Mail Station 4 Tallahassee, FL 32399-0250 Michael R. Heiland P. O. Box 152143 Tampa, FL 33614 Ken Rouse, Esguire General Counsel The Capitol, LL-10 Tallahassee, FL 32399-0250 The Honorable Jim Smith Secretary of State The Captol Tallahassee, FL 32399-0250
Findings Of Fact On December 22, 1987, the undersigned held a formal hearing in the underlying case, (DOAH Case No. 87-3084), and on February 4, 1988, issued a Recommended Order to the Florida Real Estate Commission in which it was concluded that the Petitioners had violated various provisions of the Florida Statutes and that disciplinary action was appropriate. Specific disciplinary action was recommended as to each Petitioner. In its Final Order, predicated upon the above mentioned Recommended Order, the Commission adopted the undersigned's Findings of Fact and Conclusions of Law but found the recommendation for punishment as to both Petitioners was inadequate. The Commission increased each period of suspension, rejected the recommendation for stay and automatic remission as to the suspensions, and imposed an administrative fine on each Petitioner. Thereafter, Petitioners appealed the Final Order to the Second District Court of Appeal which, in an opinion filed February 17, 1989 affirmed the Commission's findings of guilt but reversed the penalties imposed by the Commission and remanded with instructions to approve the Hearing Officer's recommended penalties. It is on the basis of this appellate action that Petitioners, claiming to be prevailing small business parties, initiated the instant action. Petitioners are requesting attorney's fees in the amount of $5,261.28 for the appellate action which resulted in the District Court of Appeals reducing the penalty imposed by the Commission to that recommended by the Hearing Officer. This fee and cost figure is the cumulative of charges incurred and represented on 11 monthly billing statements starting 06-01-88 and extending through 04-01-89. Only the last eight, starting with the 09-01-88 billing, state the hours spent providing service. The Florida Legislature has defined a "prevailing small business party" at Section 57.111(3)(c), Florida Statutes.
The Issue The ultimate issue for determination at final hearing was whether Respondents committed the offenses set forth in the administrative complaints, and if so, what disciplinary action should be taken against Respondents' licenses.
Findings Of Fact Frank Wallberg was going through a divorce and wanted a background investigation on his wife's attorney. On June 19, 1992, he went to the office of South Florida Detective Bureau, Inc. (Respondent Bureau) and specifically requested the services of William Polero (Respondent W. Polero) who he had met a few years prior to this. Respondent Bureau's secretary contacted Respondent W. Polero by telephone, and Wallberg explained to him what he wanted. Respondent W. Polero agreed to perform the background investigation on the attorney, requiring Wallberg to first pay a $1,500 retainer which he was to bring to Respondent W. Polero's home, approximately two blocks from Respondent Bureau's office. As agreed, Wallberg met Respondent W. Polero at his home and gave him a check for $1,500 as a retainer, made payable to Respondent Bureau. For the $1,500 Respondent W. Polero indicated that a complete written report on the attorney could be performed. Wallberg provided Respondent W. Polero with the attorney's complete name, address and telephone number. Respondent W. Polero made several telephone calls while Wallberg was at his home, attempting to obtain information on the attorney but all were unsuccessful. Approximately two days later, Wallberg contacted Respondent W. Polero inquiring about the progress of the investigation. Respondent W. Polero indicated that he was waiting for responses from inquiries and to contact him again that following Friday. Wallberg called back as directed. Respondent W. Polero indicated that after searching public records and court records and contacting The Florida Bar and other attorneys, the attorney had nothing irregular in his background. Feeling that he had not gotten his money worth, Wallberg questioned the cost of the investigation. Respondent W. Polero responded that there was nothing else to report, so there was nothing to report in writing and that the cost of the investigation was $1,500. By that time, the $1,500 check had been cashed. Being very disappointed, on or about July 11, 1992, Wallberg contacted another investigative agency, the Wackenhut Corporation, and obtained their services. He provided Wackenhut's investigator, John Rose, with the same information that he had provided Respondent W. Polero, i.e., the attorney's name, address and telephone number. On July 13, 1992, Rose began his investigation. By July 15, 1992, Rose had completed his investigation and prepared an 18 page written report with numerous exhibits attached. His report reflected the numerous sources he utilized, which included researching public records at the Dade County Courthouse, records maintained by the State of Florida, Department of Highway Safety and Motor Vehicles, including vehicle and driver license information, criminal records maintained by Dade County Corrections and Rehabilitation Department and public records of The Florida Bar. Through these sources, Rose was able to obtain a plethora of information on the attorney, including a history of federal and state tax liens having been filed against the attorney's property, criminal arrests and convictions, and disciplinary action against the attorney by The Florida Bar, with the specifics thereon. With his written report, Rose submitted an itemized invoice dated July 15, 1992, for his services, totaling $650.30. The invoice reflected that he had expended 10 hours on the investigation (generally outlining what was done), at a charge of $60 an hour, equalling $600 for the time, and that there were $50.30 in additional costs ($27 document copies, $2 for parking and $21.30 for mileage). By letter dated September 23, 1992, which was mailed and faxed, Wallberg informed Respondents that he had obtained the services of Wackenhut Corporation and requested that they provide Wackenhut with all the information in their file when requested by Wackenhut. By fax transmission on that same date, Jamie Polero (Respondent J. Polero), President of Respondent Bureau and the son of Respondent W. Polero, responded indicating, among other things, that there was no new or different information from what Respondent W. Polero had provided him and that since Wallberg had not contacted them for almost three months, he had assumed that Wallberg did not wish to continue the investigation. This was the first time that Wallberg had had any contact with Respondent J. Polero. By letter dated September 24, 1992, which was mailed and faxed, Wallberg informed Respondent J. Polero of his dissatisfaction with the investigation performed by Respondent Bureau and requested a $1,350 refund of the $1,500 within 24 hours. Wallberg never received any refund. Several communications between Wallberg and Respondent J. Polero failed to resolve the dispute. Finally, Wallberg contacted State of Florida, Department of State, Division of Licensing (Petitioner) and filed a complaint. Respondent Bureau's investigative file for Wallberg consisted of nine pages, most of which were communications back and forth with Wallberg. Approximately eight hours were expended on Wallberg's case. Even though little investigative work was done, Respondent J. Polero admitted that most of it was performed by Respondent W. Polero, and not by himself. The investigative work performed by Respondents failed to meet industry standards in that the minimum investigation was not conducted, public records were not properly researched and false information was provided to Wallberg, their client. At all times material hereto, Respondent W. Polero was unlicensed. At all times material hereto, Respondent J. Polero was a licensed private investigator (Class "C" license) and a licensed recovery agent (repossessor) (Class "E" license). Also, at all times material hereto, Respondent Bureau was a licensed private investigative agency (Class "A" license) and a licensed recovery (repossession) agency (Class "R" license). No prior disciplinary action has been taken against Respondent J. Polero. Both Respondent Bureau and Respondent W. Polero have prior disciplinary history. In 1989, Petitioner filed administrative complaints against both Respondents for, among other things, unlicensed activity which resulted in the parties stipulating to a penalty of an administrative fine totalling $1,800, 2/ which was paid on or about August 30, 1989. 3/ Additionally, in 1989, Petitioner filed an administrative complaint against Respondent Bureau and in 1990 against Respondent W. Polero for unlicensed activity which resulted in the parties stipulating to an administrative fine of $2,000 4/ which was paid by Respondent Bureau on or about May 25, 1990. 5/ As a related issue to the 1990 complaint, on April 27, 1990, Petitioner issued a Notice to Cease and Desist to Respondent W. Polero's unlicensed activity-- performing private investigative work without a license and managing a private investigative agency without a license--and served him on May 8, 1990.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of State, Division of Licensing enter a Final Order: Suspending South Florida Detective Bureau, Inc.'s Class "A" private investigative agency license and Class "R" recovery (repossession) agency license for one year and imposing an administrative fine of $2,000. Suspending Jamie J. Polero's Class "C" private investigator license and Class "E" recovery agent (repossessor) license for one year 6/ and imposing an administrative fine of $2,000. Imposing an administrative fine of $2,000 against William Polero. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of March 1994. ERROL H. POWELL 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 March 1994.
Findings Of Fact During the period January 26, 1994, to September 28, 1994, in Broward County, Florida, Respondent performed the services of a private investigator without a valid Class "C" Private Investigator License. 1/ Petitioner is the agency of the State of Florida responsible for the licensure of persons providing private investigative, private security, and private repossession services in Florida pursuant to Chapter 493, Florida Statutes. Respondent first applied to Petitioner for licensure as a private investigator on October 4, 1994. At no time prior to that application was the Respondent licensed as a private investigator by the Petitioner. At all times pertinent to this proceeding, Respondent was employed by American Recovery Specialist of Fort Lauderdale, Florida (American Recovery). On January 1994, American Recovery was employed by Riverside National Bank (Riverside) to locate Ms. Chaan S. Capps and her 1993 Nissan Maxima that she had financed through Riverside. Respondent performed investigative services pertaining to this account with Riverside in January and February 1994. Matthew Ross is the boyfriend of Ms. Capps. Mike Levine and Matthew Ross are friends. On January 26, 1994, Respondent called Mike Levine pertaining to this investigation. During this telephone conversation, Respondent identified himself to Mr. Levine as a detective from the Metro-Dade Police Department and asked him questions about Ms. Capps. Frances Ross is the mother of Matthew Ross. On February 9, 1994, Matthew Ross found one of the Respondent's business cards in the gate of his mother's residence. The business card contained Respondent's name, the name of his employer, and his telephone number. The card also contained the handwritten notation "call ASAP." Mr. Ross called from his mother's house the telephone number listed on the business card and he spoke with the Respondent. Respondent told Mr. Ross during this telephone conversation on February 9, 1995, that he was an investigator with the Metro-Dade Police investigating the Chaan Capps case. The conversation between Respondent and Mr. Ross terminated when Mr. Ross became upset, handed the telephone to his mother, and walked out of the house. Respondent thereafter told Frances Ross that Ms. Capps was wanted by Metro-Dade Police and that he was investigating the case for Metro-Dade Police.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order that adopts the findings of fact and conclusions of law contained herein and imposes administrative fines against the Respondent as follows: An administrative fine in the amount of $100 for the violation of Section 493.6118(1)(g), Florida Statutes, as alleged in Count I of the Amended Administrative Complaint. An administrative fine in the amount of $500 for the violation of Section 493.6118(1)(i), Florida Statutes, as alleged in Count II of the Amended Administrative Complaint. An administrative fine in the amount of $500 for the violation of Section 493.6118(1)(i), Florida Statutes, as alleged in Count III of the Amended Administrative Complaint. DONE AND ENTERED this 14th day of November, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 1995.
Findings Of Fact Since 1972, petitioner Dennis F. Darnell has been in the tow truck business. He owns and operates one such truck. In addition to towing disabled cars to garages, petitioner has had five years' experience in locating and repossessing all types of vehicles. Typically, a financial institution would engage him to retrieve an automobile from a borrower in default, after telephoning the borrower that a tow truck was coming. In such cases, the lender furnished petitioner a "route sheet" with the name and address of the borrower and a description of the car. At one time or another, petitioner has worked in this way for every bank in Marion County. Petitioner has also been hired by private investigators to tow away vehicles the investigators had already tracked down. Occasionally, petitioner himself has used information obtained from utility companies, the courthouse and the post office to locate vehicles for repossession. In the winter of 1979, Mr. Reister, an employee of the respondent, told petitioner that petitioner needed a license in order to continue to do the work he had been doing for the banks. This was the first petitioner had heard of any such requirement. He agreed to stop working for the banks until he obtained a license and asked Mr. Reister to send him application forms. One week after he received the forms, petitioner submitted the completed forms to respondent. From the time he spoke to Mr. Reister until the time of the hearing, petitioner did not tow any repossessed cars for banks. On receiving respondent's letter of disapproval, petitioner retained counsel who requested a formal administrative hearing. Respondent referred petitioner's counsel's request for an administrative hearing to the Division of Administrative Hearings.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent grant petitioner's application for private investigative agency license, DONE and ENTERED this 4th day of February, 1980, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1980. COPIES FURNISHED: Daniel L. Hightower, Esquire 116 South East Fort King Street Ocala, Florida 32670 William J. Gladwin, Jr., Esquire Department of State Room 1801, The Capitol Tallahassee, Florida 32301
Findings Of Fact On January 15, 1987, the Division received Petitioner's application for a Class "CC" Private Investigator Intern License. The Division issued Petitioner's "CC" Intern's License on March 19, 1987. On October 12, 1987, the Division received Petitioner's application for an upgrade to a Class "C" Private Investigator's License. Included with the application was a Completion of Sponsorship Letter reflecting a total internship of twenty-three months, and a letter from Troopers International Security Corp. reflecting investigative and bodyguard experience from May 1976 to June 1979. The Division issued the Class "C" license on December 14, 1987. On February 13, 1989, the Division filed an Administrative Complaint seeking to revoke Petitioner's Class "C" license based on two violations of Section 493.319(1)(c), Florida Statutes (1989), conviction of crimes directly related to the business for which the license is held. On April 13, 1989, prior to final disposition of the Administrative Complaint seeking to revoke Petitioner's Class "C" license, he applied for a Class "A" Private Investigative Agency License. A Final Order revoking Petitioner's Class "C" license for the criminal violations was entered on June 29, 1989. On July 10, 1989, eleven days after revocation of the Class "C" license, the Division issued Petitioner's Class "A" agency license. Petitioner subsequently filed a Notice of Appeal of the Final Order revoking his Class "C" license. On February 27, 1990, the parties entered into a Stipulation and Agreement wherein Petitioner would withdraw his appeal and be allowed to apply for a Class "C" Private Investigator's License. The Division stipulated that it would not take disciplinary action against Petitioner's Class "A" agency license based solely upon the criminal convictions, and Petitioner would be placed on probation for a period of one year. The parties stipulated that Petitioner would also be allowed to apply for a Class "G" Statewide Gun Permit on September 1, 1990. The agreement also provided that the Division would not deny Petitioner's Class "C" license application based solely upon his 1988 misdemeanor convictions. On April 3, 1990, Petitioner applied for a Class "C" Private Investigator License. The Division of Licensing investigated Petitioner's experience background and concluded that Petitioner did not have the required experience. By letter dated July 13, 1990, the Division informed Petitioner he did not have the required two years experience and gave him thirty days to respond with additional information. Petitioner did not respond in writing within the thirty day period. By letter dated August 30, 1990, the Division informed Petitioner his Class "C" application was denied based on his failure to respond to the letter of July 13, 1990, and because he did not have two years of verifiable experience as required by Section 493.306(4), Florida Statutes. Petitioner obtained the Class "A" license mentioned above in order to be better able to pursue a full time career as a private investigator. Petitioner also abandoned his furniture refinishing business in order to operate the private investigation agency. The abandonment of the furniture refinishing business was sometime prior to the revocation of Petitioner's Class "C" license in 1989. Much of the same experience that was listed on Petitioner's 1987 application was also listed on his 1990 application. The July 13, 1990, letter from the Division of Licensing proposing to deny Petitioner's application states that the basis for denial is Petitioner's failure to demonstrate the required experience. The denial letter also states that much of the experience listed by Petitioner cannot be credited as qualifying experience because it was obtained under circumstances which required the Petitioner to have certain licenses that he did not have.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Division of Licensing issue a Final Order in this case denying the Petitioner's application for a Class "C" license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of March 1991. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of March 1991.
The Issue Whether Respondent committed the violation of Section 475.25(1)(m), Florida Statutes, alleged in the Administrative Complaint? If so, what disciplinary action should be taken against him?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is a Florida-licensed real estate salesperson, and derives a substantial portion of his income from real estate-related activities. Respondent holds License No. 0648469. He received his license after passing the real estate salesperson licensure examination on March 17, 1998. Initially, his license was inactive. Since April 3, 1997, however, it has been in active status. During this period of time, Respondent has been associated with L. B. Slater and Company, Inc., an owner/developer headquartered in Hollywood, Florida. In the 1970's and 1980's, prior to obtaining his real estate salesperson license, Respondent was a defendant in several criminal proceedings. His legal problems stemmed from his use of alcohol and drugs. On or about October 12, 1976, in Broward County Circuit Court Case No. 75-5275CF, Respondent entered a plea of no contest to one count of threatening to destroy property, a lesser included offense of the crime with which he had been originally charged: discharging a destructive device. Adjudication of guilt was withheld, and Respondent was placed on probation for three years. On or about April 5, 1984, in Broward County Circuit Court Case No. 84-1108CF, Respondent entered a plea of no contest to one count of possession of cocaine. Adjudication of guilt was withheld, and Respondent was placed on probation for two and a half years. On or about May 19, 1985, in Broward County Circuit Court Case No. 84-11197CF, Respondent entered a plea of no contest to two counts of aggravated assault on a law enforcement officer. Adjudication of guilt was withheld, and Respondent was placed in a community control program for 18 months. On or about June 26, 1985, in Broward County Circuit Court Case No. 84-1108CF, Respondent entered a plea of guilty to a charge that he had violated his probation. Respondent's probation was revoked, and he was placed in a community control program for a period of 18 months. In or about 1986, Respondent decided that he needed "to turn [his] life around." He began attending Alcoholics Anonymous and Narcotics Anonymous meetings, 1/ and was successful in his efforts to end his reliance upon alcohol and drugs. He has not used drugs or alcohol since July 28, 1986. During this period of sobriety, Respondent has been a productive and law abiding member of society. Having fully rehabilitated himself, Respondent, on or about January 28, 1997, filed with the Department an application for licensure as a real estate salesperson, which contained the following signed and notarized "Affidavit of Applicant": The above named, and undersigned, applicant for licensure as a real estate salesperson under the provisions of Chapter 475, Florida Statutes, as amended, upon being duly sworn, deposes and says that (s)(he) is the person so applying, that (s)(he) has carefully read the application, answers and the attached statements, if any, and that all statements are true and correct, and are as complete as his/her knowledge, information and records permit, without any evasions or mental reservations whatsoever; that (s)(he) knows of no reason why this application should be denied; and (s)(he) further extends this affidavit to cover all amendments to this application or further statements to the Division or its representatives, by him/her in response to inquiries concerning his/her qualifications. Item 9 on the Department form that Respondent used to apply for licensure read as follows: Have you ever been convicted of a crime, found guilty , or entered a plea of guilty or nolo contendre (no contest), even if adjudication was withheld? This question applies to any violation of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. If you intend to answer "NO" because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, or applicable law of another state, you are responsible for verifying the expungement or sealing prior to answering "NO." 2/ If you answered "Yes," attach the details including dates and outcome, including any sentence and conditions imposed, in full on a separate sheet of paper. Your answer to this question will be checked against local, state and federal records. Failure to answer this question accurately could cause denial of licensure . If you do not fully understand this question, consult with an attorney or the Division of Real Estate. In response to the question asked in item 9, Respondent knowingly and intentionally checked the box marked "No," notwithstanding that he had previously pled no contest to criminal charges in Broward County Circuit Court Case Nos. 75- 5275CF, 84-1108CF, and 84-11197CF. In answering the question in the negative, Respondent did not intend to mislead or deceive those who would be reviewing his application about his past, nor did he act with reckless disregard for the truth. At the time he answered the question, Respondent had not forgotten that he had entered pleas of no contest in Broward County Circuit Court Case Nos. 75-5275CF, 84-1108CF, and 84- 11197CF; however, he thought, based upon what he had been told by his criminal defense attorney approximately 11 years earlier, that the records of these criminal proceedings had been sealed and that therefore he could lawfully respond to the question in the negative. Had he known that he was required to disclose the pleas he had entered in Broward County Circuit Court Case Nos. 75-5275CF, 84-1108CF, and 84-11197CF, he would have done so. It was not unreasonable for Respondent to believe that, in responding to this question, he was not obligated to make such disclosure, particularly in light of the language in item 9 clearly suggesting that an applicant could "answer 'NO' because . . . the records [of the criminal prosecution of the applicant] ha[d] been expunged or sealed by court order." Respondent had already been told by an attorney that the records in Broward County Circuit Court Case Nos. 75-5275CF, 84-1108CF, and 84-11197CF had been sealed, and he saw no need to, and therefore did not, obtain any further verification of the "sealing." He assumed that the Department would conduct the "check" of "local, state and federal records" it indicated, in item 9, it would perform and that, if such a "check" revealed that his attorney had provided him with erroneous information concerning the "sealing" of the records in Broward County Circuit Court Case Nos. 75-5275CF, 84-1108CF, and 84-11197CF, the Department would bring the matter to his attention before acting on his application. Respondent did not receive any pre-licensure correspondence from the Department advising him that there was any problem with his application. As noted above, the Department, on March 17, 1998, issued him a real estate salesperson license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Commission issue a final order dismissing the Administrative Complaint issued against Respondent in the instant case. DONE AND ENTERED this 11th day of December, 1998, in Tallahassee, Florida. STUART M. LERNER 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 Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 1998.
