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.
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 pertinent to the issues herein, the Department of State, Division of Licensing, (Division), was the state agency responsible for the licensing of private investigators in Florida. On or about February 26, 1992, Petitioner herein, Lyman S. Bradford submitted to the Division an application for a Class "A" Private Investigative Agency license. On the same day, he also submitted an application for a Class "C" Private Investigator's license. In Section 12(a) of the former application and Section 7(a) of the latter, Petitioner indicated he had been convicted of attempted possession of cocaine, a misdemeanor, in 1988. He further indicated probation had been completed. On the basis of her analysis of Petitioner's applications, on March 12, 1992, Joni Rozur, the Division's reporting representative, recommended both applications be approved based on Petitioner's previous licensure as a Class "C" licensee, and noted that his experience met or exceeded the statutory requirements. She also noted, however, that approval was pending receipt of a criminal history report. When that record was received by the Division, it reflected that Petitioner had been arrested in September, 1988 for failure to appear for trial on the attempted possession charge and when brought before the court on October 20, 1988, pleaded not guilty. In November, 1988, however, Petitioner changed his plea of not guilty to nolo contendere and as a result, adjudication of guilt was withheld and he was placed on probation for 6 months with 15 hours community service, and ordered to pay costs. On January 5, 1989, Mr. Bradford failed to meet with his probation officer as ordered and he was brought before the court on February 15, 1989 for a preliminary hearing on a charge of violation of probation. Bond was set at $2,000.00. When he appeared in court on April 12, 1989 on the violation of probation charge, Petitioner pleaded not guilty and hearing was set for May 10, 1989. On that date, Petitioner did not appear and after several other hearings, on June 2, 1989, the judge released Petitioner from his bond on his own recognizance. At a hearing on the violation of probation charge held on August 2, 1989, Petitioner was found guilty and his prior probation was revoked. By way of sentence, he was placed on an additional 6 months probation with conditions. Court action, mostly involving Petitioner's motions for continuance, was periodic for a while, but after a motion to set aside his prior plea to the charge was denied, on December 27, 1990 Petitioner entered a plea of guilty to and was found guilty of violation of probation. He was placed on a new period of probation for 1 year with 300 hours of community service; ordered to undergo drug evaluation and treatment as necessary; ordered to be subjected to random urine testing; and ordered to serve 1 year in jail (suspended). His prior probation was revoked. The criminal information relative to Petitioner which Ms. Rozur relied on to change her recommendation to denial also included Petitioner's arrest on September 14, 1989 on a charge of trafficking in cocaine. Petitioner was tried before a jury in circuit court on that charge on August 21, 1991, and after a trial on the merits, pursuant to his plea of not guilty, was found not guilty. The evidence put before the jury during that trial consisted of the testimony of the two arresting officers who indicated they had observed the transaction and seized a substance at the scene later identified as cocaine; that of the Petitioner's co-actor in the supposed sale; and that of the confidential informant who set up the controlled buy. The evidence, as proffered through the testimony of Deputy Martinez who was present at the scene, indicated that a confidential informant had reported that a sale of cocaine, involving the Petitioner, would take place on an evening in September, 1989. After the confidential informant was given authority to set it up, the Petitioner did not appear and the officers left. Supposedly, Petitioner did appear later and when the informant called the officers again, he was told to set the buy up again another time. The second buy, at which Petitioner was allegedly the broker between the dealer and the confidential informant, took place in the parking lot of a motel in West Palm Beach on September 14, 1989. The informant was fitted with a radio transmitter for recording the conversations among the parties but it failed to work. Nonetheless, Martinez claims he saw Petitioner and his partner meet with the informant outside the motel room and the other officer purportedly overheard their conversation through the closed window. When the parties moved around to the side of the building out of sight and hearing, the two officers, accompanied by a drug detection dog, came out and arrested Petitioner and his associate. During the course of the arrest, cocaine was found both on the associate and wrapped in a pillow case in the back seat of the associate's car. Petitioner had no cocaine in his possession. On the basis of the above information relating to the Petitioner's original conviction, the subsequent violation of probation charge, and the arrest for but acquittal of a charge of trafficking in cocaine, the Division, on May 13, 1992, denied both applications by the Petitioner alleging that his criminal record, as cited, was clear and convincing evidence of a lack of good moral character. The Hearing Officer, however, over strenuous objection of counsel for Respondent, declined to consider as evidence any matters relating to the Petitioner's arrest for trafficking in cocaine on the basis that the acquittal of that offense came after a trial on the merits before a jury subsequent to a plea of not guilty. Under those circumstances, the Hearing Officer would not permit the Division to present evidence regarding the alleged commission of an offense of which the Petitioner had been found not guilty. In retrospect, however, there is some question as to whether or not that evidence should have been considered. At the hearing, Petitioner presented 4 letters from prominent attorneys in practice in southeast Florida going back to 1982 and 1987 through 1991, commenting on his excellent investigative work. In addition, Petitioner also presented 9 letters of recent date from various individuals including a detective with the Palm Beach County Sheriff's Office, the Directress of his church's outreach ministry, the Chief of Police for Palm Beach Gardens, attorneys, a retired highway patrolman, a recovery agent, the assistant manager of the local American Cancer Society unit, and a fire battalion chief, all of whom have known the Petitioner for several years. In these letters, he is described as professional and thoroughgoing, capable, progressive, charitable, efficient, competent, trustworthy, conscientious, and possessed of good moral values and integrity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered by the Division of Licensing denying Petitioner's applications for a Class "A" Private Investigative Agency License and a Class "C" Private Investigator License at this time. RECOMMENDED this 30th day of September, 1992, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 September, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-3631S The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Accepted and incorporated herein. Accepted and incorporated except for the last sentence which is rejected. Accepted and incorporated herein. Accepted but as a comment on the evidence. Accepted. FOR THE RESPONDENT: 1. & 2. Accepted and incorporated herein. 3. & 4. Accepted and incorporated herein. 5. - 8. Rejected. Accepted. Accepted. COPIES FURNISHED: Henri C. Cawthon, Esquire Department of State Division of Licensing The Capitol, M.S. #4 Tallahassee, Florida 32399-0250 Thomas C. Gano, Esquire Lubin & Gano, P.A. Second Floor, Flagler Plaza 1217 South Flagler Drive West Palm Beach, Florida 33401 Hon. Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater General Counsel The Capitol, PL-02 Tallahassee, Florida 32399-0250
Findings Of Fact The only issue raised as to whether the Petitioner's application for a private investigative agency license should be granted, is whether or not he has the experience required by law. The Petitioner has received an Associate of Arts degree from Palm Beach Community College. His primary area of study was law enforcement, including courses in search and seizure and investigations. In 1974 the Petitioner received a Bachelor's degree in Criminology from the Florida State University. At Florida State he took courses in criminal investigations, constitutional law, government, psychology, and sociology. While the Petitioner's course work does not constitute experience in the area of private investigations, it is relevant to his qualifications to serve in that capacity. Prior to his attending college, and during the time that he attended college, the Petitioner worked as a security officer for several department stores. He worked approximately four months for Fountain's Department Store in Palm Beach County, and approximately twelve months at Gayfer's Department Store in Tallahassee, Florida, At Gayfer's his employment was part-time, however, he worked thirty to forty hours per week. After graduation from college the Petitioner worked approximately five months at a Sears Department Store in Palm Beach County on a full-time basis. Four months of that experience was as a security officer. As a security officer at the department stores, the Petitioner was present at the stores and observed customers. He apprehended shoplifters, took statements from them, and testified against them in court. He also investigated cash register shortages and other indications of employee dishonesty. An investigator for the Division of Licensing testified that in his opinion the department store experience would not constitute experience in the area of investigations, but rather should be considered security work. The agent did testify, however, that a policeman who worked on a "beat" would be considered to have investigative experience. The work that the Petitioner performed at the department stores is directly analogous to the work that a policeman would perform, and his experience is directly related to the field of private investigations, and should be included in his experience. From March, 1976 through February, 1977 the Petitioner was employed by the Wackenhut Corporation. Since March, 1977 the Petitioner has been employed by Damron Investigative Agency. The work that the Petitioner has performed with these two employers is directly related to the field of investigations. At the time of the hearing the Petitioner had a total of 26 months of experience working for these two employers.
Findings Of Fact On January 25, 1983, the Respondent, George S. Williams, submitted to the Division of Licensing, office of the Secretary of State, an application form for a Class "E" Repossessor's license in the State of Florida and enclosed with it the $25 filing fee. In Section 7 of the form, dealing with the applicant's employment history for the five years prior to the application, Respondent listed, inter alia, employment with Adams' Investigations, Inc., in Orlando, Florida, during the periods November 1979 to October 1980, and October 1982 to May 3, 1983. In the sworn Affidavit of Experience attached to the application, Respondent indicated that during the first period of employment with Adams, he handled actual repossessions in the field. During the course of his case investigation leading up to the issuance of Respondent's license, Willie Rister, an investigator for the Division of Licensing, interviewed the Respondent. During this interview, Respondent told Mr. Rister that during both periods of employment with Adams Investigations, Inc., listed in the application, he was performing repossessions for Adams as a salaried employee at $400 per week. The "EE" repossessor intern license did not exist under Florida Law until July 1, 1980, when the Florida Legislature revised Chapter 493, Florida Statutes. Notice of the change in the law requiring the need for "EE" licenses was not sent out to current "A" license holders until March 30, 1981. In fact, forms did not exist for applying for the Class "EE" license until well after the effective date of the new legislation. Under the preexisting legislation, holders of Class "A" or Class "C" licenses could conduct repossessions. The new law provided that holders of Class "A" licenses could apply for and receive a new Class "E" license by submitting a complete application, along with an application fee, by May 14, 1981. This savings clause applied to holders of Class "A" licenses, But not to those who had no license at all. Under the new law, repossession work required either a Class "E" license, to work alone, or a Class "EE" license, to work for a licensed agency with an "E" license. Here, Respondent had not been previously licensed and held no license at all, "A," "C," "E," or "EE," until his "E" license was issued on May 21, 1983, and acted as are possessor, unlicensed, until that date.
Recommendation That Respondent pay an administrative fine of $50.
The Issue The issue for consideration was whether the Respondent, Frank R. Kuiken, Jr., should be disciplined because of the misconduct alleged in the Administrative Complaint filed herein.
Findings Of Fact At approximately 3:00 PM on August 30, 1989, Manatee County Sheriff's Deputy Michael Kenyon saw Respondent's wife, Michelle, driving their automobile in the city of Bradenton with a blue flasher posted on the dash board inside the windshield. Because the unauthorized use of such a light is prohibited by law, Deputy Kenyon stopped Ms. Kuiken and when he approached the car, noticed she had moved the light from the dashboard to the floor. When he asked her why she had such a light in the car, she replied that her husband, a private investigator, used it in the course of his business in emergency situations. Deputy Kenyon requested Respondent be contacted and come to the scene. When he arrived, Kuiken advised Kenyon that he was a private investigator and used the light only in cases of extreme emergency in the performance of those duties. He further related he had not yet had the opportunity to use it. Mr. Kuiken also indicated that in addition to being a private investigator, he was a process server appointed by two local judges, and a court officer. Deputy Kenyon attempted to verify Respondent's claim to being a court officer but was unable to do so. Upon request, Respondent refused to show a private investigator's license, but indicated he had a permit to carry a concealed weapon. Several days later, Mr. Eugene Blitch, an investigator with the Department of State's Division of Licensing, was contacted by the Bradenton Police Department regarding Mr. Kuiken's claim to being a private investigator, and requested to confirm the licensing status. Blitch's inquiry and search of official state records revealed that Kuiken was the holder of a concealed weapon permit but did not hold, does not now hold, and never has held a license as either a private investigator or a private investigative agency. There was no evidence presented with reference to the occupational license. Respondent's business card, which he gave to the Deputy Sheriff indicates he holds himself out, without qualification, as an "investigator" offering surety recovery, missing persons searches, and service of process services. He claims this card was not given out to the general public but only to attorneys and finance companies for whom he worked on a contract basis. On September 7, 1989, Mr. Blitch, in the company of a Manatee County detective, went to the Respondent's home in Bradenton where upon inquiry from Blitch, Respondent admitted he did not hold a license to do private investigative work. He also indicated he carried no liability insurance but claimed, however, that he did not work for the public and did not advertise or hold himself out to the general public as a private investigator. He indicated he worked for attorneys, as a process server, and as an employee of ITT Financial Services. Inquiry of the manager of this concern revealed Respondent was not an employee of the company but did security and investigative work for it on a contract basis from time to time. During his interview with Blitch, Respondent denied having admitted to the deputy that he was a private investigator, but the other evidence contradicts this and is found to be more credible. The evidence of record clearly indicates that Respondent held himself out as an investigator, and the hearsay statement of the ITT manager confirms this. Respondent asserted to Mr. Blitch that since he did no work for the general public and limited his activity solely to process serving, work for attorneys, and for ITT, he was not required to be licensed. When advised that his understanding was incorrect, he quickly agreed to do whatever was necessary to "get legal".
Recommendation Based on the foregoing Findings of Fact and conclusions of Law, it is, therefore: RECOMMENDED that the Respondent, Frank Robert Kuiken, Jr., be assessed an administrative fine of $250.00. RECOMMENDED this 11th day of April, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 11th day of April, 1990. COPIES FURNISHED: Henri C. Cawthon, Esquire Department of State Division of Licensing The Capitol, Mail Station #4 Tallahassee, Florida 32399-0250 Frank Robert Kuiken, Jr. 5655 Tousley Drive Eau Claire, Michigan 49111 Hon. Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Ken Rouse General Counsel Department of State The Capitol, LL-10 Tallahassee, Florida 32399-0250
The Issue Whether Respondent is guilty of obtaining a license by means of fraud, misrepresentation or concealment, in violation of Section 475.25(1)(m), Florida Statutes (1997).
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida. Respondent is and was at all times material to this proceeding a licensed Florida real estate salesperson. She was issued Licensed No. 0627131 in accordance with Chapter 475, Florida Statutes. Her license is currently active. On or about May 9, 1995, Respondent submitted an application for licensure as a real estate salesperson. Question number 9 on the application read as follows: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? This question applies to 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 any other state, you are responsible for verifying the expungement or sealing prior to answering "NO." If you answered "Yes," attach details including dates and outcome, including 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 understand the question, consult with an attorney or the Division of Real Estate. Respondent marked the "NO" box beside question number 9. Respondent then signed the "Affidavit of Applicant" which read above her signature: 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 applying, that (s)(he) has carefully read the application, answers, and the attached statements, if any, and that all such answers and statements are true and correct, and are as complete as his/her knowledge, information and recollection 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. The purpose of Question 9 is to assist the Division of Real Estate in assessing the applicant's propensity for honesty, trustworthiness, and good morals. Petitioner relied on the information and answers contained in Respondent's application in deciding to issue her a real estate salesperson's license. On July 10, 1995, Respondent passed the real estate salesperson examination and was issued License No. 0627131. From July 10, 1995, through the present, Respondent was an active salesperson in association with various brokers in the Central Florida area. Respondent is presently an active salesperson in association with Summer Bay Partnership, an owner/developer trading as Summer Bay Resort, located at 17805 U.S. Highway 192, Clermont, Florida 34711. On May 21, 1993, in Kissimmee, Osceola County, Florida, Respondent pled guilty to and was adjudicated guilty of the offense of driving while under the influence (DUI) of alcoholic beverage to the extent that her normal faculties were impaired, Osceola County Case No. 93-006486. Respondent was sentenced, inter alia, to a term of one (1) year supervised probation, a suspension of driving privileges for six (6) months, DUI counter-attack school, fines and court costs. Petitioner's investigation following the filing of the application yielded that Respondent had either misrepresented or erroneously answered question number 9 and, therefore, had gained her Real Estate License by fraud, misrepresentation or concealment. Respondent testified that she checked "NO" to question number 9 stating that she had never been convicted of a crime as she was advised by her attorney in 1993 that DUI was a traffic violation, not a criminal offense. Further Respondent testified that when she thought of a crime, she thought of murder, rape and robbery, not a traffic violation. Respondent testified that she did not intentionally lie, misrepresent or conceal her past conviction for DUI in order to gain a Real Estate License. Respondent submitted finger print exemplars with her application, aware that there would be a background check done. Respondent stated that she only became aware of the fact that a DUI was a crime when she received notification from the Respondent.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of violating Section 475.25(1)(m), Florida Statutes, as charged in the Administrative Complaint, and that Respondent's license should not be revoked but that a lesser discipline be imposed within the range set forth in Rule 61J2-24.001(3), Florida Administrative Code. DONE AND ENTERED this 4th day of January, 1999, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of January, 1999. COPIES FURNISHED: Geoffrey T. Kirk, Senior Attorney Department of Business and Professional Regulation 400 West Robinson Street Orlando, Florida 32801-1772 William J. Sheaffer, Esquire 609 East Central Boulevard Orlando, Florida 32801 James Kimbler, Acting Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether Respondent is guilty of fraud or deceit in the practice of activities regulated under Chapter 493 and knowingly violating a statutory prohibition against carrying a concealed firearm in the course of business regulated by Chapter 493.
Findings Of Fact At all material times, Respondent has held a Class "A" Private Investigative Agency License, a Class "C" Private Investigator License, and a Class "PD" Proprietary Security Officer License. By final order entered December 8, 1992, Petitioner suspended Respondent's Class "A" and "C" licenses for one year for unlawfully intercepting oral communications. The final order also imposes an administrative fine of $1000 for this violation. In August, 1991, Respondent was retained by a client to perform an asset check of another person. Respondent did not perform the work to the client's satisfaction, so the client filed a complaint with Petitioner. On September 17, 1991, Petitioner's investigator visited Respondent at his office to conduct an interview. When the investigator asked to see Respondent's file on the case, he went to his filing cabinet, pulled out a drawer, and exclaimed that the file was missing. The investigator asked what happened, and Respondent said that someone must have stolen the file. The investigator advised Respondent that, if so, he should report the theft to the police. Respondent did report the theft to the police. In so doing, he made a false report to the police. The file was not missing or stolen; Respondent was trying to obstruct the investigation into the complaint that the client had made against him. When requested to visit the police station for an interview in November, 1991, Respondent wore his handgun in a shoulder holster under his jacket. The evidence is unclear as to the status of Respondent's Class "C" license at the time of the interview at the police department. There is some evidence that it had expired due to nonrenewal, but Respondent also testified that he had already mailed a check and the paperwork necessary for the renewal. However, Respondent may be presumed to be aware that even a current Class "C" license does not authorize the licensee to carry a concealed firearm into a police station.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of State, Division of Licensing, enter a final order dismissing Count II, finding Respondent guilty of violating Section 493.6118(1)(f), issuing a reprimand, and imposing an administrative fine of $1000. ENTERED on September 24, 1993, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on September 24, 1993. COPIES FURNISHED: Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater, General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250 Attorney Henri C. Cawthon Department of State Division of Licensing The Capitol, Mail Station #4 Tallahassee, Florida 32399-0250 Frank J. Lanzillo 520 - 12 Street West, #203 Bradenton, Florida 32405
