The Issue The issues in these consolidated cases are as follows: (1) whether Shaw Investigations aided or abetted Shaw Investigation Agency, Incorporated, an Alabama private investigative corporation not licensed to conduct business in Florida, and that corporation's private investigator employees, in engaging in unlicensed activity in Florida in violation of Section 493.6118(10(n), Florida Statutes; (2) whether Shaw Investigations failed or refused to cooperate with an agency representative's official investigation by not furnishing documentation required under a subpoena duces tecum in violation of Sections 493.6118(1)(o) and 493.6121(4), Florida Statutes; (3) whether Shaw Investigations committed misconduct in the course of regulated activity by failing to provide a client with written reports and accounting of investigative expenditures in violation of Section 493.6118(1)(f), Florida Statutes; (4) whether Shaw Investigations Agency, Incorporated, performed private investigations in Florida without a license in violation of Section 493.6118(1)(g), Florida Statutes, and Rule 1C- 3.120(1)(c), Florida Administrative Code; (5) whether Shaw Investigation Agency, Incorporated, allowed unlicensed persons to perform private investigative services in Florida in violation of Section 493.6118(1)(n), Florida Statutes; (6) and if so, what penalty should be imposed.
Findings Of Fact At all times relevant to these consolidated cases, Shaw Investigations, Mitchell D. Shaw, Owner, had a Class "A" Private Investigative Agency license, no. A89-00262, and Mitchell D. Shaw had a Class "C" Private Investigator license, no. C89-00625. Shaw Investigations currently has a valid Class "A" license, which was effective February 3, 1998, and expires on November 8, 1999. Mitchell D. Shaw has a valid Class "C" license, which was effective September 16, 1997, and expires on August 2, 1999. Shaw Investigation Agency, Inc., Mitchell D. Shaw, President, is an Alabama corporation. It is not licensed as a Class "A" Private Investigative Agency in Florida. Michelle Davis, Linda Moulton, and Ricky Tharpe are former employees of Shaw Investigation Agency, Inc. They worked for the Alabama investigative agency at all times relevant here. However, they were not licensed Florida private investigators or private investigator interns on those dates. Ms. Davis worked for Shaw Investigations Agency, Inc. as a private investigator intern and secretary. Ms. Moulton worked as a private investigator for the Alabama investigative agency. Mr. Tharpe was hired to work as a sales manager and private investigator in Alabama. His duties included conducting surveillance and checking tag numbers. F. Page Whatley was an employee of Shaw Investigations Agency, Inc., at all times relevant here. He did not have a Florida private investigator or private investigator intern license on those dates. Mr. Whatley obtained licensure as a Florida private investigator on February 6, 1997. The earliest that Mr. Whatley could have worked as a private investigator in Florida was upon submission of his complete application on November 5, 1996. Jeffery Lee Fears (Fears) was a resident of Georgia. In April of 1994, Fears was in Panama City Beach, Florida, on spring break when he died at a condominium complex, Ocean Towers. The Panama City Beach Police Department ruled his death a suicide.1 The Fears family hired Shaw Investigation Agency, Inc., to conduct a private investigation into the death of their son. They specifically hired the Alabama private investigative corporation because they did not agree with Florida law enforcement authorities that Fears' death was the result of suicide. The Fears investigation consisted of numerous witness interviews in Georgia, Florida, and other states, the gathering of evidence and witness information, and an examination of the physical site of death in Panama City Beach, Florida. When the Fears investigation was initiated and until March of 1996, Mr. Shaw was president of Shaw Investigations Agency, Inc. Sometime between March 15, 1996, and March 15, 1997, Mr. Whatley became president of the Alabama corporation. When the Fears investigation was initiated, the Florida investigative agency was the employer of investigators, other than Mr. Shaw, who held Florida Class "C" Private Investigators licenses. However, Mr. Shaw did not utilize the services of the other licensed Florida investigators in the Fears case. On May 3, 1994, Ms. Davis traveled alone from Dothan, Alabama, to Panama City, Florida, at the direction of Mr. Shaw. While she was there, Ms. Davis attempted to locate Charles Russell, the security guard who was on duty at Ocean Towers the night that Fears died. She also obtained a copy of a report from the Panama City Beach Police Department relative to an accident that occurred the same night as the Fears death. Upon her return to Dothan, Alabama, Ms. Davis prepared a written report of her investigation for Shaw Investigation Agency, Inc. On May 4, 1994, Mr. Tharpe traveled to Panama City, Florida, with Mr. Shaw and another employee of Shaw Investigations Agency, Inc. They first went to the Panama City Beach Police Department, where Mr. Tharpe attempted to get the gun that allegedly killed Fears. The men then went to the Ocean Towers complex where they talked to the manager, took pictures of the accident scene, measured the time required to walk up and down stairs and to go up and down in the elevator, observed blood stains, and looked for bullets on the outside of the building. On May 5, 1994, Mr. Shaw directed Ms. Moulton to travel alone to Panama City, Florida, from Dothan, Alabama, to locate the security guard, Charles Russell. After making inquiries at the apartment complex where Mr. Russell lived, Ms. Moulton learned that he was out of town. She then returned to Dothan where she prepared a report of her investigation for Shaw Investigation Agency, Inc. On May 19, 1994, Mr. Tharpe traveled with Mr. Shaw and the Fears attorney to Panama City, Florida. The men went first to the Panama City Beach Police Department in an unsuccessful attempt to get the gun that allegedly killed Fears. Next, Mr. Tharpe went with Mr. Shaw and the attorney to the Ocean Towers complex where they observed the site of Fears' death. Lastly, the men attempted unsuccessfully to locate Mr. Russell at his apartment. Upon his return to Dothan, Alabama, Mr. Tharpe prepared a written report describing the investigation conducted that day on behalf of Shaw Investigation Agency, Inc. On May 27, 1994, Ms. Moulton again traveled alone to Panama City, Florida, as directed by Mr. Shaw. She first inquired whether two local television stations had any news footage relative to the death of Fears. She learned that the stations did not have any such footage. Next, Ms. Moulton went to Mr. Russell's apartment complex. Her inquiries revealed that he was back in town but not at home. Ms. Moulton set up surveillance to wait for Mr. Russell's return. She subsequently took pictures of a man entering Mr. Russell's apartment and got the tag numbers of six vehicles in the parking lot behind the apartment. Ms. Moulton went to the local tag registration office. She got the names of all the owners of the vehicles except one, which was unregistered. Ms. Moulton returned to Mr. Russell's apartment and continued her surveillance. When Mr. Russell left his apartment, Ms. Moulton took a picture of him with his car, noting his physical description and the make, model, and color of his car. She then returned to Dothan, Alabama, where she made a written report of her investigation for Shaw Investigation Agency, Inc. On June 1, 1994, Mr. Shaw directed Ms. Moulton to travel from Dothan, Alabama, to Panama City, Florida, to set up surveillance on Mr. Russell's apartment. She waited outside Mr. Russell's apartment until Mr. Shaw arrived to conduct an interview. Ms. Moulton then traveled to the local library to research the newspaper coverage on Fears' death. She retained a copy of a newspaper story about the incident. Next, Ms. Moulton went to the Panama City Police Department to obtain information on shootings between March 28, 1994 and April 6, 1994. She learned that there were no such incidents. Ms. Moulton went to the Bay County Sheriff's Department to obtain information on shootings that occurred between March 28, 1994 through April 6, 1994. She learned that her request would require payment for the research and copies of the results. Ms. Moulton went to the Panama City Beach Police Department to obtain the same type of information. She retained a computer print-out on all calls that the department responded to between the relevant dates. Ms. Moulton then returned to Dothan, Alabama. She prepared a written report of her investigations conducted on June 1, 1994, for Shaw Investigation Agency, Inc. On June 22, 1994, Ms. Davis went to Panama City Beach with the Shaw Investigation Agency, Inc., investigators and the Fears family. While she was there, she participated in the investigation by timing the walk from a Burger King restaurant to the sixth floor of the Ocean Towers. On July 18, 1994, Mr. Tharpe traveled alone to Panama City, Florida, on behalf of Shaw Investigation Agency, Inc. He first went to the Panama City Beach Police Department in an attempt to pick up the gun that allegedly killed Fears. Next, Mr. Tharpe conducted an interview with Mr. Russell at his apartment. Mr. Tharpe prepared a written report of his investigation for Shaw Investigation Agency, Inc. On October 18, 1994, Ms. Moulton traveled with Mr. Shaw to Panama City, Florida. She did not independently conduct any investigative work. However, she was present when Mr. Shaw interviewed Dr. William Eckerd, the Bay County coroner. On at least one other occasion, Mr. Tharpe traveled alone to Panama City Beach, Florida, on behalf of Shaw Investigation Agency, Inc. He took a blood test kit to locate spots of blood at the scene of Fears' death at Ocean Towers. Mr. Shaw testified that Mr. Tharpe's primary involvement in the Fears investigation was as an expert hired to build a model of the crime scene. This testimony is not persuasive. On November 18, 1995 or November 19, 1995, Henry Locke of Panama City, Florida, decided to hire a private investigator to research the work history of a co-worker, Ron Barlow. Mr. Locke looked in the local phone book and called Shaw Investigations using a local number. Mr. Locke spoke with a man who identified himself as a private investigator. The man on the phone said that he would meet with Mr. Locke the next day on his way back to Dothan, Alabama, from working on a case in Panama City Beach, Florida. Until that time, Mr. Locke did not know that the investigator was from Dothan, Alabama. Page Whatley was the man who showed up at Mr. Locke's home the next day. Mr. Locke believed Mr. Whatley was the man he had spoken to on the phone. Mr. Locke told Mr. Whatley that he wanted a background check on the work history of Ron Barlow, a co-worker. Specifically, Mr. Locke explained that he wanted to know the places where Mr. Barlow had worked and the type of work he had done. The information that Mr. Locke provided to Mr. Whatley was personal and confidential; Mr. Locke did not want anyone, especially Mr. Barlow, to know about the private investigation. Mr. Whatley agreed to provide Mr. Locke with the requested information for a fee in the amount of $750. Mr. Locke and Mr. Whatley signed a contract dated November 20, 1995, indicating that the work to be performed included a background check. The contract heading was "Shaw Investigations Agency, Inc." The "Inc." on the contract was crossed out, indicating that the contract was with Shaw Investigations, the Florida Agency. In November of 1995, Mr. Shaw was president of the Alabama investigative agency. Mr. Whatley was not licensed in Florida at that time. Mr. Locke mailed a check in the amount of $750 the next day. He sent the check to a Dothan, Alabama, address. The check is dated November 20, 1995, and made payable to Shaw Investigation Agency. Shaw Investigation Agency, Inc., subsequently cashed the check. Shaw Investigations, the Florida agency, does not perform computer-generated background checks because it does not have the necessary technical equipment and staff. Mr. Shaw uses the equipment owned by the Alabama corporation and its employees, who are unlicensed in Florida, to do the research necessary for that type of work. Mr. Locke was not aware of these facts when he sent his check to Dothan, Alabama. He thought the Alabama office was a branch of the Florida agency. In December of 1995, an employee from Shaw Investigation Agency, Inc., called Mr. Locke on the telephone to tell him that a background check on Ron Barlow did not reveal a criminal record. The Alabama employee also discussed the results of Ron Barlow's workman's compensation claim history. At that time, Locke did not complain that the information provided was not satisfactory because it did not include Ron Barlow's work history. Isabel Shaw, an employee of Shaw Investigations Agency, Inc., testified at hearing that she mailed Mr. Locke a copy of the report in January of 1996 in accordance with company procedure. This testimony is not credible. About one year later, Mr. Locke contacted other local investigators. One of those investigators recommended that Mr. Locke contact Petitioner to file a complaint against Shaw Investigations. Petitioner received Mr. Locke's complaint on February 28, 1997. Around the time that Mr. Locke filed his complaint with Petitioner, he called the Dothan, Alabama, office to complain that he had not gotten a report. An employee in the Alabama office told him that he had been given a verbal report in December of 1995. He and the employee got into an argument and the employee hung up the phone. Mr. Whatley wrote Mr. Locke a letter dated April 7, 1997, apologizing for any misunderstanding and enclosing a copy of a two page report containing Ron Barlow's workman's compensation claim history. Mr. Locke has never received the information he originally requested concerning Ron Barlow's work history. In March of 1995, Petitioner received a complaint from officials in the Florida Department of Law Enforcement (FDLE) concerning Mr. Shaw's investigation of the Fears case. Petitioner directed its investigator, Robert Cousson, to hold his investigation in abeyance until FDLE completed its investigation of the Fears case. On June 28, 1996, Mr. Cousson contacted Mr. Shaw by telephone and requested a copy of expenses involved with the Fears case, the entire case file, a list of investigators who had worked on the case, and a list of the code numbers of those investigators. Mr. Shaw responded that the case was confidential. He stated that he would need to obtain the permission of his clients. On July 2, 1996, Mr. Cousson again telephoned Mr. Shaw. In that conversation, Mr. Shaw stated that the Fears family would not consent to release the case file. According to Mr. Shaw, the Fears family threatened to sue if the file was released. Mr. Cousson responded that he would cure that problem by issuing a subpoena for the file. On July 3, 1996, Petitioner faxed the subpoena to Shaw Investigations, Mitchell D. Shaw, Owner. On July 10, 1996, Mr. Cousson personally served the subpoena on Mr. Shaw in his office. During that visit, Mr. Shaw produced a letter dated July 8, 1996, from Mr. Shaw's attorney. The letter states that the Fears hired Shaw Investigations Agency, Inc., to conduct the Fears investigation. According to the letter, Shaw Investigations Agency, Inc., was not subject to Petitioner's regulations or subpoena power. The attorney's letter reveals that the Florida agency was hired by the Alabama agency to do some work on the Fears case. However, according to the letter, the work of the Florida agency was completed more than two years prior to the issuance of the subpoena. The letter states the records of the Florida agency were not subject to preservation or disclosure under Section 493.6121(2), Florida Statutes. Nevertheless, the attorney's letter enclosed two investigative reports, stating that Shaw Investigations was not in possession of any other records that were responsive to the subpoena. The first report, dated July 18, 1994, was prepared by Mr. Tharpe. The second report, dated October 18, 1994, was dictated by Mr. Shaw and typed by Ms. Moulton. At a later date, Mr. Cousson received a copy of a contract between Shaw Investigations and Shaw Investigations Agency, Inc. The contract is dated April 14, 1994. According to the contract, the Florida agency was paid to take pictures, interview a witness, and provide a scale diagram of the accident scene for a possible model. Mr. Shaw produced no other documents as responsive to the subpoena. However, he verbally provided Mr. Cousson with the code numbers of the Alabama investigators used on the Fears case. The investigation of the Fears case by Shaw Investigation Agency, Inc., was ongoing at the time of the hearing. The entire case file of the Fears investigation is still in existence, including documents generated as a result of the contract between the Florida investigative agency and the Alabama investigative agency. In addition to not providing the subpoenaed investigative files, Mr. Shaw did not provide any records pertaining to the fees and costs paid by the Fears, a list of all personnel employed during the period of April 18, 1994 through June 30, 1995, including the coded list of all employees and payroll records for the period of April 18, 1994 through June 30, 1995. Mr. Shaw did not provide any documents relating to the Florida investigative agency's activities in the Fears investigation other than as set forth above.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That Petitioner enter a Final Order suspending the Florida licenses of Shaw Investigations and Mitchell D. Shaw for three months, and imposing the maximum fine for Counts I-IV and VII-IX in Case No. 97-0369 and for Counts I-II, IV, and VI-VII in Case No. 98-1761. DONE AND ENTERED this 25th day of November, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 25th day of November, 1998.
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
The Issue The issue in this case is whether Respondent is guilty of violating the law regulating private investigators and, if so, what penalty should be imposed.
Findings Of Fact Respondent holds a Class "C" Private Investigator License bearing license number is C91-00006. Petitioner's files indicate that this license was issued January 10, 1991. Respondent testified that he has been licensed since December 1990. Despite records indicating that the Class "C" license was issued January 10, 1991, Petitioner, by letter dated May 24, 1991, informed Respondent that his Class "C" license "has been issued and is forthcoming." The May 24 letter adds: File review indicates that you are not currently employed. Chapter 493, Florida Statutes, requires you to either own or be employed by a licensed Class "A" Private Investigative Agency. To work as a private investigator without meeting one of the foregoing conditions is a violation of law and subjects you to administrative action up to and including revocation of your Class "C" license. During 1991, Respondent was employed by A & W Investigations, which holds a Class "A" agency license. However, by July 7, 1991, he had completed his duties for A & W Investigations and was not employed by a Class "A" agency after that date. During the period between the termination of his employment with A & W Investigations and the meeting described below with Petitioner's investigator in October 1991, Respondent performed investigations related to workers' compensation for a company known as FEISCO. Serving as an independent contractor, Respondent also hired and paid James Coady for investigative work that he performed on Respondent's behalf for FEISCO. In August 1991, a new attorney in the area, Darren Young, received a letter from Respondent announcing his availability to serve as a consultant in criminal cases involving allegations of driving under the influence (DUI). Respondent had been employed for a couple of years by the Collier County Sheriff's Office and drew upon his experience in local law enforcement in providing DUI consultation services. Respondent and Mr. Young later met and began a business/social relationship. In October or November, Mr. Young hired Respondent as a DUI consultant in a pending case. Respondent served as an independent contractor, not an employee of Mr. Young. Although Mr. Young did not need Respondent to testify, he paid Respondent for his services. By letter dated September 23, 1991, Petitioner advised Respondent that it had learned that he was no longer employed by A & W Investigations as a Class "C" Private Investigator licensee. The letter contains the same warning as that quoted in the last two sentences of the above-cited May 24 letter. In early October 1991, an investigator of Petitioner met Respondent to discuss informal complaints made by two or three Naples private investigators that Respondent was conducting private investigations without a license. Respondent told the investigator that he was working for a tile company association doing investigations of its members and serving as an expert witness for attorneys in DUI cases. Petitioner's investigator explained that if Respondent intended to do any private investigations, he needed a Class "A" agency license with which to place his Class "C" private investigator's license. At the urging of Petitioner's investigator, Respondent agreed to begin the process of obtaining a Class "A" license, and, on October 3, 1991, Petitioner received Respondent's application for a Class "A" license. On December 26, 1991, Respondent obtained the general liability coverage required for the Class "A" license. By letter dated December 27, 1991, and received by Petitioner on January 6, 1992, Respondent submitted to Petitioner a money order in the amount of $300 in payment of the application fee, proof of liability insurance, and a copy of the fictitious name registration form. The letter states in part: I have contacted your office several times and have been informed that my fingerprints have not returned from FDLE. This is the only thing that I am waiting for before my license can be issued. The 90 days will be up in January and I was wondering if there is some provision that would allow me to start operations before they return. I would appreciate your advice on this matter. Prior to receiving the December 27 letter from Respondent, on January 3, 1992, Petitioner mailed Respondent a letter "to notify you that your application for a Class "A" license had been approved." The letter states that Respondent needed to provide several items "so your license can be issued " The required items were a license fee of $300, certificate of insurance, and proof of filing a fictitious name. On January 8, 1992, Respondent mailed two letters. One was to Petitioner's investigator, stating that Respondent had "received the notice of approval for the issuance of my Agency license" and advising that he had "forwarded all of the required documentation to Tallahassee." The other letter of January 8, 1992, was to Petitioner and accompanies the certificate of liability insurance. The letter states that, on December 30, 1991, Respondent had sent Petitioner the application fee, copy of the fictitious name registration, and copy of the insurance binder. Petitioner received the certificate of liability insurance on January Noting that the certificate was not properly notarized, Petitioner mailed Respondent a letter, on January 15, 1992, advising that the certificate of liability insurance was missing. By letter dated January 16, 1992, Respondent forwarded the certificate of liability insurance with proper notarization. Receiving the letter on January 22, 1992, Petitioner mailed a letter on January 24, 1992, advising Respondent that he had been issued on that date a Class "A" license, which was good from January 24, 1992, through January 24, 1994. Respondent engaged in at least two investigations during December 1991, at which time he clearly knew that he did not have a Class "A" license and needed one for the work in which he was engaged. In one case, he performed two days' surveillance on Kelly Trotta for Ray Trotta on December 6 and 7, 1991. By letter dated December 9, 1991, to Mr. Trotta, Respondent described the investigatory services that he provided and suggested future spot checks in order to avoid "running up the costs of the investigation." In another case, Mr. Young was retained on the day after Thanksgiving 1991 by Lawrence Harrison to provide legal services in connection with pending federal and state litigation. Mr. Young introduced Respondent to Mr. Harrison, who agreed to retain Respondent or allow Mr. Young to retain Respondent, in either case as an independent contractor. According to Respondent's invoice, Mr. Young hired him on December 16, 1991. The following day, Respondent checked corporate records as part of his investigative work and conveyed the information to Mr. Young. In the following days, Respondent researched Chapter 493, Florida Statutes, concerning the state litigation, which involved a legal action brought by Frank Coto against Mr. Harrison for unpaid private investigative services. Respondent drafted a complaint against Mr. Coto to be sent to Petitioner. Still in December, Respondent obtained character information on Mr. Coto and directly communicated it to the client. The complaint against Mr. Coto included allegations that he attempted to extort from Mr. Harrison the balance allegedly owed by Mr. Harrison to Mr. Coto for investigative services rendered. Mr. Harrison sent the complaint, under his signature, to Petitioner, which eventually elected not to prosecute. On January 9 and 10, 1992, according to Respondent's invoice of January 13, 1993, Respondent met with Mr. Harrison. By separate invoice, Respondent requested $1200 for the costs of a trip to Oklahoma in connection with investigative services related to the federal litigation. This sum was paid prior to January 24, 1992, which was when Respondent was to depart. On or about January 18, 1992, Mr. Young terminated his employment with Mr. Harrison. On January 23, 1992, Respondent contacted the FBI and informed them that Mr. Young had proposed a criminal conspiracy with Respondent to kill one or more persons involved with the Harrison matter. Subsequent investigations revealed no basis for criminal prosecution, nor professional discipline, against Mr. Young. The record is insufficient to determine if Respondent's charges were made in good faith. Instead of going himself, Respondent sent Mr. Coady and Mr. Trotta to perform investigative services for Respondent on behalf of Mr. Harrison. They departed either January 24 or 25, 1991, and performed the investigative services. There is no competent evidence as to whether Mr. Coady had a Class "C" license and, if so, when he obtained it. The evidence is unclear as to when Mr. Trotta obtained his Class "C: license, but he obtained or renewed a Class "C" license, possibly as early as January 23, 1994. Respondent allowed Mr. Coady and Mr. Trotta to place their Class "C" licenses, or the Class "C" licenses for which they were applying. The record establishes the date of sponsorship only as to Mr. Trotta. Respondent signed the form on January 5 and it was notarized on January 7, 1992. Respondent used his Class "A" license number, which he obtained by telephone from one of Petitioner's representatives prior to the official issuance of Respondent's Class "A" license. On March 4, 1992, Respondent sent a letter to Petitioner advising that his firm was no longer sponsoring Mr. Trotta, Mr. Coady, or a third person, Heidi Trotta. Except for this letter, there is no evidence that Respondent ever employed Ms. Trotta, and Petitioner has failed to prove that anyone by that name was ever so employed by Respondent. The letter states that, as of January 30, 1992, Respondent's firm would no longer be responsible for their actions. The record does not indicate when Mr. Trotta and Mr. Coady were terminated. On August 11, 1992, Petitioner's investigator visited Respondent's office and demanded his files for the Harrison and Trotta investigation, as well as a third investigation known as Sparkman/Hayes. Respondent offered to drive home and get the Trotta and Sparkman/Hayes files, but declined to provide the Harrison file until he received approval from Mr. Harrison's attorney, through whom he claimed to work. Petitioner's investigator told Respondent not to go home and get the two files, but to provide them to the investigator later. Respondent agreed to mail them, but did not. Petitioner's investigator never gave Respondent a deadline, nor did he ever again demand that Respondent give him the files. The failure to produce the Harrison file is not the subject of any allegations in the present case. During the course of the August 11 interview, Petitioner's investigator asked Respondent about Mr. Coto and the complaint that had been filed with Petitioner against him. Respondent initially lied, denying knowing anything about Mr. Coto or the complaint. But Petitioner's investigator showed Respondent a letter that Respondent had sent to Mr. Young, which effectively contradicted these denials. Respondent then admitted to Petitioner's investigator that he had drafted the complaint against Mr. Coto and that it had been intended to "muddy the waters." The intent of Respondent was to undermine Mr. Coto's civil action against Mr. Harrison.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of State enter a final order ordering Respondent to pay an administrative fine of $3550. ENTERED on June 24, 1994, 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 June 24, 1994. COPIES FURNISHED: Hon. Jim Smith Secretary of State The Capitol Tallahassee, FL 32399-0250 Phyllis Slater, General Counsel Department of State The Capitol, PL-02 Tallahassee, FL 32399-0250 Henri C. Cawthon Assistant General Counsel Department of State Division of Licensing The Capitol, MS #4 Tallahassee, FL 32399-0250 Attorney Ken Muszynski 850 Fifth Ave. South Naples, FL 33940
Findings Of Fact Based upon the testimony of the witness, and the record in DOAH Case Number 91-5892C, the following findings of fact are made: Petitioner, a non attorney litigant, seeks an award of attorney's fees and costs exceeding $37,000 under Section 57.111, Florida Statutes (1991). Petitioner did not offer evidence that he expended 250 hours performing research and other preparation for the Administrative Hearing in DOAH Case Number 91-5892C, which was not held. Likewise, Petitioner did not offer evidence that $150.00 an hour, the rate which he seeks to be compensated, was a reasonable fee as evidenced by either the time, skill or the complexity of the issues involved in the above- referenced case. Finally, Petitioner did not present evidence which establishes that he is a small business party. While Petitioner referred to the fact that he, at times, does odd jobs for neighbors, there was no showing that he operated a business and, at best, he performed casual labor for neighbors. Petitioner admitted, during the hearing, that there was a criminal prosecution filed against him which was nolle prosequi by the local state attorney's office around May 13, 1992. On June 18, 1992, Respondent filed a Motion To Relinquish Jurisdiction asking that the Division of Administrative Hearings close its case file based on the fact that the abuse report, which was the focus of Case Number 91-5892C was reclassified to "closed without classification". That motion was granted and the Division's case file was closed. Respondent reclassified the report after the criminal charges were dropped due to evidence discovered during the course of the criminal investigation. Specifically, one of the key witnesses during the criminal case recanted the story which formed the basis of the criminal charge and the alleged victim admitted to being a problem child which resulted in strict disciplinary action being taken against him. As a result of the discipline, the alleged abuse victim concocted the abuse allegation. Respondent was substantially justified and had a reasonable factual basis to issue and classify the subject abuse report as proposed confirmed at the time that it was initiated (by Respondent). However, once the factual underpinnings of the criminal case were recanted by the alleged child victim, Respondent immediately took action to reclassify the report which obviated the necessity for holding a formal hearing in DOAH Case Number 91-5892C.
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.
The Issue Whether the Petitioner's application for a private employment agency license should be denied on the grounds stated by the Department in its letter dated August 7, 1978. The Department of State presented evidence that the applicant had been guilty of a crime against laws of the State of Florida; to wit, procuring for prostitution and conspiracy to commit prostitution. The applicant presented evidence that he had not operated an employment agency without benefit of a state license. The issue presented is whether conviction of conspiracy to commit prostitution and procuring for prostitution constitutes a crime of moral turpitude such that the license applied for should be denied.
Findings Of Fact The Petitioner-Applicant, Robert T. Sharkey, testified in his own behalf and identified his application for licensure, Exhibit 1, and a notice of violation issued by Robert P. Murphy, Exhibit 3. Sharkey explained that he had been arrested and convicted for the crimes of procuring for prostitution and conspiracy to commit prostitution, a crime which he characterized as a misdemeanor of the the second degree for which the court sentenced him to a two-year probation. Sharkey has successfully completed all the terms of that probation period. Sharkey testified that before January, 1978, his exwife had operated a licensed modeling agency under a license issued to his former wife; that he had been a photographer who worked with his wife in this modeling agency but who took no active part in management of the modeling agency. Sharkey further testified that after 1978, that he had operated a service business in which he was employed by persons seeking part-time help and he in turn employed individuals to provide the services to the individual who had employed him. Under these arrangements, he was paid by his principle and he in turn paid his employee taking out his profit, social security and federal withholding tax for the employee. Sharkey testified that his business was inspected by Robert P. Murphey on April 7, 1978 and he was issued a notice of violation of Section 449.021, Florida Statutes, which was received as Exhibit 3. The nature of Sharkey's business is to provide services to his principles through his employees. He provides secretarial, modeling, and other services. In addition, he operates a commercial photography business, which provides still and motion picture photography to various businesses in South Florida. Sharkey held a real estate broker's license and at the time of his conviction mentioned above was a real estate broker. As a result of his conviction, his license as a real estate broker was suspended for a period of one year and should be reissued on or about October 12, 1978.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the application of Robert T. Sharkey for a private employment agency license (theatrical) be DENIED. DONE and ORDERED this 17th day of October, 1978, Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 1978. COPIES FURNISHED: John A. Friedman, Esquire 727 Northeast 3rd Avenue Fort Lauderdale, Florida 33304 Gerald Curington, Esquire Secretary of State's Office The Capitol Tallahassee, Florida 32304
Findings Of Fact The primary issue presented at the hearing in this case is whether the Petitioner has the requisite experience as an investigator. From 1973 through January, 1977, the Petitioner was employed on a full-time basis with the Dade County Department of Human Resources. Although a small portion of his work with Dade County was investigative in nature, his role was primarily as a counselor or social worker. During the same time the Petitioner worked on a part-time basis with the Minorities Contractors Association. In this capacity he did credit checks and background checks on individuals who were seeking loans from the corporation. During this same period the Petitioner worked on a part-time basis with attorneys. He worked as an investigator, observing accident scenes, taking photographs, getting statements from potential witnesses, and other general investigative work. The Petitioner has worked in these part-time capacities for more than three years. The investigative work would amount to approximately 18 months of full-time experience as an investigator. The Petitioner has been arrested approximately 7 or 8 times. The most serious arrest was in 1963 for Contributing to the Delinquency of a Minor. This conviction was not reflected on the Petitioner's application. It does not appear that the Petitioner's civil rights have been taken from him, and it does appear that he has not been arrested for a period of in excess of five years. It appears that, except for his lack of experience, the Petitioner is qualified for licensure as a private investigative agency.
Findings Of Fact At all times material to this proceeding, Respondent held a Class "A" Private Investigative Agency License, Number A00-01205, and a Class "C" Private Investigator Licence, Number C00-01229. Respondent has been licensed as a private investigator since 1962. During that time, there has been no disciplinary action against his licenses. On or about May 26, 1994, Leslie Dillingham hired Respondent to obtain proof of her husband's homosexuality for use in a divorce and custody proceeding. During the initial meeting between Respondent and Ms. Dillingham, she requested that Respondent conduct a surveillance of her husband, Mr. Dillingham, and his alleged boyfriend. She also requested that Respondent send someone who could pass as being gay to attend a meeting of an alleged support organization for homosexual men at a branch of the public library on May 28, 1994. Ms. Dillingham wanted to find out the names and addresses of the gay men who were members of the support group. Respondent represented to Ms. Dillingham that he would conduct the surveillance and that he had employees that could assist him in performing these services. He told Ms. Dillingham that he had an employee who could pass as being gay and infiltrate the organization of gay men. However, that employee was out of town. Respondent said he would contact this employee and have him attend the meeting at the library. During the initial meeting between Respondent and Ms. Dillingham, she expressly informed Respondent of the time constraints involved in the investigation. She needed all available information before June 7, 1994, which was the trial date for her divorce and child custody proceeding. Ms. Dillingham specifically requested an oral daily report, an itemized statement of the work done, and a written report of the outcome of Respondent's investigation. Respondent was to make his daily reports by telephone to Ms. Dillingham's home or office. Ms. Dillingham gave Respondent some pictures of her husband and his alleged boyfriend along with the tag numbers for their automobiles. She also gave Respondent a retainer in the amount of $1,500. She agreed to pay Respondent and/or his employees $40 per hour. Respondent immediately began his surveillance of Mr. Dillingham's residence on May 26, 1994. At all times relevant to this proceeding, Respondent worked alone and did not engage any employee or other investigator to assist him with the investigation. On May 27, 1994, Respondent continued his surveillance of Mr. Dillingham's apartment and made spot checks at the home of the alleged boyfriend who lived in a different part of town. The surveillance revealed no contact between the two subjects. Respondent did not attempt to make his daily report to Ms. Dillingham. On May 28, 1994, Respondent conducted surveillance of the subjects' residences, first one and then the other, until 4:00 p.m. At that time, Respondent went to the library branch where the support group was scheduled to meet. He had been unable to arrange for his employee to infiltrate the meeting. Instead, Respondent sat outside the door of the meeting where he could hear the group planning a Memorial Day picnic. He was able to record the tag numbers of some of the men attending the meeting. Neither of the subjects attended the support group meeting. After the meeting, Respondent resumed his surveillance at the residences of Mr. Dillingham and the alleged boyfriend. They did not have any contact with each other. Again, Respondent did not attempt to contact his client to make his daily report. The next day was Sunday, May 29, 1994. Once again Respondent's surveillance of the subjects' residences was not fruitful. Respondent contacted his client, Ms. Dillingham, who directed him not to begin surveillance of the husband until after noon the next day. Ms. Dillingham did not want Respondent to conduct surveillance on the morning of May 30, 1994, because her husband would have visitation with their son during that time. Monday, May 30, 1994, was Memorial Day. Respondent's surveillance from 1:30 p.m. to 11:30 p.m. did not reveal any contact between the subjects. However, Respondent made his daily report to his client. Ms. Dillingham informed Respondent that she was attempting to serve her husband's male friends with subpoenas for deposition. She told Respondent that once "the cat was out of the bag," continued surveillance probably would not be useful. On May 31, 1994, Respondent was unable to locate the vehicle of the client's husband at home or at work. Spot checks throughout the day revealed no activity between the subjects. When Respondent made his daily report, Ms. Dillingham told him that depositions of her husband's friends would take place on June 2, 1994, and mediation on June 3, 1994. After this conversation, Respondent understood that the surveillance part of the investigation was complete. Ms. Dillingham's husband had visitation with their son on Wednesday evening, June 2, 1994, and on the weekend from Friday, June 3, 1994, through Sunday, June 5, 1994. Ms. Dillingham did not want surveillance conducted during visitation periods. Ms. Dillingham and her sister, Karlene Goller, tried to reach Respondent by phone several times everyday from June 1, 1994, through June 4, 1994. They were not successful. On Sunday, June 5, 1994, Respondent returned one of Ms. Dillingham's calls and agreed to meet her at her office. During the meeting, Respondent returned the photographs of Ms. Dillingham's husband and his alleged boyfriend. He also gave her the tag numbers of some of the men who attended the support group meeting at the public library. Ms. Dillingham was dissatisfied with the results of Respondent's investigation because it had not produced any evidence of her husband's homosexuality. Respondent informed Ms. Dillingham that he had worked for 60 hours on the case. Ms. Dillingham was so upset that Respondent agreed to continue the investigation without charging her for his time in excess of the $1,500 retainer. Respondent said he would visit some gay bars to determine whether anyone knew Mr. Dillingham. Respondent told Ms. Dillingham that he might have to pay someone at the gay bars to contact him if they saw Mr. Dillingham at a bar. On Monday, June 6, 1994, Respondent went to some gay bars. At a bar known as the Metro, Respondent made contact with a bartender/security man, Bruce Long, who knew most of the gay men in town. However, Mr. Long did not know Mr. Dillingham by name and verbal description. Respondent gave $50 dollars to Mr. Long and promised to furnish him with a photograph of Mr. Dillingham. In exchange for the money, Mr. Long agreed to call Respondent if he saw Mr. Dillingham. Around 11:00 p.m. on June 6, 1994, Respondent met with Ms. Dillingham and her sister at a Waffle House on Roosevelt Boulevard. She gave a photograph of Mr. Dillingham to Respondent to show to Mr. Long at the Metro. Later that night, Respondent returned to the Metro. He gave the photograph of Mr. Dillingham to Mr. Long who agreed to show it around to friends and bartenders at other gay clubs. June 7, 1994, was the date of the final hearing in Ms. Dillingham's divorce and custody proceeding. After checking with Mr. Long to find out if any of his gay friends knew Mr. Dillingham, Respondent beeped Ms. Dillingham indicating that he had no new information. Ms. Dillingham never saw Respondent's investigative report marked as Petitioner's Exhibit One (1) until an investigator from Petitioner's office showed it to her. She never received an itemized statement or bill indicating how Respondent spent her retainer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, hereby, RECOMMENDED that Petitioner issue a final order reprimanding Respondent, imposing an administrative fine in the amount of $250 and placing the licensee on probation for a period of time and subject to such conditions as the department may specify. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of February 1996. SUZANNE HOOD, HEARING OFFICER 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 February, 1996. APPENDIX 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. Petitioner's Proposed Findings of Fact Accepted in Findings of Fact 1. Accepted in Findings of Fact 2. Accepted in Findings of Fact 3 except for last sentence in 3(a) of the Proposed Facts which is rejected. No persuasive evidence that Respondent and his client discussed the need to make inquiries at gay bars during the initial meeting. Accepted in Findings of Fact 4. Accepted in Findings of Fact 4. Accepted in Findings of Fact 5. Accepted in Findings of Fact 7. Rejected as contrary to greater weight of evidence. Rejected as contrary to greater weight of evidence. Accepted in Findings of Fact 15 and 16. Accepted in Findings of Fact 16. Accepted as restated in Findings of Fact 10 and 16-17. Accept in Findings of Fact 17 that Respondent agreed to visit some gay bars but reject that Respondent offered to buy testimony. Accepted in Findings of Fact 18. Accepted in Findings of Fact 18-20. Accepted in Findings of Fact 21. Accepted but subordinate to Findings of Fact 21. Respondent's Proposed Findings of Fact Respondent did not file Proposed Findings of Fact. COPIES FURNISHED: Henry H. Wells Attorney at Law 8015 Tara Lane Jacksonville, Florida 32216 Kristi Reid Bronson Assistant General Counsel Department of State Division of Licensing The Capitol, Mail Station Number 4 Tallahassee, Florida 32399-0250 Honorable Sandra B. Mortham Secretary of State Department of State The Capitol Tallahassee, Florida 32399-0250 Don Bell General Counsel Department of State The Capitol Tallahassee, Florida 32399-0250
