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
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 Case No. 97-3049 Did Respondent conduct business as a private investigative agency during the period of January 1, 1997, through April 7, 1997, without a Class “A” Private Investigative Agency License in violation of Section 493.6118(1)(g), Florida Statutes? Did Respondent perform the services of a private investigator during the period of January 1, 1997 through April 7, 1997, without a Class “C” Private Investigator License in violation of Section 493.6118(1)(g), Florida Statutes? Case No. 97-3096 Did Respondent conduct business as a private investigative agency during the period of January 1, 1997, through April 7, 1997, without a Class “A” Private Investigative Agency License in violation of Section 493.6118(1)(g), Florida Statutes? Did Respondent perform the services of a private investigator during the period of January 1, 1997, through April 7, 1997, without a Class “C” Private Investigator License in violation of Section 493.6118(1)(g), Florida Statutes?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida charged with the responsibility of investigating and enforcing the provisions of Chapter 493, Florida Statutes. Case Number 97-3049 Respondent Dormal Cavilee was not licensed as a private investigator in the State of Florida and did not possess a State of Florida Class “C” Private Investigator license at any time material to this proceeding. Respondent Dormal Cavilee was not licensed as a private investigative agency in the State of Florida and did not possess a State of Florida Class “A” Private Investigative Agency license at any time material to this proceeding. During the period of January 1, 1997, to April 7, 1997, Respondent Dormal Cavilee performed private investigations, as defined in Section 493.6101(17), Florida Statutes, for Geoffrey A. Foster, attorney-at-law and for Dwight M. Wells or Deborah Wells (Wells), attorneys at law. While performing private investigations for Foster and Wells during the period of January 1, 1997 to April 7, 1997, Respondent Dormal Cavilee was under contract and was not solely and exclusively employed by Foster or by Wells. Additionally, an employer-employee relationship did not exist between Foster or Wells and Respondent Dormal Cavilee in that neither Foster nor Wells deducted federal income tax or social security tax, or furnished any health or retirement benefits to Respondent Dormal Cavilee. Case Number 97-3096 Respondent Mary Cavilee was not licensed as a private investigator in the State of Florida and did not possess a State of Florida Class “C” Private Investigator license at any time material to this proceeding. Respondent Mary Cavilee was not licensed as a private investigative agency in the State of Florida and did not possess a State of Florida Class “A” Private Investigative Agency license at any time material to this proceeding. During the period of January 1, 1997, to April 7, 1997, Respondent Mary Cavilee performed private investigations, as defined in Section 493.6101(17), Florida Statutes, for Dwight M. Wells or Deborah Wells (Wells), attorneys at law. While performing private investigations for Wells during the period January 1, 1997, to April 7, 1997, Respondent Mary Cavilee was under contract and was not solely and exclusively employed by Wells. Additionally, an employer-employee relationship did not exist between Wells and Respondent Mary Cavilee in that Wells did not deduct federal income tax or social security tax, or furnish any health or retirement benefits to Respondent Mary Cavilee. Case Numbers 97-3049 and 97-3096 A billing statement from Respondent Dormal Cavilee and Respondent Mary Cavilee dated March 1, 1997, to Dwight M. Wells, shows the date of investigation, the person performing the investigation (either Dormal Cavilee or Mary Cavilee), the amount of time involved in performing the investigation, the hourly rate and the total amount charged. The billing statement shows that the investigations are related to the defense of Grady Wilson in Case Number CF93-5094-A1XX, a criminal case in Polk County, Florida. Nothing on the billing statement indicates that it is a statement for private investigations furnished by a private investigative agency referred to as Criminal Defense Investigations. The Motion for Payment of Costs filed by Dwight M. Bell in Case Number CF93-5094-A1XX provides in pertinent part: That the following expense was incurred during the investigation, discovery process, pre-trial preparation and trial of this cause: Criminal Defense Investigations $2,500.00 Both the Order Approving Additional Funds for Investigation Costs dated March 3, 1997, and the Order Approving Motion for Payment of Costs refer to the payments as payment for investigations performed by criminal defense investigations. Neither Respondent Dormal Cavilee nor Respondent Mary Cavilee advertised as providing, or engaged in the business of furnishing private investigations, notwithstanding language in the motion and orders referred to above which was apparently referring to the type of services being performed rather than private investigations being furnished by a private investigative agency. On April 7, 1997, a Cease and Desist Order was issued to both Respondent Dormal Cavilee and Respondent Mary Cavilee. The record indicates that both Respondent Dormal Cavilee and Respondent Mary Cavilee honored the Cease and Desist Order and cease performing any private investigations other than in an employer-employee relationship with Wells. Chapter 493, Florida Statutes, did not apply to such activity. See Section 493.6102, Florida Statutes. Neither Respondent Dormal Cavilee nor Respondent Mary Cavilee attempted to “cover-up” any of their activities when questioned by the investigator for the Department. Respondents knew or should have known that their activity in regards to investigations for Foster and Wells required that they be licensed under Chapter 493, Florida Statutes. However, there appeared to be some confusion on the part of the Respondents as to whether their relationship with the defense attorneys required that they be licensed under Chapter 493, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law and review of Rule 1C-3.113, Florida Administrative Code, concerning disciplinary guidelines, range of penalties, and aggravating and mitigating circumstances, it is recommended that the Department in Case Number 97-3049 enter a final order: (a) dismissing Counts I, II, and IV of the Administrative Complaint; (b) finding Respondent Dormal Cavilee guilty of the violations charged in Count III and V of the Administrative Complaint, assess an administrative fine in the amount of $300.00 for each count for a total of $600.00. It is further recommended that the Department in Case Number 97-3096 enter a final order dismissing Counts I and III of the Administrative Complaint; and finding Respondent Mary Cavilee guilty of the violations charged in Count II of the Administrative Complaint, assess an administrative fine in the amount of $300.00. DONE AND ENTERED this 2nd day of January, 1998, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of January, 1998. COPIES FURNISHED: Hon. Sandra B. Mortham Secretary of State The Capitol Tallahassee, Florida 32399-0250 Don Bell General Counsel The Capitol, Plaza Level-02 Tallahassee, Florida 32399-0250 Kristi Reid Bronson, Esquire Department of State, Division of Licensing The Capital, Mail Station Four Tallahassee, Florida 32399-0250 Dormal Dean Cavilee 1900 Queens Terrace Southwest Winter Haven, Florida 33880 Mary Louise Cavilee 2768 Janie Trail Auburndale, Florida 33823
The Issue The ultimate issue for determination at final hearing was whether Respondents committed the offenses set forth in the administrative complaints, and if so, what disciplinary action should be taken against Respondents' licenses.
Findings Of Fact Frank Wallberg was going through a divorce and wanted a background investigation on his wife's attorney. On June 19, 1992, he went to the office of South Florida Detective Bureau, Inc. (Respondent Bureau) and specifically requested the services of William Polero (Respondent W. Polero) who he had met a few years prior to this. Respondent Bureau's secretary contacted Respondent W. Polero by telephone, and Wallberg explained to him what he wanted. Respondent W. Polero agreed to perform the background investigation on the attorney, requiring Wallberg to first pay a $1,500 retainer which he was to bring to Respondent W. Polero's home, approximately two blocks from Respondent Bureau's office. As agreed, Wallberg met Respondent W. Polero at his home and gave him a check for $1,500 as a retainer, made payable to Respondent Bureau. For the $1,500 Respondent W. Polero indicated that a complete written report on the attorney could be performed. Wallberg provided Respondent W. Polero with the attorney's complete name, address and telephone number. Respondent W. Polero made several telephone calls while Wallberg was at his home, attempting to obtain information on the attorney but all were unsuccessful. Approximately two days later, Wallberg contacted Respondent W. Polero inquiring about the progress of the investigation. Respondent W. Polero indicated that he was waiting for responses from inquiries and to contact him again that following Friday. Wallberg called back as directed. Respondent W. Polero indicated that after searching public records and court records and contacting The Florida Bar and other attorneys, the attorney had nothing irregular in his background. Feeling that he had not gotten his money worth, Wallberg questioned the cost of the investigation. Respondent W. Polero responded that there was nothing else to report, so there was nothing to report in writing and that the cost of the investigation was $1,500. By that time, the $1,500 check had been cashed. Being very disappointed, on or about July 11, 1992, Wallberg contacted another investigative agency, the Wackenhut Corporation, and obtained their services. He provided Wackenhut's investigator, John Rose, with the same information that he had provided Respondent W. Polero, i.e., the attorney's name, address and telephone number. On July 13, 1992, Rose began his investigation. By July 15, 1992, Rose had completed his investigation and prepared an 18 page written report with numerous exhibits attached. His report reflected the numerous sources he utilized, which included researching public records at the Dade County Courthouse, records maintained by the State of Florida, Department of Highway Safety and Motor Vehicles, including vehicle and driver license information, criminal records maintained by Dade County Corrections and Rehabilitation Department and public records of The Florida Bar. Through these sources, Rose was able to obtain a plethora of information on the attorney, including a history of federal and state tax liens having been filed against the attorney's property, criminal arrests and convictions, and disciplinary action against the attorney by The Florida Bar, with the specifics thereon. With his written report, Rose submitted an itemized invoice dated July 15, 1992, for his services, totaling $650.30. The invoice reflected that he had expended 10 hours on the investigation (generally outlining what was done), at a charge of $60 an hour, equalling $600 for the time, and that there were $50.30 in additional costs ($27 document copies, $2 for parking and $21.30 for mileage). By letter dated September 23, 1992, which was mailed and faxed, Wallberg informed Respondents that he had obtained the services of Wackenhut Corporation and requested that they provide Wackenhut with all the information in their file when requested by Wackenhut. By fax transmission on that same date, Jamie Polero (Respondent J. Polero), President of Respondent Bureau and the son of Respondent W. Polero, responded indicating, among other things, that there was no new or different information from what Respondent W. Polero had provided him and that since Wallberg had not contacted them for almost three months, he had assumed that Wallberg did not wish to continue the investigation. This was the first time that Wallberg had had any contact with Respondent J. Polero. By letter dated September 24, 1992, which was mailed and faxed, Wallberg informed Respondent J. Polero of his dissatisfaction with the investigation performed by Respondent Bureau and requested a $1,350 refund of the $1,500 within 24 hours. Wallberg never received any refund. Several communications between Wallberg and Respondent J. Polero failed to resolve the dispute. Finally, Wallberg contacted State of Florida, Department of State, Division of Licensing (Petitioner) and filed a complaint. Respondent Bureau's investigative file for Wallberg consisted of nine pages, most of which were communications back and forth with Wallberg. Approximately eight hours were expended on Wallberg's case. Even though little investigative work was done, Respondent J. Polero admitted that most of it was performed by Respondent W. Polero, and not by himself. The investigative work performed by Respondents failed to meet industry standards in that the minimum investigation was not conducted, public records were not properly researched and false information was provided to Wallberg, their client. At all times material hereto, Respondent W. Polero was unlicensed. At all times material hereto, Respondent J. Polero was a licensed private investigator (Class "C" license) and a licensed recovery agent (repossessor) (Class "E" license). Also, at all times material hereto, Respondent Bureau was a licensed private investigative agency (Class "A" license) and a licensed recovery (repossession) agency (Class "R" license). No prior disciplinary action has been taken against Respondent J. Polero. Both Respondent Bureau and Respondent W. Polero have prior disciplinary history. In 1989, Petitioner filed administrative complaints against both Respondents for, among other things, unlicensed activity which resulted in the parties stipulating to a penalty of an administrative fine totalling $1,800, 2/ which was paid on or about August 30, 1989. 3/ Additionally, in 1989, Petitioner filed an administrative complaint against Respondent Bureau and in 1990 against Respondent W. Polero for unlicensed activity which resulted in the parties stipulating to an administrative fine of $2,000 4/ which was paid by Respondent Bureau on or about May 25, 1990. 5/ As a related issue to the 1990 complaint, on April 27, 1990, Petitioner issued a Notice to Cease and Desist to Respondent W. Polero's unlicensed activity-- performing private investigative work without a license and managing a private investigative agency without a license--and served him on May 8, 1990.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of State, Division of Licensing enter a Final Order: Suspending South Florida Detective Bureau, Inc.'s Class "A" private investigative agency license and Class "R" recovery (repossession) agency license for one year and imposing an administrative fine of $2,000. Suspending Jamie J. Polero's Class "C" private investigator license and Class "E" recovery agent (repossessor) license for one year 6/ and imposing an administrative fine of $2,000. Imposing an administrative fine of $2,000 against William Polero. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of March 1994. ERROL H. POWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of March 1994.
The Issue Whether Respondent violated Section 493.6118(1)(n), Florida Statutes, as alleged in Counts I, II, IV and V of the Administrative Complaint by subcontracting with individuals named therein to provide private investigative services at a time when they were not licensed as a Class "A" investigative agency. Whether Respondent violated Section 493.6118(1)(n), Florida Statutes, as alleged in Count III of the Administrative Complaint, by allowing an improperly licensed person, John Polk, to direct the activities of licensees, or exercise operational control over the regulated activities of Morse Security Group, Incorporated. Whether Respondent violated Section 493.6118(1)(s), Florida Statutes, as alleged in Count VI in the Administrative Complaint, by failing to report to the Department the termination of persons listed in that count. Whether Respondent violated Section 493.6118(1)(s), Florida Statutes, as alleged in the Administrative Complaint, by directing the activities of licensees, thereby acting as a manager, subsequent to the voluntary deactivation of his Class "C" private investigator's license and Class "M" private investigative/security agency manager's license. Whether Respondent violated Section 493.6118(1)(f), Florida Statutes, as alleged in the Administrative Complaint, by misrepresenting his agency by advertising in the Martindale-Hubbell Law Directory 1993, that his agency is "Florida's largest and oldest private investigative agency", when it is not. Whether Respondent violated Section 493.6118(1)(r), Florida Statutes, as alleged in the Administrative Complaint, by failing to certify the completion or termination of the internship of William J. Smithberger when he had the duty as a sponsor to do so.
Findings Of Fact Morse Security Group holds a Class "A" Private Investigative Agency License, Number AOO-00919, effective June 30, 1993, which was originally issued in 1976, and is currently active. Harvey Morse, the principal of Respondent, holds a Class "C" private investigator license, number COO-008861, effective November 24, 1992, which was originally issued in 1975, and was placed on inactive status by the Department on January 21, 1993. Harvey Morse also was issued a Class "DI" Security Officer Instructor License, No. DI89-00348, effective January 8, 1993, a Class "G" Statewide Firearms License, No. GOO-11067, effective December 6, 1991, which was placed on inactive status with the Department on January 21, 1993, and a Class "M" Private Investigative/Security Agency Manager license No. M85-00112, effective August 7, 1992, which was placed on inactive status with the Department on January 21, 1993. Craig Hull became employed with Respondent in February of 1993, as a part-time investigator. Hull worked under the direct supervision and control of Respondent, and held himself out to the public as an employee. When Hull entered into his contractual employment agreement with Respondent, he was given a vacation/sick day policy document noting his status as a full-time employee of Respondent. Hull executed an Employment Agreement which referred to him as the "employee" and also referred to him as an "independent subcontractor" for the purpose of withholdings. At the time of Hull's employment with Respondent, he held a Class "C" private investigator license. In all aspects of Hull's employment with Respondent, he conducted himself, and was treated as an employee. Hull did business for Respondent under the Respondent's corporate name; held himself out to the public as being Respondent's employee; signed contracts on behalf of Respondent; received letters and correspondence as an employee; was directed when and were to show up for work; how to answer to the telephone; when to answer the telephone; and in all other respects was under the direct control and supervision of Respondent. During the course of employment with Morse Security Group, Hull possessed no occupational license, business cards, stationery, telephone listing, brochures or printed material that identified him as having any relationship with Respondent other than employee and filed no fictitious name with the Department of State. In dealing with clients and the general public, Hull held himself out as an employee of Respondent and his business cards indicated that he was an employee of Respondent. Of the five cases that Hull handled on behalf of Respondent, he at no time attempted to limit the Respondent's liability to any of those clients by asserting that he was an independent contractor, or had any other relationship with Respondent other than employee. Respondent never identified Hull to others an anything other than an employee. At no time did Respondent attempt to limit its general liability to the public as to Hull's employment by the use of the term subcontractor. Respondent never attempted to perpetrate a fraud on the public by the use of the term subcontractor as to Hull's employment. Respondent's liability insurance in effect from 1991 through 1994, specifically covered Hull as an employee of Respondent. John K. Polk was employed by Respondent from February 5, 1992 through March 27, 1993. At the inception of Polk's employment, he entered into an employment contract with Respondent. The agreement for employment was entitled "Employment Agreement", and consisted of twelve paragraphs. Throughout the employment agreement Polk is referred to as employee and Respondent is referred to as employer except in paragraph 10. Paragraph 10 informed Polk that as employee he would be regarded as a subcontractor or independent contractor for the purposes of taxes, workers' compensation, licenses, permits, and insurance. During the course of Polk's employment his relationship with Respondent was governed by the employment agreement. In addition to the employment agreement signed by Polk, he received a separate document entitled, "Employee Vacation/Sick Leave Policy". The vacation/sick leave document further identified and regulated Polk as an employee. During the course of Polk's employment with Respondent Polk did not maintain a separate general liability policy. At no time during the course of Polk's employment with Respondent did Respondent attempt to limit its liability to its clients by treating Polk as anything other than as an employee. Polk never attempted to use the fact that the term "subcontractor" had been used in paragraph 10 of the employment agreement in order to limit Respondent's liabilities to clients. Polk's employee fidelity bond questionnaire for State Farm Fire and Casualty Company Insurance was submitted by Respondent listing Polk as an employee, and Polk was covered under the policy for any acts of negligence of omissions. During the period of Polk's employment with Respondent he held no separate occupational license. Polk's business cards and stationery was provided by Respondent, and identified Polk as an employee of Respondent. The business telephone employed by Polk during his employment with Respondent was identified as Respondent. Polk worked under the direct supervision and control of Respondent. At all times Polk held himself out as an employee to Respondent's clients. During the course of his employment with Respondent, Polk was covered under Respondent's general liability policy for any acts of negligence or omission committed by Polk. Randy Morgan was employed with Respondent as an investigator from January 1, 1991, to approximately December, 1992. Morgan did not have a written contract for employment with the Respondent. Morgan was compensated by the case on an hourly basis by Respondent. Morgan was responsible for withholding his own Social Security and federal income taxes. Morgan considered himself as an employee of Respondent, and was under the supervision and control of Respondent. At all times during the course of his employment Morgan held himself out as an employee of Respondent, not as a subcontractor. Robert O. Sutley was employed by Respondent from November of 1992, until approximately March, 1993. During his employment with Respondent, Sutley held "DD", "B", and "G" licenses from the Department. Sutley entered into an employment agreement with Respondent which consisted of twelve paragraphs entitled "Employment Agreement". Within the employment agreement, the term "independent contractor" was a term used in relation to the workers' compensation and the withholding of taxes. Respondent did not attempt to limit its liability to the general public in regard to Sutley. Throughout the course of his employment with Respondent, Sutley held himself out as an investigator employee of Respondent. During his employment with Respondent, Sutley was under the supervision and control of Respondent. Respondent was contacted on a cold call by Martindale-Hubbell Law Directory for the purposes of advertising. After negotiations, Respondent caused to be issued an advertisement in the Martindale-Hubbell directory. Respondent initially instructed Martindale-Hubbell to advertise that Respondent was "one of the oldest and largest investigative agencies in Florida". The basis for the requested advertisement that Respondent was one of the oldest and largest was Respondent's purchase of a statewide detective agency, which had been in business in Florida since the 1950's, and that Respondent has an affiliate office in Europe and other parts of the United States. Pinkerton's of Florida has been licensed in Florida as an investigative agency since 1968. Pinkerton's has employed over 25 investigator employees on an annual basis over the last five years. Prior to its publication in Martindale-Hubbell, Respondent was not aware of the contents of the advertisement. The ad, as published, stated that the Respondent was the oldest and largest investigative agency in Florida. Respondent became aware of the contents of the advertisement upon receipt of the complaint filed against him by the State. Respondent then sent a letter to Martindale-Hubbell, inquiring why the advertisement read "Florida's oldest and largest private investigative agency", as opposed to "one of Florida's largest and oldest private investigative agencies" as previously instructed by Respondent. Martindale-Hubbell acknowledged that the final draft of the advertisement had been done without Respondent's approval and that an error had been made by Martindale-Hubbell in the advertisement, as it appeared in their publication. Respondent instructed Martindale-Hubbell to cease further advertisement. Respondent reported on his letterhead stationery to the Department the termination of the following persons: Colard, Crews, Fitzgerald, Martin, Morgan, Polk, and Stebbins within the statutory time limit. When Respondent was advised by Mr. Matlack that the computer printout from the Department showed that the above named people were still on a list indicating that they were associated with Respondent, Respondent sent another letter dated April 27, 1993 to the Department advising them of the termination of those listed individuals. As of October 15, 1993, the above named persons were still listed as in Respondent's employ. During the period from January 1, 1993 to April 1993, Harvey E. Morse voluntarily deactivated Class "C" Private Investigator's License and Private Investigative Security Agency Manager's License. Morse voluntarily deactivated licenses upon his graduation from the police academy and his association with the Florida Highway Patrol as a full time auxiliary trooper. Upon voluntary deactivation of Morse's licenses, Morse notified each of the company's employees that Morse would not be involved in any more investigations, and that the employees were to receive their direction from either Dwayne Rutledge or Maria Morse. Morse continued to engage in non-regulated functions such as marketing, sales, computer functions, bookkeeping, and payroll and teaching, training and instruction. During the periods of voluntary deactivation of his license, Morse would run a driver's license record on the computer, receive a printout, and hand it to an employee. Morse refrained, however, from being involved in an investigation based upon that printout. Morse has refrained from involvement in any regulated activities from the time that he voluntarily deactivated his license. Once Morse voluntarily deactivated his license, the primary person responsible for investigations and management of employees was Dwayne Rutledge. During the period from September 1992 to January 1993, Harvey E. Morse supervised and trained John Polk. Morse was always available by way of pager or cellular phone, and in constant contact with John Polk during that time period. Further, Respondent installed a two-way radio system so that Morse could talk with and supervise John Polk on a constant basis. Morse was never more than 60 miles from John Polk during his internship from September 1992 till January 1993, and Morse was in daily contact with John Polk in regard to pending investigations, new matters, old matters, and the general business of the Respondent's office. On several occasions during the above stated time period, Polk would communicate with Morse while he was on patrol in a Florida Highway Patrol vehicle, and ask questions of Morse concerning how investigative matters should be handled. Polk was afforded certain latitude by Morse to make administrative decisions on a day-to-day basis as his training progressed, and Morse placed more confidence in Polk's abilities in certain areas. However, Morse still oversaw those decisions. At all times, Polk's supervision of Respondent's employees was under the direct supervision and control of Morse or other licensed managers in Respondent's employ. The purpose of the Respondent's purchase of a two way radio system was twofold: One, to communicate with other investigators during the course of an investigation; and the other was to afford constant communication among Morse, the office managers, Dwayne Rutledge and Maria Morse, and the investigators, in case of a question would arise in the performance of their duties. Rutledge, as well as Maria Morse, became employed as office manager(s) shortly after 1990, and both he and Mrs. Morse were continuously available to the employees and oversaw, in conjunction with the Morse, the performance of their regulated duties.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is WHEREFORE, it is RECOMMENDED: Petitioner having failed to prove by clear and convincing evidence that Respondent violated those sections as alleged in Counts I through IX of the Administrative Complaint, it is hereby recommended that said Counts be DISMISSED. DONE and ENTERED this 31st day of January, 1994, in Tallahassee, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3890 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Proposed findings of fact submitted by Petitioner. Petitioner waived the filing of proposed findings of fact. Proposed findings of fact submitted by Respondent. Accepted in substance: Count I, unnumbered paragraphs 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18; Count II, paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 20, 22; Count IV, unnumbered paragraphs 1, 2, 3, 4, 6, 7, 8; Count V, unnumbered paragraphs 1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18; Count VIII, unnumbered paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9; Count VI, unnumbered paragraphs 1, 2 (in part), 3, 5, 6, 7, 8, 9; Count VII, unnumbered paragraphs 1, 2, 3, 5, 6, 7, 8, 9, 10, 11, 12; Count III, unnumbered paragraphs 1, 2, 3, 5, 6, 7, 8, 10, 11, 12. Rejected as argument or conclusory: Count I, unnumbered paragraphs 2, 21; Count IV, paragraphs 9; Count V, paragraph 2(in part); Count VII, paragraphs 4; Count III paragraphs 4, 9. Rejected as redundant or surplusage, or irrelevant and immaterial: Count II, unnumbered paragraphs 13, 18, 19; Count IV, paragraph 5; Count VI, paragraph 4. COPIES FURNISHED: Henri C. Cawthon, Esquire Department of State Division of Licensing The Capitol Mail Station-4 Tallahassee, Florida 32399-0250 William J. Sheaffer, Esquire William J. Sheaffer, PA. 609 East Central Boulevard Orlando, Florida 32801 Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater, Esquire General Counsel The Capitol, PL-02 Tallahassee, Florida 32399-0250
The Issue Whether Petitioner has sufficient experience in private investigative work to qualify her for licensure as a Class "C" private investigator under Section 493,306(4), Florida Statutes (Supp. 1980).
Findings Of Fact In July, 1980, Applicant applied for a Class "C" license as a private detective. By letter dated April 9, 1981, the Department denied the requested license solely on the ground that she failed to meet the minimum "2 years experience and/or training" requirement of Section 493.306(4), Florida Statutes (Supp. 1980. 2/ The Department concedes that, except for her alleged lack of investigative experience, she is qualified for the requested license. (Stipulation of counsel; R-1, R-2) Since 1973, Applicant has engaged in the business of furnishing for- hire private investigative services under the name of ABC Locating Service, a business located in Orange Park, Florida. She started the business as a modest venture; she was unaware that a private investigator's license was required and was also unsure of her ability to conduct private investigations. (Testimony of Applicant.) Over the years, her small and tentative investigation agency has grown into a substantial business. Since January, 1978, she has conducted more than 200 private investigations; from 1979 to 1980, her investigations consumed over 5,000 hours. The gross receipts from her investigative work exceeded $8,400 during 1978 and $12,100 during 1979. If issued a license by the Department, she plans to expand her activities and relocate her business to a commercial office building. 3/ (Testimony of Applicant; P-3) In the operation of her business, Applicant has conducted numerous private investigations for the purpose of obtaining information with reference to: (a) the identify, habits, conduct, movements, whereabouts, and character of persons; (b) the credibility of witnesses and other persons; (c) the whereabouts of missing persons; (d) the location of lost or stolen property; and (e) the preparation and trial of civil or criminal cases. 4/ Several typical investigations are described below: February, 1977; Criminal Investigation (four weeks): A mother hired Applicant to investigate son's arrest on shoplifting charges. Applicant questioned merchant about incident and investigated behavior and past records of son's accomplices; investigation revealed that client's son had a peripheral role in crime and resulted in his receiving a probationary sentence rather than imprisonment. December, 1979; Criminal Investigation (nine months): A teenager hired Applicant to investigate the circumstances surrounding his conviction on drug-related charges and placement in the Lancaster Correctional Institution for a six-year term. She investigated witnesses and police officers, examined court records, and identified conflicting accounts of the incident. The evidence she gathered was presented to a court, and resulted in her client's release and placement on five years' probation. August, 1977 Surveillance Investigation (two weeks): A wife hired Applicant to investigate the conduct and movements of her husband who was neglecting his family responsibilities. Applicant visited subject's place of employment, questioned his coworkers and placed under surveillance the bar which he commonly frequented. Eventually, the subject visited the bar and left in the company of a female with whom he spent the night. This information, with photographs, was presented to Applicant's client and led to a dissolution of the marriage. November, 1980; Surveillance Investigation (four weeks): A wife hired Applicant to investigate the conduct and movements of her husband. After questioning the subject's friends and placing him under surveillance, Applicant gathered evidence indicating that he was having an illicit relation- ship with another woman and using heavy drugs. August, 1977; Missing Person Investigation (approximately ten days): A mother hired Applicant to locate her missing daughter. Applicant inter- viewed subject's friends, checked popular gathering places for teenagers, and eventually located her daughter at a local movie theater. February, 1979; Surveillance Investigation (three days): A wife hired Applicant to investigate conduct, habits, and movements of her husband who was neglecting his family responsibilities. Applicant placed him under surveillance and discovered that he was suffering from a serious drinking problem. February, 1979; Missing Person Investigation (three days): A mother hired Applicant to locate her missing 12-year-old son. Applicant found the subject by visiting his school and interrogating his friends and classmates. February, 1979; Surveillance Investigation (two weeks): A mother hired Applicant to locate and identify an individual who was selling illicit drugs to her son. With the assistance of the Orange Park Police Department, Applicant conducted a joint undercover investigation; she made a "buy" using marked money which resulted in the drug dealer's arrest and conviction. (Testimony of Harvey, Kosobud, Franasiak, Rose; P-3.) On several occasions, Applicant worked closely with and assisted Sergeant Mike Probst, Orange Park Police Department, in recovering stolen property and locating missing persons. Information which she gave to Sergeant Probst resulted in several drug arrests and convictions. (Testimony of Applicant; P-2.) Prior to opening ABC Locating Service, Applicant applied for and obtained a Clay County occupational license to engage in business as a clairvoyant. (She testified that she has unique psychic abilities which have sometimes proven helpful in locating missing persons.) Although she still has a clairvoyant license, she has little time available to practice that occupation; almost all of her energies are devoted to her investigation service. The two occupations are unrelated in that when she occasionally practices as a clairvoyant, she operates out of a separate building and keeps a separate set of business records. (Testimony of Applicant.) As part of her second application for a private investigator's license, Applicant executed an Affidavit of Experience (on a one-page Department form) attesting that she had conducted over 400 private investigations in the last three years; that those investigations involved locating missing persons, checking the background of employees and in-laws, recovering stolen property, investigating thefts, and aiding in the defense of accused persons. In an effort to supply additional specific information, she attached a 4 1/2 page, single-spaced description of 17 separate private investigations she had conducted from 1977 to 1980. In spite of this seemingly ample description and substantiation of her investigative experience, the Department concluded that "according to [its] . . . investigative report, you [Applicant] do not meet the [experience] requirements" for licensure. (R-1, R-2.) Yet, at hearing, the Department presented no investigator, no investigative report, no witnesses, and no evidence to rebut or controvert the testimony of Applicant. The only affirmative position taken by the Department was that the burden was on Applicant to demonstrate investigative experience sufficient for licensure under Chapter 493, Part 1, Florida Statutes (Supp. 1980).
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department issue Applicant a private investigator's Class "C" license. DONE AND RECOMMENDED this 29th day of September, 1981, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Telephone: (904) 488-9675 FILED with the clerk of the Division of Administrative Hearings this 29th day of September, 1981.
The Issue The issue presented for decision herein is whether or not the Respondent's private investigator licenses should be revoked based on conduct, set forth hereinafter in detail contained in an Amended Administrative Complaint filed herein mailed October 11, 1985. Preliminary Statement The Petitioner, Department of State, Division of Licensing, issued an Administrative Complaint to assess an Administrative fine against Respondent Arthur Letourneau, on November 9, 1984. The complaint was amended on March 5, 1985. A second amended complaint was issued on October 11, 1985 seeking revocation of Respondent's license. That complaint is the charging document which is the focus of this hearing. That document alleges as follows: Count I: The Respondent operated a private investigative agency for hire utilizing unlicensed investigators and process servers prior to becoming licensed as a Class "A" agency in violation of Sections 493.319(1)(g) and 493.304(1), Florida Statutes. Count II: The Respondent performed the services of a Private Investigator for hire without a Class "C" license in violation of Section 493.319(1)(g); Count III: Respondent has incurred and has failed to satisfy two judgments for outstanding fees for private investigations which constitute misconduct under Section 493.319(1)(f). The investigations were performed by David Tracy and Anthony Luizzi and judgments and fees are outstanding in the amount of $5,314.44 (Tracy) and $1,731.00 (Luizzi). At the hearing, Respondent's Counsel filed an ore tenus Motion for Continuance of the hearing based on a claimed lack of timely notice to prepare for the hearing. Respondent's Motion was tentatively denied. 1/ Additionally, Respondent's Counsel challenged the constitutionality of Chapter 493, Florida Statutes, alleging, inter alia that the referenced statute violated Respondent's due process in that the statute was overbroad, ambiguous and may involve the prohibition of innocuous activities. Counsel also alleged that the statutes as enacted violated Respondent's First Amendment Right to freedom of speech. Finally, Respondent's counsel averred that conduct proscribed by Section 493.301, F.S. involved conduct which although improper to be engaged in by an unlicensed investigator, is the type conduct considered permissible by attorneys utilizing the services of investigators. The undersigned lacks authority to render determinations of the alleged unconstitutionality of statutes and therefore denied Respondent's Motion to Dismiss based on the alleged unconstitutionality of Chapter 493, Florida Statutes.
Findings Of Fact During times material, the Petitioner, Division of Licensing is the state agency having authority and jurisdiction to license and regulate private investigators and private investigative agencies pursuant to Chapter 493, Florida Statutes. Respondent, Arthur Leteurneau, applied for a Class "C" private investigator's license and a Class "A" private investigative agency's license on April 9, 1984. (Petitioner's Exhibit 2). The applied for licenses were issued to Respondent on September 21, 1984. Respondent holds Class "A" private investigative agency's license No. GA8400007 and Class "C" private investigation's license No. GC0400013, both effective September 21, 1984. Prior to his licensure in Florida, Respondent worked (in Florida) for various attorneys and law offices in Dade and Broward counties. (TR 211-225; Petitioner's Exhibit 1. Respondent performed a variety of services for said attorneys including the photographing of accident scenes, taking sworn witness statements, locating the whereabouts of witnesses and other persons and service of legal process. Additionally, while working for attorney Richard Auerbach, Respondent recruited two other individuals, Anthony Liuzzi and David Tracy to assist him in the performance of investigative work. David Tracy worked with Respondent from January thru September, 1983. (TR 91-95). Respondent gave Tracy specific work assignments such as the taking of witness statements, photographing accident scenes and completing client's interview sheets. At the time Tracy performed the services, he was not licensed as a investigator or as an intern. Tracy worked without a surety bond or insurance. A dispute arose between Respondent and Tracy concerning the payment of fees for Tracy's services. Tracy filed a claim against Respondent in Circuit Court, Broward County, regarding the payment for services and on September 18, 1984, a judgment was entered in his behalf in the amount of $5,314.44 for services rendered. (Petitioner's Exhibit 4, TR 100-103). That judgment was outstanding at the time of this hearing. (TR 107). Anthony Liuzzi began working with Respondent in July, 1883 and continued through September, 1983. At the time Liuzzi was a licensed investigator intern and was working under the sponsorship and insurance of the Intercounty Investigative Agency. (TR 133). Liuzzi, like Tracy, also assisted Respondent in completing work assignments including taking pictures of accident scenes, researching property ownership, interviewing clients and taking witness statements relating to personal injury claims. Like Tracy, Liuzzi also had a dispute with Respondent over fees for his services and filed a claim in Circuit Court for unpaid wages in the amount $1,731.00. Liuzzi received a judgment against Respondent in the amount climbed which was unsatisfied at the time of the hearing herein. (Petitioner's Exhibit 4; TR 138- 139). Prior to his licensure, Respondent spoke to several employees employed by Petitioner concerning the requirements for and his need to obtain an investigator's license in circumstances similar to the arrangements he had with the several lawyers for whom he performed investigative work. Excluding employee Pam Pingree, Respondent was advised (by Petitioner's staff) that he was not required to be licensed by Petitioner. Ms. Pingree advised Respondent that although it was not required that he be licensed, inasmuch as he was eligible for licensure and to remove any cloud concerning the need for him to be licensed, he should apply for and obtain a license. Respondent first spoke to Petitioner's employee Seymour Klosky on August 20, 1980. During the meeting with Klosky, Respondent also net with John Bianco, an investigator employed by Petitioner. Respondent later met with Harvey Matthews, also an employee of Petitioner, who related that what he was doing was permissible based on Respondent's detailed description of the manner in which he conducted assignments for the various attorneys. Respondent met with Matthews on October 8, 1983 and on February 9, 1984. TR 207-208. During the February 9, 1984 meeting with Matthews, Respondent requested a meeting with Pam Pingree who advised him of Petitioner's policy with respect to the need for licensure to engage in the type work that he was performing for attorneys. Ms. Pingree related that it "wasn't the policy of the Department to prosecute people if they have the qualification [Respondent] had, why don't he [Respondent] get a license." (TR 208). Respondent agreed to, and in fact applied for licenses, as indicated, on April 9, 1984. Respondent's application for licensure was investigated by Petitioner's employee Richard Chauncy. Respondent was investigated by investigator Chauncy on April 10, 1984. During the investigation, Respondent offered his experiences with law firms in Dade and Broward Counties as examples of the investigative experience he had. Additionally, Respondent listed his experience as a Deputy Sheriff with the Cook County Sheriff's office in Chicago, Illinois. Respondent was employed by the Cook County Sheriff's office from December 1970 thru July, 1979 as a Deputy Sheriff. Respondent also served as a private investigator in Chicago from the period June, 1970 to October, 1981 as a self employed private investigator on a part time basis. Petitioner was well aware of the fact that Respondent conducted private investigative work for various law firms in the Miami area during a period in which he was not licensed as a private investigator or licensed to conduct a private investigative agency. (Petitioner's Exhibit 1) Additionally, Petitioner was aware that Anthony Liuzzi and David Tracy had filed complaints against Respondent based on the dispute for unpaid wages which is the subject of the amended administrative complaint filed herein. (Petitioner's Exhibit 1, Page 3, Section v.) Additionally, Liuzzi had filed with Respondent at least three complaint letters which were the subject of investigation by Petitioner, prior to the time Respondent filed his application for licensure. (Respondent's Exhibits 1, 3 and 4). The judgments, which are the subject of the amended administrative complaint, were entered shortly (three days) prior to Respondent's licensure. The operative facts forming the basis for the issuance of the judgments involve the disputed wage claims of Anthony Liuzzi and David Tracy. Respondent was qualified to hold a private investigative and private investigator's agency license based on the experience requirements set forth in Section 493.306(4), Florida Statutes (1985). Petitioner's policy is to "take disciplinary action against an applicant who performs investigative services without a license, generally in the form of an administrative fine, and at the same time grant an otherwise qualified person a license." (TR 26-28, Testimony of Petitioner's Division Director, Shelley Bradshaw). All of the work performed by Respondent, which is the basis of the complaint filed herein, was work performed prior to Respondent's licensure either as a private investigator or a private investigative agency.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Amended Administrative Complaint filed herein be DISMISSED with prejudice. RECOMMENDED this 15th day of December, 1986, in Tallahassee Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 1986.
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
The Issue The issue presented is whether Petitioner's application for a Class "C" private investigator license should be granted.
Findings Of Fact Petitioner applied for a Class "C" private investigator license. The Department denied that application by letter dated November 24, 1993, for the reason that Petitioner had not shown that he had the two years of full-time experience or training required for licensure. As evidence of his two years of full-time experience or training, Petitioner had submitted to the Department an affidavit from attorney Mark M. Spatz of the law firm Simons and Spatz and an affidavit from attorney Lawrence S. Ben of the law firm Chikovsky and Ben. Both of those affidavits had been altered. Although Petitioner did perform some services for attorney Spatz' law firm by assisting in the investigation and preparation of some cases for trial from September of 1990 to June of 1992, he did so as an independent contractor and not as an employee. That law firm provided Petitioner with no training or equipment and exercised no control over him. Petitioner was simply given an assignment and told to complete it for a flat rate. Petitioner was not held out by the law firm to be an employee, he was not carried on any of the firm's insurance policies, no taxes were withheld from his pay check when he carried out an assignment, and Petitioner did not receive a weekly paycheck. Petitioner's contacts with that law firm were minimal and numbered less than ten. Petitioner worked as an employee at the law firm of Chikovsky and Ben. He performed both janitorial work and investigative work. The amount of his time spent working as a janitor versus the time spent working as an investigator while employed by that law firm is unknown as is the length of time he was employed there.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application for licensure as a Class "C" private investigator. DONE and ENTERED this 28th day of March, 1994, at Tallahassee, Florida. LINDA M. RIGOT 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 28th day of March, 1994. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 94-0086S Petitioner's proposed findings of fact delineated by letters A-I have been rejected as not constituting findings of fact but rather as constituting argument, conclusions of law, or recitation of the testimony. Respondent's proposed findings of fact numbered 1-3 and 5-10 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 4 has been rejected as not being supported by the weight of the competent evidence in this cause. COPIES FURNISHED: Fenel Antoine 1019 Northwest 5th Avenue, #2 Fort Lauderdale, Florida 33311 Richard R. Whidden, Jr., Esquire Assistant General Counsel Department of State Division of Licensing The Capitol, M.S. #4 Tallahassee, Florida 32399-0250 Honorable Jim Smith Secretary of State Department of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater, General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250
The Issue Whether the Respondent committed the violation alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating persons engaged in the business of private investigation. At all times material to the allegations of this case, Respondent was licensed as a class "CC" private investigator intern, license number CC97-00449. Respondent also holds a class "G" statewide firearms license, license number G97-01406. During some period prior to September 3, 1997, Respondent was employed by J.R. Investigative Agency. Mr. Onativia owns and operates J.R. Investigative Agency. In August 1997, Mr. Onativia filed a complaint with the Department that Respondent was conducting private investigations without a license. Ms. Robinson, an investigator for the Division of Licensing, was assigned to review the complaint. Ms. Robinson contacted Respondent and advised him that the agency had received a complaint that he was conducting investigations on his own without an agency license. Respondent admitted he was doing investigations but claimed Mr. Onativia knew of his activities. He further admitted to Ms. Robinson that he was doing investigations on his own for attorneys in order to support his family. Respondent had also admitted to the investigation activities to John Esposito. After Ms. Robinson confirmed the information with Mr. Esposito as to the admissions made by Respondent, investigation of the complaint stopped.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of State, Division of Licensing, enter a Final Order revoking Respondent's class "CC" license. DONE AND ENTERED this 1st day of April, 1999, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 1999. COPIES FURNISHED: Honorable Katherine Harris, Secretary of State Department of State The Capitol, Plaza 02 Tallahassee, Florida 32399-0250 Deborah K. Kearney, General Counsel Department of State The Capitol, Lower Level 10 Tallahassee, Florida 32399-0250 Steve Bensko, Esquire Department of State Division of Licensing The Capitol, Mail Station 4 Tallahassee, Florida 32399-0250 David C. Rash, Esquire Law Offices of Johnson and Rash 1509 Northeast Fourth Avenue Fort Lauderdale, Florida 33304
