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.
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 At issue is whether Respondent committed the violations set forth in the Third Amended Administrative Complaint dated August 28, 2002, and if so, what penalty should be imposed.
Findings Of Fact At all times material to this case Respondent held a Class "C" Private Investigator License, number C87-00343, as well as a Class "E" Recovery Agent License, number E87-00046. By Final Order dated January 22, 2002 (Final Order) Petitioner determined that Respondent had conducted or advertised the business of a private investigative agency without a valid Class A license, and had performed the services of a private investigator after his Class C private investigator license had been suspended. Baro was fined for this conduct, and ordered to cease and desist from such activities until such time as he was properly licensed. Baro did not appeal the Final Order. Baro subsequently violated the Final Order by advertising his availability to serve as a private investigator in Palm Beach County, Florida, without first obtaining the requisite licensure. On or about January 14, 2002, in Palm Beach County, Florida, Respondent subcontracted investigative work to CTC International Group, a licensed Florida investigative agency. At that time, Baro did not have a Florida private investigative agency license. In July, 2001, in Palm Beach County, Florida, Baro was working for Mrs. William LeNeve, who was embroiled in a contentious divorce. Baro's services to Mrs. LeNeve included concealing her whereabouts from her husband. Desperate for money, Baro approached Mr. LeNeve and offered to switch sides and help locate Mr. LeNeve’s wife and children for a price to be agreed upon. By way of defense, Baro contends that Petitioner is conducting a "vendetta" because, "[O]pposing Counsel did not appreciate my telling him years ago that I thought what they did to me then amounted to nothing short of extortion." See Baro's letter to the Division of Administrative Hearings, dated April 8, 2003. In a letter to the Division of Administrative Hearings, dated March 14, 2002, Baro asserted, "I know that we can clearly show that the states(sic)case is unjust and that Mr. Bensko's only motivation is a personal vendetta. I would very much like the opportunity to prove that." Baro made no attempt to back up the claim of improper motivation. To be clear, the record--both before and after Baro was represented by counsel--is completely devoid of any evidence that the Petitioner has acted improperly, or is improperly motivated with respect to Baro.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Class "C" Private Investigator License and the Class "E" Recovery Agent License, held by Respondent be revoked and that he be fined $1,500. DONE AND ENTERED this 6th day of May, 2003, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS 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 6th day of May, 2003.
Findings Of Fact The Petitioner, Alex Marrero, age 27, has never been convicted of a crime. He became a Dade County police officer in 1975. During his work as a police officer he received numerous commendations and citations from the Kiwanis Club and his supervisors for outstanding service. One year he was Officer of the Month once, and runner-up for Officer of the Year. During the course of his employment as a police officer, however, the Petitioner became one of the subjects of an investigation by the Internal Security Bureau of the Dade County Public Safety Department, which related to the arrest and beating of Arthur McDuffie on the night of December 17, 1979. As a result of this investigation, the Petitioner was discharged as a police officer on February 1, 1980, by the Director of Public Safety. The Petitioner's termination from employment was reviewed by a hearing examiner for Dade County at hearings held on April 29 and May 15, 1981, which resulted in the issuance of a recommendation dated June 19, 1981, that the discharge of the Petitioner be upheld. Thereupon, on July 16, 1981, the County notified the Petitioner that his dismissal from service was confirmed. The Petitioner admitted the fact that the recommendation of the hearing examiner was based upon findings that he used unnecessary force in the arrest of Arthur McDuffie which contributed to his death. He also admitted that the hearing officer found that he had tampered with evidence to make the death of McDuffie appear to have been accidental. No administrative or judicial review of the Petitioner's discharge as a police officer has been undertaken. Previously, in 1979, the Petitioner was charged with second degree murder and manslaughter and brought to trial in Circuit Court. The Petitioner pleaded self-defense, and he was found not guilty on all counts by a jury. There have been no other incidents in his life questioning his honesty or good moral character, according to the Petitioner. Prior to his employment as a police officer the Petitioner worked for Preventative Security Service and Investigation, Inc. Since his termination as a police officer he has resumed investigative work with this employer, and he has also worked for a jewelry company in Miami as a security consultant. The Petitioner contends that the same facts were before both the jury and the hearing officer relative to the arrest and beating of Arthur McDuffie, and that his acquittal by the jury after a trial wherein over ten witnesses were heard, is entitled to more weight than an administrative proceeding where only two witnesses testified. However, the jury verdict of not guilty after a self- defense plea, without more, is not subject to only a single interpretation. There is not sufficient evidence to support a finding that the death of Arthur McDuffie was justifiable or excusable. The only import of the jury's acquittal of the Petitioner is that he is not guilty of the crimes charged. Acts which might not be criminal offenses, or which may not have been proven sufficiently so as to warrant a conviction, may nevertheless be the basis for administrative proceedings and receive different treatment. Further, the Petitioner presented no evidence to corroborate his own assertions relative to his character, past record, etc. In view of the circumstances surrounding the termination of the Petitioner's employment as a police officer by Dade County, there is not sufficient evidence to support a finding that the Petitioner meets the good character requirement for a private investigative agency license.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Alex Marrero for a Class A Private Investigative Agency license, be denied. THIS RECOMMENDED ORDER entered on this 17th day of November, 1981, in Tallahassee, Florida. WILLIAM B. THOMAS, 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 17th day of November, 1981. COPIES FURNISHED: Edward J. O'Donnell, Esquire Suite 300 1125 N.E. 125th Street North Miami, Florida 33161 James V. Antista, Esquire Room 106, R.A. Gray Building Tallahassee, Florida 32301
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
Findings Of Fact In 1993, Respondent Carl Clausen, along with some acquaintences, was interested in opening a private investigative business or becoming associated with a private investigative agency. Mr. Clausen had an extensive background in police investigative and security work and was well qualified to be licensed as a private investigator. In pursuit of getting into the business of private investigations, Mr. Clausen attended a business recruiting meeting held by a private investigative company on March 19, 1993. Ms. Bronson, owner of Prosearch International, then the holder of a valid Class A Private Investigative Agency license, also attended the meeting where she met Respondent. After the meeting, Ms. Bronson and Respondent discussed various ways he might became associated with her investigative agency in order to expand the services Prosearch could offer potential clients. These discussions included buying part or all of Prosearch. At some point after the recruiting meeting, Ms. Gentry, a local attorney in Tallahassee, Florida, was appointed to represent a man accused of murder in Quincy, Gadsden County, Florida. Ms. Gentry felt the defense team needed an experienced investigator who could effectively work within a predominately minority community in Quincy. Ms. Gentry contacted Ed Rawls about possibly working the case. However, Mr. Rawls was a reserve Gadsden County Sheriff's Deputy, and had an obvious conflict in investigating the case for Ms. Gentry. Mr. Rawls recommended Mr. Clausen as a potential investigator. Ms. Gentry called Mr. Clausen on March 24, 1993, and requested that he come the next day for an interview. On March 25, 1993, Mr. Clausen asked Ms. Bronson to meet him for lunch to discuss her employing him as an intern private investigator. An intern private investigator holds a Class "CC" license once the sponsorship becomes effective. Eventually, the intern can obtain a Class "C" investigative license. Mr. Clausen and Ms. Bronson met for lunch and Ms. Bronson agreed to sponsor Mr. Clausen. Mr. Clausen also told Ms. Bronson about his scheduled meeting with Ms. Gentry. Soon after the meeting, Ms. Bronson left town to take care of some personal matters. After lunch, Mr. Clausen went directly to Ms. Gentry's office for the meeting she had scheduled. Ms. Gentry interviewed Respondent to determine whether he had the experience and ability to perform the investigation she felt was necessary to prepare for her client's murder trial. Ms. Gentry discussed some general details of the case with Respondent in order to more fully assess Respondent's abilities to investigate her case should the Respondent become licensed as an investigator. Respondent did not receive the case file from Ms. Gentry, nor did Respondent receive information such as addresses which would have enabled him to begin an investigation. Ms. Gentry felt that Mr. Clausen was very well qualified. At the initial meeting Respondent made it very clear to Ms. Gentry that he would not begin any investigation until he was properly licensed or could conduct the investigation under one of the exemption categories in Chapter 493, Florida Statutes, such as an employee for an attorney. Mr. Clausen also told Ms. Gentry he was not at present in business as a private investigator, but that he wanted to be and was working on the prospect. However, Ms. Gentry did not want to deal with the paperwork or potential liability of an employment relationship with Mr. Clausen. Therefore, Mr. Clausen needed to become licensed as quickly as possible so that the investigation could begin. Respondent and Ms. Gentry met again on March 30, 1993. However, the meeting contered on the quickest way Respondent could become licensed as an investigator. Mr. Clausen also told Ms. Gentry that his license would most likely be in order April 2, 1993, when Ms. Bronson, through Prosearch, would return to formalize his application at the Department of State for the internship. In short, Mr. Clausen would have a Class "CC" license. Prior to licensure as a Class "C" or "CC" licensee, Respondent did not advertise or solicit any investigative business on his behalf. Respondent only participated in an employment interview for future employment after he was licensed and discussed various methods of becoming legally able to pursue Ms. Gentry's case. Likewise no investigation was begun prior to his licensure. On April 2, 1993, Ms. Bronson filed Respondent's sponsorship papers and Respondent filed an application for a Class "CC" Private Investigator Intern license issued under Chapter 493, Florida Statutes. Because of the sponsorship, Respondent was employed by Prosearch International, a Class "A" private investigative agency, under Chapter 493, Florida Statutes. Ms. Bronson furnished Mr. Clausen with letters of introduction and appointment as her investigator. These letters were given to Ms. Gentry and a contract for services was entered into. On April 6, 1993, Ms. Gentry met with Mr. Clausen at her office where he was furnished with names, addresses, physical evidence and access to Ms. Gentry's case file. The case file contained police reports and probable cause affidavits on the case. Ms. Gentry requested Mr. Clausen to proceed immediately with the investigation. Mr. Clausen began the investigation on the morning of April 7, 1993, by interviewing the defendant in jail. Around April 21, 1993, Prosearch presented its first invoice for services to Ms. Gentry. The invoice contained charges for Mr. Clausen's meetings on March 25 and 30, 1993. However, the charges were not for investigative services. Ms. Gentry felt it was appropriate for Prosearch to bill for those hours even though she was aware no investigative work had begun and she had no contract with Respondent or Prosearch until April 6, 1993. Thereafter, Gadsden County paid the first invoice to ProSearch. Aroung May 7, 1993, ProSearch submitted a second invoice to Ms. Gentry. The investigation and report were completed and delivered by Ms. Bronson to Ms. Gentry's office around June 22, 1993. Both Ms. Gentry and Ms. Bronson praised Mr. Clausen's investigation and report as excellent. From March 25, 1993, to July 3 or 4, 1993, discussions between Mr. Clausen and Ms. Bronson regarding the future organization and market strategy for ProSearch or another business occurred almost daily. At the July meeting it became clear that Ms. Bronson had decided to associate with two others and gave Mr. Clausen a ProSearch check for his commission on the first invoice. On July 6, 1993, Ms. Bronson sent letters firing Mr. Clausen and notifying the Division that she would no longer sponsor Mr. Clausen. However, there was still billable time for investigative services outstanding for the investigation for Ms. Gentry. Additionally, Mr. Clausen was due his commission for those hours. Ms. Bronson said she had no money to pay wages or workman's compensation and therefore did not have funds to pay Mr. Clausen's his commission or expenses. Anxious to resolve the situation and not having contact with Ms. Bronson, Mr. Clausen submitted a final invoice on Specialty Security Services, Inc., letterhead to Gadsden County. The invoice referenced the first and second ProSearch invoices, showing the first invoice as paid and the second invoice as unpaid. The Gadsden County Commission approved and paid the invoice. Mr. Clausen used Special Security Services, Inc., letterhead because his word processor is programmed to always include the "Special Security Services, Inc." (SSS) letterhead. Otherwise, Special Security Services, had no role in this matter and should be dismissed as a party. Further, none of Mr. Clausen's activities violates Chapter 493, Florida Statutes. Therefore, the administrative complaint against Respondent should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED: That the Department of State, Division of Licensing, enter a Final Order finding that Respondent has not violated Chapter 493, Florida Statutes, or Chapter 1C-3.122(2), Florida Administrative Code, and that the petition be dismissed. DONE and ENTERED this 30th day of December, 1994, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1994. APPENDIX TO CASE NO. 94-0853 The facts contained in paragraphs 4 and 6 of Petitioner's Findings of Fact are adopted in substance, insofar as material. The statements contained in paragraphs 1, 5 and 7 of Petitioner's Proposed Findings of Fact were subordinate. The statement contained in paragraph 3, of Petitioner's Proposed Findings of Fact were not shown by the evidence. The facts contained in paragraphs 3, and 4 of Respondent's Proposed Findings of Fact are subordinate. The facts contained in paragraphs 1, 2, 5, 6, 7, 8, 9, 10, 11 and 12 of Respondent's Proposed Findings of Fact are either introductory or conclusions of law. COPIES FURNISHED: Kristi Reid Bronson Assistant General Counsel Department of State Division of Licensing The Capitol, M.S. #4 Tallahassee, Florida 32399-0250 John Wardlow Attorney at Law Post Office Box 84 Tallahassee, Florida 32302 Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399 Phyllis Slater General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399
The Issue The issues are whether Petitioner's rule challenge petition should be dismissed for failure to present issues that meet the requirements of Sections 120.56(1), 120.56(3), and 120.56(4), Florida Statutes, and if so, whether Respondent is entitled to an award of costs and attorneys' fees pursuant to Sections 120.569(2)(e), 120.595(3), and 120.595(4), Florida Statutes.
Findings Of Fact Petitioner filed an application for a Class "C" private investigator license on or about May 15, 2000. By letter dated September 5, 2000, Respondent advised Petitioner that his application for a Class "C" license as a private investigator was denied. The letter stated as follows in relevant part: Failure to qualify under Section 493.6203, Florida Statutes. You have not demonstrated the necessary lawfully gained, verifiable, full-time experience or appropriate training. Your application is therefore being denied. Petitioner filed a request for an administrative hearing with Respondent on or about September 13, 2000. He filed an amended request for hearing with Respondent on or about September 15, 2000. On September 27, 2000, Respondent issued an Order Dismissing Petition with Leave to Amend. This order referenced Rule 28-106.201(2), Florida Administrative Code, and found that Petitioner's hearing request was substantially deficient because it did not contain the following: An explanation of how the petitioner's substantial interest will be affected by the agency determination; A statement of disputed issues of material fact. The Petitioner has not disputed the material facts at issue in this case; which is whether the Petitioner provided the Division with information which the Division could then verify. Verification is achieved by actually speaking with the persons provided by an applicant to obtain information as to what duties were performed and to obtain a percentage of the time worked which involved investigative work. Petitioner provided information concerning former employers in the Affidavit of Experience section of the application. After submitting the application, Petitioner submitted an affidavit from an investigator, however that investigator was not Petitioner's employer and therefore not in the position to verify Petitioner's experience. For the first time, in Petitioner's requests for a hearing, Petitioner submits information concerning a former career in executive recruiting consisting of an affidavit, notarized in Maryland, of a former co- worker. This information was never provided to the Division and is not listed anywhere on the application submitted by Petitioner nor is there any way to verify any of the information in that affidavit as the affiant's address and telephone number are not provided. In his petitions for hearing Petitioner has raised only legal issues which are not legally the forum of a formal administrative hearing. Section 120.569(1), Florida Statutes . . . . A concise statement of the ultimate facts alleged, including the specific facts the petitioner contends warrant reversal or modification of the agency's proposed action; A statement of the specific rules or statutes the petitioner contends require reversal or modification of the agency's proposed action . . . . (Emphasis added) Respondent's Order Dismissing Petition with Leave to Amend also determined that: (a) Petitioner's hearing requests improperly mixed rule validity challenge arguments for Section 120.56, Florida Statutes, proceedings with disputed material fact arguments for proceedings under Sections 120.569 and 120.57, Florida Statutes; (b) Petitioner's argument that his Juris Doctorate training and related legal work experience met the statutory requirements of Section 493.6203(4), Florida Statutes, was a statutory construction/legal argument presented in the guise of factual issues; (c) The Division of Administrative Hearings does not have jurisdiction to decide constitutional validity arguments in a Section 120.57(1), Florida Statutes, proceeding; and (d) Petitioner's argument that he is entitled to licensure by default due to the failure of the agency to meet the 90-day time requirement of Section 120.60, Florida Statutes, is a legal issue in light of the tolling provision of Section 493.6108, Florida Statutes. In a footnote to the Order Dismissing Petition with Leave to Amend, Respondent referred to two documents that Respondent attached as a courtesy to Petitioner. The first document was Respondent's Opinion Letter No. 92-50. This letter responded to a specific inquiry, determining that an attorney, who was not a member of the Florida Bar and who wanted to perform sub-contract investigative work for a licensed private investigation agency, was not exempt under Section 493.6102(6), Florida Statutes, from having to separately qualify for "C" licensure requirements. The second document was Respondent's internal memorandum, identified herein as Opinion No. 92-4. This memorandum determined that legal training and work experience of attorneys do not automatically qualify them for a Class "C" license. Instead, each application should be considered on a case-by-case basis. On October 10, 2000, Petitioner filed his Request for Formal Administrative Hearing, citing Section 120.54, Florida Statutes, as authority to challenge certain of Respondent's rules and statements defined as rules. Petitioner claims that Respondent routinely applies heightened scrutiny to applications submitted by attorneys, persons who are qualified to be attorneys, or others who have research and investigative skills but no actual police or criminal justice experience. Petitioner's hearing request first argues that Respondent's Order Dismissing Petition with Leave to Amend, together with its attachments, all of which are referenced above, set forth policies having the effect of rules. In Petitioner's "First Rule Challenge," he argues that Respondent's interpretation of the time limitations for processing license applications in Section 120.60, Florida Statutes, together with Respondent's interpretation of the tolling provisions of Section 493.6108(1), Florida Statutes, constitute a rule. Petitioner concludes that Respondent is without delegated legislative authority to extend the 90-day application processing time of Section 120.60, Florida Statutes, unless Respondent does not receive the fingerprint investigation report required by Section 493.6108(1), Florida Statutes, prior to the expiration of the 90-day processing period. Petitioner's "Second Rule Challenge" argues that Respondent's Opinion No. 92-4, a memorandum dated January 23, 1992, constitutes a rule because: (a) Respondent uses the opinion to define the "practice of law"; and (b) Respondent relies on the opinion in refusing to recognize experience gained by lawyers in the practice of their profession unless the lawyer was engaged in "full-time investigative work." However, Respondent concludes by acknowledging that the opinion recommends a case-by-case analysis of each attorney's application to determine whether the attorney has the experience and training required by Section 493.6203(4), Florida Statutes. Petitioner's "Third Rule Challenge" also argues that Respondent's Opinion No. 92-4 constitutes a rule. According to Petitioner, Respondent relies on the opinion to find that an attorney, even if a member of the Florida Bar, lacks creditable "college coursework related to criminal justice, criminology, or law enforcement administration." See Section 493.6203(4)(b), Florida Statutes. Petitioner concludes that Respondent does not have authority to interpret the meaning of the statutory term, "related to," so narrowly. Petitioner's hearing request did not include a "Fourth Rule Challenge." Petitioner's "Fifth Rule Challenge" states that Respondent's Opinion Letter No. 92-50, dated October 20, 1992, is an unpromulgated rule. Petitioner claims that Respondent relies on this opinion to set broad policy concerning the agency's treatment of the experience and educational qualification of unlicensed attorneys. Petitioner states that the opinion infringes on the regulatory jurisdiction of the Florida Bar. Petitioner asserts that he is substantially affected because he is an unlicensed attorney. Petitioner's "Sixth Rule Challenge" states that Respondent's Order Dismissing Petition with Leave to Amend is an unpromulgated rule. Specifically, Petitioner claims Respondent created a rule by refusing to credit applicants with work experience that is not "verifiable by actually speaking with the persons provided by an applicant to obtain information as to what duties were performed and to obtain a percentage of the time worked which involved investigative work." According to Petitioner, Respondent has no authority to establish such an agency specific meaning of the common term, "verifiable experience." Petitioner's "Seventh Rule Challenge" argues that Respondent has adopted a special meaning for the term "private investigation" which contravenes the statute. Petitioner takes issue with Respondent's interpretation of "private investigation" as defined in Section 493.6101(17), Florida Statutes. Petitioner also challenges Respondent's interpretation of the experience requirement of Section 493.6203(4), Florida Statutes. Petitioner has withdrawn his "Eighth Rule challenge" regarding the validity of Rule 1C-3.100(3)(a), Florida Administrative.
The Issue Whether Respondent, Carswell Investigations, Dexter B. Carswell, owner, committed the violations alleged in the administrative complaint dated September 20, 1995; and, if so, what penalty should be imposed.
Findings Of Fact At all times material to the allegations of this case, Respondent held a class "A" private investigative agency license, number A94-00095; a class "C" private investigator license, number C93-00488; and a class "G" statewide firearm license, number G94-02105. Petitioner is the state agency charged with the responsibility of regulating such licenses. On August 22, 1994, Respondent, Dexter B. Carswell, was in Bibb County, Georgia. On that date, Respondent was riding in an automobile which went onto the school grounds of the Northeast High School, a Bibb County school property where Richard Harned was employed as a campus police officer. Posted conspicuously on those grounds were signs which notified the public that persons, vehicles, and personal belongings on school property were subject to search and that state law prohibited the possession of a deadly weapon on school property. While on school property on that date, Respondent was in possession of a handgun which is described as a 40 caliber Glock. On August 22, 1994, in Bibb County, Georgia, Respondent did not have a license to carry a concealed weapon in Georgia. Respondent knew a license was needed to carry a concealed weapon in Georgia. On August 22, 1994, in Bibb County, Georgia, Respondent did not have a license to conduct private investigations in Georgia. Respondent knew a license was required to conduct private investigations in Georgia. On August 22, 1994, in Bibb County, Georgia, Respondent carried a badge with the words "Investigator Detective" at the top, and "State of Florida, Broward County, FLA" along with an official-looking outline of the state of Florida. This badge did not denote Respondent was a licensed private investigator but could easily be misread as an official police badge. On or about January 5, 1995, by the grand jury for the December, 1994 term of the Bibb Superior Court, Respondent was indicted for the offenses of possession of a weapon on school property and carrying a concealed weapon in violation of Georgia law. As a result, Respondent pled guilty to the charges and, as a first time offender, adjudication was withheld, and he received time served (seven days), paid fines, and was placed on three years probation. Respondent is currently serving that probation. When Respondent filed his application for the class "A" investigative agency license he represented himself as the sole proprietor of Carswell Investigations. This application (Petitioner's exhibit 8) was submitted on March 18, 1994. Respondent subsequently incorporated Carswell Investigations and filed articles of incorporation with the office of the Secretary of State. Those articles represent that the corporate officers of the company are: Dexter Carswell, President; Jimmy Carswell, Vice President; Ethel Carswell, Secretary; and Alvaro Valdez, Treasurer. Respondent remained the sole owner of the corporation. Despite the incorporation of the business, Respondent did not update the licensing information with the Division of Licensing. Alvaro Valdez, who is also known as Alvara Valdel or Alvara Valdez, is a convicted felon. On August 22, 1994, Alvaro Valdez had in his possession a business card in the name of Carswell Investigations, Inc. No. A-94-00095, which certified Mr. Valdez as an employee of the company.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of State, Division of Licensing, enter a final order imposing an administrative fine in the amount of $1,350.00; suspending Respondent's class "C" license for a period of time to coincide with his probation from the Georgia criminal proceeding; and revoking Respondent's class "G" license. DONE AND ENTERED this 27th day of September, 1996, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0324 Rulings on the proposed findings of fact submitted by the Petitioner: Paragraphs 1, and 3 through 12 are accepted. Paragraph 2 is rejected as contrary to the weight of the credible evidence. Rulings on the proposed findings of fact submitted by the Respondent: 1. None submitted. COPIES FURNISHED: Sandra B. Mortham, Secretary Department of State The Capitol Tallahassee, Florida 32399-0250 Don Bell, General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250 Michele Guy, Esquire Department of State Division of Licensing The Capitol, Mail Station Number 4 Tallahassee, Florida 32399-0250 Dexter B. Carswell Carswell Investigations 3101 Northwest 47 Terrace, Number 119 Lauderdale Lakes, Florida 33319
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 The issue for determination is whether Respondent committed violations of provision of Chapter 493, Florida Statutes, sufficient to justify the imposition of disciplinary action against Respondent's Class "A" Private Investigative Agency License; his Class "C" Private Investigator License; his Class "D" Security Officer License; his Class "G" Statewide Firearm License; and his Class "M" Private Investigative/Security Agency Manager License.
Findings Of Fact The Department of State hereby adopts and incorporates herein by reference the Findings of Fact and Conclusions of Law in the Recommended Order. WHEREFORE, based upon the foregoing, it is ORDERED that Respondent's Class "A" Private Investigative Agency License, Number A93-00352, effective October 11, 1993; his Class "C" Private Investigator License, Number C93-00189, effective March 8, 1993; his Class "D" Security Officer License, Number D93- 10584, effective July 15, 1993; his Class "G" Statewide Firearm License, Number G93-01 133; effective May 24,1993, and his Class "M" Private Investigative/Security Agency Manager License, Number M93-00074, effective July 15, 1993, are hereby REVOKED. It is further ORDERED based on a complete review of the record and in accordance with the Hearing Officer's Conclusion of Law Number 27 and the Hearing Officer's finding of aggravating circumstances pursuant to Rule 1 C-3. 113(5), Florida Administrative Code, that as to Count III of the Administrative Complaint, Respondent be and is hereby FINED $700.00 pursuant to Rule 1C-3.113(2)(q), Florida Administrative Code. Payment of the administrative fine shall be by cashier's check or money order payable to the Department of Stated Division of Licensing within thirty (30) days.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of allegations contained in Counts I, II and III of the Amended Administrative Complaint, and it is FURTHER RECOMMENDED that such final order revoke Respondent's Class "A" Private Investigative Agency License, Number A93-00352, effective October 11, 1993; his Class "C" Private Investigator License, Number C93-00189, effective March 8, 1993; his Class "D" Security Officer License, Number D93-10584, effective July 15, 1993; his Class "G" Statewide Firearm License, Number G93- 01133; and his Class "M" Private Investigative/Security Agency Manager License, Number M93-00074, effective July 15, 1993. DONE and ENTERED this 26th day of April, 1996, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 26th day of April, 1996. APPENDIX The following constitutes my ruling pursuant to Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Petitioner's Proposed Findings 1.-12. Accepted in substance, though not verbatim. 13. Incorporated by reference. 14.-17. Accepted in substance. 18.-19. Incorporated by reference. 20.-23. Rejected, unnecessary to result. 24.-38. Accepted in substance, though not verbatim. 39. Rejected, unnecessary to result. 40.-42. Incorporated by reference. Respondent's Proposed Findings 1. Accepted in substance. 2.-4. Rejected, argument. 5. Rejected, Class C license was effective in March. 6.-10. Rejected, unnecessary to result reached. 11. Incorporated by reference. 12.-15. Unnecessary to result, rejected. Rejected, hearsay. Rejected, not supported by the weight of the evidence. Accepted. Accepted. 20.-26. Rejected, subordinate to HO findings. 27. Rejected, credibility. 28.-29. Accepted. 30.-31. Rejected, credibility, not supported by weight of the evidence. 32.-38. Rejected, relevance. 39. Accepted in substance. 40.-41. Rejected, credibility. 42. Accepted in substance. 43.-46. Rejected, subordinate to HO findings. 47.-48. Accepted in substance. Rejected, subordinate, credibility. Rejected, credibility. 51.-52. Rejected, subordinate. 53.-54. Rejected, relevance, credibility. Rejected, subordinate, credibility. Rejected, subordinate to HO findings. Rejected, subordinate, relevance, credibility. 58.-59. Rejected, credibility, weight of the evidence. 60.-62. Rejected, relevance, subordinate to HO findings. Rejected, credibility. Rejected, weight of the evidence. Incorporated by reference. 66.-68. Rejected, subordinate to HO findings. 70.-77. Rejected, subordinate, argumentative, legal conclusions. COPIES FURNISHED: Douglas D. Sunshine, Esquire Division of Licensing The Capitol, Mail Station 4 Tallahassee, Florida 32399-0250 Theodore E. Mack, Esquire Cobb, Cole and Bell 131 North Gadsden Street Tallahassee, Florida 32301 Sandra B. Mortham Secretary of State Department of State The Capitol Tallahassee, Florida 32399-0250 Don Bell General Counsel Department of State The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0250
