The Issue The issue to be determined in this bid protest matter is whether Respondent, Florida Housing Finance Corporation’s, intended award of funding under Request for Applications 2017- 108, entitled “SAIL Financing of Affordable Multifamily Housing Developments To Be Used In Conjunction With Tax-Exempt Bond Financing And Non-Competitive Housing Credits” was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact Florida Housing is a public corporation created pursuant to section 420.504, Florida Statutes. Its purpose is to provide and promote public welfare by administering the governmental function of financing affordable housing in Florida. Florida Housing is designated as the housing credit agency for Florida within the meaning of section 42(h)(7)(A) of the Internal Revenue Code. As such, Florida Housing is authorized to establish procedures to distribute low income housing tax credits and to exercise all powers necessary to administer the allocation of these credits. § 420.5099, Fla. Stat. For purposes of this administrative proceeding, Florida Housing is considered an agency of the State of Florida. To promote affordable housing in Florida, Florida Housing offers a variety of programs to distribute housing credits. (Housing credits, also known as tax credits, are a dollar-for-dollar offset of federal income tax liability.) One of these programs is the State Apartment Incentive Loan program (“SAIL”), which provides low-interest loans on a competitive basis to affordable housing developers. SAIL funds are available each year to support the construction or substantial rehabilitation of multifamily units affordable to very low- income individuals and families. See § 420.5087, Fla. Stat. Additional sources of financial assistance include the Multifamily Mortgage Revenue Bond program (“MMRB”) and non- competitive housing credits. Florida Housing administers the competitive solicitation process to award low-income housing tax credits, SAIL funds, nontaxable revenue bonds, and other funding by means of request for proposals or other competitive solicitation. Florida Housing initiates the competitive application process by issuing a Request for Applications. §§ 420.507(48) and 420.5087(1), Fla. Stat.; and Fla. Admin. Code R. 67-60.009(4). The Request for Application at issue in this matter is RFA 2017-108, entitled “SAIL Financing of Affordable Multifamily Housing Developments to Be Used in Conjunction with Tax-Exempt Bond Financing and Non-Competitive Housing Credits.” Florida Housing issued RFA 2017-108 on August 31, 2017. Applications were due by October 12, 2017.6/ The purpose of RFA 2017-108 is to distribute funding to create affordable housing in the State of Florida. Through RFA 2017-108, Florida Housing intends to award approximately $87,000,000 for proposed developments serving elderly and family demographic groups in small, medium, and large counties. RFA 2017-108 allocates $46,279,600 to large counties, $32,308,400 to medium counties, and $8,732,000 to small counties. RFA 2017-108 established goals to fund: Two Elderly, new construction Applications located in Large Counties; Three Family, new construction Applications located in Large Counties; One Elderly, new construction Application located in a Medium County; and Two Family, new construction Applications located in Medium Counties. Thirty-eight developers submitted applications in response to RFA 2017-108. Of these applicants, Florida Housing found 28 eligible for funding, including all Petitioners and Intervenors in this matter. Florida Housing received, processed, deemed eligible or ineligible, scored, and ranked applications pursuant to the terms of RFA 2017-108, Florida Administrative Code Chapters 67- 48 and 67-60, and applicable federal regulations. RFA 2017-108 provided that applicants were scored based on certain demographic and geographic funding tests. Florida Housing sorted applications from the highest scoring to the lowest. Only applications that met all the eligibility requirements were eligible for funding and considered for selection. Florida Housing created a Review Committee from amongst its staff to review and score each application. On November 15, 2017, the Review Committee announced its scores at a public meeting and recommended which projects should be awarded funding. On December 8, 2017, the Review Committee presented its recommendations to Florida Housing’s Board of Directors for final agency action. The Board of Directors subsequently approved the Review Committee’s recommendations and announced its intention to award funding to 16 applicants. As a preliminary matter, prior to the final hearing, Florida Housing agreed to the following reassessments in the scoring and selection of the applications for funding under RFA 2017-108: SP Lake and Osprey Pointe: In the selection process, Florida Housing erroneously determined that SP Lake was eligible to meet the funding goal for the “Family” demographic for the Family, Medium County, New Construction Goal. (SP Lake specifically applied for funding for the “Elderly” demographic.) Consequently, Florida Housing should have selected Osprey Pointe to meet the Family, Medium County, New Construction Goal. Osprey Pointe proposed to construct affordable housing in Pasco County, Florida. Florida Housing represents that Osprey Pointe is fully eligible for funding under RFA 2017-108. (While Osprey Pointe replaces SP Lake in the funding selection for the “Family” demographic, SP Lake remains eligible for funding for the “Elderly” demographic.) Sierra Bay and Northside II: In the scoring process, Florida Housing erroneously awarded Sierra Bay proximity points for Transit Services. Upon further review, Sierra Bay should have received zero proximity points. Consequently, Sierra Bay’s application is ineligible for funding under RFA 2017-108. By operation of the provisions of RFA 2017-108, Florida Housing should have selected Northside II (the next highest ranked, eligible applicant) for funding to meet the Elderly, Large County, New Construction Goal. Florida Housing represents that Northside II is fully eligible for funding under RFA 2017-108. Harbour Springs: Florida Housing initially deemed Harbour Springs eligible for funding under RFA 2017-108 and selected it to meet the Family, Large County, New Construction Goal. However, because Harbour Springs and Woodland Grove are owned by the same entity and applied using the same development site, under rule 67-48.004(1), Harbour Springs is ineligible for funding. (Florida Housing’s selection of Woodland Grove for funding for the Family, Large County, New Construction Goal, is not affected by this determination.) The sole disputed issue of material fact concerns Liberty Square’s challenge to Florida Housing’s selection of Woodland Grove to meet the Family, Large County Goal. Liberty Square and Woodland Grove applied to serve the same demographic population under RFA 2017-108. If Liberty Square successfully challenges Woodland Grove’s application, Liberty Square, as the next eligible applicant, will be selected for funding to meet the Family, Large County Goal instead of Woodland Grove. (At the hearing on December 8, 2017, Florida Housing’s Board of Directors awarded Woodland Grove $7,600,000 in funding.) The focus of Liberty Square’s challenge is the information Woodland Grove provided in response to RFA 2017-108, Section Four, A.5.d., entitled “Latitude/Longitude Coordinates.” Liberty Square argues that Woodland Grove’s application is ineligible because its Development Location Point, as well as the locations of its Community Services and Transit Services, are inaccurate. Therefore, Woodland Grove should have received zero “Proximity” points which would have disqualified its application for funding. RFA 2017-108, Section Four, A.5.d(1), states, in pertinent part: All Applicants must provide a Development Location Point stated in decimal degrees, rounded to at least the sixth decimal place. RFA 2017-108 set forth scoring considerations based on latitude/longitude coordinates in Section Four, A.5.e, entitled “Proximity.” Section Four, A.5.e, states, in pertinent part: The Application may earn proximity points based on the distance between the Development Location Point and the Bus or Rail Transit Service . . . and the Community Services stated in Exhibit A. Proximity points will not be applied to the total score. Proximity points will only be used to determine whether the Applicant meets the required minimum proximity eligibility requirements and the Proximity Funding Preference ” In other words, the Development Location Point identified the specific location of an applicant’s proposed housing site.7/ Applicants earned “proximity points” based on the distance between its Development Location Point and selected Transit and Community Services. Florida Housing also used the Development Location Point to determine whether an application satisfied the Mandatory Distance Requirement under RFA 2017-108, Section Four A.5.f. To be eligible for funding, all applications had to qualify for the Mandatory Distance Requirement. The response section to Section Four, A.5.d., is found in Exhibit A, section 5, which required each applicant to submit information regarding the “Location of proposed Development.” Section 5 specifically requested: County; Address of Development Site; Does the proposed Development consist of Scattered Sites?; Latitude and Longitude Coordinate; Proximity; Mandatory Distance Requirement; and Limited Development Area. Section 5.d. (Latitude and Longitude Coordinates) was subdivided into: (1) Development Location Point Latitude in decimal degrees, rounded to at least the sixth decimal place Longitude in decimal degrees, rounded to at least the sixth decimal place In its application, Woodland Grove responded in section 5.a-d as follows: County: Miami-Dade Address of Development Site: NE corner of SW 268 Street and 142 Ave, Miami-Dade, FL 33032. Does the proposed Development consist of Scattered Sites? No. Latitude and Longitude Coordinate; Development Location Point Latitude in decimal degrees, rounded to at least the sixth decimal place: 25.518647 Longitude in decimal degrees, rounded to at least the sixth decimal place: 80.418583 In plotting geographic coordinates, a “-” (negative) sign in front of the longitude indicates a location in the western hemisphere (i.e., west of the Prime Meridian, which is aligned with the Royal Observatory, Greenwich, England). A longitude without a “-” sign places the coordinate in the eastern hemisphere. (Similarly, a latitude with a negative value is south of the equator. A latitude without a “-” sign refers to a coordinate in the northern hemisphere.) As shown above, the longitude coordinate Woodland Grove listed in section 5.d(1) did not include a “-” sign. Consequently, instead of providing a coordinate for a site in Miami-Dade County, Florida, Woodland Grove entered a Development Location Point located on the direct opposite side of the planet (apparently, in India). At the final hearing, Florida Housing (and Woodland Grove) explained that, except for the lack of the “-” sign, the longitude Woodland Grove recorded would have fallen directly on the address it listed as its development site in section 5.b., i.e., the “NE corner of SW 268 Street and 142 Ave, Miami-Dade, FL 33032.” In addition to the longitude in section 5.d., Woodland Grove did not include a “-” sign before the longitude coordinates for its Transit Services in section 5.e(2)(b) or for any of the three Community Services provided in section 5.e(3). Again, without a “-” sign, the longitude for each of these services placed them in the eastern hemisphere (India) instead of the western hemisphere (Miami-Dade County). In its protest, Liberty Square contends that, because Woodland Grove’s application listed a Development Location Point in India, Florida Housing should have awarded Woodland Grove zero proximity points under Section Four, A.5.e. Consequently, Woodland Grove’s application failed to meet minimum proximity eligibility requirements and is ineligible for funding. Therefore, Liberty Square, as the next eligible applicant, should be awarded funding for the Family, Large County Goal, under RFA 2017-108.8/ Liberty Square asserts that a correct Development Location Point is critical because it serves as the beginning point for assigning proximity scores. Waiving an errant Development Location Point makes the proximity scoring meaningless. Consequently, any such waiver by Florida Housing is arbitrary, capricious, and contrary to competition. At the final hearing, Woodland Grove claimed that it inadvertently failed to include the “-” sign before the longitude points. To support its position, Woodland Grove expressed that, on the face of its application, it was obviously applying for funding for a project located in Miami-Dade County, Florida, not India. In at least five places in its application, Woodland Grove specified that its proposed development would be located in Miami-Dade County. Moreover, several attachments to Woodland Grove’s application specifically reference a development site in Florida. Woodland Grove attached a purchase agreement for property located in Miami-Dade County (Attachment 8). To satisfy the Ability to Proceed requirements in RFA 2017-108, Woodland Grove included several attachments which all list a Miami-Dade address (Attachments 9-14). Further, Woodland Grove submitted a Local Government Verification of Contribution – Loan Form executed on behalf of the Mayor of Miami-Dade County, which committed Miami-Dade County to contribute $1,000,000.00 to Woodland Grove’s proposed Development (Attachment 15). Finally, to qualify for a basis boost under RFA 2017-108, Woodland Grove presented a letter from Miami-Dade County’s Department of Regulatory and Economic Resources, which also referenced the address of the proposed development in Miami-Dade County (Attachment 16). In light of this information, Woodland Grove argues that its application, taken as a whole, clearly communicated that Woodland Grove intended to build affordable housing in Miami-Dade County. Nowhere in its application, did Woodland Grove reference a project in India other than the longitude coordinates which failed to include “-” signs. Accordingly, Florida Housing was legally authorized to waive Woodland Grove’s mistake as a “harmless error.” Thus, Florida Housing properly selected the Woodland Grove’s development for funding to meet the Family, Large County Goal. Florida Housing advocates for Woodland Grove’s selection to meet the Family, Large County Goal, under RFA 2017- 108. Florida Housing considers the omission of the “-” signs before the longitude coordinates a “Minor Irregularity” under rule 67-60.002(6). Therefore, Florida Housing properly acted within its legal authority to waive, and then correct, Woodland Grove’s faulty longitude coordinates when scoring its application. In support of its position, Florida Housing presented the testimony of Marisa Button, Florida Housing’s current Director of Multifamily Allocations. In her job, Ms. Button oversees the Request for Applications process; although, she did not personally participate in the review, scoring, or selection decisions for RFA 2017-108. Ms. Button initially explained the process by which Florida Housing selected the 16 developments for funding under RFA 2017-108. Ms. Button conveyed that Florida Housing created a Review Committee from amongst its staff to score the applications. Florida Housing selected Review Committee participants based on the staff member’s experience, preferences, and workload. Florida Housing also assigned a backup reviewer to separately score each application. The Review Committee members independently evaluated and scored their assigned portions of the applications based on various mandatory and scored items. Thereafter, the scorer and backup reviewer met to reconcile their scores. If any concerns or questions arose regarding an applicant’s responses, the scorer and backup reviewer discussed them with Florida Housing’s supervisory and legal staff. The scorer then made the final determination as to each application. Ms. Button further explained that applicants occasionally make errors in their applications. However, not all errors render an application ineligible. Florida Housing is authorized to waive “Minor Irregularities.” As delineated in RFA 2017-108, Section Three, A.2.C., Florida Housing may waive “Minor Irregularities” when the errors do not provide a competitive advantage or adversely impact the interests of Florida Housing or the public. See Fla. Admin. Code R. 67- 60.002(6) and 67-60.008. Such was the case regarding Woodland Grove’s application. Heather Green, the Florida Housing staff member who scored the “Proximity” portion of RFA 2017-108, waived the inaccurate longitude coordinates as “Minor Irregularities.” Ms. Green then reviewed Woodland Grove’s application as if the proposed development was located in Miami-Dade County, Florida. Florida Housing assigned Ms. Green, a Multifamily Loans Manager, as the lead scorer for the “Proximity” portion of RFA 2017-108, which included the Development Location Point listed in Exhibit A, section 5.d. Ms. Green has worked for Florida Housing since 2003 and has scored proximity points for Request for Applications for over ten years. At the final hearing, Florida Housing offered the deposition testimony of Ms. Green. In her deposition, Ms. Green testified that she is fully aware that, to be located in the western hemisphere (i.e., Miami-Dade County), a longitude coordinate should be marked with a negative sign or a “W.” Despite this, Ms. Green felt that the longitude coordinates Woodland Grove used without negative signs, particularly its Development Location Point, were clearly typos or unintentional mistakes. Therefore, Ms. Green waived the lack of a negative sign in front of the longitude coordinates in section 5.d. and section 5.e. as “Minor Irregularities.” Ms. Green understood that she was authorized to waive “Minor Irregularities” by rule under the Florida Administrative Code. Ms. Green felt comfortable waiving the inaccurate longitude coordinates because everywhere else in Woodland Grove’s application specifically showed that its proposed housing development was located in Miami-Dade County, not India. Accordingly, when scoring Woodland Grove’s application, Ms. Green corrected the longitude entries by including a negative sign when she plotted the coordinates with her mapping software. Ms. Green then determined that, when a “-” was inserted before the longitude, the coordinate lined up with the address Woodland Grove listed for the Development Location Point. Therefore, Woodland Grove received proximity points and was eligible for funding under RFA 2017-108. (See RFA 2017-108, Section Five.A.1.) However, Ms. Green acknowledged that if she had scored the application just as it was presented, Woodland Grove would not have met the required qualifications for eligibility. Ms. Button relayed that Florida Housing fully accepted Ms. Green’s decision to waive the missing negative signs in Woodland Grove’s response to section 5.d. and 5.e. as “Minor Irregularities.” Ms. Button opined that Woodland Grove’s failure to place a “-” mark before the longitude was clearly an unintentional mistake. Ms. Button further commented that Florida Housing did not believe that scoring Woodland Grove’s development as if located in the western hemisphere (instead of India), provided Woodland Grove a competitive advantage. Because it was evident on the face of the application that Woodland Grove desired to develop a housing site in Miami-Dade County, Ms. Green’s decision to overlook the missing “-” sign did not award Woodland Grove additional points or grant Woodland Grove an advantage over other applicants. Neither did it adversely impact the interests of Florida Housing or the public. However, Ms. Button also conceded that if Ms. Green had scored the application without adding the “-” sign, Woodland Grove would have received zero proximity points. This result would have rendered Woodland Grove’s application ineligible for funding. Ms. Button also pointed out that Ms. Green waived the omission of “-” signs in two other applications as “Minor Irregularities.” Both Springhill Apartments, LLC, and Harbour Springs failed to include negative signs in front of their longitude coordinates. As with Woodland Grove, Ms. Green considered the development sites in those applications as if they were located in Miami-Dade County (i.e., in the western hemisphere). Ms. Green also waived a mistake in the Avery Commons application as a “Minor Irregularity.” The longitude coordinate for the Avery Commons Development Location Point (section 5.d(1)) was blank. However, Ms. Green determined that Avery Commons had placed the longitude in the blank reserved for Scattered Sites coordinates (section 5.d(2)). When scoring Avery Commons’ application, Ms. Green considered the coordinate in the appropriate section. According to Ms. Button, Florida Housing felt that this variation did not provide Avery Commons a competitive advantage. Nor did it adversely impact the interests of Florida Housing or the public. Finally, Ms. Button explained that the application Florida Housing used for RFA 2017-108 was a relatively new format. In previous Request For Applications, Florida Housing required applicants to submit a Surveyor Certification Form. On the (now obsolete) Surveyor Certification Form, Florida Housing prefilled in an “N” in front of all the latitude coordinates and a “W” in front of all the longitude coordinates. However, the application used in RFA 2017-108 did not place an “N” or “W” before the Development Location Point coordinates. Based on the evidence presented at the final hearing, Liberty Square did not establish, by a preponderance of the evidence, that Florida Housing’s decision to award funding to Woodland Grove for the Family, Large County Goal, under RFA 2017-108 was clearly erroneous, contrary to competition, arbitrary, or capricious. Florida Housing was within its legal authority to waive, then correct, the missing “-” sign in Woodland Grove’s application as “Minor Irregularity.” Therefore, the undersigned concludes, as a matter of law, that Petitioner did not meet its burden of proving that Florida Housing’s proposed action to select Woodland Grove for funding was contrary to its governing statutes, rules or policies, or the provisions of RFA 2017-108.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Housing Finance Corporation enter a final order dismissing the protest by Liberty Square. It is further recommended that Florida Housing Finance Corporation rescind the intended awards to Sierra Bay, SP Lake, and Harbour Springs, and instead designate Northside II, Osprey Pointe, and Pembroke Tower Apartments as the recipients of funding under RFA 2017-108.10/ DONE AND ENTERED this 19th day of April, 2018, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 2018.
Findings Of Fact On January 15, 1987, the Division received Petitioner's application for a Class "CC" Private Investigator Intern License. The Division issued Petitioner's "CC" Intern's License on March 19, 1987. On October 12, 1987, the Division received Petitioner's application for an upgrade to a Class "C" Private Investigator's License. Included with the application was a Completion of Sponsorship Letter reflecting a total internship of twenty-three months, and a letter from Troopers International Security Corp. reflecting investigative and bodyguard experience from May 1976 to June 1979. The Division issued the Class "C" license on December 14, 1987. On February 13, 1989, the Division filed an Administrative Complaint seeking to revoke Petitioner's Class "C" license based on two violations of Section 493.319(1)(c), Florida Statutes (1989), conviction of crimes directly related to the business for which the license is held. On April 13, 1989, prior to final disposition of the Administrative Complaint seeking to revoke Petitioner's Class "C" license, he applied for a Class "A" Private Investigative Agency License. A Final Order revoking Petitioner's Class "C" license for the criminal violations was entered on June 29, 1989. On July 10, 1989, eleven days after revocation of the Class "C" license, the Division issued Petitioner's Class "A" agency license. Petitioner subsequently filed a Notice of Appeal of the Final Order revoking his Class "C" license. On February 27, 1990, the parties entered into a Stipulation and Agreement wherein Petitioner would withdraw his appeal and be allowed to apply for a Class "C" Private Investigator's License. The Division stipulated that it would not take disciplinary action against Petitioner's Class "A" agency license based solely upon the criminal convictions, and Petitioner would be placed on probation for a period of one year. The parties stipulated that Petitioner would also be allowed to apply for a Class "G" Statewide Gun Permit on September 1, 1990. The agreement also provided that the Division would not deny Petitioner's Class "C" license application based solely upon his 1988 misdemeanor convictions. On April 3, 1990, Petitioner applied for a Class "C" Private Investigator License. The Division of Licensing investigated Petitioner's experience background and concluded that Petitioner did not have the required experience. By letter dated July 13, 1990, the Division informed Petitioner he did not have the required two years experience and gave him thirty days to respond with additional information. Petitioner did not respond in writing within the thirty day period. By letter dated August 30, 1990, the Division informed Petitioner his Class "C" application was denied based on his failure to respond to the letter of July 13, 1990, and because he did not have two years of verifiable experience as required by Section 493.306(4), Florida Statutes. Petitioner obtained the Class "A" license mentioned above in order to be better able to pursue a full time career as a private investigator. Petitioner also abandoned his furniture refinishing business in order to operate the private investigation agency. The abandonment of the furniture refinishing business was sometime prior to the revocation of Petitioner's Class "C" license in 1989. Much of the same experience that was listed on Petitioner's 1987 application was also listed on his 1990 application. The July 13, 1990, letter from the Division of Licensing proposing to deny Petitioner's application states that the basis for denial is Petitioner's failure to demonstrate the required experience. The denial letter also states that much of the experience listed by Petitioner cannot be credited as qualifying experience because it was obtained under circumstances which required the Petitioner to have certain licenses that he did not have.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Division of Licensing issue a Final Order in this case denying the Petitioner's application for a Class "C" license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of March 1991. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of March 1991.
The Issue 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 As to each case, whether the Respondents committed the offenses alleged in the respective administrative complaints and the penalties, if any, that should be imposed.
Findings Of Fact At all times pertinent to this proceeding, Respondent, Robert C. Seitz, held a valid Class "C" Private Investigator License, Number C88-00643 and Respondent, Investigative Services International, Incorporated (ISI), held a valid Class "A" Investigative License. Mr. Seitz is the president of ISI. All acts described in this Recommended Order committed by Mr. Seitz were in his capacity as an employee and officer of ISI. CASE NO. 95-3553 On December 30, 1994, Mr. Seitz executed a contract on behalf of ISI by which he agreed that his agency would perform investigative services for Jacqueline Alfaro. The nature of the investigation was the surveillance, videotaping, and documentation of the activities of Ms. Alfaro's sister-in-law. Ms. Alfaro suspected that her sister-in-law was engaged in an extramarital affair and wanted proof of her suspicions to give to her brother, who was incarcerated on federal drug charges. Ms. Alfaro gave to Mr. Seitz a retainer of $1,000 in cash, as requested by Mr. Seitz. The contract for services executed by Ms. Alfaro authorized ISI to bill for the expenses of computer research. Petitioner asserts that Ms. Alfaro provided Mr. Seitz with all pertinent information that was required for the investigation and that additional computer research was not necessary. Mr. Seitz testified, credibly, that some computer research was appropriate to assist him in preparing for his surveillance of Ms. Alfaro's sister-in-law by identifying suspects and possible locations of meetings. Consequently, it is concluded that some of the computer research done by Mr. Seitz was appropriate. In addition to the computer research that was in furtherance of the investigation, Mr. Seitz conducted computer research on his own client. The computer research on Jacqueline Alfaro was inappropriate and was not in furtherance of the investigation of the sister-in-law. The records of ISI for the Alfaro investigation consists of a bookkeeping entry that merely reflects that expenses in the lump-sum amount of $100.00 were incurred for computer research. This record is insufficient to substantiate what was being billed. 1/ Mr. Seitz testified that his company's records of the expenses for the computer research excluded the time he spent researching his own client. This testimony is accepted and, consequently, it is concluded that Petitioner failed to establish by clear and convincing evidence that the bill to Ms. Alfaro 2/ included expenses for inappropriate computer research. The contract authorizes charges for mileage incurred outside of Dade County at the rate of 45 per mile. Ms. Alfaro was told by Mr. Seitz that she would not be charged mileage because the investigation would be exclusively within Dade County. The bill submitted to Ms. Alfaro included a charge for mileage of $33.75 incurred on January 5, 1995. This mileage was purportedly incurred for 75 miles driven by Mr. Seitz in Broward County. There was also a billing of $32.50 for one-half hour driving time on the same date. Respondent's testified that he was spending time on a weekend with his family in Broward County when he was summoned by Ms. Alfaro back to Dade County. He further testified that he billed for only the mileage he incurred while in Broward County traveling to Dade County. This explanation is rejected as lacking credibility for two reasons. First, January 5, 1995, fell on a Thursday, not on a weekend. Second, it is doubtful that Mr. Seitz would have traveled 75 miles going from Broward County to Dade County. It is concluded that Ms. Alfaro was inappropriately billed for the 75 miles that Mr. Seitz allegedly drove in Broward County on January 5, 1995. Petitioner did not establish that the billing of $32.50 for driving time on January 5, 1995, was inappropriate since that was for time spent driving within Dade County, Florida. Ms. Alfaro frequently spoke with Mr. Seitz about the investigation, requesting details. She came to believe that Mr. Seitz was not performing his investigation and sent her nephew to check on him. On different occasions, the nephew went to the locations where Mr. Seitz had told Ms. Alfaro he would be conducting a surveillance of the sister-in-law. The nephew reported to Ms. Alfaro that Mr. Seitz was not at those locations. On or about January 9, 1995, Ms. Alfaro instructed Mr. Seitz to terminate the investigation because her nephew caught his stepmother with another man. There was a dispute as to whether Ms. Alfaro requested a written report of the investigation and copies of video tapes taken during the investigation. Ms. Alfaro testified that she wanted a written report and copies of videotapes because she did not believe that Mr. Seitz had conducted an investigation. Mr. Seitz testified that she did not ask for a written report because she did not want her brother to know that she had been investigating his wife. This conflict is resolved by finding that Ms. Alfaro did ask for a written report of the investigation and that she wanted copies of any video tapes. This finding is reached, in part, because Ms. Alfaro clearly did not believe that Mr. Seitz had performed an investigation as he had verbally reported to her. A request for a written report would be consistent with that belief. The finding is also based on an evaluation of the credibility of the witnesses offering the conflicting testimony. On or about January 12, 1995, Mr. Seitz left Ms. Alfaro a handwritten note and $170.00 cash under the door of her business. The note reflected that the total of time and mileage for the investigation was $830.00. The $170.00 purported to represent the difference between the amounts incurred by Ms. Alfaro pursuant to the contract and the amount of the retainer. Ms. Alfaro requested an itemized statement to substantiate this billing. She never received a written report, any videotape, or an itemized billing. Mr. Seitz and ISI failed to maintain investigative notes of the surveillance activities on behalf of Ms. Alfaro. Mr. Seitz produced to Petitioner's investigator what purports to be a computer record of the charges incurred by Ms. Alfaro. The hourly rate specified by the contract was $65.00. The charges reflected by the computer record are as follows: A. 1-4-95 Computer Research $100.00 B. 1-5-95 Surveillance 130.00 C. 1-5-95 Travel Time 32.50 D. 1-5-95 Mileage (75 @ 45 ) 33.75 E. 1-6-95 Surveillance 325.00 F. 1-6-95 Travel Time 65.00 G. 1-7-95 Standby Time 65.00 $751.25 The computer records also reflected that the agency agreed to absorb taxes in the amount of $48.83. Mr. Seitz rounded these figures and determined that Ms. Alfaro was entitled to a refund of $250.00. Mr. Seitz testified that he actually returned to Ms. Alfaro the sum of $250.00 in the note he left for her on January 12, 1995. He testified that his note reflecting that the sum of $170.00 was being returned to her was an error on his part. Ms. Alfaro's testimony was that she was returned only $170.00. Since Ms. Alfaro's testimony is consistent with Mr. Seitz's handwritten note, the conflicting evidence is resolved by finding that Mr. Seitz returned to Ms. Alfaro the sum of $170.00. His testimony that he simply made a mistake as to the amounts due to be refunded is found to be credible and is, consequently, accepted. CASE 95-4775 At the times pertinent to this proceeding, Robin Bloodworth held a Class "CC" Private Investigator Intern license issued by Petitioner. Prior to January 17, 1995, Ms. Bloodworth was told by a friend of hers that he knew someone who might be interested in employing her. This friend asked her to fax to him a copy of her resume. On January 17, 1995, Ms. Bloodworth was contacted by telephone twice by Mr. Seitz. She faxed to him her resume in response to the request he made during the first conversation. He thereafter called a second time, at approximately 10:15 p.m. and asked whether she could be available for a surveillance the following Sunday (January 22, 1995). In response, Ms. Bloodworth told him that she could be available for that assignment on Sunday. On January 18, 1995, Ms. Bloodworth received another telephone call from Mr. Seitz. He asked if she could be on a surveillance by 11:00 a.m. that day in Hollywood, Florida. Ms. Bloodworth accepted that assignment after Mr. Seitz told her what he wanted her to do, thereby beginning her employment with ISI. Ms. Bloodworth did not meet Mr. Seitz in person until 6:30 p.m. on January 18, 1995. During that first meeting, Ms. Bloodworth gave to Mr. Seitz a copy of her Class "CC" Private Investigator Intern license and was told by him that he was going to fill out her sponsor forms and send them to the Petitioner. Mr. Seitz knew that Ms. Bloodworth was a novice investigator with little field experience, other than process serving. Ms. Bloodworth never actually saw any documentation from Mr. Seitz or ISI regarding forms pertaining to her employment that were required to be submitted to the Petitioner. She never received a copy of a letter notifying Petitioner that either Mr. Seitz or ISI intended to sponsor her. Prior to being employed by ISI, Ms. Bloodworth had held her Class "CC" Private Investigator Intern license for approximately six months and had conducted only two or three surveillances. Ms. Bloodworth received no formal training from ISI. During the course of her employment with ISI, which lasted approximately three months, she conducted approximately 35 investigations. Ms. Bloodworth was not directly supervised by Mr. Seitz or by anyone else while she was in the field conducting her investigations. Prior to undertaking an assignment, Mr. Seitz would explain to her the assignment and generally instruct her as to what she would need to do. He frequently told her to use her "judgment" as she was a "big girl". He told her that he did not have time to "baby-sit" her. Ms. Bloodworth had a cellular telephone at her disposal and she knew Mr. Seitz' pertinent telephone numbers at all times. She was instructed to only call him in the event of an emergency. The only time Mr. Seitz visited Ms. Bloodworth in the field was on one assignment for approximately an hour. That visit was prompted by her needing batteries for a camcorder. During the latter part of her employment with ISI, Ms. Bloodworth was told to contact Michael Graff, the lead investigator for ISI, and not Mr. Seitz. During her employment with ISI, Ms. Bloodworth was assigned to conduct an investigation in Haiti. Prior to being sent to Haiti, Ms. Bloodworth was briefed as to the assignment, which included instructions as to where to go, who to meet, and what to do. Ms. Bloodworth was able to contact ISI personnel by telephone. Petitioner does not regulate investigations outside of the United States. Ms. Bloodworth's official Class "CC" Private Investigator Intern application file as maintained by the Department of State, Division of Licensing, does not contain a notification that ISI or Mr. Seitz intended to sponsor her. This file does not contain any documentation relating to Ms. Bloodworth's hiring by ISI, her termination, or an intern biannual report. Mr. Seitz testified that he submitted to Petitioner a form notifying it that ISI intended to sponsor Ms. Bloodworth. He displayed to Petitioner's investigator a form that he represented was a file copy of the notification form. That form was dated January 13, 1995, which was four days before he first talked to Ms. Bloodworth and five days before he met her in person and received a copy of her license. He was unable to produce any other documentation as to this notification. Mr. Seitz's testimony as to this issue is rejected as lacking credibility. Mr. Seitz admits that ISI did not submit any documentation relating to the termination of Ms. Bloodworth's employment and it did not submit an intern biannual report that would have been due as a result of her employment having been terminated. Mr. Seitz testified that he did not file these reports when Ms. Bloodworth's employment was terminated because she threatened him and he was awaiting the results of a police investigation before filing the reports. 3/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order containing the findings of fact and conclusions of law contained herein. It is further recommended that Respondents, Investigative Services International, Inc., and Robert C. Seitz, be fined in the total amount of $1,600.00. DONE AND ENTERED this 22nd day of August, 1996, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 1996.
Findings Of Fact On August 17, 1989, the Executive Board acting for the Local Elected Officials of the Heartland Employment and Training Consortium, voted to terminate Clifton Thomas, Jr., from his position as Executive Director of the Heartland Private Industry Council. At the time of his termination from employment, Mr. Thomas was being paid the sum of $47,528 per annum. Mr. Thomas' salary was established on an annual basis by the Executive Board. On or about December 1, 1989, Mr. Thomas, acting through his attorney, Mr. Robert McKee, notified E. John Dinkel, III, acting as counsel for the Executive Board, that he intended to file a law suit against the Heartland Employment and Training Consortium and its Executive Board. The complaint to be filed in the United States District Court, Middle District of Florida, Tampa, Division, demanded equitable relief and damages and alleged that Mr. Thomas was fired without justification and "was not accorded due process." Mr. Dinkel, acting as counsel for the Executive Board, was able to obtain agreement from Mr. McKee, acting as counsel for Mr. Thomas, that the complaint would be dropped upon payment of $24,096 to Mr. Thomas. At a regularly scheduled meeting of the Heartland Private Industry Council held on December 14, 1989, the Council voted to concur in a payment of $24,096 to Mr. Thomas to avoid the cost of litigation. It was understood and agreed that a statement would be signed by Mr. Thomas denying any liability or wrongdoing by any of the parties to the action. At a specially convened meeting of the Executive Board of the Heartland Consortium held on December 15, 1989, the Board unanimously agreed to the settlement. On December 21, 1989, a check in the amount of $21,598.40 was issued to Mr. Thomas. This amount represented the agreed upon amount minus a levy from the Internal Revenue Service. The check (#010471) was charged to the pooled administrative funds from allocations through State of JTPA formula monies. In consideration of the above payment, Mr. Thomas gave up his threatened law suit and signed a statement, dated December 22, 1989, denying any wrongdoing on the part of the Executive Board, the Heartland Private Industry Council and any officers or employees of the Board or Council. In the annual audit of the Heartland Private Industry Council conducted by Grant Thornton, Accountants and Management Consultants, the use of JTPA monies to pay the former Executive Director was questioned. The auditor stated: "The use of JTPA funds in settlement of legal claims was determined by Florida Department of Labor and Employment Security to be an unallowable cost under State and Federal law as indicated in a letter to the Council's attorney dated November 6, 1989, therefore this is a questioned cost." On September 30, 1991, the Heartland Private Industry Council received notification from Patricia S. Gilbert, Director, DLET that the costs questioned by the auditor were disallowed. No reason other than that cited by the auditor was given. On October 24, 1991, Heartland Private Industry Council, Inc., notified the Department of Labor of their intent to appeal the disallowed cost. On November 1, 1991, Jack E. Lyons, Executive Director of the Heartland Private Industry Council, wrote a letter to Secretary Scruggs, questioning the applicability of the statutes, both State and Federal, that were cited by the auditor in the statement of questioned costs. At a regularly scheduled meeting of the Heartland Private Industry Council held on April 17, 1992, the Council denied any misapplication of Federal JTPA dollars and voted to not permit the Executive Director to settle the disallowed costs by payment from non-JTPA dollars. The attached documentation styled Index of Exhibits, containing fourteen (14) exhibits is incorporated by reference into the proposed Statement of Facts.
Recommendation It is recommended that a Final Order be entered finding the payment to Clifton Thomas, Jr., of $24,096 in settlement of his law suit against the Heartland Private Industry Council Inc. to be a nonallowable cost and improperly charged to federally provided funds. RECOMMENDED this 29th day of July, 1992, in Tallahassee, Florida. K. N. AYERS 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 this 29th day of July, 1992. COPIES FURNISHED: Larry R. Jackson, Esquire 300 Parkview Place Lakeland, FL 33805 Carolyn Cummings, Esquire Hartman Building, Suite 307-2102 Capitol Circle SE Tallahassee, FL 32399 Frank Scruggs, Secretary 303 Hartman Building 2012 Capital Circle SE Tallahassee, FL 32399-2152 Cecilia Renn Chief Legal Counsel 307 Hartman Building 2012 Capital Circle SE Tallahassee, FL 32399-2152
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
