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 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 issue in this case is whether Respondent is guilty of fraud or deceit in the practice of activities regulated under Chapter 493 and knowingly violating a statutory prohibition against carrying a concealed firearm in the course of business regulated by Chapter 493.
Findings Of Fact At all material times, Respondent has held a Class "A" Private Investigative Agency License, a Class "C" Private Investigator License, and a Class "PD" Proprietary Security Officer License. By final order entered December 8, 1992, Petitioner suspended Respondent's Class "A" and "C" licenses for one year for unlawfully intercepting oral communications. The final order also imposes an administrative fine of $1000 for this violation. In August, 1991, Respondent was retained by a client to perform an asset check of another person. Respondent did not perform the work to the client's satisfaction, so the client filed a complaint with Petitioner. On September 17, 1991, Petitioner's investigator visited Respondent at his office to conduct an interview. When the investigator asked to see Respondent's file on the case, he went to his filing cabinet, pulled out a drawer, and exclaimed that the file was missing. The investigator asked what happened, and Respondent said that someone must have stolen the file. The investigator advised Respondent that, if so, he should report the theft to the police. Respondent did report the theft to the police. In so doing, he made a false report to the police. The file was not missing or stolen; Respondent was trying to obstruct the investigation into the complaint that the client had made against him. When requested to visit the police station for an interview in November, 1991, Respondent wore his handgun in a shoulder holster under his jacket. The evidence is unclear as to the status of Respondent's Class "C" license at the time of the interview at the police department. There is some evidence that it had expired due to nonrenewal, but Respondent also testified that he had already mailed a check and the paperwork necessary for the renewal. However, Respondent may be presumed to be aware that even a current Class "C" license does not authorize the licensee to carry a concealed firearm into a police station.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of State, Division of Licensing, enter a final order dismissing Count II, finding Respondent guilty of violating Section 493.6118(1)(f), issuing a reprimand, and imposing an administrative fine of $1000. ENTERED on September 24, 1993, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on September 24, 1993. COPIES FURNISHED: Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater, General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250 Attorney Henri C. Cawthon Department of State Division of Licensing The Capitol, Mail Station #4 Tallahassee, Florida 32399-0250 Frank J. Lanzillo 520 - 12 Street West, #203 Bradenton, Florida 32405
The Issue The issue in case number 94-6750 is whether Respondent's Class "A" private investigative agency license should be disciplined. The issue in case number 95-1084S is whether Respondent's application for a Class "C" license should be denied.
Findings Of Fact The Parties. Petitioner, the Department of State, Division of Licensing (hereinafter referred to as the "Division"), is responsible for, among other things, the licensing of privateinvestigators and private investigative agencies in the State of Florida. Chapter 493, Florida Statutes. In pertinent part, the Division may issue, pursuant to Section 493.611, Florida Statutes, the following classes of licenses: Class "C": private investigator; Class "CC": private investigator intern; and Class "A": private investigative agency. At all times relevant to this proceeding, Respondent, Keith P. Acuff, was licensed by the Division as a private investigator intern. Mr. Acuff holds a Class "CC" license from the Division. Mr. Acuff is also the owner of a private investigative agency known as Chatoyant Executive Protection and Investigative Services (hereinafter referred to as "Chatoyant"). Mr. Acuff holds a Class "A" license from the Division for Chatoyant. License Requirements. In order to qualify for a Class "C" license, an individual must operate for a minimum of twenty-four months as a private investigator intern. Section 493.6203(4), Florida Statutes. During those twenty-four months, the intern must be sponsored and supervised by an individual holding a Class "C" license. See Sections 493.6101(11) and 493.6116, Florida Statutes. Anyone, regardless of licensure, may hold a Class "A" license. In order for the business to operate as a private investigative agency, however, the agency must be managed by a person holding a Class "C" license. Mr. Acuff's Investigatory Experience. Mr. Acuff first received his Class "CC" license in July of 1990. In October of 1994 Mr. Acuff applied for a Class "C" license. See Petitioner's exhibit 1. The Division denied the application based upon its conclusion that Mr. Acuff had failed to verify that he had accrued twenty-four months of sponsored service as a private investigator intern. Mr. Acuff was first employed by Don Hubbard Investigations. Mr. Acuff had not claimed, nor does the evidence support a finding, that he is entitled to any time toward a Class "C" license for his employment with Don Hubbard Investigations. From the middle of September, 1990, until December, 1991, Mr. Acuff was employed by The Brown Group. Mr. Acuff's sponsor at The Brown Group was Steve Brown. The Division was able to verify from documentation submitted by Mr. Brown that Mr. Acuff was entitled to 12 months of investigatory work while employed at The Brown Group. Mr. Acuff failed to prove that he was entitled to more than 12 months credit for his employment with The Brown Group. Although Mr. Acuff testified that he believes he worked at least 15 months under Mr. Brown's sponsorship, he offered no proof from Mr. Brown to substantiate his testimony. From December 15, 1991, to February 15, 1992, Mr. Acuff was employed by Intercontinental Detective Agency. Mr. Acuff's sponsor at Intercontinental Detective Agency was Sean Mulholland. The Division was able to verify that Mr. Acuff had performed investigatory duties for Mr. Mulholland for 1 month. Mr. Acuff failed to prove that he was entitled to more than 1 month credit for his employment with Intercontinental Detective Agency. Mr. Acuff testified that he believes he worked at least 3 months under Mr. Mulholland's sponsorship but he offered no proof from Mr. Mulholland to substantiate his testimony. Mr. Acuff's testimony that he submitted a Sponsorship Term Addendum completed by Mr. Mulholland to the Division was not credible and, even if it had been credible, was insufficient to constitute substantiation from Mr. Mulholland of Mr. Acuff's work for him. Mr. Acuff's next investigatory work was for MG Detective Agency. Mr. Acuff's sponsor at MG Detective Agency was Michael G. Hatcher. Mr. Hatcher agreed to sponsor Mr. Acuff by executing a Letter of Intent to Sponsor Private Investigator Intern on October 27, 1992. See Respondent's exhibit 2. Cynthia L. Cartwright signed the form agreeing to be an alternative sponsor. Mr. Acuff did not list any time under Mr. Hatcher's sponsorship for credit on his application for Class "C" license. See Petitioner's exhibit 1. The Division was not able to verify that Mr. Acuff had performed any investigatory duties for Mr. Hatcher. Mr. Acuff failed to prove that he was entitled to any credit for his employment with MG Detective Agency. Mr. Acuff testified that he believes he worked at least 3 months under Mr. Hatcher's sponsorship but he offered no proof from Mr. Hatcher to substantiate his testimony. Mr. Acuff claimed on his application for Class "C" license that, upon leaving MG Detective Agency, he worked for Chatoyant from June of 1993 until August 1994. Mr. Acuff claimed that he was sponsored by Ms. Cartwright while employed for Chatoyant. Mr. Acuff also claimed that he performed investigatory work under Ms. Cartwright's sponsorship during the period he worked for Chatoyant for at least 3 and 1/2 months. Initially the Division planned to issue Mr. Acuff a Class "C" license. The Division concluded that Mr. Acuff was entitled to at least 11 months of sponsored investigatory work under Ms. Cartwright's sponsorship. Before the Class "C" license was issued to Mr. Acuff, however, the Division concluded that Mr. Acuff was not entitled to any sponsored time under Ms. Cartwright's sponsorship. The evidence, as discussed, infra, proved that Mr. Acuff is not entitled to any credit for work performed under Ms. Cartwright's sponsorship. Based upon the foregoing, Mr. Acuff provided verification that he had 13 months of sponsored investigatory service. Mr. Acuff is, therefore, 11 months shy of the 24-months of experience required for a Class "C" license. Mr. Acuff's Association with Ms. Cartwright. Mr. Acuff met Ms. Cartwright in late 1992 when he was employed briefly at MG Detective Agency. Ms. Cartwright has held a Class "C" license since 1991. Upon Mr. Acuff's termination of employment at MG Detective Agency, Ms. Cartwright was told by Mr. Acuff and a mutual friend, Carolyn Barber, that he only needed 2 or 3 months to complete the 2 years of internship required for a Class "C" license. Ms. Cartwright was asked if she would sponsor Mr. Acuff and act as the manager of Chatoyant for 2 or 3 months. Ms. Cartwright agreed to Mr. Acuff's request. She did so because Ms. Barber had asked her to and she felt sorry for Mr. Acuff because he had been terminated by MG Detective Agency only needing, Ms. Cartwright thought, 2 or 3 more months of sponsorship. Ms. Cartwright signed a Letter of Intent to Sponsor. The form she signed was blank. The Letter of Intent to Sponsor was subsequently completed, dated April 14, 1993 and filed with the Division. Ms. Cartwright admits she signed a blank form even though she understands that it was improper for her to do so. After agreeing to sponsor Mr. Acuff and act as the manager of Chatoyant, Ms. Cartwright changed her mind. She telephoned the Division's offices in Tallahassee in August of 1993 to ask how she could have her name removed as manager of Chatoyant. Ms. Cartwright was informed that her name did not appear as manager of Chatoyant. In the fall of 1993 Mr. Acuff asked Ms. Cartwright to sign a form terminating her position with Chatoyant. Ms. Cartwright told Mr. Acuff she did not see why she needed to sign a form based upon what she had been told during her conversation with the Division. When Mr. Acuff suggested that the Division might have made a mistake, Ms. Cartwright agreed to sign the form. In January or February of 1994 Ms. Cartwright signed a blank copy of a Termination/Completion of Sponsorship for Private Investigator Intern form. She gave the signed form to Ms. Barber. This form was ultimately completed, Ms. Cartwright's signature was notarized by Mr. Acuff's girlfriend, the form was dated August 30, 1994 and was then filed with the Division as part of Mr. Acuff's application for licensure. See Petitioner's exhibit 6. It was represented on Petitioner's exhibit 6 that Ms. Cartwright had sponsored Mr. Acuff from June 3, 1993 to August 26, 1994. An Employee Action Report was also filed with the Division. Petitioner's exhibit 5. The form indicates that Ms. Cartwright had resigned as manager of Chatoyant as of August 30, 1994. Ms. Cartwright did not sign the form. On October 5, 1994, Ms. Cartwright executed a Termination/Completion of Sponsorship for Private Investigator Intern form attesting that "I did not sponsor Patrick Acuff to my knowledge. I was not aware of Intent to Sponsor." Petitioner's exhibit 7. Ms. Cartwright did not sponsor any investigatory work by Mr. Acuff or act as the manager of Chatoyant. The Administrative Complaint. During the summer of 1994, the Division's office in Jacksonville received a letter questioning how Mr. Acuff could be working for Chatoyant without an appropriate license or manager. Ms. Norma Benvenuto, an investigator for the Division, checked the Division's records and determined that there was no sponsor listed for Chatoyant. Ms. Benvenuto spoke with Mr. Acuff and asked that he come to her office. Mr. Acuff complied. Mr. Acuff informed Ms. Benvenuto that Ms. Cartwright was the sponsor of Chatoyant. When asked for documentation, Mr. Acuff was only able to produce a blank form signed by Ms. Cartwright. Ms. Benvenuto asked Mr. Acuff to bring any documentation that would support his assertion that Ms. Cartwright was the manager of Chatoyant and that they had met to discuss his work during her sponsorship of him. Ms. Benvenuto telephoned Mr. Acuff more than once to remind him to bring the documentation. Mr. Acuff failed to provide any such documentation. Ms. Benvenuto contacted Ms. Cartwright in an effort to verify Mr. Acuff's assertions. Ms. Cartwright denied ever sponsoring Mr. Acuff or every actually performing any duties as the manager of Chatoyant. Ms. Cartwright also admitted that she had initially agreed to sponsor Mr. Acuff but had subsequently changed her mind. On October 20, 1995, the Division entered an Administrative Complaint against Mr. Acuff. The Denial of Mr. Acuff's Application for a Class "C" License. By letter dated December 16, 1994, the Division notified Mr. Acuff that his application for a Class "C" license was denied.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Division sustaining Counts II and III of the Administrative Complaint against Mr. Acuff in case number 94- 6750, requiring that he pay a fine of $1,000.00 and denying the application for a Class "C" license filed by Mr. Acuff or about August 30, 1994 in case number 95-1084S. DONE AND ENTERED this 28th day of April, 1995, in Tallahassee Florida. LARRY J. SARTIN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1995. APPENDIX The Division has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Mr. Acuff did not file a proposed order. The Division's Proposed Findings of Fact 1 Hereby accepted. See 4-5. 2-3 Hereby accepted. Accepted in 22. Accepted in 22, 28 and hereby accepted. Hereby accepted. Accepted in 25 and hereby accepted. Accepted in 22 and hereby accepted. Accepted in 17 and hereby accepted. See 26 and hereby accepted. Hereby accepted. Accepted in 16 and hereby accepted. Accepted in 14. Accepted in 13, COPIES FURNISHED: Michele Guy Assistant General Counsel Department of State Division of Licensing The Capitol, MS #4 Tallahassee, Florida 32399-0250 Jeffrey Grainger, Esquire 1722 University Boulevard South Jacksonville, Florida 32216 Honorable Sandra B. Mortham Department of State The Capitol Tallahassee, Florida 32399 Don Bell Department of State The Capitol Tallahassee, Florida 32399
The Issue Whether Petitioner's application for a Class "CC" (private investigator intern) license should be denied on the grounds set forth in the Department of State, Division of Licensing's (Department's) May 4, 1992, denial letter to Petitioner?
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Petitioner is 31 years of age and has resided in Palm Beach County his entire life. He is now, and has been for the last few years, self-employed as certified process server in Palm Beach County. After receiving his certification, he applied for and obtained a State of Florida license to carry a concealed firearm. Petitioner has been married to his present wife for approximately a year. He and his wife have an infant daughter and are expecting another child. This is Petitioner's second marriage. His first marriage ended in a bitter divorce. Petitioner has had several brushes with the law in the past, all of which occurred prior to the termination of his first marriage. In 1980, Petitioner was arrested for, and subsequently charged in Palm Beach County Circuit Court Case No. 80-5141CF with, carrying a concealed firearm, resisting arrest with violence and battery on a police officer. Pursuant to the terms of a plea bargain agreement, Petitioner pled guilty to the charge of resisting arrest with violence and the remaining charges against him were dropped. Adjudication of guilt on the resisting arrest charge was withheld and Petitioner was placed on three years probation. In 1984, while still on probation, Petitioner was arrested for, and charged in Palm Beach County Circuit Court Case No. 84-4810MM with, possession of under 20 grams of marijuana, a misdemeanor. He was adjudicated guilty of this offense after entering a guilty plea to the charge and sentenced to time served. Petitioner's commission of this misdemeanor marijuana possession offense also resulted in a finding that he had violated the conditions of his probation in Case No. 80-5141CF. Based upon this finding, Petitioner's probation was extended an additional two years. In accordance with the recommendation of his probation officer, Petitioner was discharged from his probation on January 9, 1986, more than five months prior to the date it was due to expire. In 1989, Petitioner was separated, but not yet divorced, from his first wife, Theresa. Theresa was living in the home she and Petitioner had shared prior to their separation. Petitioner was living in a trailer on his parent's property. Theresa had changed the locks on the doors in an effort to prevent Petitioner from entering the marital home. She had also obtained a court order enjoining Petitioner from harassing her. In late June or early July of 1989, Petitioner and Theresa reconciled. Theresa gave Petitioner a key to the marital home and invited him to move back in and live with her again. Petitioner accepted the invitation. The couple lived together peaceably and without incident for approximately a week. On the morning of July 8, 1992, however, Petitioner and Theresa had an altercation that abruptly put an end to their reconciliation. The altercation began when, using the key Theresa had given him the week before, Petitioner opened the front door to their home and went inside. Petitioner was tired inasmuch as he had spent a sleepless night in the hospital room of his ill grandmother. He intended to go directly to his bedroom to try to get some sleep. Theresa was home, but she was not alone. She was with another man. As Petitioner walked through the doorway and into the home, Theresa confronted him. She had a firearm in her hand. The gun was pointed in Petitioner's direction and was very close to his face. Petitioner pushed the firearm aside and headed upstairs to his bedroom. Theresa followed close behind Petitioner, threatening to shoot him. In the bedroom was a jewelry box that contained a wedding ring that Petitioner had given Theresa to wear. 1/ Petitioner took the box. He then exited the bedroom, walked downstairs and went out the front door with the jewelry box still in his possession. Theresa unsuccessfully attempted to prevent Petitioner from getting into his car by pulling his hair and trying to choke him. As Petitioner drove off, Theresa shot at his car. Based upon erroneous information provided by Theresa about this incident, Petitioner was arrested for strong armed robbery, breaking and entering by forced entry, battery on a spouse and violating the terms of the injunction that Theresa had obtained against him. 2/ No formal charges, however, were filed against Petitioner as a result of the incident. The aforementioned injunction was subsequently vacated retroactive to the day before the incident. It appears that, although he may have run afoul of the law when he was younger, Petitioner has since matured and transformed himself into a responsible, honest and law-abiding citizen.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order finding that Petitioner should not be denied licensure as a private investigator intern on the grounds cited in the Department's May 4, 1992, denial letter, as amended at hearing. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of October, 1992. STUART M. LERNER 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 12th day of October, 1992.
Findings Of Fact Respondent, Mark P. Stanish, during times material held a Class "C" private investigator license issued pursuant to Chapter 493, Florida Statutes. During the period January, 1993 through April, 1993, Respondent advertised in local newspapers in and around Pasco County for "private investigators wanted". At least nine individuals responded to the advertisement placed by Respondent and appeared at meetings and seminars in Pasco County and were told by Respondent that, for a fee, his agency would train and license them and refer investigative cases to them subject to an independent contractor's agreement. At least three individuals paid Respondent $2,000 for training and the promise of being set up in a branch office with enough investigative work to earn $40,000 annually. After paying Respondent $3,000, Michael Straniere was given office space in Spring Hill, Florida and told to recruit as many investigators as possible. Straniere never received any investigative cases from Respondent or as a result of advertising in the local newspaper. Straniere received no training other than the sales pitch by Respondent to recruit as many investigators as possible, and that was the manner in which he could earn the salary that he was promised ($40,000 per annum). Ted Nizza was also made a similar solicitation by Respondent; however upon reflection, Nizza declined the solicitation when Respondent became defensive when Nizza suggested that it sounded like a pyramid scheme. Nizza, a former law enforcement officer in New York, did some background checks on Respondent's operations and learned that Respondent had no investigative work available, and that the manner in which monies would be earned, in the main, consisted of bringing in recruits and receiving a fee for each recruit selected, which recruits would pay a substantial fee ($1,000 or more) to be trained and licensed. In soliciting recruits, Respondent sought $1,995 for training or $3,000 for a management position. Respondent had no contracts for private investigative work during times material. At least four individuals gave Respondent down payments and deposits toward training, licensing and sponsorship for private investigative intern licenses. These deposits were in varying amounts from upwards of $200 to $1,000. Although seven recruits paid Respondent a fee to receive training to become licensed, only Straniere's license application was submitted to Petitioner for processing. In soliciting branch managers, Respondent told Nizza that the over- recruitment of private investigators and interns would not be problematic as there was a high turnover in the private investigation industry. During times material, neither Michael Straniere, Ted Steven Triola, Harry H. Orta, Robby L. Keen, Dorcas L. Stafford, Curtis J. Huff, or Joel Smith received any private investigative work from Respondent or through advertisements nor were they refunded any of the monies paid to Respondent. (proffered testimony) /2
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner enter a final order revoking Respondent's Class "C" private investigator license. RECOMMENDED in Tallahassee, Leon County, Florida, this 2nd day of May, 1994. JAMES E. BRADWELL 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 2nd day of May, 1994.
Findings Of Fact On January 25, 1983, the Respondent, George S. Williams, submitted to the Division of Licensing, office of the Secretary of State, an application form for a Class "E" Repossessor's license in the State of Florida and enclosed with it the $25 filing fee. In Section 7 of the form, dealing with the applicant's employment history for the five years prior to the application, Respondent listed, inter alia, employment with Adams' Investigations, Inc., in Orlando, Florida, during the periods November 1979 to October 1980, and October 1982 to May 3, 1983. In the sworn Affidavit of Experience attached to the application, Respondent indicated that during the first period of employment with Adams, he handled actual repossessions in the field. During the course of his case investigation leading up to the issuance of Respondent's license, Willie Rister, an investigator for the Division of Licensing, interviewed the Respondent. During this interview, Respondent told Mr. Rister that during both periods of employment with Adams Investigations, Inc., listed in the application, he was performing repossessions for Adams as a salaried employee at $400 per week. The "EE" repossessor intern license did not exist under Florida Law until July 1, 1980, when the Florida Legislature revised Chapter 493, Florida Statutes. Notice of the change in the law requiring the need for "EE" licenses was not sent out to current "A" license holders until March 30, 1981. In fact, forms did not exist for applying for the Class "EE" license until well after the effective date of the new legislation. Under the preexisting legislation, holders of Class "A" or Class "C" licenses could conduct repossessions. The new law provided that holders of Class "A" licenses could apply for and receive a new Class "E" license by submitting a complete application, along with an application fee, by May 14, 1981. This savings clause applied to holders of Class "A" licenses, But not to those who had no license at all. Under the new law, repossession work required either a Class "E" license, to work alone, or a Class "EE" license, to work for a licensed agency with an "E" license. Here, Respondent had not been previously licensed and held no license at all, "A," "C," "E," or "EE," until his "E" license was issued on May 21, 1983, and acted as are possessor, unlicensed, until that date.
Recommendation That Respondent pay an administrative fine of $50.
The Issue This is a license discipline proceeding in which the Petitioner seeks to take disciplinary action against the Respondents on the basis of allegations of misconduct set forth in an Administrative Complaint. The essence of the alleged misconduct is that the Respondents have conducted or advertised the business of a recovery agent without a valid Class "R" Recovery Agency license.
Findings Of Fact Rhonda L. Peroutka has a Class "CC" Private Investigator Intern license, Number CC99-00699, issued by the Petitioner agency. Rhonda L. Peroutka, in her capacity as President of A People Finder, Inc., holds a Class "A" Private Investigative Agency license, Number A97-00289, and a Class "ZA" Organizational Officer Position license, Number ZA97-00405, both issued by the Petitioner agency. Beginning on January 8, 1999, and continuing to the date of the final hearing in this case, the Respondents have been engaged in business activities in the State of Florida that involve the performance of repossessions for consideration. During the period of time mentioned above, the Respondents regularly and frequently entered into contracts with the Superior Bank in New Jersey to repossess motor vehicles in the State of Florida on which the Superior Bank had a lien. Pursuant to those contracts, the Respondents acted in the capacity of an independent contractor of the bank for the purpose of repossessing specific motor vehicles identified by the bank. The contracts between Superior Bank and the Respondents specifically authorized and directed the Respondent, A People Finder, Inc., to repossess a specifically described motor vehicle. Such contracts did not authorize the Respondents to forward or to subcontract the repossession authorization. Nevertheless, the regular practice of the Respondents is to subcontract the repossession work to licensed recovery agencies throughout the State of Florida. The subcontracting licensed recovery agencies perform the actual repossessions of the motor vehicles the Superior Bank seeks to have repossessed. Following a successful recovery of a motor vehicle, the subcontracting licensed recovery agencies bill the Respondents for their services. Thereupon, the Respondents advise Superior Bank of the successful recovery, and the Respondents submit a bill to Superior Bank for repossessing the motor vehicle. The Respondents do not advise Superior Bank that the actual repossession was performed by a subcontractor. The bills submitted by the Respondents to Superior Bank typically list as separate items a repossession fee, an administrative fee, and any miscellaneous costs associated with the repossession, such as the cost of making keys. Superior Bank pays the entire amount of the bill to the Respondents. When Superior Bank pays for a repossession, the entire amount of the payment is deposited into an escrow account controlled by the Respondents. Thereafter, the Respondents pay from the escrow account the amount due to the subcontracting licensed recovery agency, and they pay to A People Finder, Inc., the administrative fee that was charged to Superior Bank. The Respondents agree with the licensed recovery agencies with whom they contract to hold them "harmless from and against any and all claims, damages, losses, and actions including reasonable attorney's fees, resulting from and arising out of your efforts to collect and/or repossess. . . ." However, the Respondents do not carry insurance for the actions of a recovery agency during the course of a repossession. Neither of the Respondents has a recovery agency license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued in this case concluding that the Respondents are guilty of the violations charged and imposing the following penalties: (a) a one-year suspension of all licenses held by the Respondents; (b) an administrative fine in the amount of $1,000.00 against Respondent, A People Finder, Inc.; and (c) an administrative fine in the amount of $1,000.00 against Respondent, Rhonda L. Peroutka. DONE AND ENTERED this 16th day of December, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 1999.
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.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing the following facts were found: At all times material to this proceeding, Respondent held a Class "A", private investigative agency license Number GA 0002275 and a Class "C", private investigator license number GC 0001218. Respondent has been actively engaged as a private investigator in the Daytona Beach/Volusia County area of the State of Florida for over 25 years. A substantial portion of Respondent's activities as a investigator, are performed for attorneys representing both Plaintiffs and Defendants who employ the Respondent to investigate accidents, locate and question witnesses, photograph vehicles and sites, serve subpoenas for trial and deposition, and on occasion to perform surveillance. Records of the Circuit Court for Volusia County, Florida, reflect that Respondent was arrested on September 9, 1982 by the Ormond Beach, Florida, Police Department and charged with Attempted Murder. The State Attorney For The Seventh Judicial Circuit, by Information dated September 22, 1982, charged the Respondent with Attempted First Degree Murder and Aggravated Battery. By Order of August 10, 1982, the Circuit Court of Volusia County, Florida, accepted the Respondent's plea of nolo contendere to the charge of Aggravated Battery, a Second Degree Felony. The Court withheld adjudication of guilt and placed the Respondent on probation for a period of 5 years. Respondent has no previous criminal record, although once arrested in 1974 on a complaint that was Nolle Prosequi by the State of Florida as a case of mistaken identity. Respondent's testimony that he was aware of only 1 complaint to the Department against him as a private investigator and that that complaint was disposed of as "unfound" went unrebutted. The circumstances that led up to Respondent's arrest on September 9, 1982 were domestic in nature: The Respondent objected to a relationship that had developed between his 12-year-old daughter, Vicky, an eighth grade student, and Thomas Parker (Parker) a 17-year-old boy about a year before the shooting incident on September 9, 1982. The Respondent came to disapprove of Parker because of Respondent's view that Parker was too old for his daughter, did not go to work or school, had no parental supervision or discipline, and was of dubious character and reputation. Respondent's efforts to terminate the relationship were frustrated. Respondent became convinced that Parker had introduced his daughter to sex, alcohol and the use of marijuana and other drugs. Respondent forbade his daughter from seeing Parker but the relationship continued and caused friction and tension within the family. Within a year, Vicky went from an "A" student to a "drop-out". Respondent sought advice and assistance from friends and public officials in regard to terminating this relationship but to no avail. Vicky was sent to live with Respondent's son in another part of the state but was brought back home when Parker began to pose a threat to the tranquility of the son's home. During the evening of September 8, 1982, Respondent and his wife, Louise Kinney, discovered that Vicky was missing from her bedroom. Respondent proceeded to search for Vicky but to no avail. Respondent reported this to the Ormond Beach Police Department because he thought Vicky had run away and was in the accompany of Parker. Sometime between 3:00 a.m. and 3:30 a.m on September 9, 1982, Respondent heard someone at Vicky's bedroom window and went outside to "check it out" with a .357 magnum pistol, a metal baseball bat and a flashlight. Respondent found Parker and a friend helping Vicky into her bedroom window. When Parker and his friend saw Respondent they ran and Respondent gave chase. While chasing Parker, Respondent tripped over a vent pipe to a storage tank and the pistol discharged hitting Parker in the lower back. Respondent's testimony that he did not intend to shoot Parker and that the shooting was accidental went unrebutted. These comments are consistent with Respondent's explanation to the police officers called to the scene of the shooting and consistent with his comments to Dr. Barnard, a psychiatrist. Respondent's testimony that it was his intent to only hold Parker at the scene for the police so that Respondent could charge Parker with trespassing and possibly relieve a bad situation at home went unrebutted. Neither Parker nor his friend were armed. While Dr. Barnard's report indicates that Respondent was legally sane and competent at the time of the shooting, the testimony of Dr. Maximo Hancock, a psychiatrist and Dr. Barnard's initial and supplemental reports indicate that Respondent was under a tremendous emotional strain that could have resulted in Respondent reacting without knowing what he was doing at the time. Parker has brought a civil suit against Respondent for damages predicated in the part upon allegations that Respondent's action constituted negligence in a deliberate assault or battery. Respondent homeowner's insurance carrier which insured Respondent for negligence but not for deliberate and willful acts, has "accepted the risk" and is furnishing Respondent with legal defense in this civil litigation. Of the 10 witnesses to testify for Respondent, 8 of them were attorneys that had known Respondent for a period of time and had employed Respondent before and after the shooting incident to perform those services listed in paragraph 2 above. The general consensus of these witnesses was that the Respondent enjoyed an excellent reputation as an investigator for skill and competency, trustworthiness and high ethical standards, and for pursuit of his investigative duties without breach of the peace. None of these witnesses expressed any reservation or hesitancy about continuing to use Respondent's services because of any propensity toward violence. These witnesses viewed the shooting incident of which all were aware, as an isolated personal matter unrelated to and outside the scope of his activities as an investigator.
Recommendation Based upon the findings of facts and conclusions of law recited herein, it is RECOMMENDED that the Department of State issue a final order finding the Respondent not guilty of the violations as charged in the Administrative Complaint and that the Administrative Complaint be DISMISSED. Respectfully submitted and entered this 22nd day of July, 1985, in Tallahassee, Leon County, Florida. COPIES FURNISHED: H. James V. Antista, Esquire Department of State LL 10, The Capitol Tallahassee, Florida 32301 Henry P. Duffett 120 E. Granada Boulevard Post Office Box 2633 Ormond Beach, Florida 32075 Honorable George Firestone Secretary of State The Capitol Tallahassee, Florida 32301 WILLIAM R. CAVE 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 22nd day of July, 1985. =================================================================
