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 ultimate issue for determination at hearing was whether disciplinary action should be taken against Respondent's license to practice osteopathy for the reasons alleged in the Administrative Complaint.
Findings Of Fact At all times relevant to this proceeding, Respondent has been licensed to practice osteopathy under the laws of the State of Florida pursuant to License Number OS 0001510. Petitioner is the state agency empowered by Chapters 20, 455, and 459, Florida Statutes, to regulate the practice of osteopathy within the State of Florida. The addresses listed by Respondent on the copies of his renewal cards for his license in Petitioner's Composite Exhibit 1 include the address of 76 East McNab Road, Pompano Beach, Florida, 33060. Respondent and Petitioner were parties to a prior disciplinary proceeding. Department of Professional Regulation, Board of Osteopathic Medical Examiners v. Wilfred W. Mittelstadt, Case No. 84-2844 (DOAH 1986). The Final Order of the Board in the prior disciplinary proceeding was entered on November 7, 1986, filed on November 20, 1986, and affirmed per curiam by the First District Court of Appeal on April 27, 1988. Mittelstadt v. Department of Professional Regulation, Board of Osteopathic Medical Examiners, 528 So.2d 1188 (Fla. 1st DCA 1988). The Final Order in the prior disciplinary proceeding provides inter alia that during a 3_ year period from the date of the Final Order 3/ Respondent ". . . shall have his office records subjected to random inspections by the Department of Professional Regulation." The Final Order does not specify the purpose of the random inspections. Instead, the Final Order provides as an "additional part of the penalty" that Respondent is prohibited from the use of chelation therapy for the treatment of rheumatoid arthritis, copper poisoning, and vascular disease for a 3 year period. The random inspection of office records, therefore, is separate and apart from the prohibition of practicing chelation therapy for the purposes prescribed in the Final Order. On August 17, 1987, DPR Investigator Golden received a Disciplinary Enforcement Request from the Board. The Board requested Investigator Golden to inspect Respondent's office records if the Respondent was still in practice. The Board's request stated that its Final Order prohibited Respondent from using chelation therapy, that Respondent must appear before the Board with proof of CMEs, 4/ and further requested Investigator Golden to inform the Board if Respondent was still in practice. Investigator Golden spoke with Respondent by telephone on September 8, 1987. Investigator Golden telephoned Respondent's office on September 8, 1987, and asked to speak with Dr. Mittelstadt. A man subsequently identified himself to Investigator Golden as Dr. Mittelstadt. The accuracy of the telephone system, the absence of motive to falsify, and the lack of opportunity for premeditated fraud all support the conclusion that self-identification by the person being called is reliable authentication of the speaker's voice. The voice in the telephone conversation on September 8, 1987, was that of Respondent. Investigator Golden was sufficiently familiar with Respondent to identify the voice in the telephone conversation on September 8, 1987, as that of Dr. Mittelstadt. Investigator Golden based his voice identification on a face-to-face conversation with Dr. Mittelstadt prior to the telephone conversation on September 8, 1987, and on hearing the Respondent speak on the day of the formal hearing outside the hearing room. In addition, Investigator Golden physically identified Respondent under oath at the hearing. Respondent had actual or constructive knowledge of the terms of his probation. Respondent was a party to the prior disciplinary proceeding in which the Final Order was entered on November 7, 1986. Respondent filed a Motion to Stay the conditions of suspension and probation which was denied by the First District Court of Appeal. Wilfred W. Mittelstadt, D.O. v. Department of Professional Regulation, Case No. BR-150 (Fla. 1st DCA January 23, 1987). Respondent appealed the Final Order and the Final Order was affirmed per curiam. Mittelstadt v. Department of Professional Regulation, Board of Osteopathic Medical Examiners, 528 So.2d 1188 (Fla. 1st DCA 1988). Finally, Petitioner's Composite Exhibit 2 and Petitioner's Exhibit 3 establish a rebuttable presumption that the Final Order was delivered to Respondent on November 25, 1986. That presumption was not rebutted by testimony from the Respondent. The testimony of Investigator Golden demonstrates that the purpose of the Board's Disciplinary Enforcement Request on August 17, 1987, included inspection of office records. Investigator Golden's testimony also establishes that it was one of his purposes in making the telephone call to Dr. Mittelstadt on September 8, 1987, to request inspection of Respondent's office records. No evidence was presented that Investigator Golden requested access to Respondent's office records, that Respondent denied such access, that Respondent failed to make available his office records for inspection upon request by the Petitioner, or that Respondent willfully and intentionally failed and refused to produce his office records upon official request of the Petitioner. The testimony of Investigator Fischer is irrelevant to the allegation in the Administrative Complaint that Respondent refused to allow inspection of his office records on or about September 7, 1987. Further, the record does not establish that a request to inspect Respondent's office records was ever made by Investigator Golden. The Transcript at page 24 reveals the following facts: I said, "This is Jim Golden, investigator with DPR, Department of Professional Regulation." Q. All right. A. And I said "I'm calling to set up an appointment to come to your office and sit down with you in regards to the terms of your probation, disciplinary action." Do you want to just-- Q. What kind of response did you get? A. Okay. Dr. Mittelstadt refused to discuss his probation terms and even disavowed ever being disciplined by the Board stating, "I have patients to see," and hung up. Q. What did you do in response to that? A. I advised my supervisor and then initiated a supplemental report, probation report, and forwarded it with a copy of the DER to the Board. Did you make further attempts to review his records yourself? A. No, sir. There is no evidence that Petitioner made any other request to inspect Respondent's records on or about September 7, 1987, as alleged in the Administrative Complaint. Nor is there any evidence that Respondent refused such a request.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found not guilty of violating the terms of his probation on or about September 7, 1987, as alleged in the Administrative Complaint. DONE and ENTERED this 8th day of August 1989, in Tallahassee, Florida. DANIEL MANRY 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 8th day of August 1989.
The Issue The issue for consideration was whether the Respondent, Frank R. Kuiken, Jr., should be disciplined because of the misconduct alleged in the Administrative Complaint filed herein.
Findings Of Fact At approximately 3:00 PM on August 30, 1989, Manatee County Sheriff's Deputy Michael Kenyon saw Respondent's wife, Michelle, driving their automobile in the city of Bradenton with a blue flasher posted on the dash board inside the windshield. Because the unauthorized use of such a light is prohibited by law, Deputy Kenyon stopped Ms. Kuiken and when he approached the car, noticed she had moved the light from the dashboard to the floor. When he asked her why she had such a light in the car, she replied that her husband, a private investigator, used it in the course of his business in emergency situations. Deputy Kenyon requested Respondent be contacted and come to the scene. When he arrived, Kuiken advised Kenyon that he was a private investigator and used the light only in cases of extreme emergency in the performance of those duties. He further related he had not yet had the opportunity to use it. Mr. Kuiken also indicated that in addition to being a private investigator, he was a process server appointed by two local judges, and a court officer. Deputy Kenyon attempted to verify Respondent's claim to being a court officer but was unable to do so. Upon request, Respondent refused to show a private investigator's license, but indicated he had a permit to carry a concealed weapon. Several days later, Mr. Eugene Blitch, an investigator with the Department of State's Division of Licensing, was contacted by the Bradenton Police Department regarding Mr. Kuiken's claim to being a private investigator, and requested to confirm the licensing status. Blitch's inquiry and search of official state records revealed that Kuiken was the holder of a concealed weapon permit but did not hold, does not now hold, and never has held a license as either a private investigator or a private investigative agency. There was no evidence presented with reference to the occupational license. Respondent's business card, which he gave to the Deputy Sheriff indicates he holds himself out, without qualification, as an "investigator" offering surety recovery, missing persons searches, and service of process services. He claims this card was not given out to the general public but only to attorneys and finance companies for whom he worked on a contract basis. On September 7, 1989, Mr. Blitch, in the company of a Manatee County detective, went to the Respondent's home in Bradenton where upon inquiry from Blitch, Respondent admitted he did not hold a license to do private investigative work. He also indicated he carried no liability insurance but claimed, however, that he did not work for the public and did not advertise or hold himself out to the general public as a private investigator. He indicated he worked for attorneys, as a process server, and as an employee of ITT Financial Services. Inquiry of the manager of this concern revealed Respondent was not an employee of the company but did security and investigative work for it on a contract basis from time to time. During his interview with Blitch, Respondent denied having admitted to the deputy that he was a private investigator, but the other evidence contradicts this and is found to be more credible. The evidence of record clearly indicates that Respondent held himself out as an investigator, and the hearsay statement of the ITT manager confirms this. Respondent asserted to Mr. Blitch that since he did no work for the general public and limited his activity solely to process serving, work for attorneys, and for ITT, he was not required to be licensed. When advised that his understanding was incorrect, he quickly agreed to do whatever was necessary to "get legal".
Recommendation Based on the foregoing Findings of Fact and conclusions of Law, it is, therefore: RECOMMENDED that the Respondent, Frank Robert Kuiken, Jr., be assessed an administrative fine of $250.00. RECOMMENDED this 11th day of April, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 11th day of April, 1990. COPIES FURNISHED: Henri C. Cawthon, Esquire Department of State Division of Licensing The Capitol, Mail Station #4 Tallahassee, Florida 32399-0250 Frank Robert Kuiken, Jr. 5655 Tousley Drive Eau Claire, Michigan 49111 Hon. Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Ken Rouse General Counsel Department of State The Capitol, LL-10 Tallahassee, Florida 32399-0250
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: State Road Number 688, also known as Ulmerton Road, is a major east- west arterial road in Pinellas County. The Paradyne Corporation owns property south of Ulmerton Road and the intervenors, the Millers and the Benjamins, own property located immediately adjacent and to the west of the Paradyne property. Located on the Paradyne property are six or eight commercial buildings, parking lots and a road which runs between Ulmerton Road and 126th Avenue, a county road. At the present time Paradyne employs approximately 1,700 persons who park approximately 1,400 cars per day in the parking lots located on Paradyne's property. On a form entitled "State of Florida Department of Transportation Driveway Permit," Paradyne requested "permission for the construction of a driveway(s) on Department of Transportation right-of-way" at State Road No. 688, Section No. 15120, Mile Post No. 6.350 in Pinellas County. The request was approved by the Department of Transportation on June 6, 1981. Attached to the approved permit were various conditions and stipulations and a sketch or drawing of the proposed construction. Paradyne constructed the connection with the Ulmerton Road light- controlled intersection, as well as a private road leading to it, in a manner whereby only vehicles utilizing the Paradyne property would have access to the intersection. The actual location or configuration of the connection on the State's right-of-way deviated somewhat from the location or configuration shown on the sketch or drawing attached to the permit. The permit issued to Paradyne in 1981 did not include any provisions regarding or sketches illustrating an access road on private property. The property owners adjacent to Paradyne, the intervenors herein, also desired a means of access to the light- controlled intersection on Ulmerton Road. Paradyne refused to allow intervenors to use the private road on its property. The intervenors' request to DOT for a separate connection to Ulmerton Road was denied for safety reasons. The DOT also denied the intervenors' request that a cease and desist order be issued that would require Paradyne to allow the intervenors the use of Paradyne's road. DOT's reason for refusing such a request was that it was beyond the jurisdiction of the DOT to order a 250- foot access road over the parties' private property. Apparently, the construction of a 250-foot joint use road was the subject of preliminary discussions between Paradyne and persons who had previously held an option to purchase the intervenors' land. However, as noted above, the permit was issued only to Paradyne and there is no mention therein of a 250-foot joint use drive on the private property of either Paradyne or the intervenors. Having failed in their attempts with Paradyne and the DOT to gain access to the Ulmerton Road light-controlled intersection, the intervenors filed an action in the Pinellas County Circuit Court seeking a declaratory judgment and a mandatory injunction requiring Paradyne to participate with them in the construction of a 250-foot joint use drive. The Circuit Court ordered Paradyne to so participate in accordance with the driveway permit and the DOT drawing. On appeal to the District Court of Appeal, Second District, it was concluded that there was substantial evidence to support the Circuit Court's finding that DOT intended that the owners of both parcels would have access to the light- controlled intersection. However, the appellate court found "that the circuit court violated due process of law because it did not have authority to order appellant to participate with appellees in the construction of the 250-foot-connector road. The permit, as issued, did not require a 250-foot connector road. The circuit court is only authorized to enforce the DOT permit under section 120.69. The authority to regulate connectors to state roads has been delegated to DOT pursuant to section 335.18, Florida Statutes (1981). Therefore, we reverse and remand to the circuit court to enforce the DOT permit pursuant to section 120.69, so both parcels will have access to the light-controlled intersection. Upon remand, DOT may intervene as a matter of right pursuant to section 120.69(1)(d), or be joined as an indispensable party based on its duties under section 335.18: It is possible that DOT will find that the intersection, as designed, does not meet the standards in section 335.18, Florida Statutes (1981). In this event, DOT should be allowed to re- design the connector road to meet the standards of section 335.18, and to have minimal impact on the property rights of appellant and appellees. In the event it becomes impossible to provide the parties access to the intersection as contemplated by DOT's permit, DOT has authority under section 335.18(4) to deny access and revoke the permit. Affirmed in part and reversed in part and remanded with instructions." Paradyne Corporation v. Miller, 455 So.2d 432, at 434 (Fla. 2nd DCA, 1984). On remand, the DOT intervened in the proceeding. By Order filed on December 23, 1985, the Circuit Court of Pinellas County noted that the intervenors herein and the DOT sought to present a redesign of the intersection and connector road and that Paradyne objected. The Court denied the proceedings sought by the intervenors herein and the DOT, concluding that "this hearing is premature in view of the fact that a new permit must be issued for a material change of the intersection, and that Defendant (Paradyne), in the issuance of a new permit has all the rights of objection and administrative process that it had under the first permit..." Irvin E. Miller, et al v. Paradyne Corporation, et al, Case No. 82-3441-8 (Circuit Court for Pinellas County, December 23, 1985). The instant "Alleged Violation of the Florida Statutes and Notice to Show Cause" is dated March 31, 1986. That document charges that the highway connection constructed by Paradyne is in violation of Section 335.18(3) and 335.18(1) for the reasons that: it was not constructed in accordance with the permit design plan to provide joint access to Paradyne and the intervenors' adjoining properties, and (b) a material redesign of the existing connection in accordance with an attached drawing is required due to disruption of traffic and safety hazards caused by the greatly increased numbers of vehicles using the road connection. Paradyne was ordered to comply or show cause why its connection permit should not be revoked and access denied to the connection. On the south side of Ulmerton Road, the DOT's right-of-way extends 38 feet from the berm of Ulmerton Road. There is no dispute over the fact, and petitioner so admits, that the connection Paradyne constructed on the State's right-of-way was not in accordance with the drawing attached to its 1991 permit. However, the DOT presented no evidence that it now desires Paradyne to alter the connection so as to be in compliance with the 1981 permit drawing. In late 1984, after the remand from the District Court of Appeal, Second District, the intervenors retained the DSA Group, formerly Diaz-Seckinger & Associates, Inc., to prepare a report on the joint use of improvements at the intersection of Ulmerton Road and the Paradyne entrance. The DSA Group conducted traffic studies and prepared a "Report on Existing Conditions and Joint Use Access Proposal at Ulmerton Road and Entrance to Paradyne." The report recommended a redesign and contained drawings for a major revision of the intersection actually on Ulmerton Road, the connection on the right-of-way and a 250-foot long joint access road on the private property of Paradyne and the intervenors. While DOT employees were consulted regarding this report and its recommendations and had some input during its preparation, there was no showing that Paradyne participated in the report or the recommended redesign of Ulmerton Road, the connection or the joint use drive. Indeed, according to the engineer responsible for the DSA report, the report and redesign were developed and submitted to the intervenors and the DOT "for their use in meeting and negotiating with the Paradyne. At the time we took the contract we were under the opinion that they were hopefully resolving things with the property owners and they wanted something to go to Paradyne as an offering of one alternative, frankly, with the expectation that there may be something coming back saying "Well, we need to modify this and this." As it turns out, this plan as of a year ago or over a year ago, it's the one that stands right now." (Transcript, pages 98 and 99). Apparently, the intervenors, prior to commissioning the DSA report, requested the DOT to perform a survey or study. DOT declined to do so on the ground that "this had to do with private drives, private property and it was DOT's position that we did not fund evaluations for access into private development." (Transcript, page 136). The redesign of the Ulmerton Road intersection and entrance to the Paradyne/Intervenors property, along with the 250-foot joint use road, recommended by the DSA Group is identical to the redesign required under specification (b) of the Notice of Violation and to Show Cause issued by the DOT. The drawing attached to the Notice to Show Cause is the drawing prepared by the DSA Group. Traffic has increased at the intersection of Ulmerton Road and the entrance to the Paradyne property. The traffic signal in the center of Ulmerton Road allows Paradyne employees traveling westward on Ulmerton to turn south into Paradyne's parking lots, allows exiting employees to turn westward or eastward and also allows traffic exiting from a development known as Tall Pines Estates on the north side of Ulmerton to turn east or west. During two peak traffic flow hours in 1981, 780 vehicles traversed the intersection straight through from east to west, and 235 westbound vehicles turned left or southward into the Paradyne parking lot from Ulmerton Road. In 1985, the through vehicles numbered 1,224 and the left-turning vehicles numbered 379 during the peak traffic hours. It was not established by the testimony and evidence that the increase in through traffic from east to west is the result of any increased activity on the part of either Tall Pines Estates on the north side of Ulmerton or Paradyne on the south side. The increased number of westbound, left-turning vehicles into the Paradyne parking lots causes some backup from the existing stacking lane during the morning and afternoon peak hours, thus causing some congestion on the north or westbound half of Ulmerton Road. The single, existing stacking lane for westbound, left-turning vehicles is approximately 120 to 150 feet long. A survey conducted in late 1984 demonstrated that for the morning peak period, the level of service was an "E", indicating forced flow with traffic backing up. In the afternoon peak period, the level of service was a "D", meaning that drivers had to wait two or three cycles to get through the intersection. The desirable or comfortable level of service is a "C", meaning that the motorist has to stop for only one change of lights. The DOT's minimum accepted design standard in an urban area is a level "D" service. In 1985, the actual accident rate in ratio to the critical accident rate slightly exceeded 1 in the area of the subject intersection. The recommendations of the DSA Group, and the redesign required by the DOT in its Notice to Show Cause, calls for the construction of a dual or double stacking area, 350 feet in length, for the westbound approach on Ulmerton Road and a widened receiving approach on the property to the south to accommodate the dual left-turning traffic. The plan also calls for two westbound turning lanes out of Paradyne property. The median barrier for westbound traffic on Ulmerton Road would need modification. In addition to the widened entrance on the private property to the south, the DSA design calls for the private access road to be extended to a point 250 feet south, with a fence or curb barrier to control the flow of traffic from Paradyne's parking lots at designated points into the access road. The access road would require approximately 22,700 square feet for a joint use area, with 13,980 square feet located on Paradyne's property and 8,750 square feet located on the intervenors' property. The joint use road could either be maintained as a private road pursuant to an agreement between the property owners or it could, perhaps, be dedicated to public use. There was no evidence as to whether Pinellas County would be agreeable to accepting the dedication and thereby becoming responsible for the road's maintenance. It is anticipated that this redesign, primarily because of the dual left turn lanes on Ulmerton Road, would improve the level of service in the morning peak hours to a level "D", and in the afternoon peak period to a level "C". The cost for construction on Ulmerton Road is estimated to be $310,000.00 and the cost for the private 250-foot long drive is estimated to be $50,000.000. In the opinion of the designer of the DSA plan, there is no practical method of design that would allow two separate accesses for Paradyne's and the intervenors' use. The provision of separate accesses would create a five-lead intersection which would cause "even more difficulties in traffic operations." (Transcript, page 86). The DOT's traffic engineer would not approve the traffic signal operation which would be required if there were separate access roads ingressing and egressing the two properties south of the subject intersection. All the proposed modifications at the approach to the property south of Ulmerton Road could be located on Paradyne's property. This would cause a slight offset of the intersection and would cause Paradyne to lose some property now used as a parking lot.
Recommendation Based upon the findings of fact and conclusions of law recited herein, IT IS RECOMMENDED THAT the "Alleged Violation of the Florida Statutes and Notice to Show Cause" be dismissed. IT IS FURTHER RECOMMENDED THAT said dismissal be without prejudice to the Department of Transportation to issue to Paradyne Corporation a new permit specifying the location and design it considers appropriate for Paradyne's connection to Ulmerton Road, said design containing specifications for construction on Ulmerton Road and its right-of-way, as well as any requirements at Paradyne's entrance beyond the DOT's right-of-way deemed necessary to accommodate proper traffic flow and eliminate safety hazards. Should a new permit be issued, Paradyne should be afforded thirty (30) days within which to indicate its intent to either comply with the new permit terms and conditions or forfeit its access rights to Ulmerton Road. Respectfully submitted and entered this 4th day of February, 1987, in Tallahassee, Florida. DIANE D. TREMOR 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 4th day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1709 The proposed findings of fact submitted by each of the parties have been fully considered and have been accepted and/or incorporated in this Recommended Order, except as noted below: Petitioner, Department of Transportation Rejected as irrelevant and immaterial to the issues in dispute. Respondent, Paradyne Corporation NOTE: The respondent's proposed "findings of fact" contain many statements which constitute legal argument or restate the legal positions of counsel for the parties. To that extent, those statements are not proper "findings of fact" and are rejected as factual findings. All but the last sentence is rejected. The documents referenced were not the subject of a proper request for official notice and, therefore, cannot be considered evidence in this proceeding. 4 and 5. Rejected. Under proper circumstances, as discussed in the conclusions of law, the term "connection" may include more than the DOT right-of-way. First sentence rejected as contrary to the evidence. Rejected as irrelevant and immaterial. Accepted only insofar as it correctly states that the responsibility for cost of construction on Ulmerton Road was not made an issue in this proceeding. Intervenors, Miller and Benjamin NOTE: The intervenors have filed a proposed recommended order which is not separated into "findings of fact" and "conclusions of law." To the extent that proposed factual findings are suggested in said filing, they are accepted with the exception of: Page 1, last sentence: Rejected; the document does not cite Paradyne for refusing the redesign. It simply states that a redesign is required. Page 4, next to last paragraph: Rejected as contrary to the evidence and contrary to the law. Page 5, 3rd paragraph: Rejected as erroneous legal conclusion insofar as "joint access" is intended to encompass a "joint use road" on private property. COPIES FURNISHED: Vernon L. Whittier, Esquire Haydon Burns Building M.S. 58 Tallahassee, Florida 32301-8064 John R. Bush, Esquire Bush, Ross, Gardner, Warren & Rudy 220 South Franklin Street Tampa, Florida 33602 Bruce Marger, Esquire Gardner, Reams, Marger, Davis, Piper & Bartlett, P.A. 1700 66th Street North - 501 Post Office Drawer 41600 St. Petersburg, Florida 33743 Kaye Henderson, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 =================================================================
The Issue Whether or not Petitioner satisfies the "experience or training" requirement to obtain a Class "C" private investigator's license.
Findings Of Fact On May 22, 1989, Petitioner filed an application for a Class "C" private investigator's license. Included in that application, Petitioner related that he was employed by Austin Private Security Specialists of Austin, Texas as a security officer-undercover investigator during the period from September, 1985 until July, 1987. During his employment with Austin private Security Specialists (Austin), approximately 60% of Petitioner's job duties included investigative work and the remaining 40% was in security related work. Respondent did not credit Petitioner's investigative experience which he claims based on his employment at Austin; however, he was credited with nine months security experience based on his employment at Austin. Respondent' denied Petitioner's claim for investigative experience in Texas based on its determination that Petitioner was not in compliance with Texas regulations while he was employed at Austin. Petitioner also claimed experience for employment with Wackenhut Company of Tampa during the period February 28, 1989 through July 28, 1989. At Wackenhut, Respondent was employed as a private investigator intern. At Wackenhut, Petitioner worked under the sponsorship of Robert Crane, private investigator and successfully completed his work for Wackenhut during Crane's sponsorship. Petitioner was credited with five months investigative experience for his employment at Wackenhut. A review of Petitioner's relevant personnel records from Texas indicates that Petitioner was registered as a commissioned security guard from October 29, 1985 until September 4, 1986. Petitioner was registered as being employed in security sales from September 4, 1986 until September 30, 1987. Petitioner was never registered as an investigator with Austin or any other Texas company. In Texas, to properly perform investigative work, an applicant, as Petitioner, must either hold a private investigator's license or be registered under a qualifying company's license as doing investigative work for the company to be in compliance with state regulations. Section 35 of Texas article 4413(29 dd) and Sections 35 and 36A, Rules and Regulations of the Texas Board of Private Investigators. Petitioner was not otherwise exempt from licensure in Texas as he failed to demonstrate that he was employed exclusively as an undercover agent during the period for which he claims experience based on his Texas employment. Respondent has a written policy of not crediting experience or training without required licensure or registration as it is difficult to verify such experience without licensure and it is practically impossible to determine whether the applicant has complied with applicable law.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Respondent enter a final order denying Petitioner's application for a class "C" private investigator's license. DONE and ENTERED this 2nd day of March, 1990, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 2nd day of March, 1990. COPIES FURNISHED: Carrol D. Roberson 1714 Old Village Way Oldsmar, FL 34677 Henry D. Cawthon, Esquire Assistant General Counsel Department of State The Capitol, Mailstation #4 Tallahassee, FL 32399-0250 Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Ken Rouse, Esquire General Counsel Department of State The Capitol, LL-10 Tallahassee, Florida 32399
Findings Of Fact At all times pertinent to the issues herein, the Department of State, Division of Licensing, (Division), was the state agency responsible for the licensing of private investigators in Florida. On or about February 26, 1992, Petitioner herein, Lyman S. Bradford submitted to the Division an application for a Class "A" Private Investigative Agency license. On the same day, he also submitted an application for a Class "C" Private Investigator's license. In Section 12(a) of the former application and Section 7(a) of the latter, Petitioner indicated he had been convicted of attempted possession of cocaine, a misdemeanor, in 1988. He further indicated probation had been completed. On the basis of her analysis of Petitioner's applications, on March 12, 1992, Joni Rozur, the Division's reporting representative, recommended both applications be approved based on Petitioner's previous licensure as a Class "C" licensee, and noted that his experience met or exceeded the statutory requirements. She also noted, however, that approval was pending receipt of a criminal history report. When that record was received by the Division, it reflected that Petitioner had been arrested in September, 1988 for failure to appear for trial on the attempted possession charge and when brought before the court on October 20, 1988, pleaded not guilty. In November, 1988, however, Petitioner changed his plea of not guilty to nolo contendere and as a result, adjudication of guilt was withheld and he was placed on probation for 6 months with 15 hours community service, and ordered to pay costs. On January 5, 1989, Mr. Bradford failed to meet with his probation officer as ordered and he was brought before the court on February 15, 1989 for a preliminary hearing on a charge of violation of probation. Bond was set at $2,000.00. When he appeared in court on April 12, 1989 on the violation of probation charge, Petitioner pleaded not guilty and hearing was set for May 10, 1989. On that date, Petitioner did not appear and after several other hearings, on June 2, 1989, the judge released Petitioner from his bond on his own recognizance. At a hearing on the violation of probation charge held on August 2, 1989, Petitioner was found guilty and his prior probation was revoked. By way of sentence, he was placed on an additional 6 months probation with conditions. Court action, mostly involving Petitioner's motions for continuance, was periodic for a while, but after a motion to set aside his prior plea to the charge was denied, on December 27, 1990 Petitioner entered a plea of guilty to and was found guilty of violation of probation. He was placed on a new period of probation for 1 year with 300 hours of community service; ordered to undergo drug evaluation and treatment as necessary; ordered to be subjected to random urine testing; and ordered to serve 1 year in jail (suspended). His prior probation was revoked. The criminal information relative to Petitioner which Ms. Rozur relied on to change her recommendation to denial also included Petitioner's arrest on September 14, 1989 on a charge of trafficking in cocaine. Petitioner was tried before a jury in circuit court on that charge on August 21, 1991, and after a trial on the merits, pursuant to his plea of not guilty, was found not guilty. The evidence put before the jury during that trial consisted of the testimony of the two arresting officers who indicated they had observed the transaction and seized a substance at the scene later identified as cocaine; that of the Petitioner's co-actor in the supposed sale; and that of the confidential informant who set up the controlled buy. The evidence, as proffered through the testimony of Deputy Martinez who was present at the scene, indicated that a confidential informant had reported that a sale of cocaine, involving the Petitioner, would take place on an evening in September, 1989. After the confidential informant was given authority to set it up, the Petitioner did not appear and the officers left. Supposedly, Petitioner did appear later and when the informant called the officers again, he was told to set the buy up again another time. The second buy, at which Petitioner was allegedly the broker between the dealer and the confidential informant, took place in the parking lot of a motel in West Palm Beach on September 14, 1989. The informant was fitted with a radio transmitter for recording the conversations among the parties but it failed to work. Nonetheless, Martinez claims he saw Petitioner and his partner meet with the informant outside the motel room and the other officer purportedly overheard their conversation through the closed window. When the parties moved around to the side of the building out of sight and hearing, the two officers, accompanied by a drug detection dog, came out and arrested Petitioner and his associate. During the course of the arrest, cocaine was found both on the associate and wrapped in a pillow case in the back seat of the associate's car. Petitioner had no cocaine in his possession. On the basis of the above information relating to the Petitioner's original conviction, the subsequent violation of probation charge, and the arrest for but acquittal of a charge of trafficking in cocaine, the Division, on May 13, 1992, denied both applications by the Petitioner alleging that his criminal record, as cited, was clear and convincing evidence of a lack of good moral character. The Hearing Officer, however, over strenuous objection of counsel for Respondent, declined to consider as evidence any matters relating to the Petitioner's arrest for trafficking in cocaine on the basis that the acquittal of that offense came after a trial on the merits before a jury subsequent to a plea of not guilty. Under those circumstances, the Hearing Officer would not permit the Division to present evidence regarding the alleged commission of an offense of which the Petitioner had been found not guilty. In retrospect, however, there is some question as to whether or not that evidence should have been considered. At the hearing, Petitioner presented 4 letters from prominent attorneys in practice in southeast Florida going back to 1982 and 1987 through 1991, commenting on his excellent investigative work. In addition, Petitioner also presented 9 letters of recent date from various individuals including a detective with the Palm Beach County Sheriff's Office, the Directress of his church's outreach ministry, the Chief of Police for Palm Beach Gardens, attorneys, a retired highway patrolman, a recovery agent, the assistant manager of the local American Cancer Society unit, and a fire battalion chief, all of whom have known the Petitioner for several years. In these letters, he is described as professional and thoroughgoing, capable, progressive, charitable, efficient, competent, trustworthy, conscientious, and possessed of good moral values and integrity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered by the Division of Licensing denying Petitioner's applications for a Class "A" Private Investigative Agency License and a Class "C" Private Investigator License at this time. RECOMMENDED this 30th day of September, 1992, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-3631S The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Accepted and incorporated herein. Accepted and incorporated except for the last sentence which is rejected. Accepted and incorporated herein. Accepted but as a comment on the evidence. Accepted. FOR THE RESPONDENT: 1. & 2. Accepted and incorporated herein. 3. & 4. Accepted and incorporated herein. 5. - 8. Rejected. Accepted. Accepted. COPIES FURNISHED: Henri C. Cawthon, Esquire Department of State Division of Licensing The Capitol, M.S. #4 Tallahassee, Florida 32399-0250 Thomas C. Gano, Esquire Lubin & Gano, P.A. Second Floor, Flagler Plaza 1217 South Flagler Drive West Palm Beach, Florida 33401 Hon. Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater General Counsel The Capitol, PL-02 Tallahassee, Florida 32399-0250
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times relevant to this proceeding, the Respondent held an active Class "A" Private Investigative Agency License and an active Class "C" Private Investigator License, bearing numbers A89-00270 and C88-00259, respectively. Sometime during August, 1991, the Respondent was in his vehicle driving on Interstate 75 in Hillsborough County, Florida with his scanner on scan mode with a voice-activated tape recorder set on voice activator mode so that Respondent could record notes without having to turn the tape recorder on or off. The Respondent was aware that the scanner was on scan mode and was randomly picking through fire reports, police reports and other communications which the scanner was capable of picking up. Respondent was also aware that the communications being picked up by the scanner were most likely being recorded since the tape recorder was on voice activator mode. During this particular time, the Respondent's tape recorder taped a conversation that was transmitted over the scanner between two individuals, one in Bradenton, Florida and the other in Sefner, Florida, which the Respondent later learned were connected with ABC Liquors. The Respondent, after listening to the taped conversation later, determined that it involved ABC Liquors and that someone from ABC Liquors should be made aware of the contents of the conversation. Later, the Respondent contacted Margaret Spaniak, an employee of ABC Liquors, and made an appointment to share with her the contents of the conversation. Before meeting with Respondent, Spaniak contacted ABC Liquors' corporate investigator, Jerry W. Bolton. Bolton advised Spaniak to meet with the Respondent but not to leave the meeting place alone with Respondent. Bolton also advised Spaniak that he would be in the restaurant, and at the proper time would join her and Respondent at their table. Upon meeting with Spaniak, Respondent allowed Spaniak to review that portion of the tape containing the conversation pertaining to ABC Liquors. Spaniak did not testify at the hearing, and the Respondent does not remember whether Spaniak identified the parties to that conversation at that time. After a short period of time, Bolton joined Spaniak and the Respondent at the table. Bolton asked the Respondent for a business card, which the Respondent gave him. The Respondent did not directly or indirectly solicit any business from ABC Liquors, through Spaniak, Bolton, or anyone else connected with ABC Liquors. There is no competent, substantial evidence in the record to establish facts to show that the Respondent intended to solicit business or, in fact, solicited any business from ABC Liquors. Spaniak and the Respondent are the only persons who have listened to the conversation in question recorded by the Respondent and, other than hearsay, there is nothing in the record to establish who the parties were to that conversation. Additionally, there is no competent, substantial evidence in the record to establish facts to show that the conversation was being transmitted over a cellular telephone. In fact, there is no evidence to show how the conversation was being transmitted (C. B. Radio, cordless telephone, cellular telephone, etc.). The Respondent did not give the parties notice prior to their conversation being recorded and, other than possibly through Spaniak or Bolton, has not advised the parties that their conversation was recorded. There were no criminal charges filed against the Respondent as a result of this matter being investigated by the Manatee County Sheriff's Office. The Respondent has performed undercover work for the Manatee County Sheriff's Office where the Respondent has taped wire and oral communications or conversations that were used in criminal investigations and prosecutions. Respondent's work with the Manatee County Sheriff's Office began sometime in August, 1991 and ended in the latter part of November, 1991. The record is not clear, but it appears that the Manatee County Sheriff's Office had intended to extract certain information from other tapes recorded in the same manner by the Respondent that were eventually turned over to the Manatee County Sheriff's Office by the Respondent. However, on advise of counsel and the federal authorities the Manatee County Sheriff's Office did not review any of the tapes, including the one involved in this proceeding. There is insufficient evidence to show that Respondent's action in recording this conversation violated Section 934.03, Florida Statutes.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that the Department enter a Final Order dismissing the Administrative Complaint against the Respondent. DONE AND ENTERED this 28th day of October, 1992, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 28th day of October, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-4379 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all proposed findings of fact submitted by the Petitioner in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the finding(s) of fact which so adopts the preceding proposed finding(s) of fact: 1(1); 2(9); 3(8); 4(4,5 & 12); 6(9,11) and 7(10). Proposed findings of fact 5 and 8 are neither material or relevant to this proceeding. The Respondent did not submit any proposed findings of fact. COPIES FURNISHED: The Honorable Jim Smith Secretary of State Department of State The Capitol Tallahassee, FL 32399-0250 Phyllis Slater, Esq. General Counsel Department of State The Capitol, PL-02 Tallahassee, FL 32399-0250 Henri C. Cawthon, Esq. Assistant General Counsel Department of State Division of Licensing The Capitol, MS-4 Tallahassee, FL 32399-0250 James D. Carter, Esq. 1111 3rd Avenue West Suite 150 Bradenton, FL 34205
The Issue Whether the Respondent committed the violation alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating persons engaged in the business of private investigation. At all times material to the allegations of this case, Respondent was licensed as a class "CC" private investigator intern, license number CC97-00449. Respondent also holds a class "G" statewide firearms license, license number G97-01406. During some period prior to September 3, 1997, Respondent was employed by J.R. Investigative Agency. Mr. Onativia owns and operates J.R. Investigative Agency. In August 1997, Mr. Onativia filed a complaint with the Department that Respondent was conducting private investigations without a license. Ms. Robinson, an investigator for the Division of Licensing, was assigned to review the complaint. Ms. Robinson contacted Respondent and advised him that the agency had received a complaint that he was conducting investigations on his own without an agency license. Respondent admitted he was doing investigations but claimed Mr. Onativia knew of his activities. He further admitted to Ms. Robinson that he was doing investigations on his own for attorneys in order to support his family. Respondent had also admitted to the investigation activities to John Esposito. After Ms. Robinson confirmed the information with Mr. Esposito as to the admissions made by Respondent, investigation of the complaint stopped.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of State, Division of Licensing, enter a Final Order revoking Respondent's class "CC" license. DONE AND ENTERED this 1st day of April, 1999, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 1999. COPIES FURNISHED: Honorable Katherine Harris, Secretary of State Department of State The Capitol, Plaza 02 Tallahassee, Florida 32399-0250 Deborah K. Kearney, General Counsel Department of State The Capitol, Lower Level 10 Tallahassee, Florida 32399-0250 Steve Bensko, Esquire Department of State Division of Licensing The Capitol, Mail Station 4 Tallahassee, Florida 32399-0250 David C. Rash, Esquire Law Offices of Johnson and Rash 1509 Northeast Fourth Avenue Fort Lauderdale, Florida 33304
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
Findings Of Fact Richard K. Black submitted his application for a Class "A" Private Investigative Agency license and a Class "C" Private Investigator license to the Department of State on November 11, 1982, together with all the fees. By letter dated November 19, 1982, the Department advised Mr. Black of the approval of the issuance of the Class "A" license subject to certain qualifications, which were not challenged by Mr. Black and are not at issue. By letter dated November 18, 1982, the Department advised Mr. Black that it had denied his application for licensure as a Class "C" Private Investigator because Mr. Black failed to meet the experience requirements of Section 493.306(4), Florida Statutes. Mr. Black made a timely request for a formal hearing pursuant to Section 120.57, Florida Statutes. The parties have stipulated that Mr. Black is qualified to hold a Class "C" Private Investigator license except for his lack of experience. Investigative activities of a private investigator include, but are not limited to, searching records, interviewing witnesses, making personal observations of physical evidence, conducting surveillances, and reporting the results and conclusions of these activities. While a student at Broward Community College during 1974 and 1975, Mr. Black served as a member of the "504 Committee," a volunteer organization whose purpose is to assist persons protected by Section 504 of the Federal Rehabilitation Act of 1973. Mr. Black's primary duties with said committee consisted of receiving complaints of alleged violations of the Rehabilitation Act concerning lack of physical access to public facilities, taking physical measurements of said facilities, performing library research to determine the applicability of the Act to said facility, and attempting to obtain compliance of the owner of the facility when a violation was found. Of these duties, the interviewing process and taking physical measurements would be qualified experience. No evidence was presented by Mr. Black regarding the specific amount of time which he devoted to these functions. While a student at Broward Community College during 1976 and 1977, Mr. Black engaged in a volunteer voter registration project for the handicapped. Mr. Black's primary duties in this regard consisted of obtaining voter registration data from public records, identifying areas in which registration of the handicapped was low, conducting house-to-house registration drives in said areas, writing letters, and arranging car pools. None of these activities qualify as experience for licensure as a private investigator. Mr. Black served as a volunteer firefighter for the North Andrews Volunteer Fire Department from 1972 to 1976. During this time, he attended a bomb and arson investigation seminar and assisted in a few arson investigations. Mr. Black did not document the specific number of investigations which he conducted or the amount of time spent in said investigations. During 1979 and 1980, during the tenure in office of Sheriff Ken Katsaris, Mr. Black served as a volunteer "special deputy" in Leon County. Mr. Black's primary duties consisted of inspecting polling places in the county to determine if proper access existed for the physically handicapped and reporting non-complying conditions to the Sheriff. While not all of Mr. Black's activities were qualified experience, he spent approximately 120 total hours on all activities in this project in 1980. For approximately three months, from August until October 1981, Mr. Black served as a nonpaid intern with the Florida Parole and Probation Services. Approximately 50 percent of this time was devoted to the qualified activities of locating probationers and parolees and assisting in investigations. Mr. Black assisted in processing service-connected or related disability claims for disabled veterans on a volunteer basis in the Leon County area. He assisted on five or six cased during the last several years. No evidence was submitted to document the specific amount of time Mr. Black devoted to the investigation of these claims. Mr. Black assisted the Alburquerque, New Mexico, police in locating the whereabouts of a fugitive from justice. This assistance was as a volunteer, and Mr. Black testified that he spent 20 to 25 hours a week for three months on this project. While attending Florida State University, Mr. Black participated in various programs to assist handicapped students. These activities are similar to the activities in which Mr. Black engaged as described in Paragraph 6 above. No evidence was presented as to the amount of time spent in qualified investigative activities during this time period. Mr. Black completed a four-day course in crisis intervention in 1981. Mr. Black obtained a Bachelor of Science degree in psychology from Florida State University. Although some of his course work in general subjects would be the same as the general course work required for a degree in criminology and some of the psychology courses which Mr. Black took would be helpful to an investigator, none of the course work which Mr. Black took is directly related to training as a private investigator. In evaluating the experience requirement for a Class "C" Private Investigator experience which is substantially identical and equal in force, power, effect and import as the experience gained in actually performing the services of a private investigator as a Class "CC" intern investigator. In evaluating the amount of time spent in investigative activities, the Department applies a standard 40-hour work week to the hours submitted by the applicant. The Department does not count volunteer experience in evaluating whether an applicant has met the time requirement unless the number of hours worked and the supervision exercise can be fully documented. Mr. Black has never been licensed as a Class "CC" intern investigator.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the application of Richard K. Black for licensure as a Class "C" Private Investigator be denied. DONE and RECOMMENDED this 20th day of May, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 20th day of May, 1983. COPIES FURNISHED: Mr. Richard K. Black 249 Oakview Drive Tallahassee, Florida 32304 Stephen Nall, Esquire Office of General Counsel Department of State The Capitol Tallahassee, Florida 32301 The Honorable George Firestone Department of State The Capitol Tallahassee, Florida 32301
