Findings Of Fact The parties stipulated that the Petitioner had applied for a Class D, Private Guard license, and that the Petitioner meets all the criteria for such licensure with the exception of one year of experience in the security field within the State of Florida. Petitioner admits that he lacks one year of experience within the State of Florida, but the record reflects that the Petitioner has the requisite knowledge and a clean record.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer must recommend that the Department of State give effect to the statutory language and deny the application of the Petitioner for licensure as a Class D, Private Guard. DONE and ORDERED this 14th day of May, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 101, Carlton Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1979. COPIES FURNISHED: Joseph W. Fixel, Esquire Assistant General Counsel Department of State The Capitol Tallahassee, Florida 32301 Mr. Roy C. Hinze 1450 Sixth Avenue Vero Beach, Florida 32960
Findings Of Fact Respondent was certified by the Criminal Justice Standards and Training Commission on July 14, 1983, and November 19, 1981, and was issued certificate numbers 02-33918 and 502-868. Respondent is currently certified as a law enforcement officer and as a correctional officer by the Commission. At all times material hereto, Respondent was employed as a Deputy Sheriff by the Broward County Sheriff's Department. On May 3, 1986, Respondent, Deputy McDonald, and their immediate supervisor Sergeant James Walkup were working a directed patrol in the south portion of Broward County, Florida. Each was in his own patrol car, but they were working as a group with the express purpose of conducting a routine harassment of known or suspected drug dealers or users in the vicinity. They spotted a rental car occupied by two black males parked in an open field in a residential neighborhood. The occupant of the vehicle in the driver's seat was Jimmy Fox, a reputed drug dealer. All three patrol cars pulled into the field behind the rental vehicle. Respondent "radioed" in that he had made a traffic stop. Neither McDonald nor Walkup radioed that they were on the scene to serve as back-up units. Deputy George Gechoff was working off-duty at the Home Depot on 58th Avenue in the west Hollywood area when he heard Respondent radio that he had made a traffic stop. Since Gechoff did not hear anyone radio that they were serving as back-up to Respondent, Gechoff drove to the location of the traffic stop which was just a few blocks away. When Gechoff arrived at the scene Respondent had already searched the front seat area of the rental vehicle and had asked Fox's permission to search the trunk. Initially, Fox refused consent to the search of the trunk of the rental vehicle. Gechoff and Fox knew each other. After Respondent assured Fox that Fox would not be arrested since the search was illegal and after Gechoff urged Fox to be cooperative, Fox consented to the request. The trunk of the car was opened, and Respondent and Gechoff began searching it. The Respondent found a pistol in the trunk and went to his patrol car to "run a check" on the gun. While Respondent was in is patrol car, Deputy Gechoff, who assisted in the search of the trunk, found an aspirin or "pill- type" bottle containing approximately 50 small objects. Although Walkup testified that the objects were square cubes of yellowish material, Gechoff testified that the objects were white chips of different sizes. At the time, Walkup, Gechoff, and Respondent each believed that the objects were "crack" cocaine. If the objects were indeed crack cocaine, each object would be a single dose of the drug, and each object would have a sale price ranging from $10 to $20. In respondent to his radio inquiry, Respondent was advised that he had a "hit" on the gun, which meant it was wanted in connection with a crime or that it had been previously reported as stolen. When Respondent communicated that information to his immediate supervisor, Sergeant Walkup, Gechoff handed Respondent the aspirin bottle. Walkup instructed Respondent to take both the firearm and the suspected cocaine and write up a "found property report." Respondent was concerned about writing a report for found property, rather than seized property, and suggested to Walkup that they simply turn the matter over to the State Attorney's Office. Walkup took the position that the property was illegally seized since there was no probable cause for the search of the vehicle and the search had taken place simply as part of an harassment operation. He instructed Respondent to report the property as "found property" and left the scene. When Respondent left the scene, he had with him both the confiscated firearm and the aspirin bottle with its contents. He remained concerned about being ordered to write a found property report, but knew he had to do something since he had already radioed in that he had recovered a firearm wanted by the Broward County sheriff's Office. On the spur of the moment, as he was driving through a wooded area near a rock pit, Respondent took the top off the bottle and threw it out the window scattering the contents as he threw away the bottle. Later that day Respondent wrote and signed an Event Report at the Broward County Sheriff's Office reporting that he had found a .44 Magnum and suspected cocaine off the roadway while on routine patrol. The firearm was turned in at the same time, and a property receipt was issued. No property receipt was issued for the suspected cocaine. Several weeks later, Sergeant Walkup received a telephone call from Fox concerning the incident on May 3. In response to that telephone call, Walkup retrieved and reviewed Respondent's report of the May 3 incident with Fox. Upon reviewing the report, Walkup became concerned with the apparent conflicts between the report's contents and his recollection of the events. He so notified his supervisor. On July 1, 1986, Respondent provided a sworn statement to Lieutenant Roger Lekutis of the Broward County Sheriff's Office, Internal Affairs Unit. He admitted that after he drove away from the scene of the Fox "traffic stop" he threw the bottle which he believed contained cocaine "rocks" out the window of his patrol car. He told Lekutis that Walkup had instructed him to write a report of the incident as a "found property" report. He also admitted failing to turn over the suspected cocaine to an evidence custodian. No evidence was offered suggesting that Respondent disposed of the suspected cocaine in a manner different than throwing it out the window as he drove through the wooded area near the rock pit, and the Respondent's testimony in that regard is credited. Since this incident, Respondent has been reinstated by the Broward County Sheriff's Office but was not yet on the payroll by the time of the final hearing in this cause, since he was undergoing certain pre-employment certification and testing procedures.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty of the allegations contained in the Administrative Complaint filed against him and dismissing the Administrative Complaint filed in this cause. DONE AND ENTERED this 26th day of April 1989, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of April 1989. APPENDIX DOAH CASE NO. 88-4963 Petitioner's proposed findings of fact numbered 1, 5, 6, 8-10, 13-17, and 19 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 2-4, 7, 11, 12, and 18 have been rejected as not being supported by the weight of the credible evidence in this cause. COPIES FURNISHED: Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Johnny L. McCray, Jr., Esquire 400 East Atlantic Boulevard Pompano Beach, Florida 33060 Daryl McLaughlin, Executive Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
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
The Issue The issue in this proceeding is whether Respondent's certification as a law enforcement officer should be disciplined.
Findings Of Fact On October 5, 1989, Respondent was certified by the Criminal Justice Standards and Training Commission as a law enforcement officer, holding certificate #11-89-002-01. In February 1990, Samuel O. Best was employed as a police officer by the City of Port St. Joe Police Department. During the early part of February, Respondent accompanied a woman to a local motel where the two shared a room and engaged in sexual intercourse. While the two were in the room, the Respondent thought the woman smoked two and one-half cigarettes. The items she smoked looked like normal cigarettes. However, Respondent was not paying close attention to the woman's activities or any odor of the smoke because he had his mind on more prurient matters. As the two prepared to leave the room, the Respondent, as was his habit, straightened the motel room. The woman had dropped one of her cigarettes on the floor and Respondent picked up the cigarette and placed it in his pocket. The Respondent forgot about the cigarette in his pocket and kept it for approximately two or three days. Around February 8, 1990, the afternoon of the second or third day after his liaison with the woman in the motel, Respondent went to his father's home and sat on the front porch. The Respondent was on duty. While contemplating the bleakness of his life, in part due to the intense personal problems he was having with his wife, Respondent, who was a heavy smoker, began looking for a cigarette to smoke. He found the motel woman's cigarette in the pocket of a shirt he had worn for three days. He pulled it out, looked at it and lit it. During this activity the "insurance man" was walking up to the house. Officer Best thought the substance in the cigarette was tobacco. However, it tasted like perfume and he put the cigarette out after one puff. He then left the porch to get his father for the insurance man. There was an absence of any competent and substantial evidence reflecting the identifying the substance contained in the cigarette as marijuana. Additionally, no changes in Respondent's behavior were noted by any of his fellow officers or supervisors at any time surrounding the events on February 8, 1990. On February 22, 1990, Chief Richter of the Port St. Joe Police Department received a citizen complaint regarding the Respondent. The insurance agent complained that he had observed the Respondent in police uniform on the porch of the Respondent's father's home smoking. That same day, Chief Richter contacted the Respondent and directed him to come to Chief Richter's office to discuss the complaint. Upon his arrival in Chief Richter's office, Chief Richter told the Respondent what the citizen had alleged. 1/ Chief Richter asked the Respondent if he would answer questions regarding the allegation. The Respondent voluntarily agreed. The initial discussion between Officer Best and Chief Richter lasted approximately 20 to 25 minutes. Officer Best's interpretation of what Chief Richter told him was that the Chief had decided that Officer Best had been smoking marijuana. Officer Best thought his Chief would not misinform him, and he did not argue with Chief Richter over the issue of whether or not the substance was marijuana. However, Officer Best did not know with any certainty what the substance was that he had inhaled briefly while sitting on his father's front porch. After the initial discussion, Chief Richter then placed the Respondent under oath and began to question him while tape recording the interrogation. From Respondent's point of view, the reference to marijuana during the interrogation was merely a convenient label for referring to the cigarette he briefly puffed on his father's front porch. Neither the reference or his responses to questions using the term marijuana was intended to be an admission of knowing drug use. Given the Respondent's demeanor at the hearing, it is understandable under the facts of this case, that even with some training in drug identification, Respondent was not able to identify the substance in the cigarette and that he was also very submissive to what he believed to be a superior officer's view of the matter. As a result of the Respondent's statement, he was discharged from his employment with the Port St. Joe Police Department. However, even with the dismissal, the overwhelming evidence in this case is that Respondent remains of good moral character and remains capable of performing his duties and working with his fellow officers. Moreover, the evidence fails to demonstrate that Respondent at any time knowingly possessed or ingested marijuana. Given these facts, the Administrative Complaint should be dismissed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the amended Administrative Complaint filed against Samuel O. Best be dismissed. RECOMMENDED this 31st day of December, 1991, in Tallahassee, Florida. DIANE CLEAVINGER 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 31st day of December, 1991.
The Issue The issue in this case is whether Petitioner Gilbert Hevia's application for a Class "C" private investigator's license should be granted.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: On November 18, 1993, Petitioner submitted an application dated October 18, 1993, to the Department for a Class "C" private investigator's license. Paragraph 8 of the application directed the applicant to list the sponsor and time period for any internship he had completed. Petitioner listed an internship under the sponsorship of Carlos A. Fernandez for the period from March 15, 1991 through September 17, 1993. In a letter dated February 24, 1994, Cindi Merritt, a Service Representative for the Department's Bureau of License Issuance, advised Petitioner that the Department was investigating his experience for the Class "C" license. The letter confirmed that the Petitioner was entitled to two months credit for investigative experience under the sponsorship of Mr. Rolando Baldomero of Tri-Star Security Systems, Inc. ("Tri-Star") from June 10, 1991 through August 1991. The record in this proceeding does not reveal how the Department became aware of Petitioner's experience with Mr. Baldomero since that internship is not listed on Petitioner's application. Apparently, Petitioner presented some supplemental information to the Department to be considered. However, it is not clear when or how such information was presented. At the hearing, the Department agreed that Petitioner was entitled to two months credit for his internship with Tri-Star. The February 24, 1994 letter states that the Department's service representative "asked Mr. Carlos A. Fernandez (who sponsored you after Mr. Baldomero) to complete the completion/termination of Sponsorship Form. Mr. Fernandez sent the completed form back on February 22, 1994. He indicated that he could not supply your dates of employment because he no longer had your records. He also stated 90 percent of your job duties entailed office work and that you did not successfully complete your internship with him." As set forth in the Preliminary Statement above, counsel for the parties apparently discussed and agreed prior to the commencement of the hearing in this matter that the sole issue to be resolved in this case was whether Petitioner's employment with Mr. Fernandez's company, CAF Associates, Inc. ("CAF"), qualified as lawfully gained investigative experience for purposes of Section 493.6203, Florida Statutes. Mr. Fernandez testified at the hearing and claimed that Petitioner's job duties with his company were mainly clerical and only 10 percent of Petitioner's work was investigative in nature. This contention is rejected as not credible. Mr. Fernandez has apparently decided to try to thwart Petitioner's effort to obtain his own license. The more persuasive evidence established that, from at least March of 1992 through September of 1993, Petitioner was intricately involved in all aspects of the operations of CAF, which is a private investigative agency. At some point during this time period, Petitioner was made President of the company. Respondent worked 45-60 hours a week for CAF. He did field work on his own and with subcontractors of the company. He was also actively involved in the administration of the business, but he only spent 5-15 hours per week on administrative duties. In sum, the evidence conclusively established that Petitioner had qualifying experience under Mr. Fernandez for at least eighteen (18) months from March of 1992 through September of 1993. It appears that Petitioner actually began working for Mr. Fernandez prior to March of 1992, but the exact date his employment began has not been established in this proceeding. Furthermore, it is not clear that Petitioner's job duties prior to March of 1992 would qualify as experience for purposes of Section 493.6203, Florida Statutes. As noted above, there is no dispute that Petitioner obtained two (2) months of qualifying experience with Tri-Star Security from June of 1991 through August of 1991. The evidence also conclusively established that Petitioner obtained qualifying experience with CAF from March, 1992 through September 1993. The evidence was not conclusive as to Petitioner's activities from August 1991 through March 1992. Thus, the evidence presented only established that Petitioner had twenty (20) months of qualifying experience. At the hearing, Petitioner claimed that he had several other forms of experience that qualified for credit under Section 493.6023(4), Florida Statutes. Specifically, Petitioner contended that he had successfully completed some college coursework in criminal justice and had also completed some law enforcement training. These items are not listed on his application. Petitioner testified that he completed two semesters of college work in "pre-law." No evidence was presented as to the specific courses taken, how many hours were completed or how such coursework should be translated into credit for purposes of the experience requirement of the statute. Subsequent to the hearing, Petitioner submitted certain additional information which he contends supports his claim to experience arising from matters not previously considered by the Department. As discussed in more detail below, the evidence presented was not sufficient to reach a conclusion as to the amount of credit, if any, which should be afforded to Petitioner for these matters. However, in view of the confusion arising from the stipulation as to the scope of the hearing, these matters should be reviewed and considered by the Department prior to the entry of a Final Order in this case. With his post-hearing submittal, Petitioner filed a Certificate of Completion awarded to him by the Southeast Florida Institute of Criminal Justice/Miami-Dade Community College. This information was apparently not provided to the Department when it initially reviewed Petitioner's application. The certificate indicates that Petitioner completed a course for "State Certified Security Training for "D" License" on September 13, 1990. Petitioner contends that this certificate evidences completion by Petitioner of "college coursework related to criminal justice, criminology, or law enforcement administration" or "law enforcement-related training received from any federal, state, county, or municipal agency" as described in Section 493.6203(4), Florida Statutes. The Department has not commented on whether this program can qualify under the statute. The evidence presented in this case was insufficient to conclude how much, if any, credit should be given to Petitioner for the completion of the training for the class "D" license. During the hearing, Petitioner claimed that his work experience while a member of the United States Marine Corps should also be considered towards the experience necessary for licensing. The evidence established that Petitioner was stationed in the Persian Gulf from approximately November 1990, through April 1991. During that period, he was assigned to an intelligence officer who was responsible for investigations and hearings in a wide variety of matters. Petitioner claims his job duties included investigation and quasi-law enforcement duties. Petitioner did not list his military experience on his application. Section VI of the Class "C" license application states that "if military experience is to be used towards satisfaction of the experience requirement . . ., a copy of [the Respondent's] DD 214 must be provided with the application." The required form has not been provided so Petitioner's military experience has not been verified. The Department contends that Petitioner deliberately submitted a misleading application that claimed he was employed by CAF from March 1991 through September 1993. The evidence presented in this case is insufficient to reach such a conclusion. There is obviously some confusion as to when Petitioner actually began working for CAF. This confusion has been exacerbated by Mr. Fernandez's claim that Petitioner's employment records have been lost. The more persuasive evidence in this case established that Mr. Fernandez has sought to keep Petitioner from obtaining a license. Petitioner apparently thought there was little doubt that he met the experience requirement. His application failed to list several matters that could potentially be credited towards the total experience needed for licensure. The evidence in this case, however, is insufficient to conclude that the twenty- four (24) month total has been met.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Petitioner has gained eighteen (18) months of verifiable full-time experience or training as a result of his employment with CAF and two (2) months as a result of his employment with Tri-Star. Petitioner should be afforded an opportunity to produce additional evidence within sixty (60) days to establish that he has met the remaining four (4) months experience requirement. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 7th day of December 1994. J. STEPHEN MENTON 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 7th day of December 1994. APPENDIX TO RECOMMENDED ORDER Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact. Addressed in the preliminary statement and in Findings of fact five (5). Rejected as unnecessary. The evidence did not establish that Mr. Fernandez was a formal sponsor pursuant to Section 493.6116. Rejected as argumentative. Adopted in substance in Findings of Fact five (5), six (6) and seven (7). (7). Adopted in substance in Findings of Fact five (5), six (6) and seven Rejected as unnecessary. Adopted in substance in Findings of Fact seven (7). Addressed in the Preliminary Statement and in Findings of Fact eleven (11). Subordinate to Findings of Fact twelve (12). Subordinate to Findings of Fact thirteen (13). Respondent's Proposed Findings of Fact. 1-2. Adopted in substance in the Preliminary Statement. Adopted in substance in the Preliminary Statement. Adopted in substance in Findings of Fact one (1) and two (2). Subordinate to Findings of Fact two (2) and fourteen (14). Adopted in substance in Findings of Fact thirteen (13). Subordinate to Findings of Fact five (5), six (6), and seven (7). Adopted in substance in Findings of Fact three (3) and seven (7). COPIES FURNISHED: Richard R. Whidden, Jr., Esquire Assistant General Counsel Department of State/Division of Licensing The Capitol, MS #4 Tallahassee, Florida 32399-0250 J. James Donnellan, III, Esquire 1900 Brickell Avenue Miami, Florida 33129 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
The Issue The issues are whether Petitioner's rule challenge petition should be dismissed for failure to present issues that meet the requirements of Sections 120.56(1), 120.56(3), and 120.56(4), Florida Statutes, and if so, whether Respondent is entitled to an award of costs and attorneys' fees pursuant to Sections 120.569(2)(e), 120.595(3), and 120.595(4), Florida Statutes.
Findings Of Fact Petitioner filed an application for a Class "C" private investigator license on or about May 15, 2000. By letter dated September 5, 2000, Respondent advised Petitioner that his application for a Class "C" license as a private investigator was denied. The letter stated as follows in relevant part: Failure to qualify under Section 493.6203, Florida Statutes. You have not demonstrated the necessary lawfully gained, verifiable, full-time experience or appropriate training. Your application is therefore being denied. Petitioner filed a request for an administrative hearing with Respondent on or about September 13, 2000. He filed an amended request for hearing with Respondent on or about September 15, 2000. On September 27, 2000, Respondent issued an Order Dismissing Petition with Leave to Amend. This order referenced Rule 28-106.201(2), Florida Administrative Code, and found that Petitioner's hearing request was substantially deficient because it did not contain the following: An explanation of how the petitioner's substantial interest will be affected by the agency determination; A statement of disputed issues of material fact. The Petitioner has not disputed the material facts at issue in this case; which is whether the Petitioner provided the Division with information which the Division could then verify. Verification is achieved by actually speaking with the persons provided by an applicant to obtain information as to what duties were performed and to obtain a percentage of the time worked which involved investigative work. Petitioner provided information concerning former employers in the Affidavit of Experience section of the application. After submitting the application, Petitioner submitted an affidavit from an investigator, however that investigator was not Petitioner's employer and therefore not in the position to verify Petitioner's experience. For the first time, in Petitioner's requests for a hearing, Petitioner submits information concerning a former career in executive recruiting consisting of an affidavit, notarized in Maryland, of a former co- worker. This information was never provided to the Division and is not listed anywhere on the application submitted by Petitioner nor is there any way to verify any of the information in that affidavit as the affiant's address and telephone number are not provided. In his petitions for hearing Petitioner has raised only legal issues which are not legally the forum of a formal administrative hearing. Section 120.569(1), Florida Statutes . . . . A concise statement of the ultimate facts alleged, including the specific facts the petitioner contends warrant reversal or modification of the agency's proposed action; A statement of the specific rules or statutes the petitioner contends require reversal or modification of the agency's proposed action . . . . (Emphasis added) Respondent's Order Dismissing Petition with Leave to Amend also determined that: (a) Petitioner's hearing requests improperly mixed rule validity challenge arguments for Section 120.56, Florida Statutes, proceedings with disputed material fact arguments for proceedings under Sections 120.569 and 120.57, Florida Statutes; (b) Petitioner's argument that his Juris Doctorate training and related legal work experience met the statutory requirements of Section 493.6203(4), Florida Statutes, was a statutory construction/legal argument presented in the guise of factual issues; (c) The Division of Administrative Hearings does not have jurisdiction to decide constitutional validity arguments in a Section 120.57(1), Florida Statutes, proceeding; and (d) Petitioner's argument that he is entitled to licensure by default due to the failure of the agency to meet the 90-day time requirement of Section 120.60, Florida Statutes, is a legal issue in light of the tolling provision of Section 493.6108, Florida Statutes. In a footnote to the Order Dismissing Petition with Leave to Amend, Respondent referred to two documents that Respondent attached as a courtesy to Petitioner. The first document was Respondent's Opinion Letter No. 92-50. This letter responded to a specific inquiry, determining that an attorney, who was not a member of the Florida Bar and who wanted to perform sub-contract investigative work for a licensed private investigation agency, was not exempt under Section 493.6102(6), Florida Statutes, from having to separately qualify for "C" licensure requirements. The second document was Respondent's internal memorandum, identified herein as Opinion No. 92-4. This memorandum determined that legal training and work experience of attorneys do not automatically qualify them for a Class "C" license. Instead, each application should be considered on a case-by-case basis. On October 10, 2000, Petitioner filed his Request for Formal Administrative Hearing, citing Section 120.54, Florida Statutes, as authority to challenge certain of Respondent's rules and statements defined as rules. Petitioner claims that Respondent routinely applies heightened scrutiny to applications submitted by attorneys, persons who are qualified to be attorneys, or others who have research and investigative skills but no actual police or criminal justice experience. Petitioner's hearing request first argues that Respondent's Order Dismissing Petition with Leave to Amend, together with its attachments, all of which are referenced above, set forth policies having the effect of rules. In Petitioner's "First Rule Challenge," he argues that Respondent's interpretation of the time limitations for processing license applications in Section 120.60, Florida Statutes, together with Respondent's interpretation of the tolling provisions of Section 493.6108(1), Florida Statutes, constitute a rule. Petitioner concludes that Respondent is without delegated legislative authority to extend the 90-day application processing time of Section 120.60, Florida Statutes, unless Respondent does not receive the fingerprint investigation report required by Section 493.6108(1), Florida Statutes, prior to the expiration of the 90-day processing period. Petitioner's "Second Rule Challenge" argues that Respondent's Opinion No. 92-4, a memorandum dated January 23, 1992, constitutes a rule because: (a) Respondent uses the opinion to define the "practice of law"; and (b) Respondent relies on the opinion in refusing to recognize experience gained by lawyers in the practice of their profession unless the lawyer was engaged in "full-time investigative work." However, Respondent concludes by acknowledging that the opinion recommends a case-by-case analysis of each attorney's application to determine whether the attorney has the experience and training required by Section 493.6203(4), Florida Statutes. Petitioner's "Third Rule Challenge" also argues that Respondent's Opinion No. 92-4 constitutes a rule. According to Petitioner, Respondent relies on the opinion to find that an attorney, even if a member of the Florida Bar, lacks creditable "college coursework related to criminal justice, criminology, or law enforcement administration." See Section 493.6203(4)(b), Florida Statutes. Petitioner concludes that Respondent does not have authority to interpret the meaning of the statutory term, "related to," so narrowly. Petitioner's hearing request did not include a "Fourth Rule Challenge." Petitioner's "Fifth Rule Challenge" states that Respondent's Opinion Letter No. 92-50, dated October 20, 1992, is an unpromulgated rule. Petitioner claims that Respondent relies on this opinion to set broad policy concerning the agency's treatment of the experience and educational qualification of unlicensed attorneys. Petitioner states that the opinion infringes on the regulatory jurisdiction of the Florida Bar. Petitioner asserts that he is substantially affected because he is an unlicensed attorney. Petitioner's "Sixth Rule Challenge" states that Respondent's Order Dismissing Petition with Leave to Amend is an unpromulgated rule. Specifically, Petitioner claims Respondent created a rule by refusing to credit applicants with work experience that is not "verifiable by actually speaking with the persons provided by an applicant to obtain information as to what duties were performed and to obtain a percentage of the time worked which involved investigative work." According to Petitioner, Respondent has no authority to establish such an agency specific meaning of the common term, "verifiable experience." Petitioner's "Seventh Rule Challenge" argues that Respondent has adopted a special meaning for the term "private investigation" which contravenes the statute. Petitioner takes issue with Respondent's interpretation of "private investigation" as defined in Section 493.6101(17), Florida Statutes. Petitioner also challenges Respondent's interpretation of the experience requirement of Section 493.6203(4), Florida Statutes. Petitioner has withdrawn his "Eighth Rule challenge" regarding the validity of Rule 1C-3.100(3)(a), Florida Administrative.
The Issue The issues in this case are whether the Respondent, the Department of State, Division of Licensing, should grant the applications of the Petitioner, Ricky O. Dawes, for a Class "C" Private Investigator License and for a Class "G" Statewide Firearms License. Specifically, under Section 493.6118(3), Fla. Stat. (1991), the issue as to each application is whether there is clear and convincing evidence that the Petitioner lacks good moral character.
Findings Of Fact The Petitioner, Ricky O. Dawes, was a municipal law enforcement officer from approximately 1975 through the middle of 1977. He was a deputy sheriff and, later, a detective with the Hillsborough County Sheriff's Office from approximately June, 1978, through April, 1979, and from May, 1980, through August, 1992. Background checks when he was employed with the Sheriff's Office revealed no evidence of facts that would establish a personal history of dishonesty, unfairness, or disrespect for the rights and property of others or for the laws of Florida or of the nation. Nor is there any evidence, during the course of his employment through approximately May, 1992, that the Petitioner had a personal history of dishonesty, unfairness, or disrespect for the rights and property of others or for the laws of Florida or of the nation. During the summer of 1992, and for some time before, the Hillsborough County Sheriff's Office was involved in a substantial multiple-law-enforcement- agency investigation. In approximately June or July, 1992, the law enforcement agencies involved learned that the subjects of the investigation not only knew about it but had been given copies of four pages of notes made by members of the Sheriff's Office involved in the investigation that listed, by name and in some cases additional identifying information, some 15 "suspects" and 22 "possible targets." The disclosure seriously compromised the investigation, to say the least. An internal investigation was launched to determine the source of the damaging disclosure. It was revealed that a copy of the notes had been in the copying room of the identification and records section of the Sheriff's Office for approximately six to eight weeks prior to the disclosure. An employee recalled: seeing it on a work table in the copying room at the beginning of that time period; looking at it and realizing it was something important that should not be made public; thinking that whoever put it there would be back for it soon; and finishing his business in the copying machine, leaving the notes where he had found them. He also recalled returning to the copying room the next day and not seeing the notes where he had left them. He assumed at the time that whoever had put them there had returned and removed them. But later, in July, 1992, he read in the local newspapers that copies of documents sounding much like what he had seen in the copying room had been given to the suspects under investigation. He returned to the copying room and found the notes in a stack of miscellaneous papers. Several people, including the Petitioner, were questioned under oath during the course of the internal investigation. The Petitioner was questioned in a deposition conducted by an assistant state attorney on or about July 30, 1992. During the deposition, the Petitioner was shown copies of the four pages of notes that were recovered from the copying room and was asked whether he had ever seen a copy of them. The Petitioner looked at all four pages carefully (the deposition transcript indicates a pause in the proceedings) and answered, "no." After the deposition, the four pages of notes recovered from the copying room were processed for latent fingerprints. The Petitioner's left thumb print appeared on the left side of one of the pages, labeled at the top "Possible Targets," about two-thirds of the way up the page. On the list of 14 "possible targets" on that page were the names Vincent Loscalzo, who the testimony indicates is reputed to be involved in organized crime in the Tampa area, and several others whom the Petitioner either knew personally or whose names he would have recognized. The Petitioner's left thumb print also appeared on the left side of the next page of the list of "possible targets," also about two-thirds of the way up the page. On the list of eight names on that page were at least two names the Petitioner would have recognized. One was the husband of the mayor of the City of Tampa. The Petitioner knows Vincent Loscalzo personally. While employed with the Hillsborough County Sheriff's Office, the Petitioner also was in business for himself distributing an oil re-refiner. The Petitioner is concentrating on that business now that he has "retired" from the Sheriff's Office. (The Petitioner tried to give the false impression that his "retirement" in August, 1992, had nothing to do with the internal investigation and that the Petitioner had been planning for some time to retire in August, 1992, to concentrate on his business.) The product was manufactured by a company in which Vincent Loscalzo has an ownership interest. Loscalzo has an office above a lounge he owns in Tampa, called the Brothers Lounge, and the Petitioner has had conversations with him there. It is found that the Petitioner testified falsely on his deposition that he had never before seen copies of the four pages of notes recovered from the copying room. Many people, besides the Petitioner, had access to the copying room during the six to eight weeks that the notes were there. Most had legitimate Sheriff's Office business to conduct, and they would not have been questioned or supervised. Others, not having legitimate Sheriff's Office business to conduct, also could have entered the copying room unquestioned and unsupervised during that time period. Two other person's fingerprints were identified on the notes- -the person who brought the notes into the copying room and left them, and the person who saw the notes and recovered them after reading about them in the newspaper. Not all people who touched the notes necessarily would have left fingerprints that could be lifted and identified. Many factors would enter into the question whether someone who touched the notes would leave prints that could be lifted and identified. In addition to those identified, some unidentifiable prints were left on the notes. Under these facts, the Respondent concedes in its proposed recommended order that it was unable to prove, by clear and convincing evidence, that the Petitioner criminally disclosed the existence of a substantial criminal investigation to the subjects of the investigation. On or about January 23, 1993, the Petitioner was stopped for driving a motor vehicle while impaired by alcohol consumption. As the arresting officer approached the Petitioner's vehicle, from the rear, the Petitioner opened the driver-side door and got out. As he did, his left pant leg got caught on an object that appeared to be under the pant leg at the Petitioner's ankle, and the pant leg bunched up and bulged. The Petitioner identified himself to the arresting officer as a retired deputy sheriff. Based on the arresting officer's experience and knowledge, particularly that off-duty law enforcement officers often concealed their firearms under the pant leg in an ankle holster, the arresting officer asked if the bulge he saw under the pant leg was a firearm. The Petitioner acknowledged that it was. In answer to the officer's question whether the Petitioner had a permit to carry a concealed firearm, told the officer that he did. In fact, the Petitioner did not even apply for a concealed firearm license until March 30, 1993, and one was not issued to him until April 6, 1993. It is found from the clear and convincing totality of the evidence in this case, taken as a whole, that the Petitioner lacks a personal history of honesty, fairness, and respect for the rights of others and for the laws of Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent, the Department of State, Division of Licensing, enter a final order denying the applications of the Petitioner, Ricky O. Dawes, for a Class "C" Private Investigator License and for a Class "G" Statewide Firearms License. RECOMMENDED this 19th day of August, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2048S To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Rejected as not proven that the resignation was totally voluntarily. Also, no party questioned about it at the hearing knew the procedures for licensure by a former law enforcement officer. In any event, the procedures are matters of law, not fact, and are set out in Section 790.06, Fla. Stat. (1991). Otherwise, accepted and incorporated to the extent necessary. Rejected in part as not proven and as being conclusions of law. Fact of the pendency of criminal proceedings, a ruling suppressing evidence, and the State's appeal accepted but unnecessary. Rejected as not proven and as contrary to facts found and as contrary to the greater weight of the evidence that the firearm was visible. (It was only detectable.) Part of the rest is rejected as being conclusions of law, and the other part of the rest is accepted and incorporated to the extent not subordinate or unnecessary. Accepted but unnecessary that the Petitioner has been charged but not convicted. The rest is rejected as being argument and conclusions of law. Accepted (the questions to the witnesses excluded reference to the charges leveled in this case) and subordinate to facts found. Rejected in part as being argument and conclusions of law and in part as not proven and as contrary to facts found and to the greater weight of the evidence. First sentence, accepted and incorporated. Second sentence, rejected in part as being argument but otherwise accepted but in part subordinate to facts contrary to those found and contrary to the greater weight of the evidence. Third sentence, rejected as being argument and not proven and contrary to facts found and contrary to the greater weight of the evidence. Fourth sentence, rejected for the same reasons as in 3., above. Respondent's Proposed Findings of Fact. 1.-2. Accepted and incorporated. 3. Accepted and incorporated to the extent not subordinate or unnecessary. 4.-9. Accepted and incorporated to the extent not subordinate or unnecessary. 10. Accepted but subordinate and unnecessary. 11.-13. Accepted and incorporated to the extent not subordinate or unnecessary. 14. Accepted but subordinate and unnecessary. 15.-16. Accepted and incorporated to the extent not subordinate or unnecessary. 17. Accepted but subordinate and unnecessary. COPIES FURNISHED: Ellis Faught, Jr., Esquire 206 Mason Street Brandon, Florida 33511 Henri C. Cawthon, Esquire Assistant General Counsel Department of State Division of Licensing The Capitol, Mail Station #4 Tallahassee, Florida 32399-0250 Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater, Esquire General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend that the Division of Licensing issue Patricia T. Uyaan a Class "C" Private Detective License. DONE and ORDERED this 24th day of August, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1979. COPIES FURNISHED: W. J. Gladwin, Jr., Esquire Assistant General Counsel Department of State The Capitol Tallahassee, Florida 32301 Mrs. Patricia T. Uyaan 316 Linden Lane Orange Park, Florida 32073 =================================================================
Findings Of Fact On January 15, 1987, the Division received Petitioner's application for a Class "CC" Private Investigator Intern License. The Division issued Petitioner's "CC" Intern's License on March 19, 1987. On October 12, 1987, the Division received Petitioner's application for an upgrade to a Class "C" Private Investigator's License. Included with the application was a Completion of Sponsorship Letter reflecting a total internship of twenty-three months, and a letter from Troopers International Security Corp. reflecting investigative and bodyguard experience from May 1976 to June 1979. The Division issued the Class "C" license on December 14, 1987. On February 13, 1989, the Division filed an Administrative Complaint seeking to revoke Petitioner's Class "C" license based on two violations of Section 493.319(1)(c), Florida Statutes (1989), conviction of crimes directly related to the business for which the license is held. On April 13, 1989, prior to final disposition of the Administrative Complaint seeking to revoke Petitioner's Class "C" license, he applied for a Class "A" Private Investigative Agency License. A Final Order revoking Petitioner's Class "C" license for the criminal violations was entered on June 29, 1989. On July 10, 1989, eleven days after revocation of the Class "C" license, the Division issued Petitioner's Class "A" agency license. Petitioner subsequently filed a Notice of Appeal of the Final Order revoking his Class "C" license. On February 27, 1990, the parties entered into a Stipulation and Agreement wherein Petitioner would withdraw his appeal and be allowed to apply for a Class "C" Private Investigator's License. The Division stipulated that it would not take disciplinary action against Petitioner's Class "A" agency license based solely upon the criminal convictions, and Petitioner would be placed on probation for a period of one year. The parties stipulated that Petitioner would also be allowed to apply for a Class "G" Statewide Gun Permit on September 1, 1990. The agreement also provided that the Division would not deny Petitioner's Class "C" license application based solely upon his 1988 misdemeanor convictions. On April 3, 1990, Petitioner applied for a Class "C" Private Investigator License. The Division of Licensing investigated Petitioner's experience background and concluded that Petitioner did not have the required experience. By letter dated July 13, 1990, the Division informed Petitioner he did not have the required two years experience and gave him thirty days to respond with additional information. Petitioner did not respond in writing within the thirty day period. By letter dated August 30, 1990, the Division informed Petitioner his Class "C" application was denied based on his failure to respond to the letter of July 13, 1990, and because he did not have two years of verifiable experience as required by Section 493.306(4), Florida Statutes. Petitioner obtained the Class "A" license mentioned above in order to be better able to pursue a full time career as a private investigator. Petitioner also abandoned his furniture refinishing business in order to operate the private investigation agency. The abandonment of the furniture refinishing business was sometime prior to the revocation of Petitioner's Class "C" license in 1989. Much of the same experience that was listed on Petitioner's 1987 application was also listed on his 1990 application. The July 13, 1990, letter from the Division of Licensing proposing to deny Petitioner's application states that the basis for denial is Petitioner's failure to demonstrate the required experience. The denial letter also states that much of the experience listed by Petitioner cannot be credited as qualifying experience because it was obtained under circumstances which required the Petitioner to have certain licenses that he did not have.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Division of Licensing issue a Final Order in this case denying the Petitioner's application for a Class "C" license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of March 1991. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of March 1991.
The Issue The ultimate issue for determination at final hearing was whether Respondents committed the offenses set forth in the administrative complaints, and if so, what disciplinary action should be taken against Respondents' licenses.
Findings Of Fact Frank Wallberg was going through a divorce and wanted a background investigation on his wife's attorney. On June 19, 1992, he went to the office of South Florida Detective Bureau, Inc. (Respondent Bureau) and specifically requested the services of William Polero (Respondent W. Polero) who he had met a few years prior to this. Respondent Bureau's secretary contacted Respondent W. Polero by telephone, and Wallberg explained to him what he wanted. Respondent W. Polero agreed to perform the background investigation on the attorney, requiring Wallberg to first pay a $1,500 retainer which he was to bring to Respondent W. Polero's home, approximately two blocks from Respondent Bureau's office. As agreed, Wallberg met Respondent W. Polero at his home and gave him a check for $1,500 as a retainer, made payable to Respondent Bureau. For the $1,500 Respondent W. Polero indicated that a complete written report on the attorney could be performed. Wallberg provided Respondent W. Polero with the attorney's complete name, address and telephone number. Respondent W. Polero made several telephone calls while Wallberg was at his home, attempting to obtain information on the attorney but all were unsuccessful. Approximately two days later, Wallberg contacted Respondent W. Polero inquiring about the progress of the investigation. Respondent W. Polero indicated that he was waiting for responses from inquiries and to contact him again that following Friday. Wallberg called back as directed. Respondent W. Polero indicated that after searching public records and court records and contacting The Florida Bar and other attorneys, the attorney had nothing irregular in his background. Feeling that he had not gotten his money worth, Wallberg questioned the cost of the investigation. Respondent W. Polero responded that there was nothing else to report, so there was nothing to report in writing and that the cost of the investigation was $1,500. By that time, the $1,500 check had been cashed. Being very disappointed, on or about July 11, 1992, Wallberg contacted another investigative agency, the Wackenhut Corporation, and obtained their services. He provided Wackenhut's investigator, John Rose, with the same information that he had provided Respondent W. Polero, i.e., the attorney's name, address and telephone number. On July 13, 1992, Rose began his investigation. By July 15, 1992, Rose had completed his investigation and prepared an 18 page written report with numerous exhibits attached. His report reflected the numerous sources he utilized, which included researching public records at the Dade County Courthouse, records maintained by the State of Florida, Department of Highway Safety and Motor Vehicles, including vehicle and driver license information, criminal records maintained by Dade County Corrections and Rehabilitation Department and public records of The Florida Bar. Through these sources, Rose was able to obtain a plethora of information on the attorney, including a history of federal and state tax liens having been filed against the attorney's property, criminal arrests and convictions, and disciplinary action against the attorney by The Florida Bar, with the specifics thereon. With his written report, Rose submitted an itemized invoice dated July 15, 1992, for his services, totaling $650.30. The invoice reflected that he had expended 10 hours on the investigation (generally outlining what was done), at a charge of $60 an hour, equalling $600 for the time, and that there were $50.30 in additional costs ($27 document copies, $2 for parking and $21.30 for mileage). By letter dated September 23, 1992, which was mailed and faxed, Wallberg informed Respondents that he had obtained the services of Wackenhut Corporation and requested that they provide Wackenhut with all the information in their file when requested by Wackenhut. By fax transmission on that same date, Jamie Polero (Respondent J. Polero), President of Respondent Bureau and the son of Respondent W. Polero, responded indicating, among other things, that there was no new or different information from what Respondent W. Polero had provided him and that since Wallberg had not contacted them for almost three months, he had assumed that Wallberg did not wish to continue the investigation. This was the first time that Wallberg had had any contact with Respondent J. Polero. By letter dated September 24, 1992, which was mailed and faxed, Wallberg informed Respondent J. Polero of his dissatisfaction with the investigation performed by Respondent Bureau and requested a $1,350 refund of the $1,500 within 24 hours. Wallberg never received any refund. Several communications between Wallberg and Respondent J. Polero failed to resolve the dispute. Finally, Wallberg contacted State of Florida, Department of State, Division of Licensing (Petitioner) and filed a complaint. Respondent Bureau's investigative file for Wallberg consisted of nine pages, most of which were communications back and forth with Wallberg. Approximately eight hours were expended on Wallberg's case. Even though little investigative work was done, Respondent J. Polero admitted that most of it was performed by Respondent W. Polero, and not by himself. The investigative work performed by Respondents failed to meet industry standards in that the minimum investigation was not conducted, public records were not properly researched and false information was provided to Wallberg, their client. At all times material hereto, Respondent W. Polero was unlicensed. At all times material hereto, Respondent J. Polero was a licensed private investigator (Class "C" license) and a licensed recovery agent (repossessor) (Class "E" license). Also, at all times material hereto, Respondent Bureau was a licensed private investigative agency (Class "A" license) and a licensed recovery (repossession) agency (Class "R" license). No prior disciplinary action has been taken against Respondent J. Polero. Both Respondent Bureau and Respondent W. Polero have prior disciplinary history. In 1989, Petitioner filed administrative complaints against both Respondents for, among other things, unlicensed activity which resulted in the parties stipulating to a penalty of an administrative fine totalling $1,800, 2/ which was paid on or about August 30, 1989. 3/ Additionally, in 1989, Petitioner filed an administrative complaint against Respondent Bureau and in 1990 against Respondent W. Polero for unlicensed activity which resulted in the parties stipulating to an administrative fine of $2,000 4/ which was paid by Respondent Bureau on or about May 25, 1990. 5/ As a related issue to the 1990 complaint, on April 27, 1990, Petitioner issued a Notice to Cease and Desist to Respondent W. Polero's unlicensed activity-- performing private investigative work without a license and managing a private investigative agency without a license--and served him on May 8, 1990.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of State, Division of Licensing enter a Final Order: Suspending South Florida Detective Bureau, Inc.'s Class "A" private investigative agency license and Class "R" recovery (repossession) agency license for one year and imposing an administrative fine of $2,000. Suspending Jamie J. Polero's Class "C" private investigator license and Class "E" recovery agent (repossessor) license for one year 6/ and imposing an administrative fine of $2,000. Imposing an administrative fine of $2,000 against William Polero. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of March 1994. ERROL H. POWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of March 1994.
