The Issue Whether Respondent violated Section 493.6118(1)(n), Florida Statutes, as alleged in Counts I, II, IV and V of the Administrative Complaint by subcontracting with individuals named therein to provide private investigative services at a time when they were not licensed as a Class "A" investigative agency. Whether Respondent violated Section 493.6118(1)(n), Florida Statutes, as alleged in Count III of the Administrative Complaint, by allowing an improperly licensed person, John Polk, to direct the activities of licensees, or exercise operational control over the regulated activities of Morse Security Group, Incorporated. Whether Respondent violated Section 493.6118(1)(s), Florida Statutes, as alleged in Count VI in the Administrative Complaint, by failing to report to the Department the termination of persons listed in that count. Whether Respondent violated Section 493.6118(1)(s), Florida Statutes, as alleged in the Administrative Complaint, by directing the activities of licensees, thereby acting as a manager, subsequent to the voluntary deactivation of his Class "C" private investigator's license and Class "M" private investigative/security agency manager's license. Whether Respondent violated Section 493.6118(1)(f), Florida Statutes, as alleged in the Administrative Complaint, by misrepresenting his agency by advertising in the Martindale-Hubbell Law Directory 1993, that his agency is "Florida's largest and oldest private investigative agency", when it is not. Whether Respondent violated Section 493.6118(1)(r), Florida Statutes, as alleged in the Administrative Complaint, by failing to certify the completion or termination of the internship of William J. Smithberger when he had the duty as a sponsor to do so.
Findings Of Fact Morse Security Group holds a Class "A" Private Investigative Agency License, Number AOO-00919, effective June 30, 1993, which was originally issued in 1976, and is currently active. Harvey Morse, the principal of Respondent, holds a Class "C" private investigator license, number COO-008861, effective November 24, 1992, which was originally issued in 1975, and was placed on inactive status by the Department on January 21, 1993. Harvey Morse also was issued a Class "DI" Security Officer Instructor License, No. DI89-00348, effective January 8, 1993, a Class "G" Statewide Firearms License, No. GOO-11067, effective December 6, 1991, which was placed on inactive status with the Department on January 21, 1993, and a Class "M" Private Investigative/Security Agency Manager license No. M85-00112, effective August 7, 1992, which was placed on inactive status with the Department on January 21, 1993. Craig Hull became employed with Respondent in February of 1993, as a part-time investigator. Hull worked under the direct supervision and control of Respondent, and held himself out to the public as an employee. When Hull entered into his contractual employment agreement with Respondent, he was given a vacation/sick day policy document noting his status as a full-time employee of Respondent. Hull executed an Employment Agreement which referred to him as the "employee" and also referred to him as an "independent subcontractor" for the purpose of withholdings. At the time of Hull's employment with Respondent, he held a Class "C" private investigator license. In all aspects of Hull's employment with Respondent, he conducted himself, and was treated as an employee. Hull did business for Respondent under the Respondent's corporate name; held himself out to the public as being Respondent's employee; signed contracts on behalf of Respondent; received letters and correspondence as an employee; was directed when and were to show up for work; how to answer to the telephone; when to answer the telephone; and in all other respects was under the direct control and supervision of Respondent. During the course of employment with Morse Security Group, Hull possessed no occupational license, business cards, stationery, telephone listing, brochures or printed material that identified him as having any relationship with Respondent other than employee and filed no fictitious name with the Department of State. In dealing with clients and the general public, Hull held himself out as an employee of Respondent and his business cards indicated that he was an employee of Respondent. Of the five cases that Hull handled on behalf of Respondent, he at no time attempted to limit the Respondent's liability to any of those clients by asserting that he was an independent contractor, or had any other relationship with Respondent other than employee. Respondent never identified Hull to others an anything other than an employee. At no time did Respondent attempt to limit its general liability to the public as to Hull's employment by the use of the term subcontractor. Respondent never attempted to perpetrate a fraud on the public by the use of the term subcontractor as to Hull's employment. Respondent's liability insurance in effect from 1991 through 1994, specifically covered Hull as an employee of Respondent. John K. Polk was employed by Respondent from February 5, 1992 through March 27, 1993. At the inception of Polk's employment, he entered into an employment contract with Respondent. The agreement for employment was entitled "Employment Agreement", and consisted of twelve paragraphs. Throughout the employment agreement Polk is referred to as employee and Respondent is referred to as employer except in paragraph 10. Paragraph 10 informed Polk that as employee he would be regarded as a subcontractor or independent contractor for the purposes of taxes, workers' compensation, licenses, permits, and insurance. During the course of Polk's employment his relationship with Respondent was governed by the employment agreement. In addition to the employment agreement signed by Polk, he received a separate document entitled, "Employee Vacation/Sick Leave Policy". The vacation/sick leave document further identified and regulated Polk as an employee. During the course of Polk's employment with Respondent Polk did not maintain a separate general liability policy. At no time during the course of Polk's employment with Respondent did Respondent attempt to limit its liability to its clients by treating Polk as anything other than as an employee. Polk never attempted to use the fact that the term "subcontractor" had been used in paragraph 10 of the employment agreement in order to limit Respondent's liabilities to clients. Polk's employee fidelity bond questionnaire for State Farm Fire and Casualty Company Insurance was submitted by Respondent listing Polk as an employee, and Polk was covered under the policy for any acts of negligence of omissions. During the period of Polk's employment with Respondent he held no separate occupational license. Polk's business cards and stationery was provided by Respondent, and identified Polk as an employee of Respondent. The business telephone employed by Polk during his employment with Respondent was identified as Respondent. Polk worked under the direct supervision and control of Respondent. At all times Polk held himself out as an employee to Respondent's clients. During the course of his employment with Respondent, Polk was covered under Respondent's general liability policy for any acts of negligence or omission committed by Polk. Randy Morgan was employed with Respondent as an investigator from January 1, 1991, to approximately December, 1992. Morgan did not have a written contract for employment with the Respondent. Morgan was compensated by the case on an hourly basis by Respondent. Morgan was responsible for withholding his own Social Security and federal income taxes. Morgan considered himself as an employee of Respondent, and was under the supervision and control of Respondent. At all times during the course of his employment Morgan held himself out as an employee of Respondent, not as a subcontractor. Robert O. Sutley was employed by Respondent from November of 1992, until approximately March, 1993. During his employment with Respondent, Sutley held "DD", "B", and "G" licenses from the Department. Sutley entered into an employment agreement with Respondent which consisted of twelve paragraphs entitled "Employment Agreement". Within the employment agreement, the term "independent contractor" was a term used in relation to the workers' compensation and the withholding of taxes. Respondent did not attempt to limit its liability to the general public in regard to Sutley. Throughout the course of his employment with Respondent, Sutley held himself out as an investigator employee of Respondent. During his employment with Respondent, Sutley was under the supervision and control of Respondent. Respondent was contacted on a cold call by Martindale-Hubbell Law Directory for the purposes of advertising. After negotiations, Respondent caused to be issued an advertisement in the Martindale-Hubbell directory. Respondent initially instructed Martindale-Hubbell to advertise that Respondent was "one of the oldest and largest investigative agencies in Florida". The basis for the requested advertisement that Respondent was one of the oldest and largest was Respondent's purchase of a statewide detective agency, which had been in business in Florida since the 1950's, and that Respondent has an affiliate office in Europe and other parts of the United States. Pinkerton's of Florida has been licensed in Florida as an investigative agency since 1968. Pinkerton's has employed over 25 investigator employees on an annual basis over the last five years. Prior to its publication in Martindale-Hubbell, Respondent was not aware of the contents of the advertisement. The ad, as published, stated that the Respondent was the oldest and largest investigative agency in Florida. Respondent became aware of the contents of the advertisement upon receipt of the complaint filed against him by the State. Respondent then sent a letter to Martindale-Hubbell, inquiring why the advertisement read "Florida's oldest and largest private investigative agency", as opposed to "one of Florida's largest and oldest private investigative agencies" as previously instructed by Respondent. Martindale-Hubbell acknowledged that the final draft of the advertisement had been done without Respondent's approval and that an error had been made by Martindale-Hubbell in the advertisement, as it appeared in their publication. Respondent instructed Martindale-Hubbell to cease further advertisement. Respondent reported on his letterhead stationery to the Department the termination of the following persons: Colard, Crews, Fitzgerald, Martin, Morgan, Polk, and Stebbins within the statutory time limit. When Respondent was advised by Mr. Matlack that the computer printout from the Department showed that the above named people were still on a list indicating that they were associated with Respondent, Respondent sent another letter dated April 27, 1993 to the Department advising them of the termination of those listed individuals. As of October 15, 1993, the above named persons were still listed as in Respondent's employ. During the period from January 1, 1993 to April 1993, Harvey E. Morse voluntarily deactivated Class "C" Private Investigator's License and Private Investigative Security Agency Manager's License. Morse voluntarily deactivated licenses upon his graduation from the police academy and his association with the Florida Highway Patrol as a full time auxiliary trooper. Upon voluntary deactivation of Morse's licenses, Morse notified each of the company's employees that Morse would not be involved in any more investigations, and that the employees were to receive their direction from either Dwayne Rutledge or Maria Morse. Morse continued to engage in non-regulated functions such as marketing, sales, computer functions, bookkeeping, and payroll and teaching, training and instruction. During the periods of voluntary deactivation of his license, Morse would run a driver's license record on the computer, receive a printout, and hand it to an employee. Morse refrained, however, from being involved in an investigation based upon that printout. Morse has refrained from involvement in any regulated activities from the time that he voluntarily deactivated his license. Once Morse voluntarily deactivated his license, the primary person responsible for investigations and management of employees was Dwayne Rutledge. During the period from September 1992 to January 1993, Harvey E. Morse supervised and trained John Polk. Morse was always available by way of pager or cellular phone, and in constant contact with John Polk during that time period. Further, Respondent installed a two-way radio system so that Morse could talk with and supervise John Polk on a constant basis. Morse was never more than 60 miles from John Polk during his internship from September 1992 till January 1993, and Morse was in daily contact with John Polk in regard to pending investigations, new matters, old matters, and the general business of the Respondent's office. On several occasions during the above stated time period, Polk would communicate with Morse while he was on patrol in a Florida Highway Patrol vehicle, and ask questions of Morse concerning how investigative matters should be handled. Polk was afforded certain latitude by Morse to make administrative decisions on a day-to-day basis as his training progressed, and Morse placed more confidence in Polk's abilities in certain areas. However, Morse still oversaw those decisions. At all times, Polk's supervision of Respondent's employees was under the direct supervision and control of Morse or other licensed managers in Respondent's employ. The purpose of the Respondent's purchase of a two way radio system was twofold: One, to communicate with other investigators during the course of an investigation; and the other was to afford constant communication among Morse, the office managers, Dwayne Rutledge and Maria Morse, and the investigators, in case of a question would arise in the performance of their duties. Rutledge, as well as Maria Morse, became employed as office manager(s) shortly after 1990, and both he and Mrs. Morse were continuously available to the employees and oversaw, in conjunction with the Morse, the performance of their regulated duties.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is WHEREFORE, it is RECOMMENDED: Petitioner having failed to prove by clear and convincing evidence that Respondent violated those sections as alleged in Counts I through IX of the Administrative Complaint, it is hereby recommended that said Counts be DISMISSED. DONE and ENTERED this 31st day of January, 1994, in Tallahassee, Florida. DANIEL M. KILBRIDE 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 31st day of January, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3890 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Proposed findings of fact submitted by Petitioner. Petitioner waived the filing of proposed findings of fact. Proposed findings of fact submitted by Respondent. Accepted in substance: Count I, unnumbered paragraphs 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18; Count II, paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 20, 22; Count IV, unnumbered paragraphs 1, 2, 3, 4, 6, 7, 8; Count V, unnumbered paragraphs 1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18; Count VIII, unnumbered paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9; Count VI, unnumbered paragraphs 1, 2 (in part), 3, 5, 6, 7, 8, 9; Count VII, unnumbered paragraphs 1, 2, 3, 5, 6, 7, 8, 9, 10, 11, 12; Count III, unnumbered paragraphs 1, 2, 3, 5, 6, 7, 8, 10, 11, 12. Rejected as argument or conclusory: Count I, unnumbered paragraphs 2, 21; Count IV, paragraphs 9; Count V, paragraph 2(in part); Count VII, paragraphs 4; Count III paragraphs 4, 9. Rejected as redundant or surplusage, or irrelevant and immaterial: Count II, unnumbered paragraphs 13, 18, 19; Count IV, paragraph 5; Count VI, paragraph 4. COPIES FURNISHED: Henri C. Cawthon, Esquire Department of State Division of Licensing The Capitol Mail Station-4 Tallahassee, Florida 32399-0250 William J. Sheaffer, Esquire William J. Sheaffer, PA. 609 East Central Boulevard Orlando, Florida 32801 Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater, Esquire General Counsel The Capitol, PL-02 Tallahassee, Florida 32399-0250
Findings Of Fact The charges Respondent, Gary W. Ciani Private Investigations, Gary Wayne Ciani, Owner (Ciani), holds a Class "A" private investigative agency license, number A88-00273, effective October 31, 1990, and a Class "C" private investigator license, number C87-00530, effected August 6, 1989. Both licenses were issued pursuant to Chapter 493, Florida Statutes. On September 14, 1990, in the United States District Court, Southern District of Florida, Case No. 87-6021-CR-Gonzalez, Ciani, based on a plea of guilty, was convicted of a felony, to wit: violation of Title 28, USC Section 5861(d) and 5871-- possession of a firearm (one silencer) that was not registered to him in the National Firearms Registration and Transfer Record. The court withheld the imposition of a period of confinement, and placed Ciani on probation for a period of 24 months. As a special condition, the court directed that, without regard to any existing policies of the U.S. Probation Office, Ciani be permitted to maintain his employment as a private investigator so long as he was so licensed by the State of Florida. The person Ciani has been a resident of Fort Lauderdale, Florida, since 1954. He is married, the father of three daughters, and was, until being charged with the offense leading to his conviction discussed supra, a career officer with the Fort Lauderdale Police Department. In all, Ciani dedicated 17 years and 8 months of his life as a police officer to the City of Fort Lauderdale, the last 8 years of which were served with the Homicide Division. During such period, Ciani earned a reputation, which he continues to enjoy, as a very competent officer and investigator, as well as an excellent reputation for honesty and truthfulness. The firearms violation, which ultimately resulted in Ciani's guilty plea and conviction, had its genesis when Ciani sought to sell an automatic weapon he had previously acquired for use in his employment. Regarding such firearms, the proof demonstrates that other officers owned similar weapons, used such weapons in the course of their employment, and that no officer had ever been prosecuted for possessing such a weapon. The proof is, however, silent as to whether such other officers had registered their firearms as required by law. Notwithstanding, Ciani was, more likely than not, targeted for prosecution by Federal authorities in retribution for his refusal to curtail an investigation he had undertaken of a Federal confidential informant (CI) who he suspected of murder. In this regard, the proof demonstrates that shortly after securing an indictment against the CI, Ciani was approached out-of-the-blue by a licensed gun dealer, who inquired as to whether Ciani was interested in selling his weapon. Ciani, having no further use for the weapon, and believing a sale to a licensed dealer would be permissible, subsequently met with the dealer at his premises to make the sale, and was shortly thereafter arrested and charged with the subject offense. Recognizing that federal law made no provision for withholding an adjudication of guilt, Ciani, upon advice of his counsel, entered into a plea agreement with the federal prosecutor which, if consummated, would have allowed him to plead guilty to a State weapons charge in exchange for a sentence of five years probation with adjudication of guilt withheld. Additionally, Ciani agreed to resign from his position as a law enforcement officer for the Fort Lauderdale Police Department, and not seek any law enforcement employment during his period of probation. In return, the United States agreed to dismiss the federal indictment. In reliance upon the plea agreement, Ciani resigned from the Fort Lauderdale Police Department, and forfeited the eighteen years he had accrued toward his pension. Thereafter, he opened a new business for the support of his family as a private investigator, and has been so employed since August 1987. During that period, he has acquired twelve of the largest civil law firms in Dade and Broward Counties as clients, and has earned a reputation as a responsible private investigator, whose conduct conforms to the highest of moral and ethical standards. While Ciani had complied with those terms of the plea agreement within his control, his counsel and the U.S. Attorney were unsuccessful in convincing the State Attorney to file the requisite State charges that would consummate the agreement. Accordingly, in August or September 1990, more than three years after the plea agreement had been executed, Ciani was informed that such agreement was, by its terms, void, and that he would have to plead guilty to the charge or stand trial. Recognizing the uncertainties of criminal prosecution, Ciani elected to plead guilty to count two of the indictment, and the remaining four counts were dismissed. Petitioner, at least since November 23, 1987, has been aware of the criminal charges pending against Ciani, as well as the plea agreement that had been entered into between Ciani and the United States Attorney, and continually renewed his licenses until the subject conviction was rendered and these revocation proceedings were commenced. Additionally, the Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), was aware of the criminal charges pending against Ciani. In apparent recognition that Ciani's actions did not demonstrate that he failed to possess the requisite good moral character demanded of law enforcement officers, the Commission limited the disciplinary action it took against Ciani to a suspension of his certification for the period of January 31, 1988 through January 31, 1990. Overall, the proof offered in this proceeding demonstrates that Ciani is a person of good moral character, who ascribes to the highest of ethical standards, and a responsible investigator. It further demonstrates that, were Ciani afforded the opportunity to continue as a private investigator, the public would not be adversely affected.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered revoking the Class "A" private investigative agency license and Class "C" private investigator license of Respondent, Gary W. Ciani Private Investigations, Gary Wayne Ciani, Owner. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of June 1991. WILLIAM J. KENDRICK 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 June 1991. APPENDIX Petitioner's proposed findings of fact are addressed as follows: Addressed in paragraph 1. Addressed in paragraph 2. Respondent's proposed findings of fact are addressed as follows: Addressed in paragraph 2. Addressed in paragraphs 4 and 5. Addressed in paragraphs 6-8. 4 & 5. Addressed in paragraph 9. 6. Addressed in paragraphs 3, 7, and 10. Copies furnished: Henri C. Cawthon, Esquire Assistant General Counsel Department of State Division of Licensing The Capitol, MS 4 Tallahassee, Florida 32399-0250 Michael G. Widoff, Esquire 2929 East Commercial Boulevard Suite 501 Fort Lauderdale, Florida 33308 The Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 488-3680 Phyllis Slater General Counsel Department of State The Capitol Tallahassee, Florida 32399-0250
Findings Of Fact On or about January 25, 1983, Petitioner, Bruce Hahn, submitted an application for licensure as a Class A Private Investigative Agency to the State of Florida, Department of State, Division of Hearing. Thereafter, on April 5, 1983, he submitted an amendment to the application applying as well for a Class C Private Investigator's License. The Class A License was granted. On his application Petitioner indicated he had been arrested for disorderly conduct and assault but had not been convicted of either. Records of the Circuit/County Court for Broward County, Florida, reflect that he was arrested for armed robbery, a felony, in Pompano Beach, Florida, on or about February 15, 1981, but was tried on a lesser offense of assault, a misdemeanor. Adjudication of guilt was withheld, but Petitioner was sentenced to six (6) months report probation. Based on this, Respondent, on June 17, 1983, denied Petitioner's application for a Class C License. Grounds for denial cited the time were that Petitioner has been found guilty of the commission of a crime which directly relates to the business for which the license was to be held, regardless of adjudication, and the commission of an assault except in self-defense or the defense of a client, both of which related to his February 14, 1981 arrest. According to Pan Pingree, Respondent considered the court ruling on the assault a determination of Petitioner's guilt of a criminal charge relating to the business of private investigation because in that job, he would have to be involved with the public. Respondent considers the statutory grounds for denial, as above, as a legislative fiat to consider crimes of violence in determining whether an applicant is fit to hold a license. Petitioner's offense was considered to be a crime of violence based on the assault which is specifically listed in the statutes. In addition, it was considered that the job of private investigation involves stress situations and the licensing agency must be satisfied licensees can be depended upon to react properly. In making the decision to deny, Respondent carefully considered the arresting officer's report, the court charge, and the form on which the court listed its action withholding adjudication of guilt, and sentence. Petitioner contends he tried to submit his explanatory information to Respondent by phone, but admits he did not do so in writing. He contends he was interviewed by two (2) investigators to whom he told his story, who indicated to him there was no problem. Notwithstanding Petitioner's phone call to a secretary at the Division of Licensing and his attorney's phone call to Ms. Pingree (which she does not recall), there is no evidence that Respondent considered anything other than the documents referred to above in making its decision to deny him the Class C License. In authorizing the Class A, Agency License, Respondent concluded that since Petitioner would have to have a manager who had a Class C License for the agency, this would insulate the owner (Petitioner) from the public, providing a degree of protection to the public. At the time of the offense on which the denial was based, Petitioner was working for the Broward County (Florida) Building and Zoning office. At the time of the hearing, he was employed as an investigator for the Broward County Coroner. According to the Affidavit of Experience submitted with his application, Petitioner had previously been licensed as a Private investigator under State license #1052-A, doing business as Hahn Investigative Services, in Hollywood, Florida, during 1975 through 1977. On the night of the offense, Petitioner, who had just undergone a divorce and was feeling sorry for himself, contends he was called to meet a friend of his at the lounge outside of which he was arrested. Unfortunately, he had too many drinks without eating and, on the way to his car to go home, he got sick to his stomach. He went behind a dumpster to vomit. While he was doing this, he heard steps behind him and, knowing he was in an unsavory area, he became concerned. When he turned around, he saw two (2) men behind him and said to them, "I don't want to get my ass kicked and I'm drunk. Leave me alone." At this point, he raised his hands. On cross examination, Petitioner admitted he was so drunk on the night in question he does not remember what time he went to the dumpster. He could not even find his car. Based on this admission, it is most likely he could not remember his words with such clarity and it is so found. The arresting officer's report shows that when he arrived at the scene he observed an individual who matched the Petitioner's description, standing in the parking lot with his hands raised consistent with Petitioner's story. However, based on the report of another individual present, and not upon his own observation, he arrested the petitioner, not as the victim, but as the perpetrator of the offense. Petitioner contends that at the time he owned an $85,000.00 home and drove a Cadillac Seville to indicate he had no reason to steal, and he categorically denies he had a weapon or tried to assault or rob anyone. Though no weapon was found on the Petitioner, he does own one which, at the time in question, was in his nightstand at home. He does not now nor did he then have a permit to carry it. He was not carrying his wallet at the time of his arrest because, he contends, during the evening, he knocked over a chair in the bar and broke it and the bartender kept his wallet as security for the damage. Petitioner claims he has no drinking problem now. He also contends, and there was no evidence to show otherwise, that he has no other arrest record nor was any disciplinary action taken against him at work because of this. At the time of his plea of Nolo Contendere, the court case had been set for hearing on three different occasions all of which had been cancelled. The suspense, he states, was eating him up because in his mind he had done nothing wrong. It is his testimony that when he explained all this to the judge, he said he understood and it was Hahn's attorney who advised him to enter that plea. Though he was sentenced in July to six (6) months probation, he did so well, he was released from probation the day before Thanksgiving--somewhat early. If he is granted his Class C License it is his intention to form a partnership to perform star escort service and do missing children work.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED THAT Respondent deny Petitioner's application for a Class C Private Investigator's License. RECOMMENDED This 28th day of August, 1984, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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 28th day of August, 1984. COPIES FURNISHED: The Honorable George Firestone Secretary of State Department of State The Capitol Tallahassee, Florida 32301 James V. Antista, Esquire Office of the General Counsel Department of State The Capitol Tallahassee, Florida 32301 Pam Pingree, Chief Bureau of Regulation and Enforcement Division of Licensing Department of State The Capitol Tallahassee, Florida 32301 Norman D. Zimmerman, Esquire 737 East Atlantic Boulevard Pompano Beach, Florida 33060
Findings Of Fact The primary issue presented at the hearing in this case is whether the Petitioner has the requisite experience as an investigator. From 1973 through January, 1977, the Petitioner was employed on a full-time basis with the Dade County Department of Human Resources. Although a small portion of his work with Dade County was investigative in nature, his role was primarily as a counselor or social worker. During the same time the Petitioner worked on a part-time basis with the Minorities Contractors Association. In this capacity he did credit checks and background checks on individuals who were seeking loans from the corporation. During this same period the Petitioner worked on a part-time basis with attorneys. He worked as an investigator, observing accident scenes, taking photographs, getting statements from potential witnesses, and other general investigative work. The Petitioner has worked in these part-time capacities for more than three years. The investigative work would amount to approximately 18 months of full-time experience as an investigator. The Petitioner has been arrested approximately 7 or 8 times. The most serious arrest was in 1963 for Contributing to the Delinquency of a Minor. This conviction was not reflected on the Petitioner's application. It does not appear that the Petitioner's civil rights have been taken from him, and it does appear that he has not been arrested for a period of in excess of five years. It appears that, except for his lack of experience, the Petitioner is qualified for licensure as a private investigative agency.
Findings Of Fact Petitioner, Department of State, Division of Licensing, is the licensing authority which has statutory jurisdiction over private investigative and security guard licensees. During times material, Respondent, John L. Troutner held a Class C private investigator's license and a Class "A" private investigative agency license. Respondent John Troutner is the owner of Atlas Private Investigating Agency located at 5466 Springhill Drive, Springhill, Florida. Respondent Pamela L. Troutner, during times material, held a Class "CC" private investigator's intern license and worked for her husband, Respondent John L. Troutner. Neither Respondent held Class "B" or "D" security guard licenses. During October 1988, Michael Friedman hired Atlas Private Investigating Agency (Atlas) to investigate his wife Vickie Friedman, pending their divorce proceeding. As part of their duties, Respondents provided Friedman with home security and guard services. Pam Troutner was posted at the Friedman residence and was told by Mr. Friedman to deny entrance to house guests, specifically Ms. Friedman, without his permission. John Troutner checked in at the Friedman residence on a regular basis and at times, stayed overnight. Between October 25 and November 25, 1988, Respondent employed James McCullough, an unlicensed person, to perform the services of a private investigator without a Class "C" private investigator'S license. McCullough was paid with checks drawn on the account of Atlas which referenced investigative case numbers and he was accompanied by an Atlas investigator, Tommy House, who was engaged to surveil Vickie Friedman on November 23, 1988. During times material, Vickie Friedman and her stepfather, Gerald Townsend, were employed by a local newspaper, the Sun Journal. During November 1988, John Troutner and employees of Atlas harassed Vickie Friedman while they were surveilling Ms. Friedman, by attempting to and successfully getting Mr. Townsend fired from his employment with the Sun Journal and threatened to file suit against the Sun Journal if Ms. Friedman and Mr. Townsend were not fired. Vickie Friedman had a friend who lived across the street from Respondent John Troutner, a Ms. Mary Marconi. Respondent John Troutner instigated Ms. Marconi's eviction as a means of harassment and based on her friendship with Vickie Friedman. Vickie Friedman utilized Ms. Marconi's home, which was near Respondent Troutner's residence, to store property at the Marconi home when she and her husband separated. On May 7, 1987, and May 5, 1988, Respondent John Troutner submitted to Petitioner signed applications for Class A, B, C, E and M licenses without disclosing his previous ownership of the Scuba Den and without divulging his use of an alias, John Delaney. During early 1988 and between October 25 and December 31, 1988, Respondents electronically recorded telephone conversations without the knowledge of or consent of the parties being recorded. Specifically, Respondent, John Troutner, engaged in conversations with Rick Guyette, Don West and several other unidentified people, and their conversations were electronically recorded without their knowledge or consent. Respondent Pamela Troutner engaged in a conversation with Vickie Friedman and this conversation was also recorded without Ms. Friedman's authorization or knowledge. As the owner of Atlas, John Troutner engaged his wife, Pamela Troutner to surveil the Friedman residence. Respondent knew, or should have known that his wife, Pamela Troutner was illegally recording telephone conversations without the knowledge of and consent of such persons.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondents John L. Troutner, Pamela L. Troutner and Atlas Private Investigating Agency, Inc., licenses be suspended for a period of one (1) year. DONE and ENTERED this 31st day of January, 1990, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 1990. COPIES FURNISHED: Henri C. Cawthon, Esquire Assistant General Counsel Department of State, Div. of Licensing The Capitol, Mailstation 4 Tallahassee, Florida 32399-0250 Daniel P. Rock, Esquire One East Main Street New Port Richey, Florida 34652 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 32399-0250 =================================================================
The Issue The issue presented is whether Petitioner's application for a Class "C" private investigator license should be granted.
Findings Of Fact Petitioner applied for a Class "C" private investigator license. The Department denied that application by letter dated November 24, 1993, for the reason that Petitioner had not shown that he had the two years of full-time experience or training required for licensure. As evidence of his two years of full-time experience or training, Petitioner had submitted to the Department an affidavit from attorney Mark M. Spatz of the law firm Simons and Spatz and an affidavit from attorney Lawrence S. Ben of the law firm Chikovsky and Ben. Both of those affidavits had been altered. Although Petitioner did perform some services for attorney Spatz' law firm by assisting in the investigation and preparation of some cases for trial from September of 1990 to June of 1992, he did so as an independent contractor and not as an employee. That law firm provided Petitioner with no training or equipment and exercised no control over him. Petitioner was simply given an assignment and told to complete it for a flat rate. Petitioner was not held out by the law firm to be an employee, he was not carried on any of the firm's insurance policies, no taxes were withheld from his pay check when he carried out an assignment, and Petitioner did not receive a weekly paycheck. Petitioner's contacts with that law firm were minimal and numbered less than ten. Petitioner worked as an employee at the law firm of Chikovsky and Ben. He performed both janitorial work and investigative work. The amount of his time spent working as a janitor versus the time spent working as an investigator while employed by that law firm is unknown as is the length of time he was employed there.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application for licensure as a Class "C" private investigator. DONE and ENTERED this 28th day of March, 1994, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 1994. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 94-0086S Petitioner's proposed findings of fact delineated by letters A-I have been rejected as not constituting findings of fact but rather as constituting argument, conclusions of law, or recitation of the testimony. Respondent's proposed findings of fact numbered 1-3 and 5-10 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 4 has been rejected as not being supported by the weight of the competent evidence in this cause. COPIES FURNISHED: Fenel Antoine 1019 Northwest 5th Avenue, #2 Fort Lauderdale, Florida 33311 Richard R. Whidden, Jr., Esquire Assistant General Counsel Department of State Division of Licensing The Capitol, M.S. #4 Tallahassee, Florida 32399-0250 Honorable Jim Smith Secretary of State Department 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.
Findings Of Fact Respondent, Mark P. Stanish, during times material held a Class "C" private investigator license issued pursuant to Chapter 493, Florida Statutes. During the period January, 1993 through April, 1993, Respondent advertised in local newspapers in and around Pasco County for "private investigators wanted". At least nine individuals responded to the advertisement placed by Respondent and appeared at meetings and seminars in Pasco County and were told by Respondent that, for a fee, his agency would train and license them and refer investigative cases to them subject to an independent contractor's agreement. At least three individuals paid Respondent $2,000 for training and the promise of being set up in a branch office with enough investigative work to earn $40,000 annually. After paying Respondent $3,000, Michael Straniere was given office space in Spring Hill, Florida and told to recruit as many investigators as possible. Straniere never received any investigative cases from Respondent or as a result of advertising in the local newspaper. Straniere received no training other than the sales pitch by Respondent to recruit as many investigators as possible, and that was the manner in which he could earn the salary that he was promised ($40,000 per annum). Ted Nizza was also made a similar solicitation by Respondent; however upon reflection, Nizza declined the solicitation when Respondent became defensive when Nizza suggested that it sounded like a pyramid scheme. Nizza, a former law enforcement officer in New York, did some background checks on Respondent's operations and learned that Respondent had no investigative work available, and that the manner in which monies would be earned, in the main, consisted of bringing in recruits and receiving a fee for each recruit selected, which recruits would pay a substantial fee ($1,000 or more) to be trained and licensed. In soliciting recruits, Respondent sought $1,995 for training or $3,000 for a management position. Respondent had no contracts for private investigative work during times material. At least four individuals gave Respondent down payments and deposits toward training, licensing and sponsorship for private investigative intern licenses. These deposits were in varying amounts from upwards of $200 to $1,000. Although seven recruits paid Respondent a fee to receive training to become licensed, only Straniere's license application was submitted to Petitioner for processing. In soliciting branch managers, Respondent told Nizza that the over- recruitment of private investigators and interns would not be problematic as there was a high turnover in the private investigation industry. During times material, neither Michael Straniere, Ted Steven Triola, Harry H. Orta, Robby L. Keen, Dorcas L. Stafford, Curtis J. Huff, or Joel Smith received any private investigative work from Respondent or through advertisements nor were they refunded any of the monies paid to Respondent. (proffered testimony) /2
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner enter a final order revoking Respondent's Class "C" private investigator license. RECOMMENDED in Tallahassee, Leon County, Florida, this 2nd day of May, 1994. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of May, 1994.
Findings Of Fact Since 1972, petitioner Dennis F. Darnell has been in the tow truck business. He owns and operates one such truck. In addition to towing disabled cars to garages, petitioner has had five years' experience in locating and repossessing all types of vehicles. Typically, a financial institution would engage him to retrieve an automobile from a borrower in default, after telephoning the borrower that a tow truck was coming. In such cases, the lender furnished petitioner a "route sheet" with the name and address of the borrower and a description of the car. At one time or another, petitioner has worked in this way for every bank in Marion County. Petitioner has also been hired by private investigators to tow away vehicles the investigators had already tracked down. Occasionally, petitioner himself has used information obtained from utility companies, the courthouse and the post office to locate vehicles for repossession. In the winter of 1979, Mr. Reister, an employee of the respondent, told petitioner that petitioner needed a license in order to continue to do the work he had been doing for the banks. This was the first petitioner had heard of any such requirement. He agreed to stop working for the banks until he obtained a license and asked Mr. Reister to send him application forms. One week after he received the forms, petitioner submitted the completed forms to respondent. From the time he spoke to Mr. Reister until the time of the hearing, petitioner did not tow any repossessed cars for banks. On receiving respondent's letter of disapproval, petitioner retained counsel who requested a formal administrative hearing. Respondent referred petitioner's counsel's request for an administrative hearing to the Division of Administrative Hearings.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent grant petitioner's application for private investigative agency license, DONE and ENTERED this 4th day of February, 1980, in Tallahassee, Florida. ROBERT T. BENTON, II 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 4th day of February, 1980. COPIES FURNISHED: Daniel L. Hightower, Esquire 116 South East Fort King Street Ocala, Florida 32670 William J. Gladwin, Jr., Esquire Department of State Room 1801, The Capitol Tallahassee, Florida 32301
