The Issue Case No. 97-3049 Did Respondent conduct business as a private investigative agency during the period of January 1, 1997, through April 7, 1997, without a Class “A” Private Investigative Agency License in violation of Section 493.6118(1)(g), Florida Statutes? Did Respondent perform the services of a private investigator during the period of January 1, 1997 through April 7, 1997, without a Class “C” Private Investigator License in violation of Section 493.6118(1)(g), Florida Statutes? Case No. 97-3096 Did Respondent conduct business as a private investigative agency during the period of January 1, 1997, through April 7, 1997, without a Class “A” Private Investigative Agency License in violation of Section 493.6118(1)(g), Florida Statutes? Did Respondent perform the services of a private investigator during the period of January 1, 1997, through April 7, 1997, without a Class “C” Private Investigator License in violation of Section 493.6118(1)(g), Florida Statutes?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida charged with the responsibility of investigating and enforcing the provisions of Chapter 493, Florida Statutes. Case Number 97-3049 Respondent Dormal Cavilee was not licensed as a private investigator in the State of Florida and did not possess a State of Florida Class “C” Private Investigator license at any time material to this proceeding. Respondent Dormal Cavilee was not licensed as a private investigative agency in the State of Florida and did not possess a State of Florida Class “A” Private Investigative Agency license at any time material to this proceeding. During the period of January 1, 1997, to April 7, 1997, Respondent Dormal Cavilee performed private investigations, as defined in Section 493.6101(17), Florida Statutes, for Geoffrey A. Foster, attorney-at-law and for Dwight M. Wells or Deborah Wells (Wells), attorneys at law. While performing private investigations for Foster and Wells during the period of January 1, 1997 to April 7, 1997, Respondent Dormal Cavilee was under contract and was not solely and exclusively employed by Foster or by Wells. Additionally, an employer-employee relationship did not exist between Foster or Wells and Respondent Dormal Cavilee in that neither Foster nor Wells deducted federal income tax or social security tax, or furnished any health or retirement benefits to Respondent Dormal Cavilee. Case Number 97-3096 Respondent Mary Cavilee was not licensed as a private investigator in the State of Florida and did not possess a State of Florida Class “C” Private Investigator license at any time material to this proceeding. Respondent Mary Cavilee was not licensed as a private investigative agency in the State of Florida and did not possess a State of Florida Class “A” Private Investigative Agency license at any time material to this proceeding. During the period of January 1, 1997, to April 7, 1997, Respondent Mary Cavilee performed private investigations, as defined in Section 493.6101(17), Florida Statutes, for Dwight M. Wells or Deborah Wells (Wells), attorneys at law. While performing private investigations for Wells during the period January 1, 1997, to April 7, 1997, Respondent Mary Cavilee was under contract and was not solely and exclusively employed by Wells. Additionally, an employer-employee relationship did not exist between Wells and Respondent Mary Cavilee in that Wells did not deduct federal income tax or social security tax, or furnish any health or retirement benefits to Respondent Mary Cavilee. Case Numbers 97-3049 and 97-3096 A billing statement from Respondent Dormal Cavilee and Respondent Mary Cavilee dated March 1, 1997, to Dwight M. Wells, shows the date of investigation, the person performing the investigation (either Dormal Cavilee or Mary Cavilee), the amount of time involved in performing the investigation, the hourly rate and the total amount charged. The billing statement shows that the investigations are related to the defense of Grady Wilson in Case Number CF93-5094-A1XX, a criminal case in Polk County, Florida. Nothing on the billing statement indicates that it is a statement for private investigations furnished by a private investigative agency referred to as Criminal Defense Investigations. The Motion for Payment of Costs filed by Dwight M. Bell in Case Number CF93-5094-A1XX provides in pertinent part: That the following expense was incurred during the investigation, discovery process, pre-trial preparation and trial of this cause: Criminal Defense Investigations $2,500.00 Both the Order Approving Additional Funds for Investigation Costs dated March 3, 1997, and the Order Approving Motion for Payment of Costs refer to the payments as payment for investigations performed by criminal defense investigations. Neither Respondent Dormal Cavilee nor Respondent Mary Cavilee advertised as providing, or engaged in the business of furnishing private investigations, notwithstanding language in the motion and orders referred to above which was apparently referring to the type of services being performed rather than private investigations being furnished by a private investigative agency. On April 7, 1997, a Cease and Desist Order was issued to both Respondent Dormal Cavilee and Respondent Mary Cavilee. The record indicates that both Respondent Dormal Cavilee and Respondent Mary Cavilee honored the Cease and Desist Order and cease performing any private investigations other than in an employer-employee relationship with Wells. Chapter 493, Florida Statutes, did not apply to such activity. See Section 493.6102, Florida Statutes. Neither Respondent Dormal Cavilee nor Respondent Mary Cavilee attempted to “cover-up” any of their activities when questioned by the investigator for the Department. Respondents knew or should have known that their activity in regards to investigations for Foster and Wells required that they be licensed under Chapter 493, Florida Statutes. However, there appeared to be some confusion on the part of the Respondents as to whether their relationship with the defense attorneys required that they be licensed under Chapter 493, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law and review of Rule 1C-3.113, Florida Administrative Code, concerning disciplinary guidelines, range of penalties, and aggravating and mitigating circumstances, it is recommended that the Department in Case Number 97-3049 enter a final order: (a) dismissing Counts I, II, and IV of the Administrative Complaint; (b) finding Respondent Dormal Cavilee guilty of the violations charged in Count III and V of the Administrative Complaint, assess an administrative fine in the amount of $300.00 for each count for a total of $600.00. It is further recommended that the Department in Case Number 97-3096 enter a final order dismissing Counts I and III of the Administrative Complaint; and finding Respondent Mary Cavilee guilty of the violations charged in Count II of the Administrative Complaint, assess an administrative fine in the amount of $300.00. DONE AND ENTERED this 2nd day of January, 1998, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of January, 1998. COPIES FURNISHED: Hon. Sandra B. Mortham Secretary of State The Capitol Tallahassee, Florida 32399-0250 Don Bell General Counsel The Capitol, Plaza Level-02 Tallahassee, Florida 32399-0250 Kristi Reid Bronson, Esquire Department of State, Division of Licensing The Capital, Mail Station Four Tallahassee, Florida 32399-0250 Dormal Dean Cavilee 1900 Queens Terrace Southwest Winter Haven, Florida 33880 Mary Louise Cavilee 2768 Janie Trail Auburndale, Florida 33823
The Issue Whether Michael Clay Bishop, d/b/a J and M Enterprises (“Respondent”), failed to secure the payment of workers’ compensation insurance coverage for its employees; and, if so, whether the Department of Financial Services, Division of Workers’ Compensation (“Petitioner” or “Department”), correctly calculated the penalty to be assessed against Respondent.
Findings Of Fact The Department is the state agency charged with enforcing the requirement of chapter 440, Florida Statutes, that employers in Florida secure workers’ compensation coverage for their employees. § 440.107(3), Fla. Stat. Respondent purports to be a “Private Common Law Non- Associated Unincorporated Business Trust Organization,” or “UBTO,” engaged in business in Florida.2/ Michael Clay Bishop is one of Respondent’s trustees. The nature of Respondent’s business was a disputed issue at the final hearing. Mr. Bishop testified that he performed handyman services, such as cleaning, yardwork, removal of old furniture, and repair of flood-damaged properties. The record contains Respondent’s business card, which Mr. Bishop provided to the Department’s Compliance Investigator, Carl Woodall, on January 31, 2017. The business card reads, “J & M Enterprises,” and advertises as follows: Quality repairs, restoration and remodels; paint interior/exterior, flooring, fencing, decks, crown molding, concrete. BIG OR SMALL WE DO IT ALL! The business card indicates the business is “Insured” and has “references available.” Mr. Bishop did not dispute that the business card belonged to Respondent, or that it accurately represented the services provided by Respondent. Respondent accepts monetary payments for work performed by check made out to J and M Enterprises.3/ Respondent maintains a business checking account in the name of J and M Enterprises to which Respondent deposits payments for services performed by Respondent. On January 31, 2017, Mr. Woodall encountered Mr. Bishop at a residence undergoing remodeling at 8623 Lagoon Drive in Panama City Beach. Mr. Woodall observed Mr. Bishop engaged in the act of filling cracks in a bar area of the residence with putty, presumably to prepare the surface for painting. Mr. Bishop testified that he was “cleaning some caulking that wasn’t done very well.” Mr. Bishop objected to characterization of his work as painting, or preparing the surface for painting. However, Mr. Bishop admitted that he was hired by Chris Roberts of Rainbow International as a subcontractor on the remodel. Mr. Woodall testified that he spoke with Chris Roberts on the date in question, who informed him that Mr. Bishop was hired to perform painting services on the remodel, and that he was compensating J and M Enterprises at the rate of $20 per hour for the painting services. Mr. Woodall’s notes, made on his Field Interview Worksheet, corroborate his testimony on these facts. Mr. Bishop’s testimony was neither credible nor reliable. It is inconceivable that Rainbow International hired Respondent to clean caulking at $20 per hour. The evidence supports a finding that Respondent is engaged in the business of residential painting, including preparation of surfaces for painting. It is uncontested that Respondent was not covered by workers’ compensation insurance at all times material hereto. Mr. Bishop testified that he was under a mistaken assumption that he was exempt from workers’ compensation insurance since he had no employees. However, at final hearing, he explained that he had been made aware that the requirement applies to any business in the construction industry with one or more employees. Mr. Woodall personally served Mr. Bishop with a Stop-Work Order and Request for Production of Business Records on January 31, 2017. At all times material hereto, Mr. Bishop maintained that Respondent’s business records were confidential, pursuant to the business trust agreement, and that to disclose those business records would violate his obligation to Respondent’s trustees. A document purported to be Respondent’s trust indenture was admitted in evidence as Respondent’s Exhibit R4. Article 29, Section 29.1, of the Indenture is titled, “Disclosure of Documents,” and provides as follows: NO document, record, bank account, or any other written information dealing with the internal affairs or the operations of this UBTO shall be disclosed to any third party, except upon formal written board approval of the Board of Trustees given at a regular or special meeting of the Board of Trustees as set forth above. Respondent did not comply with the Department’s request for business records, such as check stubs, bank statements, or tax returns, from which the Department could establish Respondent’s payroll for the audit period.4/ Department Penalty Auditor, Eunika Jackson, was assigned to calculate the penalty to be assessed against Respondent. Pursuant to section 440.107(7)(d), Florida Statutes, the Department’s audit period is the two-year period preceding the date of the Stop-Work Order. The audit period in this case is from February 1, 2015 through January 31, 2017. Respondent provided no evidence that Respondent was not engaged in business at any time during the audit period. Respondent’s trust indenture is dated January 19, 2012. Because Respondent provided no business records from which the Department could establish Respondent’s payroll for the audit period, Ms. Jackson imputed Respondent’s payroll, pursuant to section 440.112(2). Based upon Mr. Woodall’s observations of the work being performed at the jobsite, Ms. Jackson determined that the type of construction work performed was painting. Ms. Jackson consulted the Scopes Manual published by the National Council on Compensation Insurance (NCCI) and utilized classification code 5474, the general painting classification, for purposes of calculating the penalty. Ms. Jackson then applied the corresponding approved manual rates for classification code 5474 for the related periods of non-compliance. Ms. Jackson applied the correct approved manual rates and correctly utilized the methodology specified in section 440.107(7)(d)1. and Florida Administrative Code Rules 69L-6.027 and 69L-6.028 to determine the penalty to be imposed. Because Respondent did not provide records sufficient to determine its payroll during the audit period, Ms. Jackson correctly assigned the statewide average weekly wage (AWW) to Mr. Bishop, the only employee identified on the jobsite on the date in question. § 440.107(7)(e), Fla. Stat. Ms. Jackson likewise correctly utilized the AWW multiplied by two when applying the statutory formula for calculating the penalty to be assessed. See § 440.107(7)(d)1., Fla. Stat. On April 18, 2017, by certified mail, the Department served Respondent with an Amended Order of Penalty Assessment assessing a penalty of $30,600.44, which was fully imputed. Respondent made a payment of $1,000 to the Department which has been applied to the imputed penalty. The Department’s Penalty Calculation worksheet notes a balance due of $29,600.44.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Financial Services, Division of Workers’ Compensation, finding that Michael Clay Bishop, d/b/a J and M Enterprises, violated the workers’ compensation insurance law and assessing a penalty of $30,600.44. DONE AND ENTERED this 28th day of September, 2017, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 2017.
The Issue This is a license discipline proceeding in which the Petitioner seeks to take disciplinary action against the Respondents on the basis of allegations of misconduct set forth in an Administrative Complaint. The essence of the alleged misconduct is that the Respondents have conducted or advertised the business of a recovery agent without a valid Class "R" Recovery Agency license.
Findings Of Fact Rhonda L. Peroutka has a Class "CC" Private Investigator Intern license, Number CC99-00699, issued by the Petitioner agency. Rhonda L. Peroutka, in her capacity as President of A People Finder, Inc., holds a Class "A" Private Investigative Agency license, Number A97-00289, and a Class "ZA" Organizational Officer Position license, Number ZA97-00405, both issued by the Petitioner agency. Beginning on January 8, 1999, and continuing to the date of the final hearing in this case, the Respondents have been engaged in business activities in the State of Florida that involve the performance of repossessions for consideration. During the period of time mentioned above, the Respondents regularly and frequently entered into contracts with the Superior Bank in New Jersey to repossess motor vehicles in the State of Florida on which the Superior Bank had a lien. Pursuant to those contracts, the Respondents acted in the capacity of an independent contractor of the bank for the purpose of repossessing specific motor vehicles identified by the bank. The contracts between Superior Bank and the Respondents specifically authorized and directed the Respondent, A People Finder, Inc., to repossess a specifically described motor vehicle. Such contracts did not authorize the Respondents to forward or to subcontract the repossession authorization. Nevertheless, the regular practice of the Respondents is to subcontract the repossession work to licensed recovery agencies throughout the State of Florida. The subcontracting licensed recovery agencies perform the actual repossessions of the motor vehicles the Superior Bank seeks to have repossessed. Following a successful recovery of a motor vehicle, the subcontracting licensed recovery agencies bill the Respondents for their services. Thereupon, the Respondents advise Superior Bank of the successful recovery, and the Respondents submit a bill to Superior Bank for repossessing the motor vehicle. The Respondents do not advise Superior Bank that the actual repossession was performed by a subcontractor. The bills submitted by the Respondents to Superior Bank typically list as separate items a repossession fee, an administrative fee, and any miscellaneous costs associated with the repossession, such as the cost of making keys. Superior Bank pays the entire amount of the bill to the Respondents. When Superior Bank pays for a repossession, the entire amount of the payment is deposited into an escrow account controlled by the Respondents. Thereafter, the Respondents pay from the escrow account the amount due to the subcontracting licensed recovery agency, and they pay to A People Finder, Inc., the administrative fee that was charged to Superior Bank. The Respondents agree with the licensed recovery agencies with whom they contract to hold them "harmless from and against any and all claims, damages, losses, and actions including reasonable attorney's fees, resulting from and arising out of your efforts to collect and/or repossess. . . ." However, the Respondents do not carry insurance for the actions of a recovery agency during the course of a repossession. Neither of the Respondents has a recovery agency license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued in this case concluding that the Respondents are guilty of the violations charged and imposing the following penalties: (a) a one-year suspension of all licenses held by the Respondents; (b) an administrative fine in the amount of $1,000.00 against Respondent, A People Finder, Inc.; and (c) an administrative fine in the amount of $1,000.00 against Respondent, Rhonda L. Peroutka. DONE AND ENTERED this 16th day of December, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 1999.
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
The Issue At issue is whether Respondent committed the violations set forth in the Third Amended Administrative Complaint dated August 28, 2002, and if so, what penalty should be imposed.
Findings Of Fact At all times material to this case Respondent held a Class "C" Private Investigator License, number C87-00343, as well as a Class "E" Recovery Agent License, number E87-00046. By Final Order dated January 22, 2002 (Final Order) Petitioner determined that Respondent had conducted or advertised the business of a private investigative agency without a valid Class A license, and had performed the services of a private investigator after his Class C private investigator license had been suspended. Baro was fined for this conduct, and ordered to cease and desist from such activities until such time as he was properly licensed. Baro did not appeal the Final Order. Baro subsequently violated the Final Order by advertising his availability to serve as a private investigator in Palm Beach County, Florida, without first obtaining the requisite licensure. On or about January 14, 2002, in Palm Beach County, Florida, Respondent subcontracted investigative work to CTC International Group, a licensed Florida investigative agency. At that time, Baro did not have a Florida private investigative agency license. In July, 2001, in Palm Beach County, Florida, Baro was working for Mrs. William LeNeve, who was embroiled in a contentious divorce. Baro's services to Mrs. LeNeve included concealing her whereabouts from her husband. Desperate for money, Baro approached Mr. LeNeve and offered to switch sides and help locate Mr. LeNeve’s wife and children for a price to be agreed upon. By way of defense, Baro contends that Petitioner is conducting a "vendetta" because, "[O]pposing Counsel did not appreciate my telling him years ago that I thought what they did to me then amounted to nothing short of extortion." See Baro's letter to the Division of Administrative Hearings, dated April 8, 2003. In a letter to the Division of Administrative Hearings, dated March 14, 2002, Baro asserted, "I know that we can clearly show that the states(sic)case is unjust and that Mr. Bensko's only motivation is a personal vendetta. I would very much like the opportunity to prove that." Baro made no attempt to back up the claim of improper motivation. To be clear, the record--both before and after Baro was represented by counsel--is completely devoid of any evidence that the Petitioner has acted improperly, or is improperly motivated with respect to Baro.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Class "C" Private Investigator License and the Class "E" Recovery Agent License, held by Respondent be revoked and that he be fined $1,500. DONE AND ENTERED this 6th day of May, 2003, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 2003.
The Issue Whether the Respondent committed the offenses set forth in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact At all times pertinent to this proceeding, Respondent held a Class "C" Private Investigator License, number C93-00868, and a Class "E" Recovery Agent License, number E93-00065. Respondent conducted a repossession of a Jaguar automobile at 565 Northwest 120 Street, Miami, Florida, on January 23, 1995. There was one other man with Respondent when he went to the subject premises to repossess the vehicle. This other man was not called as a witness in this proceeding. Wedlyne Horenstein is a twenty year old female and the stepdaughter of the owner of the Jaguar that was being repossessed. She is a resident of the household located at 565 Northwest 120 Street, Miami, Florida, and was present at that address when the repossession occurred. Ms. Horenstein testified that she was inside the house watching television when she saw two men in the driveway of the property. She testified that she went to the driveway and asked the two men what they were doing. She also testified that she asked one of the two men to provide proof that they were authorized to repossess the automobile. She testified that this man showed her a badge that was in a wallet and said, "Don't worry, I'm with Miami Police." When Ms. Horenstein saw the Respondent at the formal hearing, she could not identify him as being present when the car was repossessed. On July 27, 1995, some seven months after the repossession, Ms. Horenstein was shown two photographs. One of the two photographs, taken from the file Petitioner maintained on the Respondent, was of the Respondent. There was no description of the second photograph. Ms. Horenstein identified the photograph of the Respondent as being the person with whom she talked when the car was repossessed and as being the man who allegedly showed her a badge and represented himself to be with the Miami Police Department. 1/ Respondent admitted that he repossessed the automobile on January 23, 1995, and that he talked to Ms. Horenstein. Respondent denied that he showed Ms. Horenstein a badge or that he said he was with the Miami Police. 2/ According to Respondent, he told Ms. Horenstein that he was there to repossess the automobile for a bank and gave her a copy of the repossession order when asked for proof that they were authorized to repossess the automobile. Ms. Horenstein admitted that she was given a copy of the repossession order. Based on their demeanor and their entire testimony, it is found that Ms. Horenstein's testimony that Respondent showed her a badge and told her he was with the Miami Police Department is entitled to no more credibility than Respondent's denial of those acts.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner adopt the findings of fact and conclusions of law contained herein and DISMISSES the administrative complaint brought against Respondent. DONE AND ENTERED this 11th day of September, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 1995.
The Issue The issue for determination is whether Respondent committed violations of provision of Chapter 493, Florida Statutes, sufficient to justify the imposition of disciplinary action against Respondent's Class "A" Private Investigative Agency License; his Class "C" Private Investigator License; his Class "D" Security Officer License; his Class "G" Statewide Firearm License; and his Class "M" Private Investigative/Security Agency Manager License.
Findings Of Fact The Department of State hereby adopts and incorporates herein by reference the Findings of Fact and Conclusions of Law in the Recommended Order. WHEREFORE, based upon the foregoing, it is ORDERED that Respondent's Class "A" Private Investigative Agency License, Number A93-00352, effective October 11, 1993; his Class "C" Private Investigator License, Number C93-00189, effective March 8, 1993; his Class "D" Security Officer License, Number D93- 10584, effective July 15, 1993; his Class "G" Statewide Firearm License, Number G93-01 133; effective May 24,1993, and his Class "M" Private Investigative/Security Agency Manager License, Number M93-00074, effective July 15, 1993, are hereby REVOKED. It is further ORDERED based on a complete review of the record and in accordance with the Hearing Officer's Conclusion of Law Number 27 and the Hearing Officer's finding of aggravating circumstances pursuant to Rule 1 C-3. 113(5), Florida Administrative Code, that as to Count III of the Administrative Complaint, Respondent be and is hereby FINED $700.00 pursuant to Rule 1C-3.113(2)(q), Florida Administrative Code. Payment of the administrative fine shall be by cashier's check or money order payable to the Department of Stated Division of Licensing within thirty (30) days.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of allegations contained in Counts I, II and III of the Amended Administrative Complaint, and it is FURTHER RECOMMENDED that such final order revoke Respondent's Class "A" Private Investigative Agency License, Number A93-00352, effective October 11, 1993; his Class "C" Private Investigator License, Number C93-00189, effective March 8, 1993; his Class "D" Security Officer License, Number D93-10584, effective July 15, 1993; his Class "G" Statewide Firearm License, Number G93- 01133; and his Class "M" Private Investigative/Security Agency Manager License, Number M93-00074, effective July 15, 1993. DONE and ENTERED this 26th day of April, 1996, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 26th day of April, 1996. APPENDIX The following constitutes my ruling pursuant to Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Petitioner's Proposed Findings 1.-12. Accepted in substance, though not verbatim. 13. Incorporated by reference. 14.-17. Accepted in substance. 18.-19. Incorporated by reference. 20.-23. Rejected, unnecessary to result. 24.-38. Accepted in substance, though not verbatim. 39. Rejected, unnecessary to result. 40.-42. Incorporated by reference. Respondent's Proposed Findings 1. Accepted in substance. 2.-4. Rejected, argument. 5. Rejected, Class C license was effective in March. 6.-10. Rejected, unnecessary to result reached. 11. Incorporated by reference. 12.-15. Unnecessary to result, rejected. Rejected, hearsay. Rejected, not supported by the weight of the evidence. Accepted. Accepted. 20.-26. Rejected, subordinate to HO findings. 27. Rejected, credibility. 28.-29. Accepted. 30.-31. Rejected, credibility, not supported by weight of the evidence. 32.-38. Rejected, relevance. 39. Accepted in substance. 40.-41. Rejected, credibility. 42. Accepted in substance. 43.-46. Rejected, subordinate to HO findings. 47.-48. Accepted in substance. Rejected, subordinate, credibility. Rejected, credibility. 51.-52. Rejected, subordinate. 53.-54. Rejected, relevance, credibility. Rejected, subordinate, credibility. Rejected, subordinate to HO findings. Rejected, subordinate, relevance, credibility. 58.-59. Rejected, credibility, weight of the evidence. 60.-62. Rejected, relevance, subordinate to HO findings. Rejected, credibility. Rejected, weight of the evidence. Incorporated by reference. 66.-68. Rejected, subordinate to HO findings. 70.-77. Rejected, subordinate, argumentative, legal conclusions. COPIES FURNISHED: Douglas D. Sunshine, Esquire Division of Licensing The Capitol, Mail Station 4 Tallahassee, Florida 32399-0250 Theodore E. Mack, Esquire Cobb, Cole and Bell 131 North Gadsden Street Tallahassee, Florida 32301 Sandra B. Mortham Secretary of State Department of State The Capitol Tallahassee, Florida 32399-0250 Don Bell General Counsel Department of State The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0250
The Issue Whether or not Petitioner satisfies the "experience or training" requirement to obtain a Class "C" private investigator's license.
Findings Of Fact On May 22, 1989, Petitioner filed an application for a Class "C" private investigator's license. Included in that application, Petitioner related that he was employed by Austin Private Security Specialists of Austin, Texas as a security officer-undercover investigator during the period from September, 1985 until July, 1987. During his employment with Austin private Security Specialists (Austin), approximately 60% of Petitioner's job duties included investigative work and the remaining 40% was in security related work. Respondent did not credit Petitioner's investigative experience which he claims based on his employment at Austin; however, he was credited with nine months security experience based on his employment at Austin. Respondent' denied Petitioner's claim for investigative experience in Texas based on its determination that Petitioner was not in compliance with Texas regulations while he was employed at Austin. Petitioner also claimed experience for employment with Wackenhut Company of Tampa during the period February 28, 1989 through July 28, 1989. At Wackenhut, Respondent was employed as a private investigator intern. At Wackenhut, Petitioner worked under the sponsorship of Robert Crane, private investigator and successfully completed his work for Wackenhut during Crane's sponsorship. Petitioner was credited with five months investigative experience for his employment at Wackenhut. A review of Petitioner's relevant personnel records from Texas indicates that Petitioner was registered as a commissioned security guard from October 29, 1985 until September 4, 1986. Petitioner was registered as being employed in security sales from September 4, 1986 until September 30, 1987. Petitioner was never registered as an investigator with Austin or any other Texas company. In Texas, to properly perform investigative work, an applicant, as Petitioner, must either hold a private investigator's license or be registered under a qualifying company's license as doing investigative work for the company to be in compliance with state regulations. Section 35 of Texas article 4413(29 dd) and Sections 35 and 36A, Rules and Regulations of the Texas Board of Private Investigators. Petitioner was not otherwise exempt from licensure in Texas as he failed to demonstrate that he was employed exclusively as an undercover agent during the period for which he claims experience based on his Texas employment. Respondent has a written policy of not crediting experience or training without required licensure or registration as it is difficult to verify such experience without licensure and it is practically impossible to determine whether the applicant has complied with applicable law.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Respondent enter a final order denying Petitioner's application for a class "C" private investigator's license. DONE and ENTERED this 2nd day of March, 1990, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 1990. COPIES FURNISHED: Carrol D. Roberson 1714 Old Village Way Oldsmar, FL 34677 Henry D. Cawthon, Esquire Assistant General Counsel Department of State The Capitol, Mailstation #4 Tallahassee, FL 32399-0250 Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Ken Rouse, Esquire General Counsel Department of State The Capitol, LL-10 Tallahassee, Florida 32399
Findings Of Fact At all times relevant hereto, Respondent held a Class "C" Private Investigator's License Number C90-00727 and a Class "G" Statewide Firearms License, Number G90-02226. In April 1991 Respondent taught a Saturday morning class, the third or fourth week of that month, in which Beatrice Price and Ryan Martin were trainees. At the conclusion of the lecture Respondent took the two trainees on a "real" investigation. The subject of the investigation was a dentist, Dr. Kathleen Gerreaux, under surveillance on either a worker's compensation claim or a liability claim (conflict in the testimony and the type of surveillance is not relevant). Respondent placed a microphone under the blouse of Beatrice Price a/k/a Beatrix Herrera and had her go to the office of Dr. Gerreaux to try and learn in what activities she was engaging. The conversation was recorded in Respondent's van parked some distance away. When Herrera returned to the van the tape was replayed in her presence and the words of the investigator and Dr. Gerreaux could be clearly understood. Shortly thereafter Dr. Gerreaux left her office and returned to her home. Respondent took the van to the vicinity of the residence, parked several houses away and rigged Ryan Martin with a microphone under his shirt and had him go to Dr. Gerreaux's home to attempt to get her to go jogging or perform some other exercise which could be videotaped. Herrera overheard the conversation between Martin and Dr. Gerreaux while waiting in the van. This incident was not reported to Petitioner until several months later after Herrera had contacted plaintiff's investigator to complain about an incident which she was told she had been taped without her knowledge or consent. When told that her evidence was insufficient to support her claim Herrera told the investigator about the taping of the conversation with Dr. Gerreaux. This initiated the investigation which led to the Administrative Complaint filed herein. After talking to Herrera and Martin the investigator also interviewed Respondent regarding the taping incident. Respondent admitted to the investigator that he had used Herrera and Martin to intercept the conversations with Dr. Gerreaux, but said the tapes were unintelligible. Respondent's version of this incident was similar to the testimony given at the hearing by Herrera except for the clarity of the taped conversation.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That a final order be entered finding David J. Berry guilty of violating section 493.6118(1)(f), F.S. and that an Administrative fine of $1000 be imposed. DONE AND RECOMMENDED this 2nd day of November, 1993, in Tallahassee, Leon County, Florida. K. N. AYERS 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 November, 1993. COPIES FURNISHED: Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater, General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250 Henri C. Cawthon Assistant General Counsel Department of State Division of Licensing The Capitol, Mail Station #4 Tallahassee, Florida 32399-0250 Ronald L. Jones, Esquire 1020 East Lafayette Street, Suite 108 Tallahassee, Florida 32301
Findings Of Fact On June 22, 1987, Petitioner submitted to Respondent an application for a Class "C" private investigator license. After review of the application and verification of the previous work experience listed in it, Respondent determined the work experience did not meet the statutory requirement of section 493.306 (4), Florida Statutes, that an applicant for the Class "C" license have two years training or experience in private investigative work or related work areas providing equivalent experience. The Respondent denied Petitioner's application on October 5, 1987. The Petitioner is presently employed as a process server. He was employed for varying periods of time between July, 1984, and May of 1987, by four law firms. In the course of this employment, Petitioner sometimes assisted lawyers and witnesses prepare for trial by retrieval of information from records within the particular firm where he was working, or from public records at various public institutions. Among the public records he is accustomed to reviewing are those of Respondent's Division of Corporations. On one occasion, he did, pursuant to instructions from his employer, search through a garage in Tampa, Florida, for certain records. In the course of his work experience, Petitioner has never conducted any kind of surveillance, located a missing person, or investigated a homicide or arson case. He has never testified at a trial or conducted an electronic "debugging" or "bugging" exercise. The Petitioner completed a short prescribed program at the Miami-Dade Community College in August of 1979, and was awarded a "planned certificate" as a legal assistant. To obtain this certificate, he completed various courses at the college during the period stretching from January, 1976, until July, 1979. Among those courses completed by the Petitioner were three hour courses in legal research, business law, legal writing, domestic relations and criminal law, and legal writing. Alan Rollins, assistant director for Respondent's licensing division, testified that Respondent's policy has been to define the statutorily required licensing prerequisite of "[p]rivate investigative work or related fields of work" as a requirement that an applicant for a Class "C" license possess field investigatory experience beyond the mere review of public records. Rollins noted that even law enforcement officers could not be licensed under this policy, unless equipped with investigatory experience. He further stated that the policy is the result of Respondent's desire to be consistent with the perceived legislative intent of the statute to protect the public welfare. Harvey Morse, owner of several private investigator agencies, holder of a law degree and a practicing private investigator, testified as an expert witness for the Respondent. The testimony of Morse establishes that surveillance experience is essential to the conduct of investigations by private investigators. Since the purpose of licensing private investigators is to protect the interest of the public in obtaining competent services from persons holding themselves out as private investigators, the legal research experience and education of the Respondent is not, standing alone, an adequate substitute for the statutory requirement of experience in the areas of "[p]rivate investigative work or related fields of work". Morse, who also serves as chairman of the advisory council which advises the Respondent on licensing of this profession, opined that the Petitioner was qualified only to obtain information from public records. Experience in a related field of work should involve surveillance. Such experience could be obtained by the Petitioner through first obtaining a Class "CC" license and working as an intern to a licensed investigator.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying the Petitioner's application for licensure. DONE AND RECOMMENDED this 21st day of June, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 21st day of June, 1988. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. RESPONDENT'S PROPOSED FINDINGS: Included in finding 1. Included in finding 2. Unnecessary to result reached. Included in finding 1. 5.-14. Unnecessary to result reached. 15. Included in finding 5. 16.-19. Included in finding 6. Included in finding 3. Unnecessary to result reached. Included in finding 2. COPIES FURNISHED: R. Timothy Jansen, Esquire Department of State The Capitol, Mail Station #4 Tallahassee, FL, 32399-0250 Mr. Martin Broyles 985 N.E. 149th Street Miami, Florida 33161 Ken Rouse, Esquire General Counsel Department of State 1801 The Capitol Tallahassee, Florida 32399-0250 Hon. Jim Smith Secretary of State Department of State The Capitol Tallahassee, Florida 32399-0250
