02-004241 Department Of Agriculture And Consumer Services, Division Of Licensing vs. International Investigators, Inc. And Jorge L. Baro Status: Closed Recommended Order on Tuesday, May 6, 2003.

Summary: Respondent`s violation of a Final Order warrants revocation of licenses.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE AND )

CONSUMER SERVICES, DIVISION OF )

LICENSING, )

)

Petitioner, )

)

vs. ) Case No. 02 - 4241

)

INTERNATIONAL INVESTIGATORS, )

INC. AND JORGE L. BARO, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted on

March 17, 2003, by video teleconference at sites in West Palm

Beach and Tallahassee, Florida by Florence Snyder Rivas, the

duly - app ointed Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Steve Bensko, Esquire

Department of Agriculture and

Consumer Services

Division of Licensing

Post Office Box 6687

Tallahassee, Florida 32314

For Respondent: Thomas V. Close, Esquire

Lake Wellington Professional Centre

12230 Forest Hill Bou levard, Suite 122

. Wellington, Florida 33414 - 5799

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 .

PRELIMINARY STATEMENT

By Third Amended Administrative Complaint dated August 28,

2002, Petitioner, Department of Agriculture and Consumer

Services, Division of Licensing (Petitioner) charged Respondent,

International Investigations, Inc., Jorge L. Baro, Owner,

(Respondent or Baro) with violating provisions of Chapter 493 of

the Florida Statutes. Respondent timely requested a formal

hearing.

At the hearing, Petitioner presented the testimony of

Andrew Gluck, Fredrick W. Rustmann, Jorge Baro, and John A.

Perret - Gentil. Petitioner’s Exhibits numbered 1, 2, 4, 7, 8,

9, 11, 12, 14, and 16 were received into evidence. The

Respondent testified on his own behalf but presented no

exhibits.

A transcript of the hearing was filed on April 7, 2003.

Following the hearing, an appearance of counsel was entered on

behalf of Respondent, and the parties requested an enlargement

of time to April 25, 2003, to file proposed recommended orders,

which motion was granted. The proposed recommended orders

have been carefully considered.

FINDINGS OF FACT

1. 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.

2. By Final Order dated January 22, 2002 (Fin al 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

lice nse 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.

3. Baro subsequently violated the Final Order by

advertising h is availability to serve as a private investigator

in Palm Beach County, Florida, without first obtaining the

requisite licensure.

4. On or about January 14, 2002, in Palm Beach County,

Florida, Respondent subcontracted investigative work to CTC

Internat ional Group, a licensed Florida investigative agency. At

that time, Baro did not have a Florida private investigative

agency license.

5. In July, 2001, in Palm Beach County, Florida, Baro was

working for Mrs. William LeNeve, who was embroiled in a

conten tious 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.

6 . 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 t he 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

motiva tion is a personal vendetta. I would very much like the

opportunity to prove that."

7. 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.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has jurisdiction

over the parties and subject matter of this cause pursuant to

Section s 120.569 and 120.57(1), Florida Statutes.

9. It is Petitioner's burden to prove the violations alleged

by clear and convincing evidence. Dept. of Banking and Finance v.

Osborne Stern , 670 So. 2d 932 (Fla. 1996), Pic n’ Save Central

Florida, Inc. v. Dept . of Business Regulation, Div. of Alcoholic

Beverages & Tobacco , 601 So. 2d 245 at 249 (Fla. 1st DCA 1992),

Ferris v. Turlington , 510 So. 2d 292 at 294 (Fla. 1987).

10. Florida law defines "private investigative agency" as

“any person who, for considerati on, advertises as providing or is

engaged in the business of furnishing private investigations.”

Section 493.6101(15), Florida Statutes.

11. "[A]dvertising means the submission of bids,

contracting, or making known by any public notice or solicitation

of business, directly or indirectly, that services regulated under

this chapter are available for consideration." Section

493.6101(6), Florida Statutes.

12. Section 493.6201(1), Florida Statutes, requires that

“[a]ny person, firm, company, partnership, or corporation which

engages in business as a private investigative agency shall have a

Class A license.”

13. Pursuant to Section 493.6118(2), Florida Statutes,

Petitioner has authority to impose disciplinary sanctions against

a licensee or unlicensed pers on, upon determination that a

licensee or unlicensed person has violated any of the provisions

of Section 493.6118(1), Florida Statutes.

14. Section 493.6118(1), Florida Statutes, provides, in

pertinent part that:

(1) The following constitute grounds fo r

which disciplinary action specified in

subsection (2) may be taken by the department

against any licensee, agency, or applicant

regulated by this chapter, or any unlicensed

person engaged in activities regulated under

this chapter.

* * *

(f) Proof t hat the licensee is guilty of

fraud or deceit, or of negligence,

incompetency, or misconduct, in the practice

of the activities regulated under this

chapter.

* * *

(g) Conducting activities regulated under

this chapter without a license or with a

revoked or suspended license.

* * *

(k) Knowingly violating, advising,

encouraging, or assisting the violation of

any statute, court order, capias, warrant,

injunction, or cease and desist order, in

the course of business regulated under this

ch apter.

* * *

(t) Violating any provision of this chapter.

* * *

15. The evidence in this case is clear and convincing that

Respondent advertised private investigative services in West Palm

Beach, Florida, at a time when he did not possess the re quisite

license and in violation of the Final Order.

16. There is also clear and convincing evidence that Baro

offered to work for his client's adversary in the LeNeve case.

This betrayal of trust, standing alone, would warrant revocation

of the licenses Baro holds.

17. Respondent has failed to demonstrate the existence of

circumstances which would warrant leniency for his decision to

sell out Mrs. LeNeve to her estranged husband. By putting his

personal interests -- in this case his "despera[tion] for mo ney"

ahead of Mrs. LeNeve's well - being, Baro demonstrated that he lacks

the requisite fitness and trustworthiness to perform investigative

services. Specifically, his conduct amounted to fraud, deceit,

and misconduct while performing the duties of a priva te

investigator.

18. Petitioner also contends that Respondent's action in

subcontracting investigative work without himself possessing a

private investigative agency license provides an independent basis

to revoke Baro's licenses. In support of this argu ment,

Petitioner relies upon a "legal policy" in effect since 1993 and

more fully set forth in Division Legal Opinion number 93 - 37.

Petitioner has cited no authority for the proposition that a legal

opinion rendered by agency counsel carries the force of statute or

rule; therefore, Petitioner has failed to demonstrate by clear and

convincing evidence that discipline should be imposed upon

Respondent for subcontracting with CTC International Group.

19. Section 493.6118(2), Florida Statutes, provides, in

p ertinent part:

(2) When the department finds any violation

of subsection (1), it may do one or more of

the following:

* * *

(a) Deny an application for the issuance or

renewal of a license.

* * *

(b) Issue a reprimand.

* * *

(c) Impose a n administrative fine not to

exceed $1,000 for every count or separate

offense.

* * *

(d) Place the licensee on probation for a

period of time and subject to such conditions

as the department may specify.

* * *

(e) Suspend or revoke a license.

* * *

20. Pursuant to Rule 5N - 1.113(1)(o), Florida Administrative

Code, Petitioner's guideline penalty for an agency’s violation of

Section 493.6118(1)(g), Florida Statutes, for conducting or

advertising the business of an agency without a valid lice nse

ranges from an administrative fine of $250 to $750 to revocation

or denial of license. 1

21. Pursuant to Rule 5N - 1.113(1)(u), Florida Administrative

Code, the Petitioner's guideline penalty for a violation of

Section 493.6118(1)(k), Florida Statutes, f or violation of a cease

and desist order ranges from an administrative fine of $500 -

$1,000 to revocation or denial of license.

22. No guideline penalty exists for the violation of Section

493.6118(1)(f) which Baro committed when he offered to disclose

Mrs. LeNeve's whereabouts to her estranged husband.

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

Respon dent 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 DeSot o 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.

ENDNOTE

1/ Ef fective January 3, 2003, rule chapter 1C - 3, Florida

Administrative Code, was transferred to the rule chapter 5N - 1.

COPIES FURNISHED :

Steve Bensko, Esquire

Department of Agriculture and

Consumer Services

Division of Licensing

Post Office Box 6687

Talla hassee, Florida 32314

Thomas V. Close, Esquire

Lake Wellington Professional Centre

12230 Forest Hill Boulevard, Suite 122

Wellington, Florida 33414 - 5799

Honorable Glenda E. Hood

Secretary of State

Department of State

R. A. Gray Building

500 South Brono ugh Street

Tallahassee, Florida 32399 - 0250

Deborah K. Kearney, General Counsel

Department of State

The Capitol, Lower Level 10

Tallahassee, Florida 32399 - 0250

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exception s within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.