STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID PAUL REID, )

)

Petitioner, )

)

vs. ) CASE NO. 78-445

)

DEPARTMENT OF INSURANCE, )

STATE OF FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above captioned matter, after due notice, at Fort Lauderdale, Florida, on April 6, 1978, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: Anthony J. Titone, Esquire

6200 West Sunrise Boulevard, Suite

205

Sunrise, Florida 33313

For Respondent: Thomas A. T. Taylor, Esquire

Department of Insurance 428-A Larson Building

Tallahassee, Florida 32304

ISSUE PRESENTED

Whether Petitioner should be granted a license as a bail bondsman pursuant to Chapter 648, Florida Statutes.

FINDINGS OF FACT

1. In October 1977, Petitioner made application to the Respondent to take an examination for licensing as a limited surety agent. The application reflected that he would represent the Allied Fidelity Insurance Company

   through Hoskins Bonding Agency, Miami, Florida. It also listed his current employment as a property specialist with the City of Miami Police Department. By letter of November 15, 1977, Petitioner was informed by Respondent's Bureau of Licensing that "Upon your qualifying to hold a limited surety agent's license and before such license can be issued, we will need a copy of your letter of resignation from the City of Miami Police Department." Petitioner's legal counsel then advised the Bureau of Licensing by letter of November 22, 1977 that Petitioner did not feel that he should have to resign his position with the Miami Police Department in order to qualify for licensing because his job had nothing to do with the custody and control of prisoners. On December 15, 1977, Respondent's legal counsel, Thomas Taylor, reaffirmed that Petitioner would have to resign from his employment before he could qualify as a bail bondsman because his current duties fell within the prohibitions of subsection 648.44(3 ), Florida Statutes. Petitioner's counsel protested this decision and submitted an affidavit of the Petitioner describing his duties with the police department, but by letter of January 18, 1978, Respondent's Chief of the Bureau of Licensing stated that Petitioner did not qualify for bail bond license under Section 648.44, F.S., "as noted in Mr.

   Taylor's letter." Petitioner thereupon requested an administrative hearing. (Composite Exhibit 2 )

   
   

2. Petitioner performs duties as a police property custodian with the title Police Property Specialist I. Although this is a civil service position and Petitioner is not a police officer, he wears a uniform during his duty hours of 2:00 P.M.. to 10:00 P.M.. His primary function involves the receipt of evidence from police officers and retaining custody thereof pending final disposition of charges. Additionally, he receives and accounts for impounded motor vehicles which have come into the custody of the police department. His duties do not bring him into personal contact with municipal prisoners except on occasions when they reclaim personal belongings or other items of evidence after conclusion of criminal cases. The police property office is located on a different floor of the headquarters building than that where prisoners are held. Petitioner has free access to all items of physical evidence turned over to his office with the exception of narcotics, weapons, and cash, which are contained in safes to which only police officers or supervisors have access. though Petitioner could be called upon to testify in court

   as to the history and identity of items of physical evidence, he has never done so in the past. (Testimony of Petitioner, Kramer, Exhibits 4-5 )

   
   

3. Petitioner testified that, if licensed as a limited surety agent, he intends to act in that capacity and retain his city position for a period of about a year at which time he would resign his employment with the city. During that time, he intends to "bond out" prisoners only during his off-duty hours and would not wear his uniform while so engaged. He further maintains that there would be no conflict in such dual employment because he would not accept business except through the Hoskins Bonding Agency. If he had to produce a client in court during his workshift as an evidence custodian, he would utilize accrued leave for such purposes. (Testimony of Petitioner )

   
   

4. Respondent's Bureau of Licensing determined that Petitioner is disqualified from obtaining a bail bondsman's license while still employed by the police department because his job as an evidence custodian places him in indirect control of municipal prisoners in violation of subsection 648.44(3 )(e ) , F.S. The Miami Police Department personnel officer testified that a property custodian such as Petitioner is in a position to tamper with evidence, but has no direct or indirect physical control of prisoners. He further testified that any member of the police department needs the approval of the City Manager prior to obtaining any outside employment. (Testimony of Stuart, Kramer )

   
   

   CONCLUSIONS OF LAW

   
   

5. The following statutory provisions deal with the issuance of licenses under Chapter 648, Florida Statutes:

   
   

   648.27 Licenses; general.--

   (1 ) No license shall be issued except in compliance with this chapter and none shall be issued except to an individual . . .

   (2 ) For the protection of the people of this state, the department shall not issue

   . . . any license except in compliance with this chapter. The department shall not issue . . . any license except in

   compliance with this chapter. The department shall not issue . . . a license for

   any individual who has not established to the satisfaction of the department that he is qualified there for in accordance with this chapter.

   (4 ) If . . . the department deems the applicant . . . lacking in one or more of the required qualifications for the license, the department shall disapprove the application and notify the applicant thereof, stating the grounds for disapproval.

   
   

6. The qualifications for a bail bondsman are set forth in Section 648.34, F.S., with respect to age, residence, educational requirements, character references and the like. Such qualifications must be met prior to approval of an application by Respondent which then authorizes an applicant to take a written examination. Successful completion of the examination is the final hurdle prior to issuance of a license. Although Petitioner has not met all of the statutory requirements as yet, such as completion of a required course of instruction as specified in Section 648.34, there is no dispute that he can meet such requirements if it is determined that his application should be further processed despite the fact that he wishes to retain his employment as a civil service police property specialist with the City of Miami Police Department. Respondent's stated objection and basis for initial denial of the application is predicated upon Section 648.44(3 ) which reads as follows:

   
   

   648.44 Prohibitions.--

   (3 ) The following persons or classes shall not be bail bondsmen or runners and shall not

   directly execution

   
   

   federal,

   or indirectly receive any benefits from the of any bail bond:

   (a ) Jailers.

   (b ) Police officers.

   (c ) Committing magistrates.

   (d ) Sheriffs and deputy sheriffs.

   (e ) Any person having the power to arrest or having any thing to do with the control of

   
   

   state, county or municipal prisoners.

7. At the hearing, Respondent raised various questions concerning the potential dangers which could arise should Petitioner function as a bail bondsman while continuing his employment with the city police department. These include the solicitation of business in or about any place where prisoners are confined and paying fees or rebates to jailers, policemen, and others with regard to bail bonds. Although certainly such problems might arise in Petitioner's situation since he would be privy to details concerning arrests and be in a position to have friends in the department conceivably "steer" business his way, Petitioner denied that he would engage in any such wrongdoing and there is no reason to believe that he would if licensed. Further, such prohibitions relate to one already licensed and cannot be made the basis for speculation when determining qualifications for licensing. Aside from the foregoing, Respondent has pinned its application denial specifically on disqualification under Section 648.44(3 )(e ) , which disqualifies an applicant if he is "Any person . . . having anything to do with the control of . . . municipal prisoners. Although it is clear from the evidence that Petitioner's duties do not bring him into any sort of direct "control" over prisoners, Respondent maintains that he exercises indirect control by virtue of his access to real evidence and by the fact that he may be called upon to testify in a particular criminal case concerning evidentiary items. In such ways, Respondent contends, Petitioner could influence the outcome of a trial and thus be a person "having anything to do with the control" of prisoners. Although the criteria for disqualification in Section 648.44(3 )(e ) is broad indeed, it would require an unduly strained interpretation of that provision to relate to Petitioner's duties. The evidence shows that he has nothing to do with prisoners, let alone their control. Accordingly, it is concluded that Petitioner is not disqualified from licensing by virtue of that statutory provision.

   
   

8. It is undoubtedly true that Petitioner's employment with the police department and his activities as a bail bondsman would combine to create a serious potential for a conflict of interest situation. However the existence of such a situation is not a specific disqualifying factor under Chapter 648 for licensing. It may well be that municipal law or policy prohibits such a practice, or that consideration should be given to statutory amendment to reach such a situation, but under

Chapter 648, Petitioner is not disqualified solely by virtue of retaining his city employment.

RECOMMENDATION

It is recommended that Petitioner's application be approved by Respondent if he meets the qualifying requirements set forth in Section 648.34, F.S., and successfully completes the examination for licensing as a limited surety agent.

DONE and ENTERED this 1st day of May, 1978, in Tallahassee, Florida.

THOMAS C. OLDHAM

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904 ) 488-9675

COPIES FURNISHED:

Thomas A. T. Taylor, Esquire Department of Insurance

428-A Larson Building Tallahassee, Florida 32304

Anthony J. Titone, Esquire 6200 West Sunrise Boulevard Suite 205

Sunrise, Florida 33313

Docket for Case No: 78-000445

Orders for Case No: 78-000445