STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OFFICE OF TREASURE, )

INSURANCE COMMISSIONER, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1099

)

ALTON LYNN GILLEN, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Ft. Pierce, Florida, on July 30, 1982, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. The parties were represented by:

APPEARANCES

For Petitioner: David A. Yon, Esquire

Department of Insurance and Treasurer

428-A Larson Building Tallahassee, Florida 32301

For Respondent: Burton C. Conner, Esquire

207 N.W. Second Street Okeechobee, Florida 33472

This matter arose on Petitioner's Amended Administrative Complaint seeking to revoke or suspend Respondent's surety license because of his felony conviction. The parties submitted proposed findings of fact which have been incorporated herein to the extent they are relevant and consistent with the evidence.

FINDINGS OF FACT

1. The Respondent, Alton Lynn Gillen, Jr., is a licensed Surety Agent doing business in the State of Florida.

   
   

2. Respondent was charged by information, on or about December 23, 1980, in the Circuit Court of the Twentieth Judicial Circuit of the State of Florida, with a violation of the Racketeering Influenced and Corrupt Organization Act and with conspiracy to traffic in cannabis.

   
   

3. On February 5, 1981, Respondent pled nolo contendere to the charges contained in the information.

   
   

4. On May 13, 1981, an Order was entered in the Circuit Court of the Twelfth Judicial Circuit in and for Lee County, Florida, adjudicating Respondent

   guilty of a violation of the Racketeering Influenced and Corrupt Organization Act and of conspiracy to traffic in cannabis. Respondent was sentenced by the same order to state prison for a period or term of ten years.

   
   

5. Respondent, having reserved his right to appeal as a condition of the nolo contendere plea, thereafter appealed this conviction and is currently awaiting its determination.

   
   

6. Respondent, through his attorney, contacted Petitioner to ascertain whether or not he would be permitted to continue operating under his license after adjudication of guilt and while his appeal was pending. In a telephone conversation between Respondent's attorney and Onez O'Neill, Chief of Bureau of Licensing, on February 20, 1981, Respondent was advised that once the Department received formal notice of the convictions, a revocation proceeding would probably be instituted, but that his license would be reinstated upon receipt by the Department of certified copies of the information, judgment and sentence, and notice of appeal.

   
   

7. Within a few days after being adjudicated guilty (May 13, 1981), Respondent obtained certified copies of those documents, as well as certified copies of notice of appearance by the appellate attorney, motion for supersedeas bond, and the supersedeas bond. On or about May 20, 1981, Respondent personally delivered those documents to O'Neill's office with a cover letter from his attorney (R-Ex 1). Since O'Neill was not in her office that day, Respondent gave the documents to the assistant chief, Joe Crutchfield. Respondent explained the nature of the problem and the reason for the delivery of the documents. Crutchfield assured him that everything appeared to be satisfactory and that he would personally discuss the matter with O'Neill the next day.

   
   

8. On or about June 1, 1981, Petitioner caused a letter to be sent to Respondent by John Rich, a licensing specialist employed by Petitioner (R-Ex 2). This letter advised that Respondent could "continue operating as a bondsman under his current license until such time as the legal appeal process has been finalized...", subject to approval by the surety company underwriting Respondent.

   
   

9. Based on the affirmative representations of Petitioner, by telephone and by its letter of June 1, Respondent continued to write bonds and incur financial obligations as a result thereof. Respondent also continued making contributions to a "build-up fund" held in trust for his underwriter. The buildup fund is money generated out of bond premiums which is held in an escrow account for the underwriter if it becomes legally liable for an estreature of a bond written by Respondent.

   
   

10. On September 30, 1981, Petitioner renewed Respondent's license with full knowledge of his convictions (P-Ex 3).

    
    

11. On April 5, 1982, Petitioner filed its Administrative Complaint seeking to revoke Respondent's license based on his adjudication of guilt of the two criminal charges to which he pleaded on February 5, 1981.

    
    

    CONCLUSIONS OF LAW

    
    

12. Section 648.45, Florida Statutes (1979) provides in part:

    
    

    1. The department may deny, suspend, revoke or refuse to renew any license

       issued under this law, or it may suspend or revoke the eligibility of any person to hold a license under this law, for any of the following causes or for

       any violation of the laws of this state relating to bail:

       * * *

       (e) Conviction of a felony. (e.s.)

       
       

13. The above provision empowers Petitioner to revoke or suspend Respondent's surety license based on his felony conviction. However, such revocation or suspension is discretionary as indicated by use of the word "may."

    
    

14. Petitioner exercised its discretion on two previous occasions with respect to Respondent's conviction; when it permitted him to retain the license pending outcome of his appeal and when it later renewed his license.

    
    

15. Petitioner has shown no reason to reverse its previous decision on the basis of public interest or change in circumstances. Rather, Petitioner asserts that its employees were not authorized to make the representations upon which Respondent relied. Even if this argument were persuasive, it does not account for the license renewal several months after Petitioner was notified of the conviction and appeal.

RECOMMENDATION

From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a Final Order dismissing the

Administrative Complaint, subject to refiling if Respondent's appeal is denied.

DONE and ORDERED 30th day of August, 1982, in Tallahassee, Florida.

R. T. CARPENTER Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 1982.

COPIES FURNISHED:

David A. Yon, Esquire Department of Insurance and Treasurer

428-A Larson Building Tallahassee, Florida 32301

Burton C. Conner, Esquire

207 N.W. Second Street Okeechobee, Florida 33472

The Honorable Bill Gunter Insurance Commissioner

& Treasurer

Department of Insurance The Capitol

Tallahassee, Florida 32301

Docket for Case No: 82-001099

Orders for Case No: 82-001099