STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF INSURANCE AND TREASURER, )

)

Petitioner, )

)

1. ) CASE NO. 83-041

   )

   GEORGE THOMAS DARBY, )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to notice, a formal hearing was held before Marvin E. Chavis, duly designated Hearing Officer of the Division of Administrative Hearings on May 20, 1983, in Marianna, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: Clark R. Jennings, Esquire

   Department of Insurance Suite 413-B Larson Building Tallahassee, Florida 32301

   
   

   For Respondent: Clyde M. Taylor, Jr., Esquire

   1105 Hays Street

   Tallahassee, Florida 32301 ISSUES AND BACKGROUND

   This case concerns the issue of whether Respondent's license as an ordinary-combination life, including disability agent and professional bail bondsman and limited surety agent should be suspended, revoked, or otherwise disciplined for having been convicted of a felony. The administrative complaint filed on November 10, 1982, sought to suspend, revoke, or otherwise discipline the Respondent's license as an ordinary-combination life, including disability agent and professional bondsman. Inasmuch as the Respondent's license as an

   ordinary-combination life, including disability agent expired on March 30, 1981, the Petitioner, prior to the taking of evidence in the formal hearing, voluntarily dismissed allegations IIIA and IIIB of the administrative complaint. Although no express reference was made in the administrative complaint to Respondent's license as a limited surety agent, it was stipulated at the formal hearing that the administrative complaint be amended to include Respondent's license as a limited surety agent in the action.

   
   

   At the hearing, the Petitioner called no witnesses and offered and had admitted three exhibits. The Respondent testified on his own behalf and offered and had received into evidence two exhibits. Counsel for the Petitioner has filed proposed findings of fact and conclusions of law for consideration by the undersigned Hearing officer. To the extent that those proposed findings of fact

   and conclusions of law are not adopted in this order, they were considered and determined to be irrelevant to the issues in this cause or not supported by the evidence.

   
   

   FINDINGS OF FACT

   
   

   1. Respondent, George Thomas Darby, at all times relevant to these proceedings, was licensed as a professional bail bondsman and limited surety agent. The Respondent was previously licensed as an ordinary-combination life, including disability agent, but such license expired on March 30, 1981.

      
      

   2. On January 7, 1982, a grand jury indictment was issued in the United States District Court for the Northern District of Florida, Panama City Criminal Division, against the Respondent, George Thomas Darby. The indictment specifically charged that the Respondent:

      
      

      1. Did knowingly combine, conspire, confederate agree, and have a tacit understanding with other stated individuals to possess with the intent to distribute more than 1,000 pounds of the Schedule I control substance marijuana, in violation of Sections 841 and 846 of Title 21 of the United States Code.

      2. Did knowingly combine, conspire, confederate agree, and have a tacit understanding with other specified persons to import into the United States the Schedule I control substance marijuana in violation of Sections 952 and 963 of Title 21 of the United States Code.

      3. Did knowingly and intentionally import into the United States a Schedule I control substance in violation of Section 952 of Title 21 and Section 2 of Title 18 of the United States Code.

      4. Did knowingly and intentionally possess with the intent to distribute the Schedule I control substance marijuana in violation of Section 841 of Title 21 and Section 2 of Title 18 of the United States Code.

         
         

   3. On July 14, 1982, George Thomas Darby was convicted in the United States District Court for the Northern District of Florida, Panama City Criminal Division, as follows:

      
      

      Defendant has been convicted as charged of the offense of from on or about January, 1975, until the date of the indictment, in the Northern' District of Florida and elsewhere, knowingly combining, conspiring, and agreeing with others to import marijuana into the United States, in violation of Title 21, U.S. Code, Sections 952 and 963, as charged in Count 111(3) of

      the indictment.

   4. Pursuant to the above conviction, the Respondent, George Thomas Darby, was sentenced to a term of five years imprisonment and fined $15,000.

      
      

   5. The Respondent, by answer, admitted and further, at the formal hearing by stipulation, accepted as true the following facts:

      
      

      1. That you, George Thomas Darby, on or about July 14, 1982, in the United States District Court of the Northern District of Florida, in Case No. MCR

         82-00203-07, were found guilty of knowingly combining, conspiring and agreeing with others to import marijuana into the United States, in violation of Title 21, U.S. Code, Sections 952, and 953, as charged in Count 111(3) of a previous grand jury indictment, Criminal Case No. MCR82-00203.

      2. The violation of either of the aforementioned titles is a felony as defined

      by Title 18, U.S.C. Section I(1).

      
      

   6. The Respondent has been licensed as a professional bail bondsman since October, 1976. His primary business as a bail bondsman has been in Jackson County, Florida. The Respondent has had no prior criminal convictions and no complaints or other disciplinary actions by the Department of Insurance against any license held by him from that Department. The Respondent has voluntarily ceased writing bail bonds since February of 1982, to the date of the hearing.

      
      

   7. Prior to the above-referenced conviction, the Respondent enjoyed a reputation as an honest, hardworking, and law-abiding citizen in the Jackson County area.

      
      

   8. On January 31, 1983, Clyde M. Taylor, Jr., Esquire, counsel for the Respondent in the above-referenced criminal action, filed an appellate brief in the United States Court of Appeal for the Eleventh Circuit on behalf of George Thomas Darby, seeking to reverse the July 14, 1982, district court conviction. At the time of the formal hearing, this appeal was pending.

      
      

      CONCLUSIONS OF LAW

      
      

   9. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this action.

      
      

   10. Section 648.45(1)(e) empowers the Department of Insurance to deny, suspend, or revoke or refuse to renew any license issued under the bail bondsman provisions of Chapters 648 of the Insurance Code, when such licensee has been convicted of a felony.

       
       

   11. Article X, Section 10, of the Florida Constitution provides:

       
       

       The term "felony" as used herein and in the laws of this state shall mean any criminal offense that is punishable under the laws of this state, or that would be punishable if committed in this state by death or by

       imprisonment in the state penitentiary. Article X, Section 10, Florida Constitution 1968.

       
       

   12. Under this provision, the Respondent's conviction in Federal Court may qualify as a felony conviction if the offense of which the Respondent was convicted would have been punishable by death or imprisonment in the state penitentiary of Florida had the offense been committed and prosecuted in Florida. See, Rotstein v. Department of Professional Regulation, 397 So.2d 308 (Fla. 1st DCA 1981), Shields v. Smith, 404 So.2d 1106 (Fla. 1st DCA 1981). See also, Department of Insurance v. Gerald B. Natelson, DOAH Case No. 82-2335 (May 25, 1983)

       
       

   13. Florida Statute 775.08(1)(1975) defines a felony as follows:

       
       

       The term "felony" shall mean any criminal offense that is punishable under the laws of this state, or that would be punishable if committed in this state, by death or imprisonment in a state penitentiary. "State penitentiary" shall include state correctional facilities. A person shall

       be imprisoned in the state penitentiary for each sentence which, except in an extended term, exceeds one year.

       
       

   14. In the instant case, the offense of which Respondent was convicted was a conspiracy to import a controlled substance into the United States. The Florida offense which most closely approximates this federal offense is set forth in Florida Statute 893.13(1)(d) (2), which provides:

       
       

       It is unlawful for any person to bring into this state any controlled substance unless the possession of such controlled substance is authorized by this chapter or unless such person is licensed to do so by the appropriate federal agency. Any person who violates this provision with respect to:

       2. A controlled substance named or described in s. 893.03(1)(c), (1)(d), (2)(c), (3) or (4) is

       guilty of a felony of the third degree, punishable as provided in s. 775.082, 775.083, or s. 775.084.

       
       

       Cannabis is a Schedule I controlled substance listed in Section 893.03(1)(c)(3), Florida Statutes.

       
       

   15. A conspiracy to violate Section 893.13(1)(d)(2), Florida Statutes, would be punishable under Florida Statute 777.04 (1975), which provides in pertinent part:

       
       

       1. Whoever shall agree, conspire, combine, or confederate with another person

          or persons to commit any offense commits the offense of criminal conspiracy and shall, when no express provision is made by law for the punishment of such con conspiracy, be punished as provided in

          subsection (4).

       2. Whoever commits the offense of criminal attempt, criminal solicitation, or criminal conspiracy shall be punished as follows:

       (d) If the offense attempted, solicited, or conspired to is a felony of the third degree, the person convicted shall be

       guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, s.

       775.083, or s. 775.084.

       
       

       The Respondent's federal conspiracy conviction then would be a first degree misdemeanor under Florida Statute 777.04 (1975). A first degree misdemeanor is not punishable under Florida law by imprisonment in the state penitentiary (see Florida Statute 775.082 (1975), and thus does not qualify as a felony as defined by Article X, Section 10, Florida Constitution (1968), and Florida Statute 775.08(1)(1975). Therefore, Florida Statute 648.45(I)(3)(1979), may not serve as a basis for discipline in this proceeding.

       
       

   16. Respondent was also charged with a violation of Section 648.45(1)(j), Florida Statutes, which provides as a basis for discipline:

When, in the judgment of the department, the licensee has, in the conduct of affairs under the license, demonstrated incompetency or untrustworthiness, or conduct or practices rendering him unfit to carry on the bail

bond business, or making his continuance in such business detrimental to the public

interest, or when the department finds that he is no longer in good faith carrying on the bail bond business, or that he is guilty of rebating, or offering to rebate, or unlawfully dividing, or offering to divide his commissions in the case of limited surety agents, or premiums in the case of limited surety agents, or premiums in the case of professional bondsmen, and for such reasons is found by the department to be a source of detriment, injury or loss to the public.

This statutory section requires that the acts upon which the violation is based involve "conduct of affairs under the license." There was no competent evidence in the record establishing that any of the acts upon which the conviction was based arose out of or in any way related to his business of writing bail bonds. The evidence, therefore, fails to establish a violation of Section 648.45(1)(j), Florida Statutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Department of Insurance enter a Final Order dismissing its Administrative Complaint against the Respondent, George Thomas Darby.

DONE and ENTERED this 27th day of July, 1983, in Tallahassee, Florida.

COPIES FURNISHED:

Clark R. Jennings, Esquire Department of Insurance Suite 413-B, Larson Building Tallahassee, Florida 32301

Clyde M. Taylor, Jr., Esquire 1105 Hays Street

Tallahassee, Florida 32301

Honorable Bill Gunter Insurance Commissioner and Treasurer

The Capitol

Tallahassee, Florida 32301

MARVIN E. CHAVIS

Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1983.

Docket for Case No: 83-000041

Orders for Case No: 83-000041