STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MAXINE PADAWER, )

)

Petitioner, )

)

vs. ) Case No. 85-2981

) DEPARTMENT OF INSURANCE AND ) TREASURER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice; a hearing was held on January 6, 1986, in Orlando Florida, before the Division of Administrative Hearings by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Alan B. Robinson, Esquire

Post Office Box 1544 Orlando, Florida 32802

For Respondent: Leland L. McCharen, Esquire

Legal Division

413 Larson Building Tallahassee, Florida 32301

The issue is whether Maxine Padawer (Padawer) is entitled to a license as a limited surety agent (bail bondsman).

Petitioner presented the testimony of Maxine Padawer, Joseph Padawer, and David Mollison, together with four exhibits admitted in evidence, Petitioner's Exhibits A-D. Respondent had four exhibits admitted in evidence, Respondent's Exhibits 1-4, and presented no witnesses. A transcript of the proceedings was filed on January 24, 1986. The parties requested and were granted ten days from the filing of the transcript to file proposed orders. Respondent filed its proposed order on January 31, 1986. Petitioner failed to file a proposed order. A ruling has been made on each proposed finding of fact in the Appendix attached to and made a part of this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Maxine Padawer, made application for Examination as a Licensed Limited Surety Agent (hereinafter the Application) on or about February 21, 1985.

   
   

2. The Application was denied by the Department of Insurance, Bureau of Licensing, in a letter dated July 2, 1985.

   
   

3. On August 9, 1980, approximately five and a half years ago, Padawer was detained in Orange County, Florida, for the offense of shoplifting (petit theft), a misdemeanor.

   
   

4. Padawer appeared in court and entered a plea of no contest to the charge (petit theft) in Case No. M080-4451, which plea was accepted by the court.

   
   

5. Adjudication was withheld and Padawer was placed on probation for a period of six months.

   
   

6. Padawer was twenty-one years of age at the time of the charge and plea.

   
   

7. No derogatory information, except the events and plea set forth above, was uncovered in the course of the Department's background check of Padawer. At no other time has Padawer been charged with a crime.

   
   

8. Padawer submitted to a Psychological Evaluation on September 9, 1985, conducted by Bruce F. Hertz, Ph.D., Licensed Psychologist. Hertz concluded that there is no reason to be concerned about the reliability, trustworthiness or emotional stability of Padawer and that it is unlikely that her past behavior would reappear.

   
   

9. Court records relating to the above detention and plea of no contest to the charge of shoplifting (petit theft) were sealed on October 8, 1985, by the County Court of the Ninth Judicial Circuit for Orange County, Florida, pursuant to Section 943.058, Florida Statutes.

   
   

10. The isolated instance of criminal activity by Padawer came at the culmination of a long (approximately eight years) divorce by her parents which was very bitter and very traumatic for Padawer.

    
    

11. Since 1980, Padawer has actively changed the course of her life. She has been successfully employed. For approximately two years, Padawer worked for the Exxon Car Wash and her employer found her to be very honest and responsible. He would gladly rehire her. During this time she supported her brother, Henry

    Padawer. Since July 1, 1984, she has been employed by bail bond agencies. According to David Mollison of Freedom Bail Bonds where Padawer has worked since January 1, 1985, Padawer handles much of the financial business of Freedom and is a signatory on Freedom's checking account. She has been completely honest and dedicated and there have been no discrepancies in the financial affairs of Freedom.

    
    

12. Padawer has attended bonding school and taken all of the examinations connected therewith, scoring 100 on five of the tests and 98 on one.

    
    

13. Padawer has successfully rehabilitated herself since 1980 and is a person of high character and integrity.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of these proceedings. Section 120.57(1), Florida Statutes.

    
    

15. Section 648.34, Florida Statutes (1984 Supp.), sets forth the qualifications entitling one to a license as a bail bondsman. As relevant to this proceeding, Section 648.34(2)(f) specifies that, at the time of the application, the applicant must be a person of high character and approved integrity, who "has not been convicted of or pleaded guilty or no contest to a felony, a crime involving moral turpitude, or a crime punishable by imprisonment of 1 year or more . . . whether or not a judgment or conviction has been entered." Padawer meets all the criteria for licensure except that set forth in Section 648.34(2)(f). Further, at the time of application, she was a person of high character and integrity.

    
    

16. Pursuant to Section 648.45(2), Florida Statutes (1984 Supp.), the Department shall deny a license to an applicant for

    
    

    (k) Having been found guilty of, or having pleaded guilty or no contest to a felony, a crime involving moral turpitude, or a crime punishable by imprisonment of 1 year or more

    . . . whether or not a judgment or conviction has been entered.

    
    

17. As applicable herein, Padawer pleaded no contest to the crime of shoplifting (petit theft). This crime is defined as theft. See Sections 812.014(1)(c) and 812.015(1)(d), Florida Statutes. Theft is a crime involving moral turpitude, regardless of the amount stolen or the sentence imposed. Tullidge v. Hollingsworth, 146 So. 2d 660 (Fla. 1933); Soetarto v.

Immigration and Naturalization Service, 516 F.2d 778 (7th Cir. 1975) Jack Mitchell v. Department of Insurance, 7 FALR 5410 (1985).

18. If Sections 648.34(2)(f) and 648.45(2)(k) were considered in a vacuum, the denial of a license to Padawer would have been proper. However, the effect of the sealing of the record in the criminal case and of the rehabilitation of Padawer in the five and one-half years since the criminal case must be considered.

1. In Walton v. Turlington, 444 So. 2d 1082, 1084 (Fla. 1st DCA 1984), the court stated that "the expungment of the records of the criminal prosecution places appellant in the same position, as if he had never been charged with a crime." Walton involved a penal administrative proceeding to revoke a teaching certificate. In that type of proceeding it is not necessary for a teacher to be charged with or convicted of a crime in order to be subject to revocation based upon conduct reflecting gross immorality or moral turpitude. Walton at 1083. Therefore expungment pursuant to Section 943.058, Florida Statutes, does not mean that a licensee may not be held responsible for his actions in a noncriminal proceeding against the license. Walton at 1083. As noted, Walton could have his license revoked for conduct reflecting moral turpitude whether or not a criminal charge or conviction had occurred because it was the criminal conduct that would subject him to penal proceedings. In the present case, Padawer is being denied a bail bondsman's license solely based upon the existence of a plea of no contest to a crime involving moral turpitude. See Section 648.45(2)(k). The underlying criminal conduct is not at issue unless it reflects on the character and integrity of the applicant at the time of application. It has already been found that at the time of her application, five and one-half years after the shoplifting event, Padawer possessed the requisite high character and integrity.

2. Pursuant to Walton, supra, the expungment of Padawer's criminal record places her in the same position as if she had never been charged with a crime. Here the expungment occurred after Padawer had applied for her license but before the de novo hearing in this case. Therefore, as it relates to this proceeding, Padawer is in the same position as if she had never been charged with a crime. Accordingly, she is not precluded from licensure based on the 1980 criminal charge and plea of no contest which has now been expunged.

   
   

3. Having found that Padawer meets all of the criteria for licensure as a bail bondsman and that she is not precluded from licensure based on the criminal charge which has been expunged, it is concluded that Padawer is entitled to a license as a bail bondsman.

   
   

4. Even if the expungment of the criminal record was not dispositive, the period of good conduct since the minor offense and the proven rehabilitation of Padawer would entitle her to licensure. The Department urges that Jack Mitchell v. Department of Insurance, 7 FALR 5410 (1985), is similar and dispositive. In Mitchell, an otherwise qualified applicant was denied licensure based on a no contest plea to a charge of retail theft which occurred approximately two months before his application for licensure as a bail bondsman. The Final Order of the Department

denied licensure without prejudice to Mitchell's ability to reapply in one year. This one-year time frame was based on Section 648.49, Florida Statutes, which applies to the duration of a license suspension. Because a license could only be suspended for one year or the eligibility to hold a license could only be suspended for one year, the concept of rehabilitation and the ability to regain eligibility for licensure is inherent. The Department apparently recognized this concept in its proposed order where it argued that Padawer should be denied on this application but without prejudice to reapply in one year.

However, the action urged by the Department is not persuasive in this case. In Mitchell, supra, the criminal charge occurred approximately two months before the application. Perhaps there, one year would be sufficient to allow rehabilitation and renewed eligibility for licensure. In this case, Padawer's offense occurred five and one-half years before the application and she presented substantial persuasive evidence of high character and rehabilitation prior to her application. No purpose would be served by requiring Padawer to reapply in one year. She has proven her eligibility for licensure now.

RECOMMENDATION

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

RECOMMENDED that the Department of Insurance enter a Final Order determining that Maxine Padawer is qualified and eligible for examination and licensure as a limited surety agent (bail bondsman) and that a license is to be issued upon satisfactory completion of the examination.

DONE and ENTERED this 21st day of February, 1986, in Tallahassee, Florida.

DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 1986.

COPIES FURNISHED:

Leland L. McCharen, Esquire Legal Division

413 Larson Building Tallahassee, Florida 32301

Alan B. Robinson, Esquire

1. O. Box 1544

   Orlando, Florida 32802

   
   

   Honorable William Gunter

   State Treasurer and Insurance Commissioner The Capitol-Plaza Level

   Tallahassee, Florida 32301

   
   

   APPENDIX

   
   

   The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed Findings of Fact submitted by the parties to this case.

   
   

   Rulings on Proposed Findings of Fact Submitted by the Respondent

   
   

   Proposed Findings of Fact 1-9 are adopted in substance in Findings of Fact 1-9.

   ================================================================= AGENCY FINAL ORDER

   =================================================================

   
   

   STATE OF FLORIDA DEPARTMENT OF INSURANCE

   
   

   MAXINE PADAWER,

   
   

   Petitioner,

   
   

   vs. Case No. 85-2961

   
   

   DEPARTMENT OF INSURANCE AND TREASURER,

   
   

   Respondent.

   /

   
   

   FINAL ORDER

   
   

   THIS CAUSE having come on for consideration, and the under- signed having considered the Recommended Order of the Hearing Officer in Maxine Padawer v. Department of Insurance and Treasurer, Case No. 85-2981, the hearing held on January 6, 1986, in Orlando Florida, the exhibits submitted into evidence and being otherwise fully advised in the premises, it is hereby Ordered that:

   
   

   1. The Findings of Facts of the Hearing Officer, Diane K. Kiesling, of the Division of Administrative Hearings, are hereby adopted and incorporated herein by reference.

      
      

   2. The Conclusions of Law of the Hearing Officer are accepted in part and rejected in part as follows:

      
      

      1. The Hearing Officer' B conclusion that theft is a crime involving moral turpitude is adopted.

         
         

      2. The Hearing Officer's conclusion that pursuant to Section 943.058, Florida Statutes, Petitioner Padawer's criminal record has been expunged is rejected. Record evidence shows that the Petitioner's court records were sealed not expunged. There is a legal distinction between sealing and

         expunging criminal records. See Section 943.058, Florida Statutes, Fla.R.Crim.P. 3.692, 462 So. 2d 386 (Fla. 1984). A court

         to sealing of a criminal record has the legal effect of preventing public access to and inspection of the record without the court 'a approval. Johnson v. State, 336 So. 2d 93,

         95 (Fla. 1976). To the contrary, the expunction of a criminal record has the legal effect of placing a person in the same position as if he had never been charged with a crime, even to the extent that the person may testify under oath, without fear of a perjury charge, that he has never been charged with a crime. See Walton v. Turlington, 444 So. 2d 1082, 1084 (Fla. 1st DCA 1984)1 Section 943.058(6), Florida Statutes 11985).

         The conclusion that Petitioner Padawer'a status was restored to the position as if she had never been charged with a crime is also rejected. Competent record evidence reveals that the Petitioner acknowledged under oath that the criminal record exists and that she entered a no contest plea to the charges. No authority could be found-which requires completely disregarding Petitioner's own record admission to a plea of no contest to a crime involving moral turpitude when Petitioner legally could have denied any knowledge of the existence of the criminal record. See Section 943.058(6)(b), Florida Statutes.

         The Hearing Officer's reliance upon Walton v. Turlington,

         444 So. 2d 1082 (Fla. lst DCA 1984) for the proposition that Petitioner could be disciplined for the underlying conduct even no criminal record existed is misplaced and rejected. In Walton, pursuant to the disciplinary statute, the relator could be disciplined for the underlying conduct or act involving gross immorality or moral turpitude, with or without a charge or conviction for the conduct or act See Section 231 28(1)(c) Florida Statutes (1985). In the instant case, the Petitioner cannot be disqualified for licensure for the underlying conduct but only upon an affirmative showing that Petitioner has entered no contest plea to a crime involving moral turpitude. Therefore, Walton does not apply.

         
         

      3. The Hearing Officer's interpretations of Sections 648.341(2)(f) and 648.45(2)(k), Florida Statutes, are rejected in part. Pursuant to Section 648.34 (2) (f), Florida Statutes, (1985) Bail Bondsmen, qualifications:

(2) To qualify as a bail bondsman, time of application and throughout the period of licensure that:

(f) The applicant is a person of high character and approved integrity and has not been convicted of or pleaded guilty or no contest to a felony, a crime involving moral turpitude, or a crime punishable by imprisonment of 1 year or more under the law of any state, territory, or country, whether or not a judgment or conviction has been entered. (Emphasis added).

The Hearing Officer concluded that Petitioner Padawer met the requisite standards of high character and approved integrity but also concluded that the Petitioner had entered a no contest plea to a crime involving moral turpitude. The Hearing Officer properly concluded that pursuant to Section 648.45 (2)(k), Florida Statutes, the Department is required to deny Petitioner's application for having pleaded guilty to a crime involving moral turpitude.

The Hearing Officer then concludes that the criminal conduct is not an issue in qualifying for a license unless the conduct reflects upon the character and integrity of the applicant at the time of application for licensure. This interpretation of Section 648.34(2)(f), Florida Statutes rejected. The plain language of the statute requires that to qualify for licensure an applicant must possess high character, approved integrity and has not entered a no contest Plea to a crime involving moral turpitude. The statute does not lend itself to an interpretation that the standards of high character and approved integrity are conditioned upon the applicant's demonstrated rehabilitation over the passage of a specific time span where a no contest plea has been entered to a crime involving moral turpitude. The only logical and reasonable interpretation of the statute la that if the applicant fails to meet any one of the qualifications set forth in 648.34(2)(f), Florida Statutes, the applicant must be disqualified for licensure.

The Hearing Officer's interpretation is also rejected that a record of good conduct, i.e. rehabilitation, la inherent in and dispositive of removing the statutory disqualification for licensure where there has been a no contest plea to a crime involving moral turpitude. Neither the statute nor rules of the Department operate to remove the disqualification and renew` eligibility for licensure. The conclusion that the Final Order entered in Jack Mitchell vs. Department of Insurance, 7 F.A.L.R. 5410 (1985) (Fla. Dept. of Insurance 1985) dictates the result

urged in the instant Recommended Order is also rejected. In Mitchell, the applicant wee denied licensure and there was no interpretation either implied or expressed that a period of rehabilitation would effectively operate to remove a statutory disqualification for licensure. Any interpretation which extends that Order to suggest such a result is expressly rejected. The outcome of the instant case must be premised on the fact that the Petitioner failed to meet the statutory qualification standards for licensure. Until such time that the Petitioner acts to remove the statutory disqualification, the Petitioner's application for licensure must be denied.

Respondent's Exceptions

Respondent filed exceptions to the Recommended Order which are not considered because they were not timely filed

BASED upon the foregoing, it is hereby ADJUDGED and ORDERED:

That the application for licensure as a limited surety agent (bail bondsman) of Petitioner Maxine Padawer is hereby DENIED.

DONE AND ORDERED this 8th day of April, 1986.

(SEAL) BILL GUNTER

Insurance Commissioner and Treasurer.

Docket for Case No: 85-002981

Orders for Case No: 85-002981