STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT GENE RADNEY, )

)

Petitioner, )

)

vs. ) CASE NO. 88-3863

) DEPARTMENT OF INSURANCE ) AND TREASURER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on October 27, 1988, at Tampa, Florida.

APPEARANCES

For Petitioner: Joseph R. Fritz, Esquire

4204 North Nebraska Avenue Tampa, Florida 33603

For Respondent: Robert V. Elias, Esquire

413-B Larson Building Tallahassee, Florida 32399-0300

By Demand for Formal Administrative Hearing forwarded to the Division of Administrative Hearings by the Department of Insurance's letter dated August 3, 1988, Robert Gene Radney, Petitioner, disputes the facts in the Department of Insurance and Treasurer's letter dated May 16, 1988, denying his application for examination as a bail bondsman, and requests an administrative hearing. As grounds for denial of the application, it is alleged Petitioner has demonstrated a lack of fitness to engage in the bail bond business, is not a person of high character and approved integrity, and failed to divulge in his application his complete criminal record. At the hearing, Respondent offered into evidence four exhibits, including Petitioner's application dated January 5, 1988; Case File No. 69-1-20; Case File No. 87-L-33L and Case File No. 79-L-50T, and rested.

Petitioner presented two exhibits and four witnesses, including himself.

Timely proposed findings have been submitted only by the Petitioner. Treatment accorded those opposed findings is contained in the Appendix attached hereto and made a part hereof.

FINDINGS OF FACT

1. Petitioner was first licensed as a ball bondsman in 1961 or 1962.

   
   

2. In 1969 (Exhibit 2), Petitioner was charged with being incompetent and untrustworthy as a bail bondsman, found guilty and placed on one year's probation which was successfully completed.

   
   

3. In 1973, Petitioner was again charged with conducting himself in a manner unbecoming a bail bondsman (Exhibit 3). These charges alleged failure to return the premium paid on a supersedes bond when the prisoner was not released from jail on the bond and failure to maintain his office open to the general public as required. In the Final Order issued in this case, Petitioner was fined $850 and placed on probation for two years. Upon failure of Petitioner to comply with the terms of the Final Order, his license was revoked for a period of ten months after which the revocation was set aside and his license restored.

   
   

4. In 1979, a hearing was conducted by the undersigned Hearing Officer on charges alleging that Petitioner had failed to maintain the minimum requirement for permanent office records and failed to maintain a place of business accessible to the public and be actively engaged in the bail bond business in violation of Chapter 64B, Florida Statutes. Petitioner was found guilty as charged, and the recommendation that his license be revoked was adopted by the Commissioner of Insurance in the Final order.

   
   

5. In 1986, Petitioner was arrested for operating a donut shop in Tampa utilizing topless waitresses in violation of Tampa Ordinance 24-11. These charges were dismissed on appeal to the circuit court (Exhibit 5).

   
   

6. Witnesses called by Petitioner included the attorney who prosecuted the 1979 case (Exhibit 4) against Respondent; the investigator who investigated the 1979 charges for the Department, and a sitting circuit court judge who filed an appeal of the 1979 revocation order on behalf of the Petitioner

   
   

7. At the time the charges which led to the revocation were preferred, Respondent was without power to write bonds, but still had an obligation to service bonds still outstanding. The two witnesses who testified in these proceedings on the status of a licensed bail bondsman without power to write new bonds both concurred that this places a bail bondsman in the anomalous position of one who has no need for an office to provide bail bonds for the public but who still needs to be accessible to those clients for whom he has outstanding bonds. This distinction was not clarified at the 1979 hearing.

   
   

8. All three witnesses who testified on behalf of Petitioner were aware of nothing that would disqualify Petitioner as a bail bondsman at this time.

   
   

9. No evidence was submitted that Petitioner was convicted of any crime involving moral turpitude, except for the admission by Petitioner that on or about August 11, 1966, he pleaded guilty to uttering a check without sufficient funds on deposit with which the check could be honored. This offense occurred more than 20 years ago and prior to Petitioner twice being found qualified for licensure by Respondent as a bail bondsman.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearing has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

11. Section 648.27, Florida Statutes (1987), establishes the requirements to be met by applicants for bail bond licenses. These include:

    
    

    1. The department shall not issue, renew or permit to exist a license for any individual found to be untrustworthy

       or incompetent who has had his eligi- bility to hold a license revoked ...

    2. ... The department may also conduct any reasonable inquiry or investigation it sees fit, relative to the determina- tion of the applicant's fitness to be licensed or to continue to be licensed.

    3. If upon the basis of the completed application for a license and such further inquiry or investigation the department deems the applicant to be unfit as to character and background or lacking in

       one or more of the required qualifica- tions for the license, the department shall disapprove tie application.

       
       

12. It is significant that, except for the 1986 charges which were dismissed by the circuit court, and the charges which resulted in revocation in 1979, all of the acts relied on by Respondent to deny this application occurred prior to a time when Petitioner was deemed qualified for licensure as a bail bondsman by Respondent and the 1973 revocation was set aside. Accordingly, Respondent cannot now deny licensure based solely on those events occurring before 1974.

    
    

13. The charges upon which Petitioner's license was revoked in 1979 involved the failure on the part of Radney to maintain records in the manner prescribed and to have an office properly marked and open for business. In view of Radney's lack of authority to write policies in 1979, his failure to maintain a properly marked office is a simple technical violation of the statute.

    Neither of these offenses involve Petitioner's character or fitness to be licensed as a bail bondsman.

    
    

14. Furthermore, some eight years have elapsed since Petitioner's license was revoked, and no disqualifying conduct has been noted during this eight year period. All witnesses who testified in these proceedings opined that Petitioner's character and integrity were such that he is qualified for licensure as a bail bondsman.

    
    

15. Here the burden is on the Petitioner to prove, by a preponderance of the evidence, that he is qualified for licensure as a bail bondsman. Balino v. Dept. of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

    
    

16. From the foregoing, it is concluded that Petitioner has shown, by a preponderance of the evidence, that he is qualified to sit for the examination for licensure as a bail bondsman. It is

RECOMMENDED that a Final Order be issued finding Robert Gene Radney qualified to take the examination for licensure as a bail bondsman.

ENTERED this 30th day of November, 1988, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3863

Treatment Accorded Proposed Findings submitted By Petitioner

1. Rejected. In his demand for hearing Petitioner contested only that the August 11, 1966 charge involved moral turpitude. See HO Finding #9.

2-4. Rejected as no evidence was presented from which a finding can be made.

5-6. Accepted insofar as included in HO #5.

1. Included in HO #2.

2. Included in HO #3.

3. Included in HO's #4, #6, #7 and #8.

4. Accepted insofar as included in HO #9.

5. Accepted insofar as included in HO #8.

COPIES FURNISHED:

Joseph R. Fritz, Esquire 4204 North Nebraska Avenue Tampa, Florida 33603

Robert V. Elias, Esquire 413-B Larson Building

Tallahassee, Florida 32399-0300

Honorable William Gunter State Treasurer and

Insurance Commissioner The Capitol, Plaza Level

Tallahassee, Florida 32399-0300

Don Dowdell General Counsel

Department of Insurance and Treasurer The Capitol, Plaza Level

Tallahassee, Florida 32399-0300

Docket for Case No: 88-003863

Orders for Case No: 88-003863