STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAUL DEWAYNE ORTELLI, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 90-3280

) DEPARTMENT OF INSURANCE AND ) TREASURER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated hearing officer, James E. Bradwell, held a formal hearing in this case on September 30, 1990 in Tampa, Florida.

APPEARANCES

For Petitioner: W. Dale Gabbard, Esquire

Guito, Gabbard and Guito Sun Bank Building

315 E. Madison Street, Suite 1004 Tampa, FL 33602

For Respondent: Gordon Thomas Nicol, Esquire

Room 412, Larson Building Tallahassee, FL 32399-0300

STATEMENT OF THE ISSUES

Whether or not Petitioner's application for examination as a bail bondsman (limited surety agent) should be granted.

PRELIMINARY STATEMENT

By letter dated April 25, 1990, Respondent, Department of Insurance and Treasurer advised Petitioner, Paul Dewayne Ortelli, Jr., that his application for examination as a bail bondsman was being denied because on or about February 5, 1988, Petitioner was charged with three counts of worthless checks and on March 1, 1989, Petitioner pled nolo contendere to the charges; Petitioner failed to divulge the three charges and the dispositions thereof on his application for examination as a bail bondsman which demonstrate a lack of high character and approved integrity which is required of those who are licensed to engage in the bail bond business.

Respondent advised Petitioner of his right to request a formal hearing pursuant to Section 120.57(1), Florida Statutes. Petitioner timely requested a formal hearing and on May 29, 1990, this matter was transferred to the Division of Administrative Hearings for the assignment of a hearing officer to conduct a

formal hearing. Following consideration of the responses received from the parties respecting the scheduling of a final hearing, on July 17, 1990, this matter was noticed for hearing for September 13, 1990 and was heard as scheduled. A transcript of the hearing was received on October 22, 1990 and on November 6, 1990, Respondent filed a proposed recommended order which incorporates an agreed recommendation by the parties considering a proposed recommended penalty. The parties proposed recommended penalty is incorporated in this recommended order.

At the hearing, Petitioner's exhibits 1 through 3 were received in evidence and Respondent's exhibits 1 through 7 were offered, all of which were received into evidence at the hearing except exhibits 5, 6 and 7. Those exhibits are rejected as they relate to matters outside of the scope of the denial letter.

FINDINGS OF FACT

Based upon my observation of the witness and his demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings:

1. On October 24, 1989, Petitioner submitted his application for examination as a limited surety agent (bail bondsman). In preparation to sit for the limited surety agent's examination, Petitioner completed a community services course and received a surety agent's certificate from Hillsborough Community College on April 23, 1989. Additionally, Petitioner completed the bail and bail bonds insurance independent study course offered by the Division of Continuing Education, the Department of Independent Study by correspondence of the University of Florida and was awarded a certificate of satisfactory completion on November 14, 1989.

   
   

2. Question 8 of the application for examination as completed by Petitioner contained the following question:

   
   

   "Have you ever been charged with or convicted or pleaded guilty or no contest to a crime involving moral turpitude, , a felony , or a crime punishable by imprisonment of one (1) year or more under the law of any state, territory, or country, whether or not a judgement or conviction has

   been entered ? If yes, give date(s): What was the crime?

   1. Where and when were you charged?

      
      

   2. Did you plead guilty or nolo contendere?

      
      

   3. Were you convicted?

   4. Was adjudication withheld?

   5. Please provide a brief description of the nature of the offense charged.

      If there has been more than one such felony charge, provide an explanation as to each charge on an attachment. Certified copies of the information or indictment and final adjudication for each charge is required.

      
      

      Petitioner responded to Question 8 by indicating that he had not been charged with, or convicted or pled guilty or no contest to a crime involving moral turpitude; that he had been so charged with committing a felony; that the crime was one which was punishable by imprisonment for one year or more and he gave the dates of September 27, 1980, June 23, 1986 and October 23, 1987. Respondent replied to subsection (a) of question 8 by indicating that the crime was worthless checks/aggravated assault. Respondent's reply to subsection (b), question 8, was that he was charged in Tampa, Florida indicating the dates of September 27, 1984, June 23, 1986, and October 23, 1986. Respondent filed a negative response to subsections (c), (d), and (e) of question 8 and his reply to subsection (f) was that he was living in an apartment, that the manager would not repair anything and he put a stop payment on the check and they filed charges.

      
      

3. By letter dated April 25, 1990, Respondent denied Petitioner's application for examination as a bail bondsman (limited surety agent) because he failed to divulge that he was charged on or about February 5, 1988, with three counts of worthless checks (Case Numbers 88-2363C, 88-2364C, and 88-4164A). On or about March 1, 1989, Petitioner pled nolo contendere to the above-referred worthless check charges.

   
   

4. Petitioner does not dispute the fact that he failed to divulge the above-referred worthless check charges. However, Petitioner maintains that the subject charges were misdemeanors and did not amount to a crime involving moral turpitude and therefore did not need to be divulged. Petitioner's understanding comes from the training that he received in the independent study by correspondence of the bail and bail bond insurance correspondence training from the University of Florida.

   
   

5. Moral turpitude, as defined in the course material submitted by Petitioner, is as follows:

   
   

   "Baseness, vileness, or dishonesty of a high degree. (44 So.2d 802). Demonstrating depravity in the private and social duties which a person owes to society. The term has been used in connection with such common crimes as bribery and larceny."

   
   

6. Petitioner was married in 1980 and was divorced during late 1987. During this period, Petitioner and his former wife had a joint banking account and they continued that banking arrangement while they were separated during mid to late 1987 while dissolution proceedings were ongoing between them. Unbeknownst to Petitioner, his former wife "emptied" his checking account and when Petitioner wrote the checks for which he was criminally charged and is the subject of his examination denial, the checks were returned to the payees for insufficient funds. When the checks were returned, Petitioner did not know that they were returned until weeks later after three of the payees who were given the worthless checks had filed charges with the state attorney's office. During the interim, Petitioner picked up the checks and paid a service fee to the payees for the returned checks.

7. For each of the worthless check charges, adjudication was withheld and Petitioner, after presenting proof of restitution, was ordered to pay $35.00 in court costs and a 5% surcharge to a criminal justice trust fund.

   
   

8. Petitioner was required to divulge the worthless check charges that he failed to disclose to Respondent in response to subsection (b) of question 8.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action pursuant to Subsection 120.57(1), Florida Statutes.

   
   

10. The authority of the Respondent is derived from Chapter 468, Florida Statutes and Rule Chapter 28-6, Florida Administrative Code.

    
    

11. Petitioner has the burden of establishing, by a preponderance of the evidence, his entitlement to the bail bondsman license (limited surety agent) pursuant to Chapter 28-6.008(3), Florida Administrative Code. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

12. Section 648.34(2)(f), Florida Statutes provides in pertinent part that "to qualify as a bail bondsman, it must affirmatively appear at the time of applying that . . . (f) the applicant is a person of high character and approved integrity . . . ." Petitioner's failure to divulge the fact that he was charged with three counts of worthless checks during February, 1988 reflects adversely on his character and integrity. This adverse reflection detracts from the affirmative showing that an applicant, as Petitioner, is required to demonstrate to establish his entitlement to the bail bondsman license that he seeks. 1/

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that:

1. Petitioner shall be authorized to sit for the examination as a limited surety agent upon submitting an addendum to his application for examination divulging the above worthless checks charges and the dispositions thereof with the appropriate fee. Upon successful passage of the examination and submission of the appropriate fee and license application, the Department shall issue Petitioner's license as a limited surety agent.

   
   

2. Upon licensure as a limited surety agent, Petitioner shall be placed on probation pursuant to Section 648.53, Florida Statutes, for a period of six (6) months effective on the date that his first license is obtained.

   
   

3. As a condition of probation, Petitioner shall strictly adhere to all provisions of Chapter 648, Florida Statutes and rules of the Department of Insurance and Treasurer. If during the period of probation, the Department has good cause to believe that Petitioner has violated the terms or conditions of his probation, it shall suspend or revoke the license and eligibility for licensure of Petitioner. 2/

DONE and ENTERED this day of November, 1990, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings

this 21st day of November, 1990.

ENDNOTES

1/ In mitigation, Petitioner has demonstrated that his intentions were not to conceal the fact of the worthless check charges, but rather that he did not consider that the charges were required to be divulged in response to question 8 of the examination application. As noted herein, Petitioner should have divulged those charges such that they could have been considered by Respondent in deciding Petitioner's entitlement to his license.

2/ These recommendations comport with the agreed upon disposition of the denial and Petitioner's appeal as provided by counsel for the parties.

Copies furnished to:

Gordon Thomas Nicol, Esquire Division of Legal Services

412 Larson Building Tallahassee, FL 32399-0300

Dale Gabbard, Esquire

315 East Madison Street, Suite 1004 Tampa, FL 33602

Tom Gallagher,

State Treasurer and Insurance Commissioner Department of Insurance and Treasurer

The Capitol, Plaza Level Tallahassee, FL 32399-0300

Don Dowdell, General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level

Tallahassee, FL 32399-0300

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS: ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 90-003280

Orders for Case No: 90-003280