STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FATMIR FRANK HAXHO, )

)

Petitioner, )

)

vs. ) CASE NO. 91-7426

) DEPARTMENT OF INSURANCE AND ) TREASURER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on February 3, 1992, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Thomas F. Woods, Esquire

Gatlin, Woods, Carlson & Cowdery 1709-D Mahan Drive

Tallahassee, Florida 32308

For Respondent: David D. Hershel, Esquire

Division of Legal Services Department of Insurance

412 Larson Building Tallahassee, Florida 32399-0300

STATEMENT OF THE ISSUES

At issue in this proceeding is whether petitioner's application for licensure by examination as a professional bail bondsman should be approved.

PRELIMINARY STATEMENT

Petitioner, Fatmir Frank Haxho, applied for licensure by examination as a bail bondsman with respondent, Department of Insurance and Treasurer (Department). The Department denied petitioner's application predicated on his prior criminal history, his failure to disclose such history on his application, and its conclusion that petitioner lacked the character, integrity, fitness and trustworthiness to engage in the bail bond business. Petitioner filed a request for formal hearing, and the matter was referred to the Division of Administrative Hearings for the appointment of a Hearing Officer to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At hearing, petitioner testified on his own behalf, and called Robin Kozin, Jean Westbrook, and Birgit Haxho as witnesses. Petitioner's exhibits 1-11 were

received into evidence. Respondent called Patricia Lehmann as a witness, and its exhibits 1, and 3-5 were received into evidence. 1/

The transcript of hearing was filed February 25, 1992, and the parties were granted leave, at their request, until March 16, 1992, to file proposed findings of fact. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 22I- 6.031, Florida Administrative Code. The parties' proposed findings of fact are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. By application dated April 20, 1991, and filed with respondent, Department of Insurance and Treasurer (Department), on April 26, 1991, petitioner, Fatmir Frank Haxho, requested that he be licensed by examination as a professional bail bondsman. Such application was executed by petitioner, under oath, before a Notary Public of the State of Florida, and he did solemnly swear that all answers to the questions contained in the application were true and correct to the best of his knowledge and belief.

   
   

2. Among the questions contained in the application was one designed to secure information concerning petitioner's criminal history, if any. That question, as well as petitioner's response, read as follows:

   
   

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

   No If yes, give date(s):

   
   

   1. What was the crime:?

   2. Where and when were you charged?

   3. Did you plead guilty or nolo contendere?

   4. Were you convicted?

   5. Was adjudication withheld?

   6. 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's response to such question was false.

   
   

3. On January 29, 1987, a True Bill was filed in the Superior Court of Clayton County, Georgia, Case No. 87-CR-26344-4, which charged petitioner with the offense of trafficking in cocaine, a felony. Thereafter, on April 7, 1987, petitioner was convicted of such charge, and sentenced to a term of thirteen years and fined $100,000.00. Such conviction was, however, reversed on March 16, 1988, by the Georgia Court of Appeals, and petitioner, who had been incarcerated in the Georgia Penitentiary in the interim, was released from confinement.

   
   

4. On April 21, 1987, while petitioner was incarcerated in Georgia, an information was filed in the Circuit Court of Dade County, Florida, Case No. 87- 9159, which charged him with having failed to redeliver a hired motor vehicle, a felony. Section 817.52(3), Florida Statutes. Upon petitioner's release from

   confinement and return to Miami, Florida, he was arrested on such outstanding charge. Petitioner entered a plea of nolo contendere to the charge, and on April 13, 1989, the court entered an order which withheld adjudication of guilt, sentenced petitioner to credit for time served (2 days), directed that petitioner make restitution in the amount of $1,276.00 to Hertz, and imposed costs in the sum of $225.00. 2/

   
   

5. At hearing, petitioner averred that he did not intend to mislead the Department by his response to the foregoing question, and sought to ascribe any fault in his response to his difficulty with written English. Notably, however, the application also required petitioner to list his residence address and record of employment for the past five years, and with respect to the period in which he was incarcerated in the Georgia Penitentiary he answered "out of country." Overall, petitioner's explanation, as well as the proof offered to support it, are not compelling. Rather the proof supports the conclusion that petitioner's failure to disclose such criminal history was not occasioned by any difficulty he may have had with written English, but by his desire to conceal such information from the Department. 3/

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. Here, petitioner is seeking to be licensed by examination as a professional bail bondsman. As the applicant, petitioner has the burden to demonstrate, in this de novo proceeding, his entitlement to licensure. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981), and Balino v. Department of Health and Rehabilitative Services, 348 So.2d

   349 (Fla. 1st DCA 1977).

   
   

8. The statutory definitions at Section 648.25, Florida Statutes, contain the following relevant provisions:

   
   

   1. "bail bondsman" means a limited surety agent or a professional bondsman as hereafter defined.

      * * *

      (6) "Limited surety agent" means any individual appointment by an insurer by power of attorney to execute or countersign bail bonds in connec- tion with judicial proceedings who receives or is promised money or other things of value therefor.

      
      

9. Pertinent to this case, Section 648.27(2), Florida Statutes, provides:

   
   

   For the protection of the people of this state, the department shall not issue, renew, or permit to exist any license or appointment except in compliance with this chapter. The department may not issue, renew, or permit to exist a license or appointment for any indivi- dual found to be untrustworthy or incompetent who has had his eligibility to hold a license

   or appointment revoked, or who has not estab- lished to the satisfaction of the department that he is qualified therefor in accordance with this chapter.

   
   

   And, Section 648.34(2), Florida Statutes, provides:

   
   

   (2) To qualify as a bail bondsman, it must affirmatively appear at the time of applica- tion and throughout the period of licensure that:

   * * *

   (f) The applicant is a person of high charac- ter 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 convic- tion has been entered.

   
   

   Finally, Section 648.45(2), Florida Statutes, provides:

   
   

   1. The department shall deny, suspend, revoke, or refuse to renew any license or appointment issued under this chapter or in the insurance code, and it shall suspend or revoke the eligibility of any person to hold a license or appointment under this chapter or the insurance code, for any violation of the laws of this state relating to bail or any violation of the insurance code or for any of the following causes:

      1. Lack of one or more of the qualifications specified in this chapter for a license or appointment.

      2. Material misstatement, misrepresentation, or fraud in obtaining a license or appointment, or in attempting to obtain a license or appointment.

   * * *

   (e) Demonstrated lack of fitness or trustworthi- ness to engage in the bail bond business.

   * * *

   (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 under the law of any state, territory, or country, whether or not a judgment or convic- tion has been entered.

   
   

10. Application of the following statutory provisions to the facts of this case leads inescapably to the conclusion that petitioner is ineligible for the license he seeks. He has pled no contest to a felony, that involves moral turpitude, and is punishable by imprisonment for one year or more. Under the mandatory language of Sections 648.27(2) and 648.54(2)(k), Florida Statutes,

petitioner is ineligible for licensure. See, McNair v. Criminal Justice Standards and Training Commission, 518 So.2d 390 (Fla. 1st DCA 1987). Moreover, petitioner's application, by failure to disclose his criminal history, was false and misleading, and evidences a demonstrated lack of fitness or trustworthiness to engage in the bail bond business. Accordingly, petitioner is likewise ineligible for licensure under the provisions of Sections 648.27(2), 648.34(2)(f), and 648.45(2)(b) and (e), Florida Statutes. See, Gentile v.

Department of Professional Regulation, 448 So.2d 1087 (Fla. 1st DCA 1984).

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is recommended that a final order be rendered denying petitioner's application for licensure as a professional bail bondsman.

RECOMMENDED in Tallahassee, Leon County, Florida, this 21st day of May 1992.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of May 1992.

ENDNOTES

1/ At page 40 of the transcript, lines 24 and 25, the record reflects that the respondent's exhibit 2 was admitted. Such is an error. The lines should read: "We'll have it right now. Respondent's Exhibit 2 is not admitted. Your objection is sustained, Mr. Woods."

2/ The failure to return a hired motor vehicle charge arose as a consequence of a car rented from Hertz not being returned in a timely manner. According to petitioner, he entrusted the car to a friend while he was out of town and, upon his arrest, called the friend and told him to return it. After his release from prison and arrest on the charge, petitioner averred he learned for the first time that his friend had never returned the car, but had, at some point in time, wrecked and abandoned it. Petitioner has since made restitution to Hertz and his explanation regarding the events surrounding this incident are credited.

3/ In his proposed recommended order petitioner suggests that prior to filing this application he had, incident to a prior application, furnished the Department with copies of court documents that fully informed the Department of his criminal history. Such suggestion is not, however, supported by the credible proof. Rather, while there is evidence that petitioner furnished the Department with some court documents relevant to his criminal history, the record is devoid of any credible proof that he furnished the Department with any

documents related to the charges discussed in paragraphs 3 and 4 of the Findings of Fact.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-7426

Petitioner's proposed findings of fact are addressed as follows:

1. Addressed in paragraphs 3 and 4.

2. Addressed in paragraph 4 and footnote 2.

3. Subordinate.

4. Addressed in paragraph 5.

5. Addressed in paragraph 5 and footnote 3.

The Department's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 1.

2. Addressed in paragraph 2.

3-5. Addressed in paragraphs 2 and 3.

6-8. Addressed in paragraphs 2 and 4.

9 & 10. To the extent pertinent, addressed in footnote 3.

COPIES FURNISHED:

Thomas F. Woods, Esquire

Gatlin, Woods, Carlson & Cowdery 1709-D Mahan Drive

Tallahassee, Florida 32308

David D. Hershel, Esquire Division of Legal Services Department of Insurance

412 Larson Building Tallahassee, Florida 32399-0300

Tom Gallagher

State Treasurer and Insurance Commissioner

The Capitol, Plaza Level Tallahassee, Florida 32399-0300

Bill O'Neil General Counsel

Department of Insurance The Capitol, PL-11

Tallahassee, Florida 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. Some agencies allow a larger period within 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: 91-007426

Orders for Case No: 91-007426