STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALVIE EDWARDS, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5041

)

DEPARTMENT OF INSURANCE )

AND TREASURER, )

)

Respondent. )

)

RECOMMENDED ORDER

On April 10, 1996, a telephone formal administrative hearing was held in this case in St. Petersburg, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings (DOAH). (The Hearing Officer participated from DOAH in Tallahassee; the other participants were at the hearing location in St. Petersburg.)

APPEARANCES

For Petitioner: Alvie Edwards, pro se

1544 Bay Street Southeast

St. Petersburg, Florida 33701

For Respondent: Dickson E. Kesler, Esquire

Department of Insurance and Treasurer 612 Larson Building

Tallahassee, Florida 32399-0333 STATEMENT OF THE ISSUE

The issue in this case is whether the Department should grant the Petitioner a limited surety agent (bail bondsman's) license.

PRELIMINARY STATEMENT

By letter dated July 20, 1995, the Department notified the Petitioner that it intended to deny his application for licensure as a limited surety agent (bail bondsman) on the ground that he had been charged with a felony on March 8, 1990, and had pled nolo contendere on October 1, 1990. Through counsel, the Petitioner requested formal administrative proceedings, and the matter was referred to DOAH.

Final hearing initially was scheduled for March 7 but was continued to April 10, 1996, on the Department's motion. Before final hearing, counsel for the Petitioner withdrew, and the Petitioner proceeded pro se.

Because the Department's intended denial was based on the felony plea, which the Department intended to prove solely through documentary evidence, and

because the felony plea seemed dispositive under the pertinent statutes, it was decided to conduct the hearing by telephone.

At final hearing, the Department had its Composite Exhibit admitted in evidence and rested. (After the hearing, the Department mailed the exhibit to the Hearing Officer.) The Petitioner testified in his own behalf and also called two character witnesses.

At the conclusion of the evidence, the Department ordered the preparation of a transcript of the final hearing, and the parties were given ten days from the filing of the transcript in which to file proposed recommended orders. The transcript was filed on April 26, 1996.

Only the Department filed a proposed recommended order in the allotted time. The proposed findings of fact contained in the Department's proposed recommended order are accepted and incorporated to the extent not subordinate or unnecessary.

FINDINGS OF FACT

1. On or about October 1, 1990, in Case No. 90-233 CF, pending in the Circuit Court, Fifth Judicial Circuit, in and for Sumter County, Florida, the Petitioner pled nolo contendere to: one count of aggravated battery with a deadly weapon, a second degree felony under Section 784.045(1)(a)2., Florida Statutes; one count of battery on a law enforcement officer, a second degree felony under Section 784.07, Florida Statutes; and one count of resisting arrest with violence, a third degree felony under Section 843.01, Florida Statutes. On the same day, the Petitioner also was adjudicated guilty on all three charges. Sentence was withheld, and the Petitioner was placed in an adult community control program for two years subject to certain conditions.

   
   

2. The Petitioner's nolo plea was entered notwithstanding a June 26, 1990, "No Information" filed in the case stating that the State Attorney's Office had taken testimony under oath at a State Attorney's investigation and that the facts and circumstances revealed did not warrant prosecution at the time.

   
   

3. On July 28, 1991, the Petitioner was arrested for alleged spouse battery. As a result, the Petitioner was arrested and charged with violation of his community control conditions. On September 19, 1991, a "No Information" was filed in the battery case stating that the State Attorney's Office had taken testimony under oath at a State Attorney's investigation and that the facts and circumstances revealed did not warrant prosecution at the time. Nonetheless, an Order of Modification of Community Control was entered on October 28, 1991, adding a condition that the Petitioner attend and successfully complete marriage/family counseling.

   
   

4. On or about April 19, 1992, the Petitioner again was arrested for alleged spouse battery. On July 21, 1992, a "No Information" was filed in the case stating that the State Attorney's Office had taken testimony under oath at a State Attorney's investigation and that the facts and circumstances revealed did not warrant prosecution at the time.

   
   

5. Notwithstanding the April 19, 1992, arrest, there was no evidence that the Petitioner's community control program was further modified, and the Petitioner successfully completed the two-year program, as previously modified on October 28, 1991.

6. On April 29, 1993, the Petitioner's civil rights, other than the right to possess and carry a firearm, were restored by Executive Order of the Office of Executive Clemency of the State of Florida.

   
   

7. On or about October 4, 1993, the Petitioner again was arrested for alleged battery. (The record is not clear as to the identity of the alleged victim.) On November 29, 1993, a "No Information" was filed in the case stating that the State Attorney's Office had taken testimony under oath at a State Attorney's investigation and that the facts and circumstances revealed did not warrant prosecution at the time.

   
   

8. There was no evidence of any other criminal arrests or convictions after October 4, 1993. The undisputed testimony of the Petitioner and his character witnesses was that there have been none. The Petitioner and his character witnesses also testified persuasively and without contradiction that, with the passage of time, the Petitioner has rehabilitated himself and that he is now a person of high character and integrity. The Petitioner now understands the importance of avoiding the circumstances that can lead to violations of the criminal law, he appears to have learned how to avoid them, and he appears to be determined to avoid them. Meanwhile, he also has proven himself to be a responsible and caring single father for his children and has made valuable contributions to his community as an adult volunteer, especially in community children's programs.

   
   

9. It is found that, with the passage of time, the Petitioner has rehabilitated himself and that he is now a person of high character and approved integrity so as to qualify for licensure as a limited surety agent (bail bondsman).

   
   

   CONCLUSIONS OF LAW

   
   

10. Section 648.34, Fla. Stat. (1995), provides in pertinent part:

    
    

    (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 char acter 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, terr- itory, or country, whether or not a judgment or conviction has been entered.

    (6) The provisions of s. 112.011 do not apply to bail bondsmen or runners or to appli-

    cants for licensure as bail bondsmen or runners. (Emphasis added.)

11. The pertinent provision of Section 112.011, Fla. Stat. (1995), is subsection (1)(b):

    
    

    Except as provided in s. 775.16 [dealing with punishment for drug offenses], a person whose civil rights have been restored shall not be

    disqualified to practice, pursue, or engage

    in any occupation, trade, vocation, profession, or business for which a license, permit, or certificate is required to be issued by the state, any of its agencies or political sub- divisions, or any municipality solely because of a prior conviction for a crime. However,

    a person who has had his civil rights restored may be denied a license, permit, or certifi- cation to pursue, practice, or engage in an occupation, trade, vocation, profession, or business by reason of the prior conviction

    for a crime if the crime was a felony or first degree misdemeanor and directly related to the specific occupation, trade, vocation, profes- sion, or business for which the license, permit, or certificate is sought.

    
    

12. Initially, the Petitioner based his case on F.A.C. Rule 4-211.031, which is part of "Part IV Law Enforcement Records" and provides that, generally, a criminal record is not an absolute bar to licensure as an insurance representative. But Rule 4-211.029 clearly states: "This rule part does not apply to the licensure of bail bondsmen, runners, or limited surety agents, under Chapter 648, Florida Statutes."

    
    

13. As for the pertinent statutes, it would seem from the language of Section 648.34(2)(f) and (6) that the Legislature intended to make it impossible for a convicted felon to obtain a license as a limited surety agent (bail bondsman), regardless whether his or her civil rights have been restored. DOAH hearing officers and the Department have so held in previous administrative hearings. See, e.g., Recommended and Final Order, Delgado v. Dept. of Ins. and Treas., DOAH Case No. 94-4893, entered August 2, and October 10, 1995. Ordinarily, the courts will defer to the statutory interpretation of an agency charged with administration and enforcement of the statute in question. See Florida Cable Television Ass'n v. Deason, 635 So. 2d 14 (Fla. 1994); Raffield v. State, 565 So. 2d 704 (Fla. 1990), cert. den., 498 U.S. 1025, 111 S.Ct. 674, 112 L.Ed. 2d 666 (1991); Samara Development Corp. v. Marlow, 556 So. 2d 1097 (Fla. 1990).

    
    

14. As referenced in the Delgado Recommended Order and Final Order, there is a serious question as to the constitutionality of Section 648.34(2)(f) and (6), Fla. Stat. (1995), as interpreted by the Department. Essentially the same question was presented in the Sandlin case.

    
    

15. In Sandlin, the Criminal Justice Standards and Training Commission (CJSTC) refused to certify a pardoned felon as a law enforcement officer on the grounds: (1) that Section 943.13(4), Fla. Stat. (1985), appeared to and previously had been interpreted to prohibit the certification of convicted felons, notwithstanding pardon and restoration of civil rights; and (2) that Section 112.011(2)(a), Fla. Stat. (1985), specifically provided that Section

    112.011 "shall not be applicable to any law enforcement or correctional agency." In Sandlin v. Criminal Justice Standards and Training Commission, 518 So. 2d 1292 (Fla. 1st DCA 1987), the court first honestly confronted the clear implications of the pertinent statutes, holding that they prohibited certification, and then held that the statutes were constitutional and certified the constitutional question to the Supreme Court.

16. In Sandlin v. Criminal Justice Standards and Training Commission, 531 So. 2d 1344 (Fla. 1988), the Florida Supreme Court disingenuously held that Section 943.13(4), Fla. Stat. (1985), could be interpreted in pari materia with Section 112.011(1)(b), Fla. Stat. (1985). (In order to reach this result, the Court in its opinion completely ignored Section 112.011(2)(a), Fla. Stat. (1985).) The Court then also held that the statutes had to be so construed, so as to give the CJSTC discretion to certify pardoned felons, in order to avoid an unconstitutional result.

    
    

17. Section 648.34(6), Fla. Stat. (1995), is the functional equivalent of Section 112.011(2)(a), Fla. Stat. (1985). If the Supreme Court was compelled to interpret Section 943.13(4), Fla. Stat. (1985), in pari materia with Section 112.011(1)(b), Fla. Stat. (1985), so as to give the CJSTC discretion to certify pardoned felons, it similarly should be concluded that the Department has discretion under Section 648.34(2)(f), Fla. Stat. (1995), to license the Petitioner as a bail bondsman, notwithstanding Section 648.34(6), Fla. Stat. (1995). There does not appear to be any rational basis for treating the two statutes differently. (In Sandlin, the applicant had been pardoned, but both pardon and restoration of civil rights are matters of executive clemency under Art. IV, Section 8, of the Florida Constitution.) Besides, if the two statutes are not treated the same, the only other conclusion logically to be drawn from the Supreme Court's Sandlin opinion would be that Section 648.34(6), Fla. Stat. (1995), is unconstitutional. See also Lee v. Dept. of Health, etc., 518 So. 2d 364, 364-365 (Fla. 3d DCA 1987) (observing that the Legislature provided for a procedure for an exemption from the disqualification as an HRS employee working with children that otherwise would result from having been convicted of certain felonies, apparently because of the constitutional questions that would arise without the exemption procedure); Calhoun v. Dept. of Health, etc., 500 So. 2d 674 (Fla. 3d DCA 1987) (implying that, were it not for the applicability of Section 112.011(1)(b), Section 402.305(1)(a)26., Fla. Stat. (1985), may well have been held to create an unconstitutional irrebuttable presumption that a prior felony conviction for a narcotics violation made a person forever morally unfit to be licensed as a family day care operator in Florida, regardless of proof of rehabilitation).

    
    

18. The Supreme Court in Sandlin was careful to emphasize that a pardoned felon must demonstrate rehabilitation sufficient to meet the qualifications for licensure. Sandlin, at 1345. In this case, it was found that the Petitioner has rehabilitated himself and that he is now "a person of high character and approved integrity."

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Insurance and Treasurer enter a final order granting the Petitioner's application for licensure as a limited surety agent (bail bondsman).

DONE and ENTERED this 4th day of June, 1996, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON, 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 4th day of June, 1996.

COPIES FURNISHED:

Alvie Edwards, pro se 1544 Bay Street Southeast

St. Petersburg, Florida 33701

Dickson E. Kesler, Esquire Department of Insurance

and Treasurer

612 Larson Building

Tallahassee, Florida 32399-0333

Bill Nelson

State Treasurer and Insurance Commissioner

Department of Insurance and Treasurer

The Capitol, Plaza Level Tallahassee, Florida 32399-0300

Dan Sumner

Acting General Counsel Department of Insurance

and Treasurer The Capitol, PL-11

Tallahassee, Florida 32399-0300

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the Department of Insurance and Treasurer 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 consult with the Department of Insurance and Treasurer concerning its rules on the deadline for filing exceptions to this Recommended Order.

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

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

THE TREASURER OF THE STATE FLORIDA DEPARTMENT OF INSURANCE

BILL NELSON

IN THE MATTER OF: DOAH Case No. 95-5041

ALVIE EDWARDS Case No. 11855-95-A-DEK

/

FINAL ORDER

This cause came before the undersigned Treasurer and Insurance Commissioner of the State of Florida, acting in his capacity as State Fire Marshal for consideration and final agency action. By letter dated July 20, 1995 the Department notified Respondent Alvie Edwards that it intended to deny his application for licensure as a limited surety agent (bail bondsman) on the ground that he had pled nolo contendere to a felony on October 1, 1990. The Respondent timely filed a request for a formal proceeding pursuant to section 120.57(1), F.S. Pursuant to notice, the matter was heard by means of a telephone conference call before J. Lawrence Johnston, Hearing Officer for the Division of Administrative Hearings, on April 10, 1996.

After consideration of the evidence, testimony, exhibits and post-hearing submissions of the parties, on June 4, 1996, the Hearing Officer rendered a Recommended Order (Attached as Exhibit "A") addressing various findings of fact and conclusions of law.

On June 14, 1996, the Department filed Exceptions to the Findings of Fact and Conclusions of Law, paragraphs 2, 8-18 and to the Hearing Officer's recommendation that the Respondent's application for licensure as a limited surety agent be granted.

RULINGS ON DEPARTMENT'S EXCEPTIONS TO FINDINGS OF FACT

The Department has excepted to the paragraph 2 of the Recommended Order which, according to the Department, "appears to be implying that the nolo contendere plea referred to in paragraph 1 of the Recommended Order is in some manner connected with the "No Information" filed on June 26, 1990." The Department argues that the two 1990 cases arose in two different Circuit Courts and are distinct and unconnected.

A finding of fact may not be ignored or overturned unless a review of the entire record reveals a total lack of substantial evidence to support it.

Chakford v. Strum, 87 So.2d 419 (Fla. 1956); also see s 120.57(1)(b)9, F.S. While it appears that the two cases are unrelated, such conclusion is of little or no materiality in determining the ultimate issue in this case, to wit: Whether the Department should grant Respondent a limited surety agent's license. Even if the finding were rejected, it would not necessitate a remand of this matter for further fact finding. Therefore the exception is denied.

The Department also excepts to the findings of fact found in paragraphs 8 and 9 of the Recommended Order. In those findings the Hearing Officer noted that evidence as to Petitioner's clean post-1993 arrest and conviction record was "undisputed" and that his character witnesses "testified persuasively and without contradiction ... [that Respondent] is now a person of high character and integrity." Because the "cold record" delineates Respondent's substantial arrest and conviction record between 1990-1993, these character witness findings are largely immaterial because, as explained below, the statutes at issue are concerned with past criminal records as an indication of current fitness for licensure and not with the volume and credibility of character witness testimony produced post-conviction. The Legislature could easily have made fitness for licensure hinge on the outcome of a swearing contest between character witnesses produced on behalf of felons and nonfelons alike. This it did not do. The Department's exercise of discretion in weighing the Respondent's undisputed criminal history cannot be usurped by a Hearing Officer listening to character witness testimony over a telephone. The Department's exceptions as to such determinations are denied because such findings do not relate to the critical legal issue, i.e., whether the partial restoration of Respondent's civil rights nullifies the Department's consideration of his extensive criminal history in deciding whether to grant him a bail bondsman's license.

RULINGS ON THE DEPARTMENT'S EXCEPTIONS TO THE CONCLUSIONS OF LAW

The Conclusions of Law of the Hearing Officer may be rejected and modified by the agency responsible for the enforcement of the law. Public Employees Relations Commission v. Dade County Police Benevolent Association, 467 So.2d 987 (Fla. 1985); Maynard v. Florida Unemployment Appeals Commission, 609 So.2d 143 (Fla. DCA 1992); Harloff v. City of Sarasota, 575 So.2d 1324 (Fla. 2nd DCA 1991); Siess v. Department of Health and Rehabilitative Services, 468 So.2d 478 (Fla. 2d DCA 1985); Alles v. Department of Professional Regulation, 423 So.2d 624 (Fla. 5th DCA 1982)

The Department of Insurance is the state agency responsible for the interpretation, implementation and enforcement of Chapter 633, and as such its expertise and experience with respect to its proper interpretation is entitled to great deference. Ball v. Florida Podiatrist Trust, 620 So.2d 1018 (Fla. 1st DCA 1993)

The Department has set forth one comprehensive exception to every conclusion of law (paragraphs 10-18) made by the Hearing Officer. They will be treated individually here, paragraph by paragraph:

1. Paragraph 10 of the Recommended Order accurately sets forth the pertinent provisions of Section 648.34, Florida Statutes (1995) . The exception is denied.

   
   

2. Paragraph 11 of the Recommended Order accurately sets forth the pertinent provisions of Section 112.011, Florida Statutes (1995) . The exception is denied.

   
   

3. Paragraph 12 of the Recommended Order contains proper conclusions as to the Department's rules cited therein. The exception is denied.

   
   

4. Paragraph 13 of the Recommended Order contains proper conclusions as to the statute and cases cited therein. The exception is denied.

5. Paragraph 14 of the Recommended Order contains the following statements:

   
   

   As referenced in the Delgado Recommended Order and Final Order, there is a serious question as to the constitutionality of Section 648.34(2)(f) and (6), Fla. Stat. (1995), as interpreted by the Department. Essentially the same question was presented in the Sandlin case.

   
   

   The Department's exception to this conclusion of law is accepted. There is no serious question as to the constitutionality of Subsections 648.34(2)(f) and (6), Florida Statutes (1995). They carry the same presumption of constitutionality as does any other Florida Statute and must be given effect until judicially declared unconstitutional. State ex. re. Atlantic Coast Line

   R. Co., 84 Fla. 592, 94 So. 681, 30 ALR 362 (1922). The Department has, and will continue, to interpret and apply those provisions in such manner as to preserve them free of such defect.

   
   

6. Furthermore, as to that same paragraph and exception, "essentially the same question" was not presented in Sandlin v. Criminal Justice Standards and Training Commission, 531 So.2d 1344 (Fla. 1988). Sandlin held that an applicant who had been previously convicted of a felony and received a pardon was not disqualified from applying for certification as a police officer, solely on the basis of his conviction. The Court allowed the certification board to exercise its discretion in considering Sandlin's application, and decide whether or not to certify him, as it chooses. In the words of the Court, "... it was open, and remained open, for the commission to refuse to appoint him as a police officer because of the serious character of the criminal conduct underlying his conviction." Sandlin, 531 So.2d at 1347. In determining whether to license Mr. Edwards, the Department may take into account and rely upon the nature of his past criminal conduct, the partial restoration of his civil rights, bearing in mind those legislative considerations expressed in Sections 648.34(2)(f) and 648.45(2)(e) and (k) , Florida Statutes (1995). See G.W. Liquors of Collier, Inc. v. Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, 556 So.2d 464 (Fla. 1st DCA 1990). Although Respondent Edwards may have ceased to be ineligible under the relevant statutes, and may now be, in the eyes of the Hearing Officer, "a person of high character and approved integrity" (Recommended Order, para. 9), the Department is refusing to license him because of the serious character of the criminal conduct underlying his conviction, summarized by the Hearing Officer in seven paragraphs (1-7) of his Recommended Order's "Findings of Fact." It is the Department's responsibility, as charged by the Legislature in the cited statutes, and not the Hearing Officer's, to determine whether he should be licensed, notwithstanding his extensive criminal history. The Department has exercised its discretion as allowed by statute and Sandlin and has elected not to grant him a bail bondsman's license.

   
   

7. As to paragraphs 15 and 16 of the Recommended Order, to the extent the Hearing Officer's interpretations of the Sandlin holdings express conclusions of law inconsistent with this decision, the Department's exceptions thereto are also accepted. This constitutional officer finds the Hearing Officer's passing judgment on the First District Court of Appeal's "honesty" and, as he perceives, the Florida Supreme Court's lack thereof ("disingenuously"), impertinent.

8. Similarly, the Hearing Officer's conclusions as expressed in paragraphs

17 and 18 of his Recommended Order are rejected to the extent that they conflict with the foregoing analysis. The Department concurs with the Hearing Officer's conclusion "that the Department has discretion under Section 648.34(2)(f), Fla. Stat. to license the Petitioner as a bail bondsman, notwithstanding Section 648.34(6), Fla. Stat. (1995)." In the exercise of that discretion the Department has decided that Mr. Edwards' application for licensure as a limited surety agent should be rejected because of his extensive criminal history.

WHEREFORE, upon consideration of the record, and being fully advised in the premises, it is ORDERED:

1. The Findings of Fact as determined by the Hearing Officer, are adopted.

   
   

2. The Conclusions of Law as determined by the Hearing Officer, except as rejected and supplemented herein, are adopted.

   
   

3. The Hearing Officer's recommendation that the Department grant the application for licensure is rejected as contrary to the facts and law and ACCORDINGLY the application for licensure as a limited surety agent (bail bondsman) is hereby DENIED.

Any party to these proceedings adversely affected by this Order is entitled to seek review of this Order pursuant to Section 120.68, Florida Statutes, and Rule 9.110, Florida Rules of Appellate Procedure. Review proceedings must be instituted by filing a Notice of Appeal with the General Counsel, acting as Agency Clerk, 612 Larson Building, Tallahassee, Florida 32399-0300 and a copy of the same and filing fee, with the appropriate District Court of Appeal within thirty (30) days of rendition of this Order.

DONE and ORDERED this 26th day of July, 1996.

BILL NELSON

Treasurer and Insurance Commissioner

COPIES FURNISHED TO:

J. Lawrence Johnston Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Pawkway

Tallahassee, Florida 32399-1550

Alvie Edwards, pro se 1544 Bay Street Southeast

St. Petersburg, Florida 33701

Dickson E. Kessler, Esquire Division of Legal Services 612 Larson Building

Tallahassee, Florida 32399-0333

Docket for Case No: 95-005041

Orders for Case No: 95-005041