On May 14, 1997, this cause was referred to the Division of Administrative Hearings upon the Second Amended Administrative Complaint, dated March 11, 1997. This proceeding is governed by the issues framed therein.
On June 13, 1997, the undersigned issued a Notice of Hearing for August 21, 1997.
On July 24, 1997, Respondent filed a Motion to Continue Formal Hearing. On August 1, 1997, the undersigned entered an Order of Continuance and Notice of Teleconferencing Hearing for September 17, 1997.
On August 22, 1997, Respondent filed a Motion for Dismissal or for Judgment. On September 2, 1997, Petitioner's Response thereto was filed. By Order of September 8, 1997, the motion was denied.
Over Respondent's objection due to an ancillary Complaint for Declaratory Judgment and Supplemental Relief filed in the Duval County Circuit Court, formal hearing on the merits proceeded on September 17, 1997, as scheduled.
Petitioner presented the oral testimony of Sarah Burt, and offered two exhibits in evidence. The exhibits were admitted in
evidence over Respondent's objection, but subject to further argumentation in the parties' respective Proposed Recommended Orders. The undersigned, having had the benefit of that argumentation, has determined the exhibits are not unusual and are admissible and reliable.
At the close of Petitioner's case-in-chief, Respondent chose to stand mute and present no evidence. Respondent orally moved for a Summary Recommended Order of Dismissal. That motion is here considered and denied.
The transcript of proceedings was filed on October 14, 1997.
All timely filed Proposed Recommended Orders, including but not limited to the proposed findings of fact therein, have been considered in preparation of this Recommended Order.
At all times material, Respondent was licensed in the State of Florida by Petitioner Agency as a limited surety agent, License No. 265986204.
At the time of formal hearing, Respondent's license was suspended, pursuant to a Second Amended Emergency Order of Suspension entered by the Agency on March 11, 1997.
Certified Court documents reveal that on February 10, 1997, Lesley Charles Corbin entered a negotiated plea of nolo contendere to the charge of "aggravated stalking," in the Circuit Court of the Fourth Circuit, in and for Duval County, Florida, in Case No. 96-9760-CF.
The particulars of the charge pled to allege that Respondent "did knowingly, willfully, maliciously, and repeatedly follow or harass . . . [name] . . . after an injunction for protection against repeat violence pursuant to Section 784.046, to-wit: 92-1772-DV, contrary to the provisions of
Section 784.048(4), Florida Statutes."
The Court documents also reveal repetitive previous similar or related criminal charges against Respondent.
Section 784.048(4), Florida Statutes, constitutes a felony of the third degree, punishable as provided in Sections 775.082, 775.083, or 775.084, Florida Statutes, (Supp. 1996).
Under the plea bargain, Count I, alleging aggravated assault pursuant to Section 784.021, Florida Statutes, was dropped, and adjudication was withheld on Respondent's nolo contendere plea to Count II. Respondent was required to enter into nine months of community control followed by one year probation with special conditions to protect the person he had stalked.
Section 775.082(3)(d), Florida Statutes, provides that third degree felonies may be punished by up to 5 years' imprisonment. Section 775.083(1)(c) provides for third degree felonies to be punished by up to a $5,000 fine.
Section 775.084(1)(c)1.b. applies to habitual felony offenders/stalkers and is not relevant here.
The foregoing establishes prima facie facts in evidence, which facts Respondent did not overcome.
Ms. Sarah Burt is the Bail Bond Coordinator for Petitioner Department of Insurance. In that capacity, she is responsible for administrative coordination of all bail bond related matters for the Agency. She is knowledgeable of the practices and procedures of the Agency regarding bail bondsmen and limited surety agency licensure and discipline, pursuant to Chapter 648, Florida Statutes.
Based on her education, training, experience, and actual knowledge, Ms. Burt related that a plea of nolo contendere to a felony charge has always resulted in the Agency denying a licensure application or revoking of an existing license. To the best of Ms. Burt's knowledge and belief, this has been the Agency's consistent procedure in all similar circumstances. She did not know of any licensee who had retained his or her licenses after the Agency became aware the licensee had pled nolo contendere to a felony.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57(1), Florida Statutes.
Section 648.45(1), Florida Statutes, provides, in pertinent part,
The department shall, upon receipt of an information or indictment, immediately temporarily suspend any license
or appointment issued under this chapter when the licensee has been charged with a felony or a crime involving moral turpitude or a crime punishable by imprisonment for 1 year or more under the law of any state, territory, or country. Such suspension shall continue if the licensee has been found guilty of, or has pleaded guilty or no contest to, the crime, whether or not a judgment of conviction has been entered, during a pending appeal. A person may not effect any additional bail bonds after suspension of his or her license or appointment. However, he or she may discharge any liability on bonds effected prior to such suspension. (Emphasis supplied.)
Section 648.45(2), Florida Statutes, provides, in pertinent part,
The department shall deny, suspend, revoke, or refuse to renew any license or appointment issued under this chapter or 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:
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(a) Lack of one or more of the qualifications specified in this chapter for a license or appointment.
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(e) Demonstrated lack of fitness or trustworthiness to engage in the bail bond business.
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Willful failure to comply with or willful violation of any proper order or rule of the department or willful violation of any provision of this chapter or the insurance code.
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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
for 1 year or more under the law of any state, territory, or country, whether or not a judgment or conviction has been entered. (Emphasis supplied)
Section 648.34(2)(e), Florida Statutes, provides,
The applicant is a person of high character and approved integrity and has not been convicted 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 supplied.)
Section 648.45(3), Florida Statutes, provides, in pertinent part,
The department may deny, suspend, revoke, or refuse to renew any license or appointment issued under this chapter or the insurance code, or it may suspend or revoke the eligibility or 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:
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(a) A cause for which issuance of the license or appointment could have been refused had it then existed and been known to the department.
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(c) Violation of any law relating to the business of bail bond insurance or violation of any provision of the insurance code.
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(e) Being found to be a source of injury or loss to the public or detrimental to the public interest or being found by the department to be no longer carrying on the bail bond business in good faith.
Petitioner has established by clear, convincing, and
unrefuted evidence that Respondent has pled nolo contendere to a felony punishable by imprisonment of one year or more under the law of the State of Florida. See, Sections 648.34(2)(e) and 648.45(2)(k), Florida Statutes.
Petitioner is accordingly subject to discipline pursuant to Sections 648.45(2)(a), 648.45(2)(k), and 648.45(3)(a), Florida Statutes.
The named statutes clearly make it both permissible and mandatory for the Agency to suspend or revoke Respondent's license for these violations. The other statutes cited in the Second Amended Administrative Complaint establish the due process procedure and other possible penalties, such as probation.
Petitioner has also demonstrated that historically, as the licensing and disciplinary agency involved, it has consistently denied or revoked licenses for the foregoing violations.
While it may seem fundamental that stalking by limited surety agents, who act as fiduciaries between the courts and those accused of criminal acts, relates to the business of bail bonds, it must be noted that Petitioner has not affirmatively shown, either by testimony or case law, that Respondent's crime of stalking relates to the business of bail bonds or to the insurance code or that it has resulted in loss to the public or is detrimental to the public interest.
Petitioner likewise does not forcefully assert by way
of argument or case law that Respondent's situation has a nexus to "demonstrated lack of fitness" or "willful violation." However, Petitioner does assert that the record demonstrates loss of the "high character," required by Section 648.34(2)(e), Florida Statutes, for licensure as a bail bondsman, citing Natelson v. Department of Insurance, 454 So. 2d 31 (Fla. 1st DCA 1984).
Without cited case law, the undersigned declines to assume that merely pleading nolo contendere constitutes a loss of high character. Nor does the undersigned consider that a plea of nolo contendere automatically equates with guilt of the underlying felonious behavior charged. See Son v. Department of Business and Professional Regulation, 608 So. 2d 75 (Fla. 3d DCA 1992); Clark v. School Board of Lake County, 596 So. 2d 735 (Fla. 5th DCA 1992); Kinney v. Department of State, Division of Licensing, 501 So. 2d 129 (Fla. 5th DCA 1987); Ayala v. Department of Professional Regulation, 478 So. 2d 1116 (Fla. 1st DCA 1985); and The Florida Bar v. Lancaster, 448 So. 2d 1019 (Fla. 1984).
Nonetheless, in the instant case, Respondent had the opportunity to rebut the Agency's prima facie case or to attack the underlying circumstances of the criminal case plead-to. While he objected to the admission of evidence herein upon grounds it could not be related to him specifically, he did not offer evidence to refute that he had entered the nolo contendere
plea established in the Agency's case-in-chief.
The Florida Legislature has seen fit to make the plea of nolo contendere to any one year felony, by itself, sufficient grounds for denial, suspension, or revocation of a limited surety (bail bondsman's) license. See the emphasized portions of Sections 648.34(2)(e); 648.45(2)(a); 648.45(2)(k); and 648.45(3)(a), Florida Statutes, supra. This language was undoubtedly enacted in response to case law relating to other license disciplinary actions. This type of statutory language has been legitimized by the courts. See Molinari v. Department of Business and Professional Regulation, 688 So. 2d 388 (Fla. 4th DCA 1997), distinguishing what an agency may do before and after passage of a similar statute; and McNair v. Criminal Justice Standards Commission, 518 So. 2d 390 (Fla. 1st DCA 1987), holding that an agency with similar statutory authority could legitimately bar from employment those who plead nolo contendere to felonies, and that no constitutional violations were presented by such a statute, specifically no violation of the separation of powers or substantive due process.
