STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

A hearing was held pursuant to notice on Thursday, July 30, 2009, by video teleconference in Jacksonville, Florida, and Tallahassee, Florida, before Barbara J. Staros, assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jarahn M. Newman, Esquire

Newman & Mitchell, P.A.

550 Water Street, Suite 1379 Jacksonville, Florida 32202

For Respondent: W. Gautier Kitchen, Esquire

Department of Financial Services Division of Legal Services

200 East Gaines Street Tallahassee, Florida 32399-0333

STATEMENT OF THE ISSUE

Whether Petitioner should be granted a temporary bail bond license with the Florida Department of Financial Services?

PRELIMINARY STATEMENT

On December 31, 2008, Petitioner submitted an application for licensure as a Temporary Resident Limited Surety Agent to the Department of Financial Services (Department). On May 6, 2009, the Department sent a Notice of Denial of Petitioner’s application for licensure. The letter cited as authority Sections 648.27(2), 648.34(2)(e), and 648.45(a)(b)(e) and (k), Florida Statutes.1/

Petitioner disputed the denial and timely requested an administrative hearing. The case was transmitted to the Division of Administrative Hearings for assignment of an administrative law judge on or about July 9, 2009.

On June 12, 2009, A Notice of Hearing by Video Teleconference was issued scheduling the hearing for July 30, 2009. The hearing took place as scheduled.

Respondent pre-filed exhibits on July 20, 2009. At hearing, Respondent’s Composite Exhibit 1 was admitted into evidence.

Respondent called no witnesses. Petitioner offered no exhibits but testified on his own behalf.

On August 17, 2009, a one-volume transcript of the hearing was filed. On August 19, 2009, Respondent filed a Notice of Appearance of Annie Wang, Esquire. On August 24, 2009, Respondent filed a Motion for Time Extension in which to file proposed recommended orders. The Motion was granted. Respondent timely filed a Proposed Recommended Order which was duly

considered in preparation of this Recommended Order. Petitioner did not file a proposed recommended order or any post-hearing submission.

FINDINGS OF FACT

1. Petitioner applied for licensure as a temporary resident surety agent (temporary bail bond agent) on or about December 31, 2008. The Department deemed his application completed on February 5, 2009.

2. In November 1997 in Colquitt County, Georgia, Petitioner pled guilty to a felony charge of possession of more than one ounce of marijuana. He was placed on probation for a period of six years. Pursuant to the Georgia Probation for First Time Offenders Act, there was no adjudication of guilt by the court.

3. On November 7, 2003, Petitioner successfully completed his probation.

4. On November 13, 2003, the Superior Court of Colquitt County issued an order entitled “Record of Discharge and Exoneration of Defendant (First-Offender Act)”. The Notice of Discharge states in pertinent part:

   THEREFORE, IT IS NOTED AND RECORDED that in

   accordance with the provisions of the Probation of First Offenders Act (OCGA 42-8-

   60 et. seq.):

   
   

   1. The defendant has been discharged without court adjudication of guilt;

      
      

   2. That the discharge completely exonerates the defendant of any criminal purpose;

      
      

      asks:

   3. That the discharge does not affect any of said defendant’s civil rights or liberties;

      
      

   4. The defendant is not considered to have a criminal conviction; and

      
      

   5. The discharge may not be used to disqualify a person in application for employment or appointment to office in either the public or private sector.

   (emphasis added)

   
   

5. Question 3 on the Individual Application for New License

   
   

   Have you ever been charged, convicted, found guilty, or plead guilty or nolo contendere (no contest) to a felony or crime under the laws of any municipality, county, state, territory, or country, whether or not adjudication was withheld or a judgment of conviction was entered? Yes/No

   
   

6. Petitioner answered “no” to question 3 on the

   
   

   application for licensure.

   
   

7. Question 20 on the Individual Application for New License asks:

   Have you ever been convicted, found guilty, or plead guilty or nolo contendere (no contest) to a felony under the laws of any municipality, county, state, territory, or country, whether or not adjudication was withheld or judgment of conviction was entered? Yes/No

   
   

8. Petitioner responded “no” to question 20 on the Individual Application for New License.

9. At the end of the application, just above his electronic signature, Petitioner checked a box manifesting agreement with the following declaration:

   Under the penalties of perjury, I declare that I have read the foregoing application for license and that the facts stated in it are true. I understand that misrepresentation of any fact required to be disclosed through this application is a violation of the Florida Insurance and Administrative Codes and may result in the denial of my application and/or the revocation of my insurance license(s).

   
   

10. The Department’s denial letter was based on Petitioner’s criminal history, as well as an allegation of failure to disclose same.

11. Petitioner testified at hearing that during the process of completing his application as a bail bondsman, he sought the advice of an attorney regarding his Notice of Discharge and application. Petitioner received legal advice that his answer to the aforementioned questions should be “no.” Petitioner’s testimony in this regard is found to be credible and is accepted.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Sections 120.569 and 120.57(1), Florida Statutes (2009).

13. Respondent is the state agency with jurisdiction over the licensing of temporary bail bond agents pursuant to Section 248.26, Florida Statutes (2009).

14. As the applicant, Petitioner bears the ultimate burden of proving entitlement to a license. Florida Dept. of Trans. v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Dep't of

    Banking & Fin., Div. of Sec. & Investor Prot. v. Osborne Stern & Co., 670 So. 2d 932, 934 (Fla. 1996).

15. As authority for its denial, the Department cites Section 648.27(2), Florida Statutes, which reads as follows:

    1. For the protection of the people of this state, the department may 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 individual found to be untrustworthy or incompetent who has had his or her eligibility to hold a license or appointment revoked, or who has not established to the satisfaction of the department that he or she is qualified therefore in accordance with this chapter.

       
       

16. As authority for its denial, the Department cites Section 648.34(2)(e), Florida Statutes, which reads as follows:

    1. To qualify as a bail bond agent, it must affirmatively appear at the time of application and throughout the period of licensure that the applicant has complied with the provisions of s. 648.355 and has obtained a temporary license pursuant to such section and:

       
       

       * * *

       
       

       (e) The applicant is a person of high character 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 conviction has been entered.

       
       

17. Pursuant to Section 648.355(1), Florida Statutes, the Department may issue temporary licenses to an individual as a

    limited surety agent or professional bail bond agent, subject to the following:

    1. The department may, in its discretion, issue a temporary license as a limited surety agent or professional bail bond agent, subject to the following conditions:

       
       

       * * *

       
       

       (c) The applicant is a person of high character and approved integrity and has never 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 judgment or conviction is entered.

       
       

18. As authority for its denial, the Department cites Section 648.45(2), Florida Statutes, which states as follows:

    1. 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 if the person:

       
       

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

          
          

       2. Has made a material misstatement, misrepresentation, or fraud in obtaining a license or appointment, or in attempting to obtain a license or appointment.

    
    

    * * *

    
    

    (e) Has demonstrated lack of fitness or trustworthiness to engage in the bail bond business.

    * * *

    
    

    (k) Has been found guilty of, or has 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.

    
    

19. The Department’s Denial is based on Petitioner’s criminal history as well as his failure to disclose same. Petitioner’s failure to disclose his criminal history was based upon his genuine belief, having read the clear language of the Georgia Notice of Discharge and after seeking advice from an attorney, that he should answer “no” to the pertinent questions on the application regarding criminal history.

20. Accordingly, Petitioner’s failure to admit his prior criminal history does not constitute a violation of Section 648.45(2)(b) or (e), Florida Statutes. That is, Petitioner did not make a material misstatement, misrepresentation, or commit fraud in attempting to obtain a license. Likewise, he did not demonstrate a lack of fitness or trustworthiness to engage in the bail bond business by failing to disclose his criminal history.

21. The question remaining is whether the existence of Petitioner’s prior history establishes a violation of Sections 648.45(2)(k) and 648.34(2)(e), Florida Statutes, because he plead guilty to a felony as alleged in the Notice of Denial. While it initially appears that a violation of these provisions occurred, this conclusion must be reconciled with the express provisions of

    a valid court order from a Georgia Court of competent jurisdiction. See generally Rodriguez v. Nasrallah, 659 So. 2d

    437 (Fla. 1st DCA 1995) (court discusses principle of affording full faith and credit to judicial proceedings of other states.)

22. The Georgia Notice of Discharge specified that the discharge may not be used to disqualify a person in employment applications.2/ More significantly, however, the Notice of Discharge specified that the discharge completely exonerates Petitioner from any criminal purpose. Exonerate is defined as “to relieve of a responsibility, obligation, or hardship; to clear from accusation or blame.” Webster’s Ninth New College Dictionary 435 (9th ed. 1984).

23. The Department cites to no authority that allows a state agency, or a state administrative law judge, to ignore the express words of a valid court order, albeit from another state.

24. As to the remaining alleged violation in the denial letter, no evidence was presented that a violation of Section 648.45(2)(a), Florida Statutes, was committed by Petitioner.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law reached, it is

RECOMMENDED:

That Petitioner’s application for licensure as a Temporary Resident Limited Surety Agent be granted.

DONE AND ENTERED this 14th day of October, 2009, in Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 2009.

ENDNOTES

1/ Only a portion of Section 648.27(2) was contained in the letter of denial. The beginning of the first sentence of that subsection appears to have been omitted in error, as page 2 of the denial letter begins mid-sentence.

2/ The undersigned recognizes that this is a licensure, not an employment, case.

COPIES FURNISHED:

Annie Wang, Esquire

Department of Financial Services Division of legal Services

200 East Gaines Street Tallahassee, Florida 32399-0333

Jarahn Newman, Esquire Newman & Mitchell, P.A.

550 Water Street, Suite 1379 Jacksonville, Florida 32292

Tracey Beal, Agency Clerk Department of Financial Services

200 East Gaines Street Tallahassee, Florida 32399-0390

Benjamin Diamond, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307

Honorable Alex Sink Chief Financial Officer

Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of 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: 09-003077

Orders for Case No: 09-003077