. FILED REPRESENTING ALEX SINK NOV 20 2008 CHIEF FINANCIAL OFFICER STATE OF FLORIDA IN THE MATTER OF Dockeied bys, O: if WILLIE DAVID CASE NO: 93142-07-AG : / FINAL ORDER THIS CAUSE came on before Alex Sink, as Chief Financial Officer, for consideration of and final agency action on a Written Report and Recommended Order (attached as Exhibit A) entered by Hearing Officer Jill Bennett, after an informal hearing conducted pursuant to Section 120.57(2), Florida Statutes. No exceptions were filed. Therefore, after review of the record, including an audio tape of the proceedings and admitted exhibits, and being otherwise fully apprised in all material premises, IT IS HEREBY ORDERED that the Findings of Fact of the Hearing Officer are adopted in full and incorporated herein by reference as the Department’s Findings of Fact, and the Conclusions of Law reached by the Hearing Officer are adopted in full and incorporated herein by reference as the Department’s Conclusions of Law. IT IS HEREBY FURTHER ORDERED that the Recommendation made by the Hearing Officer is adopted by the Department, and the application for reinstatement of bail bond agent license #4062044 submitted by the Petitioner, WILLIE DAVID, is DENIED. DONE and ORDERED this £ Or day of_NWovemMBER , 2008. ee a \) nnn Cy o te pe Tammy Teston Deputy Chief Financial Officer Filed March 10, 2009 1:35 PM BR ministrative Hearings. NOTICE OF RIGHTS 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 petition or notice of appeal with the General Counsel, acting as the agency clerk, at 612 Larson Building, Tallahassee, Florida 32399-0333, and a copy of the same with the appropriate District Court of Appeal within thirty (30) days of rendition of this Order. Copies furnished to: Jerry Girley, Esquire 125 East Marks Street Orlando, Florida 32803 Attorney for the Petitioner Jill Bennett, Esquire Department of Financial Services Division of Legal Services 200 East Gaines Street 612 Larson Building Tallahassee, FL 32399-0333 Regina Keenan, Esquire Department of Financial Services Division of Legal Services 200 East Gaines Street 612 Larson Building Tallahassee, FL 32399-0333 Attorney for the Respondent ALEX SINK CHIEF FINANCIAL OFFICER STATE OF FLORIDA IN THE MATTER OF: WILLIE DAVID CASE NO. 93142-07-AG / Pursuant to an order relinquishing jurisdiction to the Department from the Florida Division of Administrative Hearings, dated March 26, 2008, and a Scheduling Order issued by the hearing officer, Jill Bennett, dated July 28, 2008, this matter was considered by written submissions in accordance with Section 120.57(2), Florida Statutes. The purpose of the proceeding was to receive documentary evidence as to whether the Respondent (hereinafter referred to as “Department” or “Respondent”) properly denied Petitioner, WILLIE DAVID’S, request to reinstate his bail bond agent license. APPEARANCES For Petitioner: Jetry Girley Attorney at Law 125 East Marks Street Orlando, FL 32803 For Respondent: Regina Keenan Senior Attorney. Department of Financial Services. Division of Legal Services 200 East Gaines Street, 612 Larson Tallahassee, Florida 32399-0333 BACKGROUND On August 29, 2007, Petitioner filed a Request for Reinstatement of Bail Bond License with the Department seeking to overturn the Department’s June 8, 2004 revocation of Petitioner’s bail bond license. On October 25, 2007, the Department filed a Notice of Denial of Request for Reinstatement of Bail Bond Agent License. On November 19, 2007, the Department received Petitioner’s election of proceeding form requesting a hearing pursuant to Section 120.57(1), Florida Statutes, and Petition for Formal Adversarial Proceeding. The initial hearing with the Division of Administrative Hearings was scheduled on January 9, 2008. On January 8, 2008, a pre-hearing conference was held before Judge Bram D. Canter, who entered an order granting Petitioner’s Motion to Continue, dated January 7, 2008. The hearing was rescheduled for March 27, 2008. On March 12, 2008, the Department filed a Motion for Entry of Summary Recommended Order. On March 25, 2008, counsel for Petitioner filed a Response to Motion for Summary Recommended Order. On March 26, 2008, pursuant to Section 120.57(1)(i), Florida Statutes, Judge T. Kent Wetherell, II, entered an Order Closing File that cancelled the hearing scheduled for March 27, 2008 and relinquished jurisdiction to the Department for further proceedings under Section 120.57(2), Florida Statutes, if appropriate. On April 2, 2008, counsel for Petitioner emailed a request for an informal hearing pursuant to Section 120,.57(2), Florida Statutes. A telephonic hearing for this matter was scheduled for June 12, 2008. At the commencement of the hearing on June 12, 2008, counsel for Petitioner requested that the hearing be rescheduled. Counsel for the Department did not object and the hearing was subsequently rescheduled to July 21, 2008, At the commencement of the hearing on July 21, 2008, counsel for Petitioner requested that the matter be resolved by written submissions in accordance with Section 120.57(2), Florida Statutes. Counsel for the Department did not object on the condition that these written submissions would result in the final disposition of this matter, On July 28, 2008, a Scheduling Order for consideration of this matter by written submissions was issued. On August 4, 2008, Petitioner filed a Petition for Relief with attached documentary evidence challenging the grounds upon which the Department denied his Petition for Reinstatement of Bail Bond License. On August 4, 2008, the Department filed its Exhibit List. On August 11, 2008, Petitioner filed an Amended Petition for Relief to correct certain clerical errors in the original petition. On August 11, 2008, the Department filed its objections and rebuttal exhibits. The Department filed its Proposed Recommended Order on August 18, 2008. EXHIBITS The Petitioner submitted the following exhibits attached to his Petition for Relief and referenced in his Amended Petition for Relief: Petitioner’s Exhibit A. General Surety Appearance Bond issued by Gemini Bail Bonds dated April 18, 2002. Petitioner’s Exhibit B. Appearance Bond issued by Willie David dated April 10, 2002. Petitioner’s Exhibit C. Official Bank Check No, 831210198 and Postal Meter receipt dated May 4, 2005. Exhibits A was accepted without objection. Exhibit B was accepted over the Department’s objection. Exhibit C was accepted. The Respondent submitted the following exhibits for consideration which were entered without objection: Respondent’s Exhibit 1. DOAH Order Closing File. Respondent’s Exhibit 2. Response to Motion for Summary Order. Respondent’s Exhibit 3. Motion for Entry of Summary Recommended Order and Proposed Summary Recommended Order. Respondent’s Exhibit 4. Respondent’s Exhibit 5. Respondent’s Exhibit 6. Respondent’s Exhibit 7. Respondent’s Exhibit 8, Respondent’s Exhibit 9. Respondent’s Exhibit 10. Respondent’s Exhibit 11. Respondent’s Exhibit 12. Respondent’s Exhibit 13. Respondent’s Exhibit 14. Respondent’s Exhibit 15, Respondent’s Exhibit 16. Respondent’s Exhibit 17. Respondent’s Exhibit 18. Respondent’s Exhibit 19. Respondent’s Exhibit 20. Respondent’s Exhibit 21. Respondent’s Exhibit 22. 1. The Order of Revocation at issue in these proceedings was entered on June 8, 2004, following Petitioner’s failure to respond to an Administrative Complaint (“Administrative Department’s First Request for Production. Department’s Notice of Serving it’s First Set of Interrogatories. Notice of Hearing by Video Teleconference. Notice of Transfer. Notice of Appearance of Counsel. Order Canceling Hearing. Petitioner’s Motion to Continue. Respondent’s Exhibit. Respondent’s Exhibit and Witness List. Order of Pre-hearing Instructions. Notice of Hearing by Video Teleconference. Response to Initial Order. Initial Order Notice of Denial of Request for Reinstatement of Bail Bond Agent License. Petition for Formal Adversarial Proceeding and Hearing. Election of Proceeding, Agency Referral. Consent Order in Case No. 79970-05-AG, Correspondence to Dept. of Insurance from Alma Sparks dated May 9, 2005. FINDINGS OF FACT Complaint”), dated October 7, 2003 and which was served on Petitioner by certified mail on October 15, 2003. 2. On August 29, 2007, Petitioner filed a Request for Reinstatement of Bail Bond License with the Department seeking to overturn the Department’s June 8, 2004, revocation of his Bail bond license. On October 25, 2007, the Department filed a Notice of Denial of Request for Reinstatement of Bail Bond Agent License. 3. This matter was originally referred to the Division of Administrative Hearings to resolve disputed issues of fact in accordance with Section 120.57(1), Florida Statutes. [Department’s Exhibits 1-20] 4, On March 26, 2008, after considering a Motion for Summary Recommended Order filed by the Department and Petitioner’s response thereto, the Division of Administrative Hearings entered an Order Closing File and relinquishing jurisdiction to the Department pursuant to Section 120.57(1)(i), Florida Statutes. [Department’s Exhibit’s 1, 2, and 3] 5. The Order Closing file set forth undisputed material facts, which are adopted and incorporated herein by reference as follows: a. Petitioner does not dispute the fact that his license was previously revoked by the Department. Rather, his petition alleges that the revocation of his license was improper because of omissions and ambiguities in the Administrative Complaint that led to the revocation of his license, which made it “impossible” for him to properly respond and/or “misled (or lulled)” him into not responding. b. The petition also’ alleges that Petitioner was misled or lulled into not responding to the Administrative Complaint based upon the statements made by a Department investigator in a February 2002 letter. c. The petition amounts to a collateral attack on the prior revocation of Petitioner's license, which is beyond the proper scope of this proceeding. The reasons that Petitioner's license was revoked and the reasons why Petitioner failed to respond to the Administrative Complaint are irrelevant under Section 648.49(2), Florida Statutes, which is the primary statute relied upon by the Department for the preliminary agency action at issue in this case. d. The reasons why Petitioner did not respond to the Administrative Complaint in the license revocation proceeding would only be relevant if Petitioner's request for reinstatement of his license was somehow construed to be a belated petition for hearing on the Administrative Complaint and if the Department's October 25, 2007, letter was somehow construed to be a denial of that request for hearing based upon its untimeliness. e, However, even if the pleadings were liberally construed in that manner, there are still no disputed issues of material fact warranting a hearing under Section 120.57(1), Florida Statutes, The certified documents attached to the Department's motion show that Petitioner was assured by the Department's investigator in a letter dated February 27, 2002, that he "will be given a full opportunity to respond to any consumer allegations before the investigator's reports are submitted to Tallahassee"; that Petitioner was given that opportunity, as reflected in correspondence between him and the Department from June 2002 to March 2003; that the Administrative Complaint was served on Petitioner on October 15, 2003; that the complaint included the complete names of the victims, not their initials, as alleged in the petition; that the complaint clearly and unambiguously advised Petitioner of the consequences of his failure to respond to the complaint by stating: "YOUR FAILURE TO RESPOND IN WRITING WITHIN TWENTY-ONE (21) DAYS OF YOUR RECEIPT OF THIS NOTICE WILL CONSTITUTE A WAIVER OF YOUR RIGHT TO REQUEST A PROCEEDING ON THE MATTERS ALLEGED HEREIN AND AN ORDER OF REVOCATION WILL BE ENTERED AGAINST YOU" (capitalization in original); that the complaint informed Petitioner of the procedure for requesting a hearing and advised him that his failure to follow that procedure "may result in the request being denied"; that Petitioner did not request a hearing; and that Petitioner's license was thereafter revoked through an Order of Revocation entered on June 8, 2004. [Department’s Exhibits 1 & 3] 18. Pursuant the Order Closing File and Petitioner’s request for an informal hearing, the Department conducted an informal hearing based on written submissions pursuant to 120.57(2), Florida Statutes. 19. Petitioner now reasserts the claim that “the notice sent to him by the department was equivocal and did not place him on sufficient notice that failure to act within the requisite 21 days that would result in a default judgment being entered against him in this matter.” [Amended Petition for Relief] 20. In addition, Petitioner contends that the Department should reinstate his license based on other mitigating factors, Petitioner states that the delay in return of funds was not “intentional or designed to defraud the customers out of their money” and “[bJoth parties did later receive complete refunds.” Petitioner also asserts a factual error in the Administrative Complaint. Finally, Petitioner cites the State of Florida’s dismissal of related criminal charges in the case. State of Florida v. Willie David, Circuit Court of the Ninth Judicial Circuit, in and for Orange County, Florida, Case Number 48-04-CF-5343-O/A, Division 17. [Amended Petition for Relief] CONCLUSIONS OF LAW 1. Pursuant to Chapters 120 and 648, Florida Statutes, the Department has jurisdiction the parties and subject matter of this proceeding. 2. As the applicant for the relief sought, Petitioner bears the general burden of proving entitlement to licensure, The Petitioner must meet this burden by a preponderance of the evidence. Florida Department of Transportation v. J. W. C, Company Inc., 396 So. 2d 778, 788 (Fla. Ist DCA 1981). 3. Petitioner asserts that he is entitled to reinstatement of his bail bond license under Chapters 120 and 648, Florida Statutes. 4, Petitioner argues against the findings in the Order Closing File, stating that the Department should reinstate his license in order to be consistent with its decision overturning a revocation of a bail bond license in the case, In the Matter of: Alma Paulette Sparks, Department Case No. 79970-05-AG, 5. However, the facts in Sparks are distinguishable from the instant case thus warranting the application of the doctrine of equitable tolling. While Petitioner in the instant case provided no response to the Administrative Complaint, Ms. Sparks sent the Department a written response within 21 days of service of the administrative complaint giving rise to her revocation. In the letter, Ms. Sparks informed the Department that she had arranged for a refund to the consumer and that the consumer “does not wish to persue [sic] this matter any longer.” [Department’s Exhibit 21] 6. The following legal conclusions, originally published in the Order Closing File, are applicable in this case and are hereby adopted and incorporated herein by reference: a. These facts, even when viewed in the light most favorable to Petitioner, do not reflect that Petitioner:was “in some extraordinary way . . . prevented from asserting his rights” in the license revocation proceeding so as to implicate the doctrine of equitable tolling under Machules v. Department of Administration, 523 So, 2d 1132 (Fla. 1988). b. To the contrary, these facts clearly demonstrate that Petitioner was given proper notice of the complaint against him and of the consequences of his failure to request a hearing on that complaint and that he nevertheless failed to assert his rights in that proceeding. [Department’s Exhibit 1] 7. In sum, in the Sparks case, the request for reconsideration was made within two months of the date of the revocation and was therefore appropriate for application of the doctrine of equitable tolling, Conversely, Petitioner in the instant case filed his request to reinstate his bail bond license over three years from the date of revocation. 8. Even if Petitioner demonstrated equitable circumstances which prevented a timely response to the Administrative Complaint in 2003, the doctrine of equitable tolling takes into account the Department’s right not to be called upon to defend a stale claim. Machules vy. -Department-of Administration, 523-So,-2d1132-Fla, 1988)..-[Department’s Exhibits.3.&.21]. 9. Moreover, contrary to Petitioner’s contention, Section 648.49(1), Florida Statutes, does not provide a mechanism for examining mitigating factors for a license revocation. Instead, section 648.49(1), Florida Statutes, addressing the suspension of licenses, states: The department shall, in its order suspending a license or appointment or the eligibility to hold a license or appointment, specify the period during which the suspension is to be in effect, but such period may: not exceed 2 years, The _license_or appointment and eligibility to hold a license or appointment shall remain suspended during the period so specified, subject, however, to any rescission or modification of the order by the department, or modification or reversal thereof by the court, prior to expiration of the suspension period. A license or appointment which has been suspended may not be reinstated, nor shall the eligibility to hold such license or appointment be reinstated, except upon request for such reinstatement, but the department may not grant such reinstatement if it finds that the circumstances for which the license or appointment was suspended still exist or are likely to recur, In each case involving suspension, the department has the discretion to require the former licensee to successfully complete a basic certification course in the criminal justice system, consisting of not less than 80 hours approved by the department. (emphasis added) 10. ‘Petitioner is ineligible to hold a license as a bail bond agent, per Section 648.49(2), Florida Statutes, which states, “[a]ny individual who is licensed under any license which has been revoked or who has had his or her eligibility to hold a license revoked by the department may not apply for another license under this chapter,” and Section 648.49(3), Florida Statutes, which states in part, “after revocation of the license, the former licensee may not engage in or attempt to profess to engage in any transaction or business for which a license or appointment is required under this chapter.” 11. Petitioner argues against his ineligibility for licensure, stating that this is a petition for reinstatement rather than a new application for a bail bond license and that Section 648,49(1), Florida Statutes, provides the Department with factors that it should consider when making a determination as to reinstatement of a revoked or suspended license, including among other things, the requirement that the former license successfully complete a basic certification course. 12. It is significant to note that paragraph (1) of Section 648.49, Florida Statutes, as set forth more fully in paragraph 29 above, is limited to license suspensions. If the Legislature had intended to require the Department to adhere to the limitations set forth therein as to suspensions in circumstances involving a license revocation it could have expressly done so by adding the term “revocation,” and if it had done so, arguably the requirements specifically set forth as to suspensions would have also been applicable to Petitioner’s revocation. But the Legislature did not include the term revocation in paragraph (1) of Section 648.49, Florida Statutes. Therefore, there is no requirement that the Department must consider the factors set forth in paragraph (1) when addressing the matter of a license revocation. While Section 648.49, Florida Statutes addresses the duration of suspension or revocation, the issue of revocation is limited to paragraphs (2) through (4). Accordingly, paragraph (1), is inapplicable to a license revocation. 13. Since Petitioner failed to meet his burden of proof to the Department with respect to the requirements of Section 648.49(1), Florida Statutes, the Department acted appropriately when it denied Petitioner’s request for reinstatement of his bail bond agent license. The Department’s denial must be affirmed. RECOMMENDATION Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which affirms the Department’s denial of Petitioner’s request for reinstatement of his bail bond agent license #A062044, RESPECTFULLY SUBMITTED this Tay of October; 2008. Jill bee squire Hearin Florida Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, FL 32399-0333 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Recommended Order has been provided by U.S. Mail to Jerry Girley, Esquire, 125 East Marks Street, Orlando, FL 32803 and by hand delivery to Regina Keenan, Esquire, Department of Financial Services, Division of Legal Services, 200 East Gaines Street, Tallahassee, Florida 32399-0333 this ay of October, 2008. Hearing Officer 12

Docket for Case No: 07-005491