STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACK MITCHELL, )

)

Petitioner, )

)

vs. ) CASE NO. 84-3293

) DEPARTMENT OF INSURANCE AND ) TREASURER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Bearings, on March 8, 1985, in Orlando, Florida. The issue for determination in this proceeding is whether the petitioner is entitled to a license as a limited surety agent (a bail bondsman).

APPEARANCES

For Petitioner: Scott L. Sterling

The 311 Building

311 North Rosalind Avenue Post Office Box 369 Orlando, Florida 32802

For Respondent: Clark R. Jennings

Suite 413-5, Larson Building Tallahassee, Florida 32301

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. Petitioner Jack Mitchell is a native-born Floridian, now forty-seven years old and is married with one child. He has a degree in sociology from the University of Central Florida and presently works for a nonprofit community organization called Young Blacks in Action. Be has been doing work in the areas of civil rights and social justice for some twenty years, and was formerly an ordained minister and a district executive for the National Boy Scouts of America. He has also worked for Martin Marietta in the area of quality control.

   
   

2. On December 24, 1983, petitioner was in Albertson's Food Store doing some last-minute Christmas shopping for his wife. He picked up two bottles of cologne. He claims that, after shopping for a while, he became concerned that

   he did not have his wallet and that, with the cologne in his hand, he began checking the inside pockets of his coat to look for his wallet. At that point, he was placed under arrest for shoplifting. He further testified that he had no intent to leave the store without paying for the merchandise.

   
   

3. Without an attorney, petitioner pled nolo contendere to retail theft. He asserts that he entered this plea in order to avoid the publicity and embarrassment of a trial, since he is considered a public leader in his community. By Judgment and Sentence recorded on January 23, 1984, the Orange

   County Court adjudged petitioner guilty of retail theft and ordered him to pay a fine of $100.00, and other fees and costs in the amount of $34.00.

   
   

4. Petitioner has never before been convicted of a crime.

   
   

5. In March of 1984, petitioner applied for licensure as a limited surety agent. The respondent denied his application, citing as grounds therefore Section 648.45(2)(e) and (k) , Florida Statutes.

   
   

   CONCLUSIONS OF LAW

6. The pertinent statutory provisions in this case read as follows: "(2) The department shall deny, suspend,

   revoke, or refuse to renew any license issued

   under this chapter or the insurance code, and it shall suspend or revoke the eligibility of any person to hold a license under this chapter or the insurance code, for any viola-

   tion of the laws of this state relating to bail or any violations of the insurance code or for any of the following causes:

   (e) Demonstrated lack of fitness or trust- worthiness 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 conviction has been entered."

   
   

7. Section 648.45(2)(e) and (k), Florida Statutes (1984 Supp.)

   
   

8. The burden of proof in this proceeding lies with the petitioner to demonstrate that he meets all the qualifications for licensure as a bail bondsman. Among those qualifications is an affirmative showing that:

   
   

   "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 judg- ment or conviction has been entered." Section 648.34(2)(f), Florida Statutes (1984 Supp.)

   Retail theft is a crime involving moral turpitude. Petitioner having pled nolo contendere to a crime involving moral turpitude, he has not met the qualifications of a hail bondsman under Section 648.34(2)(f), and the respondent properly denied his application pursuant to Section 648.45(2)(k), Florida Statutes (1984 Supp.) There has been no evidence that petitioner has demonstrated a lack of fitness or trustworthiness to engage in the bail bond business, within the meaning of Section 648.45(2)(e), Florida Statutes.

   
   

9. While concluding that petitioner's application for licensure was properly denied, it must also be recognized that, but for his nolo contendere plea to the misdemeanor offense of retail theft, petitioner appears to comply with all other qualifications for licensure and has never, in his 47 years, been otherwise involved with violations of the law. Were petitioner already licensed under Chapter 648, Florida Statutes, it would have been within the respondent's discretion to either revoke his license or suspend his license for a period of up to one year. Accordingly, under the facts adduced in this proceeding, it appears equitable to afford petitioner the opportunity to reapply for licensure in another year and to afford the respondent the opportunity to review his qualifications for licensure at that time.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that petitioner's application for licensure as a limited surety agent be DENIED, without prejudice to petitioner to reapply for such licensure after the expiration of one (1) year from the date of the Final Order entered in this proceeding.

Respectfully submitted and entered this 8th day of May, 1985, in Tallahassee, Florida.

DIANE D. TREMOR

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of May, 1985.

COPIES FURNISHED:

Clark Jennings, Esquire Department of Insurance 413-B Larson Building Tallahassee, Fla. 32301

Scott Sterling, Esquire

311 N. Rosalind Avenue Orlando, Fla. 32801

Bill Gunter

Insurance Commissioner The Capitol

Tallahassee, Fla. 32301

Docket for Case No: 84-003293

Orders for Case No: 84-003293