STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOBBY E. DURDEN, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2019

) DEPARTMENT OF INSURANCE AND TREASURER, )

)

Respondent. )

)

RECOMMENDED ORDER

For Petitioner: Richard D. Katz, Esquire For Respondent: Lealand L. McCharen, Esquire

This matter was heard in Coral Gables, Florida, on August 25, 1986, by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings. A transcript of the proceedings was filed, and on October 6, 1986, the parties submitted proposed recommended orders. Rulings on the proposed findings of fact submitted by each party are found in the Appendix to this Recommended Order.

ISSUE

The issue in this matter is whether Mr. Durden qualifies for licensure as a bail bondsman in view of the plea of guilty he entered to contributing to the delinquency of a minor in the Criminal Court of Record for Dade County in November, 1963, on which he was convicted and sentenced to three months incarceration.

FINDINGS OF FACT

1. The Respondent, Bobby E. Durden, is 42 years old (Tr. 17). 1/ He has applied for licensure as a limited surety agent with the Florida Department of Insurance (RX 1), which would permit him to become a bail bondsman.

   
   

2. Mr. Durden has received a license as a private investigator by the State of Florida, Department of State, as well as a license to manage a security patrol firm (Tr. 17, 19) despite his past conviction (Tr. 19-20).

   
   

3. Mr. Durden and his common law wife, Cynthia, had five children (Tr. 23). Mr. Durden first met Cynthia approximately 25 years ago, in 1961, when she was 12 or 13 years old and Mr. Durden was around 16 years old (Tr. 23-24). When Mr. Durden was a senior in high school and Cynthia was a freshman in high school (in approximately ninth grade), Cynthia became pregnant by Mr. Durden (Tr. 24).

   
   

4. As a result of this pregnancy, Mr. Durden was charged with the crime of indecent assault upon a female minor under the age of 14 years in violation of Section 800.04, Florida Statutes (1963) in the Criminal Court of Record, Dade

   County, Florida, Case 63-7498. As a result of this prosecution, on November 5, 1963, Mr. Durden pled guilty to the misdemeanor of contributing to the delinquency of a minor and was sentenced to three months confinement in the Dade County Jail (RX 2).

   
   

5. From the time Mr. Durden was released from the Dade County Jail, he and Cynthia lived together as husband and wife (Tr. 25). Mr. Durden supported her over the years, and together they raised their five children (Tr. 26). The youngest child Mr. Durden had with Cynthia is now 18 years old. In about 1975 Mr. Durden and Cynthia separated (Tr. 26).

   
   

6. Two witnesses familiar with Mr. Durden for many years, Georgia Jones Ayers and James Brown, testified as character witnesses for Mr. Durden. The uncontradicted evidence is that Mr. Durden enjoys a reputation for honesty and good moral character (Tr. 14-15).

   
   

   CONCLUSIONS OF LAW

   
   

7. The requirements to receive licensure as a bail bondsman are found in Section 648.34(2), Florida Statutes (1985). The portion of the statute at issue is subsection 648.34(2)(f), Florida Statutes, which requires a demonstration at the time of licensure 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 one year or more under the law of any state, territory or country, whether or not a judgment or conviction has been entered".

   
   

8. Section 648.45(2)(k), Florida Statutes (1985), also applies. It requires the Department of Insurance to deny a license to applicants:

   
   

   "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 one year or more under the law of any state, territory or country, whether or not a judgment or conviction has been entered".

   
   

9. Mr. Durden was not convicted of any felony, although he had been charged with one. The offense to which he pleaded guilty was contributing to the delinquency of a minor, a misdemeanor under Section 828.21, Florida Statutes (1963).

   
   

10. The dispositive question is whether that crime was one involving moral turpitude. The evidence in this case establishes that, while he was in high school, Mr. Durden became involved with a younger girl who became pregnant by him when she was about 14 years old and he was about 18 years old. The applicable case law, including such cases as Pearl v. Florida Board of Real Estate, 394 So.2d 189 (Fla. 3rd DCA 1981), and Adams v. State Professional Practices Council, 406 So.2d 1170 (Fla. 1st DCA 1981), teach that the term "moral turpitude" must be interpreted and applied in the context of the specific

    facts and profession in question. When the profession is one which requires a high degree of public trust and confidence to function effectively, what constitutes good moral character must be evaluated in the light of what is reasonably expected of practicing professionals. Both Pearl and Adams are discipline cases, not cases determining whether a person is entitled to initial licensure in a profession, yet they are instructive. Both involved discipline for possession of controlled substances. The illegal substance involved was not clearly identified in Pearl, marijuana was involved in the Adams case. The Third District decision in Pearl found that conviction for possession of a controlled substance was not a conviction for a crime involving moral turpitude and reversed an order of the Florida Board of Real Estate suspending Mr. Pearl's real estate license for sixty days. In Adams, the possession of 52 marijuana plants led to the revocation of the teaching certificates of two persons. The First District discussed the holding in Pearl but wrote:

    
    

    "In our view, however, the moral standard to be upheld by teachers is different from that of realtors, since teachers are charged by Section 231.09 and 231.28(1) with providing leadership and maintaining effectiveness as teachers. By virtue of their leadership capacity, teachers are traditionally held to a high moral standard in a community. See Negrich v. Dade County Board of Public Instruction, 143 So.2d 498 (Fla. 3rd DCA 1962). Further, the record contains substantial evidence that appellants' possession of marijuana received widespread newspaper publicity in the Lee County area and that many people were aware of the facts involved. The evidence indicates that possession of marijuana is considered a very serious and morally wrong offense in the Lee County community and that appellants' involvement with marijuana had seriously impaired their ability to remain effective teachers. The Council was justified in determining that, by being in possession of

    52 marijuana plants, appellants had not fulfilled their duties of providing leadership and lost their effectiveness as teachers" 406 So.2d at 1172.

    
    

11. Mr. Durden's situation is more similar to the Pearl case than to the Adams case. When determining in Pearl that possession of a controlled substance did not justify suspension of a real estate license, the Third District focused on the intent of the Legislature in enacting the statutes for the licensure of real estate professionals: to ensure the protection of the public from unscrupulous and dishonest real estate brokers and to guard against fraudulent real estate practices, 394 So.2d at 192. A similar purpose is evident from review of Chapter 648 regulating bail bondsmen. Bail bondsmen do not serve the unique leadership function public school teachers serve. There is no evidence that Mr. Durden's past indiscretion is widely known in the community or that it has impaired his current reputation for honesty. Mr. Durden's evidence that he

    is regarded as an honest man is unrebutted. (Tr. 13-15, testimony of Mr. Brown). He has received other licensure from the state which requires good moral character, although the method statutorily prescribed for evaluating good moral character is different under Section 493.306(2), Florida Statutes (1985).

    
    

12. Mr. Durden's conduct in obtaining employment and supporting Cynthia after his release from jail, continuing to live with her and raising five children, and remaining as her husband for many years gives rise to the inference, which the Hearing Officer draws, that the circumstances which led to the conviction for the contributing to the delinquency of a minor were a result of the exercise of poor adolescent judgment, but not the result of an intent to harm Cynthia. When confronted with her pregnancy, Mr. Durden acted responsibly. His conduct viewed as a whole, does not demonstrate "inherent baseness or depravity in the social relations or duties owed by man to man or man to society." Tullidge v. Hollingsworth, 146 50.660,661 (Fla. 1933)(defining moral turpitude and drawing a distinction between errors of judgment and intentional wrongs).

    
    

13. This application of law to the facts proven at the final hearing does not mean that proof of conviction of contributing to the delinquency of a minor is, per se, an insufficient predicate for denial of a license as a bail bondsman. Cf., Pfeiffer v. Police Standards and Training Commission, 360 So.2d 1326 (Fla. 1st DCA 1978) (conviction for disorderly conduct not necessarily a conviction of a crime involving moral turpitude). In another case, with other facts, licensure denial might be appropriate. When looking at the "totality of the circumstances" as the Third District did in Pearl, 394 So.2d at 192, the facts proven here do not rise to the level of moral turpitude or give rise to any legitimate question about Mr. Durden's honesty or his ability to deal forthrightly with the public in bail bonding transactions.

RECOMMENDATION

It is recommended that a Final Order be entered granting the application of Bobby E. Durden for licensure as a limited surety agent as a bail bondsman.

DONE and ORDERED this 31st day of October, 1986 in Tallahassee, Florida.

WILLIAM R. DORSEY, JR.

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 31st day of October, 1986.

ENDNOTE

1/ References to the Respondent's Exhibits well be shown as (RX ), the Petitioner's Exhibits as (PX ) and to the transcript as (Tr. ).

APPENDIX TO RECOMMENDED ORDER IN CASE NO.86-0235

The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985) on the proposed findings of fact submitted by the parties.

Rulings on Proposed Findings of Fact Submitted by Petitioner

1. Accepted in Finding of Fact 4.

2. Generally accepted in Finding of Fact 5.

3. Accepted but corrected in Finding of Fact 3 to indicate that the Durdens had five children.

4. Accepted in Finding of Fact 6.

Rulings on Proposed Findings of Fact Submitted by Respondent

1. Accepted in Finding of Fact 1.

2. Rejected as unnecessary.

3. Included in Finding of Fact 4.

4. Included in Finding of Fact 4.

5. Rejected as cumulative in view of the findings made in Findings of Fact 3 and 4.

COPIES FURNISHED:

Lealand L. McCharen, Esquire Department of Insurance and

Treasurer

413-B Larson Building Tallahassee, Florida 32301

Richard D. Katz, Esquire Suite 330

300 Aragon Avenue

Coral Gables, Florida 33134

Honorable William Gunter State Treasurer and Insurance

Commissioner

The Capitol, Plaza Level Tallahassee, Florida 32301

Don Dowdell, Esquire General Counsel Department of Insurance

and Treasurer

The Capitol, Plaza Level Tallahassee, Florida 32301

Docket for Case No: 86-002019

Orders for Case No: 86-002019