STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES ALLEN REYNOLDS, )

)

Petitioner, )

)

vs. ) CASE NO. 87-2675

) DEPARTMENT OF INSURANCE AND ) TREASURER, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter was heard in Miami, Florida, on September 11, 1987, by William

1. Dorsey, Jr., the Hearing Officer assigned by the Division of Administrative Hearings. A transcript of the proceedings was filed on October 5, 1987, and the parties filed proposed findings of fact and conclusions of law. Rulings on proposed findings of fact are made in the appendix to this recommended order.

   
   

   Michael Dubiner, Esquire, Boynton Beach, Florida, for Petitioner Lealand L. McCharen, Esquire, Tallahassee, Florida, for Respondent

   ISSUE

   
   

   The issue is whether Mr. Reynolds' application to take the bail bondsman (limited surety agent) examination should be granted. The Department proposed to deny Mr. Reynolds' application because he had been adjudged guilty of petty larceny, a crime involving moral turpitude. It had also maintained that he had failed to state on his application that he had been charged by indictment with a serious crime. Mr. Reynolds was found not guilty of those charges, and the Department dropped those allegations at the final hearing.

   
   

   FINDINGS OF FACT

   
   

   1. James Allen Reynolds is 44 years old. He applied on November 3, 1986 for examination as a limited surety agent. Question 8 on the application form reads:

      
      

      Have you ever been convicted of or pleaded guilty or no contest to a crime involving

      moral turpitude , a felony , or a crime punishable by imprisonment of one (1) year or more under the law of any state; territory or country; whether or not a judgment or conviction has been entered ?

      
      

      In each of the blanks Mr. Reynolds answered "no" because he did not believe he had been convicted of a crime involving moral turpitude.

   2. The Department denied Mr. Reynolds' application for examination for licensure as a bail bondsman on May 12, 1987 due to an adjudication of guilt of petty larceny on March 4, 1961.

      
      

   3. Mr. Reynolds is currently employed as the Director of Public Relations for Baker Bonding Company, a bail bonding company located in Miami, Florida. In this marketing position, his duties include involvement in the community to upgrade the image of the bail bonding business among lawyers and the public in general, and that of Baker Bonding in particular. Mr. Reynolds may be more effective in his work if he is licensed as a bail bondsman. Mr. Reynolds has been active for many years in counseling children with musical ability, especially abused children who look to a career in music as a way out of their present situation. Mr. Reynolds is a experienced operatic tenor, and has sung with opera companies throughout Europe. Until recently, he was self-employed as a voice teacher and opera coach.

      
      

   4. Mr. Reynolds' employer, Gary Baker, and two community witnesses, Al Guffanti and Rabbi Nathan Bryn testified that they are familiar with Mr. Reynolds, and know him to be of good moral character.

      
      

   5. The Department of Insurance proposed to deny the application for examination because in March, 1961, when Mr. Reynolds was 18 years old, he was accused by a Notice of Charge and Violation in the Municipal Court for the City of Coral Gables of the following:

      
      

      On the 13th day of March, 1961, [he] did take, steal, and carry away a small file case, and clothing out of a `58 Plymouth Convertible belonging to Mr. Chutter of 1268 South Alhambra, Coral Gables, Florida, with the intent to deprive the owner of said belongings and to convert it to the use of the taker, or to some other person than the owner. Said belongings having a value of less than 100.00, and further was observed siphoning gasoline from car owned by Mrs.

      Bernice Hamert and further did wander the streets of this municipality and [was] unable to give a good account of himself.

      
      

      The charge alleged such conduct violated Ordinance 666, Chapter 2; Section [illegible] of the City Code.

      
      

   6. Mr. Reynolds pled not guilty to the charge, but was found guilty by the municipal judge on March 14, 1961, fined $50.00 and $5.00 court costs.

      According to the record, Mr. Reynolds' parents were notified of the matter by certified mail. Although the record has the handwritten notation on it in the "Remarks" section "M. Livitis, Atty." Mr. Reynolds was unrepresented in the municipal court, there is no record of any such attorney in Coral Gables at the time.

      
      

   7. The events leading to the charge were that on March 13, 1961, Reynolds was with four other friends returning from a softball game in South Miami. The group stopped for hamburgers at a Royal Castle on South Dixie Highway near Red Road, across from the University of Miami. When Mr. Reynolds went in to buy the hamburgers, the other people in the car siphoned some gasoline from another car. While Mr. Reynolds did not participate in this, he realized that the others

      would do it while he bought the hamburgers, because they needed the gasoline to finish their trip home to the northern Keys, where they lived.

      
      

   8. Other than the difficulty in the municipal court of Coral Gables, Mr. Reynolds has not been found guilty in any forum of any misconduct.

      
      

      CONCLUSIONS OF LAW

      
      

   9. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes (1985).

      
      

   10. Under Section 648.34(2)(f), Florida Statutes (1985):

       
       

       To qualify as a bail bondsman, it must affirmatively appear at the time of application and throughout the period 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.

       
       

   11. Under Section 648.45(2), Florida Statutes (1985):

       
       

       The Department shall . . . suspend or revoke the eligibility of any person to hold a license under this chapter or the insurance code . . . for any of the following causes:

       * * *

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

       
       

   12. The Department argues in its proposed recommended order that the recent decision of the Florida Supreme Court in Ferris v. Turlington, 510 So.2d

       292 (Fla. 1987) establishes not only the rule that a professional license can only be revoked by clear and convincing evidence, but that because the Court observed that revocation should involve as much circumspection as original licensure the applicant for a license must demonstrate entitlement to licensure by clear and convincing evidence. The issue of the burden of proof in obtaining licensure was not before the Ferris court, nor was it addressed by the Court.

       
       

   13. According to Rule 28-6.008(3), Florida Administrative Code, a license "applicant shall have the burden of establishing entitlement to the license." This has never been thought to require more than the traditional preponderance of evidence ordinarily applicable in civil and administrative proceedings.

       Ferris does not alter the burden of proof required here, which is a preponderance only.

       
       

   14. The Department of Insurance maintains that anyone convicted of theft (no matter how small the item involved nor how long ago the conviction occurred) is barred from licensure as a bail bondsman, and no evidence of rehabilitation will overcome that ineligibility for licensure (TR 26, 31). Fortunately, this case does not directly present the question whether such a policy is rational or sustainable. Cf. State ex rel. Corbett v. Churchwell, 215 So.2d 302, 304 (Fla. 1968) (conviction of municipal offense held not to forever exclude applicant for real estate licensure as a matter of law. Applicable statute required applicants to be "of good character.")

       
       

   15. Mr. Reynolds has not been convicted of any crime. In 1958 the Third District Court of Appeal held in City of Miami v. Gilbert, 102 So.2d 818, 819 (Fla. 3d DCA 1958) that a proceeding in a municipal court for violation of a city ordinance which could lead to a fine of $500 or a sentence of sixty days in jail was not a "criminal prosecution." More recently, the Second District Court of Appeal in Pridgen v. City of Auburndale, 430 So.2d 967 (Fla. 2d DCA 1983) held that "a municipal ordinance violation is not a criminal violation," id at 968. The Attorney General of Florida is of the same view; having opined in AGO 72- 377 that violation of a municipal ordinance is not a crime. Under Section 125.69, Florida Statutes (1961), violation of a county ordinance would have been a misdemeanor, but in 1961 no Florida law made violation of a municipal ordinance a crime. At the time of Mr. Reynolds' difficulty in the City of Coral Gables, Section 165.19, Florida Statutes (1961) gave municipalities the power to adopt ordinances with penalties of up to $500 or imprisonment of up to sixty days, but ordinances defined violations, not crimes. See also article V, Section 1 and Article VIII, Section 8 of the Florida Constitution (1885), as amended through 1961; which subjected municipalities and their courts to complete legislative control. No city had the power to make a violation of a city ordinance a crime in 1961.

       
       

   16. Mr. Reynolds has never been found guilty of a felony, misdemeanor, or any "crime" at all much less a "crime involving moral turpitude." The community witnesses Mr. Reynolds presented established that they know Mr. Reynolds to be a man of integrity and high moral character. Sections 648.34(2)(f) and 648.45(2)(k), Florida Statutes (1985) do not bar Mr. Reynolds from the opportunity to be examined for licensure as a limited surety agent.

RECOMMENDATION

It is RECOMMENDED that the application of James Allen Reynolds for examination as a limited surety agent be granted.

DONE and ORDERED this 19th day of October, 1987, in Tallahassee,

Florida.

WILLIAM R. DORSEY, JR.

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 1987.

APPENDIX

The following are my rulings on the proposed findings of fact submitted by the parties pursuant to Section 120.59(2), Florida Statutes (1985). Rulings on findings proposed by Petitioner, treating the separate paragraphs under each heading in Petitioner's Findings of Fact as if they had been serially numbered 1A, 1B, etc.:

Rulings on Petitioners Proposed Findings:

1A. Covered in finding of fact 5.

1B. Covered in finding of fact 7 to the extent relevant.

1C. Covered in finding of fact 6. The proposed finding that Mr. Reynolds pled guilty is rejected because the record in evidence shows he pled not guilty.

1D. Rejected because although the testimony that Mr. Reynolds did not participate in the gasoline siphoning is accepted, as is the testimony that he did not participate in any theft, it is obvious that everyone in the car decided to spend what money they had for hamburgers rather than gasoline and that the siphoning would take place while Mr. Reynolds ordered the hamburgers.

2B. To the extent necessary, covered in finding of fact 4. 2C. To the extent necessary; covered in finding of fact 4. 2D. Covered in findings of fact 3 and 4.

1. Covered in findings of fact 1 and 3.

2. Covered in finding of fact 5.

Rulings on Findings Proposed by Respondent:

1. Covered in finding of fact 1.

2. Covered in finding of fact 2.

3. Covered in findings of fact 5 and 6.

4. Rejected as a recitation of testimony; not a finding of fact.

COPIES FURNISHED:

Lealand L. McCharen, Esquire Department of Insurance

413-B Larson Building Tallahassee, Florida 32399-0300

Michael Dubiner, Esquire Dubiner & Blumberg, P.A.

Suite 200, 1101 N. Congress Avenue Boynton Beach, Florida 33435

Honorable William Gunter State Treasurer and

Insurance Commissioner The Capitol, Plaza Level

Tallahassee, Florida 32399-0300

Don Dowdell General Counsel

Department of Insurance The Capitol, Plaza Level

Tallahassee, Florida 32399-0300

Docket for Case No: 87-002675

Orders for Case No: 87-002675