STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT M. ROSENBERG, )

)

Petitioner, )

)

vs. ) CASE NO. 89-1159

)

DEPARTMENT OF INSURANCE )

AND TREASURER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on October 23, 1989 in Tallahassee, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Robert M. Rosenberg, pro se

2424 Tampa Bay Boulevard Tampa, Florida

For Respondent: Robert F. Langford, Jr., Esquire

Office of Legal Services Department of Insurance

412 Larson Building Tallahassee, Florida

STATEMENT OF THE ISSUES

Whether Petitioner's plea of nolo contendere to the crime of petit theft was to a crime that involves moral turpitude, whereby the Commissioner may lawfully deny an applicant for a bail bondsman's license, pursuant to Section 648.34(2)(f), Florida Statutes.

Whether Petitioner failed to divulge that he had been charged with a felony on two different occasions when he applied for examination as a Life and Health Insurance Agent on July 6, 1987, and again on September 28, 1987, when he applied for licensure as a bail bondsman.

Whether Petitioner's failure to divulge prior arrests and one conviction demonstrates a lack of fitness or integrity to qualify for licensure as a bail bondsman.

PRELIMINARY STATEMENT

By application dated September 28, 1987, Petitioner applied to Respondent to be licensed as a bail bondsman (Limited Surety Agent). On February 2, 1989, the Department of Insurance (hereinafter, the Respondent) notified Robert Michael Rosenberg (hereinafter, Petitioner) that it intended to deny his application for examination as a bail bondsman. On or about February 20, 1989, the Respondent submitted his request for a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At the request of the parties, the hearing scheduled for June 8, 1989, was cancelled and not rescheduled until October 23, 1989. Pursuant to notice, the final hearing was held on October 23, 1989, in Tallahassee, Florida. At the hearing, the Petitioner testified in his own behalf and offered the testimony of two witnesses. Respondent submitted two composite exhibits at the hearing which were admitted without objection.

The transcript was filed with the Division on November 8, 1989. Petitioner did not file proposed findings of fact. Respondent filed proposed findings of fact which are addressed in the Appendix attached hereto.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. On or about August 28, 1978, in Hillsborough County, Florida, the Respondent was charged with throwing a deadly missile into an occupied vehicle [a felony violation pursuant to Section 790.19, Florida Statutes (1978)], based upon an Information filed by the State Attorney as Case No. 78-4345A in the Circuit Court of the Thirteenth Judicial Circuit of Florida (Hillsborough County). This case was later dismissed.

   
   

2. On or about December 9, 1983, in Hillsborough County, Florida, the Respondent was charged with grand theft, a felony, based upon an Information filed by the State Attorney in Case No. 83-13308B. Court records show that on or about May 14, 1984, the Respondent pled nolo contendere to an amended Information charging him with petit theft, a misdemeanor violation pursuant to Section 812.014, Florida Statutes.

   
   

3. On or about July 6, 1987, the Respondent filed an Application for Filing for Examination as a Life and Health Insurance Agent with the Department. To question 8 posed on the written and sworn application, "Have you ever been charged with a felony?," the Respondent answered "No." That response failed to disclose the 1978 charge or the 1983 charge noted above.

   
   

4. On or about September 28, 1987, the Respondent filed an application with the Department of Insurance for examination as a bail bondsman. To question 8 posed on the written and sworn application, "Have you ever been convicted or pleaded guilty or no contest to a crime involving moral turpitude, or a felony . . .", the Respondent responded "No." That response failed to disclose the 1984 plea of nolo contendere to petit theft noted above.

   
   

5. On or about February 2, 1989, the Department notified the Respondent that his application for examination as bail bondsman was denied.

6. Petitioner testified that he marked "no" on the application because he did not believe that petit theft was a crime that involved moral turpitude.

   
   

7. Petitioner's two character witnesses both testified that they knew Petitioner for many years, and that he was a hard worker and of good character. His prior arrests would not impair his ability to do a good job as a bail bondsman.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes.

   
   

9. Respondent is responsible for granting or denying applications for licenses as a Florida bail bondsman. Section 648.38, Florida Statutes

   
   

10. Petitioner has the burden of proving his eligibility for licensure. Rule 28-6.008(3), Florida Administrative Code. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

    
    

11. Section 648.34(2)(f), Florida Statutes, states:

    
    

    To qualify as a bail bondsman, it

    must affirmatively appear at the time of application and throughout the period of licensure that . . . (f) The applicant is a person of high character and approved integrity . . . .

12. Furthermore, Section 648.45(2), Florida Statutes, states that: The department shall deny any

    license issued under this chapter for any

    of the following causes . . . (a) Lack of one or more of the qualifications specified in this chapter for a license or permit .

    (b) Material misstatement, misrepresentation, or fraud in obtaining a license or permit, or in attempting to obtain a license or permit

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

    
    

13. The Respondent's failure to disclose the existence of the 1978 charge and the 1983 charge on his two 1987 applications to the Department bear upon the Respondent's fitness and/or trustworthiness to engage in the bail bondsman business. This omission represents a material misstatement in attempting to obtain this license.

    
    

14. Section 648.34(2)(f), Florida Statutes, stated that:

    
    

    To qualify as a bail bondsman, it

    must affirmatively appear at the time of application . . . that . . . (f) 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."

    
    

15. In Tullidge v. Hollingsworth, 146 So.2d 660 (Fla. 1933), the Florida Supreme Court held that:

    
    

    Moral turpitude involves the idea of inherent baseness or depravity in private social relations or duties owed by man to man or man to society . . . It has also been defined as anything done contrary to justice, honesty, principle or good morals

    
    

    Id. at 661. Pearl v. Florida Board of Real Estate, 394 So.2d 189 (Fla. 3rd DCA 1981).

    
    

16. Although some crimes may or may not involve moral turpitude depending on the facts which constitute the offense, the crimes of theft have long been recognized to necessarily involve moral turpitude. In Soetarto v. Immigration and Naturalization Service, 516 F.2d 778, 780 (7th Circuit 1975), the court held that:

    
    

    Theft has always been held to involve moral turpitude, regardless of the sentence imposed or the amount stolen.

    
    

    Under facts similar to the instant case, an applicant was denied his application for bail bondsman. See Jack Mitchell v. Department of Insurance and Treasurer, 7 F.A.L.R. 5411 (1985).

    
    

17. The Respondent's 1983 plea of nolo contendere to the crime of petit theft disqualifies the Respondent from licensure in this state as a bail bondsman.

    
    

18. Section 648.34, Florida Statutes, which states the qualifications which a bail bondsman must possess, does not provide for an exception based on good conduct and/or lapse of time since the conviction.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner' application for examination as a bail bondsman

be DENIED.

DONE AND ENTERED this 22nd day of November, 1989, in Tallahassee, Leon County, Florida.

DANIEL N. KILBRIDE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of November, 1989.

APPENDIX

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner did not submit proposed findings of fact. Respondent's proposed findings of fact: Accepted in substance.

COPIES FURNISHED:

Gerry Gordon, Esquire 1304 South DeSoto Avenue Tampa, FL 33606

Honorable Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level

Tallahassee, FL 32399-0300

Robert F. Langford, Jr., Esquire Office of Legal Services Department of Legal Services

412 Larson Building Tallahassee, FL 32399-0300

Don Dowdell General Counsel

Department of Insurance and Treasurer

The Capitol, Plaza Level Tallahassee, FL 32399-0300

Docket for Case No: 89-001159

Orders for Case No: 89-001159