STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANTHONY STEPHEN VITALE, )

)

Petitioner, )

)

vs. ) CASE NO. 91-6687

) DEPARTMENT OF INSURANCE AND ) TREASURER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on February 12, 1992, at Miami, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances for the parties at the hearing were as follows:

APPEARANCES

For Petitioner: James R. Sabatino, Esquire

Sabatino and Spindel

1177 Kane Concourse, Suite 104

Bay Harbor Islands, Florida 33154

For Respondent: Andrew Kenneth Levine, Esquire

Department of Insurance and Treasurer

Division of Legal Services

412 Larson Building

Tallahassee, Florida 32399-0300 STATEMENT OF THE ISSUES

The issue in this case is whether the Petitioner's application for licensure as a limited surety agent (bail bondsman) should be granted or denied.

PRELIMINARY STATEMENT

This case arises from the Respondent's proposed denial of the Petitioner's application for licensure as a limited surety agent (bail bondsman). Upon receipt of notice of the Respondent's proposed action, the Petitioner made a timely request for a formal hearing, and in due course the case was referred to the Division of Administrative Hearings for assignment of a Hearing Officer.

At the formal hearing the Petitioner testified on his own behalf, but did not submit any documentary evidence. The Respondent submitted documentary evidence, but did not call any witnesses. At the conclusion of the hearing, the parties requested, and were granted, 30 days within which to file their proposed recommended orders. Neither party ordered a transcript of the hearing. Both parties filed timely proposed recommended orders containing proposed findings of

fact and conclusions of law. Specific rulings on all proposed findings submitted by both parties are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. On April 23, 1982, a Grand Jury in the Southern District of Florida filed an Indictment against the Petitioner, Anthony Stephen Vitale, which was docketed as Case No. 82-204-Cr-SMA. On August 12, 1982, the Petitioner entered a plea of guilty to Count I of the Indictment and the remaining counts were dismissed. The count to which the Petitioner pled guilty charged him with a violation of Title 18, United States Code, Section 371, by reason of the following acts alleged in Count I of the Indictment:

   
   

   1. From July, 1975, through June, 1977,

      A. STEPHEN VITALE, whose last known residence is within the Southern District of Florida, was a Consular Officer of the United States

      assigned to the United States Embassy at Nassau, Commonwealth of the Bahamas, and, as such, was an officer and employee of the United States Department of State.

   2. As a Consular Officer, A. STEPHEN VITALE had the authority to issue immigrant visas

      and non-immigrant visas to qualified nationals of other countries.

   3. From on or about July 1975, and continuously thereafter up to and including June 24, 1977,

      in Nassau, Bahamas, an area outside the juris- diction of any particular state or district of the United States, A. STEPHEN VITALE, the defendant herein, William Lawrence Neng, a

      co-conspirator not indicted herein, and Sok Harn Neng, a co-conspirator not indicted herein, did knowingly and willfully combine, conspire, confederate and agree together and with persons whose identities are both known and unknown to the Grand Jury, to defraud the United States of its lawful governmental functions and right to have its business and its affairs, particularly the insurance of

      visas by the United States Department, conducted honestly, impartially, and free from corruption and improper influence.

   4. It was part of said conspiracy that certain foreign nationals seeking immigrant visas and non-immigrant visas, hereinafter referred to as the Applicants, were required to pay money to William Lawrence Neng for said visas.

   5. It was further part of said conspiracy that William Lawrence Neng submitted the Applicants' visa applications and documents in support thereof to A. STEPHEN VITALE for approval.

   6. It was further part of said conspiracy that A. STEPHEN VITALE approved the Applicants'

      visa applications and issued visas without diligently, faithfully and effectively reviewing said applicants for fraud.

   7. It was further part of said conspiracy that A. STEPHEN VITALE required and accepted money from William Lawrence Neng in return

      for approving the Applicants' visa applications and issuing immigrant visas and non-immigrant visas to the Applicants. 1/

      
      

2. On his plea of guilty, the Petitioner was adjudged guilty of the charge described above and was sentenced to a period of imprisonment of one year. The judgment further provided that the Petitioner would be confined in a community treatment center for a period of three months and would thereafter be placed on probation for a period of five years. The judgment also ordered the Petitioner to pay a fine in the amount of $10,000.00.

   
   

3. The crime to which the Petitioner pled guilty is a felony under federal law. At the time the Petitioner committed the crime to which he pled guilty, he was a grown man more than forty years of age.

   
   

4. The Petitioner duly served his term of confinement and fulfilled all terms of his probation, including the payment of the fine. Thereafter, on January 21, 1988, the State Office of Executive Clemency restored the Petitioner's civil rights in the State of Florida.

   
   

5. On May 9, 1991, the Petitioner applied to the Respondent for licensure as a limited surety agent. As required by the application, the Petitioner disclosed the criminal history information described above. In response to questions on the application form, the Petitioner answered "yes" with regard to whether the crime to which he pled guilty and of which he had been convicted was a felony and also answered "yes" with regard to whether that crime was a crime involving moral turpitude.

   
   

6. On June 12, 1991, the Respondent sent a letter to the Petitioner advising him that his application file lacked certificates indicating completion of certain specified courses which are prerequisites to licensure. The Petitioner thereafter submitted a certificate of completion from the University of Florida showing he had completed his course work on July 24, 1991, and a certificate from Miami-Dade Community College showing he had completed an

   eighty-hour surety agent/bail bond course on April 27, 1991.

   
   

7. The Petitioner's application shows that he has been self-employed and that he has been employed with a legal courier service over the past few years. The Petitioner is a graduate of the Georgetown Law Center.

   
   

8. The Petitioner acknowledged that the bail bond profession involves the constant signing of documents regarding persons charged with crimes, as well as constant handling of collateral and transfer of funds in the regular course of the bail bond business.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Sect. 120.57, Fla. Stat.

10. In a case of this nature, the applicant bears the burden of proving, by a preponderance of the evidence, his entitlement to the license sought. If the proof is insufficient to demonstrate entitlement to the license, the application must be denied. In this regard, the Petitioner must show that he meets all relevant statutory criteria. See, generally, Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

    
    

11. The statutory definitions at Section 648.25, Florida Statutes, contain the following relevant provisions:

    
    

    1. "Bail bondsman" means a limited surety agent or a professional bondsman as hereafter defined.

       * * *

       (6) "Limited surety agent" means any individual appointed by an insurer by power of attorney

       to execute or countersign bail bonds in connection with judicial proceedings who receives or is promised money or other things of value therefor.

       
       

12. The qualifications for licensure as a bail bondsman, including a limited surety agent, are set forth at Section 648.34, Florida Statutes, which includes the following relevant provisions:

    
    

    1. An application for licensure as a bail bondsman must be submitted on forms prescribed by the department.

    2. 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 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 judgement or convic- tion has been entered.

       * * *

       (6) The provisions of s. 112.011 do not

       apply to bail bondsmen or runners or to appli- cants for licensure as bail bondsmen or runners.

       
       

13. Application of the following statutory provisions to the facts in this case leads inescapably to the conclusion that the Petitioner is ineligible for the license he seeks. He has pled guilty to and has been convicted of a crime that is a felony, 2/ that involves moral turpitude, 3/ and that is punishable by imprisonment for one year or more. Section 648.34(2)(f), Florida Statutes, makes no provision for any exception based on the passage of time or on subsequent good behavior and/or rehabilitation. Section 648.34(6), Florida Statutes, explicitly renders inapplicable the provisions of Section 112.011, Florida Statutes. The Petitioner has argued that this statutory exception from the operation of Section 112.011, Florida Statutes, runs afoul of certain constitutional provisions. Such arguments may be appropriately resolved only by

    the courts; administrative agencies must apply the statutes as written and are without authority to rule upon the constitutionality of statutes. 4/

    
    

14. In view of the foregoing, it is not necessary to discuss at length the issue of whether it affirmatively appears that the Petitioner is a person of "high character and approved integrity," as also required by Section 648.34(2)(f), Florida Statutes. Suffice it to say that the courts have recognized that the Respondent has a great deal of discretion in the interpretation of the statutory term "high character and approved integrity" and on the record in this case it is well within the Respondent's range of discretion to conclude that it does not affirmatively appear that the Petitioner is a person of "high character and approved integrity." 5/ See, generally, Natelson v. Department of Insurance, 454 So.2d 31 (Fla. 1st DCA 1984); Paisley

v. Department of Insurance, 526 So.2d 167 (Fla. 1st DCA (1988); Waldon v. Department of Insurance, 10 FALR 1062, 1069 (1987).

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that the Department of Insurance issue a Final Order in this case denying the Petitioner's application for licensure as a limited surety agent and dismissing the petition.

RECOMMENDED in Tallahassee, Leon County, Florida, this 24th day of April 1992.

MICHAEL M. PARRISH

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 24th day of April 1992.

ENDNOTES

1/ Count I of the subject Indictment also goes on to allege numerous overt acts in the furtherance of the conspiracy. The recitation of those details is not necessary to the disposition of this case.

2/ The crime to which the Petitioner pled guilty was, in essence, a conspiracy to commit bribery. That crime is a felony under federal law. The crime of bribery is also a felony under Florida law. See Section 838.015, Florida Statutes.

3/ Pearl v. Florida Board of Real Estate, 394 So.2d 189 (Fla. 3d DCA 1981), discusses moral turpitude at length and lists many examples of what does and does not constitute moral turpitude.

4/ In any event, the court's reasoning in Grantham v. Gunter, 498 So.2d 1328 (Fla. 4th DCA 1986), suggests that Section 648.34(6), Florida Statutes, would withstand constitutional challenge.

5/ This is not to say that the record in this case establishes that the Petitioner is a bad or wicked person, that he presently lacks good moral character, or that he has failed to rehabilitate himself and commit himself to a course of lawful and honorable conduct. The record is simply insufficient to persuasively demonstrate that the Petitioner is fully rehabilitated and that he is presently a person of good moral character. In this regard it is noted that the Petitioner did not call any witnesses to testify as to his character or integrity, and he presented very little testimony of his own on the subject of his character and integrity other than to state that he has not violated any laws since his indictment in 1982.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-6687

The following are my specific rulings on all proposed findings of fact submitted by both parties. Prefatory to the rulings it is noted that there is no major dispute about the facts in this case; the primary dispute in this case is about the legal consequences of the facts.

Findings proposed by the Petitioner:

Except as noted immediately below, the substance of all findings of fact submitted by the Petitioner has been accepted, in some instances with minor modifications or additions in the interest of accuracy and completeness.

The proposed findings to the effect that the Petitioner's guilty plea was based solely upon economic reasons and to the effect that the Petitioner has rehabilitated himself are rejected as not supported by persuasive competent substantial evidence. Although the Petitioner so testified, his testimony, standing alone, is simply not persuasive.

Findings proposed by the Respondent:

Paragraphs 1, 2, 3, and 4: Accepted in substance.

Paragraph 5: Rejected as irrelevant or as subordinate and unnecessary details.

Paragraphs 6, 7, 8, and 9: Accepted in substance. Paragraph 10: Rejected as irrelevant.

Paragraphs 11, 12, 13, 14, 15, 16, and 17: Accepted in substance.

Paragraph 18: Procedural history details covered in the Preliminary Statement.

Paragraphs 19, 20, and 21: Accepted in substance.

COPIES FURNISHED:

James R. Sabatino, Esquire Sabatino and Spindel

1177 Kane Concourse, Suite 104

Bay Harbor Islands, Florida 33154

Andrew Kenneth Levine, Esquire Department of Insurance and Treasurer Division of Legal Services

412 Larson Building

Tallahassee, Florida 32399-0300

The Honorable Tom Gallagher

State Treasurer and Insurance Commissioner The Capitol, Plaza Level

Tallahassee, Florida 32399-0300

Bill O'Neil, Esquire General Counsel Department of Insurance The Capitol, PL 11

Tallahassee, Florida 32399-0300

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-006687

Orders for Case No: 91-006687