STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES M. STILLS, )

)

Petitioner, )

)

vs. ) CASE NO. 92-5725

) DEPARTMENT OF INSURANCE, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter was heard by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings on January 12, 1993, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: James A. Cassidy, Esquire

6121 Palm Beach Lakes Boulevard, Suite 403 West Palm Beach, Florida 33409-0223

For Respondent: Daniel T. Gross, Esquire

Department of Insurance Division of Legal Services

412 Larson Building

Tallahassee, Florida 32399-0300 STATEMENT OF THE ISSUE

Whether Mr. Stills is entitled to sit for the licensure examination for limited surety agents (bail bondsman), based on the application he filed on February 24, 1992.

PRELIMINARY STATEMENT

Mr. Stills filed an application with the Department on February 24, 1992, seeking eligibility to sit for the licensure examination for limited surety agents. The Department denied eligibility on August 18, 1992. Mr. Stills requested a formal proceeding on September 3, 1992. At the hearing, Sgt. James Brooks and Investigator John A. Gonzalez, of the Boynton Beach Police Department, testified for the Department. The Petitioner testified on his own behalf. The Department's exhibits 1 through 5 were received into evidence and Respondent's exhibits 1 through 7 were admitted into evidence. No transcript of the proceedings was filed. The Department filed a proposed recommended order, but Mr. Stills did not. Rulings on findings proposed by the Department are made in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Mr. Stills filed a sworn application for eligibility to sit for the licensure examination for limited surety agents with the Department of Insurance on February 24, 1992.

   
   

2. The application contains these questions:

   
   

   Q: Have you ever been charged with or convicted of or pleaded guilty of no contest to a crime involving moral turpitude, or a felony, or a crime punishable by imprisonment of one (1) year or more under the law of any state, territory or county, whether or not a judgment or conviction has been entered?

   1. What was the crime?

   2. Where and when were you charged?

   3. Did you plead guilty or nolo contendere?

   4. Where you convicted?

   5. Was adjudication withheld?

   6. Please provide a brief description of the nature of the offense charged:

      If there has been more than one such felony charge, provide an explanation as to each charge on an attachment.

      
      

      Certified copies of the Information or Indictment and Final Adjudication for each charge is required.

      
      

3. Mr. Stills answered "no" to the main question and filed no response to subquestions a through f.

   
   

   Discharging a firearm - 1973

   
   

4. Mr. Stills had been charged with the misdemeanor of discharging a firearm within city limits on September 10, 1973, a violation of Section 790.15, Florida Statutes (1973). The incident occurred in Pensacola, Florida. Mr. Stills accidently discharged a shotgun in an incident involving his father. Mr. Stills had been called to his father's home because of a dispute his father was having with a neighbor. His father met him on the back porch, with a shotgun in his hand. Mr. Stills calmed his father, and was able to get him to give him the shotgun. The shotgun was an old one, and as Mr. Stills attempted to unload it, the hammer slipped and the gun accidently discharged. The neighbor called the police, and the charge was filed, and Mr. Stills paid a small fine.

   
   

   Second degree murder - 1984

   
   

5. On May 31, 1984, Mr. Stills was arrested and charged with second degree murder, in violation of Sections 775.087(2) and 782.04(2), Florida Statutes (1983). The arrest arose from an argument which Mr. Stills had with the decedent. On May 24, 1980, Mr. Stills and the decedent had an argument in which the decedent threatened to kill Mr. Stills. Mr. Stills then left. Later that afternoon, the decedent approached Mr. Stills at another location, and appeared to reach for something. Out of fear generated by the decedent's earlier threat Mr. Stills had already armed himself, and when the victim made a threatening movement, Mr. Stills shot him out of fear for his own safety. He was arrested,

   charged with second degree murder, but acquitted in a jury trial on March 21, 1985 based on his plea of self defense.

   
   

   Firearms chares - 1987

   
   

6. Mr. Stills was charged on April 15, 1987, in an Information with the felony of carrying a concealed firearm, in violation of Section 790.01(2), Florida Statutes (1987), and the misdemeanor of improper exhibition of a firearm, in violation of Section 790.10, Florida Statutes (1987).

   
   

7. On that date, Officer John Gonzalez responded to a request for police assistance; the call said a man was displaying a firearm in a threatening manner. Officer Gonzalez arrived at the location given to him, and saw Petitioner, who generally fit the description of the man allegedly waiving a firearm about. Mr. Stills was then seated in an automobile. He was not waiving a gun about or threatening anyone. Officer Gonzalez approached him from the passenger side of the car, where he observed a revolver sitting on the passenger seat; the gun was loaded. He then arrested Mr. Stills. The charge of carrying a concealed firearm was dismissed by the court. Mr. Stills entered a plea of guilty to the misdemeanor of exhibiting a firearm on July 20, 1987.

   
   

8. After exchanging correspondence with the Department, Mr. Stills amended his application, disclosing the charges and sending the necessary backup information required by the application form. He stated he had misread the question as requiring only information on felony convictions, and he had none.

   
   

9. When the Department denied Mr. Still's application it gave these specific reasons:

   
   

   1. He had been charged with discharging a firearm within the City of Pensacola on September 17, 1973.

   2. He had been charged with second degree murder on May 21, 1984, but had been found not guilty on March 21, 1985.

   3. On April 15, 1987, he had been charged with carrying a concealed firearm and improper exhibition of a firearm, that he had pled guilty to the misdemeanor charge and been placed on three months probation yet Mr. Stills had failed to acknowledge any of these charges on his application. The Department relied on Section

   648.32(2)(f), Florida Statutes, and 648.45(2)(e), Florida Statutes, to deny his application.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes (1991).

    
    

11. As the applicant for licensure, Mr. Stills bears the burden of persuasion on the issue of his statutory entitlement to licensure. Rule 28- 6.008(3), Florida Administrative Code.

    
    

12. The Department has the authority under Section 648.27, Florida Statutes (1991), to put reasonable questions to applicants relating to their qualifications and to inquire about any other matters which are deemed necessary

    or expedient in order to protect the public and ascertain the qualifications of the applicant. The department may also conduct any reasonable inquiry or investigation it sees fit, relative to the determination of the applicant's fitness to be licensed. . . ." Section 648.27(3), Florida Statutes (1991).

    
    

13. The Department has the authority to deny licensure if the license application or the Department's investigation lead it to believe that the applicant is "unfit as to character and background or lacking in one or more of the required qualifications for the license." Section 648.27(4), Florida Statutes (1991). Section 648.34(5), Florida Statutes (1991), also authorizes the Department to investigate the background of licensure applicants.

    
    

14. The substantive licensure statute requires that an applicant be a person of "high character and approved integrity." Section 648.34(2)(f), Florida Statutes (1991). An applicant must not have demonstrated "a lack of fitness or trustworthiness to engage in" the bail bond business. Section 648.45(2)(e), Florida Statutes (1991).

    
    

15. The Department argues that these statutes give it authority to inquire about criminal charges brought against the applicant, a broader and more generalized inquiry than one focusing on convictions or pleas of guilty or nolo contendere.

    
    

16. The Department focuses on Mr. Stills' failure to disclose the 1984 and 1987 felony charges, which resulted in neither guilty pleas, no contest pleas or convictions, as factual evidence of poor character and a lack of integrity, under Section 648.34(2)(f), Florida Statutes, and evidence of a lack of fitness or trustworthiness to engage in the bail bond business under Section 648.45(2)(e), Florida Statutes (1992). No expert testimony or other evidence tied the charges to proof of bad character or unfitness to be a bail bondsman.

    
    

17. The application does emphasize that the question focuses on charges, as well as guilty pleas or no contest pleas, to misdemeanors involving moral turpitude or to any felonies. The Department wisely does not argue that licensure should be denied for failure to have disclosed the 20 year old misdemeanor charge for discharge a firearm within the city limits. It involved neither a felony, nor a charge of conduct which demonstrates moral turpitude.

    
    

18. Although Mr. Stills has not been adjudicated guilty, plead guilty, or plead nolo contendere to any felony, the Department relies on its final order in In the matter of Robert M. Rosenberg, 12 FALR 2049 (November 22, 1989), as authority for its contention that failure to disclose the 1984 and 1987 felony charges bears upon Mr. Stills' fitness and trustworthiness to engage in the bail bondsman business. The Department gives too expansive a reading to that decision. Mr. Rosenberg had failed to acknowledge that an indictment had been filed against him for grand theft and that he had pled nolo contendere to an amended information, charging him with the misdemeanor of petit theft. At the hearing on the Department's denial of his application, he took the position that petit theft was not a crime involving moral turpitude. Relying upon immigration cases decided in the federal courts, the Insurance Commissioner decided that Rosenberg was wrong, and that crimes involving theft have always been regarded as crimes of moral turpitude. The holding in the case was that Rosenberg's plea of nolo contendere to the crime of petit theft disqualified Rosenberg for licensure as a bail bondsman. 12 FALR at 2054.

    
    

19. An additional distinction between the Rosenberg case and this one is that the Department had proposed to deny Rosenberg's licensure to on the ground

    that he had made a material misstatement in obtaining a license or permit, by omitting disclosure of the theft plea, in violation of Section 648.45(2)(b), Florida Statutes. The Department never raised this ground for denying Mr.

    Still's licensure eligibility before the final hearing, or in the letter it sent to Mr. Stills denying his licensure application.

    
    

20. The Department contends that the facts underlying the charge for second degree murder brought in 1984 and for carrying a concealed weapon and improper exhibition of a firearm in 1987 "bear directly" on Mr. Stills' character and fitness to engage in the bail bond business.

    
    

21. Mr. Stills was acquitted by a jury in 1984 of the charge of second degree murder. The Department's use of the testimony of the police officer who took him into custody, that Mr. Stills seemed to exhibit no remorse, does not show bad character. The information filed in 1987 on the felony charge of carrying a concealed weapon was dismissed by the trial judge. The Department's evidence at this hearing only showed that a loaded gun was sitting in plain view on the seat in a car in which Mr. Stills was sitting. This fact, in itself, does not reflect adversely on Mr. Stills' character, integrity, or fitness or trustworthiness to engage in the bail bond business. The evidence is insufficient to show that Mr. Stills was the person whose conduct caused the call to the police. The Department has cited no prior decisions holding that a plea to a misdemeanor charge of improperly exhibiting a firearm is a crime of moral turpitude.

    
    

22. The only remaining question is whether Mr. Stills failure to acknowledge the 1984 and 1987 arrests disqualifies him. The application emphasizes, with dark print, that it is asking for information about charges, not merely convictions. Mr. Stills' testimony that he misunderstood the question as one asking for disclosure of convictions given at the hearing was convincing.

    
    

23. In his letter to the Department of July 11, 1992, Mr. Stills stated that he misunderstood the question. He also pointed out that "every time I try to improve myself, or get a better job, this event comes up." Mr. Stills knew that these matters could easily be found by the Department, or by anyone else. He just believed the question did not require the disclosure that he made when asked to amended his application. He provided the Department with certified copies of documents relating to the charges which had been made against him at that time.

    
    

24. Assuming, without deciding, that the Department's authority to investigate the character of applicants for licensure is broad enough to permit it to require their disclosure of charges rather than convictions, nothing in the statutes the Department relies upon to deny eligibility for the license at issue here indicate that a misunderstanding of a question posed by the Department automatically demonstrates bad character or lack of fitness and trustworthiness to engage in the business of a bail bondsman.

    
    

25. The result here probably would not be different if the Department had based its licensure denial on the separate ground of making a material misstatement in the license application, under Section 648.45(2)(b), Florida Statutes, but that question was never raised before the hearing, and serves as no ground for licensure denial here. This record proves no actual fraud or

misrepresentation on the part of Mr. Stills. Whether an unintentional, but material misstatement on an application can serve as the basis for denying licensure must await decision in a case where the Department actually relies on that ground.

RECOMMENDATION

Based upon the foregoing, it is RECOMMENDED that the Department enter a Final Order finding Mr. Stills eligible for licensure as a limited surety agent, and permitting him to sit for the licensure examination.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of March 1993.

WILLIAM R. DORSEY, JR.

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 31st day of March 1993.

APPENDIX

The following constitute my rulings on findings proposed by the Department as required by Section 120.59(2), Florida Statutes.

1. Adopted in Findings of Fact 1.

2. Adopted in Findings of Fact 2.

3. Adopted in Findings of Fact 3.

4. Adopted, as modified in Findings of Fact 4.

5. Adopted in Findings of Fact 5.

6. Adopted in Findings of Fact 5.

7. Adopted in Findings of Fact 5.

8. Adopted in Findings of Fact 6.

9. Adopted in Findings of Fact 7.

10. Adopted in Findings of Fact 7.

11. Adopted in Findings of Fact 9.

COPIES FURNISHED:

James A. Cassidy, Esquire

6121 Palm Beach Lakes Boulevard Suite 403

West Palm Beach, Florida 33409-0223

Daniel T. Gross, Esquire Department of Insurance 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 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: 92-005725

Orders for Case No: 92-005725