STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE, )

)

Petitioner, )

)

vs. ) CASE NO. 93-0908

)

CHARLIE JAMES PERRY, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Jacksonville, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on September 10, 1993.

APPEARANCES

For Petitioner: Daniel T. Gross, Esquire

Joseph D. Mandt, Esquire 612 Larson Building

Tallahassee, Florida 32399-0300 For Respondent: No appearance

STATEMENT OF THE ISSUES

Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?

PRELIMINARY STATEMENT

By administrative complaint filed October 29, 1992, petitioner alleged that respondent Charlie James Perry was at all times relevant "licensed in this state as a limited surety agent . . . [and] employed by C.J. Frazier's Bail Bonds of Jacksonville, Florida,"' that "on or about May 13, 1992, State Attorney Investigators Gaylord [sic] Hendry and Bob Lassiter arrived at C.J. Frazier's Bail Bonds . . . to serve a felony arrest warrant upon Jacqueline Yvette Wells Brown"; that respondent had earlier "been informed by the State Attorney's Office that Ms. Brown was a fugitive subject to an arrest warrant"; that respondent falsely "denied knowledge of Ms. Brown's whereabouts and refused to allow investigators Hendry and Lassiter to search the C.J. Frazier's Bail Bond office" but that they did search, and find Ms. "Brown, hiding in a shower stall in said office," despite respondent's having "attempted to prevent the search"; on account of all of which, petitioner alleges, respondent showed himself not to be "a person of high character and approved integrity," as required by Section 648.34(2)(f), Florida Statutes, and "[d]emonstrated lack of fitness or trustworthiness to engage in the bail bond business," in violation of Section 648.45(2)(e), Florida Statutes, giving "cause for which issuance of the license

. . . could have been refused," Section 648.45(3)(a), Florida Statutes, and

violating a "law relating to the business of bail bond insurance or any provision of the insurance code," Section 648.45(3)(b), Florida Statutes, "[s]howing himself to be a source of injury or loss to the public," Section 648.45(3)(d), Florida Statutes, and "[i]nterfering or attempting to interfere with the administration of justice." Section 648.45(3)(e), Florida Statutes.

FINDINGS OF FACT

1. At all pertinent times, respondent Charlie James Perry has held a limited surety agent's license, No. L000078045, originally issued by petitioner in 1989. Petitioner's Exhibit No. 1.

   
   

2. Asked by law enforcement in Daytona Beach to serve an arrest warrant on Jacqueline Yvette Wells Brown, Investigator Gayward Franklin Hendry of the Special Prosecution Division of the Fourth Circuit's State Attorney's office made inquiries in Jacksonville about Ms. Brown.

   
   

3. Told that Ms. Brown worked at C.J. Frazier's Bail Bonds, he and Investigator Norris of Daytona Beach visited Frazier's, respondent's place of business at all pertinent times, on February 21, 1992. An African American woman told them Ms. Brown no longer worked there.

   
   

4. Investigator Hendry telephoned Frazier's on March 10, 1992, and spoke to Mr. Perry, telling him of the outstanding arrest warrant for Ms. Brown. Respondent Perry told Mr. Hendry he did not know where Ms. Brown was, but that he would try to find out, and he asked Mr. Hendry not to tell anybody he was helping to try to locate her.

   
   

5. After eight to ten subsequent attempts to reach Mr. Perry by telephone had proved unavailing, Mr. Hendry next spoke to him on or about April 30, 1992, when Mr. Perry reported he had been unable to get any information about Ms. Brown's whereabouts but that he was still trying.

   
   

6. On May 13, 1992, Mr. Hendry and fellow investigator Bob Lassiter were again told that Ms. Brown worked at Frazier's, and were given a description of the car she drove. Half past nine o'clock that morning Investigators Hendry and Lassiter saw a car fitting the description at Frazier's.

   
   

7. Mr. Hendry telephoned Frazier's from a pay telephone nearby, and asked for Jackie. Respondent answered, "Ok, hold," or "Yes, just a minute." Then Ronella Daniels got on the line and told Mr. Hendry that Jackie was not there.

   
   

8. Investigators Hendry and Lassiter went from the telephone booth to Frazier's, where Ms. Daniels met them at the door. Eventually respondent Perry emerged from a back office to speak to the investigators, who announced that they had come for Ms. Brown.

   
   

9. When Mr. Perry told them Ms. Brown was not on the premises, they asked to come in and look. Aware of the arrest warrant, Mr. Perry inquired whether they also had a search warrant, and was informed that they did not. He then made a telephone call to a lawyer in the midst of which Investigators Hendry and Lassiter pushed past him and found Ms. Brown hiding in a shower stall.

   CONCLUSIONS OF LAW

   
   

10. Since the Department of Insurance referred respondent's hearing request to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1992 Supp.), "the division has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1992 Supp.).

    
    

11. License revocation proceedings have been said to be "'penal' in nature." State ex rel. Vining vs. Florida Real Estate Commission, 281 So.2d 487, 491 (Fla. 1973); Kozerowitz vs. Florida Real Estate Commission, 289 So.2d

    391 (Fla. 1974); Bach vs. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979) (reh. den. 1980). Strict procedural protections apply in disciplinary cases, and the prosecuting agency's burden is to prove its case clearly and convincingly. Ferris vs. Turlington, 510 So.2d 292 (Fla. 1987).

    See Addington vs. Texas, 441 U.S. 426 (1979); Ferris vs. Austin, 487 So.2d 1163 (Fla. 5th DCA 1986); Anheuser-Busch, Inc. vs. Department of Business Regulation,

    393 So.2d 1177 (Fla. 1st DCA 1981); Walker vs. State Board of Optometry, 322 So.2d 612 (Fla. 3rd DCA 1975); Reid vs. Florida Real Estate Commission, 188 So.2d 846, 851 (Fla. 2nd DCA 1966). A licensee's breach of duty justifies revocation only if the duty has a "substantial basis," Bowling vs. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981) in the evidence, unless applicable statutes and rules create a clear duty, which the evidence shows has been breached.

    
    

12. Section 648.45, Florida Statutes (1991) requires petitioner to "deny, suspend, revoke, or refuse to renew any license issued under this chapter or the insurance code . . . for . . . [d]emonstrated lack of fitness or trustworthiness to engage in the bail bond business." Section 648.45(2)(e), Florida Statutes (1991). In addition, petitioner is authorized to take disciplinary action "for any of the following causes:

    
    

    1. A cause for which issuance of the license could have been refused had it then existed and been known to the department.

    2. Violation of any law relating to the business of bail bond insurance or violation of any provision of the insurance code.

    3. Failure or refusal, upon demand, to pay over to any insurer he represents or has represented any money coming into his hands which money belongs to the insurer.

    4. Showing himself to be a source of injury or loss to the public or detrimental to the public interest or being found by the department to be no longer carrying on the bail bond business in good faith.

    5. Interfering or attempting to interfere with the administration of justice.

Section 648.45(3), Florida Statutes (1991). To qualify for licensure as a bail bondsman and to maintain such a license "it must affirmatively appear . . . 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 1 year or more under the law of any state, territory, or country, whether or not a judgment or conviction has been entered.

Section 648.34(2)(f), Florida Statutes (1991). Petitioner has alleged violations under all of the foregoing provisions and has clearly and convincingly proven, at the very least, that respondent attempted to interfere with the administration of justice.

RECOMMENDATION

It is, accordingly, RECOMMENDED:

That petitioner suspend respondent's license for ninety (90) days.

DONE AND ENTERED this 15th day of October, 1993, in Tallahassee, Florida.

ROBERT T. BENTON, II

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 15th day of October, 1993.

APPENDIX

Petitioner's proposed findings of fact, except for No. 4, have been adopted, in substance, insofar as material.

With respect to petitioner's proposed finding of fact No. 4, several efforts to reach respondent by phone during that period were made, but without success till on or about April 30, 1992.

COPIES FURNISHED:

Tom Gallagher, State Treasurer and

Insurance Commissioner Department of Insurance The Capitol, Plaza Level

Tallahassee, Florida 32399-0300

Bill O'Neil, General Counsel Department of Insurance

The Capitol, PL-11

Tallahassee, Florida 32399-0300

Daniel T. Gross, Esquire Joseph D. Mandt, Esquire 612 Larson Building

Tallahassee, Florida 32399-0300

Charlie James Perry 2042 Moncrief Road

Jacksonville, FL 32209-5775

Charlie James Perry 2180 Kingswood Road

Jacksonville, FL 32207-4320

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: 93-000908

Orders for Case No: 93-000908