THE TREASURER OF THE STATE OF FLORIDA DEPARTMENT OF INSURANCE BILL NELSON Ne IN THE MATTER OF: - Gu -1d54 a (oN -CWWD . JOHN D. FISHER CASE NO: 14272-95-A FINAL ORDER THIS CAUSE came on before the undersigned Treasurer of the State, of Florida, acting in his capacity as Insurance Commissioner, for consideration and final agency action. On February 26, 1996, the Department of Insurance (the “Department” ) issued a First Amended Denial Letter (the “Denial Letter”), which denied Petitioner's application for licensure as a limited surety agent. The Denial Letter alleged that: (1) Petitioner had been found guilty of conspiracy, arson, and mail fraud; (2) Petitioner's prior limited surety license had been revoked; and, (2) Petitioner had not met the pre-licensing educational requirements. Petitioner timely filed a request for a formal proceeding pursuant to section 120.57(1), Florida Stazures. Pursuant to notice, the matter was heard before Carolyn 5. Ne Holifield, Administrative Law Judge, Division of Administrative Hearings, on December 16, 1997. After consideration of the record and argument presented at hearing, the Administrative Law Judge issued a Recommended Order on March 2, 1998. (Attached as Exhibit A). The Administrative Law Judge recommended that the Department enter a Final Order denying the Petitioner's application for a limited surety agent's license. On March 10, 1998, Respondent timely filed exceptions to the Recommended Order. Respondent excepted to the Conclusions of Law. Each exception is addressed below. RULINGS ON PETITIONER'S EXCEPTIONS 1. Respondent excepts to paragraph 20 of the Administrative Law Judge’s Conclusions of Law. In paragraph 20 a scrivener’s error inaccurately references “above in paragraph 20”, which should read “above in paragraph 19”. Accordingly the first exception is accepted and Conclusion of Law paragraph 20 is modified as follows: In 1995, when Petitioner applied for relicensure, in addition to the licensure requirement cited above in paragraph 19, applicants were required to have completed: (1) a basic certificate course in the he criminal justice system, and (2) a 2 correspondence course for bail bondsmen approved by the Department. See, Section 648.34(2) (d), Florida Statutes (1995). Petitioner’s alleged failure to meet these educational requirements was one of the reasons the Department denied his application for relicensure. . 2. In paragraph 21, Respondent agreed with the Administrative Law Judge’s finding that the evidence established that Petitioner did not meet the educational requirements for licensure as a limited surety agent. Respondent excepts the Administrative Law Judge’s finding, “that fact. is of no import” and her summary of the law, relating to the changes in Section 648.34(2), Florida Statutes, which became effective on July 1, 1996. It is well settled that a constitutional right to pursue a lawful business or occupation is not a fundamental right, but a privilege. Dept. of Banking and Finance v. Osborne Stern and Co., 670 So.2d 932 (Fla. 1996); Polakoff v. Dept. of Insurance and Treasurer, 551 So.2d 1223, 1225 (Fla. 1st DCA 1989). Therefore, Petitioner did not have a vested right in his limited surety agent license. It is also well established, that a person without a vested right in their license is subject to further (vs) regulation or even revocation. See, Davidson v. City of Coral Gables, (Fla. 3rd DCA 1960). On February 25, 1995, Petitioner submitted an application for a limited surety agent license to the Department. At that time, the legislative requirements, in Section 648.34, Florida Statutes, required that: (2) To qualify as a bail bondsman, it must - affirmatively appear at the time of application and throughout the period of licensure that: Kk (d) Within 4 years prior to the date of his application, the applicant has successfully completed a basic certification course in the criminal justice system, consisting of not less than 80 hours and has successfully completed a correspondence course for bail bondsmen approved by the department. Section 648.34(2) (dad), Florida Statutes (1995). At the time he applied, Petitioner had not satisfied the educational requirements mandated in Section 648.34(2) (d), Florida Statutes (1995). It is of no import that the requirements of Section 648.34(2), Florida Statutes changed after Petitioner applied for a limited surety agent license. Therefore, Petitioner’s failure to meet the educational requirements, at the time he applied, was also an appropriate condition to properly deny his application for relicensure. Moreover, Petitioner’s argument that the Department should apply the educational requirements that existed in 1989 is without merit. Petitioner first reapplied in late 1989 and the Department notified him by letter that he was not eligible to reapply pursuant to Section 648.49(2), Florida Statutes. At that time, Petitioner had the right to challenge the Department’s interpretation of Section 648.49(2), Florida Statutes. A party may waive any rights to which they are legally entitled, by actions or conduct warranting an inference that a known right has been relinquished. Torres v. K-Site 500 Assoc., 632 So.2d 110, 112 (Fla. 3rd DCA 1994). Waiver occurs when “one in pessession of any right whether conferred by law or by contract forbears the doing of something inconsistently with the existence of the right .. . and is precluded from claiming anything by reason of it afterwards.” County of Brevard v. Miorelli Engineering, Inc., 1997 WL 664779 (Fla. 1997). Petitioner waived his right to challenge the Department’s interpretation of Section 648.49, Plorida Statutes by not seeking review of the Department's decision. Therefore, when Petitioner reapplied for a limited surety agent license on February 25, 1995, he had to satisfy the licensure requirements at the time of he submitted his application. Accordingly, the second exception is accepted and Conclusion of Law paragraph 21 is modified as follows: The evidence established that Petitioner did not meet the aforementioned educational requirements. Therefore, the Department cf Insurance properly denied Petitioner’s application for a limited surety agent license due to his failure meet these educational requirements. ORDERED: 1. The Findings of Fact of the Administrative Law Judge are adopted in full as the Department's Findings of Fact. 2. The Conclusions of Law of the Administrative Law Judge are adopted, as modified, as the Department's Conclusions of Law. 3. That the Hearing Officer's recommendation derlying JOHN D. FISHER's application for licensure as a limited surety agent is approved and accepted as being the appropriate disposition of this case. ACCORDINGLY, Petitioner, JOHN D. FISHER’s, application for licensure as a limited surety agent is DENIED. NOTICE OF RIGHTS Any party to these proceedings adversely affected by this Order is entitled to seek review of the Order pursuant to Section 120.68, Plorida Statutes, and Rule 9.110, F.R.App.P. Review 6 proceedings must be instituted by filing a petition or Notice of Appeal with the General Counsel, acting as the agency clerk, at 200 East Gaires Street, Tallahassee, FL 32399-0300, and a copy of the same and the filing fee with the appropriate District Court of Appeal within thirty (30) days of the rendition of this Order. DONE and ORDERED this 14th day of APFil 1998. t Buy Won BILL NELSON Treasurer and Insurance Commissioner ¢ AEN ay COPIES FURNISHED TO: CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 JOHN D. FISHER 5804 Myrtle Lane Tampa, Florida 33625-1319 JOSEPH D. MANDT, ESQUIRE 610 West Azeele St. Tampa, Florida 33606 Attorney for Petitioner DICKSON E. KESLER, ESQUIRE Division of Legal Services 612 Larson Building Tallahassee, Florida 32399-0300 Attorney for the Department of Insurance

Docket for Case No: 96-001459

Orders for Case No: 96-001459