STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE )

AND TREASURER, )

)

Petitioner, )

)

vs. ) Case No. 97-3804

)

CHARLES BERNARD SMITH, )

)

Respondent. )

)

RECOMMENDED ORDER

On October 16, 1997, a formal administrative hearing in this case was held in Palmetto, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Dickson E. Kesler, Esquire

Division of Legal Services

401 Northwest 2nd Avenue, Suite N-321 Miami, Florida 33128

For Respondent: Charles Bernard Smith, pro se

1701 4th Avenue West Palmetto, Florida 34221

STATEMENT OF THE ISSUE

The issue in this case is whether the allegations of the Amended Administrative Complaint are correct and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On August 5, 1996, the Department of Insurance filed an

Emergency Order of Suspension and Administrative Complaint against Charles Bernard Smith related to felony charges filed against Mr. Smith. Mr. Smith requested an informal hearing, which was postponed to permit resolution of the charges.

On July 14, 1997, the Department filed an Amended Emergency Order of Suspension and Amended Administrative Complaint against Mr. Smith. The amendments reflected the resolution of the criminal charges. Mr. Smith requested a formal administrative hearing. The matter was referred to the Division of Administrative Hearings, which scheduled the proceeding. At the hearing, the Department presented the testimony of one witness and had Exhibits numbered 1-3 admitted into evidence. Mr. Smith testified on this own behalf.

A transcript of the hearing was filed. Both parties filed proposed recommended orders.

FINDINGS OF FACT

1. Charles Bernard Smith (Respondent) was licensed as a limited surety agent (bail bond agent) by the Department of Insurance and Treasurer (Department) at all times material to this matter.

2. On or about June 3, 1997, the Respondent entered a plea of nolo contendere to one count of larceny by embezzlement, a felony in violation of Section 648.295, Florida Statutes, in Case No. 96-1922F in the Twelfth Circuit Court, Manatee County, Florida.

3. On or about June 3, 1997, the Respondent entered a plea of nolo contendere to one count of giving a worthless check, a felony in violation of Section 832.05(2)(a), Florida Statutes, and to one count of unlawful deposit of an item, a felony in violation of Section 832.05(3)(a), Florida Statutes, in Case No. 96-1982F in the Twelfth Circuit Court, Manatee County, Florida.

4. Based upon the two nolo contendere pleas, the Court withheld adjudication, placed the Respondent on two years probation, ordered restitution and payment of court costs, and imposed a public service requirement of 100 hours.

5. At the formal administrative hearing, the Respondent acknowledged the resolution of the criminal charges as set forth herein.

6. There is no evidence that the Respondent has previously been subjected to disciplinary action by the Department.

   CONCLUSIONS OF LAW

   
   

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

8. The Department of Insurance and Treasurer is responsible for regulation and licensure of limited surety agents. Chapter 648, Florida Statutes. The burden is on the Department to establish that the allegations of the Amended Administrative Complaint are correct. In this case, the burden has been met.

9. Section 648.34, Florida Statutes, sets forth the

qualifications for licensure as a bail bond agent and provides, in part, as follows:

648.34 Bail bond agents; qualifications.–

* * *

(2) To qualify as a bail bond agent, it must affirmatively appear at the time of application and throughout the period of licensure that. . .:

* * *

(e) 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 648.45, Florida Statutes, sets forth the grounds for disciplinary action against a licensed agent, and provides, in part, as follows:

648.45 Actions against a licensee; suspension or revocation of eligibility to hold a license.–

1. The department shall, upon receipt of an information or indictment, immediately temporarily suspend any license or appointment issued under this chapter when the licensee has been charged with a felony or 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. Such suspension shall continue if the licensee has been found guilty of, or has pleaded guilty or no contest to, the crime, whether or not a judgment or conviction has been entered, during a pending appeal. A person may not effect any additional bail bonds after suspension of his or her license or appointment. However, he or she may discharge any liability on bonds effected prior to such suspension.

2. The department shall deny, suspend, revoke, or refuse to renew any license or appointment issued under this chapter or the insurance code, and it shall suspend or revoke the eligibility of any person to hold a license or appointment under this chapter or the insurance code, for any violation of the laws of this state relating to bail or any violation of the insurance code or for any of the following causes:

   * * *

   1. Lack of one or more of the qualifications specified in this chapter for a license or appointment.

      * * *

      (k) Having been found guilty of, or having 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.

      * * *

3. The department may deny, suspend, revoke, or refuse to renew any license or appointment issued under this chapter or the insurance code, or it may suspend or revoke the eligibility of any person to hold a license or appointment under this chapter or the insurance code, for any violation of the laws of this state relating to bail or any violation of the insurance code or for any of the following causes:

   
   

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

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

* * *

(e) Being found 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.

In this case, the Respondent pleaded no contest to the three felonies identified herein. Section 648.45(2)(k), Florida Statutes, requires that such licensure be revoked or suspended.

Section 648.34(2)(e), Florida Statutes, prohibits the licensure as a bail bond agent of any person who has entered a no contest plea to a felony charge.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Insurance and Treasurer enter a Final Order revoking the licensure of Charles Bernard Smith as a limited surety agent.

DONE AND ORDERED this 29th day of December, 1997, in Tallahassee, Leon County, Florida.

_ WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1997.

COPIES FURNISHED:

Dickson E. Kesler, Esquire Division of Legal Services

401 Northwest 2nd Avenue, Suite N-321 Miami, Florida 33128

Charles Bernard Smith

1701 4th Avenue West Palmetto, Florida 34221

Daniel Y. Sumner, General Counsel Department of Insurance and Treasurer The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300

Bill Nelson

State Treasurer and Insurance Commissioner The Capitol, Plaza Level 11

Tallahassee, Florida 32399-0300

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 97-003804

Orders for Case No: 97-003804