STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RALPH ROQUE, JR., )

)

Petitioner, )

)

vs. ) Case No. 02-1570

)

DEPARTMENT OF INSURANCE, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case by video teleconference on June 11, 2002, with a hearing site located in Miami, Florida, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: No Appearance

For Respondent: Ladasiah Jackson, Esquire

Department of Insurance

200 East Gaines Street Tallahassee, Florida 32399-0333

STATEMENT OF THE ISSUE

Whether the Petitioner is entitled to the license sought.

PRELIMINARY STATEMENT

On January 3, 2002, the Department of Insurance and Treasurer, Bureau of Agent and Agency Licensing (Department or Respondent), issued a Notice of Denial to the Petitioner,

Ralph Roque, Jr. Such Notice advised the Petitioner that his application for license as a temporary limited surety/bail bond agent had been denied. More specifically, the Notice claimed that the Petitioner had entered pleas of nolo contendere to charges that precluded his licensure.

The Petitioner timely filed an Election of Rights that initially sought an informal review of the case as he did not dispute the factual allegations of the Notice. Subsequently, the matter was forwarded to the Division of Administrative Hearings for formal proceedings.

At the hearing, the Petitioner did not appear. Notice of the hearing was provided to the Petitioner at his address of record. The Respondent's Exhibits 1-8 were admitted into evidence.

A transcript of the proceedings was not filed. The Department submitted a Proposed Recommended Order on June 21, 2002, that has been considered in the preparation of this order. The Petitioner did not submit any post-hearing proposals.

FINDINGS OF FACT

1. The Petitioner, Ralph Roque, Jr., was an applicant for licensure as a temporary limited surety/bail bond agent.

2. On January 3, 2002, the Department issued a Notice of Denial regarding Petitioner's application. The denial alleged

   that the Petitioner was ineligible for licensure due to his past criminal record.

3. The Petitioner timely challenged the denial of his application but did not appear for hearing nor present any evidence to support his entitlement to the license sought.

4. The Petitioner did not dispute the factual allegations set forth in the Notice of Denial. See Election of Rights dated January 17, 2002.

5. On June 22, 1987, the Petitioner pled nolo contendere to Possession of a Controlled Substance. The Petitioner was placed on probation.

6. On January 8, 1988, the Petitioner's probation was revoked and he was sentenced to six months imprisonment for the violation of probation.

7. On July 6, 2001, the Petitioner was charged with carrying a concealed firearm. He pled nolo contendere to the charge.

8. The allegations of Petitioner's criminal possession of a controlled substance charge constituted a felony under Florida law.

9. The allegations of Petitioner's carrying a concealed firearm charge constituted a felony under Florida law.

10. The Petitioner presented no evidence to support his entitlement to licensure.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 120.57(1), Florida Statutes.

12. The Petitioner bears the burden of proof in this cause to establish he is entitled to the license sought. He has failed to meet that burden. See Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977); Florida Department of Transportation v. J.W.C. Co.,

    396 So. 2d 778, 788 (Fla. 1st DCA 1981); McDonald v.

    
    

    Department of Professional Regulation, Board of Pilot Commissioners, 582 So. 2d 660, 670 (Fla. 1st DCA 1991).

13. Section 648.355(1)(c), Florida Statutes, provides:

    
    

    1. The department may, in its discretion, issue a temporary license as a limited surety agent or professional bail bond agent, subject to the following conditions:

       
       

       * * *

       
       

       (c) The applicant is a person of high character and approved integrity and has never 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 is entered. (Emphasis Added)

       
       

14. It is undisputed that the Petitioner pled nolo contendere (no contest) to two felony charges. Although he was placed on probation and adjudication was withheld, such

    pleas are within the statutory guideline that precludes licensure of the Petitioner. The Respondent does not have discretion to ignore the mandate of the statute.

15. The Petitioner did not present evidence that the allegations did not support a felony charge nor make any effort to explain the entry of the pleas. Accordingly, he has failed to meet his burden in this matter.

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 denying the Petitioner's application.

DONE AND ENTERED this 25th day of July, 2002, in Tallahassee, Leon County, Florida.

___________________________________

J. D. PARRISH 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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 2002.

COPIES FURNISHED:

Honorable Tom Gallagher

State Treasurer/Insurance Commissioner Department of Insurance

The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300

Mark Casteel, General Counsel Department of Insurance

The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307

Ladasiah Jackson, Esquire Department of Insurance

200 East Gaines Street Tallahassee, Florida 32399-0333

Ralph Roque, Jr.

11808 Southwest 125 Place

Miami, Florida 33186

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: 02-001570

Orders for Case No: 02-001570