and 648.355, Florida Statutes, should be granted.
On December 2, 2003, Respondent, the Department of Financial Services, referred to the Division of Administrative Hearings (DOAH), its letter dated June 2, 2003, informing Petitioner, Bennie Small, Jr., that his application for licensure as a surety/bail bond agent was denied. The denial was based on a January 17, 1989, plea of no contest to the charge of grand theft, a felony, in the Thirteenth Judicial Circuit, in and for, Hillsborough County, Florida.
Petitioner challenged the denial and requested a formal administrative proceeding before DOAH pursuant to Subsection 120.57(1), Florida Statutes.
On December 19, 2003, a Notice of Hearing, scheduling the final hearing for January 14, 2004, and an Order of Pre-hearing Instructions were entered.
On January 7, 2004, the Parties' Agreed Motion for Continuance was filed, and the Order Granting Continuance and Rescheduling Hearing for March 2, 2004, was entered.
At the final hearing, Petitioner testified on his own behalf and presented the testimony of Terrance Small.
Petitioner introduced three exhibits (P-A through P-C), which were accepted into evidence.
The oral motion of Respondent to amended its denial letter to include Section 648.355, Florida Statutes, as statutory authority, was granted.
Respondent presented the testimony of one witness, Robert Harrison, former prosecutor in the State Attorney's Office, who prosecuted State of Florida v. Bennie Small, Jr., Case No. 88- CF-15373, on the charge of grand theft, a felony. Respondent introduced 25 exhibits (R-1 through R-24 and R-26), which were accepted into evidence. Respondent's Exhibit R-25 was not admitted into evidence.
Petitioner served a subpoena on Gloria Burgess, court clerk, criminal division of the Thirteenth Judicial Circuit, in and for, Hillsborough County, Florida. The subpoena was quashed by order of Circuit Judge J. Rogers Padgett. Petitioner's request to leave the record open 30 days post-hearing to depose Gloria Burgess was granted.2 Ms. Burgess' deposition was filed on March 29, 2004.
The one-volume Transcript was filed on March 25, 2004.
Proposed recommended orders were scheduled to be filed not later than April 16, 2004. Respondent, on behalf of both parties, filed a Motion for Extension of Time to File Post-hearing Submissions, seeking until May 7, 2004, for the parties to submit their proposed recommended orders. The motion was granted, and both parties timely filed their proposals.
Both parties' proposals and the deposition of Ms. Burgess were considered in rendering this Recommended Order.
Official Recognition is taken of Chapters 624 through 632, 634, 635, 641, 648, and 651, Florida Statutes, which constitute the "Florida Insurance Code." See § 624.01, Fla. Stat.
Based upon observation of the witnesses and their demeanor while testifying; documentary materials received into evidence; stipulations by the parties; evidentiary ruling made pursuant to Section 120.57, Florida Statutes; and the record evidence submitted, the following relevant and material facts are determined:
Pursuant to Chapter 648, Florida Statutes, Respondent has jurisdiction over bail bond licensure, appointments, and related activities.
Petitioner appeared before the undersigned in this proceeding, identified himself and admitted that he is the individual prosecuted in the Thirteenth Judicial Circuit, in and for, Hillsborough County, Florida, Case No. 88-CF-15373, State of Florida v. Bennie Small, Jr., on a Direct Information of two counts of grand theft, and that Respondent has jurisdiction over him and the subject matter involved in its denial letter.
The record evidence demonstrated that on or about January 21, 1987, Petitioner entered into a real estate contract
with Deltricia Wiggins, a prospective homebuyer. Ms. Wiggins, believing Petitioner to be the realtor representing the seller, gave Petitioner $500.00 to assist her in the purchase of the home. Thereafter, she became aware that the subject home had been sold and demanded that Petitioner return her $500.00.
Petitioner failed or refused to return her $500.00. Ms. Wiggins contacted the Hillsborough County State Attorney's Office and made a report. At no time during the above transaction was Petitioner a licensed real estate sales person or licensed real estate broker.
The record evidence demonstrated that Petitioner entered into a real estate contract with Janet Richardson, a prospective homebuyer. Ms. Richardson, believing Petitioner to be the realtor representing the seller, gave Petitioner $500.00 to assist her in the purchase of a family home. Thereafter, she became aware that the subject home had been sold and demanded that Petitioner return her $500.00. Petitioner failed or refused to return her $500.00. At no time during the above transaction was Petitioner a licensed real estate sales person or licensed real estate broker.
On October 26, 1988, the State Attorney's Office filed a Direct Information charging Petitioner with two counts of grand theft. The two counts of grand theft stemmed from Petitioner's above two unlicensed real estate transactions.
At some unknown time on or before January 5, 1989, Petitioner returned the money to both Misses Wiggins and Richardson. The fact that he subsequently returned money to his two victims did not negate his taking their money under illegal and false pretense.
Record evidence demonstrated that on January 17, 1989, Petitioner was represented by the Office of the Public Defender of the Thirteenth Judicial Circuit, in and for, Hillsborough County, Florida, in Case No. 88-CF-15373, and a plea of no contest to the charge of grand theft was entered on his behalf. Circuit Judge Harry Lee Coe accepted the plea of no contest on behalf of Petitioner, withheld adjudication of guilt, imposed no probation, and ordered that Petitioner not practice law nor practice real estate without appropriate licensure.
Petitioner produced no record evidence that the no contest plea entered on his behalf by the public defender and that the judgment and sentence of the Court imposed by Circuit Judge Harry Lee Coe, of the Hillsborough County Circuit Court on January 17, 1989, in Case No. 88-CF-15373, has been overturned, reversed or set aside by a court of competent jurisdiction.
Petitioner, through his evidence and post-hearing submittals, presented the following arguments in support of his position that "he did not enter a plea of no contest to the grand theft charge." First, Petitioner argued that while in
court, "he" personally did not enter a no contest plea. Second, he argued that "his" personal approval that a no contest plea be entered on his behalf was neither requested nor given to the public defender that represented him. Third, he argued that he was not made a party at the bench conference between the presiding Judge, the prosecutor, and his public defender, when discussions regarding the terms and condition of resolving his case were ongoing and concluded. Fourth, he argued that copies of the court docket sheet, recording entries written by the court's clerk, who sat in court and made each docket sheet entry as pronounced by the court, were insufficient to establish that those recorded actions were actually taken by the court.
Because of the foregone alleged irregularities, argued Petitioner, there is no "official court record" of his having entered a no contest plea to the grand theft charge. Petitioner put forth no evidence in support of his several arguments challenging Respondent's denial of his license application.
Petitioner proffered no evidence of the official judicial disposition of the two counts of grand theft filed against him.
Petitioner failed to produce a scintilla of evidence in support of his assertions that Respondent did not fully comply with the Florida Statutes when Respondent, by letter dated June 2, 2003, informed Petitioner that his application for licensure as a surety/bail bond agent was denied, and the denial
was based on a January 17, 1989, plea of no contest to the charge of grand theft, a felony, in the Thirteenth Judicial Circuit, in and for, Hillsborough County, Florida.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings pursuant to Subsection 120.57(1), Florida Statutes.
Respondent has jurisdiction over the insurance-related activities and eligibility for insurance licensure of Petitioner pursuant to Chapters 624, 626, and 648, Florida Statutes.
Respondent alleged that Petitioner, who had been convicted of or who had pled guilty or no contest to a felony or a crime involving moral turpitude, in violation of Subsections 648.44(8)(a), 648.44(8)(b), 648.45(2), 648.45(2)(e), 648.45(2)(j), 648.45(2)(k), 648.45(3), 648.45(3)(c), and 648.45(3)(e), Florida Statutes, demonstrated a lack of fitness or trustworthiness to engage in the bail bond business.
Subsections 648.44(8)(a) and (b), Florida Statutes, read as follows:
A person who has been convicted or who has pleaded guilty or no contest to 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, regardless of whether adjudication of guilt was withheld may not act in any capacity for a bail bond agency or participate as a director, officer,
manager, agent, contractor or employee of any bail bond agency or office thereof or exercise direct or indirect control in any manner in such agency or office or own shares in any closely held corporation which has any interest in any bail bond business. Such restrictions on engaging in the bail bond business shall continue to apply during a pending appeal. (emphasis added)
Any person who violates the provisions of paragraph (a) or any person who knowingly permits a person who has been convicted of or who has pleaded guilty or no contest to a crime as described in paragraph
(a) to engage in the bail bond business as prohibited in paragraph (a) commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084
Subsection 648.45(2), Florida Statutes, reads, in pertinent part:
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 if the person:
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(e) Has demonstrated lack of fitness or trustworthiness to engage in the bail bond business.
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Has willfully failed to comply with or willfully violated . . . any provision of this chapter or the insurance code.
Has been found guilty of, or has 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.
Subsection 648.45(3), Florida Statutes, reads, in pertinent part:
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:
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(c) Violation of any law relating to the business of bail bond insurance or violation of any provision of the insurance code.
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(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.
The regulation and licensing of bail bond agents is of concern in the context of the public health, safety and welfare of the citizens of this State. The Legislature has provided strict guidelines as to the qualifications necessary for applicants, providing in part that "[f]or the protection of the
people of this state, the department may not issue . . . any license or appointment except in compliance with this chapter."
§ 648.27(2), Fla. Stat.
The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue of the proceeding, Antel v. Department of Professional
Regulations, 522 So. 2d 1056 (Fla. 5th DCA 1988); and Department of Transportation v. J.W.C., 396 So. 2d 778 (Fla. 1st DCA 1981).
Petitioner argued that "he" did not personally enter a plea of no contest to the two counts of grand theft. He argued that "he" did not personally participate in the "bench conference" when the no contest plea was entered on his behalf and accepted by the court. Petitioner argued also that copies of the court docket sheets, reflecting hand-written entries made by the clerk of court, were unreliable and insufficient evidence to prove that "he" entered a plea of no contest to the grand theft charge. Petitioner offered no evidence in support of his arguments. It is noted that Petitioner did not address, either at hearing or in his Proposed Recommended Order, his two illegal, unlicensed real estate transactions wherein he took money under illegal and false pretense. Petitioner was not licensed as a real estate agent or broker at the time he took money for real estate transactions. Petitioner's unlicensed
real estate transactions, though not charged, are crimes involving moral turpitude.
Assuming arguendo, that the circuit court's action was made in error, based on the court's mistake that Petitioner did not personally enter a plea or that his appointed counselor mistakenly entered the plea on his behalf, the error had not been reversed by a court of competent jurisdiction. Therefore, the court's ruling is clothed with judicial finality. Petitioner's entry of a no contest plea to the criminal act of grand theft precludes any and all participation in bail bond agent activities. Petitioner's arguments equated to an invalid collateral attack on the criminal proceedings.
It is a settled principle of law that:
It is fundamental that judgments and decrees are not subject to collateral attack where the court had Jurisdiction of the subject matter and the parties. 19 Fla. Jur., "Judgments and Decrees," Section 374. While adjudication of a Court acting without authority is void, an order based on a matter within the issues raised by the pleadings is not void if the court had jurisdiction on the parties. 19 Fla. Jur., "Judgment and Decrees," Section 383.
The disqualifying criminal act of grand theft, to which Petitioner pled no contest, was a crime involving moral turpitude. See The Florida Bar v. Davis, 361 So. 2d 159, 161 (Fla. 1978). As such, Petitioner can not be licensed nor can he otherwise participate as a director, officer, manager, or
employee of any bail bond agency or office thereof or exercise direct or indirect control in any manner in such agency or office or own shares in any closely held corporation which has any interest in any bail bond business or perform the functions, duties, or powers prescribed for bail bond agents or runners as set forth in Chapter 648, Florida Statutes.
Respondent established by clear and convincing evidence that Petitioner violated Subsections 648.44(8)(a), 648.44(8)(b), 648.45(2), 648.45(2)(e), 648.45(2)(j), 648.45(2)(k), 648.45(3), 648.45(3)(c), and 648.45(3)(e), Florida Statutes, and thereby demonstrated a lack of fitness or trustworthiness to engage in the bail bond business.
The clear and convincing evidence demonstrated that on January 17, 1989, Petitioner acknowledged and was represented by an attorney from the Office of the Public Defender for the Thirteenth Judicial Circuit, in and for, Hillsborough County, Florida, in Case No. 88-CF-15373, and a no contest plea to the charge of grand theft was legally entered on his behalf. The record evidence does not support Petitioner's claim that he objected to the no contest plea entered by his court appointed counsel. Circuit Judge Harry Lee Coe accepted the plea of no contest to the charge of grand theft on behalf of Petitioner, withheld adjudication of guilt, imposed no probation, and
ordered Petitioner not to practice law or real estate without appropriate licensure.
Petitioner's no contest plea to grand theft, a second degree felony and a crime involving moral turpitude, prohibits Petitioner's participation in the business of a bail bond agency, acting as temporary bail bond agent or runner, and/or performing the functions, duties, or powers prescribed for bail bond agents or runners as set forth in Chapter 648, Florida Statutes.
Respondent proved by clear and convincing evidence that its denial of Petitioner's application for licensure as a temporary limited surety/bail bond agent pursuant to Section 648.27, Florida Statutes, amended at the final hearing also to include Section 648.355, Florida Statutes, was appropriate.
Petitioner has failed to establish that his application for licensure as a temporary limited surety/bail bond agent should be granted.
