STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

With the parties' agreement, this case was considered on an agreed record.

APPEARANCES

For Petitioner: Dean Andrews, Esquire

Department of Financial Services 612 Larson Building

200 East Gaines Street Tallahassee, Florida 32399-0333

For Respondent: Michael A. Levin, Esquire

Law Offices of Michael A. Levin Global Commerce Center

1900 North Commerce Parkway Weston, Florida 33326

STATEMENT OF THE ISSUE

At issue is whether Joseph Houston's (Mr. Houston) license as a limited surety agent should be temporarily suspended pursuant to Subsection 648.45(1), Florida Statutes (2007).1

PRELIMINARY STATEMENT

On January 29, 2008, the Department of Financial Services (Department) filed a Notice of Temporary Suspension (Case

No. 93664-08-AG) for Mr. Houston, which temporarily suspended his limited surety license. Mr. Houston requested a formal hearing on the matter, and, on February 13, 2008, it was referred to the Division of Administrative Hearings (DOAH) for such a proceeding.

An Initial Order was entered on February 14, 2008, with the Petitioner's and Respondent's responses to that Order filed on February 18 and 19, 2008, respectively. A pre-hearing conference was held by telephone on February 27, 2008, and, on March 12, 2008, a joint Stipulation between the parties was filed. As a result of the joint Stipulation, a recommended order may now be entered in this action.

FINDINGS OF FACT

1. Mr. Houston is, and was at all times material hereto, licensed as a limited surety agent in the State of Florida, pursuant to Chapter 648, Florida Statutes.

2. By their joint Stipulation, the parties have agreed

that:

1. The attached Capias in the case of State of Florida v. Joseph Houston, Case No. 07- 3886-CFA, issued by Clerk of the Circuit Court, Collier County, Florida, which involves one Joseph Houston under an

   indictment/information for third degree felony, is one and the same Joseph Houston named as Respondent in this action.

   
   

2. Section 648.45(1), Florida Statutes, is applicable to the temporary Order of Suspension issued by Petitioner concerning licensure of the said Joseph Houston, and a Recommended Order may be entered to that effect in this action.

   
   

3. The Capias attached to the parties' Stipulation and dated December 18, 2007, requested Mr. Houston be taken into custody to answer a pending indictment or information in the Circuit Court, in and for Collier County, for allegedly:

   (1) violating Subsection 648.44(8) and Section 777.011, Florida Statutes, a third degree felony; (2) violating Sections 648.30 and 777.011, Florida Statutes, and Florida Administrative Code Chapter 69B-221, a third degree felony; and (3) violating Subsection 648.44(1) and Section 777.011, Florida Statutes, a first degree misdemeanor.

4. According to the Collier County Sheriff's Office Report No. 0700010430 (Report) attached to the parties' Stipulation, Mr. Houston was taken into custody without incident on

   December 18, 2007, due to the outstanding Capias described above. The report mistakenly lists the name of the apprehended as "Joe Huston," but the parties have stipulated that this was in fact the Respondent named in this action.

   CONCLUSIONS OF LAW

   
   

5. DOAH has jurisdiction over the parties to and the subject matter of these proceedings. §§ 120.569 and 120.57(1), Fla. Stat.

6. The Department has jurisdiction over Respondent's limited surety license. Ch. 648, Fla. Stat.

7. The Department has the burden to establish the allegations made in the Notice of Temporary Suspension by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996). The Department has alleged that Mr. Houston violated

   Subsection 648.45(1), Florida Statutes, which provides that the following constitutes grounds for disciplinary action by the Department:

   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.

8. The Capias and Report attached to the parties' Stipulation are consistent with the parties' joint stipulations. The parties have stipulated that the above-cited subsection applies to the facts in this case. Inter alia, Mr. Houston has been charged with felony violations of (1) Subsection 648.44(8) and Section 777.011, Florida Statutes, and (2) Sections 648.30 and 777.011, Florida Statutes, and Florida Administrative Code Chapter 69B-221.

9. With no apparent dispute between the parties as to the facts or the law, the Department has shown by clear and convincing evidence that Mr. Houston violated Subsection 648.45(1), Florida Statutes. The provisions of the subsection dictate that the Department must temporarily suspend the license of a limited surety agent, when the Department is in receipt of, for one, a felony indictment or information, and, in the case of Mr. Houston, they are in such receipt.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Respondent violated Subsection 648.45(1), Florida Statutes, and temporarily suspending Respondent's limited surety license.

DONE AND ENTERED this 14th day of April, 2008, in Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

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 14th day of April, 2008.

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida Statutes are to the 2007 codification.

COPIES FURNISHED:

Dean Andrews, Esquire

Department of Financial Services 612 Larson Building

200 East Gaines Street Tallahassee, Florida 32399-0333

Michael A. Levin, Esquire

Law Offices of Michael A. Levin Global Commerce Center

1900 North Commerce Parkway Weston, Florida 33326

Honorable Alex Sink Chief Financial Officer

Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300

Daniel Sumner, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307

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: 08-000716PL

Orders for Case No: 08-000716PL