03-000798PL
Department Of Financial Services vs.
Clarence Luther Cephas, Sr.
Status: Closed
Recommended Order on Tuesday, July 1, 2003.
Recommended Order on Tuesday, July 1, 2003.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8DEPARTMENT OF FINANCIAL )
12SERVICES, )
14)
15Petitioner, )
17)
18vs. ) Case No. 03 - 0798PL
25)
26CLARENCE LUTHER CEPHAS, SR., )
31)
32Respondent. )
34)
35RECOMMENDED OR DER
38Pursuant to notice, this matter was held before Daniel M.
48Kilbride, Administrative Law Judge, Division of Administrative
55Hearings, on May 15, 2003, in Bartow, Florida.
63APPEARANCES
64For Petitioner: Dickson E. Kesler, Esquire
70Depar tment of Financial Services
75401 Northwest 2nd Avenue, Suite N - 321
83Miami, Florida 33128
86For Respondent: James R. Franklin, Esquire
92The Franklin & Carmichael Law Firm, P.A.
99301 East Main Street
103Post Office Box 50
107Bartow, Florida 33806
110STATEMENT OF THE ISSUES
114Whether Respondent violated provision of the Florida
121Insurance Code by employing a convicted felon in the bail bond
132bu siness.
134Whether Respondent violated the provisions of the Florida
142Insurance Code by failing to report a change of address to
153Petitioner.
154PRELIMINARY STATEMENT
156On March 20, 2003, Petitioner filed a two - count Second
167Amended Administrative Complaint against R espondent. Respondent
174denied the allegations and elected for a formal adversarial
183proceeding to be heard before the Division of Administrative
192Hearings (DOAH) pursuant to Section 120.57(1), Florida Statutes.
200This matter was referred to DOAH on March 5, 2 003, and discovery
213ensued.
214The parties filed a joint Pre - Hearing Stipulation with the
225DOAH on May 5, 2003, and the matter was heard on May 15, 2003,
239in Bartow, Florida.
242At the hearing, Petitioner introduced nine exhibits, which
250were entered into evidence. Respondent presented four exhibits,
258which were entered into evidence. Petitioner called six
266witnesses: Special Agent Michael Kreis, Drug Enforcement
273Agency; Luis Rivera; Constance Castro; Pamela Jean Coleman; Noel
282Elizabeth "Nikki" Collier; and Responde nt. Respondent testified
290in his own behalf.
294The Transcript of the proceedings was filed on May 27,
3042003. Respondent filed a motion for extension of time to file
315proposed recommended orders, which was granted. Petitioner
322filed its proposals on June 9, 20 03. Respondent filed his
333proposals on June 24, 2003. Both proposals have been give
343careful consideration in the preparation of this Recommended
351Order.
352FINDINGS OF FACT
3551. At all times relevant to the dates and occurrences
365referred to in this matter, Res pondent Clarence Luther Cephas,
375Sr., was licensed in the State of Florida as a bail bond agent.
3882. Pursuant to Florida law, Petitioner has jurisdiction
396over the bail bond licensure and appointments of Respondent.
4053. Records of the Circuit Court of the Fi fteenth Judicial
416Circuit in and for Palm Beach County, Florida (Criminal
425Division), show that Pamela Jean Coleman, a/k/a Deborah Lee
434Diehl, a/k/a Pamela Jean Jones, a/k/a Pamela Jones, a/k/a Pamela
444Coleman, pleaded guilty and was adjudicated guilty on Marc h 28,
4551975, in case number 75 - 239 CF, of buying or receiving or aiding
469in concealment of stolen property, a felony.
4764. Records of the Circuit Court of the Fifteenth Judicial
486Circuit in and for Palm Beach County, Florida (Criminal
495Division), show that Pame la Jean Coleman, a/k/a Deborah Lee
505Diehl, a/k/a Pamela Jean Jones, a/k/a Pamela Jones, a/k/a Pamela
515Coleman, pleaded guilty and was adjudicated guilty on
523October 22, 1975, in case number 75 - 2390 CF, of violation of
536drug abuse law, a felony.
5415. Records of the State of Florida Department of Law
551Enforcement (FDLE) show that the conviction set forth in
560paragraph 4 above included convictions on March 28, 1975, and
570July 17, 1975, for parole violations.
5766. On or about March 7, 1980, the State of Florida Office
588of Executive Clemency restored the civil rights of Pamela Jean
598Coleman, relative to Coleman's criminal convictions in Palm
606Beach County, Florida, in 1975.
6117. Records of the FDLE show that on or about November 25,
6231991, Pamela Jean Coleman, a/k/a Deborah L ee Diehl, a/k/a Pamela
634Jean Jones, a/k/a Pamela Jones, a/k/a Pamela Coleman, plead nolo
644contendere , was adjudicated guilty, and convicted of retail
652theft in Polk County, Florida, a misdemeanor of the first
662degree, which constituted a crime of moral turpitu de.
6718. Records of the Circuit Court of the Tenth Judicial
681Circuit, in and for Polk County, State of Florida, show that on
693or about November 25, 1991, Pamela Jean Coleman, a/k/a Deborah
703Lee Diehl, a/k/a Pamela Jean Jones, a/k/a Pamela Jones, a/k/a
713Pamela C oleman, in case number CF91 - 1923, pled nolo contendere ,
725was adjudicated guilty and convicted of petit theft, a
734misdemeanor of the first degree, which constituted a crime of
744moral turpitude.
7469. Records of the Circuit Court of the Tenth Judicial
756Circuit, in and for Polk County, State of Florida, show that on
768or about December 16, 2002, an Amended Information was filed
778against Pamela Jean Coleman (a/k/a Deborah Lee Diehl, a/k/a
787Pamela Jean Jones, a/k/a Pamela Jones, a/k/a Pamela Coleman) in
797case number CFO2 - 0 0597A - XX, charging that between November 27,
8102000, and January 25, 2002, in the County of Polk and State of
823Florida, having been convicted of or pled guilty or no contest
834to a felony or a crime involving moral turpitude or a crime
846punishable by imprisonmen t of one year or more under the law of
859any state, territory, or county, regardless of whether
867adjudication of guilt was withheld, did participate as a
876director, officer, manager, or employee of a bail bond agency or
887office thereof or exercise direct or ind irect control in any
898manner in such agency or office or own shares in a closely held
911corporation which had an interest in a bail bond business
921contrary to Section 648.44, Florida Statutes.
92710. Further, the records of said court show that on or
938about Janua ry 31, 2002, Pamela Jean Coleman (a/k/a Deborah Lee
949Diehl, a/k/a Pamela Jean Jones, a/k/a Pamela Jones, a/k/a Pamela
959Coleman) in case number CFO2 - 00597A - XX, was tried, found guilty
972and adjudicated guilty of a violation of Section 648.44(8),
981Florida Statute s, acting as a bail bondsman while being a
992convicted felon, a felony of the third degree, as charged in the
1004aforesaid Amended Information. Said conviction is presently on
1012appeal before the Florida Second District Court of Appeal.
102111. Respondent knew or s hould have known the foregoing
1031information.
103212. Documents under Seal from the Florida Department of
1041State, Division of Corporations, pertaining to Clarence Luther
1049Cephas, Sr., Bailbonds, Ltd., Inc., show that Pamela Jean
1058Coleman filed original documents o n behalf of Respondent's
1067corporation and corresponded with the Department of State,
1075Division of Corporations, on behalf of the said corporation.
1084She was listed as both the registered agent of the corporation
1095and also a vice - president and director of the s aid corporation
1108as set forth on a document filed over the signature of
1119Respondent. Other filed documentation show Pamela Jean Coleman
1127as the president, secretary, and as director of said
1136corporation. These documents are accurate and valid.
114313. The origi nal license application form, Florida
1151Insurance Temporary License Application, under Section 11,
1158Screening Question Information, contains the following language:
"1165If you were adjudged guilty or convicted of a felony crime and
1177your civil rights were lost, provide evidence that your civil
1187rights have been restored." There is no evidence in the record
1198that Coleman provided that information to Petitioner at the time
1208the original application was filed or at any time subsequent to
1219that period, and Coleman signe d the application.
122714. Respondent gave a statement, under oath, before Luis
1236Rivera, Special Investigator for Petitioner's predecessor
1242(Department of Insurance), on November 27, 2000, wherein he
1251stated:
1252I have known Pamela Coleman/Jones for
1258approximately f our years and she has been
1266affiliated with me for most of the time that
1275I have been in the bail bond business. I
1284had asked her if she had ever been convicted
1293of a felony and she said that she had been
1303convicted as a teenager. She had a
1310Certificate of Res toration of Civil Rights
1317from the Office of Executive Clemency that
1324is dated March 7, 1980. I was under the
1333impression that if her rights had been
1340restored, that it would not be a problem
1348with her working for me. I named Pamela as
1357an officer in my corpor ation because I did
1366not have any family that I could list as an
1376officer except for my daughter, who is a
1384deputy sheriff and could not be an office of
1393the corporation.
139515. Respondent had a business address - of - record with
1406Petitioner of B & B Bail Bonds, 58 0 North Broadway Avenue,
1418Bartow, Florida 33830 - 3918, when in fact his business address
1429was 2095 East Georgia Street, Bartow, Florida 33830 - 6710.
1439Respondent did not notify Petitioner of a change of address for
1450his corporation as required by law.
145616. In No vember 2000 during an interview, Luis Rivera and
1467another Special Investigator from his office advised Respondent
1475that Petitioner (then the Department of Insurance) considered
1483him to be in violation of Section 648.44(8), Florida Statutes,
1493notwithstanding an y restoration of civil rights granted to
1502Pamela Jean Coleman.
150517. Luis Rivera visited the home office of Respondent, on
1515March 7 and 21, 2000, at 2095 East Georgia Street, Bartow,
1526Florida 33830 - 6710, and knew of no other office location for
1538that agent afte r that date.
154418. Constance Castro, a Special Investigator with the
1552Tampa Office, Petitioner (then the Department of Insurance),
1560Bureau of Agent and Agency Investigations, during September
15682001, made an undercover visit to the bail bond office of
1579Responden t, and pretended to be in need of a bail bond for a
1593fictitious relative. She dealt directly with Pamela Jean
1601Coleman who proceeded from the home living area of the house
1612where Respondent was also located, to the office area of the
1623home where Coleman condu cted bail bond business with Castro.
163319. Special Agent Michael Kreis, Drug Enforcement Agency,
1641in early 2001, had business with Cephas Bail Bonds. He went to
1653the office thereof where he observed Pamela Jean Coleman sitting
1663behind the desk. Coleman told him that she had posted bond the
1675night before for the people he was asking about, and was very
1687familiar with the street names of the people that were being
1698sought. Coleman helped to arrange what was supposed to be a
1709meeting between her and one of the susp ects using the ruse that
1722she needed the suspect to sign some bail bond paperwork. Kreis
1733observed Respondent in the office but Coleman seemed to be in
1744charge. Kreis observed her on the phone and dealing with people
1755who came into the Cephas' bail bond offi ce, and noted that by
1768her actions and conduct, she was acting as a bail bond agent.
178020. On or about June 19, 2001, Noel Elizabeth "Nikki"
1790Collier was working as a paralegal in her husband's law office
1801when Pamela Jean Coleman visited their office with pap erwork for
1812one of their mutual clients to fill out. Coleman left her
1823business card which read "Pamela J. Coleman, President, Clarence
1832L. Cephas, Sr. Bail Bonds." Coleman was dressed in a black
1843outfit with a badge attached to her belt. Coleman told her t hat
1856if the mutual client did not sign the paperwork then the bail
1868bonds would be revoked. When in the law office, Coleman
1878identified herself as an agent for Clarence Cephas Bail Bonds.
188821. Respondent acknowledged that Petitioner's Exhibit
1894numbered 8 was indeed a sworn statement made by him during a
1906visit to Petitioner (then Department of Insurance), Bureau of
1915Agent and Agency Investigations, at its offices in Tampa,
1924Florida, in November 2000, and that he was indeed warned by
1935Petitioner's personnel that he was in violation of Section
1944648.44(8), Florida Statutes. He was subsequently warned by the
1953filing of an Administrative Complaint in June 2001, an Amended
1963Administrative Complaint in December 2001, and a Second Amended
1972Complaint in March 2003. Respondent acknowledged that Pamela
1980Jean Coleman was indeed listed as an officer and as a registered
1992agent as well as the filer of various corporation documents,
2002regarding his corporation and on file with the Department of
2012State, Division of Corporations, and that h e did sign the
2023paperwork indicating that she was a corporate officer.
2031Respondent further acknowledged that Coleman did participate in
2039his bail bond business and that he did make payments to her as
2052an employee, which included filing of a W - 2 Form indicatin g said
2066payments.
206722. During the pendency of this action, the State of
2077Florida, by and through Jerry Hill, State Attorney for the Tenth
2088Judicial Circuit, prosecuted Respondent for criminal violations
2095of Chapter 648, Florida Statutes (2003), in the case sty led
2106State of Florida v Clarence Luther Cephas , Florida Tenth Circuit
2116Court, Case Number CF02 - 00598A - XX (the "criminal case"). The
2129Circuit Court of the Tenth Judicial Circuit conducted a jury
2139trial in the criminal case. On December 17, 2003, the jury
2150rend ered a verdict of "not guilty," and the Circuit Court of the
2163Tenth Judicial Circuit rendered a judgment of not guilty in the
2174criminal case. The allegations contained in the criminal case
2183were identical to the allegation contained in Count one of
2193Petitione r's Second Amended Administrative Complaint.
219923. During the approximate period of time March 1997 to at
2210least December 2001, Respondent did employ and/or did otherwise
2219allow Pamela Jean Coleman to participate in the bail bond
2229business.
223024. Respondent did fail to notify the Department of
2239Financial Services of a change of address as required by law.
2250CONCLUSIONS OF LAW
225325. DOAH has jurisdiction of the parties to and the
2263subject matter of these proceedings pursuant to Sections 120.569
2272and 120.57(1), Florida Statutes.
227626. Petitioner, Department of Financial Services, has
2283jurisdiction over the insurance licensure of Respondent,
2290pursuant to Chapter 648, Florida Statutes.
229627. Any written instrument purporting to be a copy of any
2307action, proceeding, or finding o f fact by the Florida Department
2318of Financial Services or any record of the Florida Department of
2329Financial Services or copy of any document on file in its office
2341when authenticated under hand of the Chief Financial Officer by
2351the seal of his office shall be accepted by all the courts of
2364this state as prima facie evidence of its contents pursuant to
2375Section 624.303, Florida Statutes. The official records
2382maintained by the State of Florida, Department of Financial
2391Services, relating to Respondent under the seal of the Chief
2401Financial Officer of the State of Florida, are one of the
2412recognized exceptions to the hearsay evidence rule, pursuant to
2421Section 90.803(8), Florida Statutes. Petitioner's exhibits are
2428accepted in this tribunal as prima facie evidence of their
2438contents, pursuant to Section 624.303, Florida Statutes.
244528. Respondent offered no testimony or other evidence to
2454contradict this evidence. Witness testimony further supported
2461the truth of the matters set forth in these documents.
247129. Official government seals can be judicially noticed
2479pursuant to Section 90.202(13), Florida Statutes. No extrinsic
2487evidence of authenticity is required for records under an
2496official state agency seal, pursuant to Section 90.902(1),
2504Florida Statutes.
250630. The evide nce is clear and convincing that during the
2517approximate period of time, March 1997 to at least December
25272001, Respondent knew or should have known that Pamela Jones
2537Coleman, a/k/a Deborah Lee Diehl, a/k/a Pamela Jean Jones, a/k/a
2547Pamela Jones, a/k/a Pamela Coleman, was a convicted felon, and
2557did employ the said Pamela Jean Coleman, a/k/a Deborah Lee
2567Diehl, a/k/a Pamela Jean Jones, a/k/a Pamela Jones, a/k/a Pamela
2577Coleman, in the bail bond business or otherwise allow her
2587participation in the bail bond busine ss in violation of Florida
2598law.
259931. The evidence is clear and convincing that Respondent
2608had a business address - of - record with Petitioner of B & B Bail
2623Bonds, 580 North Broadway Avenue, Bartow, Florida 33830 - 3918,
2633when in fact his business address was 209 5 East Georgia Street,
2645Bartow, Florida 33830 - 6710. Said business address had been at
2656that location for more than ten working days after a change of
2668address occurred without notification to the Department of
2676Financial Services as required by Florida Law.
26833 2. Section 648.30, Florida Statutes, reads as follows:
2692Licensure and appointment required. --
2697(1) A person may not act in the capacity
2706of a bail bond agent, temporary bail bond
2714agent, or runner or perform any of the
2722functions duties, or powers prescr ibed for
2729bail bond agents or runners under this
2736chapter unless that person is qualified,
2742licensed, and appointed as provided in this
2749chapter.
2750(2) No person shall represent himself or
2757herself to be a bail enforcement agent,
2764bounty hunter, or other simil ar title in
2772this state.
2774(3) No person, other than a certified law
2782enforcement officer, shall be authorized to
2788apprehend, detain or arrest a principal on a
2796bond, wherever issued, unless that person is
2803qualified, licensed, and appointed as
2808provided in th is chapter or licensed as a
2817bail bond agent by the state where the bond
2826was written.
2828(4) Any person who violates any provision
2835of this section commits a felony of the
2843third degree, punishable as provided in s.
2850775.082, s. 775.083, or s. 775.084.
285633. Section 648.34(1)(e), Florida Statutes, states, in
2863pertinent part:
2865Bail bond agents; qualifications -
2870. . . [T]o qualify as a bail bond agent, it
2881must affirmatively appear at the time of
2888application and throughout the period of
2894licensure that the appl icant has complied
2901with the provisions of s. 648.355 and has
2909obtained a temporary license pursuant to
2915such section and: . . .
2921The applicant is a person of high character
2929and approved integrity. . . .
293534. Section 648.355(1)(c), Florida Statutes, states, in
2942pertinent part:
2944The department may, in its discretion, issue
2951a temporary license as a limited surety
2958agent or professional bail bond agent,
2964subject to the following conditions: . . .
297235. Section 648.421, Florida Statutes, reads as follows:
2980Notice of c hange of address or telephone
2988number. -- Each licensee under this chapter
2995shall notify in writing the department,
3001insurer, managing general agent, and the
3007clerk of each court in which the licensee is
3016registered within 10 working days after a
3023change in the li censee's principal business
3030address or telephone number. The licensee
3036shall also notify the department within
304210 working days after a change of name,
3050address, or telephone number of each agency
3057or firm for which he or she writes bonds and
3067any change in t he licensee's name, home
3075address, or telephone number.
307936. Section 648.44(8)(a) and (b), Florida Statutes, reads
3087as follows:
3089(a) A person who has been convicted of or
3098who has pleaded guilty or not contest to a
3107felony or a crime involving moral turpi tude
3115or a crime punishable by imprisonment of 1
3123year or more under the law of any state,
3132territory, or country, regardless of whether
3138adjudication of guilt was withheld, may not
3145participate as a director, officer, manager,
3151or employee of any bail bond agen cy or
3160office thereof or exercise direct or
3166indirect control in any manner in such
3173agency or officer or own shares in any
3181closely held corporation which has any
3187interest in any bail bond business. Such
3194restrictions on engaging in the bail bond
3201business sha ll continue to apply during a
3209pending appeal.
3211(b) Any person who violates the
3217provisions of paragraph (a) or any person
3224who knowingly permits a person who has been
3232convicted of or who has pleaded guilty or
3240not contest to a crime as described in
3248parag raph (a) to engage in the bail bond
3257business as prohibited in paragraph (a)
3263commits a felony of the third degree,
3270punishable as provided in s. 775.082, s.
3277775.083, or s. 775.084.
328137. Section 648.45, Florida Statutes, reads, in pertinent
3289part:
3290(2) The department shall deny, suspend,
3296revoke, or refuse to renew any license or
3304appointment issued under this chapter or the
3311insurance code, and it shall suspend or
3318revoke the eligibility of any person to hold
3326a license or appointment under this chapter
3333or the insurance code, for any violation of
3341the laws of this state relating to bail or
3350any violation of the insurance code or for
3358any of the following causes:
3363* * *
3366(e) Demonstrated lack of fitness or
3372trustworthiness to engage in the bail bond
3379busine ss.
3381* * *
3384(j) Willful failure to comply with or
3391willful violation of any proper order or
3398rule of the department or willful violation
3405of any provision of this chapter or the
3413insurance code.
3415* * *
3418(3) The department may deny, sus pend,
3425revoke, or refuse to renew any license or
3433appointment issued under this chapter or the
3440insurance code, or it may suspend or revoke
3448the eligibility of any person to hold a
3456license or appointment under this chapter or
3463the insurance code, for any violat ion of the
3472laws of this state relating to bail or any
3481violation of the insurance code or for any
3489of the following causes:
3493(a) A cause for which issuance of the
3501license or appointment could have been
3507refused had it then existed and been known
3515to the dep artment.
3519* * *
3522(c) Violation of any law relating to the
3530business of bail bond insurance or violation
3537of any provision of the insurance code.
354438. Rule 4 - 221.001, Florida Administrative Code, reads as
3554follows:
3555Any licensed bail bond agent, t emporary bail
3563bond agent, or managing general agent
3569engaged in the bail bond business, who
3576permits any person not licensed, as required
3583under Chapter 648, Florida Statutes, to
3589solicit or engage in the bail bond business
3597in his behalf shall be deemed in vio lation
3606of Section 648.30, Florida Statutes.
361139. Rule 4 - 221.060, Florida Administrative Code, reads as
3621follows:
3622Each licensee under Chapter 648, Florida
3628Statutes, shall notify in writing the
3634Department of Insurance, Bail Bond
3639Coordinator, Larson Buildin g, Tallahassee,
3644Florida 32399 - 0300, insurer, managing
3650general agent and the clerks of each court
3658in which they are registered, of a change of
3667their principal business address, telephone
3672number, or name of each agency or firm for
3681which they write bonds wit hin ten (10)
3689working days of such change.
369440. By employing and/or allowing Pamela Jean Coleman to
3703participate in the bail bond business, and by his failure to
3714timely notify the Department of Financial Services of a change
3724of address, Respondent violate d the provisions of Sections
3733648.30, 648.421, 648.44(8)(a), 648.44(8)(b), 648.45(2),
3738648.45(2)(e), 648.45(2)(j), 648.45(3), 648.45(3)(a), and
3743648.45(3)(c), Florida Statutes, and Rules 4 - 221.001 and
37524 - 221.060, Florida Administrative Code.
375841. In Natelson v. Department of Insurance , 454 So. 2d 31
3769(Fla. 1st DCA 1984) the court stated that the business of
3780insurance is "greatly affected by the public trust" and points
3790out that "the holder of an agent's license stands in a fiduciary
3802relationship to both the cli ent and the insurance company."
3812Natelson at 31. This principle is exemplified in the provisions
3822of Chapter 648, Florida Statutes, which impose severe licensure
3831sanctions and/or felony criminal penalties for allowing a person
3840who has pled guilty or no con test to a felony or a crime
3854involving moral turpitude, regardless of whether adjudication of
3862guilt was withheld, to participate as a director, officer,
3871manager, or employee of any bail bond agency or office thereof
3882or exercise direct or indirect control in any manner in such
3893agency or office or own shares in any closely held corporation
3904which has any interest in any bail bond business, and which
3915provides that any person who violates these provisions of law or
3926who knowingly permits a person who has been conv icted of or who
3939has pleaded guilty or no contest to such a crime, as described
3951above, commits a felony of the third degree.
395942. Respondent's conduct in knowingly employing and/or
3966allowing Pamela Jean Coleman to participate in his bail bond
3976business demons trates a lack of trustworthiness. He now lacks
3986one or more of the qualifications for the license or appointment
3997as specified in the Florida Insurance Code. If that status had
4008existed at the time of application for licensure as a bail bond
4020agent, he would have been denied such licensure as lacking a
4031necessary qualification therefore pursuant to Chapter 648,
4038Florida Statutes, and Sections 648.34(2)(e) and 648.355(1)(c),
4045Florida Statutes.
404743. Petitioner has proven by clear and convincing evidence
4056that a vio lation of Section 648.45(3)(a), Florida Statutes, has
4066occurred and that Respondent lacks qualifications for insurance
4074licensure. Furthermore, Respondent has demonstrated that he
4081used his license or appointment to circumvent the requirements
4090of Chapter 648 , Florida Statutes, and the Florida Insurance
4099Code. Therefore, Sections 648.45(2)(j) and 648.45(3)(c),
4105Florida Statutes, have been violated. Respondent has further
4113demonstrated a lack of fitness or trustworthiness to engage in
4123the business of insurance a s set forth in Section 648.45(3)(e),
4134Florida Statutes.
413644. The evidence is clear and convincing that Respondent
4145knowingly did employ and/or allow Pamela Jean Coleman to
4154participate in his bail bond business and, therefore, violated
4163Section 648.30, Flori da Statutes, and Rule 4 - 221.001, Florida
4174Administrative Code.
417645. Respondent's willingness to circumvent the clearly
4183stated requirement not to employ or allow to participate in his
4194bail bond business a person who has Pamela Jean Coleman's
4204felony/moral t urpitude misdemeanor status clearly evinces a
4212disregard for the regulatory authority of the Petitioner and for
4222basic ethical principles that are a definitive indicator of
4231Respondent's lack of fitness and trustworthiness.
423746. Although Coleman has had a lim ited restoration of her
4248civil rights since March 7, 1980, Respondent's argument that
4257this limited restoration of civil rights would negate any
4266liability on the part of Petitioner for having violated Section
4276648.44(8), Florida Statutes, is clearly erroneous , for three
4284reasons. First, Pamela Jean Coleman did not have a full
4294restoration of civil rights, and she continues to retain her
4304status as a convicted felon; secondly, Respondent had a duty to
4315ensure that Coleman's restoration of civil rights created an
4324e xemption from the statutory prohibition, and he cannot argue
4334that because he assumed that it created an exemption, that in
4345fact, one was created; and third, Coleman has one or more
4356criminal offenses subsequent to the restoration of civil rights
4365which make her a disqualified person pursuant to Section
4374648.44(8), Florida Statutes.
437747. Pursuant to Sections 648.34(2)(e) and 648.335(1)(c),
4384Florida Statutes, as a condition to receiving either a temporary
4394or full bail bond agent license, an applicant must be "of higher
4406character" and must not have been convicted of or pleaded guilty
4417or no contest to a felony, a crime involving moral turpitude, or
4429a crime punishable by imprisonment of one year or more.
4439Further, Section 648.44(8), Florida Statutes, prohibits a felo n
4448(also a moral turpitude misdemeanor) from participating in the
4457bail bond business. In Sandlin v. Criminal Justice Standards &
4467Training Commission , 531 So. 2d 1344 (Fla. 1988), the Supreme
4477Court considered a statutory scheme similar to that of Chapter
448764 8, Florida Statutes, whereby, as a condition of eligibility, a
4498law enforcement officer must be of good moral character and must
4509not have been convicted, found guilty, or pled guilty or nolo
4520contendere to a felony or misdemeanor involving perjury or false
4530s tatement. Sandlin had received a full pardon prior to his
4541application to the Commission. Nevertheless, the Commission
4548interpreted its statutory scheme as absolutely prohibiting his
4556certification based on his prior criminal conviction,
4563notwithstanding th e Commission's admission that he was of good
4573moral character. The Supreme Court, noting that a full pardon
4583removes all disabilities resulting from a crime, held that the
4593Commission's interpretation unconstitutionally infringed upon
4598the executive branch's authority to grant pardons. Article IV,
4607Section 8(s) of the Florida Constitution vests sole authority in
4617the governor to grant full or conditional pardons, restore civil
4627rights, commute punishment, and remit fines and forfeitures for
4636offenses. The Suprem e Court adopted the view that a full pardon
4648removes the punishment resulting from the prior criminal
4656conviction, but does not remove the moral guilt resulting from
4666the commission of the crime. However, the Supreme Court
4675determined that the statutory schem e could be construed in a
4686constitutional manner, and held that although the full pardon
4695restored Sandlin's eligibility for certification, the Commission
4702could nevertheless refuse to certify him based on his lack of
4713fitness or moral character. Subsequent t o Sandlin , the First
4723District Court of Appeal extended Sandlin's application to
4731include the restoration of civil rights as well. See Padgett v.
4742Estate of Gilbert , 676 So. 2d 440 (Fla. 1st DCA 1996), and G.W.
4755Liquors of Collier, Inc. v. Department of Busin ess Regulation,
4765Division of Alcoholic Beverages and Tobacco , 556 So. 2d 464
4775(Fla. 1st DCA 1990). Previously, the Third District Court
4784determined that the right to engage in a state - licensed
4795occupation was a civil right which could be denied to felons.
4806Ca lhoun v. Department of Health and Rehabilitative Services , 500
4816So. 2d 674, 678 (Fla. 3rd DCA 1987). Additionally, the First
4827District Court of Appeal held that when the governor exercises
4837his discretionary clemency power, a person is restored to all
4847precon viction rights except those specifically withheld.
4854Williams v. State , 402 So. 2d 78, 79 (Fla. 1st DCA 1981). Thus,
4867because the right to engage in a state - licensed occupation is
4879taken away by virtue of a felony plea or conviction, when the
4891applicant has r eceived either a full restoration of civil rights
4902or a full pardon, the applicant's eligibility for a license from
4913the state is automatically restored, although pursuant to
4921Sandlin , the agency may properly deny the applicant based on the
4932applicant's moral unfitness.
493548. The evidence clearly shows that Coleman did not
4944receive a full restoration of civil rights, since it states that
4955it restores her civil rights "except for the specific authority
4965to possess or own a firearm." It therefore does not qualify as
4977a full restoration of civil rights or full pardon and the
4988Sandlin principle does not apply. Coleman retained her status
4997as a felon and as a prohibited person pursuant to Section
5008648.44(8), Florida Statutes. This is also exemplified in the
5017case of State of Florida v. Pamela Jean Coleman , Case No. CF02 -
503000597A - XX, in the Circuit Court of the Tenth Judicial Circuit in
5043and for Polk County, State of Florida, wherein Coleman was
5053convicted on January 31, 2003, of a third degree felony on the
5065identical facts of t he case before us involving Respondent.
507549. Respondent also questions whether Pamela Jean
5082Coleman's (Pamela Jean Jones) conviction of petit theft in Polk
5092County, Florida, on November 25, 1991, is a misdemeanor crime
5102involving moral turpitude. This convic tion occurred
5109approximately a decade after her restoration of civil rights in
51191980 and could therefore not be an offense considered by that
5130document. Any argument that the misdemeanor criminal offense of
5139petit theft does not involve moral turpitude is wit hout merit.
5150Inquiry Concerning A Judge Re: Eugene S. Garrett No. 92 - 209 ,
5162Supreme Court of Florida, 613 So. 2d 463 (1993). Regarding the
5173crime of petit theft the court stated, "Most significant is the
5184fact that Judge Garrett Knowingly committed a crime of moral
5194turpitude . . . ."
519950. In State et rel. Tullidge v. Holingsworth , 108 Fla.
5209607, 146 So. 660 (1933), the court gives us a definition of
5221moral turpitude. The court tells us that: "Moral turpitude
5230involves the idea of inherent baseness or depravity in the
5240private social relations or duties owned by man to man or by man
5253to society. State v. Page , 449 So. 2d 813 (Fla. 1984). In The
5266Florida Bar v. Davis , 361 So. 2d 159, 161 (Fla. 1978), the court
5279discusses what constitutes a crime of moral turpitude a nd
5289specifically names petit larceny as a crime which qualifies as a
5300crime of moral turpitude.
530451. Respondent violated both prohibitions of Section
5311648.44(8), Florida Statutes, which deny the prohibited class of
5320persons from being an officer, manager, agen t, contractor, or
5330employee of any bail bond agency or office or exercise direct or
5342indirect control in any manner, or permitting the prohibited
5351class of persons to engage in the bail bond business as set
5363forth in the statute. Simply by knowingly allowing Coleman to
5373have immediate contact with persons seeking assistance for bail -
5383related matters either in person or by telephone constituted
5392engaging in the bail bond business. See Etheridge v. Department
5402of Insurance , 688 So. 2d 966 (Fla. App. 1st Dist. 1997) .
541452. Respondent also argues that administrative penalties
5421imposed by a state administrative proceeding creates a double
5430jeopardy violation when such a sanction followed or preceded a
5440state criminal prosecution. In order to answer this question,
5449the issu e must first be analyzed from the vantage point of
5461United States v. Halper , 109 S.Ct. 1892 (1989). Halper solved
5471the multiple punishment query by analyzing the penalty imposed
5480and the purpose that the penalty served. According to Halper ,
5490penalties that o ften served a deterrent or retributive function
5500would resemble punishment, therefore subject to the double
5508jeopardy clause of the United States (and also the Florida)
5518Constitution. Penalties that were viewed as remedial, and done
5527for the welfare of the pu blic were held not to be punishment in
5541the eyes of a double jeopardy analysis.
554853. In Helvering v. Mitchell , 58 S. Ct. 630 (1938), the
5559Supreme Court held that an administrative penalty such as
5568revocation of a privilege voluntarily granted, i.e. disbarment ,
5576is characteristically free of punitive criminal elements. Under
5584the analysis of Halper , the language of Helvering implies that a
5595revocation of a professional license following a criminal
5603prosecution could not trigger a double jeopardy challenge.
5611Federa l Circuit Courts have appeared to adopt this conclusion in
5622cases when they have been confronted with the same issue.
563254. Florida cases on the issue also adopted the rationale
5642of the federal courts by barring double jeopardy claims on
5652administrative penalt ies under the auspices of the protection of
5662the public. The Second District Court of Appeal acknowledged
5671the protective necessity of administrative sanctions against
5678licensees, holding that the suspension of a driver's license for
5688driving under the influe nce which followed criminal charges did
5698not violate the double jeopardy clause. Freeman v. State of
5708Florida , 611 So. 2d 1260 (Fla. 2d DCA 1993) (citing Smith v.
5720City of Gainesville , 93 So. 2d 105 (Fla. 1957)). The court
5731stated: "In Florida, it is clear that the purpose of the
5742statute providing for revocation of a driver's license . . . is
5754to provide an administrative remedy for public protection and
5763not for punishment of the offender." Freeman v. State of
5773Florida , 611 So. 2d at 1261. See also Buchman v . State Board of
5787Accountancy , 300 So. 2d 671 (utility of administrative penalties
5796serves to protect the public interest). The Florida Supreme
5805Court firmly held that Bar disciplinary proceedings are not
5814penal in nature, but rather are remedial so as to pro tect the
5827public rather than punish the lawyer. DeBock v. State , 512 So.
58382d 164 (1987). "An attorney as an officer of the Court and a
5851member of the third branch of government occupies a unique
5861position in our society. Because attorneys are in position
5870wh ere members of the public must place their trust, property and
5882liberty, and even their lives, in a member of the bar, society
5894rightfully demands that an attorney must posses a fidelity to
5904truth and honesty that is beyond reproach. When an attorney
5914breache s this duty, the public is harmed. . . . For these
5927reasons, the vast weight of judicial authority recognizes that
5936bar discipline exists to protect the public, and not to punish
5947the lawyer." This court noted that "many remedial statutes
5956designed to benefi t or protect the public, have 'penal' aspect;
5967this does not alter their basic purpose and transform them into
5978penal measures. Id. at 167, (citing e.g. , Board of Public
5988Information of Broward County v. Doran , 224 So. 2d 693 (Fla.
59991969).
600055. It is clear th at revocation, suspension, or denial of
6011a license by an administrative agency has been determined to
6021serve a remedial purpose, and is not a violation of the double
6033jeopardy provision of the Constitution.
603856. Similar reasoning apples to the commonly unders tood
6047legal principles of res judicata and collateral estoppel. Res
6056judicata applies only to a second suit between the same parties
6067based on the same cause of action. In this regard, it differs
6079from collateral estoppel, which does not require the same cau se
6090of action, but requires the same parties and issues. The
6100defense of collateral estoppel is distinguished from former
6108jeopardy in that former jeopardy prohibits reprosecution for the
6117crime itself, whereas collateral estoppel merely forbids the
6125state fro m relitigating one or more particular facts to
6135establish a crime. Neither of these commonly understood
6143doctrines is applicable to a situation where there are
6152collateral criminal and administrative licensure prosecutions as
6159previously discussed above. Thi s is true, not withstanding
6168Respondent's acquittal on related criminal charges. Taube v.
6176Florida Keys Aqueduct Authority , 516 So. 2d 90 (Fla. 3d DCA
61871987); City of Miami v. Babey , 161 So. 2d 230 (Fla. 3d DCA
62001964).
620157. This case is in reality a very simp le one from the
6214perspective of the factual transaction involved. Respondent in
6222this case did, as proved by clear and convincing evidence,
6232violate each of the provisions of the Florida Insurance Code
6242with which he was charged in Count I and Count II of the Second
6256Amended Administrative Complaint.
625958. Respondent's culpability in the instant matter is
6267established and has been proven by clear and convincing
6276evidence. The conduct of Respondent is exactly what is
6285proscribed by the provisions of Florida Statute (Chapter 648,
6294Florida Statutes) and requires the severest sanction of a bail
6304bond agent's license, revocation.
630859. The statute states exactly what the legislature
6316intended and that was to ensure strict accountability by bail
6326bond agents for their conduct . Accordingly, the integrity of
6336the bail bond insurance regulatory process which depends
6344extensively on the public trust, and persons acting as bail bond
6355agents in the State of Florida must comport their business
6365behavior and demeanor to the standards of the law.
6374RECOMMENDATION
6375Based on the foregoing, it is hereby
6382RECOMMENDED that the Department of Financial Services enter
6390a final order as follows:
63951. Finding Respondent guilty of employing a convicted
6403felon in the bail bond business, in violation of Sec tions
6414648.30, 348.44(8)(b), 648.45(2)(e) and (j), and 648.45(3)(a) and
6422(c), Florida Statutes;
64252. Finding Respondent guilty of failing to report a change
6435of address; and
64383. Revoking the bail bond agent license and eligibility
6447for licensure of Respondent p ursuant to Chapter 648, Florida
6457Statutes.
6458DONE AND ENTERED this 1st day of July, 2003, in
6468Tallahassee, Leon County, Florida.
6472S
6473___________________________________
6474DANIEL M. KILBRIDE
6477Administrative Law Judge
6480Division of Administrative Hearings
6484The DeSoto Bu ilding
64881230 Apalachee Parkway
6491Tallahassee, Florida 32399 - 3060
6496(850) 488 - 9675 SUNCOM 278 - 9675
6504Fax Filing (850) 921 - 6847
6510www.doah.state.fl.us
6511Filed with the Clerk of the
6517Division of Administrative Hearings
6521this 1st day of June, 2003.
6527COPIES FURNISHED :
6530J ames R. Franklin, Esquire
6535The Franklin & Carmichael Law Firm, P.A.
6542301 East Main Street
6546Post Office Box 50
6550Bartow, Florida 33806
6553Dickson E. Kesler, Esquire
6557Department of Financial Services
6561401 Northwest 2nd Avenue, Suite N - 321
6569Miami, Florida 33128
6572Mark Casteel, General Counsel
6576Department of Financial Services
6580The Capitol, Plaza Level 11
6585Tallahassee, Florida 32399 - 0300
6590Honorable Tom Gallagher
6593Chief Financial Officer
6596Department of Financial Services
6600The Capitol, Plaza Level 11
6605Tallahassee, Florida 3239 9 - 0300
6611NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
6617All parties have the right to submit written exceptions within
662715 days from the date of this Recommended Order. Any exceptions
6638to this Recommended Order should be filed with the agency that
6649will issue the Fin al Order in this case.
![](/images/view_pdf.png)
- Date
- Proceedings
-
PDF:
- Date: 11/02/2004
- Proceedings: Letter to Judge Cohen from Respondent submitting formal complaint and requesting an investigation (filed via facsimile).
-
PDF:
- Date: 09/02/2003
- Proceedings: Letter to DOAH from the District Court of Appeal filed. DCA Case No. 2D03-3868
-
PDF:
- Date: 07/01/2003
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
-
PDF:
- Date: 06/17/2003
- Proceedings: Order. (Respondent`s motion is granted, and the parties are directed to file their proposed recommended orders on or before June 23, 2003)
-
PDF:
- Date: 06/17/2003
- Proceedings: (Proposed) Order Granting Respondent`s Motion for Extension of Time to File Proposed Recommended Order filed.
-
PDF:
- Date: 06/16/2003
- Proceedings: Motion for Extension of Time to File Proposed Recommended Order (filed by Respondent via facsimile).
- Date: 05/27/2003
- Proceedings: Transcript filed.
- Date: 05/15/2003
- Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
-
PDF:
- Date: 04/17/2003
- Proceedings: Respondent`s Response to Petitioner`s Request for Admissions filed.
-
PDF:
- Date: 04/17/2003
- Proceedings: Respondent`s Response to Petitioner`s First Request for Production of Documents filed.
-
PDF:
- Date: 04/01/2003
- Proceedings: Order Granting Petitioner`s Motion for Leave to File Second Amended Administrative Complaint issued.
-
PDF:
- Date: 03/31/2003
- Proceedings: Respondent`s Response to Petitioner`s Motion for Leave to File Second Amended Administrative Complaint filed.
-
PDF:
- Date: 03/24/2003
- Proceedings: Petitioner`s Motion for Leave to File Second Amended Administrative Complaint filed.
-
PDF:
- Date: 03/17/2003
- Proceedings: Notice of Hearing issued (hearing set for May 15, 2003; 9:00 a.m.; Bartow, FL).
-
PDF:
- Date: 03/14/2003
- Proceedings: Letter to Judge Kirkland from D. Kesler (reply to Initial Order) filed.
-
PDF:
- Date: 03/06/2003
- Proceedings: Letter to Judge Smith from M. Wade regarding correct address of J. Franklin (filed via facsimile).
Case Information
- Judge:
- DANIEL M. KILBRIDE
- Date Filed:
- 03/05/2003
- Date Assignment:
- 05/02/2003
- Last Docket Entry:
- 11/02/2004
- Location:
- Bartow, Florida
- District:
- Middle
- Agency:
- ADOPTED IN TOTO
- Suffix:
- PL
Counsels
-
James R Franklin, Esquire
Address of Record -
Dickson E Kesler, Esquire
Address of Record