03-000798PL Department Of Financial Services vs. Clarence Luther Cephas, Sr. Status: Closed Recommended Order on Tuesday, July 1, 2003.

Summary: Respondent violated Statutes by employing a convicted felon in his bail bond business; failed to report change of address; no mitigation shown; double jeopardy, collateral estoppel, and res judicata do not apply.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF FINANCIAL )

SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 03 - 0798PL

)

CLARENCE LUTHER CEPHAS, SR., )

)

Respondent. )

)

RECOMMENDED OR DER

Pursuant to notice, this matter was held before Daniel M.

Kilbride, Administrative Law Judge, Division of Administrative

Hearings, on May 15, 2003, in Bartow, Florida.

APPEARANCES

For Petitioner: Dickson E. Kesler, Esquire

Depar tment of Financial Services

401 Northwest 2nd Avenue, Suite N - 321

Miami, Florida 33128

For Respondent: James R. Franklin, Esquire

The Franklin & Carmichael Law Firm, P.A.

301 East Main Street

Post Office Box 50

Bartow, Florida 33806

STATEMENT OF THE ISSUES

Whether Respondent violated provision of the Florida

Insurance Code by employing a convicted felon in the bail bond

bu siness.

Whether Respondent violated the provisions of the Florida

Insurance Code by failing to report a change of address to

Petitioner.

PRELIMINARY STATEMENT

On March 20, 2003, Petitioner filed a two - count Second

Amended Administrative Complaint against R espondent. Respondent

denied the allegations and elected for a formal adversarial

proceeding to be heard before the Division of Administrative

Hearings (DOAH) pursuant to Section 120.57(1), Florida Statutes.

This matter was referred to DOAH on March 5, 2 003, and discovery

ensued.

The parties filed a joint Pre - Hearing Stipulation with the

DOAH on May 5, 2003, and the matter was heard on May 15, 2003,

in Bartow, Florida.

At the hearing, Petitioner introduced nine exhibits, which

were entered into evidence. Respondent presented four exhibits,

which were entered into evidence. Petitioner called six

witnesses: Special Agent Michael Kreis, Drug Enforcement

Agency; Luis Rivera; Constance Castro; Pamela Jean Coleman; Noel

Elizabeth "Nikki" Collier; and Responde nt. Respondent testified

in his own behalf.

The Transcript of the proceedings was filed on May 27,

2003. Respondent filed a motion for extension of time to file

proposed recommended orders, which was granted. Petitioner

filed its proposals on June 9, 20 03. Respondent filed his

proposals on June 24, 2003. Both proposals have been give

careful consideration in the preparation of this Recommended

Order.

FINDINGS OF FACT

1. At all times relevant to the dates and occurrences

referred to in this matter, Res pondent Clarence Luther Cephas,

Sr., was licensed in the State of Florida as a bail bond agent.

2. Pursuant to Florida law, Petitioner has jurisdiction

over the bail bond licensure and appointments of Respondent.

3. Records of the Circuit Court of the Fi fteenth Judicial

Circuit in and for Palm Beach County, Florida (Criminal

Division), show that Pamela Jean Coleman, a/k/a Deborah Lee

Diehl, a/k/a Pamela Jean Jones, a/k/a Pamela Jones, a/k/a Pamela

Coleman, pleaded guilty and was adjudicated guilty on Marc h 28,

1975, in case number 75 - 239 CF, of buying or receiving or aiding

in concealment of stolen property, a felony.

4. Records of the Circuit Court of the Fifteenth Judicial

Circuit in and for Palm Beach County, Florida (Criminal

Division), show that Pame la Jean Coleman, a/k/a Deborah Lee

Diehl, a/k/a Pamela Jean Jones, a/k/a Pamela Jones, a/k/a Pamela

Coleman, pleaded guilty and was adjudicated guilty on

October 22, 1975, in case number 75 - 2390 CF, of violation of

drug abuse law, a felony.

5. Records of the State of Florida Department of Law

Enforcement (FDLE) show that the conviction set forth in

paragraph 4 above included convictions on March 28, 1975, and

July 17, 1975, for parole violations.

6. On or about March 7, 1980, the State of Florida Office

of Executive Clemency restored the civil rights of Pamela Jean

Coleman, relative to Coleman's criminal convictions in Palm

Beach County, Florida, in 1975.

7. Records of the FDLE show that on or about November 25,

1991, Pamela Jean Coleman, a/k/a Deborah L ee Diehl, a/k/a Pamela

Jean Jones, a/k/a Pamela Jones, a/k/a Pamela Coleman, plead nolo

contendere , was adjudicated guilty, and convicted of retail

theft in Polk County, Florida, a misdemeanor of the first

degree, which constituted a crime of moral turpitu de.

8. Records of the Circuit Court of the Tenth Judicial

Circuit, in and for Polk County, State of Florida, show that on

or about November 25, 1991, Pamela Jean Coleman, a/k/a Deborah

Lee Diehl, a/k/a Pamela Jean Jones, a/k/a Pamela Jones, a/k/a

Pamela C oleman, in case number CF91 - 1923, pled nolo contendere ,

was adjudicated guilty and convicted of petit theft, a

misdemeanor of the first degree, which constituted a crime of

moral turpitude.

9. Records of the Circuit Court of the Tenth Judicial

Circuit, in and for Polk County, State of Florida, show that on

or about December 16, 2002, an Amended Information was filed

against Pamela Jean Coleman (a/k/a Deborah Lee Diehl, a/k/a

Pamela Jean Jones, a/k/a Pamela Jones, a/k/a Pamela Coleman) in

case number CFO2 - 0 0597A - XX, charging that between November 27,

2000, and January 25, 2002, in the County of Polk and State of

Florida, having been convicted of or pled guilty or no contest

to a felony or a crime involving moral turpitude or a crime

punishable by imprisonmen t of one year or more under the law of

any state, territory, or county, regardless of whether

adjudication of guilt was withheld, did participate as a

director, officer, manager, or employee of a bail bond agency or

office thereof or exercise direct or ind irect control in any

manner in such agency or office or own shares in a closely held

corporation which had an interest in a bail bond business

contrary to Section 648.44, Florida Statutes.

10. Further, the records of said court show that on or

about Janua ry 31, 2002, Pamela Jean Coleman (a/k/a Deborah Lee

Diehl, a/k/a Pamela Jean Jones, a/k/a Pamela Jones, a/k/a Pamela

Coleman) in case number CFO2 - 00597A - XX, was tried, found guilty

and adjudicated guilty of a violation of Section 648.44(8),

Florida Statute s, acting as a bail bondsman while being a

convicted felon, a felony of the third degree, as charged in the

aforesaid Amended Information. Said conviction is presently on

appeal before the Florida Second District Court of Appeal.

11. Respondent knew or s hould have known the foregoing

information.

12. Documents under Seal from the Florida Department of

State, Division of Corporations, pertaining to Clarence Luther

Cephas, Sr., Bailbonds, Ltd., Inc., show that Pamela Jean

Coleman filed original documents o n behalf of Respondent's

corporation and corresponded with the Department of State,

Division of Corporations, on behalf of the said corporation.

She was listed as both the registered agent of the corporation

and also a vice - president and director of the s aid corporation

as set forth on a document filed over the signature of

Respondent. Other filed documentation show Pamela Jean Coleman

as the president, secretary, and as director of said

corporation. These documents are accurate and valid.

13. The origi nal license application form, Florida

Insurance Temporary License Application, under Section 11,

Screening Question Information, contains the following language:

"If you were adjudged guilty or convicted of a felony crime and

your civil rights were lost, provide evidence that your civil

rights have been restored." There is no evidence in the record

that Coleman provided that information to Petitioner at the time

the original application was filed or at any time subsequent to

that period, and Coleman signe d the application.

14. Respondent gave a statement, under oath, before Luis

Rivera, Special Investigator for Petitioner's predecessor

(Department of Insurance), on November 27, 2000, wherein he

stated:

I have known Pamela Coleman/Jones for

approximately f our years and she has been

affiliated with me for most of the time that

I have been in the bail bond business. I

had asked her if she had ever been convicted

of a felony and she said that she had been

convicted as a teenager. She had a

Certificate of Res toration of Civil Rights

from the Office of Executive Clemency that

is dated March 7, 1980. I was under the

impression that if her rights had been

restored, that it would not be a problem

with her working for me. I named Pamela as

an officer in my corpor ation because I did

not have any family that I could list as an

officer except for my daughter, who is a

deputy sheriff and could not be an office of

the corporation.

15. Respondent had a business address - of - record with

Petitioner of B & B Bail Bonds, 58 0 North Broadway Avenue,

Bartow, Florida 33830 - 3918, when in fact his business address

was 2095 East Georgia Street, Bartow, Florida 33830 - 6710.

Respondent did not notify Petitioner of a change of address for

his corporation as required by law.

16. In No vember 2000 during an interview, Luis Rivera and

another Special Investigator from his office advised Respondent

that Petitioner (then the Department of Insurance) considered

him to be in violation of Section 648.44(8), Florida Statutes,

notwithstanding an y restoration of civil rights granted to

Pamela Jean Coleman.

17. Luis Rivera visited the home office of Respondent, on

March 7 and 21, 2000, at 2095 East Georgia Street, Bartow,

Florida 33830 - 6710, and knew of no other office location for

that agent afte r that date.

18. Constance Castro, a Special Investigator with the

Tampa Office, Petitioner (then the Department of Insurance),

Bureau of Agent and Agency Investigations, during September

2001, made an undercover visit to the bail bond office of

Responden t, and pretended to be in need of a bail bond for a

fictitious relative. She dealt directly with Pamela Jean

Coleman who proceeded from the home living area of the house

where Respondent was also located, to the office area of the

home where Coleman condu cted bail bond business with Castro.

19. Special Agent Michael Kreis, Drug Enforcement Agency,

in early 2001, had business with Cephas Bail Bonds. He went to

the office thereof where he observed Pamela Jean Coleman sitting

behind the desk. Coleman told him that she had posted bond the

night before for the people he was asking about, and was very

familiar with the street names of the people that were being

sought. Coleman helped to arrange what was supposed to be a

meeting between her and one of the susp ects using the ruse that

she needed the suspect to sign some bail bond paperwork. Kreis

observed Respondent in the office but Coleman seemed to be in

charge. Kreis observed her on the phone and dealing with people

who came into the Cephas' bail bond offi ce, and noted that by

her actions and conduct, she was acting as a bail bond agent.

20. On or about June 19, 2001, Noel Elizabeth "Nikki"

Collier was working as a paralegal in her husband's law office

when Pamela Jean Coleman visited their office with pap erwork for

one of their mutual clients to fill out. Coleman left her

business card which read "Pamela J. Coleman, President, Clarence

L. Cephas, Sr. Bail Bonds." Coleman was dressed in a black

outfit with a badge attached to her belt. Coleman told her t hat

if the mutual client did not sign the paperwork then the bail

bonds would be revoked. When in the law office, Coleman

identified herself as an agent for Clarence Cephas Bail Bonds.

21. Respondent acknowledged that Petitioner's Exhibit

numbered 8 was indeed a sworn statement made by him during a

visit to Petitioner (then Department of Insurance), Bureau of

Agent and Agency Investigations, at its offices in Tampa,

Florida, in November 2000, and that he was indeed warned by

Petitioner's personnel that he was in violation of Section

648.44(8), Florida Statutes. He was subsequently warned by the

filing of an Administrative Complaint in June 2001, an Amended

Administrative Complaint in December 2001, and a Second Amended

Complaint in March 2003. Respondent acknowledged that Pamela

Jean Coleman was indeed listed as an officer and as a registered

agent as well as the filer of various corporation documents,

regarding his corporation and on file with the Department of

State, Division of Corporations, and that h e did sign the

paperwork indicating that she was a corporate officer.

Respondent further acknowledged that Coleman did participate in

his bail bond business and that he did make payments to her as

an employee, which included filing of a W - 2 Form indicatin g said

payments.

22. During the pendency of this action, the State of

Florida, by and through Jerry Hill, State Attorney for the Tenth

Judicial Circuit, prosecuted Respondent for criminal violations

of Chapter 648, Florida Statutes (2003), in the case sty led

State of Florida v Clarence Luther Cephas , Florida Tenth Circuit

Court, Case Number CF02 - 00598A - XX (the "criminal case"). The

Circuit Court of the Tenth Judicial Circuit conducted a jury

trial in the criminal case. On December 17, 2003, the jury

rend ered a verdict of "not guilty," and the Circuit Court of the

Tenth Judicial Circuit rendered a judgment of not guilty in the

criminal case. The allegations contained in the criminal case

were identical to the allegation contained in Count one of

Petitione r's Second Amended Administrative Complaint.

23. During the approximate period of time March 1997 to at

least December 2001, Respondent did employ and/or did otherwise

allow Pamela Jean Coleman to participate in the bail bond

business.

24. Respondent did fail to notify the Department of

Financial Services of a change of address as required by law.

CONCLUSIONS OF LAW

25. DOAH has jurisdiction of the parties to and the

subject matter of these proceedings pursuant to Sections 120.569

and 120.57(1), Florida Statutes.

26. Petitioner, Department of Financial Services, has

jurisdiction over the insurance licensure of Respondent,

pursuant to Chapter 648, Florida Statutes.

27. Any written instrument purporting to be a copy of any

action, proceeding, or finding o f fact by the Florida Department

of Financial Services or any record of the Florida Department of

Financial Services or copy of any document on file in its office

when authenticated under hand of the Chief Financial Officer by

the seal of his office shall be accepted by all the courts of

this state as prima facie evidence of its contents pursuant to

Section 624.303, Florida Statutes. The official records

maintained by the State of Florida, Department of Financial

Services, relating to Respondent under the seal of the Chief

Financial Officer of the State of Florida, are one of the

recognized exceptions to the hearsay evidence rule, pursuant to

Section 90.803(8), Florida Statutes. Petitioner's exhibits are

accepted in this tribunal as prima facie evidence of their

contents, pursuant to Section 624.303, Florida Statutes.

28. Respondent offered no testimony or other evidence to

contradict this evidence. Witness testimony further supported

the truth of the matters set forth in these documents.

29. Official government seals can be judicially noticed

pursuant to Section 90.202(13), Florida Statutes. No extrinsic

evidence of authenticity is required for records under an

official state agency seal, pursuant to Section 90.902(1),

Florida Statutes.

30. The evide nce is clear and convincing that during the

approximate period of time, March 1997 to at least December

2001, Respondent knew or should have known that Pamela Jones

Coleman, a/k/a Deborah Lee Diehl, a/k/a Pamela Jean Jones, a/k/a

Pamela Jones, a/k/a Pamela Coleman, was a convicted felon, and

did employ the said Pamela Jean Coleman, a/k/a Deborah Lee

Diehl, a/k/a Pamela Jean Jones, a/k/a Pamela Jones, a/k/a Pamela

Coleman, in the bail bond business or otherwise allow her

participation in the bail bond busine ss in violation of Florida

law.

31. The evidence is clear and convincing that Respondent

had a business address - of - record with Petitioner of B & B Bail

Bonds, 580 North Broadway Avenue, Bartow, Florida 33830 - 3918,

when in fact his business address was 209 5 East Georgia Street,

Bartow, Florida 33830 - 6710. Said business address had been at

that location for more than ten working days after a change of

address occurred without notification to the Department of

Financial Services as required by Florida Law.

3 2. Section 648.30, Florida Statutes, reads as follows:

Licensure and appointment required. --

(1) A person may not act in the capacity

of a bail bond agent, temporary bail bond

agent, or runner or perform any of the

functions duties, or powers prescr ibed for

bail bond agents or runners under this

chapter unless that person is qualified,

licensed, and appointed as provided in this

chapter.

(2) No person shall represent himself or

herself to be a bail enforcement agent,

bounty hunter, or other simil ar title in

this state.

(3) No person, other than a certified law

enforcement officer, shall be authorized to

apprehend, detain or arrest a principal on a

bond, wherever issued, unless that person is

qualified, licensed, and appointed as

provided in th is chapter or licensed as a

bail bond agent by the state where the bond

was written.

(4) Any person who violates any provision

of this section commits a felony of the

third degree, punishable as provided in s.

775.082, s. 775.083, or s. 775.084.

33. Section 648.34(1)(e), Florida Statutes, states, in

pertinent part:

Bail bond agents; qualifications -

. . . [T]o qualify as a bail bond agent, it

must affirmatively appear at the time of

application and throughout the period of

licensure that the appl icant has complied

with the provisions of s. 648.355 and has

obtained a temporary license pursuant to

such section and: . . .

The applicant is a person of high character

and approved integrity. . . .

34. Section 648.355(1)(c), Florida Statutes, states, in

pertinent part:

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: . . .

35. Section 648.421, Florida Statutes, reads as follows:

Notice of c hange of address or telephone

number. -- Each licensee under this chapter

shall notify in writing the department,

insurer, managing general agent, and the

clerk of each court in which the licensee is

registered within 10 working days after a

change in the li censee's principal business

address or telephone number. The licensee

shall also notify the department within

10 working days after a change of name,

address, or telephone number of each agency

or firm for which he or she writes bonds and

any change in t he licensee's name, home

address, or telephone number.

36. Section 648.44(8)(a) and (b), Florida Statutes, reads

as follows:

(a) A person who has been convicted of or

who has pleaded guilty or not contest to a

felony or a crime involving moral turpi tude

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

participate as a director, officer, manager,

or employee of any bail bond agen cy or

office thereof or exercise direct or

indirect control in any manner in such

agency or officer 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 sha ll continue to apply during a

pending appeal.

(b) 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

not contest to a crime as described in

parag raph (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.

37. Section 648.45, Florida Statutes, reads, in pertinent

part:

(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:

* * *

(e) Demonstrated lack of fitness or

trustworthiness to engage in the bail bond

busine ss.

* * *

(j) Willful failure to comply with or

willful violation of any proper order or

rule of the department or willful violation

of any provision of this chapter or the

insurance code.

* * *

(3) The department may deny, sus pend,

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 violat ion of the

laws of this state relating to bail or any

violation of the insurance code or for any

of the following causes:

(a) A cause for which issuance of the

license or appointment could have been

refused had it then existed and been known

to the dep artment.

* * *

(c) Violation of any law relating to the

business of bail bond insurance or violation

of any provision of the insurance code.

38. Rule 4 - 221.001, Florida Administrative Code, reads as

follows:

Any licensed bail bond agent, t emporary bail

bond agent, or managing general agent

engaged in the bail bond business, who

permits any person not licensed, as required

under Chapter 648, Florida Statutes, to

solicit or engage in the bail bond business

in his behalf shall be deemed in vio lation

of Section 648.30, Florida Statutes.

39. Rule 4 - 221.060, Florida Administrative Code, reads as

follows:

Each licensee under Chapter 648, Florida

Statutes, shall notify in writing the

Department of Insurance, Bail Bond

Coordinator, Larson Buildin g, Tallahassee,

Florida 32399 - 0300, insurer, managing

general agent and the clerks of each court

in which they are registered, of a change of

their principal business address, telephone

number, or name of each agency or firm for

which they write bonds wit hin ten (10)

working days of such change.

40. By employing and/or allowing Pamela Jean Coleman to

participate in the bail bond business, and by his failure to

timely notify the Department of Financial Services of a change

of address, Respondent violate d the provisions of Sections

648.30, 648.421, 648.44(8)(a), 648.44(8)(b), 648.45(2),

648.45(2)(e), 648.45(2)(j), 648.45(3), 648.45(3)(a), and

648.45(3)(c), Florida Statutes, and Rules 4 - 221.001 and

4 - 221.060, Florida Administrative Code.

41. In Natelson v. Department of Insurance , 454 So. 2d 31

(Fla. 1st DCA 1984) the court stated that the business of

insurance is "greatly affected by the public trust" and points

out that "the holder of an agent's license stands in a fiduciary

relationship to both the cli ent and the insurance company."

Natelson at 31. This principle is exemplified in the provisions

of Chapter 648, Florida Statutes, which impose severe licensure

sanctions and/or felony criminal penalties for allowing a person

who has pled guilty or no con test to a felony or a crime

involving moral turpitude, regardless of whether adjudication of

guilt was withheld, to 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, and which

provides that any person who violates these provisions of law or

who knowingly permits a person who has been conv icted of or who

has pleaded guilty or no contest to such a crime, as described

above, commits a felony of the third degree.

42. Respondent's conduct in knowingly employing and/or

allowing Pamela Jean Coleman to participate in his bail bond

business demons trates a lack of trustworthiness. He now lacks

one or more of the qualifications for the license or appointment

as specified in the Florida Insurance Code. If that status had

existed at the time of application for licensure as a bail bond

agent, he would have been denied such licensure as lacking a

necessary qualification therefore pursuant to Chapter 648,

Florida Statutes, and Sections 648.34(2)(e) and 648.355(1)(c),

Florida Statutes.

43. Petitioner has proven by clear and convincing evidence

that a vio lation of Section 648.45(3)(a), Florida Statutes, has

occurred and that Respondent lacks qualifications for insurance

licensure. Furthermore, Respondent has demonstrated that he

used his license or appointment to circumvent the requirements

of Chapter 648 , Florida Statutes, and the Florida Insurance

Code. Therefore, Sections 648.45(2)(j) and 648.45(3)(c),

Florida Statutes, have been violated. Respondent has further

demonstrated a lack of fitness or trustworthiness to engage in

the business of insurance a s set forth in Section 648.45(3)(e),

Florida Statutes.

44. The evidence is clear and convincing that Respondent

knowingly did employ and/or allow Pamela Jean Coleman to

participate in his bail bond business and, therefore, violated

Section 648.30, Flori da Statutes, and Rule 4 - 221.001, Florida

Administrative Code.

45. Respondent's willingness to circumvent the clearly

stated requirement not to employ or allow to participate in his

bail bond business a person who has Pamela Jean Coleman's

felony/moral t urpitude misdemeanor status clearly evinces a

disregard for the regulatory authority of the Petitioner and for

basic ethical principles that are a definitive indicator of

Respondent's lack of fitness and trustworthiness.

46. Although Coleman has had a lim ited restoration of her

civil rights since March 7, 1980, Respondent's argument that

this limited restoration of civil rights would negate any

liability on the part of Petitioner for having violated Section

648.44(8), Florida Statutes, is clearly erroneous , for three

reasons. First, Pamela Jean Coleman did not have a full

restoration of civil rights, and she continues to retain her

status as a convicted felon; secondly, Respondent had a duty to

ensure that Coleman's restoration of civil rights created an

e xemption from the statutory prohibition, and he cannot argue

that because he assumed that it created an exemption, that in

fact, one was created; and third, Coleman has one or more

criminal offenses subsequent to the restoration of civil rights

which make her a disqualified person pursuant to Section

648.44(8), Florida Statutes.

47. Pursuant to Sections 648.34(2)(e) and 648.335(1)(c),

Florida Statutes, as a condition to receiving either a temporary

or full bail bond agent license, an applicant must be "of higher

character" and must not have been convicted of or pleaded guilty

or no contest to a felony, a crime involving moral turpitude, or

a crime punishable by imprisonment of one year or more.

Further, Section 648.44(8), Florida Statutes, prohibits a felo n

(also a moral turpitude misdemeanor) from participating in the

bail bond business. In Sandlin v. Criminal Justice Standards &

Training Commission , 531 So. 2d 1344 (Fla. 1988), the Supreme

Court considered a statutory scheme similar to that of Chapter

64 8, Florida Statutes, whereby, as a condition of eligibility, a

law enforcement officer must be of good moral character and must

not have been convicted, found guilty, or pled guilty or nolo

contendere to a felony or misdemeanor involving perjury or false

s tatement. Sandlin had received a full pardon prior to his

application to the Commission. Nevertheless, the Commission

interpreted its statutory scheme as absolutely prohibiting his

certification based on his prior criminal conviction,

notwithstanding th e Commission's admission that he was of good

moral character. The Supreme Court, noting that a full pardon

removes all disabilities resulting from a crime, held that the

Commission's interpretation unconstitutionally infringed upon

the executive branch's authority to grant pardons. Article IV,

Section 8(s) of the Florida Constitution vests sole authority in

the governor to grant full or conditional pardons, restore civil

rights, commute punishment, and remit fines and forfeitures for

offenses. The Suprem e Court adopted the view that a full pardon

removes the punishment resulting from the prior criminal

conviction, but does not remove the moral guilt resulting from

the commission of the crime. However, the Supreme Court

determined that the statutory schem e could be construed in a

constitutional manner, and held that although the full pardon

restored Sandlin's eligibility for certification, the Commission

could nevertheless refuse to certify him based on his lack of

fitness or moral character. Subsequent t o Sandlin , the First

District Court of Appeal extended Sandlin's application to

include the restoration of civil rights as well. See Padgett v.

Estate of Gilbert , 676 So. 2d 440 (Fla. 1st DCA 1996), and G.W.

Liquors of Collier, Inc. v. Department of Busin ess Regulation,

Division of Alcoholic Beverages and Tobacco , 556 So. 2d 464

(Fla. 1st DCA 1990). Previously, the Third District Court

determined that the right to engage in a state - licensed

occupation was a civil right which could be denied to felons.

Ca lhoun v. Department of Health and Rehabilitative Services , 500

So. 2d 674, 678 (Fla. 3rd DCA 1987). Additionally, the First

District Court of Appeal held that when the governor exercises

his discretionary clemency power, a person is restored to all

precon viction rights except those specifically withheld.

Williams v. State , 402 So. 2d 78, 79 (Fla. 1st DCA 1981). Thus,

because the right to engage in a state - licensed occupation is

taken away by virtue of a felony plea or conviction, when the

applicant has r eceived either a full restoration of civil rights

or a full pardon, the applicant's eligibility for a license from

the state is automatically restored, although pursuant to

Sandlin , the agency may properly deny the applicant based on the

applicant's moral unfitness.

48. The evidence clearly shows that Coleman did not

receive a full restoration of civil rights, since it states that

it restores her civil rights "except for the specific authority

to possess or own a firearm." It therefore does not qualify as

a full restoration of civil rights or full pardon and the

Sandlin principle does not apply. Coleman retained her status

as a felon and as a prohibited person pursuant to Section

648.44(8), Florida Statutes. This is also exemplified in the

case of State of Florida v. Pamela Jean Coleman , Case No. CF02 -

00597A - XX, in the Circuit Court of the Tenth Judicial Circuit in

and for Polk County, State of Florida, wherein Coleman was

convicted on January 31, 2003, of a third degree felony on the

identical facts of t he case before us involving Respondent.

49. Respondent also questions whether Pamela Jean

Coleman's (Pamela Jean Jones) conviction of petit theft in Polk

County, Florida, on November 25, 1991, is a misdemeanor crime

involving moral turpitude. This convic tion occurred

approximately a decade after her restoration of civil rights in

1980 and could therefore not be an offense considered by that

document. Any argument that the misdemeanor criminal offense of

petit theft does not involve moral turpitude is wit hout merit.

Inquiry Concerning A Judge Re: Eugene S. Garrett No. 92 - 209 ,

Supreme Court of Florida, 613 So. 2d 463 (1993). Regarding the

crime of petit theft the court stated, "Most significant is the

fact that Judge Garrett Knowingly committed a crime of moral

turpitude . . . ."

50. In State et rel. Tullidge v. Holingsworth , 108 Fla.

607, 146 So. 660 (1933), the court gives us a definition of

moral turpitude. The court tells us that: "Moral turpitude

involves the idea of inherent baseness or depravity in the

private social relations or duties owned by man to man or by man

to society. State v. Page , 449 So. 2d 813 (Fla. 1984). In The

Florida Bar v. Davis , 361 So. 2d 159, 161 (Fla. 1978), the court

discusses what constitutes a crime of moral turpitude a nd

specifically names petit larceny as a crime which qualifies as a

crime of moral turpitude.

51. Respondent violated both prohibitions of Section

648.44(8), Florida Statutes, which deny the prohibited class of

persons from being an officer, manager, agen t, contractor, or

employee of any bail bond agency or office or exercise direct or

indirect control in any manner, or permitting the prohibited

class of persons to engage in the bail bond business as set

forth in the statute. Simply by knowingly allowing Coleman to

have immediate contact with persons seeking assistance for bail -

related matters either in person or by telephone constituted

engaging in the bail bond business. See Etheridge v. Department

of Insurance , 688 So. 2d 966 (Fla. App. 1st Dist. 1997) .

52. Respondent also argues that administrative penalties

imposed by a state administrative proceeding creates a double

jeopardy violation when such a sanction followed or preceded a

state criminal prosecution. In order to answer this question,

the issu e must first be analyzed from the vantage point of

United States v. Halper , 109 S.Ct. 1892 (1989). Halper solved

the multiple punishment query by analyzing the penalty imposed

and the purpose that the penalty served. According to Halper ,

penalties that o ften served a deterrent or retributive function

would resemble punishment, therefore subject to the double

jeopardy clause of the United States (and also the Florida)

Constitution. Penalties that were viewed as remedial, and done

for the welfare of the pu blic were held not to be punishment in

the eyes of a double jeopardy analysis.

53. In Helvering v. Mitchell , 58 S. Ct. 630 (1938), the

Supreme Court held that an administrative penalty such as

revocation of a privilege voluntarily granted, i.e. disbarment ,

is characteristically free of punitive criminal elements. Under

the analysis of Halper , the language of Helvering implies that a

revocation of a professional license following a criminal

prosecution could not trigger a double jeopardy challenge.

Federa l Circuit Courts have appeared to adopt this conclusion in

cases when they have been confronted with the same issue.

54. Florida cases on the issue also adopted the rationale

of the federal courts by barring double jeopardy claims on

administrative penalt ies under the auspices of the protection of

the public. The Second District Court of Appeal acknowledged

the protective necessity of administrative sanctions against

licensees, holding that the suspension of a driver's license for

driving under the influe nce which followed criminal charges did

not violate the double jeopardy clause. Freeman v. State of

Florida , 611 So. 2d 1260 (Fla. 2d DCA 1993) (citing Smith v.

City of Gainesville , 93 So. 2d 105 (Fla. 1957)). The court

stated: "In Florida, it is clear that the purpose of the

statute providing for revocation of a driver's license . . . is

to provide an administrative remedy for public protection and

not for punishment of the offender." Freeman v. State of

Florida , 611 So. 2d at 1261. See also Buchman v . State Board of

Accountancy , 300 So. 2d 671 (utility of administrative penalties

serves to protect the public interest). The Florida Supreme

Court firmly held that Bar disciplinary proceedings are not

penal in nature, but rather are remedial so as to pro tect the

public rather than punish the lawyer. DeBock v. State , 512 So.

2d 164 (1987). "An attorney as an officer of the Court and a

member of the third branch of government occupies a unique

position in our society. Because attorneys are in position

wh ere members of the public must place their trust, property and

liberty, and even their lives, in a member of the bar, society

rightfully demands that an attorney must posses a fidelity to

truth and honesty that is beyond reproach. When an attorney

breache s this duty, the public is harmed. . . . For these

reasons, the vast weight of judicial authority recognizes that

bar discipline exists to protect the public, and not to punish

the lawyer." This court noted that "many remedial statutes

designed to benefi t or protect the public, have 'penal' aspect;

this does not alter their basic purpose and transform them into

penal measures. Id. at 167, (citing e.g. , Board of Public

Information of Broward County v. Doran , 224 So. 2d 693 (Fla.

1969).

55. It is clear th at revocation, suspension, or denial of

a license by an administrative agency has been determined to

serve a remedial purpose, and is not a violation of the double

jeopardy provision of the Constitution.

56. Similar reasoning apples to the commonly unders tood

legal principles of res judicata and collateral estoppel. Res

judicata applies only to a second suit between the same parties

based on the same cause of action. In this regard, it differs

from collateral estoppel, which does not require the same cau se

of action, but requires the same parties and issues. The

defense of collateral estoppel is distinguished from former

jeopardy in that former jeopardy prohibits reprosecution for the

crime itself, whereas collateral estoppel merely forbids the

state fro m relitigating one or more particular facts to

establish a crime. Neither of these commonly understood

doctrines is applicable to a situation where there are

collateral criminal and administrative licensure prosecutions as

previously discussed above. Thi s is true, not withstanding

Respondent's acquittal on related criminal charges. Taube v.

Florida Keys Aqueduct Authority , 516 So. 2d 90 (Fla. 3d DCA

1987); City of Miami v. Babey , 161 So. 2d 230 (Fla. 3d DCA

1964).

57. This case is in reality a very simp le one from the

perspective of the factual transaction involved. Respondent in

this case did, as proved by clear and convincing evidence,

violate each of the provisions of the Florida Insurance Code

with which he was charged in Count I and Count II of the Second

Amended Administrative Complaint.

58. Respondent's culpability in the instant matter is

established and has been proven by clear and convincing

evidence. The conduct of Respondent is exactly what is

proscribed by the provisions of Florida Statute (Chapter 648,

Florida Statutes) and requires the severest sanction of a bail

bond agent's license, revocation.

59. The statute states exactly what the legislature

intended and that was to ensure strict accountability by bail

bond agents for their conduct . Accordingly, the integrity of

the bail bond insurance regulatory process which depends

extensively on the public trust, and persons acting as bail bond

agents in the State of Florida must comport their business

behavior and demeanor to the standards of the law.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Department of Financial Services enter

a final order as follows:

1. Finding Respondent guilty of employing a convicted

felon in the bail bond business, in violation of Sec tions

648.30, 348.44(8)(b), 648.45(2)(e) and (j), and 648.45(3)(a) and

(c), Florida Statutes;

2. Finding Respondent guilty of failing to report a change

of address; and

3. Revoking the bail bond agent license and eligibility

for licensure of Respondent p ursuant to Chapter 648, Florida

Statutes.

DONE AND ENTERED this 1st day of July, 2003, in

Tallahassee, Leon County, Florida.

S

___________________________________

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Bu ilding

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 1st day of June, 2003.

COPIES FURNISHED :

J ames R. Franklin, Esquire

The Franklin & Carmichael Law Firm, P.A.

301 East Main Street

Post Office Box 50

Bartow, Florida 33806

Dickson E. Kesler, Esquire

Department of Financial Services

401 Northwest 2nd Avenue, Suite N - 321

Miami, Florida 33128

Mark Casteel, General Counsel

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399 - 0300

Honorable Tom Gallagher

Chief Financial Officer

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 3239 9 - 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 Fin al Order in this case.