04-000213 Eduardo Federico Godoy vs. Department Of Financial Services Status: Closed Recommended Order on Wednesday, June 30, 2004.

Summary: Petitioner failed to prove his entitlement to a limited surety bail bond license because of his pleading guilty in 1971 to a felony and his failure to disclose his guilty plea.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDUARDO FEDERICO GODOY, )

)

Petitioner, )

)

vs. ) Case No. 04 - 0213

)

DEPARTMENT OF FINANCIAL )

SERVICES, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing by

videoconference in Tallahassee and Miami, Florida, on March 22,

2004.

APPEARANCES

For Petitioner: Santiago Lavan - dera

Law Office of Pena and Lavan - dera

7950 Northwest 155th Street, Suite 201

Miami Lakes, Florida 33016

Eduardo Federico Godoy

969 East 29th Street

Hialeah, Florida 33013

For Respondent: Ladasiah Jackson

Division of Legal Services

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

STATEMENT OF THE ISSUE

The issue is whether Petitioner is entitled to a license as

a limited surety/bail bond agent.

PRELIMINARY STATEMENT

By letter dated November 2, 2002, Respondent informed

Petitioner that it was denying his application for a license as

a limited surety/bail bond agent. The letter states that, on

October 15, 1971, Petitioner entered a plea of guilty to the

charge of Breaking and Entering with Intent to Commit a

Misdemeanor, a felony, and the court withheld adjudication of

guilty. The letter states that Section 648.27(2), Florida

Statutes, provides that Respondent may not issue a license for

any individual found untrustworthy, and Section 648.34(2)(e),

Florida Statutes, provides that the qualifications for a bail

bond ag ent include not having been convicted of, or pleaded

guilty or no contest to, a felony.

By Motion for Leave to Amend Notice of Denial filed

March 10, 2004, Respondent requested leave to amend its denial

letter to add an additional ground for denying the l icense

application. The new ground is that Petitioner falsely denied

in his application that he had ever been charged, convicted,

found guilty, or pleaded guilty or no contest to a crime,

regardless whether adjudication of guilt was withheld or a

judgment of conviction was entered.

At the hearing, neither party called any witnesses.

Petitioner offered into evidence no exhibits. Respondent

offered into evidence seven exhibits: Respondent Exhibits 1 - 7.

All exhibits were admitted.

The court reporter fil ed the transcript on May 5, 2004.

Respondent filed a proposed recommended order on May 18, 2004.

FINDINGS OF FACT

1. On July 22, 2002, Petitioner signed, under penalty of

perjury, a statement declaring that his application for a

license as a limited surety /bail bond agent was true. In the

application, Petitioner answered "no" to the question:

Have you ever been charged, convicted, found

guilty, or pleaded guilty or nolo contendere

(no contest) to a crime under the laws of

any municipality, county, state, territory,

or country, whether or not adjudication was

withheld or a judgment of conviction was

entered?"

2. By Information dated February 28, 1971, the State of

Florida charged Respondent with "unlawfully and feloniously

break[ing] and enter[ing]" into a dwelling with the intent to

commit a felony -- namely, grand larceny. By Order entered

October 15, 1971, the court acknowledged that Respondent had

entered a plea of guilty to "breaking and entering with intent

to commit a misd[demeanor]," withheld adjudi cation of guilt,

and placed Petitioner on three years' probation. By Order

entered August 15, 1974, the court terminated Petitioner's

probation, noting that he had successfully completed it.

CONCLUSIONS OF LAW

3. The Division of Administrative Hearings has

jurisdiction over the subject matter. §§ 120.569 and 120.57(1),

Fla. Stat. (2003).

4. As an applicant, Petitioner has the burden of proving

that he is entitled to a limited surety/bail bond agent license.

Department of Transportation v. J. W. C. Compan y, Inc. , 396 So.

2d 778 (Fla. 1st DCA 1981).

5. Section 648.34(2)(e), Florida Statutes, provides:

To qualify as a bail bond agent, it must

affirmatively appear at the time of

application and throughout the period of

licensure that the applicant has complied

with the provisions of s. 648.355 and has

obtained a temporary license pursuant to such

section and:

(e) The applicant is a person of high

character and approved integrity and has not

been convicted of or pleaded guilty or no

contest to a felony, a crime involving moral

turpitude, or a crime punishable by

imprisonment of 1 year or more under the law

of any state, territory, or country, whether

or not a judgment or conviction has been

entered.

6. Section 648.45(2), Florida Statutes, provides in

mater ial part:

The department shall deny, suspend, revoke,

or refuse to renew any license or appointment

issued under this chapter or the insurance

code, and it shall suspend or revoke the

eligibility of any person to hold a license

or appointment under this ch apter or the

insurance code, for any violation of the laws

of this state relating to bail or any

violation of the insurance code or if the

person:

(a) Lacks one or more of the

qualifications specified in this chapter for

a license or appointment.

(b) Has made a material misstatement,

misrepresentation, or fraud in obtaining a

license or appointment, or in attempting to

obtain a license or appointment.

* * *

(e) Has demonstrated lack of fitness or

trustworthiness t o engage in the bail bond

business.

* * *

(k) Has been found guilty of, or has

pleaded guilty or no contest to a felony, a

crime involving moral turpitude, or a crime

punishable by imprisonment of 1 year or more

under the l aw of any state, territory, or

country, whether or not a judgment or

conviction has been entered.

7. Section 810.05, Florida Statutes (1971), classified as

a felony of the third degree the breaking and entering any

dwelling with intent to commit a misdeme anor.

8. Respondent lawfully denied Petitioner's application on

two grounds: a material misstatement in the application and the

pleading guilty to a felony in 1971.

RECOMMENDATION

It is

RECOMMENDED that the Department of Financial Services enter

a final order denying Petitioner's application for a license as

a limited surety/bail bond agent.

DONE AND ENTERED this 30th day of June, 2004, in

Tallahassee, Leon County, Florida.

S

________________________ ___________

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalach ee 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 30th day of June, 2004.

COPIES FURNISHED:

Honorable Tom Gallagher

Chief Financial Officer

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399 - 0300

Mark Casteel, General Counsel

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399 - 0300

Santiago Lavan - dera

Law Office of Pena and Lavan - dera

7950 Northwest 155 th Street, Suite 201

Miami Lakes, Florida 33016

Eduardo Federico Godoy

969 East 29th Street

Hialeah, Florida 33013

Ladasiah Jackson

Division of Legal Services

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

NO TICE 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 must be filed with the agency that

will issue the final order in t his case.