05-002322PL Department Of Financial Services vs. Steve Torres Status: Closed Recommended Order on Monday, November 21, 2005.

Summary: Respondent`s temporary bail bond agent license should be revoked based on the Respondent`s no contest plea to a felony, notwithstanding that the plea was entered prior to licensure and that Respondent acknowledged the plea on his license application.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF FINANCIAL )

SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 05 - 2322PL

)

STEVE TORRES, )

)

Respondent. )

________ _________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on

October 5, 2005, in Tallahassee, Florida, before Stuart M.

Lerner, a duly - designated Administrative Law Judge of the

Division of Administrative Hear ings (DOAH).

APPEARANCES

For Petitioner: David J. Busch, Esquire

Angelique Knox, Qualified Representative

Department of Financial Services

Division of Legal Services

200 East Gaines Stree t

Tallahassee, Florida 32399 - 0333

For Respondent: Steve Torres, pro se

8735 Southwest 152nd Street

Apartment 294

Miami, Florida 33193

STATEMENT OF THE ISSUE

Whether Respondent's temp orary bail bond agent license

should be revoked based upon his no contest plea in Dade County

Circuit Court Case No. 95 - 1792, as alleged in the Administrative

Complaint issued against him.

PRELIMINARY STATEMENT

On June 7, 2005, Petitioner issued an Admin istrative

Complaint against Respondent alleging that his license should be

revoked pursuant to Section 648.45(2)(a), (e), and (k), Florida

Statutes (2005) because, "on or about November 6, 1995, [he]

pled nolo contendere to the charge of Aggravated Battery -

Pregnant Victim, a felony, in the Circuit Court of the Eleventh

Judicial Circuit in and for Dade County, Florida, in Case No.

95 - 1792." Through submission of a completed and signed Election

of Proceedings form, Respondent requested "a hearing pursuant to

Section 120.57(1), Florida Statutes, to be held before the

Division of Administrative Hearings." The matter was referred

to DOAH on June 28, 2005, for the assignment of an

administrative law judge to conduct the hearing Respondent had

requested.

As no ted above, the hearing was held on October 5, 2005. 1

Two witnesses testified at the hearing: Hazel Muhammad and

Respondent. In addition, six exhibits (Petitioner's Exhibits 1

through 3, and Respondent's Exhibits 1 through 3) were offered

and received i nto evidence.

At the close of the taking of evidence, the undersigned

established a deadline (20 days from the date of the filing with

DOAH of the hearing transcript) for the filing of proposed

recommended orders.

The Transcript of the hearing (consisti ng of one volume)

was filed with DOAH on November 3, 2005 .

Petitioner and Respondent filed their Proposed Recommended

Order on October 24, 2005, and November 17, 2005, respectively.

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as

a whole, the following findings of fact are made:

1. On or about February 6, 1995, a two - count criminal

information was filed in Dade County Circuit Court Case No. 95 -

1972 against Respondent. Count I read as follows:

STEVE TORRES, on or about JANUARY 16, 1995,

in the County and State aforesaid, did

unlawfully and feloniously commit an

aggravated battery upon [M. R.] by actually

and intentionally touching or striking the

person of [M. R.] against her will, while

[M. R.] was pregnant and the defendant k new

or should have known that she was pregnant,

in violation of s. 784.045(1)(b) and s.

775.087, Fla. Stat., contrary to the form of

the Statute in such cases made and provided,

and against the peace and dignity of the

State of Florida.

Count II read as f ollows:

And the aforesaid Assistant State Attorney,

under oath, further information makes that

STEVE TORRES, on or about JANUARY 16, 1995,

in the County and State aforesaid, did

unlawfully, willfully and maliciously injure

or damage certain personal proper ty of

[M. R.] by BREAKING THE WINDSHIELD OF

[M. R.'S] VEHICLE, such damage being more

than two hundred dollars ($200.00) but less

than one thousand dollars ($1,000.00), in

violation of s. 806.13(1)(b)2. Fla. Stat.,

contrary to the form of the Statute in such

cases made and provided, and against the

peace and dignity of the State of Florida.

2. On November 6, 1995, Respondent entered a plea of no

contest to both counts of the information. Adjudication of

guilt was withheld, and the entry of a sentence was suspended.

3. In the summer of 2004, Respondent submitted to

Petitioner an application for a temporary bail bond agent

license.

4. The application was submitted on an online application

form developed by Respondent.

5. One of the questions on the fo rm was: "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 c onviction

entered?"

6. Respondent truthfully answered "yes" to this question.

7. Along with his application, Respondent submitted a

"temporary appointment" form that had been completed by Jack

Hope of No Limit Bail Bonds, Respondent's then - prospective

em ployer.

8. On the form, Mr. Hope truthfully answered "yes" to the

question: "Has the above applicant [Respondent] ever been

convicted, found guilty, or pleaded guilty or nolo contendere to

a felony?"

9. On October 18, 2004, Petitioner granted Respond ent's

application and issued him the temporary (18 - month) bail bond

agent license for which he had applied.

10. Petitioner subsequently determined that, in light of

Respondent's criminal history record, the license was issued in

error.

11. Although it h ad already issued Respondent a license,

Petitioner, on October 28, 2004, attempted to rescind such

action by issuing a Notice of Denial, which purported to deny

Respondent's application for licensure because of his criminal

history.

12. Respondent request ed, and was granted, a proceeding

pursuant to Section 120.57(2), Florida Statutes, on the matter.

13. Hearing Officer Beverly Hayes was assigned to conduct

the proceeding.

14. On February 16, 2005, a hearing was conducted at which

Hearing Officer Hayes r eceived evidence and heard argument from

the parties.

15. On April 1, 2005, Hearing Officer Hayes issued a

Written Report and Recommended Order recommending that "a Final

Order be entered dismissing the Notice of Denial" inasmuch as

the notice was "moot b ecause [Petitioner had already] issued a

license to [Respondent] prior to the filing of the Notice of

Denial."

16. On May 20, 2005, such a Final Order was issued.

17. Prior thereto, on or about April 13, 2005, Petitioner

had sent Respondent the following letter:

A review of your records has been made and

it has been determined that an error has

been made in processing your application.

You were inadvertently issued a Temporary

Bail Bond license although you did not meet

the qualifications specified in Fl orida

Statutes. Section 648.355(1)(c) states that

a person may not be issued a Bail Bond

license who has been convicted or plead[ed]

guilty or no contest to a felony, a crime

involving moral turpitude, or a crime

punishable by imprisonment of 1 year or mo re

under the laws of any state, territory, or

country, whether or not a judgment or

conviction is entered.

On November 6, 1995, in the Circuit Court in

and for Dade County, Florida, you entered a

plea of nolo contendere to the charges of

Aggravated Batter y which was classified as a

felony. Since you did not qualify for the

license, it has been cancelled as of the

issue date. You are not qualified to act in

the capacity of a Bail Bond agent.

Please immediately return the license to the

address shown belo w.

18. As noted above, on June 7, 2005, Petitioner issued an

Administrative Complaint against Respondent alleging that his

license should be revoked based on his 1995 no contest plea in

Dade County Circuit Court Case No. 95 - 1972.

CONCLUSIONS OF LAW

19 . DOAH has jurisdiction over the subject matter of this

proceeding and of the parties hereto pursuant to Chapter 120,

Florida Statutes.

20. "A person may not act in the capacity of a bail bond

agent or temporary bail bond agent or perform any of the

func tions, duties, or powers prescribed for bail bond agents or

temporary bail bond agents under [Chapter 648, Florida Statutes

2005)] unless that person is qualified, licensed, and appointed

as provided in [Chapter 648]." § 648.30(1), Fla. Stat. (2005).

21. Petitioner is the state agency that has been delegated

the responsibility of overseeing the licensure of bail bond

agents and temporary bail bond agents. § 648.26, Fla. Stat.

(2005); and § 648.27, Fla. Stat. (2005).

22. Petitioner is authorized to issue a temporary bail

bond agent license only if the "conditions" set forth in Section

648.355(1), Florida Statutes (2005) are met. These "conditions"

include the following requirement:

The applicant is a person of high character

and approved integrity and ha s never 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 is entered.

§ 648.355(1)(c), Fla. Stat. (2005); see also § 648.44(8)(a),

Fla. Stat. (2005)("A person who has been convicted of or who has

pleaded guilty or no contest to a felony or a crime involving

moral turpitude or a crime punishable by imprisonment of 1 year

or more under the law of any state, territory, or country,

regardless of whether adjudication of guilt was withheld, may

not act in any capacity for a bail bond agency or participate as

a director, officer, manager, agent, contractor, or employee of

any bail bond agency or office thereof or exercise direct or

indirect control in any manner in such agency or office or own

shares in any closely held corporation which has any interest in

any bail bond business. Such restrictions on engaging in the

bail bond business shall continue to apply during a pending

appeal.").

23. A temporary bail bond agent license is "effective for

18 months, subject to earlier termination at the request of the

employer or if suspended or revoked by [Petitioner]."

§ 648.355(3 ), Fla. Stat. (2005).

24. Petitioner may revoke a temporary bail bond agent

license if, among other reasons, the licensee "[l]acks one or

more of the qualifications specified in this chapter for a

license or appointment"; "[h]as demonstrated lack of fitne ss or

trustworthiness to engage in the bail bond business"; or "[h]as

been found guilty of, or has pleaded guilty or no contest to a

felony, a crime involving moral turpitude, or a crime punishable

by imprisonment of 1 year or more under the law of any sta te,

territory, or country, whether or not a judgment or conviction

has been entered." § 648.45(2)(a), (e), and (k), Fla. Stat.

(2005).

25. Petitioner may take such action only after the

licensee has been given reasonable written notice of the charges

and an adequate opportunity to request a proceeding pursuant to

Sections 120.569 and 120.57, Florida Statutes (2005).

§ 120.60(5), Fla. Stat. (2005).

26. An evidentiary hearing must be held if requested by

the licensee when there are disputed issues of mat erial fact.

§§ 120.569(1) and 120.57(1), Fla. Stat. (2005).

27. At the hearing, Petitioner bears the burden of proving

the existence of the grounds for revocation alleged in the

charging instrument. Proof greater than a mere preponderance of

the evidenc e must be presented by Petitioner to meet its burden

of proof. Clear and convincing evidence is required. See

Department of Banking and Finance, Division of Securities and

Investor Protection v. Osborne Stern and Company , 670 So. 2d

932, 935 (Fla. 1996); Russell v. Department of Insurance , 668

So. 2d 276, 278 (Fla. 2d DCA 1996); Newberry v. Florida

Department of Law Enforcement , 585 So. 2d 500 (Fla. 3d DCA

1991); and Section 120.57(1)(j), Florida Statutes ("Findings of

fact shall be based on a preponderan ce of the evidence, except

in penal or licensure disciplinary proceedings or except as

otherwise provided by statute. . . .").

28. Clear and convincing evidence "requires more proof

than a 'preponderance of the evidence' but less than 'beyond and

to the exclusion of a reasonable doubt.'" In re Graziano , 696

So. 2d 744, 753 (Fla. 1997). It is an "intermediate standard."

Id. For proof to be considered "'clear and convincing' . . .

the evidence must be found to be credible; the facts to which

the witnes ses testify must be distinctly remembered; the

testimony must be precise and explicit and the witnesses must be

lacking in confusion as to the facts in issue. The evidence

must be of such weight that it produces in the mind of the trier

of fact a firm bel ief or conviction, without hesitancy, as to

the truth of the allegations sought to be established." In re

Davey , 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval,

from Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA

1983). "Although this st andard of proof may be met where the

evidence is in conflict, . . . it seems to preclude evidence

that is ambiguous." Westinghouse Electric Corporation, Inc. v.

Shuler Bros., Inc. , 590 So. 2d 986, 989 (Fla. 1st DCA 1991).

29. In determining whether Peti tioner has met its burden

of proof, it is necessary to evaluate its evidentiary

presentation in light of the specific allegation(s) made in the

charging instrument. Due process prohibits an agency from

taking penal action against a licensee based on matte rs not

specifically alleged in the charging instrument, unless those

matters have been tried by consent. See Shore Village Property

Owners' Association, Inc. v. Department of Environmental

Protection , 824 So. 2d 208, 210 (Fla. 4th DCA 2002); and Lusskin

v . Agency for Health Care Administration , 731 So. 2d 67, 69

(Fla. 4th DCA 1999).

30. In the instant case, Petitioner has alleged in its

Administrative Complaint that it is authorized, pursuant to

Section 648.45(2), Florida Statutes (2005), to revoke

Respon dent's temporary bail bond agent license because, "[a]s a

result of [Respondent's 1995] felony plea [in Dade County

Circuit Court Case No. 95 - 1972], [he is] not qualified" to hold

such a license.

31. At the final hearing, Petitioner established by clear

and convincing evidence that Respondent entered such a plea and

that he therefore is not qualified to be licensed as a temporary

bail bond agent.

32. Accordingly, his temporary bail bond agent license

should be revoked pursuant to Section 648.45(2), Flo rida

Statutes (2005). 2

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby

RECOMMENDED that Petitioner issue a Final Order finding

that Respondent is not qualified to hold a temporary bail bond

agent license becau se of the no contest plea he entered in Dade

County Circuit Court Case No. 95 - 1972 and revoking his license

based on this finding of disqualification.

DONE AND ENTERED this 21st day of November, 2005, in

Tallahassee, Leon County, Florida.

S

______________ _____________________

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalac hee 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 21st day of November, 2005.

ENDNOTES

1 The hearing was originally sc heduled for August 31, 2005, but,

at Respondent's request, was rescheduled for October 5, 2005.

2 The fact that Petitioner knew or should have known of

Respondent's no contest plea in Dade County Circuit Court Case

No. 95 - 1972 at the time it granted Resp ondent's application for

temporary licensure as a bail bond agent does not estop

Petitioner from now seeking to revoke Petitioner's license based

upon this conviction. See Donaldson v. Department of Health and

Rehabilitative Services , 425 So. 2d 145, 147 (Fla. 1st DCA

1983)("[W]e find without merit appellant's argument that the

Department's issuance of a license [to sell hearing aids] to

appellant during the pendency of administrative proceedings

through its own administrative error amounted to a

'ratifica tion' of appellant's unlawful conduct."); and

Cirnigliaro v. Florida Police Standards and Training Commission ,

409 So. 2d 80 (Fla. 1st DCA 1982)(Florida Police Standards and

Training Commission not barred from revoking police officer's

certificate based up on officer's pre - certification federal

conviction that officer had disclosed to sponsoring law

enforcement agency and that sponsoring law enforcement agency,

during pre - certification conversation, had made known to

Commission).

COPIES FURNISHED :

Angelique Knox

Qualified Representative

Department of Financial Services

Division of Legal Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

Steve Torres

8735 Southwest 152nd Street

Apartment 294

Miami, Florida 33193

Honorable Tom Gallagher

Chief Financial Officer

Department of Financial Services

The Capitol, Plaza L evel 11

Tallahassee, Florida 32399 - 0300

Carlos G. Muniz, General Counsel

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399 - 0300

N OTICE OF RIGHT TO SU BMIT EXCEPTIONS

All parties have the right to submit written e xceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.