07-001175PL Department Of Financial Services vs. Vincent Lamone Addison Status: Closed Recommended Order on Friday, July 27, 2007.

Summary: Respondent violated Section 648.45, Florida Statutes, by possessing marijuana.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF )

FINANCIAL SERVICES, )

)

Petitioner, )

) Case No. 07-1175PL

vs. )

)

VINCENT LAMONE ADDISON, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on June 8, 2007, a formal hearing

was held in this case. Authority for conducting the hearing is

set forth in Sections 120.569 and 120.57(1), Florida Statutes

(2006). The hearing took place in the offices of the Division

of Administrative Hearings, the DeSoto Building, 1230 Apalachee

Parkway, Tallahassee, Florida. The hearing commenced at

9:00 a.m. Eastern Time. The hearing was held before Charles C.

Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: William Gautier Kitchen, Esquire

Department of Financial Services

Division of Legal Services

200 East Gaines Street

Tallahassee, Florida 32399-0333

For Respondent: Vincent Lamone Addition, pro se

Post Office Box 483

Port St. Joe, Florida 32457

STATEMENT OF THE ISSUE

Should discipline be imposed against Respondent's license

as a limited surety agent for violation of Section 648.45(2)(a)

(e), and (k), Florida Statutes (2006)?

PRELIMINARY STATEMENT

On February 9, 2007, in Case No. 86290-06-AG, before the

Chief Financial Officer of the State of Florida, the Department

of Financial Services (DFS) brought an Administrative Complaint

against Respondent accusing him of a violation of the statute

referred to in the Statement of the Issue. The Administrative

Complaint was premised upon the following allegations:

* * *

5. On December 19, 2006, you, VINCENT

LAMONE ADDITION, pled nolo contendere in the

Circuit Court for the fourteenth Judicial

Circuit in and for Gulf County, Florida to

the Sale, Delivery, or Possession of

Cannabis within 1000 feet of a place or

[sic] worship or Convenience Business. You

also pled nolo contendere to Possession of

Marijuana in excess of 20 grams. Both

charges are felonies.

As a consequence, Respondent is alleged to have violated

Section 648.45, Florida Statutes (2006) in that he:

(a) Lacks one or more of the qualifications

specified in this chapter for a license or

appointment. [Section 648.45(2)(a), Florida

Statutes];

(b) Has demonstrated lack of fitness or

trustworthiness to engage in the bail bond

business. [Section 648.45(2)(e), Florida

Statutes];

(c) 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 one 1 year or

more under the law of any state, territory,

or country, whether or not a judgment or

conviction has been entered. [Section

648.45(2)(k), Florida Statutes].

Respondent was provided several options in addressing the

Administrative Complaint. He chose the third option. That

option was to dispute the factual allegations contained in the

Administrative Complaint. Through that option, as evidenced in

the executed form provided by him, Respondent asked that he be

heard in accordance with Section 120.57(1), Florida Statutes

(2006), in a hearing before the Division of Administrative

Hearings (DOAH).

On March 14, 2007, DFS forwarded the case to DOAH to assign

an administrative law judge to conduct a formal hearing in

accordance with Respondent's request for formal hearing. The

assignment was made by Robert S. Cohen, Director and Chief Judge

of DOAH, in reference to DOAH Case No. 07-1175PL. The

assignment was to the present administrative law judge.

The hearing took place on the date previously mentioned.

Petitioner presented Respondent as its witness.

Petitioner's Composite Exhibit numbered 1 was admitted.

Respondent testified in his own behalf and presented Tynalin

Smiley, and Robert Humphrey as his witnesses. Respondent's

Exhibit numbered 1 was admitted.

On June 25, 2007, the hearing transcript was filed. Within

the time allotted, Petitioner and Respondent filed proposed

recommended orders, which have been considered in preparing the

Recommended Order.

FINDINGS OF FACT

1. On January 6, 2003, DFS issued Respondent a series 2-34

limited surety agent (bail bond) license. That license remains

valid.

2. On May 3, 2006, in State of Florida vs. Vincent Lamone

Addison , in the Circuit Court, 14th Judicial Circuit of the

State of Florida, in and for Gulf County, Case No. 06-0107CF,

Respondent was charged by information with: Count I, Possession

with intent to sell/deliver within 1000 feet of place of worship

or convenience business; Count II, Possession of marijuana in

excess of 20 grams, offenses contrary to Section 893.13, Florida

Statutes (2005), third degree felonies. In the same

information, in Count III, it was charged that he did obstruct

(an) officer without violence, a violation of Section 843.02,

Florida Statutes (2005), a first degree misdemeanor.

3. On December 18, 2006, the assistant state attorney in

Circuit Court Case No. 06-107CF, filed a Motion to Consolidate,

asking that the Court enter an order consolidating the count for

possession of a controlled substance with intent to deliver,

with the count related to possession of more than 20 grams of

marijuana.

4. On December 19, 2006, in Circuit Court Case No. 06-

107CF, a Plea, Waiver and Consent was signed by Respondent as

defendant in that case, attested by his counsel and the

assistant state attorney, and found by the Circuit Court Judge

to be a plea freely and voluntarily made and sworn to and

subscribed before the court and approved and accepted by the

court related to possession of marijuana, a third degree felony

with a statutory maximum imprisonment of five years. The plea

was made upon the agreement that the adjudication be withheld,

with service of three-years' probation, to terminate after 18

months if all conditions were complete and no violations of the

probation had occurred. In addition, by order of the Circuit

Court Judge, certain charges/costs/fees were imposed in Circuit

Court Case No. 06-107CF.

5. When Respondent executed his Plea, Waiver and Consent

in Circuit Court Case No. 06-107CF, it reflected that the charge

of "Obstruct officer without violence" had been stricken by line

and initials provided, by what appears to be the defense counsel

and the assistant state attorney in the case.

6. In Circuit Court Case No. 06-107CF, as reflected in an

order by the Circuit Court Judge referring to those proceedings,

entered December 19, 2006, upon his appearance before the Court

with representation, it indicates a plea of nolo contendere was

entered. It pertained to Count I. On the form order, it refers

to "Sales/Del/Poss/cannis-w/in-100Ft. Church 893.13(1)(a) 3F."

Under that reference is found "Poss. Marijuana in Excess 20 grs.

893.13(6)(a) 3F". The numbers refer to Section 893.13(1)(a) and

(6)(a), Florida Statutes (2005), and "3F" refers to third degree

felony. In this order it was reflected that the adjudication of

guilt was withheld, and that the defendant received three-years'

probation, to terminate after 18 months upon satisfaction of

conditions of probation. The court order refers to fees

required by the court to satisfy its terms for accepting the

plea.

7. On December 21, 2006, in Circuit Court Case No. 06-

107CF, the Circuit Court Judge entered an Order Withholding

Adjudication of Guilt and Placing Defendant on probation. In

this order it reflects entry of a plea of nolo contendere to the

offense of "Possession of more than 20 grams, 3rd-Degree

Felony," for which the Respondent received three years of

probation. Other conditions of the probation were reflected in

this order, to include the costs and fees imposed by the Court.

On January 12, 2007, precisely the same order was entered by the

Circuit Court Judge.

8. In addition to the nolo contendere plea in Circuit

Court Case No. 06-107CF, Respondent in his testimony at hearing

in the present case, acknowledged that the drug offense took

place in Port St. Joe, Florida. He was arrested on April 21,

2006. Respondent did not contest the charges because marijuana

was found on the console of his car and some was in his front

pocket. Respondent's understanding of his nolo contendere plea

was that it was to possession of marijuana exceeding 20 grams.

The amount was somewhere in the range of 118 to 120 grams.

9. In the present case, Respondent through his testimony,

explained that he had been diagnosed with lupus and that he

smoked marijuana to help his body function while confronting his

disease. Respondent is aware that possession of marijuana in

Florida is illegal, even if intended for the purpose he had in

mind to provide him relief from the pain of lupus.

10. Respondent is not acting in the capacity of a bail

bond agent at this time. That loss of income has had

significant impact on his earning capacity.

11. Mr. Tynalin Smiley, who resides in Port St. Joe where

the Respondent lives, has known the Respondent from the time

Respondent was born. They are good friends. Mr. Smiley belongs

to the same church as Respondent. He visits in Respondent's

home at times. He believes that Respondent is a respectable

person in the community.

12. Mr. Robert Humphrey, who resides in Dothan, Alabama,

met Respondent in 1996 when Respondent did an internship from

Troy State University. Mr. Humphrey and Respondent worked in

the area of juvenile justice, going into schools and providing

counseling to students. Over the years Mr. Humphrey has kept in

contact with Respondent. Occasionally Mr. Humphrey and

Respondent are together socially. They go out to dinner.

Respondent has attended Mr. Humphrey's church. Mr. Humphrey

looks upon himself as being a big brother to Respondent.

Mr. Humphrey has observed that Respondent remains active in the

Respondent's community. Mr. Humphrey believes that Respondent

regrets his choice that led to the action against him, that

involving the marijuana possession that has been discussed.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding in accordance with Sections 120.569 and 120.57(1),

Florida Statutes (2006).

14. Respondent is a licensed limited surety agent (bail

bond), as defined in Section 648.25(5), Florida Statutes (2006).

He held that license at times relevant to the case. The license

was issued by DFS, which has authority to administer the law

regulating bail bond agents. § 648.26, Fla. Stat. (2006).

15. Through the Administrative Complaint, Count I,

Respondent has been accused of various violations within Chapter

648, Florida Statutes (2006). The manner of the alleged

violation is that:

On December 19, 2006, you, VINCENT LAMONE

ADDITION, pled nolo contendere in the

Circuit Court for the fourteenth Judicial

Circuit in and for Gulf County, Florida to

the Sale, Delivery, or Possession of

Cannabis within 1000 feet of a place or

[sic] worship or Convenience Business. You

also pled nolo contendere to Possession of

Marijuana in excess of 20 grams. Both

charges are felonies.

16. The statutory basis for pursuing Respondent's alleged

misconduct, as reflected in the Administrative Complaint, is as

follows:

648.45 Actions against licensee; suspension

or revocation of eligibility to hold a

license.--

* * *

(2) The department shall deny, suspend,

revoke, or refuse to renew any license or

appointment issued under this chapter of the

insurance code, and it shall suspend or

revoke the eligibility of an person to hold

a license or appointment under this chapter

or the insurance code, for any violation of

the laws of this state related 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.

* * *

(e) Has demonstrated lack of fitness or

trustworthiness to 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 law of any state, territory, or

country, whether or not a judgment or

conviction has been entered.

17. This is a disciplinary case. For that reason,

Petitioner bears the burden of proving the allegations in the

Administrative Complaint by clear and convincing evidence. See

Department of Banking and Finance Division of Securities and

Investor Protection v. Osborne Stern and Co. , 670 So. 2d 932

(Fla. 1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987);

and Pou v. Department of Insurance and Treasurer , 707 So. 2d 941

(Fla. 3rd DCA 1998). See also § 120.57(1)(j), Fla. Stat.

(2006).

18. The term clear and convincing evidence is explained in

the case In re: Davey , 645 So. 2d 398 (Fla. 1994), quoting from

Slomowitz v. Walker , 429 So. 2d 797 (Fla. 4th DCA 1983).

19. Given the penal nature of this case, Section

648.485(2)(a), (e) and (k), Florida Statutes, has been strictly

construed and any ambiguity favors Respondent. See Lester v.

Pattishall , 99 Fla. 296 and 126 So. 147 (Fla. 1930), and Lester

v. Department of Professional and Occupational Regulation, State

Board of Medical Examiners , 348 So. 2d 923 (Fla. 1st DCA 1977).

20. In reference to Section 648.45(2)(a), Florida Statutes

(2006), accusing Respondent of a lack of one or more of the

qualifications specified in Chapter 468, Florida Statutes, for

his license, Respondent has failed to meet the qualification in

Section 648.34(1)(e), Florida Statutes (2006), which states:

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 sate, territory, or country, whether

or not a judgment or conviction has been

entered.

21. Clear and convincing evidence was presented to prove

that Respondent pled nolo contendere to the third degree felony

of possession of more than 20 grams of marijuana in Circuit

Court Case No. 06-0107CF. This established that Respondent

lacks one of the qualifications specified to hold his license as

a limited surety agent (bail bond), in violation of Section

648.45(2)(a), Florida Statutes (2006).

22. By his plea, clear and convincing evidence is

presented that Respondent lacks fitness to engage in the bail

bond business as addressed in Section 648.45(2)(e), Florida

Statutes (2006). Respondent has violated that provision.

23. Likewise, by entering the plea Respondent has violated

Section 648.45(2)(k), Florida Statutes (2006).

24. The possession of more than 20 grams of marijuana in

violation of Section 893.13, Florida Statutes (2005), was a

crime punishable by a term of imprisonment not exceeding five

years. § 775.82 (3)(d), Fla. Stat. (2005). Thus it met the

definition of possible imprisonment for pleading nolo contendere

to a felony, as contemplated in Section 648.34(2)(e), Florida

Statutes (2006), as made applicable pursuant to Section

648.45(2)(a), Florida Statutes (2006), and Section 648.45(2)(k),

Florida Statutes (2006).

25. Respondent's explanation for the possession of

marijuana does not excuse his misconduct. Respondent's health

is of great concern to him. He perceived the use of marijuana

to address his lupus as acceptable. It was not. Given the

nature of his license, with his recognition that possession of

marijuana was a criminal offense, a stern response is needed in

imposing discipline. In this connection, the nature of

Respondent's license deals with matters of criminal law for

those who have been extended bail.

RECOMMENDATION

Upon consideration of the facts found and the conclusions

of law reached, it is

RECOMMENDED:

That a final order be entered Respondent in violation of

Section 648.45(2)(a), (e) and (k), Florida Statutes (2006) and

revoking Respondent's limited surety agent (bail bond) license.

DONE AND ENTERED this 27th day of July, 2007, in

Tallahassee, Leon County, Florida.

S

___________________________________

CHARLES C. ADAMS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of July, 2007.

COPIES FURNISHED :

William Gautier Kitchen, Esquire

Gregg Marr, Esquire

Department of Financial Services

Division of Legal Services

200 East Gaines Street

Tallahassee, Florida 32399-0333

Vincent Lamone Addition

Post Office Box 483

Port St. Joe, Florida 32457

Honorable Alex Sink

Chief Financial Officer

Department of Financial Services

The Capitol, Level 11

Tallahassee, Florida 32399-0300

Daniel Sumner, General Counsel

Department of Financial Services

The capitol, Level 11

Tallahassee, Florida 32399-0307

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the final order in this case.