08-002876 Lawrence Jerome Bryant vs. Department Of Financial Services Status: Closed Recommended Order on Tuesday, December 16, 2008.

Summary: Petitioner is ineligible for licensure as a temporary resident limited surety agent because he was convicted of a felony.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAWRENCE JEROME BRYANT, )

)

Petitioner, )

)

vs. ) Case No. 08-2876

)

DEPARTMENT OF FINANCIAL )

SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the final hearing in this case was held

on October 8, 2008, in Sarasota, Florida, before Carolyn S.

Holifield, Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Evelyn L. Moya, Esquire

Law Office of Evelyn L. Moya

5250 Seventeenth Street, Suite 8

Sarasota, Florida 34235

For Respondent: William Gautier Kitchen, Esquire

Department of Financial Services

Division of Legal Services

200 East Gaines Street

Tallahassee, Florida 32399-0333

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner is eligible

for licensure as a temporary resident limited surety agent.

PRELIMINARY STATEMENT

On February 11, 2008, Petitioner submitted an application

for licensure as a temporary resident limited surety agent to

Respondent, Department of Financial Services ("Department"). By

Notice of Denial ("Notice") dated May 15, 2008, the Department

denied Petitioner's application for licensure. According to the

Notice, Petitioner's application was denied for the following

two reasons: (1) In 1989, Petitioner pled guilty to assault, a

felony, and was adjudicated guilty of that offense in the State

of Washington; and (2) Petitioner failed to disclose the

foregoing guilty plea and adjudication of guilt in response to a

question on his application for licensure. Petitioner timely

challenged the Department's decision to deny his license.

The Department forwarded the matter to the Division of

Administrative Hearings on or about June 6, 2008. By Notice

issued July 9, 2008, the final hearing was scheduled for

September 8, 2008. The parties filed a Joint Motion to Continue

(Motion) the final hearing on July 30, 2008. The Motion was

granted, and the hearing was rescheduled for October 8, 2008.

At hearing, Petitioner testified on his own behalf and

presented the testimony of three other witnesses: (1) David

DelGrosso, a bail bondsman; (2) Robert E. Griffith, regional

supervisor, Division of Licensing, Department of Agriculture and

Consumer Services; and (3) Allan Foodman, a psychiatrist.

Petitioner's Exhibits 1 through 6 were admitted into evidence.

The Department presented the testimony of one witness, David

DelGrosso. The Department's Exhibits 1 through 6 were admitted

into evidence.

A Transcript of the hearing was filed on October 24, 2008.

Both parties timely filed Proposed Recommended Orders which have

been considered in preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner applied to the Department for licensure as a

temporary resident limited surety agent on February 11, 2008.

2. Petitioner completed his application for licensure

on-line by accessing the Department's website.

3. One of the questions on the application for licensure

as a temporary resident limited surety agent was the following:

Have you been charged, convicted, found

guilty, or pled guilty or nolo contendere

(no contest) to a felony or 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?

4. Initially, Petitioner responded "yes" to the question

requiring that he disclose whether he had a criminal history.

However, when Petitioner typed in "yes" to the question, the

Department's website posted the "Stop" sign, and the

Department's website did not allow Petitioner to proceed further

on the application.

5. Petitioner, with the aid of David DelGrosso, called the

Department's customer service number. Petitioner told an

unidentified customer service representative that after he

answered "yes" to the question involving his criminal history,

the Department's website had denied him further access and

prevented him from answering subsequent questions on the

licensure application. The Department's unidentified customer

service representative then advised Petitioner to enter "No" to

the question regarding any criminal history and to provide the

Department with a written explanation as to his criminal

history.

6. After speaking with the unidentified customer

representative, Petitioner changed his answer to the question

related to his criminal history to "No." By doing so, he was

able to complete and submit the on-line application for

licensure. However, the answer that Petitioner gave to the

question related to his criminal history was not truthful.

7. When Petitioner submitted his application, he did not

provide the Department with a written explanation as to his

criminal history, as the customer service representative

directed or suggested. Rather, Petitioner provided a written

explanation concerning his criminal history about two months

after he submitted his application and only in response to the

Department's request that he do so, after its investigation

revealed that Petitioner had a criminal record.

8. On May 5, 1989, Petitioner entered a guilty plea to two

felony counts of assault and was adjudicated guilty of those

offenses before the Superior Court of the State of Washington

for Pierce County. Petitioner was sentenced to and served 48

months in prison.

9. Petitioner served his term of confinement and fulfilled

all the terms of his sentence, including payment of a fine.

Thereafter, on June 15, 1993, the Superior Court of the State of

Washington for Pierce County entered a Certificate and Order of

Discharge, which discharged Petitioner from the custody of the

State's Department of Corrections and restored his civil rights.

10. Since completing his sentence about 15 years ago,

Petitioner has become a productive citizen in the community, has

been employed in positions of trust, and has not committed any

other crimes. For example, in 1994, Petitioner was licensed as

a certified nursing assistant by the Florida Department of

Health and, subsequently, worked as a certified nursing

assistant in a nursing home and at the Sarasota Memorial

Hospital.

11. Petitioner also has been issued licenses by the

Florida Department of Agriculture and Consumer Services--

a License D (concealed weapon permit) issued on July 5, 2007,

and a License G (statewide firearm license) issued February 26,

2008. The foregoing licenses were issued to Petitioner despite

his disclosure of his criminal history and/or because his civil

rights were restored and/or his proven rehabilitation.

12. Petitioner does not dispute that he entered a plea of

guilty to two felony counts of assault and that he was

adjudicated guilty of those offenses. However, Petitioner

believes that given his record after being released from prison

and the circumstances surrounding the incident which led to his

conviction, his application for licensure as a temporary

resident limited surety agent should be approved.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2008). 1

14. The Department is the state agency responsible for

administering the provisions of Chapter 648, Florida Statutes, 1

which includes the licensure of limited surety agents and

primary and temporary bail bond agents.

15. As an applicant for a temporary limited licensure,

Petitioner has the burden of establishing by a preponderance of

evidence that he meets the statutory requirements for the

licensure he seeks.

16. The Department denied Petitioner's application for

licensure as a temporary resident limited surety agent based on

and (k), Florida Statutes.

17. Subsection 648.27(2), Florida Statutes, states:

(2) For the protection of the people of

this state, the department may not issue,

renew, or permit to exist any license or

appointment except in compliance with this

chapter. The department may not issue,

renew, or permit to exist a license or

appointment for any individual found to be

untrustworthy or incompetent who has had his

or her eligibility to hold a license or

appointment revoked, or who has not

established to the satisfaction of the

department that he or she is qualified

therefor in accordance with this chapter.

18. Subsection 648.34(2)(e), Florida Statutes, states:

(2) 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.

19. Subsection 648.45(2), Florida Statutes, provides in

pertinent part the following:

(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 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 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.

20. The evidence established that Petitioner made a

material misstatement or misrepresentation in attempting to

obtain a license as a temporary resident limited surety agent.

21. Petitioner argues that Petitioner's failure to

truthfully answer the question about his criminal history on his

on-line application is not a material misstatement or

misrepresentation. As support for this argument, Petitioner

asserts that he did not intend to deceive or to fraudulently

obtain the subject license, as evidenced by his providing

documents related to his criminal history to the Department.

Petitioner's argument is not persuasive in light of the fact

that Petitioner did not provide documents regarding his criminal

history to the Department until almost two months after he

submitted his application and after the Department requested

that information.

22. Assuming arguendo that Petitioner's untruthful

statement does not constitute a material misstatement or

misrepresentation in attempting to obtain a license, he is still

ineligible for licensure pursuant to Subsection 648.45(2)(k),

Florida Statutes.

23. The undisputed evidence established that in 1989,

Petitioner pled guilty to and was convicted of a felony under

the laws of the State of Washington.

24. The Department properly denied Petitioner's

application for licensure as a temporary resident limited surety

agent because he lacks one or more of the qualifications for

such licensure as noted above. See § 648.45(2)(a), Fla. Stat.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Respondent, Department of Financial

Services, enter a final order that: (1) finds Petitioner, A.D.,

ineligible for licensure; and (2) denies Petitioner's

application for licensure as a temporary resident limited surety

agent.

DONE AND ENTERED this 16th day of December, 2008, in

Tallahassee, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of December, 2008.

ENDNOTE

1/ All references are to 2008 Florida Statutes, unless

otherwise indicated.

COPIES FURNISHED :

Honorable Alex Sink

Chief Financial Officer

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399-0300

Daniel Sumner, General Counsel

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399-0307

Evelyn L. Moya, Esquire

Law Office of Evelyn L. Moya

5250 Seventeenth Street, Suite 8

Sarasota, Florida 34235

William Gautier Kitchen, Esquire

Department of Financial Services

Division of Legal Services

200 East Gaines Street

Tallahassee, Florida 32399-0333

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.