09-003077 Marcus O&Apos;Neal Thomas vs. Department Of Financial Services Status: Closed Recommended Order on Wednesday, October 14, 2009.

Summary: Petitioner did not falsify his license application. The Georgia court order exonerated Petitioner from all criminal purposes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARCUS O'NEAL THOMAS, )

)

Petitioner, )

)

vs. ) Case No. 09-3077

)

DEPARTMENT OF )

FINANCIAL SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice on Thursday, July 30,

2009, by video teleconference in Jacksonville, Florida, and

Tallahassee, Florida, before Barbara J. Staros, assigned

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Jarahn M. Newman, Esquire

Newman & Mitchell, P.A.

550 Water Street, Suite 1379

Jacksonville, Florida 32202

For Respondent: W. Gautier Kitchen, Esquire

Department of Financial Services

Division of Legal Services

200 East Gaines Street

Tallahassee, Florida 32399-0333

STATEMENT OF THE ISSUE

Whether Petitioner should be granted a temporary bail bond

license with the Florida Department of Financial Services?

PRELIMINARY STATEMENT

On December 31, 2008, Petitioner submitted an application

for licensure as a Temporary Resident Limited Surety Agent to the

Department of Financial Services (Department). On May 6, 2009,

the Department sent a Notice of Denial of Petitioner’s

application for licensure. The letter cited as authority

Florida Statutes. 1/

Petitioner disputed the denial and timely requested an

administrative hearing. The case was transmitted to the Division

of Administrative Hearings for assignment of an administrative

law judge on or about July 9, 2009.

On June 12, 2009, A Notice of Hearing by Video

Teleconference was issued scheduling the hearing for July 30,

2009. The hearing took place as scheduled.

Respondent pre-filed exhibits on July 20, 2009. At hearing,

Respondent’s Composite Exhibit 1 was admitted into evidence.

Respondent called no witnesses. Petitioner offered no exhibits

but testified on his own behalf.

On August 17, 2009, a one-volume transcript of the hearing

was filed. On August 19, 2009, Respondent filed a Notice of

Appearance of Annie Wang, Esquire. On August 24, 2009,

Respondent filed a Motion for Time Extension in which to file

proposed recommended orders. The Motion was granted. Respondent

timely filed a Proposed Recommended Order which was duly

considered in preparation of this Recommended Order. Petitioner

did not file a proposed recommended order or any post-hearing

submission.

FINDINGS OF FACT

1. Petitioner applied for licensure as a temporary resident

surety agent (temporary bail bond agent) on or about December 31,

2008. The Department deemed his application completed on

February 5, 2009.

2. In November 1997 in Colquitt County, Georgia, Petitioner

pled guilty to a felony charge of possession of more than one

ounce of marijuana. He was placed on probation for a period of

six years. Pursuant to the Georgia Probation for First Time

Offenders Act, there was no adjudication of guilt by the court.

3. On November 7, 2003, Petitioner successfully completed

his probation.

4. On November 13, 2003, the Superior Court of Colquitt

County issued an order entitled “Record of Discharge and

Exoneration of Defendant (First-Offender Act)”. The Notice of

Discharge states in pertinent part:

THEREFORE, IT IS NOTED AND RECORDED that in

accordance with the provisions of the

Probation of First Offenders Act (OCGA 42-8-

60 et. seq.):

A. The defendant has been discharged without

court adjudication of guilt;

B. That the discharge completely exonerates

the defendant of any criminal purpose ;

C. That the discharge does not affect any of

said defendant’s civil rights or liberties;

D. The defendant is not considered to have a

criminal conviction; and

E. The discharge may not be used to

disqualify a person in application for

employment or appointment to office in either

the public or private sector.

(emphasis added)

5. Question 3 on the Individual Application for New License

asks:

Have you ever been charged, convicted, found

guilty, or plead 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? Yes/No

6. Petitioner answered “no” to question 3 on the

application for licensure.

7. Question 20 on the Individual Application for New

License asks:

Have you ever been convicted, found guilty,

or plead guilty or nolo contendere (no

contest) to a felony under the laws of any

municipality, county, state, territory, or

country, whether or not adjudication was

withheld or judgment of conviction was

entered? Yes/No

8. Petitioner responded “no” to question 20 on the

Individual Application for New License.

9. At the end of the application, just above his electronic

signature, Petitioner checked a box manifesting agreement with

the following declaration:

Under the penalties of perjury, I declare

that I have read the foregoing application

for license and that the facts stated in it

are true. I understand that

misrepresentation of any fact required to be

disclosed through this application is a

violation of the Florida Insurance and

Administrative Codes and may result in the

denial of my application and/or the

revocation of my insurance license(s).

10. The Department’s denial letter was based on

Petitioner’s criminal history, as well as an allegation of

failure to disclose same.

11. Petitioner testified at hearing that during the process

of completing his application as a bail bondsman, he sought the

advice of an attorney regarding his Notice of Discharge and

application. Petitioner received legal advice that his answer to

the aforementioned questions should be “no.” Petitioner’s

testimony in this regard is found to be credible and is accepted.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with Sections 120.569 and 120.57(1), Florida

Statutes (2009).

13. Respondent is the state agency with jurisdiction over

the licensing of temporary bail bond agents pursuant to Section

248.26, Florida Statutes (2009).

14. As the applicant, Petitioner bears the ultimate burden

of proving entitlement to a license. Florida Dept. of Trans. v.

J.W.C. Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981); Dep't of

Banking & Fin., Div. of Sec. & Investor Prot. v. Osborne Stern &

Co. , 670 So. 2d 932, 934 (Fla. 1996).

15. As authority for its denial, the Department cites

Section 648.27(2), Florida Statutes, which reads as follows:

(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 therefore in accordance with

this chapter.

16. As authority for its denial, the Department cites

Section 648.34(2)(e), Florida Statutes, which reads as follows:

(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.

17. Pursuant to Section 648.355(1), Florida Statutes, the

Department may issue temporary licenses to an individual as a

limited surety agent or professional bail bond agent, subject to

the following:

(1) 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:

* * *

(c) The applicant is a person of high

character and approved integrity and has

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 judgment or conviction is entered.

18. As authority for its denial, the Department cites

Section 648.45(2), Florida Statutes, which states as follows:

(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.

19. The Department’s Denial is based on Petitioner’s

criminal history as well as his failure to disclose same.

Petitioner’s failure to disclose his criminal history was based

upon his genuine belief, having read the clear language of the

Georgia Notice of Discharge and after seeking advice from an

attorney, that he should answer “no” to the pertinent questions

on the application regarding criminal history.

20. Accordingly, Petitioner’s failure to admit his prior

criminal history does not constitute a violation of Section

648.45(2)(b) or (e), Florida Statutes. That is, Petitioner did

not make a material misstatement, misrepresentation, or commit

fraud in attempting to obtain a license. Likewise, he did not

demonstrate a lack of fitness or trustworthiness to engage in the

bail bond business by failing to disclose his criminal history.

21. The question remaining is whether the existence of

Petitioner’s prior history establishes a violation of Sections

guilty to a felony as alleged in the Notice of Denial. While it

initially appears that a violation of these provisions occurred,

this conclusion must be reconciled with the express provisions of

a valid court order from a Georgia Court of competent

jurisdiction. See generally Rodriguez v. Nasrallah , 659 So. 2d

437 (Fla. 1st DCA 1995) (court discusses principle of affording

full faith and credit to judicial proceedings of other states.)

22. The Georgia Notice of Discharge specified that the

discharge may not be used to disqualify a person in employment

applications. 2/ More significantly, however, the Notice of

Discharge specified that the discharge completely exonerates

Petitioner from any criminal purpose. Exonerate is defined as

“to relieve of a responsibility, obligation, or hardship; to

clear from accusation or blame.” Webster’s Ninth New College

Dictionary 435 (9th ed. 1984).

23. The Department cites to no authority that allows a

state agency, or a state administrative law judge, to ignore the

express words of a valid court order, albeit from another state.

24. As to the remaining alleged violation in the denial

letter, no evidence was presented that a violation of Section

648.45(2)(a), Florida Statutes, was committed by Petitioner.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED:

That Petitioner’s application for licensure as a Temporary

Resident Limited Surety Agent be granted.

DONE AND ENTERED this 14th day of October, 2009, in

Tallahassee, Leon County, Florida.

S

___________________________________

BARBARA J. STAROS

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 14th day of October, 2009.

ENDNOTES

1/ Only a portion of Section 648.27(2) was contained in the

letter of denial. The beginning of the first sentence of that

subsection appears to have been omitted in error, as page 2 of the

denial letter begins mid-sentence.

2/ The undersigned recognizes that this is a licensure, not an

employment, case.

COPIES FURNISHED:

Annie Wang, Esquire

Department of Financial Services

Division of legal Services

200 East Gaines Street

Tallahassee, Florida 32399-0333

Jarahn Newman, Esquire

Newman & Mitchell, P.A.

550 Water Street, Suite 1379

Jacksonville, Florida 32292

Tracey Beal, Agency Clerk

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399-0390

Benjamin Diamond, General Counsel

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399-0307

Honorable Alex Sink

Chief Financial Officer

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399-0300

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 final order in this case.