AHC Ruling: Felon Cannot be Disciplined

The Administrative Hearing Commission (AHC) has issued a ruling stating that the Department of Insurance (DIFP) has failed to make its case in the discipline of convicted felon and former bondsman, Gerald Cummings. Although Cummings failed to appear to defend himself, the AHC ruled in his favor. According to the ruling, Cummings was found guilty of possession of a controlled substance and unlawful use of a weapon. On April 18, 2005, the court suspended the imposition of sentence and placed Cummings on probation for five years. The court records submitted by the DIFP do not indicate whether the court’s findings of guilt were after trial or after a plea of guilty or nolo contendere. The DIFP offered the "Lee Clause" to support its position that Cummings was subject to discipline. The Lee Clause (374.755[2]) states:

[f]inal adjudication or a plea of guilty or nolo contendere within the past fifteen years in a criminal prosecution under any state or federal law for a felony or a crime involving moral turpitude whether or not a sentence is imposed, prior to issuance of license date[.]

The AHC ruled that final adjudication did not include a suspended imposition of sentence and certified court documents submitted by the DIFP did not state whether Cummings entered “a plea of guilty or nolo contendere” but just said he was “found guilty.” The Commission ruled that the court documents submitted failed to meet the wording of the Lee Clause. Further, the AHC said that had the DIFP submitted documentation that Cummings pleaded guilty that they would have to know when the plea occurred. The AHC spent considerable time debating the “ comma-prior to issuance of license date” indicating that the comma modifies all that goes before it and would be interpreted that discipline could be issued for those with felony convictions within 15 years before initial licensing but would not apply to felonies committed after the licensing date. The AHC did not issue a ruling on the licensing date section of the Lee Clause and said they would save that for another day.

The AHC additionally ruled that the DIFP did not have cause to discipline Cummings for refusing to respond to Department letters and refusing to furnish information to the Department. The law cited by the DIFP was in regard to the business of insurance and the AHC ruled that bail bond business has not been established as an “insurance business.”

Finally, the AHC ruled that Cummings criminal offenses were committed prior to the 2005 bail bond law and applied the 2000 version of the statute. In its ruling, the Commission stated that Cummings’ criminal offenses were not committed in the performance of his duties as a bondsman, so he was not considered to have committed misconduct. The AHC, nor the DIFP, addressed the prior statute section regarding the Missouri Supreme Court rule pertaining to the conviction of felons.

The DIFP has filed a petition for judicial review of this case in Cole County. The case number is 06AC-CC01084.