AHC Decision Summary

Since administrative hearings have become a hot topic, I have decided to compile a brief summary of all of the recent Administrative Hearing Commission (AHC) decisions concerning the licensing of bondsmen.

Wright-Decision 6/2006-“Miltonio Wright is subject to discipline for having pled guilty to a felony.” Wright was licensed by the Director as a bail bond agent. His license expired on January 2, 2006. In December 2005, the director filed a complaint to discipline Wright on the basis of a felony conviction. On April 12, 2002, in the Circuit Court of St. Louis County, Wright pled guilty to assault in the second degree, a Class C felony. The court suspended the execution of sentence and placed Wright on probation for five years. The commission said, “The facts in this case are somewhat confusing because the Director’s affidavit shows that Wright was licensed on September 21, 2005, and the license expired on January 2, 2006. The record does not explain why the Director would license someone for such a short term or whether there is some sort of error in these dates. We generally apply the substantive law in effect when the licensee committed the conduct that is the basis for discipline.[1] However, if Wright was not licensed until September 21, 2005, the prior version of the statute was no longer in effect at that time. A licensee could not be disciplined on the basis of a statute that no longer existed when he became licensed.” The AHC further stated, “It is clear that there is cause to discipline his license, regardless of which version of the statute applies. Therefore, we find cause to discipline Wright’s license.”

Cox-Decision date 9/2006- The AHC ruled that the Director of Insurance had cause to discipline James G. Cox for pleading guilty to the federal felony of conspiring to violate civil rights. Cox was licensed in May 2004. In July 2004, Cox pled guilty. The Director filed a complaint against Cox in November 2005. The AHC ruled that Cox was subject to discipline under the statutes in effect at the time the alleged offending conduct occurred.[1] The AHC rejected the DIFP’s argument for discipline under the current disciplinary statutes which went into effect in 2005.

Cummings-Decision date 11/2006-The AHC ruled that the Director of Insurance has not offered any evidence showing that Gerald L. Cummings is subject to discipline. Cummings had been licensed from 1994 and his license expired in November 2005. On February 23, 2005, the Circuit Court of Cass County, Missouri, found Cummings guilty of a Class C felony of possession of a controlled substance and a Class D felony of unlawful use of a weapon, which were alleged to occur in February 2002. On April 18, 2005, the court suspended the imposition of sentence and placed Cummings on probation for five years. The court records submitted do not indicate whether the court’s findings of guilt was after trial or after a plea of guilty or nolo contendere.

The AHC used the 2005 version of the bail bond statutes [374.755.1.(2) Final 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.] and determined that the records submitted by the DIFP did not indicate there had been “final adjudication, a plea of guilty or nolo contendere” in the case, just that Cummings had been “found guilty.” Thus, the commission ruled that there was no cause to discipline under this statute. The Commission also spent considerable time discussing how to apply the 15 year cut-off date and the “[comma] prior to issuance of license date.” The commission decided to save that decision for another day.

This is where it gets confusing: The Department alleged that Cummings violated the 2005 version of 374.755.2(6) by violating “obligations imposed by the laws of this state.” Although the commission had just ruled on a 2005 statute in a previous section, in this section of the ruling the AHC said that it could not consider a current version of the statute because through the enactment of 1.170, RSMo 2000,[1] the General Assembly required the AHC to apply the version of the disciplinary statutes that were effective on the date of Cummings’ conduct in 2002. The commission ruled against the DIFP saying the version effective in 2002 restricted the violations to the provisions of the bail bond statutes.

Gillihan-Decision date 12/2006-The AHC ruled to deny Gillihan’s bail bond application on the basis that he is a convicted felon and had deceived the Department during the application process. The decision was based on the statutes in effect prior to the revisions of 2005.[1] Gillihan pled guilty in 1999 in US District Court to aiding and abetting the use of a firearm during a crime of violence. He filed a bail bond license application in 2004. He gave conflicting testimony between information given to the DIFP and sworn testimony given during his court case. Gillihan had admitted in court documents to knowingly buying stolen jewelry from his bail bond client. Gillihan also argued that the DIFP had licensed other felons. The AHC replied, “….disparate treatment does not necessarily entitle the more harshly treated applicant to relief.” Also noteworthy, the AHC said, “Supporting his clients’ criminal enterprises by purchasing their spoils weighs heavily against fitness for a bail bond license.”

Franks-Order 12/2006- Franks pled guilty to possession of a controlled substance in February 2006 and was given a suspended imposition of sentence and five years probation. The DIFP filed a complaint with the AHC in May 2006. A joint motion was filed before the AHC by Gerald Franks, his attorney, and the DIFP which waived a formal hearing, stipulating facts, and consent for cause to discipline. The AHC signed the order in December 2006 finding cause to discipline Franks. A disciplinary hearing was held in January 2007. The DIFP ordered Franks license suspended for three days.

Scott-Decision 3/2007- “Ozell Scott is subject to discipline because he pled guilty to two felonies.” His license was issued on August 28, 2001 and he was licensed at the time of the hearing. On March 22, 2006, in the Circuit Court of St. Louis County, Scott entered an Alford plea to resisting arrest, a Class D felony, and pled guilty to unlawful use of a weapon, a Class D felony. The court suspended the imposition of sentence on the resisting arrest. On the weapons charge, the court found Scott guilty and sentenced him to three years in prison, but suspended the execution of sentence. On each count, the court placed him on probation for three years. The AHC record did not reference the date the alleged violation occurred as they had in other recent rulings. In its final statement the commission said, “One year ago, Scott pled guilty to two felonies. He is subject to discipline under § 374.755.1(2)." RSMO 2005

Cummings Case Appealed-Decision 4/2007-The DIFP appealed this decision to the Cole County Circuit Court. It its ruling, the court said, the retrospective application of the current disciplinary statutes does not run afoul with 1.170 RSMO. The court addressed the Commission’s reference to Comerio v Beatrice Foods saying the case referred to 1.170 RSMO was in reference to “acts done” pursuant to rights vested in a recently repealed statute. The court said that licensing laws confer no substantive rights and is a “privilege granted by the state.” The court further stated that the retrospective application of current licensing laws did not violate the Missouri Constitution because the application of the laws were procedural, did not affect the substantive rights of a party, and the legislature manifested a clear intent to do so. The court also held that “protecting the public health and welfare is a primary purpose of professional licensing statutes.” The court reversed the decision of the AHC on Cummings.

Christian-Decision 5/2007- “The Director of Insurance has no cause to discipline Donald Christian under 374.755 RSMO Supp. 2006, as set forth in the Director’s complaint because that version did not exist at the time Christian was convicted of a felony.” Christian pled guilty to the felony of possession of a controlled substance in 1998. The Director licensed Christian as a bail bond agent in March 2005. The Director filed a complaint with the AHC in November 2006 because of his felony conviction. The commission said they had no authority to discipline a licensee on the basis of a version of the disciplinary statute that did not exist at the time that the conviction for a proposed disciplinary action.[1] The AHC said that the previous version of the statute in effect at the time of Christian’s 1998 plea allowed discipline for the licensee but the commission could not use that version because the Director did not rely on it in his complaint. The ruling does not become final until June 22nd. The DIFP said they intend to appeal this ruling.

The DIFP has stayed the action of another complaint until the question is finally answered as to whether the retrospective application of current licensing statutes can be applied in disciplinary issues. The DIFP has said, in the Ament order, that it believes the Cummings decision by Cole County Court supports retrospective application of current statutes, while the more recent Christian decision by the AHC contradicts this court ruling.

Footnote:
[1] Section 1.170; Comerio v. Beatrice Foods Co., 595 F. Supp. 918, 920-21 (E.D. Mo. 1984).