SC Administrative Law Court Decisions

This matter comes before me pursuant to S.C. Code Ann. §§ 1-23-600(B) and 38-53-160 (Supp. 1997) upon denial by the South Carolina Department of Insurance ("DOI") of Petitioner's application for a bail bondsman license. A contested case hearing was conducted before the undersigned Administrative Law Judge on August 21, 1998, at the Horry County Courthouse. Upon consideration of the relevant and probative evidence and the applicable law, the license is denied.

Petitioner, William A. Turner, owned and operated William Turner Bonding Co. in Marion, South Carolina, from 1983 to 1996, and was licensed by DOI as a bail bondsman from 1994-1996.⁽¹⁾ In 1995, DOI instituted disciplinary proceedings against Petitioner, seeking to revoke his license for allegedly accepting illegal and excessive compensation, advising a client to forfeit bond, and general dishonesty and untrustworthiness in the conduct of his business. Petitioner requested a contested case hearing, and the matter was transmitted to the Administrative Law Judge Division ("ALJD"), but no evidentiary hearing was conducted. By Order dated September 3, 1996, Administrative Law Judge Ralph K. Anderson, III, declared William A. Turner in default for failure to comply with an interlocutory order of the court and revoked Turner's license. South Carolina Dep't of Ins. v. Turner, ALJD Docket No. 96-ALJ-09-0247-CC (September 4, 1996). Petitioner did not appeal and did not move for reconsideration of that decision.

On January 26, 1998, Petitioner applied to DOI for a new professional bail bondsman license. On January 28, 1998, DOI denied Petitioner's application because of a "violation of laws of this State relating to bail in the course of dealings under the [previous] license issued to him" pursuant to S.C. Code Ann. § 38-53-150(2) (Supp. 1997), based upon the previous investigation and license revocation. DOI also asserts that S.C. Code Ann. § § 38-53-90(c) and 38-53-150(4) and (8) support denial. Petitioner contested the denial and requested a hearing before the Division, giving rise to the present case.

Most of the pertinent facts in this case are uncontroverted. In May 1994, Petitioner posted a $5,000 bond for a client named Bishop Enzor who was charged with Driving Under the Influence (DUI), third offense, and Driving Under Suspension (DUS), second offense, in Marion County, South Carolina. Petitioner received a $750.00 fee from Enzor to secure the bond. Enzor is a North Carolina resident, and he returned home to North Carolina after posting bond in Marion County. Subsequently, Petitioner had several meetings and conversations with Enzor and Enzor's father, often while fishing together in North Carolina at Enzor's invitation. Petitioner learned that Enzor faced criminal charges in Federal Court in North Carolina. Enzor indicated to Petitioner that he did not intend to return to Marion County to appear in court and face the pending DUI and DUS charges and that he would forfeit the $5,000 bond.

Ultimately, Petitioner accepted $5,000 in cash from Enzor. Enzor failed to appear for trial in Marion County, and the presiding circuit court judge issued a bench warrant for Enzor and escheated $100 of the outstanding $5,000 bond. Enzor was eventually apprehended, and he filed a complaint against Petitioner with DOI which resulted in revocation of Petitioner's license.

Petitioner admits that he failed to report the Enzor bond in his reconciliation report for May, 1994, filed with the Marion County Clerk of Court, in violation of S.C. Code Ann. § 38-53-310. Petitioner also admits that he accepted illegal compensation from Enzor and knew that Enzor intended to forfeit bond. During DOI's investigation of the Enzor complaint in 1995, Petitioner Turner provided an affidavit in which he stated that he had accepted $2,000 from Enzor. (Respondent's Exhibit #7). At the hearing in the present matter, Petitioner admitted that he actually received $5,000. That money was never returned to Enzor and was not reported to authorities until DOI commenced its investigation.

Petitioner claims that he did not report the bond to the Clerk of Court because he misplaced Enzor's bond in his pick-up truck. Petitioner also offers evidence in mitigation for acceptance of the $5,000 in cash from Enzor, explaining that his wife was critically ill and that the money was needed and used to cover costs incurred relating to her medical treatment and care. Petitioner further explained that his previous default and license revocation were a direct result of his attention and time being totally dedicated to caring for his wife. Petitioner admits his mistakes but asserts that they are isolated, the result of extenuating circumstances, and not indicative of his overall character and competence.

An application for a bail bondsman's license may be denied for numerous reasons, including: violation of any laws relating to bail in the course of dealings under a bail bondsman license; misappropriation, conversion, or unlawful withholding of monies in the conduct of business; fraudulent or dishonest practices in the conduct of business; or incompetency or untrustworthiness or bad faith in the conduct of bail bondsman affairs. S.C. Code Ann. § 38-53-150(2), (4), (5), and (8). Every applicant for a professional bondsman must be a person of good moral character and not have been convicted of a felony or any crime involving moral turpitude within the last ten years. S.C. Code Ann. § 38-53-90 (Supp. 1997).

DOI did not present any evidence of Turner's general moral character. All evidence related to the Enzor matter and Turner's duties as a bail bondsman. Turner has no past criminal convictions. Although the court is not necessarily convinced that Turner is not "a person of good moral character," pursuant to S.C. Code Ann. § 38-53-90(c), Petitioner failed to prove that he is entitled to issuance of the license sought. Turner's actions in the Enzor matter disqualify him from being licensed as a bail bondsman. In his course of dealings as a bail bondsman, Turner violated state laws relating to bail followed fraudulent and dishonest practices, misappropriated and illegally withheld monies, and demonstrated incompetence, untrustworthiness, and bad faith. Accordingly, I find and conclude that DOI rightfully denied Petitioner's application pursuant to S.C. Code Ann. § 38-53-150(2), (4), (5), and (8).

Because Petitioner's dishonest conduct occurred while he was engaged in the very business for which he seeks relicensure, Petitioner's actions in the Enzor matter are relevant and probative of his qualifications to be a bail bondsman. Petitioner may lead an exemplary personal life, but his handling of the Enzor matter clearly constitutes unethical and unacceptable practices in the conduct of business under his bail bondsman license which demonstrates professional incompetence and untrustworthiness. Although his wife's illness undoubtedly placed a terrible strain on him, Petitioner's absolute devotion to his wife is commendable; however, such circumstances do not excuse Petitioner from obeying the law and conducting his business affairs as a bail bondsman in a competent and trustworthy manner. Regardless of the worthiness of his intentions or motivations, the fact remains that Petitioner violated State bail laws in the course of his dealings under his bail bondsman license.

By a preponderance of the evidence, I find the following facts:

1. The Administrative Law Judge Division has subject matter and personal jurisdiction in this matter.
2. All parties were given timely notice of the date, time, place, and nature of the hearing, and all parties appeared at the hearing.
3. Petitioner owned and operated William Turner Bonding Co. in Marion, South Carolina, from 1983 to 1996, and was licensed by DOI as a bail bondsman from 1994-1996.
4. In 1995, DOI instituted disciplinary proceedings against Petitioner, seeking to revoke his license for accepting illegal and excessive compensation, advising a client to forfeit bond, and general dishonesty and untrustworthiness in the conduct of his business.
5. Petitioner requested a contested case hearing, the matter was transmitted to the ALJD, but no evidentiary hearing was conducted.
6. By Order dated September 3, 1996, Administrative Law Judge, Ralph K. Anderson, III, declared Petitioner Turner in default for failure to comply with an interlocutory order of the court, and revoked his license. South Carolina Dep't of Ins. v. Turner, ALJD Docket No. 96-ALJ-09-0247-CC (September 4, 1996). This Court takes judicial notice of this prior order of the Division.
7. Petitioner did not appeal that decision and did not move for reconsideration.
8. On January, 26, 1998, Petitioner applied to DOI for a new professional bail bondsman license.
9. On January 28, 1998, DOI denied Petitioner's application because of a "violation of laws of this State relating to bail in the course of dealings under the [previous] license issued to him" pursuant to S.C. Code Ann. § 38-53-150(2) (Supp. 1997), based upon the previous investigation and license revocation. DOI also asserts that S.C. Code Ann. § § 38-53-90(c) and 38-53-150(4) and (8) support denial.
10. Petitioner contested the denial and requested a hearing before the ALJD.
11. In May, 1994, Petitioner posted a $5,000 bond for a client named Bishop Enzor who was charged with Driving Under the Influence (DUI), third offense, and Driving Under Suspension (DUS), second offense, in Marion County, South Carolina, and received a $750.00 fee from Enzor to secure the bond.
12. Enzor is a resident of North Carolina.
13. After posting bond for Enzor, Petitioner had several meetings and conversations with Enzor and Enzor's father, often while fishing together in North Carolina at Enzor's invitation.
14. Petitioner never reported the Enzor bond in his reconciliation reports filed with the Marion County Clerk of Court for May, 1994, or any other reporting period.
15. Petitioner knew that Enzor faced criminal charges in Federal Court in North Carolina and did not intend to return to Marion County to face the pending DUI and DUS charges.
16. Petitioner knew that Enzor intended to forfeit the $5,000 bond.
17. Prior to his trial date in Marion County, Enzor paid Petitioner $5,000 in cash, which Petitioner accepted.
18. Enzor failed to appear for trial in Marion County.
19. Upon his failure to appear, the presiding circuit court judge issued a bench warrant for Enzor and escheated $100 of the outstanding $5,000 bond.
20. After failing to appear in court in Marion County, Enzor was eventually apprehended by the authorities.
21. After being apprehended and incarcerated, Enzor filed a complaint with DOI against Petitioner.
22. Petitioner never returned the money to Enzor and did not report receiving the money until DOI commenced its investigation on Enzor's complaint.
23. During DOI's investigation of the Enzor complaint in 1995, Petitioner Turner provided an affidavit that stated that he had accepted $2,000 from Enzor, rather than the $5,000 actually received.
24. At the hearing in the present matter, Petitioner admitted that he actually received $5,000.
25. Petitioner now admits that he accepted illegal compensation from Enzor and knew that Enzor intended to forfeit bond.
26. Petitioner's conduct in the Enzor matter constitutes, in his course of dealings as a bail bondsman, admitted violations of state bail laws; fraudulent and dishonest practices; misappropriation and illegally withholding of monies; incompetence; untrustworthiness; and bad faith.

Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:

1. The Administrative Law Judge Division has jurisdiction to hear contested cases involving bail bondsman licensing issues pursuant to S.C. Code Ann. §§ 1-23-600(B), 38-3-210, and 38-53-160 (Supp. 1997)
2. No person may act as a bail bondsman unless licensed by the South Carolina Department of Insurance. S.C. Code Ann. § 38-53-80 (Supp. 1997).
3. Every applicant for a professional bail bondsman must meet the requirements set forth in S.C. Code Ann. § 38-53-90 (Supp. 1997); however, a bail bondsman applicant may be denied a license for any of the reasons set forth in S.C. Code Ann. § 38-53-150 (Supp. 1997).
4. Petitioner, as the moving party, bears the burden of proof and must prove by the preponderance of evidence that the bondsman license should be granted. Anonymous (M-156-90) v. State Bd. of Medical Examiners, 329 S.C. 371, 496 S.E.2d 17 (1998); See National Health Corp. v. South Carolina Dep't. of Health and Envt'l Control, 298 S.C. 373, 380 S.E.2d 841 (Ct. App. 1989).
5. The trier of fact must weigh and pass upon the credibility of evidence presented. S.C. Cable Television Ass'n v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992). The trial judge is in the best position to weigh witnesses' demeanor and veracity and to evaluate their testimony. See, McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982); Peay v. Peay, 260 S.C. 108, 194 S.E.2d 392 (1973); Mann v. Walker, 285 S.C. 194, 328 S.E.2d (Ct. App. 1985); Marshall v. Marshall, 282 S.C. 534, 320 S.E.2d 44 (Ct. App. 1984)
6. "A court can take judicial notice of its own records, files, and proceedings for all proper purposes including facts established in its records." Freeman v. McBee, 280 S.C. 490, 313 S.E.2d 325 (Ct. App. 1984). Accordingly, judicial notice is taken of Judge Anderson's prior Order revoking Appellant's bail bondsman license by default for failure to comply with an interlocutory order of the Court. South Carolina Dep't of Ins. v. Turner, Docket No. 96-ALJ-09-0247-CC.
7. Because Petitioner's conduct in the Enzor matter occurred while he was engaged in the very business for which he seeks relicensure, Petitioner's actions in that matter are relevant and probative of his qualifications to be a bail bondsman.
8. By failing to report Enzor's bond, Petitioner violated S.C. Code Ann. § 38-53-310 (Supp. 1997), which requires a bail bondsman to "file with the clerk of court of the county of his principal place of business and any other county where he is doing business a written report in a form prescribed by the director or his designee regarding all bail bonds on which he is liable as of the first day of each month."
9. Petitioner violated S.C. Code Ann. § 38-53-170(e) (Supp. 1997) by accepting money from Enzor above the premium and fee charged on the original bond.
10. Petitioner violated S.C. Code Ann. § 38-53-170(g) (Supp. 1997) by advising or assisting Enzor for the purpose of forfeiting bond.
11. Violations of S.C. Code Ann. §§ 38-53-310, 38-53-170(e) , and 38-53-170(g) are violations of this State relating to bail in the course of dealings under a license issued by DOI, pursuant to S.C. Code Ann. § 38-53-150(a)(2)(Supp. 1997).
12. Petitioner's actions in the Enzor matter constitute misappropriation, conversion, or unlawful withholding of monies belonging to insurers or others and received in the conduct of business under his license and provide proper grounds for denial of Petitioner's license under S.C. Code Ann. § 38-53-150(a)(4)(Supp. 1997).
13. Petitioner's actions in the Enzor matter constitute fraudulent or dishonest practices in the conduct of business under his bondsman license and provide proper grounds for denial of Petitioner's license under S.C. Code Ann. § 38-53-150(a)(5)(Supp. 1997).
14. Petitioner's actions in the Enzor matter constitute incompetence, untrustworthiness, and bad faith in the conduct of affairs under his bail bondsman license and provide proper grounds for denial of Petitioner's license under S.C. Code Ann. § 38-53-150(a)(8)(Supp. 1997).
15. Petitioner's actions in the Enzor matter disqualify him from being licensed as a bail bondsman. DOI rightfully denied Petitioner's application pursuant to S.C. Code Ann. § 38-53-150(a)(2), (4), (5), and (8).
16. Any issues or motions raised in these proceedings not specifically addressed in this Order are deemed denied pursuant to ALJD Rule 29(C).

ORDER

IT IS THEREFORE ORDERED that the application of Petitioner William A. Turner for a professional bail bondsman license is denied.

AND IT IS SO ORDERED.

STEPHEN P. BATES

ADMINISTRATIVE LAW JUDGE

October 2, 1998

Columbia, South Carolina

1. DOI did not license bail bondsmen prior to 1994.