Grantham v. Gunter

498 So. 2d 1328, 11 Fla. L. Weekly 2594
CourtDistrict Court of Appeal of Florida
DecidedDecember 10, 1986
Docket4-86-0370
StatusPublished
Cited by4 cases

This text of 498 So. 2d 1328 (Grantham v. Gunter) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Grantham v. Gunter, 498 So. 2d 1328, 11 Fla. L. Weekly 2594 (Fla. Ct. App. 1986).

Opinion

498 So.2d 1328 (1986)

Jack Harold GRANTHAM, Appellant,
v.
Bill GUNTER, Insurance Commissioner for the State of Florida, Department of Insurance and Treasurer, Appellee.

No. 4-86-0370.

District Court of Appeal of Florida, Fourth District.

December 10, 1986.
Rehearing Denied January 15, 1987.

*1329 Young T. Tindall, Fort Lauderdale, for appellant.

Lealand L. McCharen, Tallahassee, for appellee.

GLICKSTEIN, Judge.

This is an appeal of the temporary suspension by emergency order of the insurance commissioner, of a limited surety agent's license, pursuant to section 648.45(1), Florida Statutes, which appellant contends is unconstitutional. We affirm.

On December 19, 1985, a five-count criminal information, including three felony charges — possession of a firearm while *1330 committing a felony, aggravated assault with a firearm, and failure to redeliver a hired vehicle — was filed against appellant Jack Harold Grantham in Broward County. On January 24, 1986, the Florida Department of Insurance issued an emergency order suspending Grantham's limited surety (bail bonds) license, pursuant to section 648.45(1), Florida Statutes. The emergency order set forth the suspended licensee's right to request an expedited hearing on the order, and told him of his right under section 120.68, Florida Statutes, to seek judicial review of the order. Simultaneously, the Department of Insurance filed an administrative complaint against Grantham, pursuant to section 120.60(8), Florida Statutes.

On February 11, 1986, the parties entered into a stipulation in which Grantham stipulated he had been charged with the three felony counts and that he was a limited surety agent, and waived his right to an expedited hearing. Grantham subsequently filed a request for formal hearing and response to administrative complaint, wherein he temporarily waived his right to a hearing on the administrative complaint.

There are two issues, both of which we answer in the negative:

1. Whether section 648.45(1), Florida Statutes (1985), is unconstitutional for violation of a licensee's right to due process.

2. Whether section 648.45(1), is unconstitutional for violation of a licensee's right to equal protection.

Section 648.45(1), Florida Statutes (1985), contains the following mandate:

The department shall immediately temporarily suspend any license issued under this chapter when the licensee has been charged with a felony or 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. Such suspension shall continue if the licensee has been found guilty of, or has pleaded guilty or no contest to, the crime, whether or not a judgment or conviction has been entered, during a pending appeal.

I

Appellant argues first that because the above statute makes no provision for a pre-suspension hearing, formal or informal, but calls for an immediate suspension, the statute is invalid, constitutionally, on its face for failure to provide for due process, as required in the fourteenth amendment to the United States Constitution and Article 1, section 9 of the Florida Constitution. These constitutional provisions state that no person shall be deprived of life, liberty or property without due process of law. It is appellant's contention that a bail bondsman has a property interest in his license such that he is entitled under the above constitutional provisions to a hearing prior to suspension of the license.

To the extent appellant bases his first issue merely on the silence of the statute he attacks constitutionally, the state points out that failure of a governing statute to provide for notice and hearing does not invalidate the statute where such requirements may be incorporated into the statute by implication. 51 Am.Jur.2d Licenses and Permits § 60 (1970). Florida's Administrative Procedure Act sets forth extensive provisions for notice and hearings prior to any action against a license unless there is an explicit statutory exemption, section 120.57, Florida Statutes (1985); and section 120.60(8) provides for emergency suspension under the police power, followed, nevertheless, by a formal suspension proceeding. Moreover, an emergency license suspension order must show compliance with the requirements set forth in section 120.54(9) in connection with agency adoption of an emergency rule.

Appellee urges, we believe correctly, that by implication the pertinent provisions of the Administrative Procedure Act are incorporated in section 648.45(1), and points out that the agency here scrupulously followed those procedures when it suspended appellant's license temporarily in an emergency. Appellee points out that an agency rule promulgated by the agency *1331 sets forth the full procedure to be followed, stating time limits for steps to be taken following the emergency temporary suspension to assure the licensee of a proper formal procedure. See Rule 4-38.53, Florida Administrative Code. Additionally, rule 28-6.11 makes clear that a hearing may be held in earlier than fourteen days as is provided for in the rule about notice for a hearing, if the aggrieved party requests it; and requires that after an emergency action the formal proceeding must be initiated within twenty days. In the instant case the Department of Insurance offered to hold a hearing within three days of a request from appellant. In sum, to the extent appellant raises a constitutional infirmity based purely on the face of the statute, his point is without merit.

As to whether the due process provisions of the Constitutions of the United States and Florida require that a hearing precede an emergency temporary license suspension, the question basically depends on the nature of the licensee's interest. If it were a life or liberty interest, that is probably true; but it is not.

Some of the cases on which appellant relies are really inapposite, because the nature of the interest involved is so different from the interest of a bail bondsman in his license. Thus Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), held that a statute which authorized a seller of goods under a conditional sales contract to get a writ from a court clerk and thereby obtain prejudgment repossession with the help of the sheriff violated due process because there was no provision to the buyer of prior notice and an opportunity for a hearing. Obviously the property rights of a buyer in goods are different from the rights of a licensee in his license, and the public's interest represented in the police power of the state, which has to be weighed against whatever interest of the licensee is being affected here, is not implicated in Fuentes at all.

In Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), it was held that due process requires an evidentiary hearing prior to termination of welfare benefits. The opinion stressed that termination of aid pending resolution of a controversy over eligibility could deprive an eligible recipient of absolute necessities; yet he would be lacking in independent resources; hence, his situation would at once become desperate. The court indicated that a person who needs to concentrate on his very survival cannot very well devote his energies to the seeking of redress from the welfare bureaucracy after benefits are terminated. On the other hand, in Mathews v.

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Bluebook (online)
498 So. 2d 1328, 11 Fla. L. Weekly 2594, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grantham-v-gunter-fladistctapp-1986.