Ficarra v. Department of Regulatory Agencies, Div. of Ins.
| Citation | 849 P.2d 6 |
| Decision Date | 22 March 1993 |
| Docket Number | 91SA300,Nos. 91SA276,s. 91SA276 |
| Parties | Franklin B. FICARRA and Alfred Dennis Grayson, Plaintiffs-Appellants, v. DEPARTMENT OF REGULATORY AGENCIES, DIVISION OF INSURANCE; and Joanne Hill, Commissioner of Insurance, Defendants-Appellees. Joseph James WILKINS, Plaintiff-Appellant, v. DEPARTMENT OF REGULATORY AGENCIES, DIVISION OF INSURANCE; and Joanne Hill, Commissioner of Insurance, Defendants-Appellees. |
| Court | Supreme Court of Colorado |
Gerash, Robinson & Miranda, P.C., Todd J. Thompson, Denver, for plaintiffs-appellants Ficarro and Grayson.
Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Merrill Shields, Deputy Atty. Gen., Richard Djokic, First Asst. Atty. Gen., Robert M. Howard, Sr. Asst. Atty. Gen., Denver, for defendants-appellees.
Cherner and Blackman, Barbara S. Blackman, Denver, for plaintiff-appellant Wilkins.
In affirming two final agency orders of the Colorado Division of Insurance (the Division), the District Court for the City and County of Denver held that the Division had correctly construed as applying retroactively certain provisions of An Act Concerning the Regulation of the Bail Bond Business, ch. 80, secs. 1-13, 1988 Colo.Sess.Laws 480, 480-84 (the Act), and that the Division's decision not to renew the professional bail bondsman licenses of the plaintiffs 1 did not constitute an unconstitutional retrospective operation of the Act under Article II, Section 11, of the Constitution of the State of Colorado. We affirm.
The Act, which became effective on July 1, 1988, amended Colorado's previously existing professional bail bondsman licensing provisions. Prior to the Act, the plaintiffs applied for and were issued by the Division professional bail bondsman licenses. When they applied for their licenses, each applicant was required to "satisfy the [D]ivision of his good moral character by furnishing references thereof," § 12-7-103(2), 5A C.R.S. (1991); ch. 200, sec. 3, § 72-20-3(2), 1971 Colo.Sess.Laws 726, 727, and to set forth under oath whether he had been convicted of a felony during the previous ten years, § 12-7-103(1)(c), 5A C.R.S. (1991); ch. 163, sec. 1, § 72-22-3(1)(c), 1963 Colo.Sess.Laws 584, 586. The Division had the authority to refuse to issue a license to an applicant if the applicant had been convicted of a felony during the previous ten years. § 12-7-102(2), 5 C.R.S. (1985); ch. 151, sec. 38, § 72-20-2(2), 1973 Colo.Sess.Laws 513, 522. However, section 12-7-102(2) also stated that "when considering whether a license should be issued notwithstanding a felony conviction ... the department shall be governed by the provisions of section 24-5-101, C.R.S. [ (1982) (the Ex-Offenders' Rights Act) ]." The Ex-Offenders' Rights Act provided (and still provides) that an applicant's prior felony conviction shall not in and of itself disqualify an applicant "from applying for and receiving a license ... required by the laws of this state to follow any business, occupation, or profession," § 24-5-101, 10A C.R.S. (1988), and that a prior felony conviction, "and pertinent circumstances connected with such conviction, shall be given consideration in determining whether, in fact, the applicant is a person of good moral character at the time of the application," id.
In accordance with these provisions, the Division issued professional bail bondsman licenses to Ficarra and Wilkins, despite the fact that each had been convicted of a felony within the previous ten years. Grayson, who as far as the record shows had not been convicted of a felony within the previous ten years of the date of his original application, also received a license from the Division. 2
Under Colorado's bail bondsman licensing statute as it existed before the effective date of the Act, see ch. 163, sec. 1, § 72-22-2(4), 1963 Colo.Sess.Laws 584, 585, and as it still exists today, see § 12-7-102(4), 5A C.R.S. (1991), all bail bondsman licenses expire annually on January 31. Consequently, in order to remain a licensed professional bail bondsman, a current licensee must apply annually for a renewal of his license. Ficarra's and Grayson's licenses were renewed annually until the Division notified them by letters dated January 9, 1989, that their applications for renewal were being denied. Wilkins' license was renewed annually until the Division notified him by letter dated January 3, 1990, that his application for renewal was being denied. The letters explained to each that under the Act his application for renewal had to be denied because he had been convicted of a felony within the previous ten years, or had served a sentence or had been on parole or probation in connection therewith within the previous ten years. 3 The letters also explained to each that before the nonrenewal could take effect he was entitled to a hearing, and that he was receiving a new license pending that hearing.
The Act amended the previously existing bail bondsman licensing statute by deleting provisions that stated that the Division "may refuse to issue a license" if the applicant has been convicted of a felony within the previous ten years, and that the Division shall apply the Ex-Offenders' Rights Act in determining whether to issue a license despite a felony conviction. See ch. 80, sec. 1, § 12-7-102(2), 1988 Colo.Sess.Laws 480 (emphasis added). In place of these provisions, the Act inserted the requirements that "[e]very applicant shall provide satisfactory evidence to the commissioner that he ... has not been convicted of a felony ... within the last ten years ... [and h]as not served a sentence upon a conviction of a felony ... in a correctional facility ... or under the supervision of the division of parole or any probation department within the last ten years." Id. at 480-81 (emphasis added).
The Act also amended previously existing section 12-7-106(1). Section 12-7-106(1) had provided that the Division "may deny, suspend, revoke, or refuse to renew, as may be appropriate," id., sec. 5, § 12-7-106(1), at 482 (emphasis added), the license of any person engaged in the business of professional bondsman for a variety of explicit reasons that did not include conviction of a felony, or service of a sentence in connection therewith, within the last ten years. See § 12-7-106(1), 5 C.R.S. (1985). As amended by the Act, section 12-7-106(1) provided that the Division "shall deny, suspend, revoke, or refuse to renew, as may be appropriate," ch. 80, sec. 5, § 12-7-106(1), 1988 Colo.Sess.Laws 480, 482 (emphasis added), the license of any person engaged in the business of professional bondsman who had been "[c]onvict[ed] of a felony within the last ten years," id. § 12-7-106(1)(i), or who had "[s]erv[ed] ... a sentence upon a conviction of a felony ... within the last ten years," id. § 12-7-106(1)(j).
In a consolidated proceeding before the Division, Grayson and Ficarra challenged the Division's decision not to renew their licenses. They argued that the Division had misinterpreted the Act, that when properly interpreted the Act applied prospectively, and that even if the General Assembly had intended that the Act apply retroactively, a retroactive application would violate the prohibition against retrospective legislation contained in Article II, Section 11, of the Colorado Constitution. 4 They also argued that despite the fact that the Act deleted the provision that the Division shall be governed by the Ex-Offenders' Rights Act, the Ex-Offenders' Rights Act still applied under the Act.
In her initial decision dated October 17, 1989, the Administrative Law Judge (ALJ) held that "the deletion of the reference to the Ex-Offender's [sic] Rights Act in Section 12-7-102(2) constitutes an affirmative indication that its provisions no longer apply to bail bondsmen licensing decisions." She further held that "the new mandatory language of Section 12-7-102(2), C.R.S. (1988) [] and the complete deletion of any reference to [the Ex-Offenders' Rights Act] leave no doubt that the legislature in 1988 intended [by the Act] ... to effectuate an absolute bar to licensure for ... recently convicted felons," and that in light of that intent, "[t]he only appropriate sanction under [amended] Section 12-7-106 for a licensee who is a recently convicted felon is mandatory revocation [as opposed to suspension]." 5 Finally, applying the rule that a law is unconstitutionally retrospective if it impairs vested rights acquired under existing laws, the ALJ held that because Grayson and Ficarra had no vested rights "to have their criminal convictions treated in a particular way by the state licensing authority," the Division's application of the Act to them did not constitute an unconstitutional retrospective operation of the law.
Grayson and Ficarra filed exceptions to the ALJ's initial decision and by final agency order dated February 10, 1990, the Division affirmed the ALJ's initial decision, denied Grayson's and Ficarra's requests for stays of enforcement, and ordered that their licenses be revoked ten days hence. Grayson and Ficarra then filed in Denver district court a complaint for judicial review of the Division's final order, and a motion for an order staying the Division's revocation of their licenses pending judicial review. The district court granted the stay.
Meanwhile, on March 13, 1990, the Division held a hearing on the issue of the revocation of Wilkins' license. On May 29, 1990, the ALJ (the same ALJ who earlier had presided over Grayson's and Ficarra's proceeding) issued her initial decision in Wilkins' case, and for the same reasons that she had previously revoked Grayson's and Ficarra's licenses, she revoked Wilkins' as well. Wilkins filed exceptions to the ALJ's initial...
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