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Commissioner, Indiana Department of Insurance v. Putman

Court of Appeals of Indiana

March 29, 2018

Commissioner, Indiana Department of Insurance, Appellant-Respondent,
v.
Alvin C. Putman, Appellee-Petitioner.

          Appeal from the Marion Superior Court The Honorable Michael D. Keele, Judge Trial Court Cause No. 49D07-1606-MI-20114

          Attorneys for Appellant Curtis T. Hill, Jr. Attorney General of Indiana Frances Barrow Deputy Attorney General

          Attorney for Appellee Larry F. Whitham Whitham, Hebenstreit & Zubek, LLP

          Brown, Judge.

         [¶1] The Commissioner of the Indiana Department of Insurance appeals the trial court's order reversing its decision to revoke Alvin C. Putman's bail agent license. The issue is whether the court erred in entering its order. We reverse and remand.

         Facts and Procedural History

         [¶2] On September 17, 2015, the Enforcement Division of the Indiana Department of Insurance filed a Motion to Revoke Bail Agent License with the Commissioner which alleged that Putman had been found guilty of battery as a class D felony on September 16, 2015, in Fulton County (the "Criminal Cause") and which requested an order revoking Putman's bail agent license. That same day, the Commissioner issued an order revoking Putman's license and providing that he may not reapply for a license until ten years from the date of his conviction or release from prison, parole, or probation, whichever is later. On January 21, 2016, Putman filed a motion to rescind the Commissioner's order stating that he was convicted of battery as a misdemeanor.

         [¶3] On February 3, 2016, the Enforcement Division filed a Motion to Modify Revocation Order on Bail Agent License stating that the court in the Criminal Cause entered a sentence against Putman on November 24, 2015 as a class A misdemeanor and requesting that the Commissioner issue a modified order which reflected the appropriate restriction on reapplication of five years instead of ten years as originally ordered. Putman filed a reply arguing that his misdemeanor battery conviction did not constitute a qualifying offense to revoke his license because it was not a misdemeanor in which an element of the offense involves violence under Ind. Code § 27-10-1-6.[1] On February 12, 2016, the Commissioner entered Findings of Fact and Modified Order Revoking Bail Agent License which found that, since Putman's conviction was entered as a class A misdemeanor battery, which is a misdemeanor with an element of violence, the order should be modified to reflect the appropriate restriction and entered a modified order that Putman's bail agent license was revoked and that he may not reapply for a license until five years from the date of his conviction or release from prison, parole, or probation, whichever is later. On February 17, 2016, Putman filed a motion for a hearing before the Commissioner.

         [¶4] On April 6, 2016, an administrative law judge (the "ALJ") held a hearing. At the hearing, the following exchange occurred:

[ALJ]: Yes. So I think it boils down to a question of whether or not a person who commits a Class A misdemeanor battery causes injury.
[Putman's Counsel]: Okay. And injury is defined as to include pain, your Honor. And I would ask the Court to take judicial notice of Indiana Code 35-31.5-2-29 . . . that defines bodily injury: Any impairment of physical condition including physical pain. The fact is that Mr. Putman was convicted of battery based upon spanking his grandson. And the whole purpose of spanking his grandson was to dissuade his grandson from doing the behavior, continuing the behavior of which he was engaged in. It was to inflict some degree of transient physical pain. That's the whole purpose of spanking a child.
[ALJ]: Yes. There's a difference between pain and injury.
[Putman's Counsel]: Well, not really. Not according to that statute. Bodily injury includes physical pain.
[ALJ]: Includes.
[Putman's Counsel]: Okay. The testimony that was provided at trial and that we'll provide you again today is there was no injury, no visible injury of any kind to this child. ...

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