STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE, )

STATE OF FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1660

)

RONALD JOHN ANDERSON, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above captioned matter, after due notice, at Miami, Florida, on November 15, 1978, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: Thomas A. T. Taylor, Esquire

Department of Insurance Larson Building, Room 428A Tallahassee, Florida 32304

For Respondent: None

ISSUE PRESENTED

Whether Respondent's license as a Limited Surety Agent should be suspended or revoked for alleged violations of Section 648.45, Florida Statutes, as set forth in the Administrative Complaint, dated August 14, 1978.

Notice of Hearing was mailed to the Respondent at his last address of record with Petitioner on October 26, 1978, by the Division of Administrative Hearings. The record reflects that the Administrative Complaint issued by Petitioner had been received by the Respondent at that address by virtue of the fact that he had filed an answer to the complaint on September 8, 1978. Neither Respondent nor any representative appeared at the place of hearing at the designated time. Accordingly, the matter was tried as an uncontested proceeding.

FINDINGS OF FACT

1. Respondent Ronald John Anderson, North Miami Florida, is currently licensed as a limited surety agent with Petitioner and was so licensed to represent the Stuyvesant Insurance Company during the period October 1 to September 30, 1977. A limited surety agent licensed under Chapter 648, Florida Statutes, is a bail bondsman whose authority extends only to a power of attorney to execute or countersign bail bonds in connection with judicial proceedings. (Petitioner's Exhibit 1, Testimony of Stewart)

2. On December 15, 1976, Respondent purportedly acting on behalf of the Stuyvesant Insurance Company, New York City, New York, posted a $1,000 immigration bond on behalf of Brutus Cadet, an alien of Haitian nationality, with the Immigration and Naturalization Service, United States Department of Justice, at Miami, Florida. The bond was conditioned for the delivery of an alien; however, the power of attorney executed by Respondent, power no. 582936, recited on its face that the said power of attorney authorized Respondent to execute a criminal bail bond on behalf of the said company. In like manner, on March 24, 1977, Respondent attached his power of attorney no. 603734, for Perelus Charles, a Haitian national, on a $2,500 immigration bond, which was posted with the United States Department of Justice Immigration and Naturalization Service in Miami, Florida. Both bonds were approved and accepted by the district director of the Immigration and Naturalization Service. (Petitioner's Exhibit 4, Supplemented by Petitioner's Exhibit 5)

   
   

3. Respondent's contract with the Stuyvesant Insurance Company appointed Respondent as executing agent for the company in Florida for the soliciting and writing of bail bonds, and provided in paragraph 13 thereof that such excuting agent could excute and renew only this type of bond. In fact, separate power of attorney forms were issued by the Stuyvesant Insurance Company for criminal bail bonds and immigration bonds. (Petitioner's Exhibits 2, 6)

   
   

4. The only persons authorized to write immigration bonds in Florida are general lines insurance agents licensed under Chapter 626, F.S. (Testimony of Stewart)

   
   

5. Although Respondent did not appear at the hearing, he filed an answer in this cause wherein he admitted executing the bonds in question but stated that he was not aware that a bail bondsman could not execute immigration bonds and that it was a common practice by all Dade and Broward County bondsmen. The answer further recited that in order to preclude the surrender of the principals to the custody of the Immigration Service, Respondent obtained new bonds from another Dade County bondsman and paid the premiums himself. The facts alleged in Respondent's answer are considered admissions against interest properly cognizable in this proceeding. (Case Pleadings )

   
   

   CONCLUSIONS OF LAW

   
   

6. The complaint herein alleges that Respondent has violated the following provisions of Chapter 648, Florida Statutes, which justifies disciplinary action against the licensee:

   
   

   1. Denial, suspension, refusal to renew, or revocation of license or eligibility to hold same.--

      1. The department may . . . suspend, revoke any license issued under this law, or it

   may suspend or revoke the eligibility of

   any person to hold a license under this law, for any of the following causes or for any violation of the laws of this state relating to bail:

   (b) Violation of any law relating to the business of bail bond insurance in the course of dealings under the license issued him by the department.

   (f) fraudulent or dishonest practices in the

   conduct of business under the license.

   (j) When, in the judgment of the department, the licensee has, in the conduct of affairs under the license, demonstrated incompetency, or untrustworthiness, or conduct or practices rendering him unfit to carry on the bail bond business, or making his continuance in such business detrimental to the public interest.

   
   

7. Petitioner predicates the alleged violation of subsection 648.45(1)(b) upon Respondent's commissions of acts constituting grounds for disciplinary action under subsections 648.45(1)(f) and (j) in the complaint. However, those are independent grounds for adverse action and cannot be used as constituting a "law" that has been violated which would justify action under subsection 645.(1)(b). Neither has Petitioner pointed to any other specific provision of the law that has been violated by the Respondent. Although Section 648.25(4) defines the term "limited surety agent" as an individual appointed by an insurer by power of attorney to execute or countersign bail bonds in connection with judicial proceedings, there is no proscriptive language contained in such definition, nor is there any other prohibition stated in Chapter 648. Accordingly, it is concluded that the complaint fails to allege, and the proof fails to show, a violation of any law which would justify imposition of disciplinary action under that statutory provision.

   
   

8. The allegation of fraudulent or dishonest practices in the conduct of business under the license as justifying disciplinary action under subsection 648.45(1)(f) has not been established by the evidence. There was no showing that Respondent attempted to deceive the Bureau of Immigration as to the extent of his authority to execute immigration bonds, as evidenced by the fact that his power of attorney on its face showed that it was restricted to bail bonds. It is therefore concluded that no fraud or dishonesty has been practiced by the Respondent.

   
   

9. As to the alleged ground for action as set forth in subsection 648.45(1)(j), it is considered that Respondent demonstrated incompetency in the conduct of his business by exceeding the authority granted him by the Stuyvesant Insurance Company and the licensing authority granted by the State of Florida. He knew or should have known that his authority was limited to the execution of criminal bail bonds and did not extend to immigration appearance bonds. It is acknowledged, however, that both types of undertakings deal with the appearance of an individual under certain circumstances, and it is therefore conceivable that he could have confused or misunderstood the extent of his authority as claimed in his answer to the petition. In any event, his actions fail to rise to the level of "conduct or practices rendering him unfit to carry on the bail bond business, or making his continuance in such business detrimental to the public interest." His actions were detrimental to the public interest in the sense that the immigration bonds that he executed were invalid, but under the circumstances the extent of such detriment does not require action so drastic as suspension or revocation of his license. It is believed that an adequate penalty should be imposed under the authority of Section 648.52(1) which authorizes an administrative penalty in the amount of $100 in lieu of such suspension or revocation, and that he should also be administered a public reprimand for his negligent conduct.

RECOMMENDATION

That an administrative penalty of $100 be imposed against Respondent and that he be administered a public reprimand, pursuant to Section 648.52(1), Florida Statutes, for the aforesaid actions falling within the purview of Section 648.45 (1)(j), Florida Statutes.

DONE and ENTERED this 13th day of December, 1978, in Tallahassee, Florida.

THOMAS C. OLDHAM

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Thomas A. T. Taylor, Esquire Department of Insurance

Room 428A - Larson Building Tallahassee, Florida 32304

Ronald John Anderson 2170 NE 122nd Road

North Miami, Florida 33181

Docket for Case No: 78-001660

Orders for Case No: 78-001660