STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) INSURANCE, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1632

)

ROBERT EUGENE RADNEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on 19 October 1979 at Tampa, Florida.

APPEARANCES

For Petitioner: Thomas A. T. Taylor, Esquire

Florida Department of Insurance Legal Division

428A Larson Building Tallahassee, Florida 32301

For Respondent: Elvin L. Martinez, Esquire

4602 North Armenia Avenue Tampa, Florida 33603

By Administrative Complaint dated 23 April 1979, the Department of Insurance, Petitioner, seeks to revoke the bail bondsman's license of Robert Eugene Radney, Respondent, or to impose a lesser penalty against Respondent's license. As grounds therefor it is alleged that Respondent in May, 1978 failed to maintain the minimum requirement for permanent office records and failed to maintain a place of business located in this state accessible to the public and to be actively engaged in the bail bond business; all in violation of Chapter 648, Florida Statutes, and Chapter 4-1.04, Florida Administrative Code.

At the commencement of the hearing, Respondent, by and through his attorney, requested a continuance of the hearing on grounds that the attorney had recently been called into the case to replace the attorney of record and did not have sufficient time to prepare for the hearing. After noting that the Notice of Hearing setting October 19, 1979 as the date of hearing had been issued 7 August 1979; that in June Ray Tomargo was the attorney of record and no request for withdrawal had been received from him; that no appearance had been entered prior to the commencement of the hearing by Elvin Martinez; and, after opposition to the motion for continuance was voiced by Petitioner, the motion for continuance was denied.

Upon the Hearing Officer's return to Tallahassee following the completion of the hearing, a Motion for Continuance containing a certificate that the Motion was mailed 12 October 1979, had been received in the Division of Administrative Hearings at 3:13 P.M. on October 16, 1979. On October 16 this Hearing Officer departed Tallahassee in time to commence a hearing at 9:30 A.M. in Tampa. Subsequent hearings in the Tampa vicinity were held 17 and 18 October.

This is here noted solely because the Motion for Continuance contained grounds not presented at the hearing, viz. that Elvin Martinez is a member of the Florida legislature, that Committee and Sub-Committee meetings had been called for the week of October 15, 1979 in Miami, Ft. Lauderdale and Jacksonville and that his presence was required at those Committee and Sub- Committee meetings.

Section 11.111, Florida Statutes, directs continuance be granted of proceedings before state agencies during any period of required legislative committee work. Had this ground been made known at the hearing, the continuance would have been granted.

It is here unnecessary to decide or consider the effect, if any, of Article II, Section 8(e) of the Florida Constitution on Section 11.111. Article II, Section 8(e) provides in pertinent part:

No member of the legislature shall personally represent another person or entity for compensation during term of office before any state agency other than judicial tribunals.

Whether this provision prohibits such representations in hearings conducted by the Division of Administrative Hearings was not fully laid to rest in Myers

1. Hawkins, 362 So.2d 926 (Fla. 1978) and, even if it does bar such representation, the enforcement of that provision is outside this tribunal's jurisdiction.

   
   

   Following the preliminary motions, Petitioner called six witnesses, Respondent testified in his own behalf, and three exhibits were offered into evidence, but before ruling was made on Exhibit 2, this exhibit was withdrawn.

   
   

   FINDINGS OF FACT

   
   

   1. The facts relevant to the charges here preferred are largely undisputed.

      
      

   2. In May 1978 Respondent's business address as reported by him to Petitioner was 2812 North 34th Street, Tampa, Florida. This address was visited by Petitioner's investigators on 23, 24, 25, and 30 May 1978. The building located at that address is owned and used by Scaglione Construction Company as its main office. There is no sign on the exterior of this building indicating a bail bondsman's office is located inside.

      
      

   3. While visiting the address, the investigators were advised that Respondent had no office there but Frank Puig did have a bail bond office in the building. Although there was some dispute regarding whether the investigators were shown Puig's office, or even allowed to go to the door of that office,

      whether they did or not is immaterial because Respondent readily admitted he had no files at this location and conducted no business therefrom.

      
      

   4. Again witnesses differed on whether there was a sign on the door of the office occupied by Puig. Whether there was a sign on that door reading "Frank Puig - Bail- bondsman" is irrelevant to the charge that Respondent had no sign designating his office.

      
      

   5. During the period in question, in fact, during most, if not all, of 1978, Respondent testified he was without power [of attorney] to write bonds. Exhibit 1 shows that three companies, Midland Insurance Company, Allied Fidelity Insurance Company, and Cotton Belt Insurance Company, Inc. all renewed Respondent's limited surety agency in October 1977 and all cancelled his limited surety agency 12-14-78. Respondent's testimony indicated that he was an agent only for Cotton Belt and that his power to write bonds had been withdrawn.

      
      

   6. According to Respondent's own testimony, he had no permanent office in which to keep his files and records and that these records were carried in his car and stored at his residence when not in his car. He was using Puig's telephone number as a place at which messages could be left for him. Respondent also testified that during 1978 he wrote no bonds and was only servicing existing accounts which preceded 1978.

      
      

      CONCLUSIONS OF LAW

      
      

   7. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

      
      

   8. Chapter 648, Florida Statutes, regulates bail bondsmen. Pertinent sections thereof relevant to the issues here presented state in pertinent part:

      
      

      648.34(2) To qualify as a bail bondsman it must affirmatively appear:

      (c) That the place of business of the applicant will be located in this state and that such applicant will be actively engaged in the bail bond business and maintain a place of business accessible to the public.

      
      

      648.39(3) An insurer terminating the appointment of a limited surety agent shall, within 30 days after such termination, file written notice thereof with the department, together with a statement that it has given or mailed notice to the limited surety agent.

      
      

      648.43(1) Every insurer engaged in the writing of bail bonds through limited surety agents in this state shall submit and have approved by the department a sample power of attorney which will be the only form of power of attorney the insurer will issue to limited surety agents in Florida.

      
      

      648.45(1) The department may deny, suspend, revoke or refuse to renew 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:

      (g) Willful failure to comply with, or

      willful violation of any proper order, rule or regulation of the department.

      (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, or when the department finds that he is no longer in good faith carrying on the bail bond business . . .

      
      

   9. Regulations pertaining to bail bondsmen are contained in Chapter 4-1, Florida Administrative Code. Rule 4-1.01 thereof provides:

      
      

      Permanent office records required. Pursuant to Section 648.36(1), Florida Statutes, each bail bondsman and general lines agent engaged in the bail bond business, as a minimum requirement for permanent office records, shall maintain:

      1. A daily bond register which shall be the book of original and permanent

         record of all bonds or undertakings executed by the licensee which shall state the number of the Power of Attorney form, date bond was executed, name of principal, amount of bond, premium charged, premium reported to surety company, security of collateral received, indemnity agreements, disposition of bond, and date of disposition.

      2. An individual file or envelope for each principal for whom bond is made which shall contain the original application for bail bond or undertaking, security or collateral affidavit, where security or collateral is located, information as to any security or consideration received by the agency or licensee in connection with each particular bail bond or undertaking and purpose for which it was received, receipt or release executed by the person or persons posting security or collateral evidencing the return of such security or collateral and indemnity agreement as executed by ce-indemnitors.

         
         

   10. From the foregoing it is concluded that in May 1978 Respondent had no office open to the public during normal working hours at which permanent bail bond records were kept. At this time he was a limited surety agent for three

companies and could have written bonds against those companies anytime prior to the cancellation of his agency on December 14, 1978. The address Respondent had provided to petitioner as his office address contained no sign or other indication to designate that address as the location of Respondent's bail bond office. It is therefore

RECOMMENDED that the license of Robert Eugene Radney as a limited surety agent be revoked.

Entered this 30th day of November, 1979.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1979.

COPIES FURNISHED:

Thomas A. T. Taylor, Esquire Florida Department of Insurance Legal Division

428A Larson Building Tallahassee, Florida 32301

Elvin L. Martinez, Esquire 4602 North Armenia Avenue Tampa, Florida 33603

Docket for Case No: 79-001632

Orders for Case No: 79-001632