STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA COMMISSIONER OF ) INSURANCE, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1641

)

RUSSELL BRUCE MONCRIEF, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative, by its duly designated Hearing Officer, K. N. Ayers, held public hearing in the above styled case on November 16, 1979, at Sanford, Florida.

APPEARANCES

For Petitioner: Thomas A. T. Taylor, Esquire

Room 528A, Larson Building Tallahassee, Florida 32301

For Respondent: James C. Weart, Esquire

201 West First Street, Suite 206 Sanford, Florida 32771

By Administrative Complaint dated July 3, 1979, the Florida Commissioner of Insurance, Petitioner, seeks to revoke, suspend or otherwise discipline the license of Russell Bruce Moncrief, Respondent, as a General Lines Agent acting as a bail bondsman. As grounds there for, it is alleged that during the period June through September, 1978, Respondent hired one Sams, an unlicensed person, to perform the duties of a bail bond runner; that on or about February 26, 1978, Respondent altered an official record, to wit: a jail card; and that at divers times in March, 1979, Respondent's office was not open to the public during normal business hours. These acts are alleged to violate various provisions of chapter 648, Florida Statutes, relating to bail bondsmen and Rule 4-1.04, Florida Administrative code.

At the commencement of the hearing, Respondent filed a motion to dismiss the charges against him. Ruling on the motion was deferred. That motion is now denied. At the hearing seven (7) witnesses were called by Petitioner, two (2) witnesses, including Respondent, testified on behalf of Respondent and eleven

1. exhibits were admitted into evidence.

   
   

   FINDINGS OF FACT

   
   

   1. Russell Bruce Moncrief is licensed with Respondent as a general lines agent (2-20) and at all times here relevant was so licensed.

   2. Shortly after Respondent opened his bail bond office, he was approached by Sams who represented himself as a bounty hunter who could pick up "skips" and others the bail bondsman wanted for surrender under their bonds. Sams represented that he was a member of the Florida Assurity Association, that he so worked for several bail bondsmen and was qualified to pick up skips for bail bondsmen. Sams produced an impressive badge, business cards and arrest forms for the bondsman to sign which would authorize Sams to pick up the individuals who had skipped out on their bonds.

      
      

   3. At this time Respondent had no skips to pick up and suggested Sams contact him later; and, during the period between June and September, 1978, Sams picked up some five (5) to eight (8) individuals on whom Respondent had written a bond and returned these people to Respondent. For these services, Respondent paid Sams a percentage of the bond.

      
      

   4. This relationship with Sams terminated when the latter gave Respondent a worthless check.

      
      

   5. Subsequently, Sams learned that his "bounty hunting" was unauthorized and applied for licensure as a bail bond runner. During Petitioner's investigation of Sams' application, his association with Respondent became known and Respondent told Petitioner's agents of his relationship with Sams. This led to an investigation of Respondent and to the charges here preferred.

      
      

   6. On March 9, 14, 15 and 20, 1979, agents of Petitioner visited the office of Respondent during the morning hours and found the office closed. These times the office was visited were generally between 9:00 A.M. and 12:00 Noon. On March 9, 1979, Nelson Messimore waited at Respondent's office from 6:00 A.M. until 2:00 P.M. before the office was opened. This individual tried numerous times to call the phone number shown on a sign inside Respondent's

      office but received no answer. He obtained the bond desired when the office was opened.

      
      

   7. From the time he opened his bail bond office in early 1978, until he learned of the charges being investigated, Respondent had his office opened around noon by his secretary who stayed at the office until 6:00 P.M.

      Respondent usually arrived between 2:00 and 4:00 P.M. and kept the office open until nearly midnight. During this period he had an answering service to answer his calls 24 hours per day when the office was not open and a paging service to "beep" him when someone was trying to contact him.

      
      

   8. After learning that Petitioner's agents deemed his office hours to be in violation of Petitioner's regulations, Respondent engaged the services of another bail bondsman and had the office opened at 8:00 A.M. and it remained open during the normal working day. Respondent continued to keep the evening hours he previously used.

      
      

   9. On or about February 28, 1978, Respondent was given the jail card of Willie Frank Boone by the booking officer to use in preparing a bailbond. Boone had previously been bonded by Respondent and he was somewhat familiar with Boone's record. While the card was in his custody, Respondent thought one entry on the card was an error and interlined that item. Further perusal of the card led Respondent to realize the card had not been in error. When he returned the card to the booking officer, he told the booking officer of the changes he had made to the card. This caused considerable consternation in the booking officer and led to procedural changes to not allow custody of the jail cards to be given to bail bondsmen. The change to the jail card made by Respondent could not

      benefit Respondent financially or otherwise. However, the change could have affected the sentencing of the accused.

      
      

      CONCLUSIONS OF LAW

      
      

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

       
       

   11. Grounds for disciplining a bail bondsman's license are contained in Section 648.45, Florida Statutes, which provides in pertinent part:

       
       

       1. The department may deny, suspend, revoke or refuse to renew any license issued under this law . . . for any of the following causes. . .

          (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.

          1. Fraudulent or dishonest practices in the conduct of business under the license.

          2. 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...

          
          

   12. Section 648.30, Florida Statutes, provides:

       
       

       No person shall act in the capacity of a professional bail bondsman, limited surety agent, or runner, or perform any of the functions, duties or powers prescribed for bail bondsmen or runners under the provisions of this chapter unless that person shall be qualified and licensed as provided in this chapter.

       
       

       Runner is defined in Section 648.25(6), Florida Statutes, as

       
       

       a person employed by a bail bondsman. . . to assist in the apprehension and surrender of defendant to the court, or keeping the defendant under necessary surveillance.

       
       

   13. The employment of Sams by Respondent to pick up "skips" was in violation of the statutory provisions above quoted. Sams was thereby performing the functions of a runner and he was not licensed to do so. Although Respondent should have been aware that Sams could not apprehend "skips" for him without being licensed as a runner, he obviously did not know this at the time he engaged the services of Sams.

   14. The alteration of the jail card by Respondent was a careless and unthinking mistake for which Respondent could accrue no benefit. This inadvertence certainly does not reach the category of untrustworthiness, incompetency and demonstrate Respondent to be unfit to carry on the bail bond business.

       
       

   15. Rule 4-1.04, Florida Administrative Code, provides:

       
       

       Section 648.34(2)(c), Florida Statutes, is interpreted to mean that every bail bondsman or general lines agent engaged in the bail bonds business be currently engaged in that business; that a place of business suitably designated as such must be maintained open and accessible to the public to render services during normal business hours.

       
       

   16. Prior to being notified by Petitioner's agents that he was required to keep his office open during the morning hours, Respondent violated the above quoted regulation. However, no evidence was presented from which a willful violation of this rule can be found. Normal business hours, using the generally accepted meaning of these words, contemplates the hours most businesses are open, which are from 8:00-9:00 A.M. until 4:00-6:00 P.M. The witnesses with long experience in the field testified that a bail bondsman could keep hours different than 9:00-5:00 if he published the hours his office was opened. Under these circumstances, the published hours would be the bail bondsman's normal business hours.

       
       

   17. Here Respondent had a 24-hour answering service and could be paged by this answering service. Therefore, he was available to the public 24 hours a day as he advertised. The testimony of the witness that he had been unable to make telephone contact with Respondent during the morning hours of March 9, 1979, could not be explained by Respondent. The evidence was unrebutted that Respondent employed the answering and paging services.

       
       

   18. From the foregoing it is concluded that Respondent failed to have his office open during the morning hours prior to April, 1979, in violation of Rule 4-1.04, Florida Administrative Code; however, this violation was not willful. It is further concluded that Respondent employed Sams to perform functions that could legally be performed only by a licensed bail bondsman or licensed runner.

This employment stemmed from lack of knowledge on the part of Respondent and not from an intent to violate the laws regulating bail bondsmen. Respondent's alteration of the jail card of Boone did not constitute a violation of any provision of Chapter 648, Florida Statutes. It is, therefore,

RECOMMENDED that Russell Bruce Moncrief be issued a letter of admonition for employing Sams to pick up skips at a time he was aware Sams was unlicensed. Respondent is now well aware of Petitioner's position respecting office hours and is in compliance therewith. Accordingly, admonishment regarding office hours appears inappropriate.

Entered this 20th day of December, 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 20th day of December, 1979.

COPIES FURNISHED:

Thomas A. T. Taylor, Esquire Room 528A, Larson Building Tallahassee, Florida 32301

James C. Weart, Esquire

201 West First Street Suite 206

Sanford, Florida 32771

Docket for Case No: 79-001641

Orders for Case No: 79-001641