STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF JUSTICE, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1783

) JOSEPH ALOYSIUS VON WALDNER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on May 28, 1980, in Suite 401, State Regional Service Center, Orlando, Florida. The issue for determination at the hearing was whether disciplinary action should be taken against respondent for the reasons set forth in the Administrative Complaint dated July 17, 1979.

APPEARANCES

For Petitioner: Thomas A. T. Taylor, Esquire

Room 428-A, Larson Building Tallahassee, Florida 32301

For Respondent: Richard L. Wilson, Esquire

100 South Orange Avenue Orlando, Florida 32801

INTRODUCTION

By an Administrative Complaint dated July 17, 1979, the petitioner charged respondent with violating Florida Statutes, Section 648.45(1)(f), (g) and (j). Specifically, the complaint alleges that respondent did, in January and February of 1979, engage and pay for the services of Delbert Leroy Sams, Jr. to act as a bail bond runner and authorized him to pick up five principals (skips) with knowledge that Mr. Sams was not licensed as a bail bond runner.

Respondent requested a formal hearing on the charges pursuant to Florida Statutes, Ch. 120, and the Department of Insurance requested the Division of Administrative Hearings to assign a Hearing Officer. At the hearing before the undersigned, the petitioner presented the testimony of Melvin R. Thayer, petitioner's chief investigator, and Exhibits 1 through 4. Respondent testified in his own behalf.

At the conclusion of the hearing, the parties were given the opportunity to submit to the undersigned proposed findings of fact, proposed conclusions of law and a proposed recommendation. Counsel for petitioner has submitted a proposed recommended order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the stipulated facts, the following relevant facts are found:

1. At all times relevant to this proceeding, respondent Joseph Aloysius Von Waldner has been licensed as a limited surety agent. He has been in the bail bond business for nine years and has had no previous or subsequent complaints issued against him.

   
   

2. On five occasions during January and February of 1979, respondent did authorize, hire and remunerate Delbert Leroy Sams to pick up principals or skips and surrender them to the Orange County Jail.

   
   

3. Delbert Leroy Sams was not and has not been previously licensed in any capacity by the Department of Insurance. On March 2, 1979, Mr. Sams was denied a license by the Department of Insurance.

   
   

4. At the time respondent engaged the services of Mr. Sams, respondent believed that Mr. Sams was working as a bail bond runner for another bail bondsman. Respondent did not inquire of Sams as to whether Sams was or was not licensed by the Department of Insurance. Respondent knew that other bail bondsmen had used Sams as a runner, and Sams showed respondent some business cards and forms which Sams used when picking up principals. Respondent admits that he was negligent for not inquiring into Mr. Sams' licensure.

   
   

5. Respondent was called in for an investigation by the petitioner's chief investigator, Melvin R. Thayer, on February 28, 1979. After talking with Mr. Thayer and becoming aware that Mr. Sams was not licensed, respondent no longer used Sams as a runner.

   
   

   CONCLUSIONS OF LAW

   
   

6. Florida Statutes, Section 648.30 provides that no person shall act in the capacity of a runner unless that person is qualified and licensed. The petitioner's Rule 4-1.06, Florida Administrative Code, provides that any bail bondsman who permits an unlicensed person to engage in the bail bond business in his behalf is in violation of 648.30, Florida Statutes. A "bail bondsman" is defined in 648.25(3) to include limited surety agents.

   
   

7. The undisputed facts in this case clearly demonstrate that respondent, a licensed limited surety agent, engaged the services of Delbert Leroy Sams as a runner and compensated him for those services in January and February of 1979, at a time when Mr. Sams was not licensed as a runner by the Department. The petitioner has failed to demonstrate, as was charged in the administrative complaint, that respondent's conduct in this regard was willful, fraudulent or dishonest within the meaning of Florida Statutes, Section 648.45(1)(f) or (g) which sets forth the grounds for disciplinary action against a licensee. Willfulness, fraud and dishonesty require knowledge and intent. The evidence in this cause, while illustrating negligence on respondent's behalf, does not demonstrate the elements proscribed in subsections (f) and (g) of Section 648.45(1). Petitioner has not charged a violation of subsection (b) of s648.45(1), which makes violation of any law relating to the business of bail bond insurance grounds for disciplinary action.

8. The remaining charged violation is subsection (j) of s648.45(1), Florida Statutes, which provides as grounds for disciplinary action a demonstration of

"... 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 ..."

The undersigned concludes that the use of an unlicensed runner to perform the services of apprehension and surrender of a defendant to the court constitutes conduct detrimental to the public interest and provides grounds for disciplinary action. Based upon the facts that respondent's unlawful conduct was a result of negligence as opposed to willfulness, that respondent stopped using Mr. Sams as a runner as soon as he became aware that Mr. Sams was not licensed and that respondent has been in the business for nine years without prior complaints being filed against him, it is concluded that the penalties of suspension and/or revocation of his license would be too harsh. An administrative penalty in the amount of $100.00, as authorized by Florida Statutes, s648.52, would appear to be more commensurate with the violation committed by the respondent.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Department of Insurance enter a final order finding that respondent violated the provisions of Florida Statutes, s648.45(1)(j) and imposing an administrative penalty against respondent in the amount of $100.00, said penalty to be paid within thirty (30) days of the date of the final order.

Respectfully submitted and entered this 27th day of June, 1980, in Tallahassee, Florida.

DIANE D. TREMOR

Hearing Officer

Division of Administrative Hearings

101 Collins Building Tallahassee, Florida 32301 (904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 1980.

COPIES FURNISHED:

Thomas A. T. Taylor, Esquire Room 428-A, Larson Building Tallahassee, Florida 32301

Richard L. Wilson, Esquire

100 South Orange Avenue Orlando, Florida 32801

Insurance Commissioner Bill Gunter The Capitol

Tallahassee, Florida 32301

Docket for Case No: 79-001783

Orders for Case No: 79-001783