STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE AND ) TREASURER, STATE OF FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1711

)

BONNIE LOUISE SPONHEIM, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter, after due notice, on April 16, 1982 at Dade City, Florida, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For the Petitioner: Clark R. Jennings, Esquire

Department of Insurance 4l3B Larson Building Tallahassee, Florida 32301

For the Respondent: Ben W. Thompson, Esquire

Post Office Box 466

Dade City, Florida 33525 ISSUE PRESENTED

Whether Respondent's eligibility for licensure as a Runner should be revoked, or suspended for alleged violations of Chapter 648, Florida Statutes, as set forth in the Administrative Complaint, dated July 7, 1981.

This case was filed with the Division of Administrative Hearings on July l, 1981. In view of the fact that the Administrative Complaint dealt with a charge involving the same incident recited in a subsequently filed case by the same Petitioner against James Leroy Sponheim, DOAH Case No. 81-1950, the cases were consolidated for the purposes of hearing pursuant to Rule 28-5.106, Florida Administrative Code, by Order issued August 17, 1981, and Notice of Hearing was issued for October 8, 1981. The hearing was continued upon the request of Respondents to await the outcome of a pending judicial appeal of a criminal conviction of Respondent James L. Sponheim, in the County Court of Pasco County.

Subsequently, Respondent Bonnie Louise Sponheim filed a motion to sever her case and proceed to hearing as soon as possible. The motion was granted, and her case was noticed for hearing on February 17, 1982. At the commencement of that hearing, Respondent filed a motion for continuance, based on substitution of counsel. The motion was granted, subject to reconsolidation of the two cases in order to prevent multiple hearings. Final hearing was then set in the consolidated cases for April 16, 1982.

Respondent is alleged to have violated various provisions of Chapter 648, Florida Statutes by arresting or taking into custody, and surrendering one Stephen Sissitka to Pasco County law enforcement authorities, while in an unlicensed status.

The parties agreed that the statutory period for rendition of a Recommended Order in the consolidated cases would be waived for a reasonable time in the discretion of the Hearing Officer.

Post-hearing submissions by the parties have been fully considered and those portions thereof not adopted herein are deemed to be unnecessary, irrelevant, or unwarranted in fact or law.

FINDINGS OF FACT

1. James L. Sponheim is licensed as a Limited Surety Agent to represent Cotton Belt Insurance Company, Inc., and was so licensed at all times relevant to this proceeding. His office is located in Dade City, Florida. (Testimony of

   J. Sponheim, petitioner's Exhibit 2)

   
   

2. Respondent Bonnie L. Sponheim is qualified, but not currently licensed, as a bail bond runner. She was previously licensed as a runner, but her license was cancelled on April 3, 1980. Thereafter, she has served as a secretary in her husband's Dade City office. (Testimony of B. Sponheim, Petitioner's Exhibit l)

   
   

3. On August 6, 1980, Stephen W. Sissitka, of Zephyrhills, Florida, made application to the Cotton Belt Insurance Company for appearance bonds B6A095951-

   52 to effect his release from the custody of the Pasco County Sheriff's office. The application contained provisions as to events which would constitute a breach of the obligations under the bond, including the applicant's change from one address to another without notifying the Cotton Belt Insurance Company or its agent in writing prior to any such move. On the reverse of the application, Glenna Lilly and Spurgeon Phillips executed an indemnity agreement whereby they agreed to bind themselves to produce Sissitka in court at the required time.

   The application further identified Glenna Lilly as Sissitka's mother. Phillips executed a separate indemnity agreement on August 30, 1980. He is the father- in-law of Sissitka and resides in Dade City. (Testimony of J. Sponheim, S. Sissitka, Respondent's Exhibits 1,2)

   
   

4. On August 6, 1980, Mr. Sponheim, as agent for Cotton Belt Insurance Company, issued the requested bonds in the total amount `of $2,500.00. (Testimony of J. Sponheim, Petitioner's Composite Exhibit 4)

   
   

5. Although Sissitka had listed his address as Zephyrhills, Florida, he was living at the home of his father-in-law Spurgeon Phillips, in Dade City at the time he was released on bond. However, he was having difficulties with his wife and did not remain in Dade City on a continuous basis. On several occasions, he went over night to his mother's house in Zephyrhills, and another time he visited his wife's mother for several days in Pasco County. He did not tell Mr. Sponheim about the latter visit, nor did Phillips know where he was. In fact, he stayed only sporadically with Phillips during the period August to October, 1980, and sometimes would be gone for a week or two. Phillips complained to Mr. Sponheim about his inability to keep up with Sissitka's whereabouts, and wanted to have him returned to custody. As a result, Mr. Sponheim and Phillips had a meeting with Sissitka on October 7, 1980, at which

   time Mr. Sponheim reminded Sissitka of his obligations to report any changes of address or employment and imposed the requirement that Sissitka "check in" with Sponheim's office once a week. Sissitka was also told to stay at Phillips' house in the future. Sissitka agreed to follow the conditions imposed and keep Mr. Sponheim and Phillips notified of his whereabouts. (Testimony of J. Sponheim, B. Sponheim, Phillips, Harrelson, S. Sissitka, M. Sissitka, Petitioner's Exhibit 3, Stipulation)

   
   

6. On October 15, 1980, Mrs. Sponheim discovered Sissitka was no longer employed at a restaurant in Dade City. Mr. Sponheim was out of the state at the time. Mrs. Sponheim was under the impression that Sissitka was living at Zephyrhills, and so she drove out to Phillips' house to talk to his wife in an attempt to ascertain his current situation. When she knocked on the door, Sissitka answered and told her that he had been living there. Mrs. Sponheim told him that they needed to talk. She waited in her car while he put on a shirt and some shoes, and joined her in the car. They then drove to Mr. Sponheim's office. On the way, she asked him about his job and where he was living, but Sissitka indicated that it was none of her business, that Mr. Sponheim had no control over him, and that as long as he showed up in court that was all that mattered. He asked her if he was going to jail, and she told him that was between him and Mr. Sponheim. When they arrived at the office they discussed the conditions of the bond and the arrangements which had been made at the previous meeting with Phillips and Mr. Sponheim on October 7. Sissitka told her that he was tired of being harrassed not only by her husband, but by Phillips, and that everyone was giving him a hard time, and he wanted it stopped. Mrs. Sponheim inferred from this statement that Sissitka wished to terminate the bond relationship and told him that if he wanted to "end it" he was free to go to the jail and surrender himself at any time. At that point, Sissitka said "fine, let's go" but Mrs. Sponheim told him that they needed to talk to Mr. Sponheim about it first. She went into the adjoining private office, telephoned her husband and informed him of the situation. He told her that Sissitka could either go ahead and surrender himself, or otherwise they would have to wait until he returned to the city to settle the matter. He further told her that if Sissitka wanted to turn himself in that she should make sure to get the surrender documents to the jail so that he couldn't walk out again. Mr. Sponheim made a practice of pre-signing the appropriate surrender forms for each person he bonded out at the time the bond was written; therefore, a signed surrender form had been previously prepared for Sissitka. The Pasco County Sheriff's Department requires that the surrender document be filed with that office prior to permitting an individual to surrender himself. Otherwise, the individual would be free to leave the jail because the bond would still be valid.

   
   

7. After talking to her husband, Mrs. Sponheim informed Sissitka of the conversation and he asked to use the phone to call his mother. After he completed the call, he said "o.k. let's go." Mrs. Sponheim then filled in the date on the "off bond" form and they walked across the street to the jail. Sissitka went up to the jail door and said "here I am again" and opened the metal door and went on in. Mrs. Sponheim handed the surrender forms to the official at the booking office and said that she was coming off the bond. She then returned to her office and later that day Sissitka called her and inquired about the possibility of being bonded out again because he did not have enough money to post a cash bond. Mrs. Sponheim told him that her husband was not there and he asked if she could bond him out. She replied that she didn't have a license, but gave him the name of another bondsman. (Testimony of J. Sponheim, B. Sponheim, Kelly, Brown, Shytle, Petitioner's Exhibits 5,6)

   CONCLUSIONS OF LAW

   
   

8. Petitioner alleges in its complaint that as a result of Respondent's actions in connection with the Sissitka incident, Respondent should be disciplined under the provisions of subsections 648.45 (1)(b), (f), (g) and (j)

   , Florida Statutes, pertinently as follows:

   
   

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

   (1) The department 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.

   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 de partment, the licensee has, in the conduct of

   affairs of 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 ...

   
   

9. Subsection 648.45(1)(b) , F.S. Petitioner failed to cite the law that Respondent allegedly violated in its complaint and, accordingly, there is no basis for imposition of discipline. The Hearing Officer is not free to speculate as to which ground for discipline under Section 648.45, F.S. might be applicable. See Lester v. State Board of Medical Examiners, 358 So.2d 923, (Fla. 1st DCA 1977).

   
   

10. Subsection 648.45(1)(g), F.S. For the same reasons as stated above, there can be no basis for discipline with regard to this ground inasmuch as Petitioner failed to specify any rule of the Department alleged to have been violated by Respondent.

    
    

11. Subsection 648.45(1)(j), F.S. The determination of whether or not Respondent by her actions demonstrated incompetence or untrustworthiness, conduct, or practices rendering her unfit to carry on the bail bond business or to make her continuance in such business detrimental to the public interest requires an evaluation of her actions in the Sissitka incident. Section 648.30,

    F.S. prohibits any person from acting in the capacity of a professional bail bondsman, limited surety agent, or runner or performing any of the functions, duties or powers for such individuals unless such person is qualified and licensed under Chapter 648, F.S. Admittedly, Respondent was unlicensed at the time of the events in question. The evidence shows that she did not purport to arrest Sissitka or otherwise take him into custody on October 15, 1980. Her initial action in taking him to her husband's office did not involve coercion and he accompanied her without objection. Her subsequent filing of the required

    surrender documents pre-signed by her husband, with the Pasco County authorities at the time Sissitka voluntarily surrendered himself was done at the direction of her husband, and could be considered as merely the performance of a clerical function. Although her activities in the above regards did not rise to the level of performing the apprehension or surrender functions, duties, or powers prescribed for bail bondsmen or runners under Chapter 648, F.S., it is concluded that they did fall within a runner's function of "keeping the defendant under necessary surveillance", as set forth in subsection 648.25 (6), F.S. (Cf.

    Moncrief v. State of Florida, Commissioner of Insurance, Case No. UU-174, First District Court of Appeal, Opinion filed June 8, 1982, 7 FLW 1216). Respondent's actions in ascertaining Sissitka's whereabouts and then taking it upon herself to escort him to her husband's office, and her subsequent actions there went far beyond secretarial or clerical functions and reasonably can be construed as falling within the surveillance duties of a runner. Such conduct falls within the ambit of Section 648.30, F.S. However, it is not believed that Respondent's conduct in the above respect renders her unfit to possible future licensing under Chapter 648, F.S. Her overzealous activity probably can be attributed to the fact that she was previously licensed as a runner, and to her close association with her husband in the bonding business. No evidence was presented by the Petitioner to show her untrustworthiness or unfitness in this regard.

    Accordingly, the allegations that Respondent should be disciplined under subsection 648.45(1)(j) F.S. have not been established. See Moncrief, supra.

    
    

12. Subsection 648.45(1)(f) , F.S. There was no showing that Respondent's actions were fraudulent or dishonest in nature, and accordingly this alleged ground for discipline has not been established.

    
    

13. Respondent contested the jurisdiction of Petitioner to take disciplinary action against her because she was unlicensed at the time of the events in question, and had not applied for a license during or since that time. Although it is unusual to find agency jurisdiction in such a situation, Section 648.45, F.S. clearly permits Petitioner to suspend or revoke the "eligibility of any person" to hold a license, and therefore it was entitled to proceed with its complaint arising out of Respondent's activities in the bail bond business.

RECOMENDATION

That the charges against Bonnie Louise Sponheim be dismissed.

DONE and ENTERED this 23rd day of June, 1982, in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of June, 1982.

COPIES FURNISHED:

Clark R. Jennings, Esquire Department of Insurance

413 Larson Building Tallahassee, Florida 32301

Ben W. Thompson, Esquire Post Office Box 466

Dade City, Florida 33525

Honorable Bill Gunter Insurance Commissioner The Capitol

Tallahassee, Florida 32301

Docket for Case No: 81-001711

Orders for Case No: 81-001711