STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE )

AND TREASURER, )

)

Petitioner, )

)

vs. ) CASE NO. 86-0462

)

SHELDON POLAKOFF, )

)

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 15, 1986, in Orlando, Florida. The issue for determination in this proceeding is whether respondent's license as a limited surety agent and an automobile inspection and warranty association salesman should be revoked, suspended or otherwise disciplined for the reasons set forth in the Administrative Complaint, as amended.

APPEARANCES

For Petitioner: Richard B. Thornburg, Esquire

Department of Insurance Legal Division

413-B Larson Building Tallahassee, Florida 32301

For Respondent: Joseph R. Fritz, Esquire

4204 North Nebraska Avenue Tampa, Florida 33603

INTRODUCTION

By a three-count Amended Administrative Complaint, respondent is charged with two separate incidents of soliciting business in a place where prisoners were confined and thereby violating the terms and conditions of his probation. More specifically, it is alleged that, in spite of being admonished by letter to cease the practice of illegal solicitation of clients, respondent did approach Ray Dittmore in the Orange County Jail on December 4, 1984, and suggested that he use respondent's services to post a bond. Respondent is similarly charged with approaching James Thomas Barrow and Donna Ann Brino to offer his services to write a bond in the Seminole County Jail on May 30, 1985, and in persisting to solicit their business after they informed him that they had made other arrangements. Count III alleges that the above allegations constitute a violation of the terms and conditions of his one-year probation imposed by Order dated November 2, 1984.

In support of the charges against the respondent, the petitioner presented the testimony of James Mott, James Barrow, Michele Barrow, Donna Brino, Warren Linsey, George Cox and Ray Dittmore. Petitioner's Exhibits 2 and 5 were received into evidence.

The respondent testified in his own behalf and his Exhibits A and B were received into evidence.

Subsequent to the hearing, both parties submitted proposed findings of fact and proposed conclusions of law. To the extent that the parties' proposed factual findings are not included in this Recommended Order, they are rejected for the reasons set forth in the Appendix hereto.

FINDINGS OF FACT

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

1. Upon the suggestion of a special investigator with the Department of Insurance, a letter dated April 23, 1984, and signed by Northeast Regional Director Thomas P. Poston was written to the respondent at the address listed for him in the Tallahassee licensing office. This letter advised the respondent that the Department of Insurance and Treasurer had received complaints from Orange and Seminole Counties that he was recruiting clients during initial court appearances and that this appeared to be a violation of Section 648.44(b) of the Florida Statutes. The letter admonished respondent to immediately terminate such solicitation and advised him that any additional complaints would bring further action. The evidence does not establish whether respondent received this letter of April 23, 1984.

   
   

2. The respondent was involved in another administrative proceeding with the petitioner, the facts of which were not brought into evidence in the instant proceeding. In the former proceeding, Case No. 84-L-3155, a Consent Order was entered which required respondent to pay an administrative fine of $1,000.00 and placed him on probation for a period of one year with the condition that he strictly adhere to the Florida Insurance Code.

   
   

3. On or about December 4, 1984, Kenneth Martin was working on the property of Ray Dittmore. Respondent had previously, in July of 1984, written three bailbonds for Mr. Martin, all of which had been forfeited due to Mr. Martin's failure to appear in court. Upon learning of the whereabouts of Mr. Martin, respondent sent his employee, George Burfield, to Mr. Dittmore's property to apprehend Martin and return him to custody. Mr. Dittmore was present when Mr. Burfield arrived to take Martin into custody and felt that Mr. Burfield had misconducted himself during the apprehension process. After the incident, Dittmore telephoned respondent to complain about the conduct of his employee Burfield.

   
   

4. Later that same day, Mr. Dittmore went to the Orange County Jail with his attorney, Warren Linsey, for the purpose of posting a cash bond for Kenneth Martin. There were prisoners confined in the Orange County Jail on December 4, 1984. While Mr. Dittmore was at the booking window counting his money, approximately $3,000.00, respondent approached him. Mr. Linsey recalls that respondent immediately introduced himself as a bondsman and offered his services. George Cox, also a bondsman, was present and recalls that when respondent saw Mr. Dittmore counting money at the window, respondent approached him, stated that he was a bail bondsman and informed him that Dittmore did not

   have to post the cash and could use him (respondent) instead. Mr. Dittmore recalls that after he told the deputy that he wished to bond out Kenneth Martin, respondent approached him at the window and asked him if he was the Dittmore he had spoken to earlier that day. Dittmore then recalls that respondent told him he didn't have to put up $3,000.00 because respondent could sell him a bond.

   According to Mr. Dittmore, respondent also told him that he wouldn't bond Martin out, that Dittmore was "dumb" for doing so and would end up losing his money.

   Respondent, who had previously written about $1,800.00 worth of bonds on Kenneth Martin and only received $216.00 as a remission for returning him to custody on December 4, 1984, recalls the incident at the Orange County Jail with Mr.

   Dittmore as follows. From his nearby position at the booking window, he could overhear and see that a "Dittmore" was there to post a bond for Kenneth Martin. After inquiring of Mr. Dittmore if he was the same Dittmore he had spoken with earlier, respondent introduced himself, apologized for what had happened earlier that day, begged him not to bail Martin out and told him he was foolish for doing so. He does recall later saying to George Cox that there were better ways to invest cash. Because respondent had previously lost money on Kenneth Martin, he had no intention of writing another bond on him on the same date he had been responsible for Martin's return to custody.

   
   

5. Joseph Barrow was arrested on May 29, 1985, and was taken to the Seminole County Jail. At the time of his arrest, he had been drinking alcoholic beverages. Although subpoenaed to appear as a witness in this administrative hearing, Joseph Barrow was released and was not called upon to testify by the petitioner. According to sworn testimony taken on January 28, 1986, Joseph Barrow recalls that after he was fingerprinted at the Seminole County Jail on the evening of May 29, 1985, he called home to have his wife contact a bail bondsman to get him out of jail. He does not know if his family did contact a bondsman that night. However, he did speak with a bail bondsman that night at the jail, but could not remember his name. The description of the bondsman given in Joseph Barrow's statement of January 28, 1986, matched the respondent's physical appearance at the hearing. Joseph's wife, Michele Barrow, testified that her husband telephoned her the night he was arrested and asked her to find a bondsman. Neither the time of that telephone conversation nor the family's immediate response to that request were established at the hearing.

   
   

6. On May 30, 1985, James Barrow, Joseph's brother; Donna Brino, Joseph's sister; and Michele Barrow, Joseph's wife, were at the Seminole County Jail for the purpose of getting Joseph out of jail. There were prisoners confined at the jail on that date. James recalls that, as he was standing in line to obtain information regarding his brother, respondent was also waiting in line and asked him why he was there. James replied that he was there to get his brother out of jail and asked respondent if he was a bondsman. Respondent stated that he was and asked James who his brother was. After James told respondent that his brother was Joe Barrow, respondent referred to a white piece of paper and replied that he had talked to Joe the previous night and had advised him to wait until the hearing that morning to see if his bond would be reduced. When James learned that he would need $250.00 to get his brother out of jail, he left the jail and went to the bank. When he returned to the jail, respondent approached him and asked him if he had gotten the $250.00. James recalls that when he replied that he had, respondent said "Well, give me the money, and I'll get your brother out of jail." James did not give respondent the money because his sister and sister-in-law who were standing behind respondent, were shaking their head "no." Joseph told James that he had spoken to a bondsman the night before, but could not remember the bondman's name.

7. Michele Barrow recalls that as James was waiting in line at an information window, respondent approached him, asked if he needed a bondsman, and told James that he had spoken to Joseph the night before. At that point in time, Donna Brino, Joseph's sister, was on the telephone trying to contact a bondsman.

   
   

8. Donna Brino did not hear the conversation which occurred between James Barrow and the respondent prior to James leaving the jail for the bank. She was aware that Joseph had spoken to a bondsman the night before and that he did not remember who that was. Because of her use of pronouns in lieu of names, Ms. Brino's description of the events which transpired on May 30th at the Seminole County Jail is unclear. She apparently telephoned Action Bail Bonds and left a message. While waiting for the message to be returned, she saw Bruce Moncrief, another bondsman, and spoke with him about writing her brother's bond. She stated that after she had already made arrangements with bondsman Bruce Moncrief, respondent told her she was stupid for using Moncrief and attempted to obtain the money from her brother James.

   
   

9. Respondent testified that he was called to the Seminole County Jail by someone in the Barrow family on the evening of May 29, 1985. He went to the jail and spoke with Joseph Barrow. Upon learning that Joseph could not then afford to arrange for the $5,000.00 bail which had been set, respondent advised Joseph to wait until the next day when the amount of bail would be reduced. Respondent states that Joseph told him that his brother would get some money and would be contacting him. Respondent told Joseph that he would be at the jail the next day for the first appearances. Respondent also states that Joseph's brother, James, called him the next morning and he told James that it was better to wait until the first appearance and the reduction of the bond, that he would be at the jail for first appearances and that he would meet him there at that time. Respondent admits that he did approach James at the Seminole County Jail because he looked like his brother, Joseph, and said "I'm the one you're looking for. I talked to you this morning." After Joseph's bond was reduced to

   $2,500.00, respondent communicated this to James, and James left to go to the bank to get the money. At this point, respondent believed that he was going to write the bond, so he began preparing the papers and waited 30 to 45 minutes for James to return with the money. It was not until James returned from the bank that respondent learned he was not going to write Joseph's bond and that the family had obtained Mr. Moncrief instead.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Department of Insurance and Treasurer is seeking to revoke, suspend or otherwise discipline respondent's license on the grounds that he twice violated Florida Statutes, Section 648.44(1)(b)'s prohibition against soliciting business in places where prisoners are confined, and thereby also violated Section 648.45(2)(j), Florida Statutes, and the terms of his probation. In disciplinary proceedings against a licensee, the agency or licensor bears the burden of proving by competent, substantial evidence the allegations of its complaint.

    
    

11. In this proceeding, the testimony regarding both incidents is conflicting, and there is not competent, substantial evidence to support a conclusion that respondent unlawfully solicited the business of either the Barrow family or Mr. Dittmore in the Seminole County or Orange County Jails. With regard to Mr. Dittmore, the evidence is undisputed that respondent had previously written bonds on Kenneth Martin; had had those bonds forfeited due to Mr. Martin's failure to appear in court and had been responsible for having Mr.

    Martin apprehended and reincarcerated. It is highly unlikely that respondent would desire to rebond an individual he had returned to custody on the same day. Mr. Dittmore testified that respondent initiated the conversation between them by acknowledging that he knew who Mr. Dittmore was from their earlier conversation that day regarding Kenneth Martin. While respondent's criticism of Mr. Dittmore's wisdom in providing a cash bond for Kenneth Martin may not have been professional or in good taste, it can not be concluded that respondent was soliciting Mr. Dittmore's business in the Orange County Jail on December 4, 1984.

    
    

12. The same result is found with regard to the May 30, 1985, incident concerning the Barrow family in the Seminole County Jail. The respondent's explanation of the events is equally as credible as any of the conflicting versions related by members of the Barrow family. Respondent believed from his conversation with Joseph Barrow the previous evening that he was going to write the bond. His conversation with James Barrow, as related by both the respondent and James Barrow, is consistent with this belief. No other witnesses contradicted this testimony. At best, it appears that there was confusion among the members of the Barrow family as to the selection of a bail bondsman for brother Joseph, and that the respondent, having spoken to both Joseph and James, reasonably believed that he was to write the bond. Again, while it may have been unprofessional for respondent to make derogatory remarks to Donna Brino concerning a competitor, such remarks do not constitute unlawful solicitation of business.

    
    

13. The term "solicit" connotes more than a discussion of business. It implies a serious request or invitation to obtain something or to have someone do a particular thing. With regard to the Dittmore incident, it cannot be concluded that respondent was "soliciting" the business of Mr. Dittmore. He did not want that business, having previously lost money on Kenneth Martin and expended time and effort to return Martin to custody. His attempts to warn Mr. Dittmore concerning Martin's potential for not appearing for court is not solicitation within the meaning of Florida Statutes, Section 648.44(1)(b). Likewise, with regard to the Barrow incident, respondent reasonably believed, from his conversations with Joseph the evening before and James that morning, that he had already made the necessary arrangements on this bond. One can not "solicit" business which he already has. At most, respondent's conversations with both James Barrow and Donna Brino were simply in the nature of a follow-up on the commitments he believed he had already made.

    
    

14. Having failed to prove a violation of Section 648.44(1)(b), Florida Statutes, respondent cannot be found guilty of violating the terms of his probation, as charged in Count III of the Administrative Complaint.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, IT IS RECOMMENDED that the Amended Administrative Complaint against the respondent be DISMISSED.

Respectfully submitted and entered this day of September, 1986.

DIANE D. TREMOR

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 10th day of September, 1986.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-0462

The proposed findings of fact submitted by the petitioner and the respondent have been carefully considered and are accepted and/or incorporated in this Recommended Order, except as noted below:

Petitioner

6 and 7. Rejected, not supported by competent, substantial evidence.

8 and 9. Rejected. These ultimate conclusions are not supported by competent, substantial evidence.

11. Rejected as contrary to the greater weight of the evidence.

1. Rejected as contrary to the greater weight of the evidence.

2. Rejected, not supported by competent, substantial evidence.

19 and 20. Rejected as Unsupported by the evidence.

Respondent - Respondent's proposals contain unnumbered and mixed factual findings and legal conclusions. Each of the topics included has been addressed in either the Findings of Fact or Conclusions of Law section of this Recommended Order, except:

Page 2, first paragraph Rejected as irrelevant and

immaterial.

Page 4, last full paragraph Rejected, Unsupported and

irrelevant in light of factual findings and legal conclusions.

COPIES FURNISHED:

Richard W. Thornburg, Esquire Bill Gunter

Department of Insurance Insurance Commissioner

Legal Division and Treasurer

413-B Larson Building Department of Insurance Tallahassee, Florida 32301 413-B Larson Building

Tallahassee, Florida 32301

Joseph R. Fritz, Esquire 4204 North Nebraska Avenue Tampa, Florida 33603

Docket for Case No: 86-000462

Orders for Case No: 86-000462