STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BARRY STEPHEN YANKS, )

)

Petitioner, )

)

vs. ) CASE NO. 89-1531

)

OFFICE OF THE TREASURER, )

DEPARTMENT OF INSURANCE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on June 7, 1989, in Miami, Florida.

APPEARANCES

For Petitioner: Ana Hernandez-Yanks, Esquire

1481 N.W. 7th Street Miami, Florida 33125

For Respondent: Robert V. Elias, Esquire

Office of Legal Services Room 412, Larson Building

Tallahassee, Florida 32399-0300 STATEMENT OF THE ISSUES

At issue in this proceeding is whether petitioner's application for examination as a bail bondsman should be approved.

PRELIMINARY STATEMENT

By letter dated February 7, 1989, respondent denied petitioner's application for examination as a bail bondsman. The gravamen of respondent's denial was its contention that on December 9, 1987, petitioner had accepted jewelry as collateral for a bond, and that such jewelry had not been timely returned to its owner. As a consequence, respondent concluded that petitioner had acted as a bail bondsman without being licensed as such, and that he lacked the fitness and trustworthiness to engage in the bail bond business. Petitioner filed a timely request for formal hearing to contest respondent's decision, and the matter was referred to the Division of Administrative Hearings with the request that a hearing officer be appointed to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At final hearing, petitioner testified on his own behalf, and called Nestor Tabares, Gene Shyrock, and Pauline Wolfson, as witnesses. Petitioner's exhibits 1-10 were received into evidence. Respondent called no witnesses, but its exhibits 1-3 were received into evidence.

The transcript of hearing was filed July 14, 1989, and the parties were granted leave until July 29, 1989, to file proposed findings of fact.

Accordingly, the parties waived the requirement that a recommended order be rendered within thirty days of the date the transcript is filed. Rule 221- 6.031(2), Florida Administrative Code. The parties' proposed findings are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Petitioner, Barry Stephen Yanks (Yanks), has applied to respondent, Department of Insurance (Department), for examination as a bail bondsman (limited surety agent) pursuant to Chapter 648, Florida Statutes.

   
   

2. By letter dated February 7, 1989, the Department denied Yanks' application. The gravamen of the Department's denial was its contention that on December 9, 1987, Yanks had accepted jewelry as collateral for a bail bond, and that such jewelry had not been timely returned to its owner. As a consequence, the Department concluded that Yanks had acted as a bail bondsman without being licensed as such, and that he lacked the fitness and trustworthiness to engage in the bail bond business. Yanks filed a timely petition for formal hearing to contest the Department's action.

   
   

3. At hearing, the proof failed to demonstrate that Yanks had acted inappropriately as contended by the Department. Rather, the proof demonstrated that when Yanks accepted jewelry from Corrine Hough on December 9, 1987, as collateral for a bail bond to be written on her son, that he was acting on behalf of the attorney for American Bankers Insurance Company (American), the proposed surety. Under the arrangements made with Ms. Hough, the collateral was to be held by the attorney for American because she did not have confidence in the bondsman who was to write the bond, one Nestor Tabares, to safeguard her property. Accordingly, at the request of American's attorney, Yanks secured the collateral from Ms. Hough, gave her a receipt, and delivered the jewelry back to the attorney. After delivery of the jewelry to the attorney, Yanks had no further contact with or control over it.

   
   

4. While there was a delay of some 10 months following the termination of the bond that was ultimately written on Ms. Hough's son before her jewelry was returned, such delay was not occasioned by or within the control of Yanks.

   
   

5. In sum, Yanks did not act as a bail bondsman on December 9, 1987, and did not exert any control over Ms. Hough's jewelry such that he might be held accountable for any delay in its return.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. Yanks, as the applicant for licensure, carries the ultimate burden of persuasion to demonstrate entitlement throughout the proceeding. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA

   1981). The Department, as the licensing agency, is, however, required by law to specify with particularity the basis for any denial of an application for licensure. Section 120.60(2), Florida Statutes.

   
   

8. Here, the sole basis for the Department's denial of Yanks' application was its contention that he acted as a bail bondsman in the Hough transaction and that he failed to timely return the collateral to her. The proof fails, however, to support the Department's contention but, rather, demonstrates that Yanks did not act as a bail bondsman, and that he had no control of or responsibility for Ms. Hough's jewelry after delivering it to American's attorney. Accordingly, Yanks' application for examination as a bail bondsman should be approved.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered granting the application of

Petitioner, Barry Stephen Yanks, for examination as a bail bondsman (limited

surety agent) pursuant to Chapter 648, Florida Statutes.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of October 1989.

WILLIAM J. KENDRICK

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 2nd day of October 1989.

APPENDIX

The proposed findings of fact submitted on behalf of Yanks have been adopted in substance in paragraphs 1-5.

The purposed findings of fact submitted on behalf of the Department are addressed as follows:

1. Subordinate or not necessary to the result reached.

2. To the extent supported by the proof, adopted in paragraph 3, otherwise rejected.

3. Adopted in paragraph 3.

4. Not relevant.

5 & 6. Adopted in substance in paragraph 4.

COPIES FURNISHED:

Robert V. Elias, Esquire Office of Legal Services

412 Larson Building Tallahassee, Florida 32399-0300

Ana Hernandez-Yanks, Esquire 1481 N.W. 7th Street

Miami, Florida 33125

The Honorable Tom Gallagher State Treasurer and

Insurance Commissioner The Capitol, Plaza Level

Tallahassee, Florida 32399-0300

Don Dowdell General Counsel

Department of Insurance and Treasurer

The Capitol, Plaza Level Tallahassee, Florida 32399-0300

Docket for Case No: 89-001531

Orders for Case No: 89-001531