STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF INSURANCE AND ) TREASURER, )
)
Petitioner, )
)
vs. ) CASE NO. 90-0406
)
DAVID LLOYD PATTERSON, )
)
Respondent. )
) DAVID LLOYD PATTERSON, )
)
Petitioner, )
)
vs. ) CASE NO. 90-0584
) DEPARTMENT OF INSURANCE AND ) TREASURER, )
)
Respondent. )
)
RECOMMENDED ORDER
Upon due notice, these consolidated causes came on for formal hearing on July 11, 1990 in Jacksonville, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Willis F. Melvin, Jr., Esquire
Division of Legal Services
412 Larson Building
Tallahassee, Florida 32399-0300
For Respondent: David R. Fletcher, Esquire
Fletcher and Fletcher
541 East Monroe Street Jacksonville, Florida 32202
Consolidated by February 11, 1990 Order of Hearing Officer P. Michael Ruff with DOAH Case No. 90-0584 wherein Respondent Patterson is Petitioner Patterson contesting DOI's denial of his application for resident license to represent Amwest Surety Insurance Company as bondsman. DOI had denied that license application upon the same grounds as were alleged in the Administrative Complaint. The cases were tried together before the undersigned, and the evidence and transcript apply to both cases jointly and severally.
DOI presented the oral testimony of Ralph Bunch Collins, Susan Adele Gilbert, and Henry Steve Robinson and had four exhibits admitted in evidence.
Several of these are composite exhibits with numerous subparts. (TR 32-33, 54) Patterson presented the oral testimony of Gilbert Clark, Larry Wooten, Jerelyn
Rodriquez, and Edward J. Miller and testified on his own behalf. He had two exhibits admitted in evidence. (TR 88, 98) Transcript references are given here because the transcript's table of contents does not accurately reflect the body of the transcript or the oral rulings contained within the transcript itself.
All timely-filed proposed findings of fact have been ruled upon in the Appendix to this Recommended Order, pursuant to Subsection 120.59(2) F.S.
FINDINGS OF FACT
Mr. Patterson is currently eligible for licensure and is licensed in this state as a limited surety agent (bail bondsman).
At all times material to the Administrative Complaint, Mr. Patterson was eligible for licensure and was licensed in Florida as a limited surety agent (bail bondsman) with Crews Bonding Agency located in Jacksonville, Duval County, Florida. As such, he was a full-time employee of the Crews Bonding Agency and worked the 4:30 p.m. to 8:00 a.m., or night shift, each night. Mr. Patterson was the only licensed bail bondsman on this shift at the Crews Bonding Agency.
Ralph Bunch Collins was also a full-time employee of Crews Bonding Agency at all times material, and at all times material, Mr. Collins worked the night shift with Mr. Patterson. Mr. Collins was recognized by Mr. Patterson and his employer as an administrative assistant whose job entailed clerical duties with regard to the bonding process. Mr. Patterson and Mr. Collins worked as a team. Mr. Collins is not a limited surety agent, bail bondsman, runner, or permittee under Chapter 648, F.S.
At all times material, Jerelyn Rodriguez, ne' Langtree, was licensed in Florida as a limited surety agent (bail bondsman) with Crews Bonding Agency. She, also, was a full-time employee of that agency and was its designated office manager. Mrs. Rodriquez worked the hours of 8:00 a.m. to 4:30 p.m. daily with an administrative assistant named Mrs. Cook, and together Rodriquez and Cook constituted the Crews Bonding Agency's day shift team.
The 1983 version of the statute under which Mr. Patterson is charged in the Administrative Complaint read as follows:
648.441 Furnishing supplies to an unlicensed bail bondsmen prohibited: civil liability and penalty.--
No insurer, bail bondsman, runner, or permittee under this chapter shall furnish to any person any blank forms, applications, stationery, or other supplies to be used in soliciting, negotiating, or effecting bail bonds until such person has received from the department a license to act as a bail bondsman and has duly qualified as such.
Any insurer, licensee, or permittee who furnishes to any bail bondsman or other person not named or appointed by `the insurer represented any of the supplies mentioned in subsection (1) and accepts any basil bond business from or writes any bail `bond
business for such bail bondsman, person, or agency shall be subject to civil liability to any insured of such insurer to thee same extent and in the same manner as if such bail bondsman or other person had been appointed, licensed, or authorized by the insurer, general agent, or bail bondsman to act in its or his behalf by the department. [Emphasis supplied]
On March 27, 1984 a Consent Order was entered in the Circuit Court in and for Duval County, Florida, in the case styled, Jack I. Etheridge and F.G.C. Bonding and Insurance Corporation v. State of Florida and State of Florida Department of Insurance, Case No. 82-10537. That Consent Order provided, in pertinent part, as follows:
4. Florida statute 648.441(1) likewise must be given a liberal and common sense application in order to preserve its constitutionality. It is the intent of the Legislature, as interpreted by this Court that said subsection is designed to prohibit licensed bail bondsmen from allowing non- licensed persons to actually conduct a (sic) legitimate and licensed activities of a licensed bail bondsman. Therefore this Court finds that it is a constitutionally permissable (sic) legislative act to prevent licensed person (sic) from providing non- licensed persons with forms and supplies of the trade that would permit the non-licensed persons to violate the law. However, this does not preclude clerical activities by non- licensed persons under the direct supervision of a licensed person to the extent that it is consistent with the general intent of said section. (Emphasis supplied) [Patterson Exhibit 1]
The wife of Jack I. Etheridge, who was a plaintiff in the foregoing civil lawsuit, was an owner of the Crews Bonding Agency at all times material to the instant administrative proceeding. The foregoing Circuit Court Consent Order to which DOI was a party is the only relevant interpretation by a court of competent jurisdiction of Section 648.441 F.S. which either party hereto or the undersigned has been able to discover. DOI put on no expert evidence of agency construction of the statute either formally by rule or informally by policy.
Subsequent to that Circuit Court Consent Order, the statute interpreted therein [see FOF 5, supra] was amended to add subsection (3), as follows:
Any person who violates this section is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
All three statutory subsections were in effect at all times material to the administrative charges against' Mr. Patterson.
During the night shift of New Year's Eve, December 31, 1988, Susan Miller a/k/a Sharon Miller, who was then the wife of James Edward Miller, contacted the Crews Bonding Agency by telephone and relayed certain necessary information to Ralph Collins as a predicate to securing a bond to get her husband out of the Duval County Jail. In turn, Mr. Collins called the jail and received basic information for making out the necessary bonding papers. Mrs. Miller arrived at the bonding agency and Mr. Collins prepared certain paperwork for her signature, that of her husband, and that of the Mr. Patterson as bail bondsman. It is the unrefuted testimony of Mr. Patterson, Mr. Collins, Jerelyn Rodriquez, and Gilbert Clark that in doing so, Mr. Collins was conforming to the standard operating procedure of the Crews Bonding Agency and the custom in the bonding trade at least as far as that trade has been practiced within Duval County, Florida, since the entry of the March 27, 1984 Consent Order. Patterson Exhibit 2 and the testimony of Correctional Officer Larry Wooten established that, provided the licensed bondsman presents the bond and personally receives the prisoner into his custody, the foregoing clerical practice and procedure has been acquiesced-in by a published policy of the Duval County Sheriff's Office and by county jail personnel, of which Mr. Wooten is one.
There was unrefuted testimony that without such clerical help, a licensed bondsman could not function 24 hours a day, as is common in the trade.
It is also the unrefuted testimony of Mr. Patterson, Mr. Collins, and Mrs. Rodriquez that at all times material to the Miller transaction, Mr. Collins was subject to the supervision of Mr. Patterson, that Mr. Patterson had the absolute right to alter any document prepared by Mr. Collins prior to signing the Miller bond, and that Mr. Patterson ultimately could have rejected underwriting Mr. Miller's bond if, after Mr. Patterson's review, the documents Mr. Collins had prepared did not conform to the insurance law, rules, or standards to which Mr. Patterson, as a licensee, was bound to conform. The foregoing testimony is further supported by the testimony of Gilbert Clark. Mr. Clark is a licensed bail bondsman who is not now and never has been associated with the Crews Bonding Agency. He testified that Mr. Patterson could ultimately have refused to place the Miller bond even if Mr. Patterson's only dissatisfaction upon his review of the documents prepared by Mr. Collins had been the sufficiency of the collateral or premium provided by the Millers.
With regard to the Miller transaction, Mr. Collins prepared the Indemnity Agreement (DOI Exhibit 2e) for signature by Mr. Miller's wife, which Mr. Collins notarized with certificate, seal, and stamp. Collins prepared a Promissory Note (DOI Exhibit 2f) and signed on the line provided for a witness to Mrs. Miller's signature but without applying his notary certificate, seal, or stamp. Collins prepared a Premium Receipt (DOI Exhibit 2g) and signed on the line acknowledging that the premium had been "received by" him in the form of a check from Mr. and Mrs. Miller. The nature of the Premium Receipt and the Collateral Receipt does not necessarily require the Millers' signatures, but Mr. Collins testified that his own signature on the Premium Receipt was meant to signify that he had witnessed signatures and that he had signed it as a notary but that he did not affix a notary certificate, seal, and stamp because he saw no reason for those formalities. Because of the requirements of Chapter 117
F.S. governing notaries public, because the document speaks for itself, and because Mr. Collins testified that he, in fact, received the premium, his testimony that he signed the Premium Receipt for the Miller transaction only as a notary or witness is not credible, particularly since the exhibit (DOI Exhibit 2g) does not bear the Millers' signatures. Mr. Collins prepared the Collateral Receipt (also DOI Exhibit 2g) and received the collateral, signifying same by
his signature. (TR 40-41). However, Mr. Patterson signed on the Miller bond and went through all the bond papers, including the foregoing, with Mr. Miller after Mr. Patterson personally physically obtained Mr. Miller's release from jail.
On July 7, 1989, Henry A. Robinson went to Crews Bonding Agency in an effort to bond his son, Henry Steve Robinson, out of the Duval County Jail. All of the father's negotiations were with Mrs. Rodriquez. The father did not testify.
At all times material to the Robinson transaction, both Mrs. Cook and Mr. Collins had signs on their respective desks, proclaiming them to be administrative assistants, and a sign on Mr. Patterson's desk proclaimed him to be a bail bondsman.
When Mr. Patterson and Mr. Collins arrived at Crews Bonding Agency for the July 7, 1989 night shift, some paperwork had already been prepared by Mrs. Rodriquez and others. Mrs. Rodriquez had already reviewed all the papers prepared by someone else, and Mrs. Rodriquez had tentatively committed to underwriting the bond on Henry Steve Robinson. Mr. Patterson did not thereafter "second guess" Mrs. Rodriquez's initial work or judgment despite his absolute right to reject the bond for all the reasons aforesaid in FOF 12.
Some further Robinson transaction paperwork was prepared by Mr. Collins after he came on duty. The nature of several of these documents did not require either the signature of the father, the mother, or the son or the notarizing thereof, but the evidence indicates that Mr. Collins thought some of them did. Premium Receipt 127003 (DOI Exhibit 4f, apparently one of two such receipts) and the Collateral Receipt (DOI Exhibit 4b) for this transaction were signed by Mr. Collins on the "received by" lines. He testified that he signed these only as a Crews employee, i.e., a clerk administrative assistant, and as a notary but without affixing his notarial seal. Collins testified that he signed as a witness for the father's signature on the witness line as a Crews employee for the Contingency Promissory Note (DOI Exhibit 4c, TR 48-50), that he did not notarize the note initially when the senior Mr. Robinson signed it in his presence because arrangements were made for the senior Mr. Robinson's convenience to allow Mrs. Robinson to sign the following day, and that the next day, Mr. Collins just witnessed on the other side of that document. However, the documentary evidence (DOI Exhibit 4c) is clear that Mrs. Robinson (the mother) never signed the Contingency Promissory Note. Mr. Collins testified that he signed as a Crews Bonding Agency employee and then notarized with a certificate, seal, and stamp the Indemnity Agreement to the effect that it had been signed by Mr. Robinson's father and mother when in fact the mother never signed that document. (TR 52-56, DOI 4e). Due to the provisions of Chapter 117 F.S., the discrepancy between the exhibits and the testimony, and the vacillation of Mr. Collins in giving his oral testimony, it is found that contrary to Mr. Collins' oral testimony, he was confused or uninformed as to his actual function with regard to the Robinson transaction. However, Mr. Patterson reviewed all the Robinson papers and documents and signed the General Appearance Bond as surety and as attorney-in-fact and an agent of Crews Bonding Agency.
Mr. Patterson also personally effectuated Henry Steve Robinson's release from jail on July 7, 1989.
Henry Steve Robinson (the son) had been bonded out of the Duval County Jail by the team of Patterson and Collins of the Crews Bonding Agency on at least two occasions, and due to Mr. Robinson's confusion of dates, his testimony concerning exactly what papers he went over with Mr. Patterson or anyone else on July 7, 1989 was somewhat vague. However, he was very clear on some points:
Mr. Collins never said he was a bail bondsman, it was Mr. Patterson who signed Robinson out of jail each time, and Robinson signed papers in the bonding agency office each time. Robinson believed that Mr. Patterson was the person who explained all the papers to him in Collins' presence on the date in question, but could not be sure.
Mr. Collins and Mr. Patterson asserted that as of the July 11, 1990 formal hearing, Crews Bonding Agency clerical personnel are no longer permitted to sign premium and collateral receipts. This instruction was given in anticipation of amendments to Section 648.441 F.S. which were due to go into effect October 1, 1990.
Although Mrs. Miller did not testify, the evidence as a whole from other witnesses supports the reasonable inference that this case arose partly because she complained to DOI when Mr. Collins and other Crews Bonding Agency employees refused to summarily reincarcerate her husband upon her oral complaints of domestic problems. No finding has been made concerning what impression of Mr. Collins was formed by Mrs. Miller or concerning the state of Mrs. Miller's mind because the evidence presented on those issues was speculative and not the type of hearsay which would explain or supplement direct and probative evidence.
Neither Mr. Miller or Mr. Henry Steve Robinson appeared to have any complaints with the bonding process or participants.
CONCLUSIONS OF LAW
DOAH Case No. 90-0406 (Disciplinary Case):
The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause. See, Subsection 120.57(1) F.S.
Mr. Patterson is charged in Count I of the Administrative Complaint with violating Subsections 648.441(1) and (2) and Section 648.30 F.S. with regard to the Miller transaction. He is charged in Count II of the Administrative Complaint with violating the same statutes with regard to the Robinson transaction.
Subsections 648.441(1), (2), and (3) F.S. as in effect at all times material provided as follows:
648.441 Furnishing supplies to an unlicensed bail bondsmen prohibited; civil liability and penalty.--
No insurer, bail bondsman, runner, or permittee under this chapter shall furnish to any person any blank forms, applications, stationery, or other supplies to be used in soliciting, negotiating, or effecting bail bonds until such person has received from the department a license to act as a bail bondsman and has duly qualified a's such.
Any insurer, licensee, or permittee who furnishes to any bail bondsman or other person not named or appointed by the insurer represented any of the supplies mentioned in subsection (1) and accepts any bail bond
business from or writes any bail bond business for such bail bondsman, person, or agency shall be subject to civil liability to any insured of such insurer to the same extent and in the same manner as if such bail bondsman or other person had been appointed, licensed, or authorized by the insurer, general agent, or bail bondsman to act in its or his behalf by the department.
Any person who violates this section is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. (Emphasis supplied)
All of Section 648.441 F.S. was set to sunset, effective October 1, 1990, pursuant to Section 51, Chapter 84- 103, as amended by Section 5, Chapter 87-321, and scheduled for review pursuant to Section 11.61.
At all times material, Section 648.30 F.S. (likewise set to sunset October 1, 1990) provided, in pertinent part, as follows:
648.30 License required.--No person shall act in the capacity of a bail bondsman 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 is qualified and licensed as provided in this chapter.
Although Mr. Patterson has been charged in the Administrative Complaint under Section 648.30 and Subsection 648.441(2) F.S., these would seem to be charges without an administrative remedy, as it were.
Assuming arguendo, but not ruling, that Section 648.30 F.S. might be sufficient to prosecute Mr. Collins for unauthorized practice as a bondsman or might be sufficient for a Circuit Court to enjoin him as an unlicensed person from engaging in bonding activities, that statutory section still does not prohibit or provide a remedy for anything that Mr. Patterson, as a licensed person, has done or not done.
The primary thrust of Subsection 648.441(2) F.S. appears to be intended to establish a valid contract between an insurer and one who otherwise might be victimized by an unlicensed person who has used the insurer's forms with the insurer's authorization. Assuming, arguendo, but not ruling, that Subsection 648.441(2) F.S. also permits any insured to sue Mr. Patterson, the bail bondsman, in a civil action and, upon proper proof, obtain a civil liability judgment against him for some proscribed activity of Mr. Collins or to enforce against Mr. Patterson any bond written by Mr. Collins while under Mr. Patterson's authorization or supervision, that statutory subsection still does not authorize the undersigned independent Hearing Officer or the prosecuting disciplinary agency to do anything with regard to Mr. Patterson in this administrative forum.
Likewise, DOI's argument that the amendment adding Subsection 648.441(3) F.S., which establishes misdemeanor status for acts proscribed in Subsections 648.441(1) and (2) F.S., is somehow controlling in this forum is hereby rejected. Although Mr. Patterson was charged in the Administrative
Complaint with violating Subsections (1) and (2), he has not been charged in the Administrative Complaint pursuant to Subsection 648.441(3) F.S., and rightly so; prosecution of misdemeanors is the province of the elected State Attorney for the appropriate judicial circuit
There is no remedy or punishment for misdemeanors in this administrative forum.
Mr. Patterson contended that new statutory language within an October 1, 1990 amendment would exonerate him from the charges herein.
In light of the dicta contained at page 823 of the opinion entered in
A. Abraham Chevrolet Company, Inc. v. Collection Chevrolet, 533 So.2d 821 (Fla. 1st DCA 1988), 1/ the undersigned has taken official recognition of the amendments to Subsection 648.441(1) F.S. effective October 1, 1990 pursuant to
H.B. 3589, pages 35-36, which provide:
An insurer, managing general agent, bail bondsman, or runner appointed under this chapter may not furnish to any person any blank forms, applications, stationery, or other supplies to be used in soliciting, negotiating, or effecting bail bonds until such person has received from the department a license to act as a bail bondsman and is appointed by the insurer. This section does not prohibit an unlicensed employee, under the direct supervision and control of a licensed and appointed bail bondsman from possessing and executing in the bail bond agency, any forms, except for powers of attorney bond forms and collateral receipts, while acting within the scope of his employment. (Emphasis supplied)
However, Mr. Patterson's contention is rejected. This October 1, 1990 amendment was not in effect until after the occurrence of all actions giving rise to the Administrative Complaint, after the date of filing the Administrative Complaint, and even after the date of formal hearing. Absent some clear proof that the 1990 amendments are intended to be retroactive, they cannot control this disciplinary case. Because license disciplinary cases are penal in nature and ,thus must be interpreted in favor of the accused, and are also cases in which the charging document must be precise and the proof against the accused must be clear and convincing, the Collection Chevrolet dicta is not persuasive in this case.2* See, Willner v. Dept. of Professional Regulation, Board of Medicine, Case No. 89-2237 (Fla. 1st DCA June 26, 1990) [15 FLW 1723]; Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Young v. Althenhaus, 472 So.2d 1152 (Fla. 1985); Farzad v. Dept. of Professional Regulation, 443 So.2d 373 (Fla. 1st DCA 1983); Rotstein v. Department of Professional Regulation, 397 So.2d 305 (Fla. 1st DCA 1981); Bowling v. Dept. of Insurance., 394 So.2d 165 (Fla. 1st DCA 1981); Bach v. Bd of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1989); Buchman v. State Bd of Accountancy, 300 So.2d 671 (Fla. 1974).
The March 27, 1984 Circuit Court Order is another matter, however. Clearly, it is not res judicata to either the disciplinary or the licensing case, since the thing sued for, cause of action, parties to the action, and the quality of the parties is not identical, but, in the absence of any appellate
opinion on the same issue, it is appropriate to refer to relevant Circuit Court opinions, particularly where the reasoning therein appears sound, as here. See,
13 Fla. Jur. 2d, "Courts and Judges" Sec. 136, 140, 142-144; 49 Fla. Jur. 2d, "Statutes" Sec. 163, 164, 168. Clearly, the Circuit Court Consent Order is not binding in these cases, but it may be considered instructive. For that purpose, the order's significant language is,
. . . it is the intent of the Legislature, as interpreted by this Court that said subsection is designed to prohibit licensed bail bondsmen from allowing non-licensed persons to actually conduct a legitimate and licensed activities (sic) of a bail bondsman. However, this does not preclude clerical activities by non-licensed persons under the direct supervision of a licensed person to the extent that it is consistent with the general intent of this section.
The agency presented no clear and convincing evidence in this cause that anyone paying a premium, putting up collateral, or being bonded out of jail was misled either actively or passively into believing that Mr. Collins was a licensed bondsman.
There is credible independent testimony that the type of work Mr. Collins did is sanctioned by the Duval County Sheriff's Office and jail personnel and that neither entity perceived any detriment to the bonding process or lack of security in the release of prisoners under this system. As a result of the Circuit Court Order, which was in fact a Consent Order acquiesced in by previous counsel representing DOI, the system itself has become, rightly or wrongly, the trade custom of all the local bonding companies.
While a trade custom as practiced in a given locality may not set itself up in a manner contrary to the clear language of a statute of statewide jurisdiction nor may the local custom of a trade or profession operate contrary to statewide statute or the duly promulgated rules of the executive agency established to discipline that trade or profession, such a situation does not seem to have happened here. Here, all the principals were attempting to facilitate or "effect" a bonding by Mr. Patterson, the licensed bondsman, not by Mr. Collins.
There is evidence that absent supervised clerical assistance, licensed bondsmen could not serve the public as well as they do. It is indicative of the absence of evil intent in Mr. Patterson and of absence of inappropriate outcome of either the Miller or Robinson transaction that the bulk of Mr. Miller's and Mr. Robinson's testimony is that each was treated satisfactorily by the Mr. Patterson, Mr. Collins, and the Crews Bonding Agency.
It is particularly disturbing that Mr. Collins "notarized" the appearance of Henry and Laura Robinson on the Indemnity Agreement when Laura Robinson had not signed it. That and other acts or omissions of Mr. Collins may invalidate some of the paperwork he prepared so that the insurer could not hold people to an agreement. These acts or omissions could also subject Mr. Collins to prosecution or liability under Sections 117.07 and 117.09 F.S. However, those issues are not properly before the undersigned, and the undersigned makes no conclusions of law with regard thereto. Neither may Mr. Patterson be disciplined by DOI for failing to ensure that a notary public complies with
Chapter 117 F.S. Mr. Patterson's supervision of clerical staff in this respect should have been better, but it did not constitute supplying bonding materials so as to circumvent the law of bonding.
If at all material times, Chapter 648 F.S. contemplated that the bondsman or the insurer (not the bonding agency) must physically receive the collateral and the premium in order to effectuate the bond, as well as be the person who must supervise all paperwork and the person who must physically secure the release of the persons bonded, then only the insurer or its agent (the licensed bondsman) should be the one to issue the receipts therefor. Herein, to the extent Mr. Collins received any premium or collateral, he did so on behalf of the insurer and was subject to Mr. Patterson's review of his act. There has been no suggestion by anyone that Mr. Collins received anything on his own behalf or improperly failed to relinquish any premium or collateral to the licensed bondsman or insurer and no one has been misled or cheated in these transactions, but since Mr. Collins was unclear in his own mind about when he was signing documents as a witness, when he was notarizing someone's signature, and when he was receiving premiums and collateral on behalf of the supervising bondsman or the employer bonding agency, some additional supervision by Mr. Patterson may have been better procedure than was exercised here. Ideally, Mr. Patterson probably would have been more' prudent to have previewed instead of merely reviewed Mr. Collins' work as to the receipts so as to conform to the full intent of the law.
The Legislature, effective October 1, 1990, narrowed and clarified a bondsman's duty to oversee clerical personnel and to personally execute certain documents, but on the dates material to the Administrative Complaint, Mr. Patterson had no clarification beyond the 1984 Consent Order, which had been consented to by DOI. That Consent Order permitted the interpretation Mr. Patterson gave it. The fact that it has been similarly interpreted by other local bondsmen suggests that Mr. Patterson's interpretation was reasonable. The new amendment is already being implemented by Respondent and the Crews Bonding Agency. Such "pre-compliance" evidences an intent to comply with the letter of the law, whatever that law may be or may become. Under the circumstances, even a reprimand for the Respondent's previous flawed supervision would be an onerous penalty.,
DOAH Case No. 90-0584 (Licensing Case):
Conclusions of Law 1-20 supra are adopted and incorporated herein by reference.
Normally, an applicant for licensure or permit carries the ultimate burden of persuasion of entitlement through all proceedings of whatever nature until such time as final action has been taken by the agency. See, Rule 28- 6.008(3) F.A.C. and Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1981). However, here DOI waived all grounds outside the Administrative Complaint as a reason to deny the license application. Having limited its denial of Mr. Patterson's license application to the charges of the Administrative Complaint filed in DOAH Case No. 90-0406, the appropriateness of DOI's denial must be sustained or struck on those issues alone. Accordingly, the specific statutory violations having not been proven, the license should be granted.
DOAH Case No. 90-0406
Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance and Treasurer enter a Final Order dismissing the Administrative Complaint.
DOAH Case No. 90-0584
Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance and `Treasurer enter a Final Order granting Mr. Patterson's application for a resident license to represent Amwest Surety Insurance Company as a limited surety agent (bail bondsman).
DONE and ENTERED this 17th day of October, 1990, at Tallahassee, Florida.
ELLA JANE P. DAVIS, 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 17th day of October, 1990.
ENDNOTES
1/ "Although that [foregoing] section cannot be retroactively applied to the case before us, it is indicative of legislative intent."
2/ It is peripherally noted that the prospective amendments would preclude Mr. Collins possessing or executing only powers of attorney bond forms and collateral receipts, and except for those forms, the new law conforms to the content of the March 27, 1984 Circuit Court Order.
APPENDIX TO RECOMMENDED ORDER CASE NOS. 90-0406 and 90-0584
The following constitute specific rulings pursuant to Section 120.59(2)
F.S. upon the parties' respective proposed findings of fact (PFOF): DOI's PFOF:
1-3, 7-8,
11 Accepted.
4-6 Rejected due to the use of the statutory word, "negotiated," which makes this a conclusion of law rather than a finding of fact and which has legal connotations not precisely representative of the greater weight of the direct evidence in this cause.
Mrs. Miller did not testify. Hearsay as to what she told others and what she may have understood or misunderstood is insufficient material upon which to reach a finding of fact. The sworn testimony and exhibits admitted in evidence support the facts as found in the RO.
9-10 Rejected due to the use of the words "executed" and "noted" which have legal connotations not precisely representative of the greater weight of the direct evidence in this cause and the use of the phrase "at the same time" which is inaccurate on the record evidence. Henry A. Robinson (father) and Henry S. Robinson (son who was bonded out) were apparently not simultaneously present with Mr. Collins. The proposal is modified to conform to the greater weight of the direct evidence as a whole.
Patterson's PFOF:
1-2 Covered in the "Preliminary Statement." 3-8, 14-
15, 18-
20, 22,
24 Accepted.
9-10 Accepted, but modified and expanded to more accurately reflect the full record evidence.
11-13 Rejected. The evidence as a whole reflects the FOF as modified.
16-17 Accepted, but cumulative.
21, 23 Accepted, but cumulative and not dispositive of the issue(s) at bar.
COPIES FURNISHED:
Willis F. Melvin, Jr., Esquire Division of Legal Services
412 Larson Building
Tallahassee, Florida 32399-0300
David R. Fletcher, Esquire Fletcher and Fletcher
541 East Monroe Street Jacksonville, Florida 32202
Tom Gallagher
State Treasurer and Insurance Commissioner
The Capitol, Plaza Level Tallahassee, Florida 32399-0300
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
================================================================= AGENCY FINAL ORDER
=================================================================
OFFICE OF THE TREASURER DEPARTMENT OF INSURANCE
IN THE MATTER OF:
DEPARTMENT OF INSURANCE AND TREASURER,
Petitioner,
vs. CASE NO.: 90-0406
DAVID LLOYD PATTERSON,
Respondent,
/ DAVID LLOYD PATTERSON,
Petitioner,
vs. CASE NO. 90-0584
DEPARTMENT OF INSURANCE AND TREASURER,
Respondent.
/
FINAL ORDER
THIS CAUSE came on before the undersigned Treasurer of the State of Florida, acting in his capacity as Insurance Commissioner, for consideration and final agency action. On December 27, 1990, an Administrative Complaint was filed charging the Respondent/Petitioner with various violations of the Insurance Code. The Respondent/Petitioner timely filed a request for a formal
proceeding pursuant to Section 120.57(1), Florida Statutes. Pursuant to notice, the matter was heard before Ella Jane P. Davis, Hearing Officer, Division of Administrative Hearings, on July 11, 1990.
After consideration of the evidence, argument and testimony presented at hearing, and subsequent written submissions by the parties, the Hearing Officer issued her Recommended Order (Attached as Exhibit A). The Hearing Officer recommended that the Department enter a Final Order dismissing the Administrative Complaint. The Petitioner/Respondent timely filed eleven (11) exceptions to the Hearing Officer's Recommended Order which have been considered and addressed herein.
RULINGS ON PETITIONER'S EXCEPTIONS
Petitioner first excepts to Conclusion of Law #6 in the Recommended Order, contending that Sections 648.50, 648.51, 648.52, and 648.53, Florida Statutes do indeed provide proper administrative remedies for violations of Sections 648.30 and 648.441(2), F.S. An analysis of the relevant statutory sections is thus helpful in understanding Chapter 648's regulatory scheme. Section 648.30 specifically prohibits any person from acting "in the capacity of a bail bondsman or runner or perform[ing] any of the functions, duties, or powers prescribed for bail bondsmen or runners under the provision of this chapter unless that person is qualified and licensed as provided in this chapter."
Section 648.441(2) provides that any licensee who furnishes to any bail bondsman or other person not appointed by the insurer any supplies used in soliciting or effecting bail bonds "shall be subject to civil liability to any insured of such insurer.
Section 648.46, F.S. authorizes the Department to investigate the actions of any licensee relevant to a violation of Chapter 648 and to Prosecute any such violation. (Section 648.46(3), F.S.)
Finally, Sections 648.50, 648,51, 648.52 and 648.53 provide applicable penalties for violations of Chapter 648 determined Pursuant to the Procedure as outlined in 648.46, F.S. These various remedies include revocation, suspension, administrative fines and probation for proven violations of Chapter 648.
Clearly then, a violation of the licensure requirement of 648.30 may be prosecuted pursuant to the authority contained in Section 648.46 and a licensee found guilty of a violation of that chapter is thus subject to the remedies contained in Sections 648.50-648.53, F.S. Accordingly, Petitioner's Exception #1, as it relates to Section 648.30, F.S., is ACCEPTED.
However, in contrast, Section 648.411(2) does not, as written, impose a regulatory requirement as does Section 648.30, F.S. Rather, Section 648.411(2) merely subjects any licensee who furnishes supplies to an unappointed person to civil liability to any insured of the applicable insurer. Thus, this statutory section merely provides a civil remedy and does not impose a substantive statutory requirement. Accordingly, it would not appear that the remedies contained in Section 648.50-648.53 have any substantive nexus to Section 648.441(2), F.S. Therefore, Petitioner's Exception #1, as it relates to Section 648.441(2), F.S., is REJECTED.
Petitioner next excepts to Conclusion of Law #7 in the Recommended Order, which merely elaborates on the jurisdictional remedy argument advanced relative to Section 648.30, F.S. in Conclusion of Law #6, previously addressed herein. Accordingly, for the same reasons stated in paragraph one (1) above, Petitioner's Exception #2 is ACCEPTED.
The Petitioner next excepts to Conclusion of Law #8, which again merely reiterates the jurisdictional remedy analysis relative to Section 648.441(2),
F.S. For the identical reasons previously stated in paragraph (1) above, Petitioner's Exception #3 is REJECTED.
Petitioner next excepts to Conclusion of Law #15 in the Recommended Order. The Petitioner contends that the sanctioning of Mr. Collins' activities by the Duval County Sheriff's Office is irrelevant, because it was not established that Mr. Collins' activities were the trade custom of "all" the local bonding companies.
Although it is uncertain what weight, if any, the Hearing Officer ascribed to the trade custom practice and the subsequent approval of this practice by Duval County, it is well-established that an agency's interpretation of the statutes it is charged with administering is entitled to great deference.
Natelson v. Department of Insurance, 454 So.2d 31 (Fla. 1st DCA 1984); School Board of Pinellas County v. Department of Administration, 492 So.2d 767 (Fla. 1st DCA 1986). In the instant case, the Department's construction of the statutory provisions prohibiting unlicensed personnel from processing collateral is reasonable and controlling, and cannot be superceded by trade custom or informal sanctioning by the Duval County Sheriff's Office. Accordingly, Petitioner's Exception #4 is ACCEPTED to the extent any such trade custom or county sanctioning is improperly construed by the Hearing Officer to override the Department's interpretation of the statutory section it is mandated to enforce.
As regards the issue of whether the above-described trade custom was followed by all the local bonding companies, it was not established at hearing that all of the bonding companies followed the procedures employed by Respondent Patterson. At hearing, Mr. Patterson was merely asked whether in his experience "other bonding companies utilized clerks in the performance of normal day to day business", to which he answered affirmatively. However, it is noted that unrefuted testimony established that other bonding companies also followed Mr.
Patterson's procedures and that it was probably "trade custom" to do so among local bail bondsmen. Therefore, it is not necessary to establish whether "all" other bonding companies followed such procedures. (T-86) However, although the exception is largely technical and irrelevant, Petitioner's Exception #4 relative to trade custom is ACCEPTED.
Petitioner next excepts to Conclusion of Law #16 in the Recommended Order, which impliedly states that the so-called "trade custom" of Duval County does not, in fact, violate Florida Department of Insurance statutory requirements relative to what bail bond activities unlicensed personnel are prohibited from performing.
A review of the Recommended Order reveals that the Hearing Officer does not appear to have directly addressed the alleged violation of 648.441(1), Florida Statutes, as charged in the Administrative Complaint. Section 648.411(1) prohibits a bail bondsman from furnishing any unlicensed person any "forms, applications, stationery, or other supplies to be used in soliciting, negotiating, or effecting bail bonds" unless they possess the appropriate
licensure. It is established (and consistent with subsequent legislative amendments to this statutory section) that collateral receipts have always been deemed by the Department to constitute supplies used "in soliciting, negotiating, or effecting bail bonds". Accordingly, by authorizing unlicensed employees to process collateral and collateral receipts, the Respondent violated Section 648.441(1), Florida Statutes. Accordingly, for the reasons stated above, Petitioner's Exception #5 is ACCEPTED.
Petitioner next excepts to Conclusion of Law #17 of the Recommended Order in which the Hearing Officer concluded that there was a lack of "evil intent" in Mr. Patterson's actions in allowing unlicensed individuals to assist in the bail bond process. It is unclear to what degree and in what context the Hearing Officer assigned weight to Mr. Patterson's apparent lack of evil intent. However, it is clear that intent or willfulness is not required for a violation of 648.441(1), Florida Statutes. The Respondent's lack of a nefarious purpose would only be relevant to the mitigation of any administrative penalty. Accordingly, to the extent that Conclusion of Law #17 is construed to require intent on the part of the Respondent, Petitioner's Exception #6 is ACCEPTED.
The Petitioner next excepts to Conclusion of Law #19 of the Recommended Order, which apparently concludes that an unlicensed employee may receive collateral and give a receipt for same. As outlined in paragraph six (6) above, it has been the Department's consistent construction that only a licensed bail bondsman may accept collateral. In Conclusion of Law #19, the Hearing Officer appears to impliedly condone such action, reasoning that Mr. Patterson's subsequent review of the collateral somehow sanitizes this prohibited conduct. However, even the Hearing Officer indicated that she believed that additional supervision by Mr. Patterson would have been better procedure, noting that "ideally Mr. Patterson probably would have been more prudent to have previewed instead of merely reviewed Mr. Collins' work as to the receipts so as to conform to the full intent of the law". However, Section 648.442(2), F.S. specifically provides that "when a bail bondsman accepts collateral, he shall give a written, numbered receipt for it, and this receipt shall give in detail a full account of the collateral received." (Emphasis provided.) Thus, the plain meaning of this statute mandates that only a licensed bail bondsman may accept collateral and prepare the receipt. Thus, Mr. Collins' acceptance of such collateral constituted a clear violation of that statutory section. This determination is consistent with the Department's long-standing interpretation of this statutory section and the subsequent legislative amendments, which provide: "this section does not prohibit an unlicensed employee under the direct supervision and control of a licensed and appointed bail bondsman from possessing and executing in the bail bond agency, any forms, except for power of attorney bond forms, and collateral receipts while acting in the scope of his employment". (Emphasis provided.)(Subsection 648.441(1), F.S., effective October 1, 1990, pursuant to
H.B. 3589 at 35-36). Accordingly, Petitioner's Exception #7 is ACCEPTED.
Petitioner next excepts to Conclusion of Law #20 of the Recommended Order which concludes that Mr. Patterson's interpretation of Chapter 648, F.S. was reasonable under the circumstances. However, the issue of whether Mr. Patterson's interpretation and resulting procedural practices were reasonable only has relevance to the mitigation of any penalty. Clearly, the fact that a licensee may act in what might otherwise appear to be a reasonable fashion, but in violation of a statutory prohibition, does not render that statutory prohibition invalid. The Department has construed Section 648.441(1) F.S. to require that only a licensed bail bondsman receive collateral and receive collateral receipts. This position was affirmed by the Florida Legislature in
subsequent legislation. Thus, the Department's determination should be upheld as a reasonable and proper interpretation of Section 648.441(1), F.S. Accordingly, Petitioner's Exception #8 is ACCEPTED.
Petitioner next excepts to Conclusion of Law #22 of the Recommended Order, which states that the Respondent's license application should be reinstated, as none of the statutory violations charged in the Administrative Complaint were proven. However, as indicated in paragraphs (1), (2), (5) and (7), herein, it is concluded that the Petitioner has indeed proven violations of Sections 648.430 and 648.441(1), Florida Statutes. Therefore, the Respondent's violation of these statutory sections could constitute adequate grounds for denial of his application for licensure. Accordingly, Petitioner's Exception #9 is ACCEPTED to conform with the preceding analysis.
Petitioner also objects in Exception #9 to that portion of the DOAH recommendation that recommends dismissal of the Administrative Complaint without the imposition of any penalty. There would appear to be insufficient evidence in the Record to establish that Mr. Patterson deliberately attempted to circumvent the provisions of Chapter 648. Moreover, it appears that Mr. Patterson may have relied upon a consent order that might well have authorized such activities.
However, it is also apparent that the potential harm that the Hearing Officer addressed in Conclusion of Law #18 relative to Mr. Collins' improper notarization of indemnity agreements, 48.441(1) are meant to address. The Florida public is ill- served by allowing improperly trained and unlicensed individuals to participate in the crucial aspects of a bail bond transaction. Mistakes made by unlicensed employees may irreparably injure the parties providing or receiving bail bonds. Therefore, for the reasons stated herein, the evidence does not support the dismissal of all charges. However, imposition of an administrative penalty is not, in this instance, deemed necessary for the protection of the Florida public. Accordingly, Petitioner's Exception #10 is ACCEPTED in part and REJECTED in part.
Finally, Petitioner excepts to that portion of the Hearing Officer's Recommendation that recommends the granting of the Respondent's application for a resident agent's license to represent Amwest Surety Insurance Company as a limited surety agent. However, based on the mitigating circumstances as outlined in paragraph (9) above, it is deemed that the Respondent's continuing practice of his profession does not presently constitute a significant threat to the Florida public. Therefore, Mr. Patterson's application for licensure with Amwest Surety Insurance Company (DOAH case number 90-0584) is granted. Accordingly, Petitioner's Exception #11 is REJECTED.
Upon careful consideration of the Record, the submissions of the parties and being otherwise advised in the premises, it is
ORDERED:
The Findings of Fact of the Hearing Officer are adopted in full as the Department's Findings of Fact.
The Conclusions of Law of the Hearing Officer, as modified by this Order, are adopted as the Department's Conclusions of Law.
The Hearing Officer's Recommendation that the Administrative Complaint be dismissed is REJECTED as being inappropriate to the disposition of this case. The Hearing Officer's Recommendation that the Respondent's application for licensure be granted is ACCEPTED as being the appropriate disposition of this case.
ACCORDINGLY, DAVID LLOYD PATTERSON is deemed to have violated Sections
648.30 and 648.411(1), Florida Statutes. However, in light of mitigating circumstances, no administrative penalty is imposed and the Petitioner/Respondent's pending application for licensure is hereby GRANTED.
Any party to these proceedings adversely affected by this Order is entitled to seek review of this Order pursuant to Section 120.68, Florida Statutes, and Rule 9.110, Florida Rules of Appellate Procedure. Review proceedings must be instituted by filing a Notice of Appeal with the General Counsel, acting as the agency clerk, at 412 Larson Building, Tallahassee, Florida 32399-0300, and a copy of the same and the filing fee with the appropriate District Court of Appeal within thirty (30) days of rendition of this Order.
DONE and ORDERED this 8th day of January, 1991.
TOM GALLAGHER
Treasurer and Insurance Commissioner
COPIES FURNISHED TO:
Ella Jane P. Davis, Hearing Officer
The Division of Administrative Hearings 1230 The Desoto Building
Tallahassee, Florida 32399-1550
David Lloyd Patterson
24 N. Liberty Street Jacksonville, Florida 32202 David R. Fletcher, Esquire
541 East Monroe Street Jacksonville, Florida 32202
Willis F. Melvin, Jr., Esquire
412 Larson Building Tallahassee, Florida 32399-0300
| Issue Date | Proceedings |
|---|---|
| Oct. 17, 1990 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 08, 1991 | Agency Final Order | |
| Oct. 17, 1990 | Recommended Order | Section 648.441(2)&(3) and 648.30 are without statutory remedy in this forum; however no misleading or allowing use of bondsman's license was proven. |
