STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE AND ) TREASURER, )

)

Petitioner, )

)

vs. ) CASE NO. 90-7575

) CALVIN COLEMAN RICHARDSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on February 20, 1991, in Fort Pierce, Florida, before J. Stephen Menton, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Andrew Kenneth Levine, Esquire

Division of Legal Services

412 Larson Building Tallahassee, Florida 32399-0300

For Respondent: Ben L. Bryan, Jr., Esquire

FEE, BRYAN, & KOBLEGARD, P.A.

P. O. Box 1000

Fort Pierce, Florida 34954 STATEMENT OF THE ISSUE

The issue in this case is whether disciplinary action should be taken against the Respondent's insurance licenses and limited surety agent license because of the misconduct and violations of the Florida Insurance Code alleged in the Administrative Complaint.

PRELIMINARY STATEMENT

On November 6, 1990, the Department of Insurance and Treasurer (the "Department" or the Petitioner) filed a one count Administrative Complaint alleging that the Respondent, Calvin Coleman Richardson, failed to return or converted collateral placed with him for bail bonds written for Shirley Anderson and Charles M. Deighan. Petitioner alleges that Respondent's conduct constitutes a violation of several separate subsections of Sections 648.442, 648.45, and 648.571, Florida Statutes. On November 21, 1990, the Respondent denied the allegations and requested a formal proceeding on the charges pursuant to Section 120.57(1), Florida Statutes. The case was referred to the Division of Administrative Hearings which noticed and conducted the hearing.

At the hearing, Petitioner presented the testimony of one witness, Shirley Ann Deighan (formerly, Shirley Ann Anderson). Petitioner offered eight exhibits into evidence, all of which were accepted. Petitioner's Exhibit 7 was a composite exhibit consisting of copies of two photographs that were accepted into evidence in a related civil action. The original photos were produced at the hearing in this case but had to be returned to the County Court files.

Petitioner also presented certain rings that had been obtained from the court file in the related civil proceeding. The rings were produced for inspection at the hearing in this cause, but were not offered into evidence because they had to be returned to the court file. Those rings were the rings that Respondent claims were given to him by Shirley Ann Anderson as collateral.

The Respondent testified on his own behalf and also presented the testimony of Ann K. Gillmore, Priscilla Robinson, Allan Richardson and Clem C. Benton, Jr. The Respondent offered two exhibits into evidence, both of which were accepted.

A transcript of the proceeding has been filed. Both parties have submitted proposed recommended orders. In addition, the Respondent has submitted a separate document entitled Memorandum and Argument which has been reviewed and considered in the preparation of this Recommended Order. A ruling on each of the proposed findings of fact contained in the parties' submittals is included in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made.

1. At all times pertinent hereto, Respondent has been licensed in the State of Florida as a limited surety agent (bail bondsman), life and health agent and general lines agent.

   
   

2. Respondent has been an insurance agent for approximately eighteen years. He began writing bail bonds in conjunction with his business approximately fifteen years ago.

   
   

3. Respondent has never previously been disciplined by the Petitioner.

   
   

4. On January 18, 1989, Shirley Ann Anderson and her boyfriend at the time, Charles Deighan, were arrested on misdemeanor charges of disorderly conduct. (Ms. Anderson has subsequently married Mr. Deighan and is now known as Shirley Ann Deighan. She will be referred to in this Recommended Order as Ms. Anderson.)

   
   

5. Ms. Anderson had never been arrested prior to this time and had never previously been incarcerated.

   
   

6. Bonds for the release of Ms. Anderson and Mr. Deighan were set at

   $250.00 apiece.

   
   

7. At the request of Ms. Anderson's mother, the Respondent bailed Ms. Anderson out of jail.

8. After being released from jail, Ms. Anderson approached Respondent about obtaining a bond for Mr. Deighan's release from jail. The Respondent advised Ms. Anderson that he would need collateral in order to write a bond for Mr. Deighan.

   
   

9. Ms. Anderson indicated to Respondent that she did not have anything to put up as collateral for a bond other than her wedding rings from a prior marriage. Respondent does not usually accept jewelry as collateral, but agreed to do so on this occasion.

   
   

10. Ms. Anderson gave Respondent two rings and Respondent provided her with a receipt which described the collateral as a "starfire wedding band set." Ms. Anderson subsequently modified the receipt and changed the word "band" to "ring".

    
    

11. Respondent wrote a $250.00 bond to obtain the release of Mr. Deighan.

    
    

12. Mr. Deighan and Ms. Anderson subsequently pled nolo contendere to the disorderly conduct charges and were sentenced. After the bonds were discharged, Ms. Anderson went to a store owned by Respondent and requested the return of her collateral.

    
    

13. One of Respondent's employees went to Respondent's office and returned with two rings that had previously been identified by Respondent as the rings provided by Ms. Anderson as collateral. The employee had previously taken the rings to a pawn shop for appraisal and they were valued at between $10-$15. One of the rings contained a setting with a small stone or piece of glass. Ms. Anderson refused to accept the rings from the employee. She claimed that the rings that were offered were not the rings that she had provided as collateral and that her rings contained several diamonds.

    
    

14. A short time later, Ms. Anderson returned to the store with Mr. Deighan and met with Respondent. Ms. Anderson agained refused to accept the rings offered by the Respondent claiming that they were not her rings. Ms. Anderson claimed that the proffered rings were of substantially lesser value than her rings.

    
    

15. When the parties were unable to resolve the dispute, Ms. Anderson filed a law suit against Respondent in County Court in St. Lucie County, Florida. On February 13, 1990, Judge James W. Midelis, of the St. Lucie County Court, Civil Division, Nineteenth Judicial Circuit in Case No. 89-2961-SP-24, entered a judgement for Ms. Anderson following a bench trial that lasted approximately thirty to forty five minutes. The judge found that Respondent returned to Ms. Anderson different rings of substantially lesser value than those accepted as collateral and entered a judgement against Respondent for

    $1442.00. Respondent subsequently paid that judgement.

    
    

16. At the hearing in this administrative proceeding, the Respondent renewed his claim that the rings proffered to Ms. Anderson were the same rings that had been given to him by her. Respondent also presented the testimony of two witnesses who did not testify in the civil court proceeding. Those witnesses confirmed many aspects of the Respondent's version of the facts. Ms. Anderson also testified at the hearing in this cause and renewed her claim that the rings proffered to her by Respondent were not the rings that she delivered to him. After observing the witnesses, their demeanor while testifying and

    considering all of the evidence in this case, the testimony of the Respondent is found to be more creditable than that of Ms. Anderson and Respondent's version of the events that took place is accepted.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Sections 120.57(1) and 455.225(5), Florida Statutes (1989).

    
    

18. The Petitioner has the burden of establishing the basis for the proposed disciplinary action by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). "The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or a conviction, without hesitancy, as to the truth of the allegations sought to be established." Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

    
    

19. The one count Administrative Complaint in this case charges Respondent with violating several provisions of Chapter 648, Florida Statutes, as a result of his alleged failure to return property held as collateral pursuant to a fiduciary relationship. However, the evidence in this case established that Respondent attempted to return the exact rings that had been provided to him by Ms. Anderson. Therefore, Petitioner has failed to establish that Respondent violated any of the statutory provisions cited in the Administrative Complaint.

    
    

20. While a county court judge ruled against Respondent in a civil action brought by Ms. Anderson, that ruling is not binding in this de novo proceeding. It is not clear exactly what evidence was presented in the civil proceeding. However, there were at least two witnesses who testified in this case who did not testify in the civil action. It should also be noted that, in the civil action, the evidence was weighed in accordance with a preponderance of the evidence standard. In this case, the Petitioner must prove its basis for disciplinary action by clear and convincing evidence. Regardless of the standard applied, it is concluded, based upon the evidence presented at the hearing in this case, that the Respondent tendered the same rings to Ms. Anderson that had been provided to him as collateral. Therefore, Respondent is not guilty of the violations alleged in the Administrative Complaint.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department enter a Final Order finding the Respondent not guilty of the allegations of the Administrative Complaint and dismissing the charges against him.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 10th day of May, 1991.

J. STEPHEN MENTON 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 10th day of May, 1991.

APPENDIX TO RECOMMENDED ORDER

Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or

Reason for Rejection.

1. Adopted in substance in Findings of Fact 1.

   
   

2. Adopted in substance in Findings of Fact 1.

   
   

3. Adopted in substance in Findings of Fact 4 and 5.

   
   

4. Adopted in substance in Findings of Fact 8.

   
   

5. Rejected as not supported by competent substantial evidence.

   
   

6. Rejected as not supported by competent substantial evidence.

   
   

7. Adopted in substance in Findings of Fact 12.

   
   

8. Rejected as not supported by competent substantial evidence and subordinate to Findings of Fact 13, 14 and 16.

   
   

9. Adopted in substance in Findings of Fact 15.

   
   

10. Rejected as not supported by competent substantial evidence.

    
    

11. Rejected as irrelevent.

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or

Reason for Rejection.

1. Rejected as unnecessary.

   
   

2. Rejected as unnecessary.

   
   

3. Adopted in substance in Findings of Fact 15.

   
   

4. Adopted in pertinent part in Findings of Fact 15.

   
   

5. Adopted in substance in Findings of Fact 15.

   
   

6. Adopted in substance in Findings of Fact 15.

   
   

7. Rejected as unnecessary.

   
   

8. Adopted in substance in Findings of Fact 16.

   
   

9. Adopted in pertinent part in Findings of Fact 13.

10. Rejected as unnecessary.

    
    

11. Rejected as unnecessary.

    
    

12. Rejected as unnecessary and as constituting a summary of testimony rather than a finding of fact.

COPIES FURNISHED:

Ben L. Bryan, Jr., Esquire FEE, BRYAN & KOBLEGARD, P.A.

Post Office Box 1000

Fort Pierce, Florida 34954

Andrew Kenneth Levine, Esquire Division of Legal Services

412 Larson Building

Tallahassee, Florida 32399-0300

Tom Gallagher

State Treasurer and Insurance Commissioner

The Capitol, Plaza Level Tallahassee, Florida 32399-0300

Bill O'Neil General Counsel

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 contact 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.

Docket for Case No: 90-007575

Orders for Case No: 90-007575