STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE, ) OFFICE OF THE TREASURER, )

)

Petitioner, )

)

vs. ) CASE NO. 91-2279

)

PHILLIP ANTHONY RONCA, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Miami, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings on July 31, 1991.* The Division of Administrative Hearings received the hearing transcript on November 7, 1991.

After January 2, 1992, had been established as the deadline for filing proposed recommended orders, time was extended to January 4, 1992, on respondent's motion for two-day extension. Respondent's late filing (on January 6, 1992) has not affected the fairness of the proceeding. See Hamilton County v. State Department of Environmental Regulation, 587 So.2d 1378, 1390 (Fla. 1st DCA 1991). The attached appendix addresses proposed findings of fact by number.

*The transcript misstates the hearing officer's name.

APPEARANCES

For Petitioner: Donald E. Petersen, Esquire

412 Larson Building Tallahassee, Florida 32399

For Respondent: Benedict P. Kuehne, Esquire

Sonnet, Sale & Kuehne

One Biscayne Tower, No. 2600 Two South Biscayne Boulevard Miami, FL 33131-1802

STATEMENT OF THE ISSUE

Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?

PRELIMINARY STATEMENT AND RULING

By administrative complaint dated March 22, 1991, petitioner alleged that respondent, at all relevant times "licensed and eligible for licensure . . . as a limited surety agent," was "the president and director of Ronca Bail Bonds,

Inc." and that on "or about July 13, 1990, [respondent] solicited bail bond business from Ms. Rina Romero Dillman while she was waiting, in the lobby of the Metro Dade County Jail, for a person who was recently arrested to arrive . . . described the fee for . . . [his] services and provided a business card . . ." all allegedly in violation of Sections 648.44(1)(b) and 648.45(2)(e)(f) and (j) and (3)(b) and (d), Florida Statutes, and Rule 4-1.018, Florida Administrative Code.

For the first time in his proposed recommended order, respondent asks for attorney's fees and costs, without citation to statutes, rules or evidence. The request is denied without prejudice to any appropriate ancillary proceedings.

FINDINGS OF FACT

1. At all pertinent times, respondent Phillip Anthony Ronca has been licensed and eligible for licensure and appointment as a limited surety agent in Florida, and the parties so stipulated. He holds licenses as a limited surety agent and as a professional bail bondsman, both issued by petitioner. Petitioner's Exhibit No. 1.

   
   

2. Respondent Ronca is the president and director of Ronca Bail Bonds, Inc., a Florida corporation transacting bail bond business from offices in Suite 12, 9719 South Dixie Highway in Miami, Florida, and has been at all pertinent times. He has no prior history of violating statutes or rules governing bail bond underwriting.

   
   

3. On July 13, 1990, Mr. Ronca was at the Metro Dade County Jail at the corner of Northwest 12th Avenue and Northwest 14th Street in Miami, trying to locate Miguel Salamanca, whose lawyer had asked respondent to post bond, in order to accomplish his client's release. (The lawyer told him Mr. Salamanca had been arrested in the aftermath of a car wreck, but did not tell him which law enforcement agency had made the arrest or where the arrestee was being held.)

   
   

4. Also present at the jail that day was Rina Romero (then surnamed Dillman) who, at the time, worked for a firm of private investigators retained by the "Dade County Bail Bondsmen Association to locate individuals, or bondsmen who were allegedly suspicious [sic] of soliciting business at the jail." T. 8-

1. She had been shown respondent's photograph, and recognized him as one of seven or eight named "targets" of the investigation.

   
   

   1. Ms. Romero accosted respondent and related a tale of an apocryphal relative, purportedly confined on cocaine possession charges. In response to her specific questions, Mr. Ronca said bonds in such cases were set at $5,000 in Dade County, and that the premium for a bond in that amount was $500. He asked her questions about her putative relative, designed to ascertain the phantom detainee's whereabouts.

      
      

   2. Mr. Ronca never told Ms. Romero he was a bail bondsman, never offered to post bond for her (spurious) relative, and never requested the opportunity to do so. T. 75-76. He misrepresented no fact, and proposed no unlawful activity.

      
      

   3. At her request, as their brief conversation drew to a close, he gave Ms. Romero his business card, which proclaims "RONCA BAIL BONDS . . . Any Cost . Anytime . Anywhere." Petitioner's Exhibit No. 1. She testified she asked for the card so she could prove the fact of the encounter. T. 78, 79, 85. He

      testified he gave it to her only because she asked for it, and without any intention to advertise. T. 160, 161.

      
      

      CONCLUSIONS OF LAW

      
      

   4. Since the Department of Insurance referred respondent's hearing request to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1991), "the division has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1991).

      
      

   5. License revocation proceedings have been said to be "'penal' in nature." State ex rel. Vining vs. Florida Real Estate Commission, 281 So.2d 487, 491 (Fla. 1973); Kozerowitz vs. Florida Real Estate Commission, 289 So.2d

      391 (Fla. 1974); Bach vs. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979) (reh. den. 1980). Strict procedural protections apply in disciplinary cases, and the prosecuting agency's burden is to prove its case clearly and convincingly. Ferris vs. Turlington, 510 So.2d 292 (Fla. 1987).

      See Addington vs. Texas, 441 U.S. 426 (1979); Ferris vs. Austin, 487 So.2d 1163 (Fla. 5th DCA 1986); Anheuser-Busch, Inc. vs. Department of Business Regulation,

      393 So.2d 1177 (Fla. 1st DCA 1981); Walker vs. State Board of Optometry, 322 So.2d 612 (Fla. 3rd DCA 1975); Reid vs. Florida Real Estate Commission, 188 So.2d 846, 851 (Fla. 2nd DCA 1966).

      
      

   6. A licensee's breach of duty justifies revocation only if the duty has a "substantial basis," Bowling vs. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981) in the evidence, unless applicable statutes and rules create a clear duty, which the evidence shows has been breached. Neither condition obtains here.

      
      

   7. Not a shred of evidence supported petitioner's allegations that respondent "[d]emonstrated lack of fitness or trustworthiness to engage in the bail bond business," Section 648.45(2)(e), Florida Statutes (1991); that he "[demonstrated lack of reasonably adequate knowledge and technical competence to engage in the transactions authorized by the license or appointment," Section 648.45(2)(f), Florida Statutes (1991); or that he "[s]how[ed] himself to be a source of injury or loss to the public or detrimental to the public interest or

      . . . to be no longer carrying on the bail bond business in good faith." Section 648.45(3)(d), Florida Statutes (1991).

      
      

   8. Nor did the evidence show any intent on respondent's part to violate any order, rule or statute, in contravention of Section 668.45(2)(j), Florida Statutes (1991), which proscribes "[w]illful failure to comply with or willful violation of any proper order or rule of the department or willful violation of any provision of this chapter or the insurance code." The only genuine issue is whether respondent was guilty of a technical "[v]iolation of any law relating to the business of bail bond insurance or violation of any provision of the insurance code." Section 668.45(3)(b), Florida Statutes (1991).

      
      

   9. Petitioner alleges two such violations. First, petitioner alleges that Mr. Ronca acted unlawfully when he described the fee for his services. Secondly, petitioner contends that, even if respondent had no intention to violate any statute or rule, even though he did not approach Ms. Romero, and even if he did not urge, entice, lure or invite her to use his services, he nevertheless violated the statute and the rule in handing her his business card, albeit at her request.

   10. Petitioner alleges that respondent violated Section 648.44(1)(b), Florida Statutes (1991), which provides:

       
       

       1. A bail bondsman or runner may not:

          . . .

          1. Directly or indirectly solicit business in or on the property or grounds of a jail, prison, or other place where prisoners are confined or in or on the property or grounds of any court.

             
             

             (Emphasis supplied.) For present purposes, Rule 4-1.018, Florida Administrative Code, which has never been challenged in Section 120.56 proceedings, definitively construes the statute:

             
             

             1. No bail bondsman or runner shall directly or indirectly solicit business in or on the property or grounds of a jail, prison, or other place where prisoners are confined, or in or

                on the property or grounds of a court or any building housing courtrooms.

             2. For the purposes of this rule, solicit shall include:

                1. Displaying, wearing, or distributing any item which directly or indirectly advertises bail bond services; or

                2. Approaching anyone or urging, enticing, luring, or inviting anyone to approach a bondsman to use his services.

                3. Parking of a motor vehicle, which displays the name of a bondsman, a bailbond agency, or any other information advertising bail bond services, when not conducting bail bond business or for

          a longer period of time than necessary when conducting bail bond business.

          
          

          Plainly Mr. Ronca did not violate either the statute or the rule when he honestly answered Ms. Romero's specific question about how much it cost to post a $5,000 bond. Petitioner cites no authority for the proposition that respondent had a duty to stand mute when she asked him the question.

          
          

   11. But petitioner cites Rule 4-1.018(2)(a), Florida Administrative Code, for the proposition that respondent acted unlawfully in giving Ms. Romero his business card. In evaluating petitioner's contention, more than one rule of construction comes into play. "[S]tatutes authorizing the revocation of a license to practice a business or profession must be strictly construed for they are penal in nature." State v. Pettishall, 99 Fla. 296, 126 So. 147 (1930)." Davis v. Department of Professional Regulation, 437 So.2d 1074, 1076 (Fla. 1st DCA 1984). Both the statute and rule here should be "construed strictly, in favor of the one against whom the penalty would be imposed. See Holmberg v. Department of Natural Resources, 503 So.2d 944 (Fla. 1st DCA 1987)." Donald J. Munch v. Department of Professional Regulation, Division of Real Estate, No. 90- 3238 (Fla. 1st DCA; Jan. 2, 1992) at p. 16. At least in a disciplinary context, moreover, "a state executive branch agency lacks implied or inherent power to fashion . . . a legal presumption for application in an administrative proceeding." McDonald v. Department of Professional Regulation, 582 So.2d 660, 663 (Fla. 1st DCA 1991).

   12. Finally, because the statute and rule at issue here regulate the dissemination of information, they must be construed, if possible, in keeping with constitutional guarantees of free speech and free press. Although "commercial speech" does not enjoy the same protection as purely political discourse, government's ability to restrict advertising is not unlimited. See Shapero v. Kentucky Bar Ass'n, 486 U.S. 466 (1988); Virginia Pharmacy Board v. Virginia Consumer Committee, 425 U.S. 748 (1976); and Fane v. Edenfield, 945 F.2d 1514 (11th Cir. 1991). No hearing officer is authorized to declare statutes or existing rules unconstitutional, but the state and federal constitutions, no less than statutes and rules, should guide agency action, and inform hearing officers' recommendations. See generally Benton and Pfeiffer, Administrative Adjudication, in Florida Administrative Practice 4-28, 4-29 (3rd Ed. 1990).

       
       

   13. The evidence did not establish a "display" of the card independent of respondent's handing it over to Ms. Romero. While a transfer to even one transferee constitutes distribution for purposes of, e.g., the drug laws, Black's Law Dictionary (6th ed. 1990) defines distribution as "the giving out or division among a number, sharing or parceling out, allotting, dispensing, apportioning." At 475. (Emphasis supplied.) Taken together, the pertinent rules of construction militate against reading the statute and rule as proscribing a licensee's acquiescence, in an isolated instance, to a citizen's request for a business card.

RECOMMENDATION

It is, accordingly, recommended that petitioner dismiss the administrative complaint filed against respondent.

RECOMMENDED this 27th day of January, 1992, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 1992.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2279

Petitioner's proposed recommended order did not contain proposed findings of fact.

Respondent's proposed findings of fact Nos. 1, 2, 3, 7, 8, 9, 11, 12 and 15 have been adopted, in substance, insofar as material.

Respondent's proposed findings of fact Nos. 4, 5, 13 and 14 pertain to immaterial matters.

With respect to respondent's proposed finding of fact No. 6, the administrative complaint pleaded and respondent admitted 14th Street.

With respect to respondent's proposed findings of fact Nos. 10 and 16 he never asked her for bail bonding business, or intended to violate applicable law.

COPIES FURNISHED:

Tom Gallagher, State Treasurer and Insurance Commissioner

Department of Insurance and Treasurer

The Capitol, Plaza Level Tallahassee, FL 32399-0300

Bill O'Neil, General Counsel Department of Insurance and

Treasurer

The Capitol, Plaza Level Tallahassee, FL 32399-0300

Donald E. Petersen, Esquire

412 Larson Building Tallahassee, FL 32399

Benedict P. Kuehne, Esquire Sonnet, Sale & Kuehne

One Biscayne Tower, No. 2600 Two South Biscayne Boulevard Miami, FL 33131-1802

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. 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: 91-002279

Orders for Case No: 91-002279