STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE AND )

TREASURER, )

)

Petitioner, )

)

vs. ) CASE NO. 92-4378

)

SERGIO ROQUE, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Michael M. Parrish, conducted a formal hearing in this case on October 22, 1992, at Miami, Florida. Appearances for the parties were as follows:

APPEARANCES

For Petitioner: David D. Hershel, Esquire

Department of Insurance Division of Legal Services 612 Larson Building

Tallahassee, Florida 32399-0300

For Respondent: Martin L. Roth, Esquire

Haber & Roth

1370 Northwest 16th Street Miami, Florida 33125

STATEMENT OF THE ISSUES

This is a license discipline case in which the Respondent has been charged by Administrative Complaint with violations of several provisions of Chapter 648, Florida Statutes. All of the violations charged relate to allegations that the Respondent failed to return certain personal property received by the Respondent as collateral security on a surety bond.

PRELIMINARY STATEMENT

At the formal hearing in this case, the Petitioner presented the testimony of the following witnesses: Domingo Arrechea, Lorraine DeVico, and Brad Williams. The Respondent testified on his own behalf. The parties stipulated to the admission of thirteen joint exhibits, all of which were admitted into evidence. On November 30, 1992, both parties filed their respective proposed recommended orders. Neither party filed a transcript of the proceedings at the formal hearing. Specific rulings on all proposed findings of fact submitted by all parties are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

Facts admitted by all parties

1. The Respondent, Sergio Roque, Jr., is currently licensed in this state as a limited surety agent.

   
   

2. At all times relevant to the dates and occurrences referred to in the Administrative Complaint in this matter, the Respondent was licensed in this state as a limited surety agency.

   
   

3. On or about July 19, 1990, Respondent, while acting in his capacity as a limited surety agent, did, as agent for Amwest Surety Insurance Company, post a $100,000 general surety appearance bond, power number X00-0-00000331, to obtain the release of defendant Domingo Arrechea from the Dade County Jail.

   
   

4. In conjunction with the posting of the aforementioned surety bond, Respondent did on or about July 19, 1990, receive $10,000, which represented the premium payment for said surety bond. Respondent did in conjunction with the posting of said bond receive from indemnitor Lorraine DeVico a diamond engagement ring, a Rolex watch, and the title to a 1979 Mercedes automobile (ID#11602412149348) as partial collateral security for the aforementioned surety bond.

   
   

5. On or about April 3, 1991, Respondent did cause to be surrendered back into custody the defendant Domingo Arrechea, thus terminating all liability for said surety bond.

   
   

6. Respondent has failed to return to indemnitor Lorraine DeVico the collateral security described above; namely, the diamond engagement ring, the Rolex watch, and the title to the 1979 Mercedes automobile.

   
   

   Additional facts proved at hearing

   
   

7. In addition to the collateral described above, the Respondent also received as collateral from the defendant Arrechea, and from the defendant's wife, a conditional mortgage on a condominium.

   
   

8. In addition to the collateral described above, the Respondent also received as collateral from "Mike Farina" a conditional mortgage on real estate owned by Mike Farina. Mike Farina was a friend of the defendant Arrechea. "Mike Farina" later turned out to be a fictitious name.

   
   

9. Lorraine DeVico was a very close friend of the defendant Arrechea. The Rolex watch Ms. DeVico put up as part of the collateral for Arrechea's bond was a watch that had been given to her by her father. Shortly after Ms. DeVico put the watch up for collateral, her father began to inquire as to the whereabouts of the watch. Because she felt that her father would disapprove of what she had done, and because her father was the source of most of her wealth, Ms. DeVico told several lies to her father about the whereabouts of the watch. As a result of continuing inquiries by her father, Ms. DeVico wanted her watch back and no longer wanted to be responsible under the indemnity agreement she had signed.

   
   

10. Towards the beginning of February 1991, Ms. DeVico began to call the Respondent to advise that she was frightened that the defendant Arrechea was considering jumping bond. The Respondent received numerous calls from Ms. DeVico requesting return of her collateral and requesting to be off the

    indemnity agreement. Consequently, the Respondent hired MV Investigations on February 16, 1991, to locate the defendant Arrechea.

    
    

11. On March 27, 1991, Ms. DeVico advised the Respondent that the defendant Arrechea was not answering his digital pager and that his telephone had been disconnected. She advised the Respondent that she sent her employee to look for Arrechea but could not find him. She asked the Respondent to pick up the defendant Arrechea and get her off the bond, agreeing to pay all the expenses.

    
    

12. On April 1, 1991, Ms. DeVico again asked the Respondent to pick up the defendant Arrechea and again agreed that she would pay the costs associated with the pick-up.

    
    

13. On April 3, 1991, the investigators hired by the Respondent located and picked up defendant Arrechea and surrendered him back to the Dade County Jail.

    
    

14. The Respondent returned the collateral deposited by Mr. Farina and by the defendant Arrechea and his wife.

    
    

15. After having the defendant Arrechea picked up and surrendered, the Respondent called Ms. DeVico to give her the information and advise her of the pick-up costs. Ms. DeVico verbally refused to pay any pick-up costs.

    
    

16. On April 14, 1991, the Respondent sent by certified mail to Ms. DeVico a notice under Section 648.442, Florida Statutes, notifying her that he would be selling her collateral in ten days against his pick-up expenses.

    
    

17. The Respondent sold the Rolex watch and diamond ring pledged as collateral by Ms. DeVico after expiration of the ten days.

    
    

18. The indemnity agreement signed by Ms. DeVico in conjunction with applying for bail for the defendant Arrechea included the following language:

    
    

    2. The indemnitor(s) will at all times indemnify and keep indemnified the Company and save harmless the Company from and against any and all claims, demands, liabilities, costs, charges, legal fees, disbursements and expenses of every kind and nature, which the Company shall at any time sustain or incur, and as well from all orders, decrees, judgments and adjudications against the Company by reason or in consequence of having executed such bond or undertaking in behalf of and/or at the instance of the indemnitor(s) (or any of them) and will pay over, reimburse and make good to the Company, its successors and assigns, all sums and amounts of money required to meet every claim, demand, liability, costs, expense, suit, order, decree, payment and/or adjudication against the Company by reason of the execution of such bond or undertaking and any other bonds or undertakings executed in behalf of and/or at the instance of the Indemnitor(s) and before

    the Company shall be required to pay thereunder. The liability for legal fees and disbursements includes all legal fees and disbursements that the Company may pay or incur in any legal proceedings, including proceedings in which the Company may assert or defend its right to collect or to charge for any legal fees and/or disbursements incurred in earlier proceedings.

    * * *

    7. The Indemnitor(s) agree(s) that the Company may at any time take such steps as it may deem necessary to obtain its release from any and all liability under any of said bonds or undertakings, and it shall not be necessary for the Company to give the Indemnitor(s) notice of any fact or information coming to the Company's notice or knowledge concerning or affecting its rights or liability under any such bond or undertaking, notice of all such being hereby expressly waived; and that the Company may secure and further indemnify itself against loss, damages and/or expenses in connection with any such bond or undertaking in any manner it may think proper including surrender of the defendant (either before or after forfeiture and/or payment) if the Company shall deem the same advisable; and all expenses which the Company may sustain or incur or be put to in obtaining such release or in further securing itself against loss, shall be borne and paid by the Indemnitor(s).

    
    

19. In conjunction with applying for bail for the defendant Arrechea, Ms. DeVico also signed a Bail Bond Information Sheet which advised her in bold print that:

    
    

    When all agreements have been fulfilled and bond is discharged, in writing or by the court, and without loss expense on the bond, your full collateral will be returned to you.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this administrative proceeding. Section 120.57(1), Florida Statutes.

    
    

21. In a license discipline proceeding of this nature the Petitioner bears the burden of proving its charges by clear and convincing evidence. See Ferris

    v. Turlington, 510 So.2d 292 (Fla. 1987). The nature of clear and convincing evidence has been described as follows in Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983):

    
    

    We therefore hold that clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the

    witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    See also, Smith v. Department of Health and Rehabilitative Services, 522 So.2d 956 (Fla. 1st DCA 1988), which, at page 959, quotes with approval the above- quoted language from Slomowitz. The Smith case also includes the following at page 958:

    
    

    "Clear and convincing evidence" is an intermediate standard of proof, more than the "preponderance of the evidence" standard used in most civil cases, and less than the "beyond a reasonable doubt" standard used in criminal cases. See State v. Graham, 240 So.2d 486

    (Fla. 2d DCA 1970).

    
    

22. The Administrative Complaint alleges that Respondent violated Sections 648.442(1), 648.442(4), 648.45(2)(e), 648.45(2)(g), 648.45(2)(j), 648.45(2)(l), 648.45(3)(b), 648.45(3)(d), and 648.571, Florida Statutes. Substantial amendments were made to Chapter 648, Florida Statutes, by Chapter 90-131, Laws of Florida. The effective date of those amendments was October 1, 1990. See Section 50 of Chapter 90-131, Laws of Florida. Inasmuch as all of the agreements and other documents regarding the bail bond of the defendant Arrechea were signed on July 19, 1990, those agreements and documents are governed by the version of Chapter 648, Florida Statutes, in effect at that time; namely, the version published in Florida Statutes (1989). Accordingly, unless otherwise specifically noted, all citations and quotations of Chapter 648, Florida Statutes, will be to the 1989 version of the statutes.

    
    

23. Section 648.442, Florida Statutes, (1989), contains the following relevant provisions:

    
    

    1. Collateral security or other indemnity accepted by a bail bondsman, except a promissory note or an indemnity agreement, shall be returned upon final termination of liability on the bond. Such collateral security or other indemnity required by the bail bondsman must be reasonable in relation to the amount of the bond. No bail bondsman shall accept collateral security or other indemnity in excess of $50,000 per bond unless such security or indemnity consists of the following:

       1. A promissory note;

       2. An indemnity agreement;

       3. A real property mortgage; or

       4. Any other type of security approved by the board. The board shall approve other security only if, after considering the

          liquidity and other characteristics of the security, it determines that the security is of a type which increases the probability that the defendant will in fact appear in court or increases the probability that the defendant will be subsequently apprehended by the bail bondsman.

    2. 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. The bail bondsman shall also give copies of documents rendered under subsection (1) of this section.

    3. Such collateral security shall be received in the insurer's name by the bail bondsman in his fiduciary capacity and, prior to any forfeiture of bail, shall be kept separate and apart from any other funds or assets of such bail bondsman. Such collateral security may be placed in an interest-bearing account to accrue to the benefit of the person giving the collateral security, and the bail bondsman shall not make any pecuniary gain on the collateral security deposited. Any such account shall be in a depository office of a financial institution located in this state. The insurer shall be liable for all collateral received.

    4. When the obligation of the surety on the bond or bonds has been released in writing by the court, the collateral shall be returned to the rightful owner as agreed in the indemnity agreement unless another disposition is provided for by legal assignment of the right to receive the collateral to another person.

    5. If a forfeiture occurs, the agent or insurer shall give 10 days' written notice of intent to convert the collateral deposit into cash to satisfy the forfeiture to the indemnitor and principal. Notice shall be sent by certified mail to the last known address of the indemnitor and principal.

    6. The bail bondsman or insurer must convert the collateral to cash within a reasonable period of time and return that which is in excess of the face value of the bond plus the actual and reasonable expenses of converting the collateral to cash. In no event shall these expenses exceed 10 percent of the face value of the bond. However, upon motion and proof that the actual, reasonable expenses exceed 10 percent, the court may allow recovery of the full amount of such actual, reasonable expenses.

    7. No bail bondsman or insurer shall solicit

       or accept a waiver of any of the provisions of this section or enter into any agreement as to the value of the collateral.

       
       

24. Section 648.45, Florida Statutes (1989), contains the following relevant provisions:

    
    

    1. The department shall deny, suspend, revoke, or refuse to renew any license issued under this chapter or the insurance code, and it shall suspend or revoke the eligibility of any person to hold a license under this chapter or the insurance code, for any violation of the laws of this state relating to bail or any violation of the insurance code or for any of the following causes:

       * * *

       1. Demonstrated lack of fitness or trustworthiness to engage in the bail bond business.

       * * *

       (g) Fraudulent or dishonest practices in the conduct of business under the license or permit.

       * * *

       (j) Willful 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.

       * * *

       (l) Demonstrated lack of good faith in carrying out contractual obligations and agreements.

    2. The department may deny, suspend, revoke, or refuse to renew any license issued under this chapter or the insurance code, or it may suspend or revoke the eligibility of any person to hold a license under this chapter or the insurance code, for any violation of the laws of this state relating to bail or any violation of the insurance code or for any of the following causes:

    * * *

    (b) Violation of any law relating to the business of bail bond insurance or violation of any provision of the insurance code.

    * * *

    (d) Showing himself to be a source of injury or loss to the public or detrimental to the public interest or being found by the department to be no longer carrying on the bail bond business in good faith.

25. Section 648.571, Florida Statutes (1989), reads as follows:

    
    

    A bondsman who has taken collateral as security for a bail bond shall, upon demand, return the collateral to the person from whom it was received within 21 days after the bail bond has been discharged in writing by the court. Failure to return collateral under these terms shall be punishable:

    1. In the event the collateral is of a value of less than $100, as provided in s. 775.082(4)(a).

    2. In the event the collateral is of a value of $100 or more, as provided in s. 775.082(3)(d).

    3. In the event the collateral is of a value of $1,500 or more, as provided in s. 775.082(3)(c).

    4. In the event the collateral is of a value of $10,000 or more, as provided in s. 775.082(3)(b).

    
    

26. In view of one of the arguments raised by the Respondent, it is necessary to consider the language of Section 648.571, Florida Statutes (1990 Supp.), which reflects the 1990 legislative amendments to the Statutes, and reads as follows:

    
    

    A bondsman who has taken collateral or an insurer or managing general agent who holds collateral as security for a bail bond shall, upon demand, return the collateral to the person from whom it was received within 21 days after the bail bond has been discharged in writing by the court. A fee or other charge of any nature may not be deducted from the collateral due; however, expenses incurred in the apprehension of the defendant because of a forfeiture of bond or judgment under s.

    903.29 may be deducted if such expenses are undisputed and do not exceed 10 percent of the face value of the bond. Failure to return collateral under these terms shall be punishable:

    1. In the event the collateral is of a value of less than $100, as provided in s. 775.082(4)(a).

    2. In the event the collateral is of a value of $100 or more, as provided in s. 775.082(3)(d).

    3. In the event the collateral is of a value of $1,500 or more, as provided in s. 775.082(3)(c).

    4. In the event the collateral is of a value of $10,000 or more, as provided in s. 775.082(3)(b).

27. The Petitioner's view of this case is that the Respondent was obligated by statute to promptly return the collateral posted by Ms. DeVico once the defendant Arrechea was returned to custody and the obligation on the bond was released by the court. By failing to ever do so, it is the Petitioner's contention that the Respondent has violated all of the statutory provisions itemized in paragraph 22, above.

    
    

28. The Respondent concedes that he never returned Ms. DeVico's collateral, but he argues that there is no violation in this case because, on the unique facts in this case, he is entitled to retain the subject collateral to pay for the cost of recapturing and returning the defendant. In this regard the Respondent contends, because Ms. DeVico requested the recapture of the defendant Arrechea and because the Ms. DeVico agreed with the Respondent to pay the expenses of such recapture, by operation of the language of the indemnity agreement signed by Ms. DeVico, the Respondent had the right to deduct the amount owed by Ms. DeVico from the collateral she had posted. For the reasons set forth below, the Respondent's arguments are flawed and must be rejected.

    
    

29. The Respondent's argument is based in part on the portion of Section 648.442(4), Florida Statutes (1989), that reads, ". . . the collateral shall be returned to the rightful owner as agreed in the indemnity agreement unless another disposition is provided for by legal assignment of the right to receive the collateral to another person." The Respondent appears to contend that paragraphs 2 and 7 of the indemnity agreement constitute an assignment to the Respondent of Ms. DeVico's right to receive the collateral. Such a contention is incorrect. The cited paragraphs of the indemnity agreement arguably make Ms. DeVico responsible for the expenses associated with the recapture of the defendant Arrechea, but nothing in those paragraphs purports to assign to the Respondent the right to receive the collateral posted by Ms. DeVico.

    
    

30. The Respondent also bases its entitlement to the collateral on the procedure set forth in Section 648.442(5), Florida Statutes (1989), which provides for 10 days written notice prior to converting a collateral deposit into cash. The cited statute affords Respondent no relief because it is limited by its terms to circumstances where "a forfeiture occurs." There was no forfeiture of the subject bond and, therefore, there was no basis for the Respondent to invoke the provisions of Section 648.442(5), Florida Statutes (1989).

    
    

31. It is not clear to what extent the Respondent may be claiming relief based on the amended version of the statutes, but it is noted in passing that the amendments afford Respondent no relief. Under Section 648.571, Florida Statutes (1990 Supp.), it is clear that the Respondent could not deduct expenses of apprehension from the collateral unless the expenses ". . . are undisputed and do not exceed 10 percent of the face value of the bond." In this case the expenses were hotly disputed and the expenses claimed were in excess of 10 percent of the face value of the bond.

    
    

32. Because there is no lawful basis for any of the Respondent's claims to entitlement to retain Ms. DeVico's collateral, the Respondent was obligated to return that collateral. The Respondent's failure and refusal to return the collateral constitutes a violation of all the statutory provisions set forth in the Administrative Complaint and summarized at Paragraph 22, above.

Accordingly, the Respondent is guilty as charged in the Administrative Complaint.

RECOMMENDATION

On the basis of all of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance and Treasurer enter a Final Order in this case to the following effect:

1. Concluding that the Respondent is guilty of the violations charged in the Administrative Complaint, and

   
   

2. Imposing an administrative penalty consisting of an administrative fine in the amount of $1,000.00 and a suspension of the Respondent's license for a period of 90 days.

DONE AND ENTERED this 12th day of May 1993, in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

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 12th day of May 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-4378

The following are my specific rulings on all of the proposed findings of fact submitted by all of the parties.

Proposed findings submitted by Petitioner:

Paragraphs 1 through 6: Accepted.

Paragraph 7: Rejected for two reasons; first, the proposed finding is irrelevant because it is not alleged in the Administrative Complaint, and, second, the proposed finding was not proved by clear and convincing evidence.

Proposed findings submitted by Respondent:

Paragraphs 1 through 4: Accepted.

Paragraph 5: First sentence accepted. Remainder of this paragraph rejected as subordinate and unnecessary details.

Paragraphs 6 through 13: Accepted in substance with some details clarified.

Paragraph 14: First sentence accepted. Remainder rejected as subordinate and unnecessary details.

Paragraph 15: Rejected as constituting procedural details or conclusions of law, rather than proposed findings of fact.

Paragraph 16: Rejected as constituting statement of position or legal argument, rather than proposed finding of fact.

Paragraph 17: First sentence accepted. The remainder of this paragraph is rejected as constituting conclusions of law or legal argument, rather than proposed findings of fact.

Paragraph 18: Rejected as constituting a conclusion of law, rather than a proposed finding of fact.

Paragraphs 19 and 20: Accepted

COPIES FURNISHED:

David D. Hershel, Esquire Department of Insurance Division of Legal Services 612 Larson Building

Tallahassee, Florida 32399-0300

Martin L. Roth, Esquire Haber & Roth

1370 Northwest 16th Street Miami, Florida 33125

Honorable Tom Gallagher

State Treasurer and Insurance Commissioner

The Capitol, Plaza Level Tallahassee, Florida 32399-0300

Bill O'Neill, General Counsel Department of Insurance

The Capitol, Plaza Level 11 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 ten 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.

=================================================================

AGENCY FINAL ORDER

=================================================================

OFFICE OF THE TREASURER DEPARTMENT OF INSURANCE

IN THE MATTER OF: DOAH CASE NO. 92-4378 CASE NO. 92-L-314DDH

SERGIO ROQUE, JR.

/

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 June 18, 1992, an Administrative Complaint was filed charging Respondent with various violations of Chapter 648, Florida Statutes.

The Respondent timely filed a request for a formal proceeding pursuant to section 120.57(1), Florida Statutes. Pursuant to notice, the matter was heard before Michael M. Parrish, Hearing Officer, Division of Administrative Hearings, on October 22, 1992.

After consideration of the evidence, argument and testimony presented at the hearing and the subsequent written submissions by the parties, the Hearing Officer issued his Recommended Order on May 12, 1993. (Attached as Exhibit "A"). The Hearing Officer recommended that the Respondent be assessed an administrative penalty in the amount of $1000.00 and that his license as a limited surety agent be suspended for a period of ninety (90) days.

The Department filed exceptions to the Hearing Officer's Written Report and Recommendation on May 18, 1993, within the 10-day period for filing exceptions. Fla. Admin. Code Rule 4-121.075(2); Fla. Admin. Code Rule 221-6.022.

RULINGS ON THE DEPARTMENT'S EXCEPTIONS

The Department's exception addresses the Hearing Officer's recommended disciplinary action to be imposed against the Respondent. The Hearing Officer recommended that the Respondent be fined an administrative fine of $1000.00 and that his insurance license be suspended for a period of ninety (90) days.

In his Recommended Order, the Hearing Officer found in his conclusions of law that the Respondent had violated sections 648.442(1), 648.442(4), 648.45(2)(e) , 648.45(2)(g) , 648.45(2)(j) 648.45(2)(1) , 648.45(3)(b) ,

648.45(3)(d) , and 648.571, Florida Statutes (1989). In finding the Respondent's action violative of subsections 648.45(2)(e) and (g), Florida Statutes, the Hearing Officer has concluded that the Respondent has demonstrated a lack of fitness or trustworthiness to engage in the bail bond business and has engaged in fraudulent or dishonest practice in the conduct of business under his bail bond license.

Section 648.442, Florida Statutes, establishes a system of control over the acceptance and custody of collateral secured to indemnify against forfeiture on the bailbond. The collateral is received in the name of the Insurer by the bail

bondsman in his fiduciary capacity. This section of law and section 648.571, Florida Statutes, clearly establish that the Respondent acted without authority to sell or dispose of the collateral pledged by Ms. DeVico in the absence of forfeiture of the Bond.

The Respondent acted without authority, contrary to subsection 648.442(7), Florida Statutes, to seek a waiver of the provisions of section 648.442, Florida Statutes, by bargaining with Ms. DeVico to pick up the defendant Arrechea and have him surrendered to the legal authorities only if she would agree to pay the Respondent for the costs of that activity.

Despite Ms. DeVico's acceptance of this agreement, this agreement (collateral in nature to the indemnification agreement signed by Ms. DeVico as an Indemnitor on the bond) secured by the Respondent is violative of section 648.442(7), Florida Statutes. As a limited surety agent, Chapter 648, Florida Statutes, establishes that the Respondent is ultimately responsible for presenting the defendant and surrendering him to the court when required. To accomplish this end, the limited surety agent must keep the defendant under necessary surveillance and be able to apprehend him if necessary.

With paragraph 16, of his Recommended Order, the Hearing Officer suggests that the Respondent's communication to Ms. DeVico dated April 14, 1991, was a notice pursuant to subsection 648.442(5), Florida Statutes. This communication was not pursuant to this law because no forfeiture of the bond existed.

With paragraph 17, the Hearing Officer established the factual finding that the Respondent sold the expensive Rolex watch and diamond ring pledged as collateral by Ms. DeVico. However, the Hearing Officer omitted establishing as a finding of fact the Respondent's unlawful action on April 8, 1991, to attempt to officially transfer title to Ms. DeVico's 1979 Mercedes Benz automobile that also was pledged as collateral on the bond. Highly credible documents, admitted in to evidence by the Hearing Officer and identified as Joint Exhibit No. 12 and Petitioner's Exhibit No. 4, establish this fact.

Bail bondsmen (limited surety agents) are held to a heightened standard of conduct in comparison to insurance agents in general. That standard is manifested through Chapter 648, Florida Statutes. The heightened standard is due primarily to the type of work in which bail bondsmen engage. They generally handle large amounts of cash, take possession of collateral such as property deeds, vehicles, jewelry, etc. They deal with those who cannot bargain with them at arms length, or those of the criminal disposition. Unlike insurance agents licensed pursuant to Chapter 626, Florida Statutes, bail bondsmen licensed pursuant to Chapter 648, Florida Statutes, have their licenses immediately temporarily suspended when charged with a felony or a crime involving moral turpitude or punishable by imprisonment of more than one year, pursuant to Section 648.45(1), Florida Statutes. That suspension remains in effect until final disposition of the charge.

Despite the exception filed by the Department, this Final Order will not enhance that penalty recommended by the Hearing Officer. Pursuant to subsection 648.49(2), Florida Statutes, the penalty of revocation is very severe and constitutes grounds for this Department to refuse the Respondent's licensure as a bail bondman in the future. Accordingly, the Departments' exception here is overruled.

Upon consideration of the foregoing and the record and being otherwise fully advised of the premises, it is,

ORDERED:

1. Except as modified herein, the findings of fact of the Hearing Officer are adopted as the agency's findings of fact.

   
   

2. Except as modified herein, the Hearing Officer's conclusions of law are adopted as the agency's conclusions of law.

   
   

3. That the Hearing Officer's recommendation for suspension of licensure along with the assessment of an administrative penalty in the amount of $1000.00 is hereby accepted.

ACCORDINGLY, all insurance licenses and eligibility for licensure held by SERGIO ROQUE, JR. are hereby SUSPENDED for a period of ninety (90) days from the date of receipt of this order as provided by subsections 648.45(2) and 648.49, Florida Statutes. Pursuant to section 648.52, Florida Statutes, SERGIO ROQUE, JR. shall bear an administrative fine of $1000.00 which shall be paid prior to reinstatement.

As provided by section 648.49, Florida Statutes, the period of suspension will end upon reinstatement of licensure. That request for reinstatement must be submitted to the Department in writing. The Department may not grant such reinstatement if it finds that the circumstances for which the license was suspended still exist or are likely to recur.

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 645 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 3rd day of August, 1993.

TOM GALLAGHER

Treasurer and Insurance Commissioner

COPIES FURNISHED:

MICHAEL M. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

SERGIO ROQUE, JR.

1955 Northwest 33 Avenue

Miami, Florida 33125

MARTIN L. ROTH, ESQUIRE

Haber & Roth

1370 N.W 16th Street Miami, Florida 33125

DAVID D. HERSHEL, ESQUIRE

Division of Legal Services 612 Larson Building

Tallahassee, Florida 32399-0300

Docket for Case No: 92-004378

Orders for Case No: 92-004378