STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE )

AND TREASURER, )

)

Petitioner, )

)

vs. ) CASE NO. 93-5304

)

BARRY SETH RATNER, )

)

Respondent. )

)

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on December 1, 1993 in Fort Lauderdale, Florida, before J. Stephen Menton, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Joseph D. Mandt, Esquire

Division of Legal Services 612 Larson Building

Tallahassee, Florida 32399-0333

For Respondent: Joseph R. Fritz, Esquire

4204 North Nebraska Avenue Tampa, Florida 33603

STATEMENT OF THE ISSUE

The issue in this case is whether disciplinary action should be taken against Respondent's insurance licenses based upon the alleged violations of Chapter 648, Florida Statutes, as set forth in the Administrative Complaint.

PRELIMINARY STATEMENT

In a five count Administrative Complaint dated May 28, 1993, the Department of Insurance and Treasury (the "Department") alleged that Respondent failed to return collateral to consumers after liability on bonds he issued was discharged, that Respondent failed to keep his office open to the public and that Respondent continued to employ a convicted felon in violation of a previous Department order. Respondent disputed the allegations contained in the Administrative Complaint and timely requested a formal administrative hearing.

The case was transferred to the Division of Administrative Hearings which noticed and conducted a hearing pursuant to Section 120.57(1), Florida Statutes.

At the outset of the hearing, Respondent moved ore tenus to dismiss the Administrative Complaint on the grounds that the Department had failed to compile a subject matter index. Respondent had not formally sought production

of an index from the Department prior to the hearing. The Department argued that it had an index which met the statutory requirements. No evidence was presented to establish that the Department's index was inadequate. In view of these factors, Respondent's motion to dismiss was denied.

At the hearing, Petitioner presented the testimony of five (5) witnesses during its case-in-chief: Anna Agnew; Linnette McNorton; M. T. Heller; Janice Larson; and Douglas Aabbott. Petitioner had eight (8) exhibits marked for identification. Petitioner's Exhibit 1 was used to refresh the recollection of a witness, but was not offered into evidence. Similarly, Petitioner's Exhibit 6 was not offered into evidence. Petitioner's remaining exhibits were accepted into evidence. Respondent's objections to Petitioner's Exhibit 7 and 8 were overruled.

Respondent testified on his own behalf and offered eight (8) exhibits into evidence, all of which were accepted without objection.

Petitioner called Linda Ratner to testify in rebuttal. Respondent's objection to this testimony was overruled.

A transcript of the proceedings has been filed. At the conclusion of the hearing, a schedule was established for filing proposed recommended orders. The Department filed a proposed recommended order in accordance with that schedule. After the date for filing had passed, Respondent filed a request seeking an extension of time to file its proposal. As set forth in an Order entered in this cause on March 2, 1994, Respondent was permitted to file a proposed recommended order after the originally scheduled deadline and the Department was granted an opportunity to respond to that proposed recommended order. A ruling on each of the proposed findings of fact submitted by the parties is included in the Appendix 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 to this proceeding, Respondent was licensed in Florida as a limited surety agent (bail bondsman).

   
   

2. On September 15, 1989, the Department filed an Administrative Complaint against Respondent seeking disciplinary action against Respondent's license as a result of his alleged employment of a convicted felon identified as Ira Stern. That case, Department of Insurance Case No. 89-L-650RVE, was settled pursuant to a Consent Order entered on January 2, 1990, pursuant to which Respondent was fined $500 and placed on probation for one year. Respondent also agreed not to employ any individual disqualified by Section 648.44(7)(a) to work at his bail bond agency and agreed that no unlicensed person employed by his bail bond agency would be permitted to engage in any activity for which a license was required. The Consent Order incorporated a Settlement Stipulation which specifically provided that the settlement was entered to avoid the costs and uncertainty of litigation and did not constitute an admission by Respondent of any violation of the insurance code.

   
   

3. At the time of the hearing in this case, Respondent's license was apparently under suspension pursuant to an Emergency Order of Suspension issued by the Department in Department Case No. 93-ESO-005JDM. The Emergency Order of

   Suspension is not referenced in the Administrative Complaint and no copy of that Emergency Order has been provided. The basis for entry of that Emergency Order was not established in this case and the parties stipulated that the Emergency Order was not a part of this proceeding.

   
   

4. For at least two years prior to the hearing in this case, Respondent was appointed to write bail bonds by American Bankers Insurance Group ("American Bankers").

   
   

5. Respondent previously operated a company known as Barry's Bail Bonds. Apparently as a result of some unsatisfied judgements, Respondent did not issue any bail bonds in his name or in the name of Barry's Bail Bonds during the first

   6 months of 1992.

   
   

6. At the time of the transactions alleged in the Administrative Complaint, Respondent was married to Linda Ratner. Linda Ratner was a qualified and appointed agent of American Bankers. She was also the principle of Linda's Bail Bonds, Inc. The evidence established that Respondent was a primary contact for American Bankers on behalf of Linda's Bail Bonds.

   
   

7. It appears that Linda's Bail Bonds and Barry's Bail Bonds were operating out of the same office in Fort Lauderdale for some periods during 1991 and 1992. Other businesses were also apparently operated out of this office. The evidence established that an individual by the name of Ira Stern was involved in the operations of that office during late 1991 and the first nine months of 1992. The evidence was inconclusive as to who actually employed Ira Stern. The evidence did establish that Respondent and Ira Stern primarily handled the day to day operations of the office, including the bail bond business transacted out of the office. No evidence was presented that Ira Stern was a convicted felon and/or that he was the same individual identified in the prior Administrative Complaint filed against Respondent.

   
   

8. Respondent solicited and issued bail bonds through Linda's Bail Bonds on several occasions from January 1992 through July 1992. The evidence established that Linda Ratner signed several American Banker's power of attorney forms in blank. As discussed in more detail below, Respondent utilized several of these forms on behalf of clients during the time period in question.

   
   

9. Respondent's authority to write bonds for American Bankers was terminated by American Bankers on or about July 24, 1992. At that same time, the authority of Linda Ratner and Linda's Bail Bonds, Inc. was also terminated. At some point after this termination, Respondent turned over to American Bankers certain tangible collateral that had been held in a safe deposit box. This collateral was turned over sometime between July and September of 1992. The exact date was not established.

   
   

10. On September 11, 1992, employees of American Bankers accompanied by a Department investigator, went to Respondent's office and collected all of the files and tangible collateral in the office relating to the outstanding bonds written by Respondent and/or Linda's Bail Bonds for American Bankers. No cash collateral was recovered in connection with those files. Upon arriving at the office, representatives of American Bankers and the Department investigator dealt exclusively with a man who identified himself as Ira Stern and who claimed to be the office manager. As noted above, Respondent was previously disciplined by Petitioner for employing an Ira Stern, who was allegedly a convicted felon. No direct evidence was presented to establish the identity of the person in the office on September 11, 1992 nor was there any evidence that the person who

    identified himself as Ira Stern was a convicted felon and/or the same individual whom Respondent was accused of improperly employing in the previous disciplinary case. Moreover, no conclusive evidence was presented to establish who actually employed the individual in question.

    
    

11. On or about July 9, 1992, Anna Agnew and her husband called Linda's Bail Bonds to obtain a bond to get their nephew out of jail. Respondent responded to the call and told the Agnews that he would issue a bond in return for $100 cash and the delivery of a $1,000 check which was to serve as collateral for the bond. Respondent told the Agnews that he would hold the check as collateral without cashing it until their nephew's case was resolved. To obtain the release of the Agnews' nephew, Respondent submitted American Bankers power of attorney number 0334165 which had been signed in blank by Linda Ratner and filled out by Respondent. The amount of the bond was $1,000.

    
    

12. Shortly after the Agnews' nephew was bonded out of jail, Mrs. Agnew discovered that the check they gave to Respondent had been cashed. After the Agnews' many attempts to contact Respondent regarding the check were unsuccessful, Mrs. Agnew wrote to the Department complaining of the situation.

    
    

13. On August 17, 1992, the Agnews' nephew's case was resolved. Respondent failed to return the Agnews' collateral within the time provided by law.

    
    

14. In an attempt to retrieve their collateral after their nephew's case was completed, Mrs. Agnew testified that her husband unsuccessfully attempted to contact Respondent at his office on a least one occasion. At the time of Mr. Agnew's visit, Respondent's office was allegedly not open.

    
    

15. No conclusive evidence was presented as to who cashed the Agnews' check or what happened to the proceeds.

    
    

16. On or about January 8, 1993, the managing general agent for American Bankers returned $1,000 to the Agnews in repayment of the collateral.

    
    

17. On or about June 21, 1992, American Bankers' power of attorney form number 0333494 was submitted to the Broward County Circuit Court to obtain the release from jail of Wentworth McNorton. The amount of the bond was $1,000. The power of attorney form had been signed in blank by Linda Ratner and was filled in by Respondent.

    
    

18. Mr. McNorton's mother, Linnette, arranged for the issuance of the bond by paying Respondent $100 in cash. In addition, she gave Respondent a diamond ring appraised in excess of $10,000 as collateral for the bond. Linnette McNorton asked Respondent to hold the ring as collateral until she could arrange to substitute some other collateral.

    
    

19. Liability on Mr. McNorton's bond was discharged by the court on July 14, 1992.

    
    

20. Respondent did not return Mrs. McNorton's ring within twenty-one days of discharge of liability on the bond as required by law.

    
    

21. Linnette McNorton continued to call Respondent for several months after her collateral was due to be returned. At no time during this period did Respondent return Mrs. McNorton's calls or inform her of the whereabouts of her ring. Approximately five months after Wentworth McNorton was released, Linnette

    McNorton and her husband went to Respondent's home and confronted him. Respondent advised the McNortons that he did not have the ring and that it had been turned over to the insurance company.

    
    

22. Sometime prior to September of 1992, employees of American Bankers took possession of Mrs. McNorton's ring along with other tangible collateral held by Respondent in a safe deposit box. As noted in paragraph 9 above, the evidence did not establish the exact date American Bankers took control of the collateral in the safe deposit box. At the time, Mrs. McNorton's ring was marked improperly and the staff of American Bankers was unable to identify which file it belonged with.

    
    

23. Mrs. McNorton's ring was finally returned to her on April 15, 1993 by American Bankers after they had determined that the mislabelled and unidentified ring in their possession was Mrs. McNorton's.

    
    

24. On or about March 13, 1992, American Bankers power of attorney numbers 0295546, 0295547, and 0295548 were executed for the issuance of three bail bonds on behalf of Kevin Krohn, the principle. The total face value of these three bonds was $3,000. The powers of attorney had been signed in blank by Linda Ratner. The other handwriting on the powers of attorney appears to be Respondent's, however, the circumstances surrounding the execution and delivery of these powers was not established.

    
    

25. The records obtained from Respondent's office on September 11, 1992 indicate that Jeanette Krohn, the indemnitor, paid $300 in premiums for the three bail bonds described in paragraph 24 and also put up $3,000 in cash collateral. The handwriting on the collateral receipts appears to be Ira Stern's however, the circumstances surrounding the execution of these documents was not established.

    
    

26. The last of the bonds described in paragraph 24 was discharged by the court on April 22, 1992.

    
    

27. In July of 1992, the Department received a complaint that Jeanette Krohn was unable to obtain the return of her $3,000 cash collateral. The Department notified American Bankers of the complaint and a representative of the insurance company contacted Respondent who advised that the collateral had been repaid on June 22, 1992 by check no. 1021 drawn on the trust account of Linda's Bail Bonds. June 22, 1992 was well beyond the twenty-one days provided by law for return of the collateral.

    
    

28. The check which Respondent told the insurance company was issued to return Ms. Krohn's collateral was purportedly signed by Linda Ratner. The check was dishonored by the bank.

    
    

29. The signature of Linda Ratner on the check given to Ms. Krohn was forged. The evidence was insufficient to establish who forged the signature.

    
    

30. American Bankers paid Jeanette Krohn $3,000 on or about January 8, 1993 as repayment for the cash collateral placed for the bonds.

    
    

31. In March of 1992, M. T. Heller contacted Respondent to procure a bail bond. Respondent arranged for the issuance of the bond.

32. When the bond was discharged, Mr. Heller returned to Respondent's office, where he dealt with Ira Stern in attempting to obtain return of the collateral.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

34. Pursuant to Section 648.45(2), Florida Statutes, Petitioner is authorized to discipline the license of a bailbondsman who is found guilty of violating any laws of this state relating to bail, violating any provision of the insurance code or violating any of the specific provisions of Section 648.45(2).

    
    

35. Petitioner has the authority to revoke or suspend a license pursuant to Section 648.45(2), Florida Statutes. Petitioner also has the authority to impose an administrative fine pursuant to Section 648.52, Florida Statutes and/or to place a licensee on probation for a period not to exceed two years pursuant to Section 648.53, Florida Statutes.

    
    

36. The standard of evidence to discipline an insurance license is that of clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

37. The Administrative Complaint alleges that Respondent violated Sections 648.34(2)(c), 648.441, 648.442(1), 648.442(3), 648.442(4), 648.45(2)(e), 648.45(2)(f), 648.45(2)(g), 648.45(2) (h), 648.45(2)(j), 648.45(2)(1), 648.45(2)(n), 648.45(3)(b), 648.45(3)(d), 648.45(7)(a), and 648.571, Florida Statutes, and Rule 4221.051, Florida Administrative Code.. These provisions provide as follows:

    
    

    648.34(2) To qualify as a bail bondsman, it must affirmatively appear at the time of application and through the period of licensure that:

    * * *

    (c) The place of business of the applicant will be located in this state and the applicant will be actively engaged in the bail bond business

    and maintain a place of business accessible to the public which is open for reasonable business hours.

    * * *

    648.44(7)(a) A person who has been convicted of

    or who has pleaded guilty or no contest to a felony or a crime involving moral turpitude or a crime punishable by imprisonment of 1 year or more under the law of any state, territory, or country, regard- less of whether adjudication of guilt was withheld, may not participate as a director, officer, manager,

    or employee of any bail bond agency or office thereof, or exercise direct or indirect control in any manner in such agency or office, or own shares in any closely

    held corporation which has any interest in any bail bond business. Such restrictions or engaging in the bail bond business shall continue to apply during a pending appeal.

    * * *

    648.441(1) 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 apointed by the insurer. . . .

    * * *

    648.442(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. Collateral security may not be used by the bondsman for his personal benefit or gain and must be returned in the same condition

    as received. A bail bondsman may not 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 in the name of the insurer; or

    4. Any other type of security approved by the council. The council 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.

       * * *

       648.442(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. . . .

       648.442(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 named in the collateral receipt unless another disposition is provided for by legal assignment of the right to receive the collateral to another person.

       * * *

       648.45(2) The Department shall deny, suspend, revoke, or refuse to renew any license or appointment issued under this chapter or the insurance code, and it shall suspend or revoke the eligibility of any person to hold a license or appointment 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:

       * * *

    5. Demonstrated lack of fitness or trustworthi- ness to engage in the bail bond business.

    6. Demonstrated lack of reasonably adequate knowledge and technical competence to engage in the transactions authorized by the license or permit.

    7. Fraudulent or dishonest practices in the conduct of business under the license or appointment.

    8. Misappropriation, conversion, or unlawful withholding of monies belonging to a surety, a principal, or others and received in the conduct of business under a license.

    * * *

    (j) Willful failure to comply with or willful violation of any proper order or rule of the depart- ment of willful violation of any provisions of this chapter or the insurance code.

    * * *

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

    * * *

    (n) Failure to return collateral as required by s. 648.571.

    * * *

    648.45(3) The Department may deny, suspend, revoke or refuse to renew any license or appointment issued under this chapter or the insurance code, or it may suspend or revoke the eligibility of any person to hold a license or appointment 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.

    * * *

    648.571 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 judgement 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.

    * * *

    4-221.051, Florida Administrative Code. Section 648.34(2)(c), Florida Statutes, is interpreted to mean that every bail bondsman be actively engaged in that business; that a place of business suitably designated as such must be maintained open and accessible to the public to render service during reasonable business hours.

    1. Each such place of business, and each branch office, shall be in the active full-time charge of a licensed bail bondsman.

    2. Each such place of business and each branch office shall have a separate and distinct entrance easily accessible to the public and used by the bail bondsman in the regular course of his business dealings with the public. Such entrance shall be suitably designated by a sign or other display, readable from

       a reasonable distance away, which provides at a minimum the business name and the name of every individually licensed bail bondsman employed at such place.

       Additionally, if a bail bond business is located in a building or structure which maintains a uniform office directory on its premises, the directory shall provide at a minimum the current name of that bail bond business.

    3. As used in this rule, the term "reasonable business hours" means at least eight hours daily between the hours of 8:00 a.m. and 6:00 p.m., Monday through Friday, except for legal holidays.

    
    

38. The evidence presented in this case clearly and convincingly established that Respondent received collateral in his role as a bailbondsman from the Agnews and the McNortons and failed to return that collateral within the time frame established by law.

    
    

39. Respondent contends that he cannot be held responsible for return of the collateral on any of the bonds in question because his wife signed the powers of attorney and the bonds were written through a corporation owned by his wife. The consumer witnesses in this case testified that they had no dealings with Linda Ratner. The evidence adduced at hearing established that Respondent negotiated the premiums and collateral and arranged for the issuance of the bonds in the Agnew and McNorton transactions. He also was involved in at least the botched attempt to return Jeanette Krohn's collateral. In all three cases, the collateral was not returned until well after the date provided by law.

    
    

40. Linda Ratner's signing of the powers of attorney does not relieve Respondent of complying with the provisions of Chapter 648, Florida Statutes. Section 648.442(3) provides that "collateral shall be received in the insurers name by the bail bondsman in his fiduciary capacity." Section 648.442(2) states that "when a bail bondsman accepts (emphasis added) collateral, he shall give a written receipt of it." As a licensed bail bondsman, Respondent was obligated

    to follow these and all other provisions of Chapter 648 irrespective of whether the bonds were issued in his name or in the name of a company he was working for. Respondent was clearly conducting business through Linda's Bail Bonds, his wife's company. This arrangement was apparently set up because Respondent was unable or unwilling to write bonds using his own license and/or company.

    Section 648.442 specifically places a fiduciary duty on the bondsman who receives the collateral from the indemnitor. When Respondent received the collateral, he was required to keep it separate and apart from other assets and, upon discharge, return it to the indemnitor within twenty-one days. In the Agnew and McNorton cases, Respondent failed to comply with these requirements.

    In the case of Jeanette Krohn, the evidence did not conclusively establish an involvement by Respondent until the attempted refund of the cash collateral.

    
    

41. In view of the foregoing, it is concluded that Petitioner has proven by clear and convincing evidence that Respondent has violated Sections 648.442, 648.45(2)(f), 648.45(2)(h), 648.45(2)(j), 648.45(2)(n) and 648.571, Florida Statutes, in the Agnew and McNorton transactions. Respondent took collateral from the Agnews and McNortons in his capacity as a bail bondsman and failed to return the collateral after discharge of the bonds in the manner prescribed by law. The evidence was also sufficient to establish that Respondent violated Section 648.45(2)(e) and (g) as a result of his involvement in the Krohn case. While Respondent's involvement in the receipt of the collateral in the Krohn case was not established, it is clear that Respondent was involved in the attempt to return that collateral via a forged check that bounced. Respondent has provided no explanation for his role in that botched attempt.

    
    

42. Petitioner has not proven by clear and convincing evidence that Respondent has violated Section 648.34(2)(c), Florida Statutes, and Rule 4.221.051, Florida Administrative Code, by failing to keep his office open and accessible to the public as alleged in Count IV of the Administrative Complaint. Testimony from Anna Agnew indicates that on one occasion her husband went by Respondent's office and it was not open. However, this hearsay testimony was not corroborated and it is not clear when the purported visit took place. While Respondent was certainly very difficult to reach by telephone when indemnitors sought the return of their collateral, this evidence alone is not enough to establish a violation of the cited statute and rule.

    
    

43. Petitioner has also failed to prove by clear and convincing evidence that Respondent continued to employ a convicted felon in violation of a Department of Insurance Order as alleged in Count V of the Administrative Complaint. While it would certainly be an incredible coincidence that the Ira Stern who was working out of the same office as Respondent and was conducting business on behalf of Respondent and Linda's Bail Bonds in 1992 was a different Ira Stern than the one referred to in the Department's 1989 Complaint, no evidence was presented to establish that the same person was involved in both instances. Moreover, no evidence was provided to establish that Ira Stern was an unlicensed person and/or that he was a convicted felon. In settling the earlier adminstrative complaint, Respondent specifically did not admit any of the allegations therein. Thus, there is no competent evidence of record that the Ira Stern in either case was a convicted felon. Accordingly, it must be concluded that Petitioner has failed to meet its burden of proof on this charge.

    
    

44. Respondent has demonstrated a lack of fitness and trustworthiness to engage in the business of bail bonds in violation of Section 648.45(2)(e), Florida Statutes and has failed to maintain the "high character and approved integrity" required for licensure as a limited surety agent by Section 648.34(2)(f), Florida Statutes. The foregoing violations demonstrate that

    Respondent is a source of injury and loss to the public and detrimental to the public interest in violation of Section 648.45(3)(d), Florida Statutes. All of the violations established in this case took place during the spring and summer of 1992. It should be noted that Respondent and Linda Ratner separated around this time. There is obviously a great deal of animosity between them.

    
    

45. In determining the appropriate penalty in this case, there are a number of factors to consider. The failure of a bail bondsman to timely return collateral is a serious offense. However, the evidence in this case did not establish that Respondent diverted any of the cash collateral to his personal use or even that he had any control over the escrow accounts into which the cash collateral was deposit. Thus, it cannot be concluded, based upon the evidence presented, that Respondent misappropriated or stole any collateral. Each accuses the other of fraud and neglect of the business. Respondent contends that his ex-wife, Linda Ratner, was acting irresponsibly and he should not be blamed for her mishandling of cash collateral and/or the failure to properly maintain the escrow accounts of Linda's Bail Bonds. The evidence presented in this case was insufficient to establish whether one or the other or both diverted the cash collateral. In sum, all that can be concluded is that Respondent took possession of collateral in his role as a bail bondsman and failed to insure that it was timely returned.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order finding Respondent

guilty of the violations alleged in Counts I, II, and III of the Administrative Complaint and dismissing Counts IV and V. As a penalty for the violations, an administrative fine of $1,500 should be imposed and the license issued to the Respondent, Barry Seth Ratner, under the purview of the Florida Department of Insurance should be suspended for a period of two years, followed by a two year probationary period.

DONE and ENTERED this 4th day of October, 1994, at Tallahassee, Florida.

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 4th day of October, 1994.

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.

Petitioner's proposed findings of fact

1. Subordinate to Findings of Fact 3.

2. Subordinate to Findings of Fact 4 and 9.

3. Subordinate to Findings of Fact 5.

4. Subordinate to Findings of Fact 24.

5. Subordinate to Findings of Fact 25.

6. Adopted in substance in Findings of Fact 26.

7. Subordinate to Findings of Fact 27.

8. Subordinate to Findings of Fact 28.

9. Subordinate to Findings of Fact 29.

10. Subordinate to Findings of Fact 30.

11. Subordinate to Findings of Fact 27 and 28.

12. Subordinate to Findings of Fact 17.

13. Adopted in substance in Findings of Fact 18.

14. Adopted in substance in Findings of Fact 19.

15. Adopted in substance in Findings of Fact 20.

16. Subordinate to Findings of Fact 22.

17. Subordinate to Findings of Fact 21.

18. Adopted in substance in Findings of Fact 23.

19. Subordinate to Findings of Fact 20 and 22.

20. Adopted in substance in Findings of Fact 11.

21. Adopted in substance in Findings of Fact 11.

22. Adopted in substance in Findings of Fact 13.

23. Adopted in substance in Findings of Fact 13.

24. Subordinate to Findings of Fact 16.

25. Adopted in substance in Findings of Fact 14.

26. Adopted in substance in Findings of Fact 31.

27. Subordinate to Findings of Fact 32.

28. Adopted in substance in Findings of Fact 10.

29. Subordinate to Findings of Fact 33.

30. Adopted in substance in Findings of Fact 2.

31. Subordinate to Findings of Fact 34.

Respondent's proposed findings of fact

1. Adopted in substance in Findings of Fact 1 and 3.

2. The first sentence is adopted in substance in Findings of Fact 1. The second sentence is adopted in substance in Findings of Fact 4. The third sentence is adopted in substance in Findings of Fact 9. The remainder is rejected as unnecessary.

3. Adopted in substance in Findings of Fact 6.

4. Subordinate to Findings of Fact 11 and 15.

5. Subordinate to Findings of Fact 17-23.

6. Subordinate to Findings of Fact 24-30.

7. Subordinate to Findings of Fact 14.

8. Subordinate to Findings of Fact 2 and 31-34.

9. Addressed in the Preliminary Statement.

COPIES FURNISHED:

Joseph D. Mandt, Esquire Division of Legal Services 612 Larson Building

Tallahassee, Florida 32399-0333

Joseph R. Fritz, Esquire 4204 North Nebraska Avenue Tampa, Florida 33603

Tom Gallagher

State Treasurer and Insurance Commissioner

The Capitol, Plaza Level Tallahassee, Florida 32399-0300

Bill O'Neil, Esquire General Counsel Department of Insurance The Capitol, PL-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 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: 93-005304

Orders for Case No: 93-005304