STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE )

AND TREASURER, )

)

Petitioner, )

)

vs. ) CASE NO. 95-2142

)

LOUDELLE DAVIS JENKINS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on December 19, 1995, and on April 12, 1995, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Dickson E. Kesler, Esquire

Department of Insurance and Treasurer Division of Agent and Agency Services 8070 Northwest 53rd Street, Suite 103

Miami, Florida 33166 For Respondent: No appearance.

STATEMENT OF THE ISSUES

Whether Respondent, a bail bondsman, committed the offenses alleged in the Amended Administrative Complaint and the penalties, if any, that should be imposed.

PRELIMINARY STATEMENT

Respondent is licensed by Petitioner as a bail bondsman. In March 1995, Petitioner filed an Administrative Complaint against Respondent that contained certain factual allegations and, based on those facts, asserted that Respondent committed multiple violations of the statutes regulating bail bondsmen. The Respondent timely requested a formal hearing, the matter was referred to the Division of Administrative Hearings, and this proceeding followed. In November 1995, Petitioner moved to amend the administrative complaint it had filed against Respondent. Without objection, this motion was granted on December 8, 1995, and the "First Amended Administrative Complaint" was substituted for the Administrative Complaint that had been filed in March. The First Amended Administrative Complaint contained certain factual allegations and, based on those allegations, asserted that Respondent committed multiple violations of the statutes regulating bail bondsmen. The First Administrative Complaint contained thirteen separate counts. Eleven of the counts involved allegations that

Respondent mishandled or failed to return either premium or collateral that had been entrusted to her despite an obligation to do so. The remaining two counts involved allegations that Respondent permitted her husband, a revoked bail bondsman who had entered a plea of guilty to a felony charge, to participate in her business.

Respondent did not appear at the formal hearing, but her husband appeared on the first day of the hearing. The Respondent's husband asserted that the Respondent was unable to attend the first day of the formal hearing because she was ill. That explanation contained contradictions and lacked credibility.

Because Petitioner had assembled fifteen witnesses, it was permitted to go forward with the presentation of its case. Respondent was provided a copy of the transcript and of all exhibits from the first day of the formal hearing. A second day of hearing was scheduled so that the Respondent could attend and present any evidence she chose to present, including calling any witnesses that had been called by Petitioner on the first day of the hearing. She made no appearance on the second day of the hearing.

At the formal hearing, the Petitioner presented the testimony of fifteen witnesses and offered twenty exhibits, each of which was admitted into evidence.

A transcript of the proceedings has been filed. The proposed findings of fact submitted by Petitioner are adopted in material part by the Recommended Order. The Respondent did not file a post-hearing submittal.

FINDINGS OF FACT

1. At all times pertinent to this proceeding, Respondent was licensed by Petitioner as a limited surety and as a professional bail bondsman.

   
   

2. Prior to November 23, 1992, Gredys Tarazona entered into an agreement for Respondent to post a bond for James Johansen. In connection with that transaction, Ms. Tarazona delivered to Respondent the sum of $200 that was to serve as collateral security for the bond. They agreed that the sum of $200 would be returned to Ms. Tarazona once the conditions of the bond had been satisfied. On November 23, 1992, the conditions of this bond were satisfied and the liability on the underlying bond was terminated. Respondent failed to return the sum of $200 to Ms. Tarazona despite demands for her to do so.

   
   

3. Prior to August 23, 1992, Julian Maldonado purchased a bail from Respondent. In connection with that transaction, Mr. Maldonado delivered to Respondent the sum of $200 that was to serve as collateral security for the bond. They agreed that the sum of $200 would be returned to Mr. Maldonado once the conditions of the bond had been satisfied. On August 23, 1992, the conditions of this bond were satisfied and the liability on the underlying bond was terminated. Respondent failed to return the sum of $200 to Mr. Maldonado despite demands for her to do so.

   
   

4. Prior to April 1, 1993, Faye Finley entered into an agreement for Respondent to post a bond for Michael Finley. In connection with that transaction, Ms. Finley delivered to Respondent the sum of $200 that was to serve as collateral security for the bond. They agreed that the sum of $200 would be returned to Ms. Finley once the conditions of the bond had been satisfied. On April 1, 1993, the conditions of this bond were satisfied and the liability on the underlying bond was terminated. Respondent failed to return the sum of $200 to Ms. Finley despite demands for her to do so.

5. Prior to November 8, 1992, Robert Post purchased a bail from Respondent. In connection with that transaction, Mr. Post delivered to Respondent the sum of $150 that was to serve as collateral security for the bond. They agreed that the sum of $150 would be returned to Mr. Post once the conditions of the bond had been satisfied. On November 8, 1992, the conditions of this bond were satisfied and the liability on the underlying bond was terminated. Respondent failed to return the sum of $150 to Mr. Post despite demands for her to do so.

   
   

6. Prior to December 10, 1992, Jo Anne Adams entered into an agreement for Respondent to post a bond for Wilfred Byam. In connection with that transaction, Ms. Adams delivered to Respondent the sum of $200 that was to serve as collateral security for the bond. They agreed that the sum of $200 would be returned to Ms. Adams once the conditions of the bond had been satisfied. On December 10, 1992, the conditions of this bond were satisfied and the liability on the underlying bond was terminated. Respondent failed to return the sum of

   $200 to Ms. Adams despite demands for her to do so.

   
   

7. Prior to December 22, 1992, Shannon Davidson purchased a bail bond from Respondent. In connection with that transaction, Mr. Davidson delivered to Respondent the sum of $250 that was to serve as collateral security for the bond. They agreed that the sum of $250 would be returned to Mr. Davidson once the conditions of the bond had been satisfied. On December 22, 1992, the conditions of this bond were satisfied and the liability on the underlying bond was terminated. Respondent failed to return the sum of $250 to Mr. Davidson despite demands for her to do so.

   
   

8. Prior to July 23, 1993, Albert Perone entered into an agreement for Respondent to post a bond for Richard Falaro. In connection with that transaction, Mr. Perone delivered to Respondent the sum of $250 that was to serve as collateral security for the bond. They agreed that the sum of $250 would be returned to Mr. Perone once the conditions of the bond had been satisfied. On July 23, 1993, the conditions of this bond were satisfied and the liability on the underlying bond was terminated. Respondent failed to return the sum of $250 to Mr. Perone despite demands for her to do so.

   
   

9. Respondent permitted her husband, Ken Jenkins, to participate in the transaction involving the bail bond purchased by Mr. Perone for Mr. Falaro. At the time she permitted him to engage in the conduct of her bail bondsman business as part of the Perone transaction, Respondent knew or should have known that her husband's license as a bail bondsman had been revoked and that he had entered a plea of guilty to a felony charge in a criminal proceeding.

   
   

10. On or about April 27, 1993, Respondent received payments totaling $650 for placement of a bond from Angelene G. Goulos. No bond was posted by the Respondent. Respondent failed to return any part of the sum she had received from Ms. Goulos despite demands for her to do so.

    
    

11. Prior to November 18, 1992, Ross Rankin purchased a bail bond from Respondent. In connection with that transaction, Mr. Rankin delivered to Respondent the sum of $250 that was to serve as collateral security for the bond. They agreed that the sum of $250 would be returned to Mr. Rankin once the conditions of the bond had been satisfied. On November 18, 1992, the conditions of this bond were satisfied and the liability on the underlying bond was terminated. Respondent failed to return the sum of $250 to Mr. Rankin despite demands for her to do so.

12. Prior to May 18, 1993, Mary Pilcher entered into an agreement for Respondent to post a bond for Hassan Niksirat. In connection with that transaction, Ms. Pilcher delivered to Respondent the sum of $200 that was to serve as collateral security for the bond. They agreed that the sum of $200 would be returned to Ms. Pilcher once the conditions of the bond had been satisfied. On May 18, 1993, the conditions of this bond were satisfied and the liability on the underlying bond was terminated. Respondent failed to return the sum of $200 to Ms. Pilcher despite demands for her to do so.

    
    

13. Prior to March 31, 1993, Tania Rodriguez, a/k/a, Tania Cuevas entered into an agreement for Respondent to post a bond for Edwin Cuevas. In connection with that transaction, Ms. Rodriguez delivered to Respondent the sum of $400 that was to serve as collateral security for the bond. They agreed that the sum of $400 would be returned to Ms. Rodriguez once the conditions of the bond had been satisfied. On March 31, 1993, the conditions of this bond were satisfied and the liability on the underlying bond was terminated. Respondent failed to return the sum of $400 to Ms. Rodriguez despite demands for her to do so.

    
    

14. On May 4, 1993, and May 6, 1993, Respondent permitted her husband, Ken Jenkins, to conduct bail bond business in transactions with Mary Gandy, another bail bondsman. At the time she permitted him to engage in the conduct of her bail bondsman business in transactions with Ms. Gandy, Respondent knew or should have known that her husband's license as a bail bondsman had been revoked and that he had entered a plea of guilty to a felony charge in a criminal proceeding.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

16. Petitioner has the burden of proving the allegations against Respondent by clear and convincing evidence. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So.2d 112 (Fla. 1st DCA 1989).

    
    

17. Bail bondsmen are regulated by the Department of Insurance pursuant to the provisions of Chapter 648, Florida Statutes.

    
    

18. Section 648.442, Florida Statutes, provides, in pertinent part, as follows:

    
    

    1. Collateral security or other indemnity accepted by a bail bondsman . . .shall be returned upon termination of liability on the bond. . . .

       * * *

       1. Such collateral security shall be received in the insurer's name by the bail bondsman in his fiduciary capacity . . .

       2. 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 dis-

       position is provided for by legal assignment of the right to receive the collateral to another person.

       
       

19. Section 648.45(2), Florida Statutes, provides, in pertinent part, as follows:

    
    

    (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 re- voke the eligibility of any person to hold a license or appointment under this chapter or the insurance code, for any violation of the insurance code or for any of the following causes:

    * * *

    (e) Demonstrated lack of fitness or trust- worthiness to engage in the bail bond business.

    * * *

    1. Fraudulent or dishonest practices in

       the conduct of the business under the license or appointment.

    2. Misappropriation, conversion, or unlaw- ful withholding of money's belonging to a surety, a principal, or others received in the conduct of business under a license.

    * * *

    (j) Willful failure to comply with or will- ful 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.

    * * *

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

    
    

20. Section 648.571, Florida Statutes, provides, in pertinent part, as follows:

    
    

    A bondsman who has taken collateral . . . shall, upon demand, return the collateral to the person from whom it was received within

    21 days after the bail bond has been dis- charged in writing by the court.

    
    

21. Section 648.44(7), Florida Statutes, provides, in pertinent part, as follows:

    
    

    (7)(a) A person who has been convicted of or who has pleaded guilty or no contest to a felony . . . regardless of whether adjudica- tion of guilt was withheld, may not particip-

    ate as a director, officer, manager, or emp- loyee of any bail bond agency or office there- of or exercise direct or indirect control in any manner in such agency or office or own shares in any closely held corporation which has nay interest in any bail bond business.

    Such restrictions on engaging in the bail bond business shall continue to apply during a pending appeal.

    (b) A person who violates the provisions of paragraph (a) or any person who knowingly permits a person who has been convicted of or who has pleaded guilty or no contest to a crime as described in paragraph (a) to engage in the bail bond business as prohibited in paragraph (a) commits a felony of the third degree . . .

    
    

22. Petitioner proved by clear and convincing evidence that Respondent failed and refused to deliver collateral receipts as required by Section 648.571, Florida Statutes. This failure established a violation of Section 648.45(1)(n), Florida Statutes. Respondent's misconduct also established that she lacks the trustworthiness necessary to engage in the bail bond business in violation of Section 648.45(1)(e), Florida Statutes.

    
    

23. Petitioner also established by clear and convincing evidence that she permitted her husband to engage in her bail bond business in violation of Section 648.44(7)(b), Florida Statutes, thereby violating the provisions of Section 648.45(2)(j), Florida Statutes.

    
    

24. Pursuant to Section 624.01, Florida Statutes, Chapters 624 through 632, 634, 635, 637, 638, 641, 642, 648, and 651 constitute the Florida Insurance Code.

    
    

25. Because Petitioner establish that Respondent lacks the trustworthiness necessary to engage in the bail bond business, her existing licensure and her eligibility for licensure under the Florida Insurance Code should be revoked as authorized by Section 648.45(2), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order that adopts the

findings of fact and conclusions of law contained herein. It is further

recommended that Petitioner revoke Respondent's existing licensure and her eligibility for licensure under the Florida Insurance Code.

DONE AND ENTERED this 7th day of June, 1996, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON, 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 7th day of June, 1996.

COPIES FURNISHED:

Bill Tharpe, Esquire Division of Legal Services 612 Larson Building

Tallahassee, Florida 32399-0333

Dickson E. Kesler, Esquire

Division of Agent and Agency Services 8070 N.W. 53rd Street, Suite 103

Miami, Florida 33166

Loudelle Davis Jenkins 1372 Northampton Terrace

West Palm Beach, Florida 33414

Honorable Bill Nelson

State Treasurer and Insurance Commissioner The Capitol, Plaza Level

Tallahassee, Florida 32399-0300

Dan Sumner, General Counsel Department of Insurance and Treasurer 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.

Docket for Case No: 95-002142

Orders for Case No: 95-002142