STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE, )

)

Petitioner, )

)

vs. ) CASE NO. 95-3032

)

NOEL ANGEL RIVERA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Hearing Officer, Joyous D. Parrish, held a formal hearing in the above-styled case on December 5, 1995, in Miami, Florida.

APPEARANCES

For Petitioner: Dickson E. Kesler, Esquire

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

Miami, Florida 33166 For Respondent: No appearance.

STATEMENT OF THE ISSUES

The central issue in this case is whether the Respondent committed violations as alleged in the amended administrative complaint and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case began on May 24, 1995, when the Petitioner, Department of Insurance (Department), filed an administrative complaint against the Respondent, Noel Angel Rivera. The complaint alleged violations of Chapter 648, Florida Statutes, and claimed Respondent had directly, or indirectly, solicited business in or on the property or grounds of a jail or in or on the property of any court in violation of Section 648.44(1)(b), Florida Statutes. Additionally, Petitioner claimed three other violations of Section 648.45(2), Florida Statutes, all stemming from the same conduct.

The Respondent filed an election of rights which disputed the factual allegations and requested a formal adversary hearing. The matter was forwarded to the Division of Administrative Hearings for formal proceedings on June 19, 1995.

The Department's request for leave to file an amended administrative complaint was granted. At hearing the Department further moved to correct what has been determined to be a scrivener's error which correction has also been

allowed. More specifically, the identification of the business cards in counts I and II have been reversed: the "A-Alternative Release Bail Bond Programs, Inc." card relates to count II; the "Estrella Bail Bonds" card relates to count I.

At the hearing, the Department presented the testimony of Elsa De La Cruz, an insurance specialist employed by the Department; Maggie Porto, an investigator employed with the Department; and Berthon Powell, a special investigator coordinator also employed by the Department. The Department's exhibits numbered 1 through 5 have been admitted into evidence. The Respondent did not appear for hearing and no evidence was presented on his behalf.

The transcript of the hearing was filed on January 9, 1996. Specific rulings on the proposed findings of fact submitted by the Petitioner are included in the appendix at the conclusion of this order.

FINDINGS OF FACT

1. At all times material to the allegations of this case the Respondent has been licensed as a limited surety agent.

   
   

2. On April 10, 1995, Elsa De La Cruz went to the criminal courthouse in Miami, Dade County, Florida, and waited on the fifth floor.

   
   

3. A male who represented himself to be Respondent approached Ms. De La Cruz and asked her if he could help her. He specifically wanted to know if she was there to bail someone out and identified himself as a bail bondsman.

   
   

4. The male also gave Ms. De La Cruz a business card bearing Respondent's name and business location.

   
   

5. Ms. De La Cruz left the fifth floor of the courthouse and walked to the east wing which is commonly referred to as "the jail wing." The same male was also there and again approached Ms. De La Cruz. At this time he advised her that if the bond was set at $10,000, he would need $1,000 and collateral to help her.

   
   

6. Ms. De La Cruz left the property and returned to her office to complete the affidavit which is Petitioner's exhibit 2.

   
   

7. Ms. De La Cruz did not initiate any of the contact between herself and the male who represented himself as Respondent.

   
   

8. On April 11, 1995, Maggie Porto went to the criminal courthouse in Miami, Dade County, Florida, and waited on the fifth floor.

   
   

9. A male who later identified himself as Respondent initiated contact with Ms. Porto and advised her that he was in business if she needed him.

   
   

10. After a short while, Ms. Porto left the fifth floor and walked over to the east wing of the criminal center.

    
    

11. Upon her arrival there, the same male handed Ms. Porto a business card. When Ms. Porto asked the male if he was the man identified on the card, the subject answered "yes." The business card represented Respondent's name.

12. Later, Ms. Porto left the criminal center and returned to her office to complete the affidavit which is Petitioner's exhibit number 3.

    
    

13. All contact between Ms. Porto and Respondent was initiated by the Respondent.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

15. Section 648.44(1)(b), Florida Statutes, provides:

    
    

    (b) 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.

    
    

16. Section 648.45(2), Florida Statutes, provides, in pertinent part:

    
    

    (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:

    * * *

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

    * * *

    (j) Willful failure to comply with or willful violation of any proper order or rule of the department or willful violation of any pro- vision of this chapter or the insurance code.

    
    

17. Section 648.45(3), Florida Statutes, provides, in pertinent part:

    
    

    (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.

    
    

18. Rule 4-221.095, Florida Administrative Code, provides:

    
    

    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 adver- tises bail bond services; or

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

       3. Parking 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 busi-

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

    3. For the purposes of this rule, the property or grounds of a court, jail, prison, or other place where prisoners are confined shall include all parking lots and parking spaces adjacent to such places or adjacent to public walkways adjacent to such places.

       
       

19. In this case, the Department has established by clear and convincing evidence that Respondent violated provisions of Chapter 648, Florida Statutes. It is concluded that Respondent solicited two employees of the Department for bail bond business in violation of Section 648.44(1)(b), Florida Statutes.

    
    

20. Further, such conduct demonstrates Respondent is not trustworthy to engage in licensed activities as provided in Section 648.45(2)(e), Florida Statutes.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That the Department of Insurance and Treasurer enter a final order revoking Respondent's license.

DONE AND ENTERED this 8th day of February, 1996, in Tallahassee, Leon County, Florida.

JOYOUS D. 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 8th day of February, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3032

Rulings on the proposed findings of fact submitted by Petitioner:

1. Paragraphs 1, 4, 5 and 6 are accepted.

2. With regard to paragraph 2, the allegation as to the time of the incident is rejected as not supported by the record or hearsay.

3. With regard to paragraph 3, the allegation as to when the business card was delivered to Ms. De La Cruz is rejected as contrary to the weight of the record.

Rulings on the proposed findings of fact submitted by Respondent:

1. None submitted.

COPIES FURNISHED:

Bill Nelson

State Treasurer and Insurance Commissioner

Department of Insurance The Capitol, Plaza Level

Tallahassee, Florida 32399-0300

Dan Sumner

Acting General Counsel Department of Insurance The Capitol, PL-11

Tallahassee, Florida 32399-0300

Dickson E. Kesler, Esquire Division of Agent

and Agency Services

8070 Northwest 53rd Street, Suite 103

Miami, Florida 33166

Noel A. Rivera

2200 Northwest 11th Street Miami, Florida 33172

Anthony Alvarez

350 Sevilla Avenue, Suite 201 Coral Gables, Florida 33134

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: 95-003032

Orders for Case No: 95-003032