STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE, )

)

Petitioner, )

)

vs. ) Case No. 99-2919

)

RAY HENRY ANDERSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held on October 8, 1999, in New Port Richey, Florida, before Carolyn Holifield, a duly- designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Dickson E. Kesler, Esquire

Division of Legal Service Department of Insurance

401 Northwest 2nd Avenue, Suite N-321 Miami, Florida 33128

For Respondent: No Appearance

STATEMENT OF THE ISSUES

Whether Respondent violated Section 648.30(1), Florida Statutes, and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On June 3, 1999, Petitioner, Department of Insurance and Treasurer (Department), filed a Notice of Intent to Issue Cease and Desist Order and Assess Penalty against Respondent, Ray Henry

Anderson (Respondent), alleging that he was not currently nor was he at all times relevant to the notice, licensed in the State of Florida as a limited surety agent. It was further alleged that on February 6, 1998, in the Circuit Court of Pasco County, Florida, in Case No. 9603891CFAWS, Respondent entered a plea of nolo contendere and was adjudicated guilty of the offense of attempting to perform the responsibilities of bail bondsman without a license, a first-degree misdemeanor, in violation of Section 648.30, Florida Statutes.

Respondent challenged the charges and requested a formal administrative proceeding. On July 8, 1999, the matter was sent to the Division of Administrative Hearings for assignment of an administrative law judge. On July 25, 1999, prior to the final hearing, the Department served on Respondent a Request for Admissions. On September 13, 1999, after Respondent failed to respond to the Request for Admissions, the Department served on Respondent a Notice of Filing Admissions. The notice advised Respondent it intended to rely upon the matters in the Request for Admissions. As of the date of the final hearing, the Request for Admissions remained unanswered by Respondent. Accordingly, the matters in the Request for Admissions are deemed admitted.

At hearing, the Department offered and had two exhibits received into evidence. The Department called no witnesses. Respondent failed to appear at hearing and no documentary evidence or witnesses were presented on his behalf.

A Transcript of the proceeding was filed on October 8, 1999.

The Department timely filed proposed Findings of Fact and Conclusions of Law. No post-hearing submittals were filed by or on behalf of Respondent.

FINDINGS OF FACT

1. On June 3, 1999, pursuant to Section 626.9581, Florida Statutes, the Department filed a Notice of Intent to Issue Cease and Desist Order and Assess Penalty against Respondent, alleging that he was not currently nor was he at all times relevant to the notice, licensed to transact bail bond business in the State of Florida.

2. Respondent requested a hearing in the matter but failed to appear at the appointed time and place duly noticed for the administrative hearing in this matter.

3. Respondent is not and was not at all times relevant to the subject matter of Petitioner's Notice of Intent to Issue Cease and Desist Order and Assess Penalty, licensed to transact bail bond business in the State of Florida.

4. On February 6, 1998, Respondent, in the Circuit Court of Pasco County, Florida, in Case No. 9603891CFAWS, entered a plea of nolo contendere and was adjudicated guilty attempting to perform the responsibilities of a bail bondsman without a license, a first-degree misdemeanor, in violation of Section 648.30, Florida Statutes.

5. It is a violation of Chapter 648, Florida Statutes, for an unlicensed person to act in the capacity or attempt to act in the capacity of a bail bond agent, temporary bail bond agent, or runner or perform or attempt to perform any of the functions, duties, or powers prescribed therefor.

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings pursuant to Chapter 120, Florida Statutes.

7. Pursuant to the Florida Insurance Code and Chapter 648, Florida Statutes, the Department of Insurance and Treasurer has jurisdiction over the parties to and the subject matter of the bail bond-related business activities of Respondent.

8. Here it is alleged that Respondent violated Section 648.30(1), Florida Statutes, which provides as follows:

   A person may not act in the capacity of a bail bond agent, temporary bail bond agent, or runner or perform any of the functions, duties, or powers prescribed for bail bond agents or runners under this chapter unless that person is qualified, licensed, and appointed as provided in this chapter.

   
   

9. Based on the above-quoted provision, it is a violation of Section 648.30(1), Florida Statutes, for an unlicensed person to act in the capacity or attempt to act in the capacity of a bail bond agent, temporary bail bond agent, or runner or perform or attempt to perform any of the functions, duties, or powers prescribed therefor.

10. In the instant case, the Department has established by clear and convincing evidence that Respondent is not and was not at all times relevant to the subject matter of the Department's Notice of Intent to Issue Cease and Desist Order and Assess Penalty against Respondent, licensed to transact bail bond business in the State of Florida.

11. Moreover, the Department established by clear and convincing evidence that on February 6, 1998, in the Circuit Court of Pasco County, Florida, in Case Number 9603891CFAWS, Respondent entered a plea of nolo contendere and was adjudicated guilty of attempting to perform the responsibilities of bail bondsman without a license, a first degree misdemeanor, in violation of Section 648.30(1), Florida Statutes.

12. The conduct for which Respondent was adjudicated guilty is a violation of Section 648.30(1), Florida Statutes.

13. If, after a final hearing, it is determined that a person has engaged in the unfair or deceptive act or practice or the unlawful transaction of insurance, the Department is required to issue an order requiring the violators to cease and desist from engaging in the prohibited act. Section 626.95, Florida Statutes. That section provides in relevant part the following:

    After the hearing provided in s. 626.95, the department shall enter a final order in accordance with s. 120.569. If it is determined that the person charged has engaged in an unfair or deceptive act or practice or the unlawful transaction of insurance, the department shall also issue an order requiring the violator to cease and

    desist from engaging in such method of completion, act, or practice or the unlawful transaction of insurance . . . .

    
    

14. Here, the evidence established that Respondent engaged in deceptive acts. Accordingly, pursuant to Section 626.9581, Florida Statutes, Petitioner is authorized to issue an order requiring Respondent to cease and desist from engaging in such act.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Department of Insurance and Treasurer:

1. Enter a final order finding that Respondent engaged in a deceptive act by acting or attempting to act in the capacity of a bail bond agency.

2. Issue a Cease and Desist Order directing Respondent to immediately cease and desist from acting or attempting to act in the capacity of a bail bond agent until or unless he is properly licensed pursuant to the provisions of Chapter 648, Florida Statutes.

DONE AND ENTERED this 23rd day of November, 1999, in Tallahassee, Leon County, Florida.

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November, 1999.

COPIES FURNISHED:

Bill Nelson

Commissioner of Insurance and Treasurer Department of Insurance

The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300

Daniel Y. Sumner, General Counsel Department of Insurance

The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300

Ray Henry Anderson 13933 Muriez Avenue

Hudson, Florida 34667

Dickson E. Kesler, Esquire Department of Insurance

401 Northwest Second Avenue, Suite N-321 Miami, Florida 33128

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 99-002919

Orders for Case No: 99-002919