STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF INSURANCE,
Petitioner,
vs.
DONALD FRANK SHIREY, JR.,
Respondent.
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) Case No. 02-2137PL
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RECOMMENDED ORDER
This cause came on for formal hearing before P. Michael Ruff, duly-designated Administrative Law Judge of the Division of Administrative Hearings, as noticed, on July 18, 2002, in Jacksonville, Florida. The appearances were as follows:
APPEARANCES
For Petitioner: Richard J. Santurri, Esquire
Department of Insurance Division of Legal Services
200 East Gaines Street Tallahassee, Florida 32399-0333
For Respondent: Donald Frank Shirey, Jr., pro se
5337 107th Street
Jacksonville, Florida 32244 STATEMENT OF THE ISSUE
The issue to be resolved in this proceeding concerns whether the Respondent's bail bond agent's License issued by the State of Florida should be subjected to sanctions for alleged violation of certain provisions of Chapter 648, Florida
Statutes, and related rules, as described in the First Amended Administrative Complaint.
PRELIMINARY STATEMENT
On April 25, 2002, the Petitioner, the Florida Department of Insurance and Treasurer (Department) filed a seven-count complaint against the Respondent, a licensed Florida bail bond agent, alleging that he violated certain provisions of Chapter 648, Florida Statutes, and Chapter 4-221, Florida Administrative Code. The Respondent executed an Election of Rights requesting a formal proceeding to contest the allegations of the Complaint. On June 28, 2002, the Complaint was amended and the Department elected to proceed on the First Amended Administrative Complaint, consisting of six counts. Those counts allege, in essence, that the Respondent surrendered various defendants to jail, terminating his obligation on their bail bonds, and failed to refund the bond premiums.
On June 13, 2002 and June 14, 2002, the Department filed three separate notices of taking deposition and of intent to use deposition in place of live testimony. Pursuant to those notices the Department deposed Kevin Smith, Patrick Andrade, and Darrel Irving. Those depositions were admitted into evidence as Department's Exhibits 13, 14, and 15.
The cause came on for hearing on July 18, 2002, in Jacksonville, Florida, before the undersigned Administrative Law
Judge. The Department introduced 16 exhibits numbered P1 through P16, which were admitted into evidence without objection. The Respondent introduced two documents into evidence identified as Respondent's Exhibits 1 and 2 or "R1 and R2." The documents amounted to hearsay and thus could not in themselves support any finding of fact, but they were admitted pursuant to 120.57(1)(c), Florida Statutes, for the limited purpose of supplementing, explaining or corroborating other admissible evidence.
In addition to introducing into evidence the depositional testimony of the three deponents referenced above, the Department called as witnesses David Jerrett, Jeanette Alzola, Vallie Andrade, Janice Smith and the Respondent. The Department moved, ore tenus, for leave to allow Jeanette Alzola to testify via telephone. That motion was granted without objection, but the undersigned required the Department to file a notarized Affidavit from Ms. Alzola no later than seven days from the filing date of the transcript, certifying that the portion of the transcript that contains her testimony accurately reflects her testimony and that her testimony was truthful. This Affidavit was filed on September 3, 2002, and has been identified and admitted as Petitioner's Exhibit 17. The Respondent testified on his own behalf and was cross-examined by the Department.
Upon conclusion of the proceeding a transcript thereof was ordered and the parties availed themselves of the right to submit Proposed Recommended Orders. Those Proposed Recommended Orders have been considered in the rendition of this Recommended Order.
FINDINGS OF FACT
The Petitioner is an agency of the State of Florida charged by statute and rule with regulating the entry to licensure, and regulating the practice, of bail bond agents such as the Respondent. The Respondent Donald Frank Shirey was, at times pertinent hereto, a licensed bail bond agent regulated by the Department. The Respondent was a corporate officer and director of Donald Shirey and Associates, Inc., located, at times pertinent hereto, at 112 East Adams Street, Jacksonville, Florida ("Associates"). It was an entity engaged in the bail bond business.
The Respondent employed Robert Meyers, James Kinard and Michael Suttles as licensed bail bond agents.
Count I
On September 25, 1998, Darryl Gerald Irving was incarcerated in the Duval County Jail. The amount of his bond was set at $5003.00, with a premium of $500.00. On that date, the Respondent posted a bail bond for Darryl Gerald Irving. After bonding Mr. Irving out of jail, the Respondent took him to
Mr. Irving's former employer, Target, to obtain a check (number 8215734), in the amount of $172.23. The check was signed over to the Respondent as partial payment for the bail bond premium.
The Respondent and Mr. Irving then went to the Respondent's office were they called Mr. Irving's girlfriend, Sandra Jennings, who paid the remainder of the bond premium.
Mr. Irving then completed Petitioner's Exhibit 3, at the Respondent's office. On this document he listed his address as 3273 University Boulevard, Apartment 244. The address listed on his driver's license is 3273 University Boulevard, Apartment
255. The address listed on his Target check stub is 1706 Art Museum Drive, Apartment G-11. Mr. Irving explained that he would be living at 3273 University Boulevard, Apartment 244, and that the addresses on his driver's license and check stub were prior addresses. The Respondent, however, alleged that
Mr. Irving put an incorrect or non-existent address on the document (Petitioner's Exhibit 3), but he never verified that. The Respondent surrendered Mr. Irving back to the Duval County Jail, terminating his liability on the bond, on the theory that Mr. Irving had entered an incorrect address on the document, Petitioner's Exhibit 3; the address he where he would be living, instead of his driver's license address or the address appearing on the check stub from his employer. On this basis, the Respondent returned him to the Duval County Jail for
incarceration and retained the $500.00 bond premium paid by Mr. Irving.
From the time the Respondent bonded Mr. Irving out of jail until the time he surrendered him back to jail, Mr. Irving remained in the Respondent's custody. Mr. Irving was in handcuffs except for the time when he was completing the written bond documents. At no time was Mr. Irving free to leave the Respondent's custody.
Count II
On January 8, 1998, the Respondent posted a bail bond for Patrick Andrade in the amount of $3,656.00. The bond premium thereon was $365.60, which was paid by Mr. Andrade. The documents marked as Petitioner's Exhibit 6, were completed and signed by Mr. Andrade.
After being bonded out of jail, the Respondent took Mr. Andrade to the Respondent's home. While there he engaged in sexual relations with Mr. Andrade. When Mr. Andrade was no longer willing to engage in sexual relations with the Respondent, the Respondent surrendered him back to jail for
re-incarceration and retained the bond premium. Count III
On February 14, 1998, the Respondent posted a bail bond for Patrick Andrade in the amount of $50,003.00. The bond premium was $5,003.00. Mr. Andrade paid $2,500.00, as a down
payment and paid an additional $1,200.00, of the bond premium for a total of $3,700.00, before being surrendered back to jail by the Respondent. The documents marked as Petitioner's Exhibit 7 in evidence, were completed and signed by Mr. Andrade. After being bonded out of jail, Mr. Andrade was taken by the Respondent to the Respondent's home where he spent several days and engaged in sexual relations with the Respondent. On February 25, 1998, when Mr. Andrade was no longer willing to engage in sexual relations with the Respondent and wished to go home to his wife, the Respondent surrendered Mr. Andrade to the Clay County Jail for re-incarceration and again retained the bond premium.
Count IV
On September 24, 1998, the Respondent again posted a bond for Mr. Andrade in the amount of $1,502.00. The bond premium of $150.20 was paid by Mr. Andrade and he signed the documents in evidence as Petitioner's Exhibit 8. After being bonded out of jail, Mr. Andrade was again taken to the Respondent's home where he stayed for several days and engaged in sexual relations with the Respondent. Thereafter, when
Mr. Andrade wished to go home to his wife the Respondent instead surrendered him to the Clay County Jail and retained the bond premium already paid.
Count V
Ms. Jeanette Alzola met with the Respondent at his office on April 7, 1999, and entered into an agreement with the Respondent to provide for the bond of Pabel Romero Martinez from incarceration in the Lee County Jail in Fort Myers, Florida. Mr. Martinez's bond was $150,000.00. Ms. Alzola paid a premium of $15,000.00, and a transfer fee of $100.00. She posted the Deed for her house and the title to her car as collateral for the bond.
When Ms. Alzola met with the Respondent she explained that Mr. Martinez would be living with her at her residence. She also told the Respondent that Mr. Martinez had difficulties comprehending English and would need assistance completing the required documents. She requested that Mr. Shirey contact her when Mr. Martinez was brought to the Respondent's office so that she could function as a translator and assist him in completing the documents. On April 9, 1999, the Respondent went to the Lee County Jail and posted a bond for Mr. Martinez to remove him from the jail. He brought him back to Jacksonville, Florida. He was in handcuffs the entire time except for a short period of time when he was completing the relevant bond documents.
Mr. Martinez explained to the Respondent that he would be living with Ms. Alzola. The Respondent held up
Mr. Martinez's driver's license and told him to "copy this
address onto there." Mr. Martinez listed an address on the application that was not Ms. Alzola' s address or the address that appears on his driver's license, but it was the address of his previous residence. The Respondent then said that he was going to surrender Mr. Martinez back to the jail "now that we have good cause that I can go by and check this address because the address is a lie."
The Respondent then surrendered Mr. Martinez back to the Lee County Jail without ever releasing him from his custody and retained the $15,100.00, that had been paid by Ms. Alzola. Ms. Alzola filed a civil lawsuit against the Respondent in which she obtained a Judgment in the amount of $15,100.00. The Court therein concluded that the:
Decision to return him (Martinez) to the Lee County Jail within a few hours of bringing him here without ever releasing him or turning him over to the custody of the plaintiff (Alzola) constituted a breach of their contract with the plaintiff. The acts of the defendants herein did not constitute a "release" of Mr. Martinez anymore than if they had merely transferred him from the Lee County Jail to the Duval County Jail and back. Mr. Martinez remained in the custody of at least two of the defendants' agents at all times. Nothing in the acts or statements of these agents would have indicated to a reasonable person that he was free to leave their custody. In fact, their conduct was a clear indication that Mr.
Martinez was still in a custodial status.
Count VI
Janice Smith met with the Respondent on May 27, 1999, to arrange for a bail bond for her seventeen-year-old son Kevin Smith. Kevin Smith was incarcerated in the Duval County Jail in Jacksonville, Florida. His bond amount was $100,000.00, and the premium on that bond was $10,000.00.
Ms. Smith paid $7,000.00 of the premium and entered into a premium agreement for the remaining balance of $3,000.30. Under the terms of the agreement she was to make monthly payments of no less than $300.00 until the balance was paid.
The balance was due before discharge of the bond. The Respondent held the title to Ms. Smith's 1999 Chevrolet Lumina as collateral security on the loan.
The Respondent told Ms. Smith that he would help her out with any problem that she might have with Kevin. On or about May 31, 1999, she called the Respondent and told him that she was concerned because Kevin was coming home after a curfew that she had set for him.
On June 1, 1999, the Respondent called Ms. Smith and recommended that Kevin be surrendered back to the jail for a few days in effect, to teach him a lesson. The Respondent assured Ms. Smith that he would get Kevin out of jail at any time without incurring additional costs. She agreed to allow the Respondent to surrender Kevin back to the jail with the
understanding that she could get Kevin out of jail at any time without any additional costs.
On June 1, 1999, the Respondent and several of his agents arrived at Ms. Smith's home. At the time of their arrival, Kevin Smith was not at home. The Respondent went into the house with Ms. Smith and two or more of his employees positioned themselves outside the house and waited for Kevin to return home.
Kevin Smith approached the house in his vehicle and noticed several cars near his house. He purportedly believed that they belonged to a neighborhood gang which he had had problems with in the past. Allegedly fearing for his safety, he turned in his vehicle and proceeded to drive away.
The Respondent's agents tried unsuccessfully to block his retreat with their vehicles and then pursued him but were unable to catch him. Janice Smith then called Kevin on his cell phone to ask him why he left. He replied that he thought the individuals at the house were gang members. Ms. Smith told him that it was just the Respondent and his agents who wanted Kevin to sign some papers.
Kevin thereupon went home and attempted to shake the Respondent's hand whereupon the Respondent handcuffed and shackled him and took him back to his office. The Respondent later surrendered him to the Duval County Jail.
A few days later, Janice Smith contacted the Respondent and requested that he bond Kevin back out of jail. The Respondent said he would not bond Kevin out of jail until Janice Smith provided proof that Kevin's car had been placed in storage. Ms. Smith put the car in storage and brought the receipt to the Respondent's office. The Respondent still would not bond Kevin out of jail.
Ms. Smith went to the Respondent's office on numerous occasions and he refused to meet with her. Ms. Smith made several telephone calls to the Respondent but he would not take or return her calls. After several days had passed, one of the Respondent's employees told Ms. Smith that the Respondent would not bond Kevin out of jail and would not refund the premium payments.
In June 1999, when Ms. Smith attempted to purchase a tag for her 1999 Chevrolet Lumina, she learned that the Respondent had transferred the vehicle to his name. The Respondent claimed that that action was taken pursuant to the terms of the premium agreement. However, the Respondent never notified Ms. Smith that the balance was due in full, or of his intent to transfer title of the vehicle to his name. Ms. Smith paid the Respondent the $3,000.00 balance so that the Respondent would release the title to her vehicle, which he did.
Ms. Smith paid a total of $10,000.00, as a bail bond premium to the Respondent. The Respondent surrendered Kevin back to the jail but refused to bond him back out of jail as he had previously agreed and he also refused to refund the premium to Ms. Smith.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Sections 120.569 and 120.57(1), Florida Statutes (2001).
In each of the six Counts it is alleged that the Respondent surrendered a principal back to the jail, but failed to refund the premium as required by law in violation of Sections 648.45(2)(e), 648.45(2)(f), 648.45(2)(g)(h)(j)(l), 648.45(3)(c) and 648.45(3)(e), Florida Statutes, and Rules
4-221.100, 4-221.105(5) and 4-221.110, Florida Administrative Code.
Section 648.45(2), Florida Statutes, provides in pertinent part, that the Department shall suspend, revoke or refuse to re-new any license issued under Chapter 648, Florida Statutes, or the Insurance Code, for any violations of the laws of this State relating to bail or any violation of the Insurance Code, or for any of the following causes:
Demonstrated lack of fitness or trustworthiness to engage in the bail bond business.
Demonstrated lack of reasonably adequate knowledge and technical competence to engage in the transactions authorized by the license or appointment.
Fraudulent or dishonest practices in the conduct of business under the license or appointment.
Misappropriation, conversion, or unlawful withholding of moneys belonging to a surety, a principal, or others and received in the conduct of business under a license.
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(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.
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(l) Demonstrated lack of good faith in carrying out contractual obligations and agreements.
Section 648.45(3), Florida Statutes, states in pertinent part, that the department may deny, suspend, revoke any license or appointment issued under Chapter 648, Florida Statutes, 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:
that:
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(c) Violation of any law relating to the business of bail bond insurance or violation of any provision of the insurance code.
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(e) Being found 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.
Rule 4-221.100, Florida Administrative Code, states
The terms and conditions of all contracts entered into between a principal and a surety for a bail bond shall set forth the bond number, the date, the amount of the
premium and the name of the surety company, on the form prescribed by the Department, to-wit:
TERMS AND CONDITIONS
The following terms and conditions are an integral part of this application for appearance bond No. dated for which Surety Company or its agent shall received a premium in the amount of ($) Dollars, and the parties agree that said appearance bond is conditioned upon full compliance by the principal of all said terms and conditions and is a part of said bond and application therefore.
Surety Company, as bail, shall have control and jurisdiction over the principal during the term for which the bond is executed and shall have the right to apprehend, arrest and surrender the principal to the proper officials at any time as provided by law.
In the event surrender of principal is made prior to the time set for principal's appearances, and for reasons other than as enumerated below in paragraph 3, then principal shall be entitled to a refund of the bond premium.
It is understood and agreed that the happening of any one of the following events shall constitute a breach of principal's obligations to Surety Company hereunder, and Surety Company shall have the right to forthwith apprehend, arrest and surrender principal, and principal shall have no right to any refund of premium whatsoever. Said events which shall constitute a breach of principal's obligations hereunder are:
If principal shall depart the jurisdiction of the court without the written consent of the court and Surety Company, or its Agent.
If principal shall move from one address to another within the State of Florida without notifying Surety Company, or its Agent in writing prior to said move.
If principal shall commit any act which shall constitute reasonable evidence of principal's intention to cause a forfeiture of said bond.
If principal is arrested and incarcerated for any offense other than a minor traffic violation.
If principal shall make any material false statement in the application.
Signed, sealed and delivered this day of , 19 .
Signature of Applicant Mailing Address
Rule 4-221.105(5), Florida Administrative Code, states that: "A bail bond agent who has surrendered a principal and
failed to properly refund the premium when required by law shall be subject to discipline as provided in Chapter 648, and these rules."
Rule 4-221.110, Florida Administrative Code, states that:
The premium permitted under Chapter 648, Florida Statutes, shall be a term charge for the term of the bond. No additional premium shall be charged in the event of a rewrite of a bond based on the same case number except that in the event the amount of the bond has been increased, an additional premium based on the rates in current use for the amount of the increase may be charged. The licensed bail bond agent shall refund the entire premium charged for the bond when it is found that the surety had no liability under the bond because the defendant does not come under the jurisdiction of the court to which the defendant is returnable. The defendant shall be entitled to the return of the premium when surrendered by the surety or bail bond agent at any time prior to the final termination of the surety's liability on the bond; provided that the defendant shall not be entitled to a return of the premium where the defendant violates the contract with the surety. Upon request of the principal, indemnitor or the Department the bondsman shall provide in writing the factual basis for the surrender of the principal and the specific provisions of the contract with the surety that were violated, if any.
A defendant or other person paying for the bond is entitled to a refund of the bond premium if the bail bond agent surrenders the defendant unless the defendant has violated one of the
contractual terms set forth in paragraph 31 above, and in Rule 4-221.100, Florida Administrative Code.
Count I
It is undisputed that on September 25, 1998, the Respondent posted a bail bond for Darryl Gerard Irving and then, without ever actually releasing him, surrendered him to the Duval County Jail and retained the bond premium. The Department has presented clear and convincing evidence that Mr. Irving paid a bond premium of $500.00. The Respondent contends that Mr. Irving gave a false address on the bond application because the address given did not match the address on the bond application. Mr. Irving explained to the Respondent that he had moved from Apartment 255 to Apartment 244. If the Respondent doubted this he could have driven to the apartment complex and verified the address. He did not have any problem with driving to Mr. Irving's former employer to pick up his check. He could have called the apartment complex to verify the address but did not do so. He did not verify the address because he knew that if it checked out he would no longer have his excuse for surrendering Mr. Irving to the jail for allegedly violating their contract and therefore keeping the $500.00 premium.
The Respondent was not entitled to charge Mr. Irving a bond premium because he was never actually released. Mr. Irving was led by the Respondent from the jail in handcuffs, and was
transported in a vehicle similar to a police car with a cage and door that would not open from the inside. While he was at the Respondent's office he was guarded by the Respondent and another man and was clearly not free to leave. The acts of the Respondent did not constitute a "release" of Mr. Irving any more than if documents were completed in a Duval County Jail cell.
Since he was not actually released, the Respondent should have refunded the $500.00 premium payment.
The Respondent's actions with regard to this Count constitute violations of Section 648.45(2)(e)(f)(g),(h)(j)(l), and Section 648.45(3)(c)(e), Florida Statutes, as well as Rules 4-221.100, 4-221.105(5), and 4-221.110, Florida Administrative Code.
Counts II, III and IV
The Department presented clear and convincing evidence that the Respondent bonded Patrick Andrade out of jail on January 8, 1998, February 14, 1998 and September 24, 1998, and that Mr. Andrade paid a premium for these bonds and as to each bond was surrendered back to the jail with the Respondent retaining the bond premiums. It is also undisputed that
Mr. Andrade stayed at the Respondent's residence each time he was bonded out of jail. The Department presented clear and convincing evidence that Mr. Andrade paid a $365.60, premium for the January 8, 1998 bond, a $3,700.00 premium for the
February 14, 1998 bond, and a $150.20 premium for the September 24, 1998 bond, for a total of $4,215.80.
The Respondent denies being involved in a sexual relationship with Mr. Andrade, but admits that he sent a letter to Mr. Andrade that he signed "Love Ya! Hang in there" and he himself introduced a letter into evidence that he alleges was written by Mr. Andrade that seems clearly to be a "love letter." The existence of a sexual relationship between the Respondent and Patrick Andrade is not itself the essential issue as to Counts II, III and IV. Rather, the issue concerns whether the Respondent improperly used his position and his ability to surrender Mr. Andrade back to the jail to prevent him from having contact with his wife and extorting sexual favors from him. It is concluded that he did so and thus demonstrated a lack of fitness and trustworthiness to engage in the bail bond business. Also at issue is whether the Respondent improperly retained the premiums when he surrendered Mr. Andrade back to the jail. It is determined that he did illegally retain those premiums.
The Department presented clear and convincing evidence that the Respondent surrendered Mr. Andrade back to the jail because he no longer wished to stay at the Respondent's residence, because he no longer wished to have a sexual
relationship with the Respondent, and because he wanted to be released to go back to his wife and child in Jacksonville.
The Respondent contends that he surrendered
Mr. Andrade back to the jail because Mr. Andrade told him that he was planning to leave the jurisdiction and he felt that this constituted reasonable evidence of Mr. Andrade's intention to cause a forfeiture of the bond. This contention is not supported by any evidence other than the Respondent's own self- serving testimony. It is difficult to believe that if
Mr. Andrade truly intended to leave the jurisdiction and cause a forfeiture of the bond that he would tell his bail bondsman he was leaving. Mr. Andrade had lived in Jacksonville for many years and had a wife and children who lived there. He had been bonded out of jail on several previous occasions and had never forfeited a bond. Clearly, Mr. Andrade did not intend to cause a forfeiture of the bond. The Respondent is merely positing an excuse to justify his surrender of Mr. Andrade back to incarceration and the Respondent's retention of the bond premiums. The Respondent's actions with regard to these Counts constitute violations of Sections 648.45(2)(e)(f)(g)(h)(j) and (l), as well as Sections 648.45(3)(c) and 648.45(3)(e), Florida Statutes, and Rules 4-221.100, 4-221.105(5), and 4-221.110, Florida Administrative Code.
Count V
On or about May 9, 1999, the Respondent posted a bond for Mr. Martinez in the amount of $150,000.00, at the Lee County Jail in Fort Myers, Florida. Ms. Alzola, as found above, the bond indemnitor, paid the premium of $15,100.00 to the Respondent, and Mr. Martinez was brought to the Respondent's office and asked to complete the relevant paperwork (application, etc) for the bond. Ms. Alzola was not called to the office to translate for Mr. Martinez as she had requested, or to assist him in completing the paperwork. The Respondent surrendered Mr. Martinez back to the Lee County Jail without ever actually releasing him and then retained his bond premium paid by Ms. Alzola. Ms. Alzola obtained a civil Judgment against the Respondent for the amount of that bond premium.
The Respondent claims that Mr. Martinez was surrendered for re-incarceration because "the defendant
(Mr. Martinez) had given a bad address on the application." He said that he knew the address was incorrect because Ms. Alzola said Mr. Martinez would be staying with her. He also said he questioned the address because it did not match the address on Mr. Martinez's driver's license. He also stated that he knew that it was not likely that the address was correct because he was familiar with the area. If the Respondent truly wanted to verify the authenticity of the address, he could have contacted
Ms. Alzola and questioned her about it or he could have driven out to the location with Mr. Martinez, but he did neither. He did not verify the address because he truly did not care if the address was correct. He was simply searching for an excuse which he felt would justify his surrendering Mr. Martinez back to the jail and retaining the bond premium.
The Respondent was not entitled to the bond premium because Mr. Martinez was not actually released, as the Circuit Court pointed out in its Final Judgment, quoted in the Findings of Fact above. Since Mr. Martinez was never actually released the Respondent should have refunded the $15,100.00 premium payment to Ms. Alzola.
The Respondent's actions with regard to this Count constitute violations of Sections 648.45(2)(e)(f)(g)(h)(j),(l), 648.45(3)(c), and 648.45(3)(e), Florida Statutes, and Rules 4- 221.100, 4-221.105(5), and 4-221.110, Florida Administrative Code.
Count VI
It is undisputed that on May 27, 1999, Janice Smith contracted with the Respondent to bond her son Kevin Smith out of jail. The bond amount was $100,003.00, and the premium paid by Ms. Smith was $10,003.00. It is also undisputed that the Respondent surrendered Kevin back to the jail and retained the
$10,003.00 premium.
The Department presented clear and convincing evidence that the Respondent told Ms. Smith that if she ever had problems with Kevin to call him. On or about June 1, 1999, Ms. Smith called the Respondent and told him that Kevin came home late and had violated her curfew and that she was concerned. She did not believe nor tell the Respondent that she thought Kevin was going to violate the terms of his bond. She was concerned about her son's well-being and the Respondent suggested that she agree to allow him to surrender Kevin back to the jail and let him sit there for the weekend to teach him a lesson. The Respondent assured Ms. Smith that she could get Kevin out of jail at any time. Ms. Smith trusted the Respondent and agreed to that procedure. On Friday, July 2, 1999, the Respondent surrendered Kevin back to the jail. When Ms. Smith later asked the Respondent to release her son from the jail, or bond him out as he had agreed, he refused to do so and retained the bond premium.
Ms. Smith is entitled to a refund of her bond premium unless Kevin violated one of the five conditions enumerated in paragraph 31 above. Kevin did not violate any of those conditions. He was surrendered back to the jail merely at his mother's request because he broke her curfew, not a condition of his bond, and the Respondent had agreed with Ms. Smith to that procedure. The Respondent claims that Kevin was a flight risk.
The evidence does not establish that he was a flight risk. He was a seventeen-year-old living with his parents. When he was told that it was the Respondent waiting at his house and not a gang member, he came back to the house voluntarily. Under these circumstances, the Respondent should have refunded the bond premium. His re-incarceration of Kevin Smith and refusal to obtain his release from jail pursuant to the bond agreement upon Ms. Smith's request was not justified by any violation of the bond conditions enumerated in paragraph 31 above. The Respondent's actions in regard to this Count constitute violations of the legal authorities, cited above, with regard to the other Counts.
In summary, the testimony and other evidence adduced by the Department has established the above found violations by clear and convincing evidence and the testimony and evidence adduced by the Respondent is not found to be of sufficient weight and credibility to refute the Department's evidence. Accordingly, it is concluded that the violations charged by the Petitioner have been established.
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore,
RECOMMENDED that a final order be entered by the Department of Insurance revoking the Respondent's license and eligibility for licensure as a bail bond agent, and that the Respondent be found ineligible to apply for licensure with the Department for a minimum period of two years and not until such time as restitution is made to Darryl Irving in the amount of $500.00, Patrick Andrade in the amount of $4,215.80, Jeannett Alzola in the amount of $15,100.00 and Janice Smith in the amount of
$10,0003.00.
DONE AND ENTERED this 21st day of October, 2002, in Tallahassee, Leon County, Florida.
P. MICHAEL RUFF 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 Clerk of the
Division of Administrative Hearings this 21st day of October, 2002.
COPIES FURNISHED:
Richard J. Santurri, Esquire Department of Insurance Division of Legal Services
200 East Gaines Street Tallahassee, Florida 32399-0333
Donald Frank Shirey, Jr. 5337 107th Street
Jacksonville, Florida 32244
Honorable Tom Gallagher
State Treasurer/Insurance Commissioner The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300
Mark Casteel, General Counsel Department of Insurance
The Capitol, Lower Level 26 Tallahassee, Florida 32399 0307
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.
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 07, 2007 | Second Agency FO | |
| Dec. 10, 2002 | Agency Final Order | |
| Oct. 21, 2002 | Recommended Order | Agency proved that Respondent was bonding defendants out of jail, re-incarcerating them for fraudulent reasons not allowed by above statute, and retaining the bond premiums. Revocation recommended. |
