STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1297

) LEROY ELLSWORTH HARDMAN, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Sanford, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on September 6, 1979. The parties were represented by counsel:

APPEARANCES

Petitioner: Thomas A.T. Taylor, Esquire

Office of the Insurance Commissioner The Capitol

Tallahassee, Florida 32301

Respondent: James C. Weart, Esquire

201 West First Street

Suite 206, Paulucci Building Sanford, Florida 32771

By administrative complaint filed May 23, 1979, petitioner alleged that respondent "on or about December 1, 1978, opened a second bail bond office at Suite 1, 121 1/2 North Woodland Boulevard, Deland, Florida"; but that respondent "did not have a licensed Limited Surety Agent in charge of the [Deland] premises"; and that the Deland premises were "not open and accessible to the public on December 6, 13 and 20, 1978"; all allegedly in violation of Section 648.34(2)(c), and 648.36(1), Florida Statutes (1977); and Rule 4-1.04, Florida Administrative Code.

FINDINGS OF FACT

1. Respondent Leroy Ellsworth Hardman has been licensed by petitioner as a limited surety agent since 1974. In January of 1976, he opened an office in Sanford, Florida, under the name of Action Bail Bonds. By December of 1978, he had qualified with the clerks of court in Orange, Seminole and Volusia Counties, and had written bonds in all three counties.

   
   

2. Respondent decided to open an office in Deland, in addition to his office in Sanford. He leased office space on December 1, 1978, and began renovation. He had arranged for an advertisement to appear in the yellow pages of the Deland telephone directory, effective December 18, 1978, but did not succeed in opening the Deland office until December 19, 1978. Respondent hired

   Barbara Linkel to be in the office weekdays until four o'clock in the afternoon. He himself visited the office daily. Respondent, who had a 24 hour answering service and wore an electronic pager, instructed Ms. Linkel to notify him if anybody wanted a bond written. Respondent had charge of his Deland office while continuing to have charge of his office in Sanford.

   
   

3. On January 29, 1979, John Wolmac, a limited surety agent, registered at the courthouse and began working for respondent, taking charge of the Deland office. On January 31, 1979, respondent executed the first bond written at the Deland office. Respondent's exhibit No. 8. Records of all bonds written at the Deland office were kept on file there until that office closed on May 31, 1979, when the records were transferred to respondent's office in Sanford. At all pertinent times, respondent's records were complete and open to the public for inspection. At the time of the hearing, respondent still had records of every bond executed or countersigned by him.

   
   

   CONCLUSIONS OF LAW

   
   

4. Petitioner proposes to take disciplinary action against respondent because he allegedly failed to "maintain in his office such records of bail bonds executed or countersigned by him to enable the public to obtain all necessary information concerning such bail bonds for at least 1 year after the liability of the surety has been terminated." Section 648.36(1), Florida Statutes (1977). The evidence established, however, that respondent kept complete and meticulous records in both offices. Petitioner failed to prove any violation of Section 648.36(1), Florida Statutes (1977).

   
   

5. Alternatively, petitioner proposes to take disciplinary action against respondent because, it contends, Section 648.34(2)(c), Florida Statutes (1977), and Rule 4-1.04, Florida Administrative Code, limit bail bondsmen to one office each. The statute provides:

   
   

   To qualify as a bail bondsman it must affirmatively appear:

   * * *

   (c) That the place of business of the applicant will be located in this state and that such applicant will be actively engaged in the bail bond business and maintain a place of business accessible to the public. Section 648.34(2)(c), Florida Statutes (1977).

   
   

   Rule 4-1.04, Florida Administrative Code, elaborates on the statutory language, as follows:

   
   

   Section 648.34(2)(c), Florida Statutes, is interpreted to mean that every bail bondsman or general lines agent engaged in the bail bond business be currently 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 normal business hours.

   Neither the statute nor the rule address the question of how many offices a single limited surety agent may maintain, although the purpose of both the statute and the rule is to enhance public access, a purpose which additional offices would advance. Clearly these provisions afford no basis for disciplinary action in the present case where respondent managed both offices for a matter of days, during which time bonds were written in only one office.

   
   

6. The present case is very different from Department of Insurance v. Rodney Freson Thompson, No. 74-L-08M (Rec. Order entered May 1, 1974), where the respondent's "place of business was closed and not accessible to the public" and where the respondent had taken another full-time job.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That petitioner dismiss the administrative complaint against respondent. DONE and ENTERED this 8th day of October, 1979, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Thomas A. T. Taylor, Esquire

Office of the Insurance Commissioner The Capitol

Tallahassee, Florida 32301

James C. Weart, Esquire

201 West Firth Street

Suite 206, Paulucci Building Sanford, Florida 32771

Docket for Case No: 79-001297

Orders for Case No: 79-001297