STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE AND ) TREASURER, STATE OF FLORIDA )

)

Petitioner, )

)

vs. ) CASE NO. 81-1950

)

JAMES LEROY SPONHEIM, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter, after due notice, on April 16, 1982 at Dade City, Florida, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For Petitioner: Clark R. Jennings, Esquire

Department of Insurance 413B Larson Building Tallahassee, Florida 32301

For Respondent: Ben W. Thompson, Esquire

Post Office Box 466

Dade City, Florida 33525 ISSUE PRESENTED

Whether Respondent's license as a Limited Surety Agent should be revoked, or the licensee otherwise disciplined, for alleged violations of Chapter 648, Florida Statutes, as set forth in the Administrative Complaint, dated July 7, 1981.

This case was filed with the Division of Administrative Hearings on August 10, 1981. In view of the fact that the Administrative Complaint included a charge dealing with the same incident recited in a previously filed case by the same Petitioner against Bonnie Louise Sponheim, DOAH Case No. 81-1711, the cases were consolidated for the purposes of hearing pursuant to Rule 28-5.106, Florida Administrative Code, by Order issued August 17, 1981, and Notice of Hearing was issued for October 8, 1981. The hearing was continued upon the request of Respondents to await the outcome of a pending judicial appeal of a criminal conviction of Respondent James L. Sponheim, in the County Court of Pasco County.

Subsequently, Respondent Bonnie Louise Sponheim filed a motion to sever her case and proceed to hearing as soon as possible. The motion was granted, and her case was noticed for hearing on February 17, 1982. At the commencement of

that hearing, Respondent filed a motion for continuance, based on substitution of counsel. The motion was granted, subject to reconsolidation of the two cases in order to prevent multiple hearings. Final hearing was then set in the consolidated cases for April 16, 1982.

At the conclusion of Petitioner's case, Respondent James L. Sponheim moved to dismiss Paragraph 4 of Count I of the Complaint because no evidence had been presented that Respondent had refused to return a premium and/or collateral to Stephen W. Sissitka. The motion was granted. After all evidence had been presented, Petitioner dismissed Count II of the Administrative Complaint against Respondent James L. Sponheim, and also dismissed the following portions of counts which had alleged violation of departmental rules, but failed to specify the rule alleged to have been violated: Count III(d) and Count IV(e).

The remaining viable counts of the Complaint can be summarized as follows:

1. That Respondent directed or permitted an unlicensed person to surrender a person who had been bonded by Respondent in violation of Chapter 648, Florida Statutes, and Rule 4-1.06, Florida Administrative Code.

   
   

2. Counts III, V, VII, IX, XI, XIII, XV, XVII, XIX, and XXI. These counts involve allegations that Respondent James L. Sponheim solicited bail bond business of various students of St. Leo College in or about the Pasco County Detention Center, Dade City, Florida, in violation of subsection 648.44(1)(b), Florida Statutes, which thereby warranted disciplinary action under subsections 648.45(1)(b),(f), and (j), Florida Statutes.

   
   

3. Counts IV, VI, VIII, X, XII, XIV, XVI, XVIII, XX, and XXII. These counts allege that Respondent James L. Sponheim suggested or advised the employment of an attorney to the various students alleged in the other counts in violation of subsections 648.44(1)(a) and (b), Florida Statutes, which thereby warranted disciplinary action pursuant to subsections 648.45(1) and (j), Florida Statutes.

At the hearing, the parties stipulated that Counts III through XXII will be determined upon the basis of the testimony of witnesses at a criminal trial of Respondent in the Pasco County Court, Case No. 800995MMAES, on February 13, 1981. No documentary evidence was received at that trial. The stipulation was accepted and thereafter the trial transcript was submitted to the Hearing Officer to be used in lieu of live testimony at the hearing. (Hearing Officer's Exhibit 1) Findings of Fact and Conclusions of Law on the above-mentioned counts are based solely upon the said transcript.

The parties agreed that the statutory period for rendition of a Recommended Order in the consolidated cases would be waived for a reasonable time in the discretion of the Hearing Officer.

Post-hearing submissions by the parties have been fully considered and those portions thereof not adopted herein are deemed to be unnecessary, irrelevant, or unwarranted in fact or law.

FINDINGS OF FACT

1. Respondent James L. Sponheim is licensed as a Limited Surety Agent to represent Cotton Belt Insurance Company, Inc., and was so licensed at all times relevant to this proceeding. His office is located in Dade City, Florida. (Testimony of Respondent, Petitioner's Exhibit 2).

2. Respondent's wife, Bonnie L. Sponheim, is qualified, but not currently licensed, as a bail bond runner. She was previously licensed as a runner, but her license was cancelled on April 3, 1980. Thereafter, she has served as a secretary in her husband's Dade City office. (Testimony of B. Sponheim, Petitioner's Exhibit 1)

   
   

   The following findings relate to Count I of the Administrative Complaint.

   
   

3. On August 6, 1980, Stephen W. Sissitka, of Zephyrhills, Florida, made application to the Cotton Belt Insurance Company for appearance bends B6A095951-

   52 to effect his release from the custody of the Pasco County Sheriff's office. The application contained provisions as to events which would constitute a breach of the obligations under the bond, including the applicant's change from one address to another without notifying the Cotton Belt Insurance Company or its agent in writing prior to any such move. On the reverse of the application, Glenna Lilly and Spurgeon Phillips executed an indemnity agreement whereby they agreed to bind themselves to produce Sissitka in court at the required time.

   The application further identified Glenna Lilly as Sissitka's mother. Phillips executed a separate indemnity agreement on August 30, 1980. He is the father- in-law of Sissitka and resides in Dade City. (testimony of Respondent, S. Sissitka, Respondent's Exhibits 1,2).

   
   

4. On August 6, 1980, Respondent, as agent for Cotton Belt Insurance Company, issued the requested bonds in the total amount of $2,500.00 (Testimony of Respondent, Petitioner's Composite Exhibit 4)

   
   

5. Although Sissitka had listed his address as Zephyrhills, Florida, he was living at the home of his father-in- law Spurgeon Phillips, in Dade City at the time he was released on bond. However, he was having difficulties with his wife and did not remain in Dade City on a continuous basis. On several occasions, he went over night to his mother's house in Zephyrhills, and another time he visited his wife's mother for several days in Pasco County. He did not tell Respondent about the latter visit, nor did Phillips know where he was. In fact, he stayed only sporadically with Phillips, during the period August to October, 1980, and sometimes would be gone for a week or two. Phillips complained to Respondent about his inability to keep up with Sissitka's whereabouts, and wanted to have him returned to custody. As a result, Respondent and Phillips had a meeting with Sissitka on October 7, 1980, at which time the Respondent reminded Sissitka of his obligations to report any changes of address or employment and imposed the requirement that Sissitka "check in" with Respondent's office once a week. Sissitka was also told to stay at Phillips' house in the future. Sissitka agreed to follow the conditions imposed and keep Respondent and Phillips notified of his whereabouts. (Testimony of Respondent, B. Sponheim, Phillips, Harrelson, S. Sissitka, M. Sissitka, Petitioner's Exhibit 3, Stipulation)

   
   

6. On October 15, 1980, Mrs. Sponheim discovered Sissitka was no longer employed at a restaurant in Dade City. Respondent was out of the state at the time. Mrs. Sponheim was under the impression that Sissitka was living at Zephyrhills, and so she drove out to Phillips' house to talk to his wife in an attempt to ascertain his current situation. When she knocked on the door, Sissitka answered and told her that he had been living there. Mrs. Sponheim told him that they needed to talk. She waited in her car while he put on a shirt and some shoes, and joined her in the car. They then drove to Respondent's office. On the way, she asked him about his job and where he was living, but Sissitka indicated that it was none of her business, that Respondent

   had no control over him, and that as long as he showed up in court that was all that mattered. He asked her if he was going to jail, and she told him that was between him and Respondent. When they arrived at the office they discussed the conditions of the bond and the arrangements which had been made at the previous meeting with Phillips and Respondent on October 7. Sissitka told her that he was tired of being harassed not only by Respondent, but by Phillips, and that everyone was giving him a hard time, and he wanted it stopped. Mrs. Sponheim inferred from this statement that Sissitka wished to terminate the bond relationship and told him that if he wanted to "end it" he was free to go to the jail and surrender himself at any time. At that point, Sissitka said "fine, let's go" but Mrs. Sponheim told him that they needed to talk to Respondent about it first. She went into the adjoining private office of Respondent, telephoned him and informed him of the situation. Respondent told her that Sissitka could either go ahead and surrender himself, or otherwise they would have to wait until he returned to the city to settle the matter. He further told her that if Sissitka wanted to turn himself in that she should make sure to get the surrender documents to the jail so that he couldn't walk out again.

   Respondent made a practice of pre-signing the appropriate surrender forms for each person he bonded out at the time the bond was written, therefore, a signed surrender form had been previously prepared for Sissitka. The Pasco County Sheriff's Department requires that the surrender document be filed with that office prior to permitting an individual to surrender himself. Otherwise, the individual would be free to leave the jail because the bond would still be valid.

   
   

7. After talking to Respondent, Mrs. Sponheim informed Sissitka of the conversation and he asked to use the phone to call his mother. After he completed the call, he said "o.k. let's go" Mrs. Sponheim then filled in the date on the "off bond" form and they walked across the street to the jail. Sissitka went up to the jail door and said "here I am again" and opened the metal door and went on in. Mrs. Sponheim handed the surrender forms to the official at the booking office and said that she was coming off the bond. She then returned to Respondent's office and later that day Sissitka called her and inquired about the possibility of being bonded out again because he did not have enough money to post a cash bond. Mrs. Sponheim told him that Respondent was not there and he asked if she could bond him out. She replied that she didn't have a license, but gave him the name of another bondsman. (Testimony of Respondent, B. Sponheim, Kelly, Brown, Shytle, Petitioner's Exhibits 5,6)

   
   

   The following findings relate to Counts III through XXII and are based solely upon the testimony of witnesses contained in the transcript of proceedings before the Pasco County Court in Case No. 800995MMAES:

   
   

8. For several years prior to December, 1979, Respondent had had an oral agreement with the student government association of St. Leo College under which he agreed to provide bonds for arrested students of the college upon his verification with college authorities that they were students in good standing. During the three years prior to December 11, 1979, Respondent had bonded about

   31 students pursuant to his agreement.

   
   

9. In the fall of 1979, Respondent renewed the agreement with the then president of the student government association, Curt Reilly. The agreement provided that Respondent would bond out any student from St. Leo College who was arrested and contacted the Respondent's office, provided that Respondent determined then from Reilly, or in his absence, from Charles Gordon, the college chief of security, that the student attended St. Leo College and was in good

   standing. The association agreed to guarantee or underwrite the bond premium if not paid by the arrested individual or someone in his behalf.

   
   

10. Although the testimony of Respondent and Reilly was conflicting with respect to the terms of the bonding arrangement, the above version is based on Respondent's testimony which was corroborated, and is deemed credible.

    
    

11. It is not uncommon in the bail bond business for a relative or friend of an arrested individual to make a request for bond to a bondsman, or for a bondsman to have an arrangement with an organization to provide bonds for members. (Testimony of Respondent, Reilly, Gordon, Taylor, Roche (Hearing Officer Exhibit 1)

    
    

12. On December 11, 1979, a large number of student arrests were made at the St. Leo College campus as a result of an investigation initiated by the security officer of the college and the St. Leo Police Department. The charges involved various offenses involving possession and sale of controlled drugs.

    
    

13. On December 11, Respondent was approached by several students who asked him to bond out several of the arrested students who were their friends. Thereafter, during the course of the day, other students requested that friends be bonded out of jail by Respondent. These requests came primarily to Respondent's wife who had been called into the office to make the appropriate contacts with St. Leo College. Although she tried to reach Curt Reilly to verify the student status, she was unable to reach him and thereafter dealt with the security office. Respondent went back and forth from the jail bonding out students as he received verification of their status from his wife. He was assisted in this regard by Andy Anderson, another bondsman employed in his office. All but two of the arrested students were bonded out at the request of others, and not by requests to Respondent by the students themselves. In one instance, the personnel at the security office told Respondent's wife that the individual was not in good standing. As a consequence, he was not bonded out pursuant to the arrangements with the college, but was later bonded based on the request of his brother who made the necessary arrangements for collateral. (Testimony of Gordon, Respondent, B. Sponheim, Anderson (Hearing Officer's Exhibit l))

    
    

14. St. Leo College students who were bonded out by Respondent on December 11th included Margaret O'Connell, Sally Sciulli, Gina Catalano, John Conte, David Ruiz, Susan Halpin, Daniel Kenyon, John Bennis, John Curci, Jr., Daniel Fontaine, and Steven Long. In all cases except that of Long, the students, after being booked, were informed by jail personnel that they were being bonded out. At that point, they were met by either Respondent or Anderson in or about the jail, and were taken to Respondent's office. John Conte saw Respondent as he was entering the jail and Respondent asked if he was "John." When Conte replied that he was, Respondent said "I'll have you out in a couple of hours", and Conte said "o.k., fine." Susan Halpin had inquired of jail personnel as to how she was going to get out of jail, and saw Respondent standing in the vicinity. He stated "don't worry about that, I'm getting you out of here right now. John Curci had made arrangements with a friend to bail him out, but prior to the friend's arrival, jail personnel released him and he met Respondent who proceeded to take him to his office for bonding arrangements. Steven Long asked Mr. Gordon, the college security officer, at the jail as to how he was going to be released and Gordon said "don't worry about it, we'll take care of it." At the jail, an official gave Long the telephone numbers of Respondent and another bondsman. Long then called Respondent's office to arrange for bond. The person who answered the phone in Respondent's office told him that Respondent was on

    his way over to the jail at that time. (Testimony of Gordon, O'Connell, Sciulli, Catalano, Conte, Ruiz, Halpin, Kenyon, Bennis, Curci, Kuzdale, Fontaine, Long (Hearing Officer's Exhibit 1))

    
    

    CONCLUSIONS OF LAW

    
    

15. Count I. This count seeks to impose sanctions against Respondent for the alleged actions of his wife in taking into custody Stephen W. Sissitka who was then free on bond and surrendering him to the Pasco County Correctional Facility where she furnished the authorities with surrender documents signed by Respondent. Mrs. Sponheim was unlicensed under Chapter 648, Florida Statutes, at the time in question, i.e., October 15, 1980.

    
    

16. The above alleged actions are averred in the Complaint as directing or allowing an unlicensed person to perform some of the functions, duties, or powers prescribed for licensed individuals under Chapter 648 in violation of Section 648.30, Florida Statutes. It is also alleged that Respondent permitted an unlicensed person to solicit or engage in the bail bond business in his behalf in violation of Section 648.30, Florida Statutes. Additionally, Rule 4- 1.06, Florida Administrative Code is listed with respect to this allegation.

    
    

17. Section 648.30, F.S. prohibits any person from acting in the capacity of a professional bail bondsman, limited surety agent, or runner, or performing any of the functions, duties or powers for such individuals unless such person is qualified and licensed under Chapter 648, F.S. It is therefore apparent that the statutory provision is addressed to the unlicensed person who acts in such capacity or performs such functions, and not at a licensed limited surety agent. Nothing in the provision relates to the actions of a licensed individual permitting or directing such activity. Accordingly, Section 648.30 is deemed inapplicable to Respondent. Even if it could be applied, Count I does not allege any ground for discipline for alleged violation of that provision. Section 648.45, F.S. sets forth the grounds for disciplinary action against a licensee. Although it appears that subsection 648.45(1)(b), F.S. prescribing discipline for violation of any law relating to the business of bail bond insurance by a licensee would be applicable if a violation of Section 648.30

    F.S. had been established, such ground for discipline was not alleged in the Administrative Complaint, and the Hearing Officer is not free to speculate as to which ground for discipline might be applicable. See Lester v. State Board of Medical Examiners, 358 So.2d 923 (Fla. 1st DCA 1977).

    
    

18. In like manner, the apparently alleged violation of Rule 4-1.06 which proscribes a Chapter 648 licensee from permitting an unlicensed person to solicit or engage in the bail bond business is therein stated to constitute a violation of Section 648.30 F.S. However, no ground for discipline under Chapter 648.45 is alleged and, consequently, no action could be taken even if an appropriate ground had been established. In the latter connection, the evidence shows that Mrs. Sponheim, then unlicensed, did not purport to arrest Sissitka or otherwise take him into custody, on October 15, 1980. Her initial action in taking him to her husband's office did not involve coercion and he accompanied her without objection. Her subsequent filing of the required surrender documents pre-signed by Respondent, with the Pasco County authorities at the time Sissitka voluntarily surrendered himself was done at the direction of Respondent, and could be considered as merely the performance of a clerical function. Although her activities in the above regards did not rise to the level of performing the apprehension or surrender functions, duties, or powers prescribed for bail bondsmen or runners under Chapter 648 F.S., they did fall within a runner's function of "keeping the defendant under necessary

    surveillance", as set forth in subsection 648.25(6), F.S. (Cf. Moncrief v. State of Florida, Commissioner of Insurance, Case No. UU-174, First District Court of Appeal, Opinion filed June 8, 1982, 7 FLW 1216.)

    
    

19. Counts III, V,VII, IX, XI, XIII, XV, XVII, XIX, XXI. These counts involve allegations that Respondent solicited bail bond business of various students at St. Leo College in and about the Pasco County Detention Center, Dade City, Florida, on December 11, 1979 in violation of subsection 648.44(1)(b) F.S. and therefore violated a law relating to the business of bail bond insurance warranting discipline under subsection 648.45(1)(b), F.S. The alleged actions of Respondent are also alleged to constitute fraudulent and/or dishonest practices in the conduct of business under his license, thus warranting discipline under subsection 648.45(1)(f), F.S., and also demonstrating incompetency and/or untrustworthiness and/or conduct or practices rendering Respondent unfit to carry on the bail bond business and thus being a source of detriment, injury, and/or loss to the public, for which discipline is authorized under subsection 648.45(1)(j), F.S.

    
    

20. Subsection 648.44(1)(b), F.S. prohibits any bail bondsman from soliciting business in or about any place where prisoners are confined. Thus, if it is shown that Respondent violated that provision, it would be a basis for imposing discipline under subsection 648.45(1)(b), F.S. as the violation of any law relating to the business of bail bond insurance. The facts surrounding any such solicitation would determine whether Respondent also could be disciplined under subsection 648.45(1)(f), F.S. for fraudulent or dishonest practices in the conduct of business under his license, or if he had demonstrated incompetency, untrustworthiness, or practices rendering him unfit to carry on the bail bond business or making his continuance in such business detrimental to the public interest under subsection 648.45(1)(j), F.S.

    
    

21. The word "solicit" is not defined in Chapter 648, F.S., but its common meaning is "to approach with request or plea," "to strongly urge," or "to try to obtain by urgent requests or pleas." Webster's New Collegiate Dictionary (1979 Ed.) Petitioner has failed to establish that Respondent solicited the students in question for bail bond business within the foregoing meanings of the word.

    It does show that Respondent's actions on December 11, 1979, were basically in keeping with his oral agreement with the college student government association, and pursuant to requests by friends of the arrested students, or in one instance the student himself, that he make bond for them. No showing was made that Respondent approached any student with a request that his services be utilized for bail bond purposes. On the contrary, the evidence establishes that, in those instances where statements are attributable to him, he or his agent merely informed the individual that his bond had been arranged and directed them to his office for the necessary paper work and financial arrangements. Such conduct on the part of Respondent falls far short of solicitation of business, and it is therefore concluded that Petitioner has failed to establish a violation of Section 648.44(1)(b), F.S. This being so, the grounds for discipline set forth in the Complaint which were based solely on an alleged violation of that provision have not been established.

    
    

22. Counts IV, VI, VIII, X, XII, XIV, XVI, XVIII, XX and XXII. These counts allege that Respondent suggested or advised the employment of an attorney to the various students alleged in the other counts, in violation of subsection 648.44(1)(a)(b), F.S. and thus constituted grounds for discipline under subsections 648.45(1)(b), (f), and (j), F.S.

23. No evidence was presented by Petitioner in support of these counts and, accordingly they should be dismissed.

RECOMMENDATION

That the Department of Insurance dismiss the complaint against Respondent James Leroy Sponheim.

DONE and ENTERED this 23rd day of June, 1982, in Tallahassee, Florida.

THOMAS C. OLDHAM

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 23rd day of June, 1982.

COPIES FURNISHED:

Clark R. Jennings, Esquire Department of Insurance 413B Larson Building Tallahassee, Florida 32301

Ben W. Thompson, Esquire Post Office Box 466

Dade City, Florida 33525

Honorable Bill Gunter Insurance Commissioner The Capitol

Tallahassee, Florida 32301

Docket for Case No: 81-001950

Orders for Case No: 81-001950