STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE AND )

TREASURER, )

)

Petitioner, )

)

vs. ) CASE NO. 89-4411

)

BEVERLY ELAINE BRYSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Veronica E. Donnelly, held a formal hearing in the above-styled case on October 17, 1989, in Fort Myers, Florida.

APPEARANCES

For Petitioner: C. Christopher Anderson III, Esquire

Office of Legal Services

412 Larson Building Tallahassee, Florida 32399-0300

For Respondent: Dennis J. Rehak, Esquire

Post Office Drawer 660 Fort Myers, Florida 33902

STATEMENT OF THE ISSUES

Whether the Respondent, a licensed Limited Surety Agent, failed to transmit the statistical reporting requirements information to the Petitioner within thirty days after the end of 1988.

PRELIMINARY STATEMENT

On July 7, 1989, the Department of Insurance and Treasurer (hereinafter the Department), filed an administrative complaint to discipline Beverly Elaine Bryson's (hereinafter Bryson) license as a Limited Surety Agent. Essentially, Respondent Bryson is charged with failure to transmit statistical information to the Department for the reporting period ending December 31, 1988.

On July 26, 1989, the Respondent mailed a Demand for Formal Proceedings in which she disputed the allegations contained in the administrative complaint filed against her.

During the hearing, the Department submitted six exhibits. The Respondent presented three witnesses, testified in her own behalf, and placed one exhibit into evidence. All of the exhibits were accepted into evidence.

At the close of the hearing, the Hearing Officer requested a search of Department records under the name in which the Respondent's report was mailed. A search of the records revealed that the Department has not maintained records under the name of Brysons, Beverly. The affidavit of the records search is placed into evidence as the Hearing Officer's exhibit.

The transcript of the hearing was filed on November 2, 1989. Proposed recommended orders were timely submitted by both parties. Rulings on the proposed findings of fact are in the Appendix of the Recommended Order

FINDINGS OF FACT

1. Beverly Elaine Bryson's licensure as a Limited Surety Agent (bail bondsman) was placed with Bankers Insurance Company on December 1, 1988.

   
   

2. The Department required all limited surety agents to complete a Statistical Reporting Requirements form for the period from July 1 through December 31, 1988. The report was to be transmitted to the Department within 30 days after the end of the period.

   
   

3. Respondent Bryson opened her business on December 7, 1988, and executed twenty bonds within the reporting period.

   
   

4. Respondent Bryson completed the form within the first part of January 1989. She mailed one copy of the form to the Department and another copy to her general agent, Amando Roche, at Roche's Surety, Inc.

   
   

5. Linda Roche, who is employed at Roche's Surety, Inc., recalls receiving a copy of the report from Respondent Bryson. To assure that the Department received the report form, Linda Roche sent a copy of the report, along with the reports of other agents to the Department by Federal Express Mail. The purpose of the transmittal by express mail was to obtain a signed receipt from the Department.

   
   

6. The one-page report form that was transmitted to the Department incorrectly listed the bondman's name as "Brysons, Beverly" as opposed to "Beverly Elaine Bryson." In addition, the form was completed in such an ambiguous fashion that an ordinary reading of the form reveals that the report was completed for the reporting period from January 1 through June 30, 1988, as well as the period from July 1 through December 1988. The address on the form, 1960 Velasco Street, was different than the address on file with the Department. The address at the Department was 1900 Velasco Street.

   
   

7. Based upon the high percentage of errors, misinformation, ambiguities, and general differences in the report from information already on file, it is unknown what happened to the two copies of the report transmitted to the Department.

   
   

8. The problems with the contents of the report were created by the Respondent.

   
   

9. In an attempt to acquire the report after the reporting deadline, the Department sent the Respondent a letter stating that the Department had not received the report. An additional time period in which to file the report was given to the Respondent. The letter was sent by certified mail, and reached the 1960 Velasco Street address by March 15, 1989.

10. When the certified letter was received at Respondent's business, Beverly Elaine Bryson was out of the state on vacation. Carol Graham, an insurance agent within the business, signed for the letter.

    
    

11. The Respondent was never notified by Carol Graham or any other employee within the business that the Department had not received the first report and was requesting that the information be provided.

    
    

12. In March 1989, Linda Roche received a telephone call from Carol Graham regarding the Statistical Reporting Requirements form for the Respondent. Mrs. Roche incorrectly recalls that the call was made by the Respondent. Mrs. Roche reported to the caller that she had sent a copy of the report by Federal Express Mail to the Department.

    
    

13. Mrs. Roche's recollection of the telephone call reconciles the question of why Carol Graham did not inform the Respondent of the Department's request. A reasonable inference exists that Ms. Graham believed that Mrs. Roche's mailing was a recent one, and that the matter did not require any more attention.

    
    

14. As of the date of hearing on October 17, 1989, the Department records did not reveal that a Statistical Reporting Requirements form for July through December 31, 1988, had been filed on behalf of Beverly Elaine Bryson.

    
    

15. The inaccuracy of the report completed and mailed by the Respondent was unintentional.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter pursuant to Section 120.57(1), Florida Statutes.

    
    

17. Section 648.365, Florida Statutes, requires each bail bondsman engaged in the bail bond business in this state to transmit certain statistical information to the Department semi-annually, within thirty days after the close of the reporting period. To assure that the information is received, the Legislature authorized the Department and the Bail Bond Regulatory Board to "take such steps as are necessary to assure accurate and uniform reporting under this section." Section 648.365(3), Florida Statutes.

1. In order to administer the provisions of Section 648.365(3), Florida Statutes, the Department adopted Rule 4-1.019, Florida Administrative Code, which provides as follows, in pertinent part:

   
   

   ... each bail bondsman engaged in the bail bond business in Florida shall complete and submit Form DI4-279 "Statistical Reporting Requirements" (...Bail Bondsmen, Part B) to the Department of Insurance, Division of Insurance Company Regulation, Larson Building, Tallahassee, Florida, semi-annually within thirty days of each six month period ending June 30th and December 31st...

2. During the hearing, the Respondent offered a copy of Form DI4-279, Part B mailed by her to the Department in early January 1989. In spite of the improperly designated reporting period, the incorrect name, and a different mailing address, the Respondent did mail the report.

   
   

3. Under the applicable statute and rule, a bail bondsman is required to either "transmit" or "submit" the report to the Department semi-annually. Pursuant to the "mail box rule," mail properly addressed, stamped, and mailed creates a presumption of receipt. Brown v. Giffen Industries, Inc., 281 So.2d 897 (Fla. 1973), Home Insurance Company v. C & G Sporting Goods, Inc., 453 So.2d

   121 (Fla. 1st DCA 1984),

   
   

4. In this case, there was no evidence submitted to demonstrate that the report was properly addressed to the Division of Insurance Company Regulation, as required by Rule 4-1.019, Florida Administrative Code. However, the form itself, DI4-279, Part B, only mentions that the form should be transmitted to the Department of Insurance. Testimony presented by the Respondent and Mrs. Roche demonstrate that two separate mailings of the same form to the Department occurred in a timely manner. Mrs. Roche testified that she was in possession of a receipt signed at the Department regarding her mailing of the report.

   
   

5. The misunderstanding between Mrs. Roche and Ms. Graham regarding the Department's request for a submission of the report in March 1989 for the period ending December 31, 1988, cannot be attributed to the Respondent as she testified that she never received actual notice of this second request.

   
   

6. In spite of the inaccuracies within the twice-mailed reports, the Respondent attempted to comply with Section 348.365, Florida Statutes, by transmitting a completed report form to the Department in a timely manner. As a result, the Department was unable to prove, by clear and convincing evidence, the assertion that the Respondent failed to transmit the information. While it is clear under the statute that a report should be accurate, the Respondent cannot be disciplined for filing an inaccurate report in these proceedings because such inaccuracies were not alleged within the administrative complaint.

RECOMMENDATION

Based upon the foregoing, it is RECOMMENDED:

That the violations charged against the Respondent Bryson as set forth in the Administrative Complaint, Case No. 89- 4411, be DISMISSED.

DONE and ENTERED this 30th day of November, 1989, in Tallahassee, Leon County, Florida.

VERONICA D. DONNELLY

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 30th day of November, 1989.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-4411

Rulings on the proposed findings of fact submitted by the Petitioner are addressed as follows:

1. Accepted. See HO #1.

2. Accepted. See HO #1.

3. Rejected. See HO #4.

Rulings on the proposed findings of fact submitted by the Respondent are addressed as follows:

1. Accepted. See HO #1.

2. Accepted. See HO #3.

3. Accepted. See HO #2.

4. Rejected. See HO #4.

5. Accepted.

6. Rejected. See HO #5.

7. Accept the first sentence. See HO #5. The rest is rejected. Improper conclusion. See HO #7 and #14.

8. Rejected. See HO #10 through #13.

9. Rejected. See HO #14.

10. Accepted.

11. Rejected. See Preliminary Statement

12. Accepted. See HO #2 and #4.

COPIES FURNISHED:

C. Christopher Anderson III, Esquire Office of Legal Services

412 Larson Building Tallahassee, Florida 32399-0300

Dennis J. Rehak, Esquire Post Office Drawer 660 Fort Myers, Florida 33902

Honorable Tom Gallagher State Treasurer and

Insurance Commissioner The Capitol, Plaza Level

Tallahassee, Florida 32399-0300

Don Dowdell, Esquire General Counsel

Department of Insurance and Treasurer

The Capitol, Plaza Level Tallahassee, Florida 32399-0300

Docket for Case No: 89-004411

Orders for Case No: 89-004411