STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE )

AND TREASURER, )

)

Petitioner, )

vs. ) CASE NO. 95-3016

) SANDRO LORENZ DE ANDRADE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Hearing Officer, Joyous D. Parrish, held a formal hearing in the above-styled case on December 5, 1995, in Miami, Florida.

APPEARANCES

For Petitioner: Dickson E. Kessler

Senior Attorney Department of Insurance

Bureau of Agent & Agency Investigations 8070 Northwest 53rd Street

Koger Center, Suite 103 Miami, Florida 33166

For Respondent: Larry E. Rogers, Esquire

2121 Ponce de Leon Boulevard Coral Gables, Florida 33134

STATEMENT OF THE ISSUES

The central issue in this case is whether the Respondent, Sandro L. De Andrade, committed the violations alleged in the administrative complaint; and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case began on May 24, 1995, when the Department of Insurance and Treasurer (Department) filed an administrative complaint alleging that Respondent had violated provisions of Sections 648.44 and 468.45, Florida Statutes. More specifically, the complaint alleged that Respondent had directly or indirectly solicited business as a bail bondsman in or on the grounds of a jail, prison, or other place where prisoners are confined. Based upon the foregoing conduct, the Department claimed that Respondent demonstrated his lack of fitness or trustworthiness to engage in the bail bond business; had committed fraudulent or dishonest practices in the conduct of business under his license; and had willfully failed to comply with a proper order or rule of the Department. Incidental to the other allegations, the Department claimed that a business card used by Respondent in soliciting business contained an

unregistered address, i.e. not the address Respondent maintains with the Department as his business location.

Respondent completed an election of rights on June 7, 1995, and requested a formal adversarial proceeding. Based upon the foregoing, the matter was forwarded to the Division of Administrative Hearings for formal proceedings on June 14, 1995.

At the hearing, the Department presented the testimony of Bernard Barrineau and Maggie Porto, both of Bureau of Agent and Agency Investigations. Its exhibits numbered 1 through 4 have been admitted into evidence. Respondent testified in his own behalf and offered Respondent's exhibit 1 which has been accepted into evidence.

The transcript of the proceeding was filed on February 6, 1996. Specific rulings on the proposed findings of fact are included in the appendix at the conclusion of this order.

FINDINGS OF FACT

1. At all times material to the allegations of this case, Respondent has been licensed by the Department as a limited surety agent performing bail bond services.

   
   

2. The Department is the state agency charged with the responsibility and authority of regulating limited surety agents such as Respondent.

   
   

3. On or about March 18, 1995, Bernard Barrineau and Maggie Porto, on special assignment to investigate activities occurring at the Dade County courthouse, went to the east wing of the county jail to observe.

   
   

4. While there they met an individual later known to them as Respondent who was assisting someone regarding bail bond services.

   
   

5. Respondent asked Mr. Barrineau to go outside with him for a cigarette break.

   
   

6. While on the grounds outside Respondent handed Mr. Barrineau a business card bearing the business name "Curly Bail Bonds" and the address as 1670 N.W. 17th Avenue, Miami, Florida 33125.

   
   

7. When Ms. Porto came out and approached the two men, Respondent handed her an identical business card with the instruction "just in case."

   
   

8. Neither Mr. Barrineau nor Ms. Porto asked Respondent for assistance. Neither did anything to encourage Respondent to think either sought bail bond assistance from him.

   
   

9. Either Mr. Barrineau or Ms. Porto answered "yes" when asked if they were at jail to get someone out. The question may have been posed by the client Respondent was at the jail to assist.

   
   

10. Respondent was called to the jail to assist someone whose parent was charged with DUI. Ms. Porto and that individual talked while Respondent filled out papers. Respondent alleged he did not hear the conversation.

11. According to Respondent, he was only at the jail to assist the client whose parent was charged with DUI.

    
    

12. The "client" did not testify in this matter.

    
    

13. At all times material to this case, the business address on record with the Department for the Respondent was McCroys Store, 23 E. Flagler Street, Miami, Florida.

    
    

14. Respondent received an appointment to execute bail bonds on behalf of Allegheny Mutual Casualty Company on August 1, 1994. Respondent had been conducting bail bond business for seven months when the incident complained of occurred.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

16. Section 648.44(1), Florida Statutes, provides that "[a] bail bondsman or runner may not":

    
    

    (b) Directly or indirectly solicit business in or on the property or grounds of a jail, prison, or other place where prisoners are confined or in or on the property or grounds of any court.

    
    

17. Section 648.45(2), Florida Statutes, provides, in pertinent part:

    
    

    (2) The department shall deny, suspend, revoke or refuse to renew any license or appointment issued under this chapter or the insurance code, and it shall suspend or revoke the eligibility of any person to hold a license or appointment under this chapter 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:

    * * *

    (e) Demonstrated lack of fitness or trust-worth- iness to engage in the bail bond business.

    * * *

    (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.

    
    

18. Section 648.45(3), Florida Statutes, provides, in pertinent part:

    
    

    (3) The department may deny, suspend, revoke, or refuse to renew any license or appointment issued under this chapter or the insurance code, or it may suspend or revoke the eligibility of

    any person to hold a license or appointment under this chapter 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:

    * * *

    (b) Violation of any law relating to the business of bail bond insurance or violation of any provision of the insurance code.

    
    

19. Rule 4-221.095, Florida Administrative Code, provides:

    
    

    1. No bail bondsman or runner shall directly or indirectly solicit business in or on the property or grounds of a jail, prison, or other place where prisoners are confined, or in or on the property or grounds of a court or any building housing courtrooms.

    2. For the purposes of this rule, solicit shall include:

       1. Displaying, wearing, or distributing any item which directly or indirectly advertises bail bond services; or

       2. Approaching anyone or urging, enticing, luring, or inviting anyone to approach a bondsman to use his services.

       3. Parking a motor vehicle, which displays the name of a bondsman, a bailbond agency, or any other information advertising bail bond services, when not conducting bail bond business or for a longer period of time than necessary when conducting bail bond business.

    3. For the purposes of this rule, the property or grounds of a court, jail, prison, or other place where prisoners are confined shall include all parking lots and parking spaces adjacent to such places or adjacent to public walkways adjacent to such places.

       
       

20. In this case, the Department has established by clear and convincing evidence that Respondent violated provisions of Chapter 648, Florida Statutes. It is concluded that Respondent solicited two employees of the Department for bail bond business in violation of Section 648.44(1)(b), Florida Statutes, and failed to register a change in his principal business address as required by Rule 4-221.060, Florida Administrative Code. Given Respondent's inexperience in the bail bond business and admission to the incident complained of, as well as the total circumstances of this case, some leniency in penalty is appropriate. For example, Respondent was at the jail facility to assist a client. His primary purpose and the conduct observed by the Department's employees was to complete documents in furtherance of that individual's need.

He was not there to solicit. Moreover, the Respondent did not pressure the Department's employees. He did no more than offer the business cards. He did not question them with regard to the person who might need bond, he did not quote prices or discuss collateral, and he did not pursue the matter once he handed them his card. Therefore, while his conduct was a violation, it was not so grievous to merit revocation of his license.

RECOMMENDATION

Based on the foregoing, it is, hereby,

RECOMMENDED:

That the Department of Insurance and Treasurer enter a final order suspending Respondent's limited surety agent license for a period of six months.

DONE AND ENTERED this 5th day of March, 1996, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH, 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 5th day of March, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3016

Rulings on the proposed findings of fact submitted by Petitioner:

1. Paragraphs 1 through 4 are accepted.

Rulings on the proposed findings of fact submitted by the Respondent:

1. None submitted.

COPIES FURNISHED:

Bill Nelson

State Treasurer and Insurance Commissioner

Department of Insurance The Capitol, Plaza Level

Tallahassee, Florida 32399-0300

Dan Sumner

Acting General Counsel Department of Insurance The Capitol, PL-11

Tallahassee, Florida 32399-0300

Dickson E. Kesler, Esquire

Division of Agent and Agency Services 8070 Northwest 53rd Street

Suite 103

Miami, Florida 33166

Larry E. Rogers, Esquire 2121 Ponce de Leon Boulevard Suite 240

Coral Gables, Florida 33134

Sandro Lorenz De Andrade 1670 Northwest 17th Avenue Miami, Florida 33125

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to 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: 95-003016

Orders for Case No: 95-003016