STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE, )

)

Petitioner, )

)

vs. ) CASE NO. 95-3554

)

FRANCIS XAVIER McGOEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on December 14, 1995, in Miami, Florida.

APPEARANCES

For Petitioner: Dickson E. Kesler, Esquire

Department of Insurance and Treasurer Division of Agent and Agency Services 8070 Northwest 53rd Street, Suite 103

Miami, Florida 33166

For Respondent: Raymond J. Takiff, Esquire

19214 Black Mangrove Court Boca Raton, Florida 33498

STATEMENT OF THE ISSUE

At issue is whether respondent committed the offense alleged in the administrative complaint and, if so, what disciplinary action should be taken.

PRELIMINARY STATEMENT

By a one count administrative complaint dated April 17, 1995, petitioner sought to take disciplinary action against respondent, a limited surety agency (bail bondsman), based on the following factual allegations:

1. In late October 1994, Mr. Joaquin N. Fernandez, Esquire, of the Law Office of Frank

   A. Rubino, Esquire, P.A., contacted you, FRANCIS XAVIER MCGOEY, to discuss the possibility of posting a bond on behalf of one of the said attorney Rubino's clients.

2. As the result of discussions pursuant to the transaction indicated in paragraph 6, above, arrangements were made wherein the Law Office of Frank A. Rubino, Esquire, P.A., would place the

   sum of Ten Thousand Dollars ($10,000.00) with you,

   FRANCIS XAVIER MCGOEY, in your trust account, to be held for the possibility of posting the bond in question.

3. On or about October 28, 1994, Garry Fiddes, representing you, FRANCIS XAVIER MCGOEY, visited the Law Office of Frank A. Rubino, Esquire, P.A., and at that time received from Isabel C. Machin, secretary for Frank A. Rubino, Esquire, P.A., the sum of Ten Thousand Dollars ($10,000.00), in cash, on your behalf.

4. The aforementioned money was to be placed in the trust account of you, FRANCIS XAVIER MCGOEY, and held there until further instructions were received from Joaquin N. Fernandez, Esquire, acting on behalf of Frank A. Rubino, Esquire, P.A.

5. A receipt for the money indicated in paragraph 8, above, was furnished to Joaquin N. Fernandez, Esquire, indicating that the money was received by you, FRANCIS XAVIER MCGOEY, from said attorney Joaquin N. Fernandez.

6. On or about November 30, 1994, Joaquin N. Fernandez, Esquire, contacted you, FRANCIS XAVIER MCGOEY, requested the return of the aforementioned Ten Thousand Dollars ($10,000.00), and was advised that you, FRANCIS XAVIER MCGOEY, had given the said money to one Maria Diaz, an alleged acquaintance of the defendant in the case underlying the potential bail bond situation, without permission or authority of either Joaquin N. Fernandez, Esquire, or Frank A. Rubino, Esquire, P.A.

7. As of this date the aforementioned Ten Thousand Dollars ($10,000.00) has not been returned to either Joaquin N. Fernandez, Esquire, or Frank A. Rubino, Esquire, P.A.

Such conduct, petitioner charged, violated the provisions of Sections 648.295(1) and (3), 648.45(2)(d), (e), (f), (g), (h), (j), and (l), and 648.45(3)(b) and (d), Florida Statutes. 1/

Respondent filed an election of rights disputing the allegations set forth in the administrative complaint, and on July 10, 1995, the matter was referred to the Division of Administrative Hearings for the assignment of a hearing officer to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At hearing, petitioner called Frank Rubino, Isabel Machin and Joaquin Fernandez, as witnesses, and its exhibits 1 - 3, 4A, 4E, 4F, 4G, 5A - 5H, and 6

- 11 were received into evidence. Respondent called Nadia Diaz as a witness, and his exhibits 1 -4, 6 and 7 were received into evidence.

The transcript of hearing was filed January 10, 1996, and the parties were initially accorded thirty days from that date to file proposed recommended orders; however, at respondent's request, that deadline was subsequently extended to February 29, 1996. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 60Q-2.031, Florida Administrative Code. The parties' proposed

findings of fact, contained within their proposed recommended orders, are addressed in the appendix to this recommended order.

FINDINGS OF FACT

The parties

1. Petitioner, Department of Insurance (Department), is a state governmental licensing and regulatory agency charged, inter alia, with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, including Chapter 648, Florida Statutes, relating to bail bondsmen (limited surety agents).

   
   

2. Respondent, Francis Xavier McGoey, is now and was at all times material hereto licensed by the Department as a limited surety agency (bail bondsman), and operated as Best Bail Bonds, at 1672 Northwest 17th Avenue, Miami, Florida.

   
   

   The transaction at issue

   
   

3. In October 1994, Carlos Suarez (Suarez) and Sergio Gonzalez (Gonzalez) were named co-defendants in a pending criminal proceeding. Suarez was represented by Frank Rubino, Esquire and Gonzalez was represented by Joaquin N. Fernandez, Esquire.

   
   

4. At the time, Mr. Rubino and Mr. Fernandez were sole practitioners, who shared space with four other attorneys in a suite of offices in Coconut Grove, Florida. The arrangement consisted of six or seven individual offices, which each lawyer paid his portion of the rent for, and a common waiting room, library, conference room, and xerox copy room. Although independent of each other, the attorneys apparently cooperated among themselves and when an attorney was without secretarial assistance, such as Mr. Fernandez in this case, a secretary for another attorney might answer his telephone or transcribe correspondent, as needed.

   
   

5. On or shortly before October 28, 1994, Mr. Fernandez telephoned respondent and advised him that he had a client (Gonzalez) who was being held in lieu of a $200,000 bond, and that he wanted the respondent to arrange bond if he could. Mr. Fernandez told the respondent that he (Mr. Fernandez) was leaving town, but that the respondent should come to the office to pick up $10,000, which would be half the premium on his client's bond, and to work out the rest (i.e., the balance of the premium or collateral) with the client. Following the conversation, Mr. Fernandez left town for approximately three weeks.

   
   

6. On October 28, 1994, Garry Fiddes, respondent's agent, went to the suite of offices Mr. Fernandez shared, and received from Isabel Machin, a secretary for Mr. Rubino, the sum of $10,000 in cash. In return, Mr. Fiddes executed a pre-numbered receipt reflecting that he had received from Mr. Fernandez the sum of $10,000, as a partial payment for the premium on a bond for Sergio Gonzalez in the amount of $200,000, leaving a premium balance due of

   $10,000.

   
   

7. Mr. Fiddes delivered the $10,000 he had received, together with the remaining copies of the premium receipt, to Best Bail Bonds. Thereafter, respondent attempted to work out arraignments for the bond, apparently discussing the matter with Gonzalez, as well as Maria Diaz, variously described as Gonzalez's girlfriend and wife, who visited the office on a number of

   occasions to secure Gonzalez's release. Ultimately, however, respondent was unable to underwrite the bond due to an absence of collateral.

   
   

8. On November 9, 1994, following respondent's inability to underwrite the bond, Ms. Diaz returned to Best Bail Bonds and requested the return of the

   $10,000, which had been deposited to secure Gonzalez' release. According to Ms. Diaz, a new bondsman and new lawyer had been employed to secure Gonzalez's release, and she would need the money when she accompanied the new bondsman and attorney to court the next day. The return of the funds for such purpose, according to Ms. Diaz and Gonzalez, had been approved by Mr. Fernandez, who was still out of town, in a long distance telephone conversation. 2/

   
   

9. Faced with the foregoing request from Ms. Diaz and Gonzalez, respondent, seeking verification of their statements, faxed respondent a message at his out-of-state location, and requested that he call respondent's office; however, the message did not mention the reason for the requested call. Thereafter, on November 9, 1994, respondent delivered to Ms. Diaz $6,000, of the

   $10,000 he was holding toward Gonzalez's bond premium.

   
   

10. On November 10, 1994, Ms. Diaz returned to respondent's office for the balance of the funds. Having received no response from Mr. Fernandez, respondent released the remaining $4,000 to Ms. Diaz.

    
    

11. In the later part of November 1994, Mr. Fernandez returned to Miami and telephoned respondent's office to request that the $10,000 deposited with the respondent for Gonzalez' bond be returned to him. At that time, Mr. Fernandez learned that the money had been delivered to Ms. Diaz, without his prior approval, and, ultimately, the charges at issue in this case against respondent alleging, essentially, mispayment of the monies tendered to him for payment of Gonzalez's bond were filed.

    
    

    The ownership of the funds

    
    

12. Subsequent to respondent's delivery of the funds to Ms. Diaz, and respondent's notice to Mr. Fernandez that he had so disbursed the funds, Respondent received a demand for the $10,000 from Frank Rubino, Esquire. Until that point in time, there is no persuasive proof of record that respondent knew or should have known that Mr. Rubino had or would claim any interest in the monies.

    
    

13. According to Mr. Rubino, who represented Gonzalez's co-defendant, it was at his direction that Mr. Fernandez made the effort to secure Gonzalez's release on bail. Mr. Fernandez chose to call respondent, with whom he had done business in the past, to arrange for Gonzalez's bail. Mr. Rubino had not done business with respondent in the past, did not know of him, and did not discuss the matter with him.

    
    

14. Following Mr. Fernandez's conversation with respondent, respondent's agent, as heretofore discussed, went to Mr. Fernandez's office to pick up the money as directed. The $10,000 in cash that he picked up, according to Mr. Rubino, was his "office money," which he placed in an envelope and with his secretary to deliver to respondent for Gonzalez's bail. From the manner in which the transaction was handled there is, however, no reason to conclude that respondent or his agent had any knowledge regarding Mr. Rubino's involvement, and the receipt for the funds was made out to Mr. Fernandez, as heretofore noted.

15. As for whether Mr. Rubino had an ownership interest to the funds, as opposed to a transitory interest to apply the funds for Gonzalez's bail, as directed by another, is seriously questionable. First, it would be incredulous for Mr. Rubino to advance his own money to pay a bond premium to secure the release of his client's co-defendant. Second, the nature of the funds used,

    $10,000 in cash that appeared to be "street money," as opposed to a check drawn on an office account or other firm account, lends a lack of legitimacy or subterfuge to the transaction. Third, Mr. Rubino was equivocal in his responses to questions regarding his claim of ownership. In this regard, it is noted that Mr. Rubino initially staked his claim of ownership on the fact that he possessed the money; yet, thereafter conceded that all money in his office account or trust account does not belong to him. Next, in response to the direct question, "You're saying for the record you put up $10,000 for a bond of your own money.

    Is that your testimony under oath?", Mr. Rubino again equivocated by responding, "Of my office money." Finally, in response to the inquiry of "How is it that you had control of funds for a client that wasn't yours?" Mr. Rubino responded, "I didn't have control of funds for a client that wasn't mine." 3/

    
    

16. Given the character of Mr. Rubino's testimony, it is less than compelling to demonstrate that he had any lawful entitlement to the return of the funds from respondent. Rather, the more likely explanation for the funds and their source, as suggested by respondent, is that the funds were supplied by Gonzalez's co-defendant (Suarez), Mr. Rubino's client, as a contribution toward Gonzalez's bail, and the funds were properly disbursed for that purpose.

    
    

17. As for Mr. Fernandez interest in the money, it may be summed up in his own words, as follows: "I don't know where the money came from. I don't know where the money went. And, frankly, at this point and at that point, I could care less." [Transcript, page 177.]

    
    

    The respondent's history, character and response to the charge

    
    

18. Respondent is duly licensed as a bail bondsman pursuant to Section 648.34, Florida Statutes. Consequently, he must have demonstrated to the satisfaction of the Department at the time of licensure, among other things, the following:

    
    

    The applicant is a person of high character

    and approved integrity and has not been convicted of or pleaded guilty or no contest to a felony, a crime involving moral turpitude or a crime punish- able by imprisonment of 1 year or more under the law of any state, territory, or country, whether or not a judgment or conviction has been entered.

    
    

    Section 648.34(2)(f), Florida Statutes.

    
    

19. Since licensure, except for the subject complaint, respondent has not been shown to have been the subject of any charges or to have suffered any complaints during the course of his career.

    
    

20. Moreover, as to his continued good character, Mr. Fernandez, who has used respondent's services prior to the incident in question and after the incident in question, has no reservations concerning respondent's honesty and integrity, notwithstanding the circumstances which gave rise to the instant complaint. At worst, Mr. Fernandez was of the opinion that respondent "got

    hoodwinked" and "made a mistake." Mr. Fernandez's opinions regarding respondents high character and good integrity are credible and supported by the facts.

    
    

21. In response to the charge that he had repaid the monies entrusted to him for Gonzalez's bond to the wrong person, respondent promptly deposited

    $10,000 with his attorney. Those funds have been held in trust since January 1995, pending Mr. Rubino's or any other claimant demonstrating entitlement. As of the date of hearing, Mr. Rubino had declined or failed to provide an explanation or documentation regarding the source of the funds to support his claim of ownership, and no other claims have, apparently, been forthcoming.

    
    

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sections 120.57(1), 120.60(7), and 648.46(1), Florida Statutes.

    
    

23. This is a license disciplinary proceeding in which the Department seeks to take action against respondent's licensure as a limited surety agent (bail bondsman). In cases of this nature, the Department bears the burden of proving its charges by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). "The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." Slomowitz v. Walker, 492 So.2d 797, 800 (Fla. 4th DCA 1983).

    
    

24. Moreover, in resolving whether respondent violated the provisions of sections 648.295 and 648.45, as alleged in the administrative complaint, one "must bear in mind that it is, in effect, a penal statute . . . This being true, the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it. Furthermore, if there are any ambiguities included such must be construed in favor of the licensee." Lester v. Department of Professional and Occupational Regulation, 348 So.2d 923, 925 (Fla. 1st DCA 1977).

    
    

25. Here, the administrative complaint charges that respondent's conduct during the subject bond transaction violated the provisions of Sections 648.295(1) and (3), 648.45(2)(d), (e), (f), (g), (h), (j) and (l), and 648.45(3)(b) and (d), Florida Statutes.

    
    

26. Pertinent to this case, Section 648.45, Florida Statutes, provides:

    
    

    1. 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:

       * * *

       1. Willful use, or intended use, of the license or appointment to circumvent any of the requirements

          or prohibitions of this chapter or the insurance code.

       2. Demonstrated lack of fitness or trustworthi- ness to engage in the bail bond business.

       3. Demonstrated lack of reasonably adequate knowledge and technical competence to engage in the transactions authorized by the license or appointment.

       4. Fraudulent or dishonest practices in the conduct of business under the license or appointment.

       5. 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.

       * * *

       (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.

       * * *

       (l) Demonstrated lack of good faith in carrying out contractual obligations and agreements.

       * * *

    2. 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.

       * * *

       1. Showing himself 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.

          
          

          And, Section 648.295, Florida Statutes, provides in pertinent part, as follows:

          
          

          1. All premiums, return premiums, or other funds belonging to insurers or others received by a person licensed pursuant to this chapter in transactions under his license are trust funds received by the licensee in a fiduciary capacity, and the licensee must account for and pay the same to the insurer, insured, or other person entitled to such funds.

       * * *

       (3) Any licensee who unlawfully diverts or appropriates such funds or any portion thereof to his own use commits larceny by embezzlement, punishable as provided by law.

27. Turning first to the provisions of subsection 648.45(2), which address the circumstances under which mandatory suspension or revocation are required, it cannot be seriously suggested that respondent's conduct was so serious as to support a conclusion that he violation any of the subsections he is charged with violating. At best, assuming the facts supported the conclusion that he delivered the premium money to the wrong person, a case of mistake or neglect might be made, but to suggest that respondent willfully used his license to circumvent the insurance code; engaged in a fraudulent or dishonest practice; misappropriated, converted or unlawfully withheld moneys; willfully violated a provision of the insurance code; or, that this isolated transaction or his conduct demonstrated a lack of fitness or trustworthiness to engage in the bail bond business, a lack of competence to engage in the business, or a lack of good faith in carrying out contractual obligations, is, at best, fanciful.

    
    

28. Addressing next, the provisions of subsection 648.45(3), which address the circumstances under which the Department has discretion to suspend or revoke a license, it must also be concluded that the proof fails to demonstrate a violation of any of the subsections respondent was charged with violating. Addressing first the provisions of subsection 648.45(3)(d), it must be concluded that the proof failed to demonstrate respondent was "a source of injury or loss to the public." Notably, when he paid the money to Ms. Diaz, on behalf of Gonzalez, respondent had no idea Mr. Rubino would claim an interest in the funds, and reasonably thought that payment to Ms. Diaz was appropriate. More fundamentally, the proof failed to demonstrate a loss to the public since neither Mr. Rubino nor Mr. Fernandez were shown to have a lawful interest to the monies.

    
    

29. Finally, whether respondent violated the provisions of subsection 648.45(3)(b), is dependent upon whether his conduct violated the provisions of section 648.295(1) or (3), as alleged.

    
    

30. The provisions of subsection 648.295(3) may be summarily rejected as a basis for discipline since the proof fails to support the conclusion that respondent "unlawfully divert[ed] or appropriated such funds or any portion thereof to his own use." Consequently, resolution of this case resolves itself to whether respondent violated subsection 648.295(1), and therefore subsection 648.45(3)(b).

    
    

31. As heretofore noted, subsection 648.295(1), provides:

    
    

    (1) All premiums, return premiums, or other funds belonging to insurers or others received by a person licensed pursuant to this chapter in transactions under his license are trust funds received by the licensee in a fiduciary capacity, and the licensee must account for and [pay the same to the insurer, insured, or other

    person entitled to such funds]. [Emphasis added.]

    
    

32. Here, by having failed to pay the money to Mr. Rubino or Mr. Fernandez, the Department contends respondent violated subsection 648.295(1) and therefore subsection 648.45(3)(b). Notably, however, neither Mr. Rubino nor Mr. Fernandez were shown to have any legal interest in the funds, and Mr. Fernandez, for whom the funds were receipted, expressly disavowed, at hearing, any interest in the funds or their disposition. [Transcript, page 177.] Consequently, it cannot be concluded that respondent violated subsection 648.295(1) by not paying the money to Mr. Rubino or Mr. Fernandez. Moreover, the Department has failed

to demonstrate that, as believed by respondent, Ms. Diaz, on behalf of Gonzalez, the defendant on whose behalf the bond was to be written, was not a person entitled to the funds. Finally, and fundamentally, the Department offered no proof to demonstrate any other standard by which respondent's conduct or decision was to be judged. See, Purvis v. Department of Professional Regulation, 461 So.2d 134, 137 (Fla. 1st DCA 1984) ("In disciplinary proceedings of this nature, the [Department] has the burden of proving the applicable standard of conduct by competent substantial evidence, and there is a substantial difference between evidence which substantially supports conventional forms of regulatory action and evidence which is required to support substantially a retrospective characterization of conduct requiring suspension or revocation of licensure.") Accord, Cohn v. Department of Professional Regulation, 477 So.2d 1039 (Fla. 3d DCA 1985), and Barker v. Board of Medical Examiners, 428 So.2d 720 (Fla. 1st DCA 1983).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the administrative

complaint. 4/

DONE AND ENTERED this 12th day of April 1996 in Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK, 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 12th day of April 1996.

ENDNOTES

1/ As will be observed from the findings of fact which follow, the factual allegations of the administrative complaint, particularly with regard to Mr. Fernandez's relationship with Mr. Rubino, Mr. Rubino's role in the transaction and whose client was the subject of bail, are significantly different from those demonstrated at hearing. While such variance is significant, since it affected the disposition of this case, it is not, itself, fundamentally fatal to the maintenance of this disciplinary action. See e.g., Maddox v. Department of Professional Regulation, 592 So.2d 717, 720 (Fla. 1st DCA 1991). ("A complaint filed by an administrative agency must be specific enough to inform the accused with reasonable certainty of the nature of the charges, but it need not fulfill the technical niceties of a legal pleading.")

2/ The statements of Ms. Diaz and Gonzalez, who did not testify at hearing, are hearsay, if offered for their truth, and cannot support a finding of fact.

Here, however, they are received not for their truth, but for the fact that they

were uttered, and are pertinent to assessing respondent's state of mind when he resolved to release the $10,000 to Ms. Diaz, as requested.

3/ During the cross examination of Mr. Rubino by respondent's counsel, the Hearing Officer sustained a number of objections raised by the Department's counsel to questions regarding the source of the funds. Upon reflection, a number of those rulings were erroneous and the line of inquiry should have been permitted. However, from the inquiry that was permitted, as well as Mr.

Rubino's responses, the Hearing Officer is satisfied that Mr. Rubino's claim of ownership is not credible and that the source of the funds was, more likely than not, Mr. Rubino's client, Suarez, and that the funds were intended as a contribution to Gonzalez's bail.

4/ In its proposed recommended order, the Department, among other things, has recommended as a penalty a period of two years suspension with the period of suspension being reduced to three months if respondent pays Mr. Rubino $10,000 within sixty days of the final order. First, because the proof failed to substantiate the offenses charged against respondent, there is, obviously, no basis on which to impose a penalty. As fundamentally, Mr. Rubino was not shown to have a legal interest in the funds, and there is no statutory or rule authority for the Department to order restitution or to condition its penalty on the making of restitution.

APPENDIX

The Department's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 2.

2. Rejected as contrary to the proof. Mr. Fernandez called respondent to post a bond on behalf of Gonzalez.

3. Addressed in Paragraphs 5 and 12 through 14, otherwise contrary to the facts as found.

4. Addressed in paragraphs 4, 6, and 12 through 14, otherwise contrary to the facts as found.

5. Addressed in paragraph 5 and 12 through 14, otherwise contrary to the facts as found.

6. Addressed in paragraph 6.

7. Addressed in paragraph 11. To the extent the proposal requests a finding that the money was given to Ms. Diaz without the prior approval of Mr. Rubino it is rejected as not relevant. See paragraphs 12 through 15.

8. Accepted, but see paragraphs 12 through 17 and 21.

Respondent's proposed findings of fact, set forth at pages 41 through 46 of his post-hearing submittal, are addressed as follows:

1 through 3. Addressed in paragraphs 18-20.

1. Addressed in paragraph 5.

2. Addressed in paragraphs 6 and 12 through 14.

3. Accepted, and inferentially addressed in paragraphs 5, 6, and 12 through 14.

7 through 9. Addressed in paragraphs 7 through 10.

1. Accepted, see paragraph 20.

2. Accepted, see paragraph 27.

12 and 14. Accepted, see paragraph 17

13. There was no paragraph 13 submitted.

1. Rejected as argument.

2. Addressed in paragraphs 12 through 16, otherwise rejected.

3. Accepted, and see paragraph 21.

18 and 19. Addressed in paragraph 17.

COPIES FURNISHED:

Dickson E. Kesler

Division of Agent & Agency Services Bureau of Agent & Agency Investigations 8070 NW 53rd Street, Suite 103

Miami, Florida 33166

Raymond J. Takiff, Esquire 19214 Black Mangrove Court Boca Raton, Florida 33498

Honorable Bill Nelson

State Treasurer and Insurance Commissioner The Capitol, Plaza Level

Tallahassee, Florida 32399-0300

Dan Sumner, General Counsel Department of Insurance

The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300

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 ten 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.

================================================================= AGENCY FINAL ORDER

=================================================================

THE TREASURER OF THE STATE OF FLORIDA DEPARTMENT OF INSURANCE

IN THE MATTER OF:

DOAH CASE NO. 95-3554

FRANCIS XAVIER McGOEY CASE NO. 10029-94-A-A-DEK

/

FINAL ORDER

THIS CAUSE is before the undersigned Treasurer and Insurance Commissioner of the State of Florida, acting in his capacity as Insurance Commissioner, for consideration and final agency action. On April 17, 1995, an Administrative Complaint was filed against the Respondent charging him with various violations of Chapter 648, Florida Statutes. The Respondent timely filed a request for a formal proceeding, pursuant to section 120.57(1), Florida Statutes. Pursuant to notice, the matter was heard before William J. Kendrick, hearing officer, Division of Administrative Hearings, on October 22, 1995.

After consideration of the evidence, argument, and testimony presented at the hearing and the subsequent written submissions by the parties, the hearing officer issued his Recommended Order on April 12,1996 (Attached as Exhibit "A"). The hearing officer recommended that a Final Order be entered dismissing the Department's Administrative Complaint.

On April 18,1996, the Department filed Exceptions to the hearing officer's Recommended Order. In its exceptions, the Department also excepted to certain endnotes and appendices of the Recommended Order. Those portions of the Recommended Order have been reviewed, and it is determined that the hearing officer's appendices only supplement the hearing officer's Recommended Order and do not constitute additional findings of fact or conclusions of law. The Department's Exceptions were timely filed within the 10 day filing period, pursuant to 4-121.072, Florida Administrative Code.

RULINGS ON THE DEPARTMENT'S EXCEPTIONS TO THE HEARING OFFICER'S

FINDINGS OF FACTS

1. The Department excepts to the hearing officer's Finding of Fact number 15, asserting that the hearing officer mischaracterized the persuasive weight of the evidence regarding Mr. Rubino's ownership of the bail funds. At hearing, Mr. Rubino testified that the money he supplied was half of the bond amount necessary to obtain the release of his client's codefendant, Mr. Sergio Gonzalez (Transcript pages 36, 42- 44). He further testified that the source of the bond funds originated from his office account (Transcript page 47) and were not drawn from a check (Transcript page 49). Mr. Rubino's only proof that he owned the bail funds was the following statement: possessed it as "I possessed the money in my pocket" (Transcript page 45).

   
   

   The hearing officer's findings that it was incredulous for Mr. Rubino to advance his own money for a codefendant's bail; that the money advanced by Rubino was street money; and that Mr. Rubino was equivocal in his responses were supported by competent substantial evidence. It is for the hearing officer to consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based upon competent substantial evidence. Heifetz v.

   Department of Business Regulation, Division of Alcoholic Beverages & Tobacco,

   475 So.2d 1277 (Fla. 1st DCA 1985). Therefore, the Department's Exception to Finding of Fact number 15 is REJECTED.

   
   

2. The Department excepts to the hearing officer's Finding of Fact number 16, asserting that the hearing officer ignored the Respondent's implicit admission that he mistakenly released the bail money to Ms. Maria Diaz. At hearing, Respondent presented a letter (Respondent's Exhibit 6) in which he advised Mr. Fernandez of his intent to file a complaint with the Miami Police Department against Ms. Maria Diaz for theft of the bail funds. The Respondent

   also presented a police report receipt from the Miami Police Department (Respondent's Exhibit 4) demonstrating that he filed a police report against Ms. Diaz (Case Incident Number 346-1561T) in connection with the alleged theft of the above-referenced money. Both exhibits were received into evidence and demonstrated that the Respondent concluded that Ms. Diaz was not entitled to the bail money after the fact.

   
   

   Notwithstanding this evidence, the hearing officer's Finding of Fact number

   16 addressed Mr. Rubino's ownership interest in the bail funds, not whether Respondent wrongfully returned the bail funds. The Department's arguments regarding this exception are misplaced because the Department fails to demonstrate how the hearing officer's finding of fact that Mr. Rubino did not have any lawful entitlement to the bail funds was not supported by competent substantial evidence. See Heifetz, supra. Therefore, the Department's Exception to Finding of Fact number 16 is REJECTED.

   
   

3. The Department excepts to the hearing officer's Finding of Fact number 17, alleging that Mr. Joaquin Fernandez's testimony regarding his disavowment of the bail money was taken out of context. However, Mr. Fernandez's testimony on transcript page 177 is consistent with his testimony contained on transcript pages 163 and 165.

   
   

   Thus, the Department has failed to prove that the hearing officer's finding of fact was not supported by competent substantial evidence. As a result, the Department's Exception to Finding of Fact number 17 is REJECTED.

   
   

4. The Department excepts to Finding of Fact number 20, alleging that said finding is inconsistent with the hearing officer's Finding of Fact number 16. The Department confuses the hearing officer's observations regarding Mr. Fernandez's credibility concerning the Respondent's good character with the elements necessary to prove the violations cited in the administrative complaint. Mr. Fernandez testified at hearing that he continued to do business with the Respondent following his written request for the return of the bail money; that he was a very good friend of the Respondent; and that the Respondent was deceived by Ms. Diaz to release the bail money to her (Transcript pages 173- 174,182). The Department has failed to prove that the hearing officer's finding of fact regarding Mr. Fernandez's credibility was not supported by competent substantial evidence. Consequently, the Department's Exception to Finding of Fact number 20 is REJECTED.

   
   

5. The Department excepts to Finding of Fact number 21, asserting that the hearing officer drew improper inferences from the evidence presented regarding Respondent's deposit of $10,000 into his attorney's trust account. It appears that the Department has interpreted the hearing officer's finding of fact as dispositive of Respondent's guilt. However, the hearing officer's findings are supported by competent substantial evidence through the testimony of Mr. Rubino, Petitioner's Exhibits 5D, 5E, and 5F and Respondent's Exhibit 10. Moreover, the hearing officer is permitted to draw permissible inferences based upon the evidence presented. Heifetz, supra. Therefore, the Department's Exception to the hearing officer's Finding of Fact number 21 is REJECTED.

   
   

   RULINGS ON THE DEPARTMENT'S EXCEPTIONS TO THE HEARING OFFICER'S CONCLUSIONS OF LAW

   
   

6. The hearing officer was entirely correct in finding that Respondent was justified in his belief that Mr. Rubino was not entitled to the return of the bond premium payment. However, the hearing officer erred as a matter of law by

   concluding that Ms. Diaz was entitled to the return of the bail money. Respondent did not receive the funds from Ms. Diaz, as evidenced by the pre- numbered receipt given to Mr. Fernandez. Respondent had not received any purported written or oral permission from Mr. Fernandez authorizing the release of the funds to Ms. Diaz. There is no evidence noted in the recommended order or the exceptions, that Mr. Fernandez ever indicated to the Respondent that Ms. Diaz was the source of the funds, or had any right to the funds. Respondent had no basis, other than Ms. Diaz's bald oral assertions, that she had any right to receive the refund of the premium deposits.

   
   

7. It is uncontested that Respondent received the bail bond premium deposit from Mr. Fernandez's office, and gave Mr. Fernandez a written receipt. In the usual course of business, bail bondsmen return bail moneys to the receipted person or persons upon termination of the bond liability. This receipting system is fundamental to bail bondsmen accounting procedures. See Rule 4-221.115, Florida Administrative Code. Certainly, under normal circumstances, Respondent could have and should have returned the funds to Mr. Fernandez, which would have shielded him from any liability, if he had done so. And in normal circumstances, Respondent would be guilty of violating 648.295(1), Florida Statutes and would be subject to discipline by the Department.

   
   

8. However, these are not normal circumstance, due to Mr. Fernandez's testimony that he did not know where the bond premium deposit money came from, where it went, and "could care less." In these highly unusual circumstances, in which the apparently wronged and victimized person, Mr. Fernandez, is indifferent to the events that transpired, it would be incongruous and inequitable to find that the Respondent violated section 648.295(1), Florida Statutes, for failing to return the bond funds to a person, who by his own testimony, "could care less" what happened to the funds. Therefore, while rejecting the hearing officer's conclusion that the Respondent was justified in returning the funds to Ms. Diaz, the hearing officer's ultimate recommendation that the case be dismissed is accepted.

   
   

9. Based upon the evidence presented at hearing, as discussed in paragraphs 6, 7 and 8 above, the Department has failed to prove by clear and convincing evidence that the Respondent is subject to discipline by the Department pursuant to section 648.45(2), Florida Statutes. Therefore, the Department's Exception to Conclusion of Law number 27 is REJECTED.

   
   

10. Based upon the evidence presented at hearing, as discussed in paragraphs 6, 7, and 8 above, the Department has failed to prove by clear and convincing evidence that the Respondent is subject to discipline by the Department pursuant to section 648.43(3), Florida Statutes. Therefore, the Department's Exception to Conclusion of Law number 28 is REJECTED.

    
    

11. Based upon the evidence presented at hearing, as discussed in paragraphs 6, 7, and 8 above, the Department failed to prove that Respondent utilized the bail money to his own use or benefit. As a result, the Department failed to prove by clear and convincing evidence that the Respondent violated section 648.295(3), Florida Statutes. Therefore, the Department's Exception to Conclusion of Law number 30 is REJECTED.

    
    

12. Based upon the evidence presented at hearing, as discussed in paragraphs 6, 7, and 8 above, the Department failed to prove by clear and convincing evidence that the Respondent violated section 648.295(1), Florida Statutes. Therefore, the Department's Exception to Conclusion of Law number 32 is REJECTED

RULINGS ON THE DEPARTMENT'S EXCEPTIONS TO THE HEARING OFFICER'S ENDNOTES

1. The Department was correct in bring the instant action based upon the allegations, as alleged in the administrative complaint. However, the Department's Exception to Endnote number 1 is REJECTED, to the extent that the allegations were proved by clear and convincing evidence.

   
   

2. The Department's Exception to Endnote number 2 is ACCEPTED.

   
   

3. The Department's Exception to End note number 3 is REJECTED because the hearing officer clearly stated in this endnote that Finding of Fact number 15 was based upon the record evidence.

   
   

4. The Department's Exception to Endnote number 4 is REJECTED. Rule 4- 231.160(e), Florida Administrative Code, permits the Department to consider the timeliness of restitution as a mitigating or aggravating factor. The Department does not have any legal authority, aside from situations involving Consent Orders, thorough its penalty rule or statutory provisions of the Florida Insurance Code, to order restitution or to condition its penalty on the making of restitution.

Upon careful consideration of the Record, the submissions of the parties and being otherwise advised in the premises, it is ORDERED:

1. The Findings of Fact of the hearing officer, as modified in this Order, are adopted as the Department's Finding of Fact.

   
   

2. The Conclusions of Law of the hearing officer, as modified in this Order, are adopted as the Department's Conclusion of Law.

   
   

3. The End notes of the hearing officer, as modified in this Order, are adopted as the Department's End notes.

   
   

4. The hearing officer's Recommendation that the Administrative Complaint be dismissed is ACCEPTED as being the appropriate disposition for this particular case.

Any party to these proceedings adversely affected by this Order is entitled to seek review of this Order pursuant to Section 120.68, Florida Statutes, and Rule 9.110, Florida Rules of Appellate Procedure. Review proceedings must be instituted by filing a Notice of Appeal with the General Counsel, acting as the agency clerk, at 412 Larson Building, Tallahassee, Florida 32399-0300, an a copy of the same and the filing fee with the appropriate District Court of Appeal within thirty (30) days of rendition of this Order.

DONE and ORDERED this 11th day of July, 1996.

BILL NELSON

Insurance Commissioner and Treasurer

Docket for Case No: 95-003554

Orders for Case No: 95-003554