Kessler, Esquire, of the Department’s Division of Legal Services. The letter was in regard to “CARL ALBERT THOMPSON, Case No. 14413-95-A.” In addition to requesting assignment of a Hearing Officer (Administrative Law Judge) to conduct a proceeding pursuant to Section 120.57(1), Florida Statutes, the letter referred to an enclosed Administrative Complaint and a request for formal hearing.
The Administrative Complaint alleged that Respondent, Bondsman Carl Albert Thompson, had committed numerous violations of the Florida Insurance Code and the Florida Administrative Code related to his licensure as a limited surety agent or bail bondsman in two counts. The first count alleged generally that he wrote bail bonds in the case of Jose Zamora in the amount of
$10,000 and, notwithstanding that all obligations of the bond had been released, refused to refund the bond less the premium claimed. The second count alleged that Thompson failed to have on file with the Department of Insurance an accurate business address.
Also attached to the letter of August 21, 1996, were both an answer to the Administrative Complaint submitted by Respondent’s
attorney, Ms. Germann, in which he denied pertinent parts of the complaint, and an Election of Rights Form in which he disputed factual allegations in the complaint and requested a formal hearing pursuant to Section 120.57, Florida Statutes.
The case proceeded to hearing on December 16, 1996, in Arcadia, Florida. The Respondent was not present. Through Ms. Germann, he filed a motion to bifurcate the hearing to allow the Department’s case-in-chief to proceed as scheduled while allowing him to appear at a later date, since he alleged he was unable to attend due to a last-minute illness. The motion was granted on the condition that Respondent would provide physician documentation of the illness. Such documentation was never filed with the Division of Administrative Hearings.
Following the granting of the motion, Petitioner proceeded with its case, offering into evidence 13 exhibits all of which were admitted. Petitioner also presented nine witnesses, including six members of the Villafuerte family: Hilario Villafuerte, Consuela Ylda Villafuerte, Martin Villafuerte, Jose Isidro Zamora, Ylda Patricia Villafuerte, and Juana Ramirez.
The second phase of the proceeding was scheduled for February 19, 1997. It was canceled because of an accident which befell Ms. Germann. Pursuant to agreement of the parties, the hearing was rescheduled for April 18, 1997.
Three days prior to commencement of the re-scheduled second phase of the proceeding, Mr. Migneault served a notice of
appearance. He also filed a motion for continuance on the basis of inadequate time for him to prepare and conflicts with scheduled criminal jury trials. The motion was denied, not because it did not on its face allege good cause for a continuance, but because good cause was not shown in light of all the circumstances of the case: Mr. Thompson’s failure to appear at the originally noticed hearing, Mr. Thompson’s failure to provide physician documentation of his December 1996 illness, the seriousness of the case, the lengthy delay which had already ensued and the Department’s objection to further delay.
At the April 18 hearing, Mr. Migneault did not appear. Ms. Germann, however, was present in order to petition for withdrawal as counsel for Respondent. Prior to presenting her withdrawal, Ms. Germann on Mr. Migneault’s behalf, announced that Respondent was in jail in Charlotte County and, on that basis, moved ore tenus for a continuance. Ms. Germann was permitted to withdraw.
In response, the Department presented testimony of its law enforcement investigator, Antonio Davis, who reported that he had been informed by Charlotte County law enforcement personnel that Respondent, indeed, was in jail. Investigator Davis further reported, however, that he had been informed by the same personnel that Respondent turned himself into Charlotte County authorities under an outstanding warrant for his arrest issued months earlier and that he had done so at 9:30 that morning, one- half hour prior to noticed commencement of the hearing.
The ore tenus motion for continuance was denied. Because Respondent was not present and was represented solely by Mr.
Migneault, who also was not present, no defense was presented in a case continued twice and delayed for over four months for the very purpose of allowing presentation of Respondent’s case. The hearing was concluded and the record closed without any evidence from Respondent in defense of very serious charges against him.
Carl Albert Thompson, at all times relevant to these proceedings, has been licensed by the Department of Insurance as a limited surety agent, known colloquially as a bail bondsman. His agent number, according to records of the department, is 265683823. Records with the Department show this address of the agency for whom he wrote bonds:
Sechrest Bail Bonds Inc
128 Herald Ct Punta Gorda FL
Petitioner’s Ex. No. 1.
The Department of Insurance is the agency for the State of Florida responsible for licensing limited surety agents and, upon sufficient grounds, disciplining them for violation of the Florida Insurance Code or Florida Administrative Code relating to the licensing and conduct of licensed bail bondsmen.
The Arrest of Jose Zamora
Jose Zamora is the nephew of Consuelo Villafuerte; he is the son of one of her sisters. In February of 1995, Jose lived with his aunt and her husband, Hilario Villafuerte in the area of Arcadia, Florida, where Mr. Villafuerte works as the leader of a crew of orange pickers. The Villafuertes have a close, extended family which includes their son Martin. Like his father, Martin is the leader of a crew of orange pickers.
Martin Villafuerte attended schools in the Arcadia area. He speaks English fluently. Hilario and Consuela Villafuerte came to the United States from Mexico as adults. They speak English, but not as well as their son. Both were more comfortable at final hearing testifying in Spanish with the assistance of an interpreter than in English which Mr. Villafuerte termed “broken.”
Shortly before February 13, 1995, Jose Zamora, was arrested for driving while intoxicated. Bail was set at $10,000.
It was not the first time Mr. Zamora had been arrested. “[Y]ears back . . . [he] had had a similar case . . . .” (Tr. 73.) In this first case of Jose’s, however, bail was half as much: $5,000. The Villafuerte family had dealt with Jose’s bail in this first case through Hilario Villafuerte. Mr. Villafuerte deposited the $5,000 in cash at the sheriff’s office at the jail. The experience was a successful one succinctly described by Hilario Villafuerte at final hearing: “When [Jose’s] court was
over I went with my nephew and they gave me the $5,000 without missing five cents.” (Tr.73.)
The first of the Villafuertes to learn of Jose’s second arrest, the February 1995 arrest, was Martin. About to leave for church, he received a phone call from a friend that his cousin had been in an accident. He went to the scene immediately.
After Jose was taken to jail, Martin inquired about his release and learned that bail was set at $10,000. It was important to Martin that Jose be bailed out. Not only was he a member of the family, but Jose was also a member of Martin’s orange picking crew, for which Martin shoulders a heavy responsibility. In the several years that he has led the crew, the only day of work Martin has ever missed was the first day of hearing in this case so that he could testify.
Martin had to work the weekend of Jose's February 1995 arrest. He asked his father to go to the jail to deliver the bail money. First, though, Martin had to raise the ten thousand dollars, not a simple matter.
The Villafuerte Family Pitches In
Jose Zamora had been giving his aunt some of the money he earned at work for her to save for him. In February of 1995, it amounted to $1,200, not nearly enough to meet the amount of his bail.
Martin canvassed family members. Martin and his wife, Ylda, had $4,000 in the bank, while Martin’s sister, Juana
Ramirez, was able to contribute the remainder needed: $4,800. The family was able to amass the $10,000 needed to make bail for Jose.
The money was withdrawn from bank accounts in, or converted into, $100 denominations.
On February 13, 1995, Hilario and Consuela Villafuerte with the $10,000 in cash, all in $100 bills nestled safely inside Consuela Villafuerte’s purse, set out for the county jail.
Mix-up at the Jail
In the interim between Jose Zamora’s first case and the February 1995 case, the jail had been remodeled. When they arrived at the sheriff’s office in the jail, Hilario Villafuerte noticed the result of the remodeling; the physical arrangement was different from when he had been there before.
There was no interpreter at the jail through whom Mr. Villafuerte could explain the purpose of his visit in Spanish. Instead, Mr. Villafuerte told the receptionist at the front desk in English as best he could, why he had come to the jail. The receptionist asked whether he had the $10,000 in cash. When Mr. Villafuerte responded in the affirmative, the receptionist did not seem to know what to do. She asked Mr. Villafuerte the same question three or four times. Each time he responded in the affirmative. She called over a uniformed member of the sheriff’s department. Mr. Villafuerte could not hear what he said but he observed him shake his head “no.” The receptionist then told Mr.
Villafuerte to take the money to any of three places across the street.
An Unlucky Choice
The three places to which Mr. Villafuerte was directed were bail bond establishments, one of them Fowler Bail Bonds where Mr. Thompson was employed. Mr. Villafuerte thought, however, because the sheriff’s office had been renovated that he was being directed to a new branch office of the sheriff’s department where bail money could be received.
Mr. and Mrs. Villafuerte crossed the street and knocked on the door of Fowler Bail Bonds. Carl Albert Thompson answered. Mr. Villafuerte told him, “that they had sent me from the Sheriff’s Department to give him that money for the bond for Jose Isidro Zamora.” (Tr. 69.)
Mr. Thomspon indicated he would accept the ten thousand dollars. The only legitimate purpose for taking more than a 10% premium, in this case one thousand dollars, was as additional collateral. Mrs. Villafuerte removed the money from her purse and gave it to her husband. In the presence of Mrs. Villafuerte, Mr. Villafuerte counted out the $10,000 for Thompson to see in thousand dollar piles: ten piles of ten $100 bills. Thompson wrote the Villafuertes a receipt for $10,000, the amount they entrusted to his care. The receipt was not pre-numbered. It did not indicate on its face the purpose for which the money was
received, the number of the Power of Attorney form attached to the bond, or the penal sum of the bond.
Posting of the Bonds
On the same day as the Villafuerte’s visit to Mr. Thompson’s office, February 13, 1995, two General Surety Appearance Bonds, each in the sum of $5,000, for a total of
$10,000, were filed with the Clerk of Courts for DeSoto County for two charges in the case of State of Florida vs. Jose Zamora: “DUI w/ personal injury,” and “DUI w/ property damage.” Petitioner’s Composite Ex. No. 7.
The premium for each of the two bonds was $500 for a total of $1,000.
The bonds are signed by both Jose Zamora and, for Accredited Surety & Casualty Company, Inc., as surety, by Carl Thompson, “attorney-in-fact.” Id.
The Remaining Nine Thousand Dollars
The additional $9,000 the Villafuerte’s gave to Mr. Thompson was not deposited or paid to a surety company; nor did Thompson place the money with the DeSoto County sheriff’s department for the bail of Jose Zamora.
On February 14, 1997, there was deposited in an account at the First State Bank of Arcadia, named the “Carl Thompson DBA/Fowler Bail Bonds Escrow Account,” (Petitioner’s Exhibit No. 11), $9,000, all in one-hundred dollar bills, bills that had
composed nine of the ten stacks counted out to Carl Albert Thompson by Hilario Villafuerte the day before.
Obligations of the Bond Fulfilled
In the interim between the posting of the bond and the deposit of the $9,000 in Mr. Thompson’s escrow account, Jose Zamora was released from jail.
The case then reached disposition; the obligations of the bond were fulfilled.
Attempts to Retrieve the Money
After finalization of Jose Zamora’s case, he and Hilario and Martin Villafuerte went together to Mr. Thompson’s office two or three times. Thompson was not there.
Martin persisted. Eventually he contacted Mr. Thompson. Thompson told him that it would take two months for paperwork to be completed before the money could be returned. His suspicion not aroused, Martin told Thompson that he would be checking with him from time to time during the two-month period.
True to his word, Martin continued to visit Mr. Thompson’s office. In the two months following his initial contact with Thompson after disposition of Jose Zamora’s case, he went by the office approximately 15 times.
Whenever he saw Mr. Thompson, Martin was given slightly different details as to why the money was not yet available.
Finally, because the family needed the money, Martin visited the courthouse and made an inquiry. He was told that
everything was cleared and that he was entitled to receive any cash bond money owed by Mr. Thompson for the Zamora case.
More visits and conversations ensued with Mr. Thompson until the Villafuerte family realized that it was not likely that Thompson would return the ten thousand dollars or any part of it. (Thompson had told the Villafuertes that they were entitled to only an amount slightly less than $9,000 because 10% of the money was the premium for the two bonds posted and because there was a slight charge for paperwork.)
The Villafuertes hired an attorney in an attempt to regain their ten thousand dollars. On November 17, 1995, the attorney wrote a letter to the Department of Insurance to inquire as to steps that might be taken toward filing a complaint or pursuing the return of the money entrusted to Mr. Thompson. The letter led to investigation and the administrative complaint in this case.
The Administrative Complaint
The Administrative Complaint is in two counts.
Because of his misappropriation of the Villafuerte's money, refusal to refund it, and issuance of an improper receipt, the first count charges Thompson with having violated or being accountable under the following provisions of law: Sections 648.295(1) and (3), 648.33, 648.36, 648.442(1), (4) and (8), 648.45(2), (2)(d), (2)(e), (2)(f), (2)(g), (2)(h), (2)(j), and
(2)(l), 648.45(3), (3)(b) and (3)(d), Florida Statutes; and, Rules 4-221.105, 221.115 and 120, Florida Administrative Code.
The second count charges Thompson with violating Section 648.421, Florida Statutes, and Rule 4-221.060, Florida Administrative Code for failure to notify in writing the Department of a change in name, address or telephone number of the agency or firm for which he writes bonds.
Change of Agency
The name and address of the agency for which Mr. Thompson’s was writing bonds listed in Department records at the times material to this case were not correct. Thompson left the Sechrest office in Sarasota to work for Fowler Bail Bonds as a subagent in its Arcadia office where he met the Villafuertes. When he did so, he did not notify the Department of Insurance of the change of name, business address and telephone address of the agency for which he was then writing bonds, Fowler Bail Bonds.
Thompson no longer works for Fowler. He left in November of 1995 for another company after Fowler put pressure on him because of poor performance generally.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Section 120.57(1), F.S.
The burden of proof to establish fact upon which to discipline Respondent is on the Department as the petitioner in this case of license discipline. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). For the Department to succeed in suspending or revoking the license of Carl Albert Thompson, it must prove the charges against him by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, 670 So.2d 932 (Fla. 1996).
The Department has proven by clear and convincing evidence that Carl Albert Thompson failed, as charged, to refund the money used for the bail of Jose Zamora and to issue a proper receipt, and most seriously, that he misappropriated the money in violation of the statutes and rules listed in the Administrative Complaint. For these failures, he is also accountable under the statutes listed in the Administrative Complaint. The Department has also proven by clear and convincing evidence that Carl Albert Thompson failed to keep the Department apprised in a timely manner of the name, business address and telephone number of Fowler Bail Bonds, a new agency he changed to after he left Sechrest.
On the basis of this proof, pursuant to Section 648.45, the Department has authority to take action against the license of Carl Albert Thompson in several ways under a range of penalties including revocation of his license.
This case calls for the most serious discipline the Department is capable of imposing.
