STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE AND )

TREASURER, )

)

Petitioner )

)

vs. ) Case No. 97-4721

)

EDWARD LEON BOLDING, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

On January 29, 1998, a formal administrative hearing was held in this case by video teleconferencing in Tampa, Florida, before Richard A. Hixson, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Dickson E. Kesler, Esquire

Division of Legal Services

401 Northwest Second Avenue, Suite N-321 Miami, Florida 33128

For Respondent: Joseph R. Fritz, Esquire

4204 North Nebraska Avenue Tampa, Florida 33603

STATEMENT OF THE ISSUE

Whether Respondent's license as a limited surety agent should be revoked or otherwise disciplined for the reasons alleged in the Amended Administrative Complaint.

PRELIMINARY STATEMENT

On August 28, 1997, Petitioner, Department of Insurance and

Treasurer, filed an Amended Administrative Complaint alleging that Respondent, Edward Leon Bolding, Jr., a licensed limited surety agent, whose license was under current suspension by Emergency Order, had pled guilty to two counts of aggravated assault, a third degree felony, and therefore was ineligible for licensure as a limited surety agent under section 648.45, Florida Statutes. On October 3, 1997, Respondent filed an Answer to the Amended Administrative Complaint denying all allegations except those set forth in paragraph 3 pertaining to the Petitioner's jurisdiction over limited surety licenses.

On October 13, 1997, the matter was referred to the Division of Administrative Hearings. By Order entered November 3, 1997, hearing was scheduled for January 29, 1998 in Tampa, Florida.

Pursuant to the Prehearing Order, on January 20, 1998, the parties filed a Prehearing Stipulation which in paragraph 2(e) stated:

(e) The parties hereby provide a concise and specific statement of those facts which are admitted and will require no proof at the hearing, together with any reservations directed to such admissions. Specifically, the parties agree to the jurisdictional facts in this matter, that is, that the Respondent, Edward Leon Bolding, Jr., is the person identified in the Amended Administrative Complaint dated August 28, 1997, that the Florida Department of Insurance has jurisdiction over the limited surety license and appointments of Respondent, Edward Leon Bolding, Jr., that at all times relevant to the dates and occurrences referred to in the Amended Administrative Complaint dated

August 28, 1997, the Respondent, Edward Leon

Bolding, Jr., was licensed in the State of

Florida as a limited surety agent, and that the limited surety license of Respondent, Edward Leon Bolding, Jr., is currently under suspension by an Emergency Order of Suspension entered by the Florida Department of Insurance on June 23, 1997.

The parties do further agree and stipulate that on or about July 14, 1997, the Respondent, Edward Leon Bolding, Jr., pled guilty in the Circuit Court of the Thirteenth Judicial Circuit of Florida, in case number 97-00004536, to two counts of aggravated assault, each count a felony in violation of Section 784.021, Florida Statutes.

The parties do further agree and stipulate to admissibility into evidence at the formal administrative hearing on this matter the exhibits as set forth in paragraph (c), above.

On January 23, 1998, an Amended Notice of Hearing as to Location Only was entered which provided that this matter would be heard by video teleconferencing with the Administrative Law Judge being located in Tallahassee, Florida, and the parties and witnesses in Tampa, Florida. Immediately prior to the hearing, counsel for Respondent expressed concerns regarding the provisions of the Prehearing Statement as to a previously identified exhibit containing the criminal court records. At hearing counsel for Respondent articulated his objections to the admission of such records on the basis that the identity of the Respondent in this administrative proceeding, Edward Leon Bolding, Jr., was not the same as the defendant named in the criminal cases, Edward Leon Bolding, II.

At hearing Petitioner presented the testimony of two witnesses, Deputy Sheriff James Alexander Brodi, Jr., Detention

Booking Officer of the Hillsborough County Sheriff's Office, and Luis Rivera, Special Investigator and Supervisor of the Tampa Office of the Bureau of Agent and Agency Investigations of the Department of Insurance. Petitioner presented five exhibits.

Composite Exhibit 1 consists of certified copies of Department of Insurance licensure records for Edward Leon Bolding, Jr.

Composite Exhibit 2 consists of certified copies of the Department of Insurance records of the Administrative Complaint and Answer filed against Edward Leon Bolding, Jr., filed June 23, 1997, and the Amended Administrative Complaint and Answer filed against Edward Leon Bolding on August 28, 1997, which is the subject of this administrative proceeding. Composite Exhibit 3 consists of certified copies of the records of the Circuit Court of the Thirteenth Judicial Circuit in and for Hillsborough County Florida, Criminal Division, in Case No. 97-00004536, State of Florida vs. Edward Leon Bolding II. Composite Exhibit 4 consists of certified copies of a detention arrest report pertaining to Edward Leon Bolding II. Composite Exhibit 5 consists of certified copies of Department of Insurance records from the files of Edward Leon Bolding, Jr. Petitioner's Exhibits 1, 2, and 5, were admitted into evidence without objection. Ruling on Respondent's objections to Petitioner's Exhibits 3 and 4 was reserved pending the parties submission of the Proposed Recommended Orders. For the reasons set forth below Respondent's objections are denied.

Counsel for Respondent stated at hearing that Respondent, Edward Leon Bolding, Jr., specifically chose not to appear at hearing. Respondent presented no witnesses nor exhibits. A transcript of the hearing was filed February 13, 1998. Pursuant to the request of Petitioner's counsel for extension of time, and without objection, Recommended Orders were filed on March 16, 1998.

FINDINGS OF FACT

1. Petitioner, Department of Insurance and Treasurer, is the agency of the State of Florida which, pursuant to

   Chapter 648, Florida Statutes, is vested with jurisdiction to regulate licensure of limited surety (bail bond) agents.

2. Respondent, Edward Leon Bolding, Jr., is a licensed limited surety agent, which license is currently under suspension by emergency order issued by Petitioner on June 23, 1997.

3. Petitioner's official licensing data reflect that Respondent, Edward Leon Bolding, Jr., is a white male, born June 26, 1953, Social Security number 265-08-1197, whose address is 13803 Lake Village Place, Tampa, Florida 33624-4414.

4. On April 21, 1997, Edward Leon Bolding II, was charged with two counts of aggravated assault in violation of

   Section 784.021, Florida Statutes, a third degree felony, in Case No. 97-00004536, Criminal Division, Circuit Court of the Thirteenth Judicial Circuit in and for Hillsborough County, Florida. The criminal information describes Edward Leon Bolding II as a white male, born June 6, 1953, Social Security

   number 265-08-1197. The criminal report affidavit filed in criminal Case No. 97-4536 further lists Edward Leon Bolding II with an address of 13803 Lake Village Pl. 33624.

5. The Hillsborough County Sheriff's Office, Detention Department's arrest records for Edward Leon Bolding II describe the defendant as a white male, born June 26, 1953, Social

   Security number 265-08-1197, and whose address is listed as 13803 Lake VL PL, TAMPA 33624. The arrest records further list next of kin as Edward Bolding, Sr., whose relationship to Edward Leon Bolding II is father.

6. On June 23, 1997, Petitioner filed an Emergency Order of Suspension and an Administrative Complaint against Respondent Edward Leon Bolding, Jr., alleging that Respondent was charged in Case No. 97-00004536 with two counts of aggravated assault, each a felony, in violation of Section 764.021, Florida Statutes.

7. On July 3, 1997, Respondent Edward Leon Bolding, Jr., filed an Answer to the Administrative Complaint which admitted that Respondent was a licensed limited surety agent, born June 6, 1953, Social Security number 265-08-1197, whose address was

   13803 Lake Village Place, Tampa, Florida 33624.

   
   

8. On July 14, 1997, Edward Leon Bolding II pled guilty to two counts of aggravated assault, each count a felony in violation of Section 784.021, Florida Statutes, in the above- described Case No. 97-00004536, Criminal Division, in the Circuit Court of the Thirteenth Judicial Circuit, in and for Hillsborough County, Florida.

9. On August 28, 1997, Petitioner filed an Amended Administrative Complaint alleging that Respondent Edward Leon Bolding, Jr., pled guilty to two felony counts of aggravated assault. On October 3, 1997, Respondent filed an Answer to the Amended Administrative Complaint which, as set forth above,

   denied all allegations except that Petitioner has jurisdiction over limited surety licenses.

10. The Hillsborough County Sheriff's Office's arrest records, the criminal court records in Case No. 97-00004536 of the Thirteenth Judicial Circuit, and the Petitioner's licensure records, all identify Edward Leon Bolding II, defendant, who pled guilty in Case No. 97-00004536, and Edward Leon Bolding, Jr., Respondent in this administrative proceeding, as one and the same person.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to, and subject matter of, of these proceedings. Chapter 120, Florida Statutes.

12. Petitioner, Department of Insurance and Treasurer, has jurisdiction over Respondent's limited surety license.

    Chapter 648, Florida Statutes.

    
    

13. Respondent raised several points of objection to the introduction of the criminal record evidence offered by Petitioner based on the grounds that the defendant named in the criminal case was Edward Leon Bolding II, and the Respondent named in this administrative proceeding is named Edward Leon Bolding, Jr. Under Florida law, where the points of difference between two names identified in records are slight, there is a strong inference that the records designate the same individual. Johnston v. State, 62 So. 655 (Fla. 1913). The only difference

    in the records offered by Petitioner is the designation of "II" in the criminal records, and the designation "Jr." in the administrative records. This designation is so slight that the Respondent has failed to overcome the strong inference that the records pertain to the same individual. Moreover, the points of identity as to the spelling of Respondent's name, his date of birth, his social security number, and his address, all compel the conclusion that the records pertain to the same individual. Accordingly, Respondent's objections on these grounds are denied.

14. Additionally, Petitioner has established the admissibility of the records over Respondent's other objections. The testimony of Deputy Sheriff Brodi and Mr. Luis Rivera properly authenticated the origin of the documents submitted as Exhibit 4 as the arrest report relating to Respondent, Edward Leon Bolding, Jr. (Defendant, Edward Leon Bolding II), bearing Social Security number 265-08-1197, and born on June 26, 1953, and which originated at the Hillsborough Sheriff's Office, pursuant to Section 90.901, Florida Statutes.

15. The court certified true and correct copies of the official records relating to Respondent, Edward Leon Bolding, Jr. (Defendant, Edward Leon Bolding II), in Petitioner's Exhibit 3 are prima facie evidence in the several courts of this state of the entry and validity of the judgments and decrees made in such case, and admissible pursuant to Section 92.05, Florida Statutes.

16. Certified court records are subject to judicial notice

    pursuant to Section 90.202(6), Florida Statutes.

    
    

17. No extrinsic evidence of authenticity is required for certified court records without a seal but bearing the signature of an officer or an employee of a court, affixed in that officer's or employee's official capacity, pursuant to

    Sections 90.902(1) and (2), Florida Statutes.

    
    

18. The official records maintained by the State of Florida, Department of Insurance relating to Edward Leon Bolding, Jr., and under the seal of the Treasurer and Insurance commissioner of the State of Florida, are one of the recognized exceptions to the hearsay evidence rule, pursuant to

    Section 90.803(8), Florida Statutes.

    
    

19. Official government seals can be judicially noticed pursuant to Section 90.202(13), Florida Statutes.

20. No extrinsic evidence of authenticity is required for records under an official state agency seal, pursuant to Section 90.902(1), Florida Statutes.

21. Petitioner, Department of Insurance, presumptively established by clear and convincing evidence that the Respondent, Edward Leon Bolding, Jr., a licensed limited surety agent, bearing license and Social Security number 265-08-1197, born on June 6, 1953, and residing at 13803 Lake Village Place, Tampa, Florida 33624, is the same person who was charged with, and subsequently pled guilty to, two felony counts of aggravated assault in the Circuit Court of the Thirteenth Judicial Circuit,

    in and for Hillsborough county, Florida, in Case No. 97-00004536. Under these circumstances the burden then is on Respondent to overcome the presumption. Solano v. State, 417 So. 2d 302 (Fla. 3d DCA 1982); State v. Davila, (Fla. 3d DCA 1985). Respondent failed to overcome this presumption.

22. By pleading guilty to two felony charges of aggravated assault in the Circuit Court of the Thirteenth Judicial Circuit, in and for Hillsborough County, Florida, in Case No. 97-00004536, Respondent, Edward Leon Bolding, Jr., does not qualify for a limited surety (bail bond) agent license, pursuant to the provisions of Sections 648.45(1), 648.45(2), 648.45(2)(a), 648.45(2)(e), 648.45(2)(j), 648.45(2)(k), 648.45(3), 648.45(3)(a), 648.45(3)(c), and 648.45(3)(e), Florida Statutes, which in pertinent part provide as follows:

    1. The department shall, upon receipt of an information or indictment, immediately temporarily suspend any license or appointment issued under this chapter when the licensee has been charged with a felony or a crime involving moral turpitude or a crime punishable by imprisonment of 1 year or more under the law of any state, territory, or country. Such suspension shall continue if the licensee has been found guilty of, or has pleaded guilty or no contest to, the crime, whether or not a judgment or conviction has been entered, during a pending appeal. A person may not effect any additional bail bonds after suspension of his or her license or appointment. However, he or she may discharge any liability on bonds effected prior to such suspension.

    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:

       
       

       1. Lack of one or more of the qualifications specified in this chapter for a license or appointment.

          
          

          * * *

          
          

          (e) Demonstrated lack of fitness or trustworthiness to engage in the bail bond business.

          * * *

          
          

          1. 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.

          2. Having been found guilty of, or having pleaded guilty or no contest to a felony, a crime involving moral turpitude, or a crime punishable 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.

          * * *

          
          

    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:

       
       

       1. A cause for which issuance of the license or appointment could have been refused had it then existed and been known to the department.

          
          

          * * *

          
          

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

          
          

          * * *

          
          

          (e) Being found 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.

          
          

23. The evidence in this case is clear and convincing. Petitioner established that on or about July 14, 1997, Respondent

    pled guilty, in the Circuit Court of the Thirteenth Judicial Circuit, in and for Hillsborough County, Florida, in Case No. 97-00004536, to two counts of aggravated assault, each a third degree felony in violation of Section 784.021, Florida Statutes.

24. The evidence in this case is clear and convincing that Petitioner does not meet the licensing qualifications pursuant to Sections 648.34(2)(e) and 648.355(1)(c), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Petitioner, Department of Insurance and Treasurer, enter a Final Order denying the licenses and eligibility for licensure of Respondent, Edward Leon Bolding, Jr.

DONE AND ENTERED this 6th day of May, 1998, in Tallahassee, Leon County, Florida.

RICHARD A. HIXSON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1998.

COPIES FURNISHED:

Dickson E. Kesler, Esquire Division of Legal Services

401 Northwest Second Avenue Suite N-321

Miami, Florida 33128

Joseph R. Fritz, Esquire 4204 North Nebraska Avenue Tampa, Florida 33603

Honorable Bill Nelson

State Treasurer and Insurance Commissioner

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

Daniel Y. Sumner, General Counsel Department of Insurance and Treasurer The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 97-004721

Orders for Case No: 97-004721