STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE, )

)

Petitioner, )

)

vs. ) Case No. 99-5279

)

MIGUEL JOSE ALVAREZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on June 9, 2000, in Miami, Florida.

APPEARANCES

For Petitioner: Dickson E. Kesler, Esquire

Department of Insurance Division of Legal Services

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

For Respondent: Miguel J. Alvarez, pro se

8501 Northwest 8th Street, Apartment 311

Miami, Florida 33126 STATEMENT OF THE ISSUE

The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken, if any.

PRELIMINARY STATEMENT

On November 23, 1999, the Department issued an Administrative Complaint against Respondent alleging that Respondent had violated various statutes regulating his conduct as a limited surety agent, and Respondent timely requested an evidentiary hearing regarding those allegations. This cause was thereafter transferred to the Division of Administrative Hearings to conduct the evidentiary proceeding.

The Department presented the testimony of Deolinda E. Stolowilsky, Olympia Delgado, Pamela L. Givans, Mercedes Orozco Hernandez, and Irwin Stolowilsky. Respondent Miguel Jose Alvarez testified on his own behalf. Additionally, the Department's Exhibits numbered 1-10 and Respondent's Exhibits numbered 1-3 were admitted in evidence.

Both parties filed proposed recommended orders after the conclusion of the final hearing. Those documents have been considered in the entry of this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent was licensed by the Department as a limited surety bail bond agent. He was employed by and authorized to write bail bond business for County Bonding Agency.

2. When Respondent was hired by County Bonding Agency, the office procedures for receiving and accounting for all paperwork

   and money were explained to him by Deolinda E. Stolowilsky, the owner and operator, and Olympia Delgado, the office manager.

   Licensed employees were issued a certain number of bail bond powers of attorney on Monday of each week. Each agent was given a "pay sheet" listing the number of each power of attorney.

   When a power was used, the agent would write on the pay sheet next to that power the defendant's name, the amount of the bail bond, and the date the power was executed.

3. On the following Monday each agent would turn in all files with executed bail bonds. All unused powers of attorney would be re-issued to the agent and any additional needed powers would be issued. The agent's compensation was computed based on the amount of bail bond business the agent had performed during the preceding reporting period.

4. Each Monday when files with executed bail bonds were turned in to County Bonding Agency, all premiums received by the agent for those executed bonds were required to be turned in with the executed bonds. The office manager would make a notation on the outside of that defendant's file that the premium had been paid. Some of the agents working for County Bonding Agency routinely watched to make sure that the office manager made the proper notation on the file when they gave her money. County Bonding Agency did not give its agents receipts for the money received from them.

5. Although County Bonding Agency had an informal policy that an agent receiving a large amount of money should turn that money in on the same day or the following day, there was no specificity for what would constitute a large amount of money. Further, there was no particular consequence for failure to accommodate the owner's preference that such be done.

6. Much of County Bonding Agency's business was written in its office rather than at the jail. In other words, much of the money received by County Bonding Agency came from indemnitors coming to the office and paying the premium there. When that occurred, the agent sent to the jail to execute the bond received no premium money since the money had already been paid at the office.

7. On June 20, 1998, Respondent went to County Bonding Agency. He turned in files and premiums and was issued powers to be used for future bonds. On June 23, Respondent went to County Bonding Agency and was issued new powers.

8. Thereafter, office manager Delgado began telephoning Respondent and writing to him stating that he had failed to turn in the premium money for five defendants. She also filed a police report and contacted the Department alleging that Respondent had failed to turn in money that he had collected.

9. On July 20, 1998, a courier delivered to County Bonding Agency from Respondent folders for six defendants. The folders

   did not contain any money. On July 22, Respondent went to County Bonding Agency to turn in his beeper, receipt book, and unused powers.

10. The bond money for four defendants is at issue in this proceeding. Their folders were among the six delivered by courier to County Bonding Agency. At the final hearing, Delgado admitted that one of the six defendants was an office bond, and she could not remember one of the defendants. The four at issue are Alain Yara, Seon T. Carter, Demetrius Robertson, and

    Stanley Bailey.

    
    

11. The Department's exhibits admitted in evidence at the final hearing include the paperwork for those four defendants. The paperwork for Yara includes a receipt for $300 and a collateral receipt. Both are signed by Respondent and dated June 21, 1998, two days before Respondent went to County Bonding Agency and was issued new powers.

12. The paperwork for Carter contains a premium receipt for $550 (10 percent of the $5,500 bond) dated June 21, 1998, and signed by Respondent and a collateral receipt signed by "Curly" for what appears to be the same $5,500. The paperwork for both Robertson and Bailey contain premium receipts and collateral receipts dated June 24, 1998. All four receipts are signed "Curly."

13. "Curly" is the nickname of Irwin Stolowilsky. At the final hearing, Delgado admitted signing Curly's name to receipts for bonds when the premium money was received by the office and the agent went to the jail only to obtain the remaining paperwork and write the bond. Delgado is not licensed by the Department and, therefore, she is not authorized to receive premiums for bail. Accordingly, when guarantors came to County Bonding Agency's office to pay premium money, she signed Curly's name, representing that a licensed person rather than an unlicensed person had in fact received the money.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.569 and 120.57(1), Florida Statutes.

15. The Administrative Complaint filed against Respondent alleges that Respondent failed to give premium money collected by him to County Bonding Agency, thereby violating Sections 648.295(1); 648.45(2), (2)(d) through (h), (2)(j), (2)(l); 648.45(3), (3)(c), and (3)(e), Florida Statutes. The Department seeks revocation of Respondent's license and eligibility for licensure. The Department's burden of proof, therefore, is clear and convincing evidence. The Department has failed in its burden of proof since the evidence is neither clear nor convincing.

16. As to two of the four defendants, the record reflects that receipts for the money were signed by Delgado using Curly's name. Accordingly, she received the money Respondent is alleged to have failed to give to County Bonding Agency. As to the other two defendants, excluding uncorroborated hearsay, Delgado testified that Respondent did not turn in the money, and Respondent testified that he did.

17. Delgado's credibility is seriously undermined by the fact that she, as an unlicensed person, signed the name of a licensed person on receipts representing that that person had received premium money when in fact she had received it. Further, her testimony is internally inconsistent. In the various letters she authored which were admitted in evidence in this cause and in her testimony, she alleges that agents were required to turn in premium money daily, the next day, and weekly. As to the pay sheets used by County Bonding Agency, she, like Deolinda Stolowilsky, testified both that the powers not used were circled and the powers used were circled. Finally, in the various documents she authored, the amount of "missing" money and the number of defendants involved kept changing. Such is not the quality of evidence justifying disciplinary action against a licensee.

RECOMMENDATION

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

RECOMMENDED that a final order be entered finding Respondent not guilty and dismissing the Administrative Complaint filed against him in this cause.

DONE AND ENTERED this 11th day of October, 2000, in Tallahassee, Leon County, Florida.

LINDA M. RIGOT

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 2000.

COPIES FURNISHED:

Dickson E. Kesler, Esquire Department of Insurance Division of Legal Services

401 Northwest Second Avenue Suite N-321

Miami, Florida 33128

Miguel J. Alvarez

8501 Northwest 8th Street Apartment 311

Miami, Florida 33126

Honorable Bill Nelson

State Treasurer and Insurance Commissioner Department of Insurance

The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300

Daniel Y. Sumner, General Counsel Department of Insurance

The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307

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: 99-005279

Orders for Case No: 99-005279