STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF FINANCIAL )

SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 07-2649PL

)

WAYNE CALVIN SUMMERLIN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case before Larry J. Sartin, an Administrative Law Judge of the Division of Administrative Hearings, on August 8, 2007, by video teleconference at sites in West Palm Beach and Tallahassee, Florida.

APPEARANCES

For Petitioner: Robert Alan Fox, Senior Attorney

Division of Legal Services Department of Financial Services 612 Larson Building

200 East Gaines Street Tallahassee, Florida 32399-0333

For Respondent: Wayne Calvin Summerlin, pro se

520 Southeast 16th Avenue Pompano Beach, Florida 33060

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent, Wayne Calvin Summerlin, committed the offenses alleged in an

Administrative Complaint issued by Petitioner, the Department of Financial Services, on May 4, 2007, and, if so, what penalty

should be imposed.

PRELIMINARY STATEMENT

On or about May 4, 2007, Petitioner issued a six-count Administrative Complaint, Petitioner's Case No. 87474-07-AG, alleging that Mr. Summerlin had violated certain statutory provisions governing the conduct of Florida insurance agents. Mr. Summerlin executed a document titled Election of Proceedings, disputing the factual allegations of the Administrative Complaint and requesting a hearing pursuant to Section 120.57(1), Florida Statutes (2007).

A copy of the Administrative Complaint and the Election of Proceedings was filed with the Division of Administrative Hearings on June 12, 2007. The matter was designated DOAH Case No. 07-2649PL and was assigned to the undersigned.

The final hearing was scheduled for August 8, 2007, by Notice of Hearing by Video Teleconference entered June 26, 2007.

The undersigned conducted the final hearing from Tallahassee, Florida. Counsel for Petitioner also participated in the hearing from Tallahassee. Mr. Summerlin, most witnesses, and the court reporter participated in the hearing from West Palm Beach, Florida. One witness appeared by telephone.

At the final hearing, Petitioner presented the testimony of Wayne Howard Spath, Johnny Jallad, and Roberto Nieves.

Mr. Jallad testified by telephone. Petitioner also had admitted Petitioner's Exhibits numbered 1 through 19. Mr. Summerlin testified on his own behalf. No exhibits were offered by

Mr. Summerlin.

The official Transcript of the final hearing was filed on September 4, 2007. By Notice of Filing Transcript issued September 4, 2007, the parties were informed that their proposed recommended orders were due on or before October 15, 2007.

Petitioner timely filed a Proposed Recommended Order, which has been fully considered in rendering this Recommended Order.

Mr. Summerlin did not file a proposed order.

All references to the Florida Statutes in this Recommended Order are to the codification applicable to the year(s) in which the events alleged in the Administrative Complaint took place, unless otherwise noted.

FINDINGS OF FACT

1. The Parties.

   
   

   1. Petitioner, the Department of Financial Services (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for, among other things, the investigation and prosecution of complaints

      against individuals licensed to conduct insurance business in Florida. Ch. 626, Fla. Stat.

   2. Respondent Wayne Calvin Summerlin was, at the times relevant, licensed in Florida as a bail bond agent.

      Mr. Summerlin’s license number is A257941.

      
      

2. Count I; Failure to Notify Department of Change in

   
   

   Employer.

   
   

   1. On or about July 23, 2003, Mr. Summerlin became the owner of, and began serving as primary bail bonds agent for, Wayne’s Bail Bonds. Having notified the Department of his relationship with Wayne’s Bail Bonds, he continued in this capacity until he sold Wayne’s Bail Bonds in 2004.

   2. Subsequent to his sale of Wayne’s Bail Bonds,

      
      

      Mr. Summerlin was employed as a bail bonds agent with Broward County Bail Bonds. Mr. Summerlin became an associate with Broward County Bail Bonds on or about September 13, 2005.

   3. Mr. Summerlin failed to inform the Department in writing, within ten days of beginning his employment with Broward County Bail Bonds of the fact that he was writing bail bonds for Broward County Bail Bonds.

3. Count II; Failure to Notify Department of Change in Business Address.

   1. Mr. Summerlin, as of June 2005, maintained his business address as 15 Northeast Fourth Street, Fort Lauderdale, Florida.

   2. As of December 2005 Mr. Summerlin maintained his business address as 15 Southwest Seventh Street, Fort Lauderdale, Florida.

   3. On August 16, 2005, business cards with Mr. Summerlin’s name on them were found by a Department investigator with the following address on them: 10 South New River Drive, No. 109, Fort Lauderdale, Florida.

   4. Mr. Summerlin did not report to the Department that his business address had changed to 10 South New River Drive,

      No. 109, Fort Lauderdale.

      
      

4. Counts III through VI.

1. The Department apparently abandoned these Counts, having failed to address them in the Department’s Proposed Recommended Order.

2. The evidence failed to prove the allegations of fact that support Counts III, IV, V, and VI.

   CONCLUSIONS OF LAW

   
   

   1. Jurisdiction.

      
      

3. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2007).

   1. The Burden and Standard of Proof.

      
      

4. The Department seeks to impose penalties against

   
   

   Mr. Summerlin through the Administrative Complaint that include mandatory and discretionary suspension or revocation of his licenses. Therefore, the Department has the burden of proving the specific allegations of fact that support its charges by clear and convincing evidence. See Department of Banking and Finance, Division of Securities and Investor Protection v.

   Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); and Pou v. Department of

   Insurance and Treasurer, 707 So. 2d 941 (Fla. 3d DCA 1998).

   
   

5. What constitutes "clear and convincing" evidence was described by the court in Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So. 2d 112, 116, n. 5 (Fla. 1st DCA 1989), as follows:

   . . . [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

   Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

   
   

   See also In re Graziano, 696 So. 2d 744 (Fla. 1997); In re

   Davey, 645 So. 2d 398 (Fla. 1994); and Walker v. Florida Department of Business and Professional Regulation, 705 So. 2d 652 (Fla. 5th DCA 1998)(Sharp, J., dissenting).

   1. The Charges of the Administrative Complaint.

      
      

6. In Count I and II of the Administrative Complaint, the Department has charged Mr. Summerlin with having violated Section 648.45(3)(c), Florida Statutes, which provides, in pertinent part:

   The department may deny, suspend, revoke, or refuse to renew any license or appointment issued 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:

   
   

   . . . .

   
   

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

   
   

7. In particular as to both Counts it is alleged that the law relating to the business of bail bond insurance

   Mr. Summerlin violated was Section 648.421, Florida Statutes, which provides:

   Each licensee under this chapter shall notify in writing the department, insurer, managing general agent, and the clerk of each court in which the licensee is registered within 10 working days after a change in the licensee's principal business address or telephone number. The licensee shall also notify the department within 10 working days after a change of the name,

   address, or telephone number of each agency or firm for which he or she writes bonds and any change in the licensee's name, home address, or telephone number.

   
   

8. The evidence proved clearly and convincingly that

   
   

   Mr. Summerlin failed to notify the Department of a change in the agency or firm for which he was writing bonds, as alleged in Count I, and that he failed to notify the Department of a change in his principal business address, as alleged in Count II.

   1. The Appropriate Penalty.

   
   

9. The Department has suggested that Mr. Summerlin’s license be suspended for a period of six months. While the Department is authorized to suspend Mr. Summerlin’s license, given the nature of his offenses, which were procedural in nature and caused no harm to the public, six months is too severe. A three-month suspension is more appropriate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department finding that Wayne Calvin Summerlin violated the provisions of Section 648.45(3)(c), Florida Statutes, as alleged in Counts I and II of the Administrative Complaint; dismissing Counts III through VI of the Administrative Complaint; and suspending his licenses and appointments as a bails bond agent for a period of three months.

DONE AND ENTERED this 14th day of November, 2007, in Tallahassee, Leon County, Florida.

S

LARRY J. SARTIN

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 14th day of November, 2007.

COPIES FURNISHED:

Robert Alan Fox, Senior Attorney Division of Legal Services Department of Financial Services 612 Larson Building

200 East Gaines Street Tallahassee, Florida 32399-0333

Wayne Calvin Summerlin

520 Southeast 16th Avenue Pompano Beach, Florida 33060

Honorable Alex Sink Chief Financial Officer

Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300

Daniel Sumner, General Counsel Department of Financial Services The Capitol, Plaza Level 11 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: 07-002649PL

Orders for Case No: 07-002649PL