Findings Of Fact Respondent Leroy Ellsworth Hardman has been licensed by petitioner as a limited surety agent since 1974. In January of 1976, he opened an office in Sanford, Florida, under the name of Action Bail Bonds. By December of 1978, he had qualified with the clerks of court in Orange, Seminole and Volusia Counties, and had written bonds in all three counties. Respondent decided to open an office in Deland, in addition to his office in Sanford. He leased office space on December 1, 1978, and began renovation. He had arranged for an advertisement to appear in the yellow pages of the Deland telephone directory, effective December 18, 1978, but did not succeed in opening the Deland office until December 19, 1978. Respondent hired Barbara Linkel to be in the office weekdays until four o'clock in the afternoon. He himself visited the office daily. Respondent, who had a 24 hour answering service and wore an electronic pager, instructed Ms. Linkel to notify him if anybody wanted a bond written. Respondent had charge of his Deland office while continuing to have charge of his office in Sanford. On January 29, 1979, John Wolmac, a limited surety agent, registered at the courthouse and began working for respondent, taking charge of the Deland office. On January 31, 1979, respondent executed the first bond written at the Deland office. Respondent's exhibit No. 8. Records of all bonds written at the Deland office were kept on file there until that office closed on May 31, 1979, when the records were transferred to respondent's office in Sanford. At all pertinent times, respondent's records were complete and open to the public for inspection. At the time of the hearing, respondent still had records of every bond executed or countersigned by him.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss the administrative complaint against respondent. DONE and ENTERED this 8th day of October, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Thomas A. T. Taylor, Esquire Office of the Insurance Commissioner The Capitol Tallahassee, Florida 32301 James C. Weart, Esquire 201 West Firth Street Suite 206, Paulucci Building Sanford, Florida 32771
The Issue Whether Petitioner should be granted a temporary bail bond license with the Florida Department of Financial Services?
Findings Of Fact Petitioner applied for licensure as a temporary resident surety agent (temporary bail bond agent) on or about December 31, 2008. The Department deemed his application completed on February 5, 2009. In November 1997 in Colquitt County, Georgia, Petitioner pled guilty to a felony charge of possession of more than one ounce of marijuana. He was placed on probation for a period of six years. Pursuant to the Georgia Probation for First Time Offenders Act, there was no adjudication of guilt by the court. On November 7, 2003, Petitioner successfully completed his probation. On November 13, 2003, the Superior Court of Colquitt County issued an order entitled “Record of Discharge and Exoneration of Defendant (First-Offender Act)”. The Notice of Discharge states in pertinent part: THEREFORE, IT IS NOTED AND RECORDED that in accordance with the provisions of the Probation of First Offenders Act (OCGA 42-8- 60 et. seq.): The defendant has been discharged without court adjudication of guilt; That the discharge completely exonerates the defendant of any criminal purpose; asks: That the discharge does not affect any of said defendant’s civil rights or liberties; The defendant is not considered to have a criminal conviction; and The discharge may not be used to disqualify a person in application for employment or appointment to office in either the public or private sector. (emphasis added) Question 3 on the Individual Application for New License Have you ever been charged, convicted, found guilty, or plead guilty or nolo contendere (no contest) to a felony or crime under the laws of any municipality, county, state, territory, or country, whether or not adjudication was withheld or a judgment of conviction was entered? Yes/No Petitioner answered “no” to question 3 on the application for licensure. Question 20 on the Individual Application for New License asks: Have you ever been convicted, found guilty, or plead guilty or nolo contendere (no contest) to a felony under the laws of any municipality, county, state, territory, or country, whether or not adjudication was withheld or judgment of conviction was entered? Yes/No Petitioner responded “no” to question 20 on the Individual Application for New License. At the end of the application, just above his electronic signature, Petitioner checked a box manifesting agreement with the following declaration: Under the penalties of perjury, I declare that I have read the foregoing application for license and that the facts stated in it are true. I understand that misrepresentation of any fact required to be disclosed through this application is a violation of the Florida Insurance and Administrative Codes and may result in the denial of my application and/or the revocation of my insurance license(s). The Department’s denial letter was based on Petitioner’s criminal history, as well as an allegation of failure to disclose same. Petitioner testified at hearing that during the process of completing his application as a bail bondsman, he sought the advice of an attorney regarding his Notice of Discharge and application. Petitioner received legal advice that his answer to the aforementioned questions should be “no.” Petitioner’s testimony in this regard is found to be credible and is accepted.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That Petitioner’s application for licensure as a Temporary Resident Limited Surety Agent be granted. DONE AND ENTERED this 14th day of October, 2009, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 2009.
Conclusions WHEREFORE, it is ORDERED and ADJUDGED, that the protests are dismissed with prejudice. DONE AND ORDERED this |2__ day of May _, 2010, in Tallahassee, Florida. Fr J> . BR 7 . yamjssioner of Education | COPIES FURNISHED TO: | Christopher McRae Robert Hosay | 2612 Centennial Place 100 E. College Ave., Suite 900 | Tallahassee, FL 32308 Tallahassee, FL 32301 | Clerk William F. Quattlebaum | Division of Administrative Hearings Administrative Law Judge | The DeSoto Building Division of Administrative Hearings | 1230 Apalachee Parkway The DeSoto Building | Tallahassee, FL 32399 1230 Apalachee Parkway Tallahassee, FL 32399-3060
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Administrative Complaint filed against the respondent on September 9, 1981 be DISMISSED. Respectfully submitted and entered this 11th day of May, 1982, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 1982. COPIES FURNISHED: Robert F. Jordan, Esquire CONRAD, SCHERER & JAMES 707 Southeast Third Avenue Post Office Box 14723 Ft. Lauderdale, Florida 33302 Philip Jansen, Esquire JANSEN & DE GANCE, P.A. Post Office Box 7375 Ft. Lauderdale, Florida 33304 Mr. C. B. Stafford Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32801 Frederick H. Wilsen, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue in this case is whether Respondent is guilty of a violation of bail bondsmen disciplinary statutes.
Findings Of Fact At all material times, Respondent has been licensed in the State of Florida as a bail bondsman. He operates Freedom Bail Bonds in Orlando, Florida. On May 28, 1988, law enforcement officers of the Orange County Sheriff's Office arrested John P. Moody and placed him in the Orange County jail. Mr. Moody had never previously been arrested. After he was arrested, Mr. Moody contactedRespondent about obtaining a bail bond in order to get out of jail. Respondent agreed to come to the jail and interview Mr. Moody to determine if Freedom Bail Bonds could provide him a bond. When Respondent arrived at the jail on the evening of May 28, he was informed by an officer of the three charges that were pending against Mr. Moody. The bond was $1000 per charge, and the premium was 10% of the bond. Respondent met with Mr. Moody and asked him whether he had any assets to secure the bond. Mr. Moody explained that he had no assets such as a car, cash, or cash equivalent. However, he said that he owned jointly with his mother some land in Orange County. At the conclusion of the interview, Respondent had decided to write the bond. Respondent then learned from the booking officer that another charge had been added. Following a brief conversation between Respondent and Mr. Moody concerning the new charge, Respondent learned from the booking officer that a fifth charge had been added. After another conversation with Mr. Moody, Respondent learned in this manner that a sixth, and final, charge had been added. In all, Mr. Moody was charged with one count of failing to return a hired automobile and five counts of fraudulent bank deposits. Each charge carried a $1000 bond, so Mr. Moody now required a total bond of $6000, which in turn required a total premium of $600. Due to the increased amount of the bond, Respondent informed Mr. Moody that he would have to secure the bond with a mortgage on the property jointly held with his mother. Mr. Moody agreed, but asked Respondent not to contact Mr. Moody's mother immediately. It was the middle of the night, and Mr. Moody's mother is an invalid. Respondent agreed to allow Mr. Moody to contact his mother later and obtain her signature on a mortgage. Because Mr. Moody lacked the funds, a friend, Marion Reed Johnson, agreed to pay the premium. Knowing that Mr. Moody would not be able to obtain that evening his mother's signature to a mortgage, Respondent insisted on some interim security and agreed to accept six $1000 promissory notes from Mr. Johnson. These notes were payable on demand, but, according to their terms, became void if Mr. Moody appeared in court when ordered to do so and discharged all of the obligations of the bail bond. Respondent gave Mr. Johnson receipts for the $600 premium and six $1000 notes as soon as Respondent received these items. At the same time, also on the evening of May 28, Respondent completed a bail bond application and indemnity form, on which Mr. Moody provided certain background information. Mr. Moody and Mr. Johnson also signed indemnifications in favor of the surety. The application form states that the surety: shall have control and jurisdiction over the principal during the term for which the bond is executed and shall have the right to apprehend, arrest and surrender the principal to the proper officials at any time as provided by law. The application form also provides: In the event surrender of principal is made prior to the time set for principal's appearances, and for reason other than as enumerated below is paragraph 3, then principal shall be entitled to a refund of the bond premium. It is understood and agreed that the happening of any one of the following events shall constitute a breach of principal's obligations to the Surety hereunder, and the Surety shall have the right to forthwith apprehend, arrest and surrender principal, and principal shall have no right to any refund of premium whatsoever. Said events which shall constitute a breach of principal's obligations hereunder are: If principal shall depart the jurisdiction of the court without the written consent of the court and the Surety or its Agent. * * * If principal shall commit any act which shall constitute reasonable evidence of principal's intention to cause a forfeiture of said bond. * * * The application and indemnities were signed. Mr. Johnson paid the $600 premium and executed and delivered the six $1000 demand notes. Respondent then caused Freedom Bail Bond to issue the bond. Mr. Moody was released from the jail during the evening of his arrest (actually during the predawn hours of May 29). May 28 was a Saturday. The following Monday, Respondent gave one of his employees a copy of the warranty deed from Mr. Moody's mother to herself and Mr. Moody. Mr. Moody hadgiven a copy of the deed to Respondent during their initial interview in order to allow Respondent to prepare the mortgage that Mr. Moody had agreed to provide. Respondent instructed the employee to use the legal description from the warranty deed to prepare a mortgage and send it to Mr. Moody for execution by his mother and him. The employee did as instructed and promptly mailed the mortgage to Mr. Moody with instructions for execution, witnessing, and notarization. After about a week, Respondent asked the employee if she had received the executed mortgage. She replied that she had not and proceeded to telephone Mr. Moody. When she asked him about the mortgage, Mr. Moody did not express any unwillingness to sign it, but said that he had not received it. Confirming the mailing address, the employee agreed to send him another mortgage and did so on June 6, 1988. Several times after mailing the second mortgage, the employee contacted Mr. Moody and discussed the need to get the document fully executed and delivered to Freedom Bail Bonds. On one occasion, Mr. Moody agreed to return the executed mortgage on June 22. But on the last of these conversations, Mr. Moody informed the employee, for the first time, that he had no intention of providing the mortgage. The employee told Respondent what Mr. Moody had said and returned the file to Respondent for further action. At about the same time that Respondent's officehad sent the mortgage to Mr. Moody the second time, Mr. Moody's sister telephoned Respondent. Estranged from her brother, she was concerned that Mr. Moody, whom she believed had misused funds of their invalid mother in the past, might try to obtain their mother's signature on a mortgage to secure a bond in order to get out of jail. Mr. Moody's sister informed Respondent that her brother was not authorized to obtain their mother's signature on the mortgage. She said that her brother was not to be trusted, had improperly removed money from their mother's trust in the past, and had defaulted on at least one debt so as to require the creditor to lien the jointly held property in order to be repaid. At about the same time, a different employee of Respondent received an anonymous telephone tip that Mr. Moody was about to depart, or had already departed, on a trip to Alabama with another man. The informant described what turned out to be a vehicle owned by Mr. Johnson, with whom Mr. Moody had been living since his release from jail on May 29. Several attempts by Respondent's employees to reach Mr. Moody over the next two to four days were unsuccessful. In fact, Mr. Moody had gone to Alabama, which is outside the jurisdiction of the Orange County Circuit Court. On July 18, 1988, one of Respondent's employees contacted the Clerk of Court's office and learned that Mr. Moody had not qualified for the services of a Public Defender. In addition, the employee had been notified on or about July 6, byreceipt of a notice of hearing on a Determination of Counsel, that Mr. Moody had not been diligent in obtaining counsel. After determining that other Determination of Counsel hearings had been and were being set by the Court, the employee reasonably concluded that Mr. Moody was not diligently trying to obtain counsel or independently resolve the pending criminal matters. The employee communicated this information to Respondent on July 18. Respondent contacted Mr. Moody by telephone on July 18 and asked when he was going to supply the executed mortgage. Mr. Moody responded that he had determined that Respondent did not need the additional security and was not going to provide it. At this point, Respondent concluded that it was likely that Mr. Moody had in fact left the state without permission. Respondent also concluded that Mr. Moody no longer represented an acceptable risk. Respondent thus directed another employee to join him to arrest Mr. Moody and surrender him to the Orange County Sheriff's Office. Respondent and his employee immediately visited Mr. Moody and asked him whether he had left the state. Mr. Moody admitted doing so. Respondent and the employee then arrested Mr. Moody and returned him to jail. Mr. Moody remained in jail for 63 days until he pleaded guilty to the charges. He was sentenced to the time served, placed on probation for four years, and required to makerestitution, which he has done so far in accordance with the schedule. Following his release from jail, Mr. Moody returned to live with Mr. Johnson and gradually repaid him the $600 that he owed him. Although Mr. Moody demanded return of the $600, he never offered any proof of payment to Mr. Johnson. Mr. Johnson never demanded the return of the money. Respondent has retained the $600 premium. The six $1000 notes were automatically voided when Mr. Moody was arrested on July 18.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Insurance and Treasurer enter a final order dismissing the Administrative Complaint. ENTERED this 22nd day of March, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399 (904) 488 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1991. COPIES FURNISHED: Hon. Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399 Bill O'Neil, General Counsel Department of Insurance The Capitol, Plaza Level Tallahassee, FL 32399 Attorney David D. Hershel Division of Legal Services 412 Larson Building Tallahassee, FL 32399 Attorney Alan B. Robinson 56 East Pine Street Orlando, FL 32801
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: On May 10, 1973, petitioner, a Tennessee business trust, loaned Hunt- Florida Enterprises, Inc. the principal sum of $1,300,000.00, receiving in return a mortgage deed and mortgage note on property owned by Hunt-Florida located in Broward County. (Exhibits 1 and 2) On September 30, 1975, petitioner loaned Hunt-Florida an additional sum of $125,000.00, receiving in return a "promissory note and mortgage modification agreement." This agreement reflected Hunt-Florida's entire indebtedness to petitioner for $1,425,000.00 and encumbered the mortgaged property for the full amount. This agreement ratified and confirmed the personal and individual guarantee of Richard E. Hunt and his wife, Joyce B. Hunt, of the mortgage note dated May 10, 1973. (Exhibit 3) No payments were made by Hunt-Florida to petitioner to reduce its indebtedness. On February 13, 1976, Hunt-Florida executed to petitioner a quitclaim deed to the subject property. (Exhibit 4). This quitclaim deed had three covenants. It was agreed that by acceptance of the deed, petitioner would not institute suit for the amount owed it by Hunt-Florida in the amount of $1,300,000.00, plus interest, nor would petitioner sue the individual grantors. It was further agreed that the quitclaim deed was subject to the aforementioned mortgage and promissory note and mortgage modification agreement and it was provided that the same shall not merge so that the right to foreclose was not extinguished by the quitclaim deed. Finally, the quitclaim deed provided that it was subject to a purchase contract executed between Hunt-Florida and SLC Oil and Gas Corporation. Hunt-Florida assigned to petitioner all its rights, title and interest in said purchase contract and the proceeds of the same. This quitclaim deed bore only minimal documentary stamps. The respondent Department of Revenue made a total assessment against petitioner in the amount of $16,086.80. This sum includes taxes and surtaxes on the February 13, 1976, quitclaim deed, taxes on the promissory note and mortgage modification agreement and penalties and interest. (Exhibit 5). Petitioner does not contest the mathematical computation or its liability for the assessment on the modification agreement. It does contest the taxes, surtaxes, penalties and interest as assessed upon the quitclaim deed.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the assessment as set forth in the revised notice of proposed assessment of tax and penalty dated December 8, 1976, be upheld. Respectfully submitted and entered this 22nd day of March, 1977, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1977. COPIES FURNISHED: John D. Moriarty, Esquire Department of Revenue Room 104, Carlton Building Tallahassee, Florida 32304 David L. Kline, Esquire Abrams, Anton, Robbins, Resnick and Schneider, P.A. Post Office Box 650 Hollywood, Florida 33020 David K. Miller Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32304
The Issue At issue in this proceeding is whether Respondent, Sergio A. Balsinde ("Respondent") is entitled to elect to be exempt from the workers' compensation insurance coverage requirements of chapter 440, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: The Department is the state agency responsible for enforcing the requirement of the workers' compensation law that employers secure the payment of workers' compensation insurance coverage for their employees and corporate officers. § 440.107(3). A corporate officer may elect to become exempt from the workers' compensation insurance coverage requirements of chapter 440 by complying with the election of exemption methodology set forth in section 440.05. If the election of exemption meets the criteria of section 440.05, then the Department is required to issue a certification of the election to be exempt to the officer. § 440.05(3). A corporate officer is ineligible for an exemption if he is affiliated with "a person who is delinquent in paying a stop-work order and penalty assessment order issued pursuant to section 440.107, or owed pursuant to a court order." § 440.05(15). Balco was originally incorporated in 1985. Mr. Balsinde has been a corporate officer of Balco since at least April 28, 2003, the date of the earliest Balco annual report entered into evidence. Mr. Balsinde is also a corporate officer and 10 percent owner of LC Cable Corp. The Department issued and served a Stop-Work Order and Order of Penalty Assessment on Balco on February 8, 2007. At the final hearing in the instant case, Mr. Balsinde testified that the Stop-Work Order and Order of Penalty Assessment had been erroneously entered against his company. He testified that the uninsured workers in question did not even work for Balco. Mr. Balsinde testified that he had attempted to rectify the error with the Department, but was unable to make the Department acknowledge its mistake. Whatever the merits of Mr. Balsinde's factual claim, neither he nor any other representative of Balco formally challenged the Stop-Work Order and Order of Penalty Assessment. Having long ago become final, the Stop-Work Order and Order of Penalty Assessment cannot be contested in this proceeding. On September 23, 2008, Balco entered into an Amended Payment Agreement Schedule with the Department that called for Balco to make 60 monthly payments, each due on the first day of the month, and a suspension of the Stop-Work Order. After Balco ceased making payments according to the schedule, the Department issued an Order Reinstating Stop-Work Order on October 26, 2009. The reinstatement order was served on Mr. Balsinde on October 30, 2009. As of October 26, 2009, the unpaid balance of the penalty assessment against Balco was $22,236.38, which was ordered due immediately by the reinstatement order. As of the date of the hearing in this case, the balance remained unpaid. Neither Mr. Balsinde nor any other representative of Balco filed a timely request for a review proceeding to challenge the reinstatement order. Balco did not appeal the reinstatement order. On July 22, 2010, a final decree in Chapter 7 bankruptcy was entered on behalf of Mr. Balsinde by the United States Bankruptcy Court for the Southern District of Florida, in Case Number 10-18850-LMI. The discharge in bankruptcy was received by Mr. Balsinde as an individual. Though the final decree listed the Department as an unsecured creditor and Balco as a business of the debtor, Balco did not receive a discharge in bankruptcy, nor did the company file a bankruptcy petition subsequent to the issuance of the reinstatement order by the Department. Mr. Balsinde submitted a Notice of Election to be Exempt to the Department on November 29, 2010, as an officer of LC Cable Corp., a corporation operating in the construction industry. The Department reviewed Mr. Balsinde's application to determine his eligibility to elect the exemption. The Department's Coverage and Compliance Automated System indicated that Mr. Balsinde is the officer of a corporation that is delinquent in paying a Stop-Work Order and Order of Penalty Assessment, which makes him ineligible for an exemption. The Department issued a Notice of Denial of Mr. Balsinde's election of exemption on December 6, 2010.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Financial Services, Division of Workers' Compensation, finding that Sergio A. Balsinde is ineligible for an election of exemption under section 440.05. DONE AND ENTERED this 18th day of May, 2011, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 18th day of May, 2011.
The Issue The issues in this matter are whether Respondent poses an immediate, serious danger to the public health, safety, or welfare, and, if so, whether Petitioner has cause to immediately suspend Respondent's loan originator license.
Findings Of Fact At all times relevant to this case, Respondent was licensed with the Office to conduct business as a loan originator in the State of Florida. Respondent holds certificate of licensure NMLS No. LO19773. As a loan originator in Florida, Respondent is governed by chapter 494. The Office is the state agency charged with licensing, regulating, and supervising loan originators in Florida pursuant to chapter 494. On March 24, 2015, Respondent was arrested for the following crimes by the Sarasota County Sheriff's Office: Occupied Burglary--pursuant to section 810.02(2)(a), Florida Statutes,3/ a first-degree felony; Battery on a person 65 years or older-- pursuant to section 784.08(2)(c), Florida Statutes,4/ a third-degree felony; and Simple Battery (two counts)--pursuant to section 784.03(1)(a)1.,5/ first-degree misdemeanors. On May 12, 2015, Respondent was charged with these crimes in Sarasota County, Florida, in Case No. 2015-CF-004817-NC. Respondent's criminal case is currently pending disposition in Sarasota County. At the final hearing, Respondent described her actions which led to her arrest on March 24, 2015.6/ The incident began with a dispute over money. According to Respondent, an individual allegedly stole $258.00 from Respondent's friend who was staying at her house. Respondent, together with the friend and three other individuals, drove to the suspected thief's house to demand the money's return. Upon arrival at the house, Respondent walked up to and knocked on the front door. Two individuals, the suspected thief and the suspected thief's mother, answered. The confrontation quickly became physical. Respondent claims that the suspected thief's mother started the fight by jumping on her from out of the front door. Rapidly, upwards of five individuals were involved in hitting, pushing, tackling, and wrestling. The scrum ranged from the front door to the house's garage. Respondent recounted that she was battered, punched, slammed to the ground, and beaten with a cane. (The cane-wielder was the suspected thief's grandfather, who is over 65 years old, which apparently led to Respondent's felony charge of battery on a person 65 years or older.) Respondent claimed she suffered injuries to her chin, neck, heart, and scalp. At the final hearing, Respondent testified that she did not enter the suspected thief's home. However, Respondent did admit that at some point during the encounter, she entered the open garage with the intent to access the house through the side door. (This action evidently led to Respondent's felony charge of burglary.) Eventually, the Sarasota County Sheriff's Office was called and responded. The fight broke up. No serious injuries were reported. No information was presented regarding the fate of the $258.00. Respondent testified that she did not start the fight. She claimed that because of her small frame, she was never a serious danger to anyone. Nevertheless, the Sarasota County Sheriff indisputably arrested Respondent for her alleged role in the altercation. As of the date of the final hearing, Respondent understood that she will have a court date in August 2015 for the pending criminal case. Based on Respondent's arrest, on April 8, 2015, the Office issued the Emergency Order. The Office issued the Emergency Order pursuant to sections 120.60(6) and 494.00255(8). The Emergency Order states that the Office found Respondent's activities posed an immediate and serious danger to the public welfare. The Emergency Order ordered Respondent to immediately cease and desist from engaging in the business of loans and any activities in violation of chapter 494 and Office rules. Through the Emergency Order, the Office suspended Respondent's loan originator's license, effective April 13, 2015. Respondent's loan originator license is suspended "until such time as [Respondent] complies with the terms of this order." As described in the Emergency Order, the Office determined that Respondent's actions that led to her arrest posed an immediate, serious danger to the public based on several factors. The Emergency Order declares that the Office found that an emergency suspension and a cease and desist order was necessary to protect Florida consumers from Respondent's "apparent unpredictable and irrational behavior." Furthermore, Respondent's "apparent volatility, unpredictability, and lack of impulse control" calls into question her "trustworthiness and character." The Emergency Order also states that "[c]ommitting felony battery over a financial matter demonstrates that Respondent lacks the character or general fitness necessary to command the confidence of the community." To emphasize the seriousness of the alleged crimes, the Office points to the fact that the felony burglary charge carries a possible maximum penalty of life in prison. The Office included provisions and terms in the Emergency Order to meet the fairness requirement of section 120.60(6). The Emergency Order contained detailed factual findings in order to adequately notify Respondent of the basis for the Office's intended action. The Emergency Order included a Notice of Rights which provided Respondent the point of entry to request an expedited administrative hearing pursuant to chapter 120 to contest the Emergency Order (which Respondent pursued in the present matter). The Emergency Order also informed Respondent of her opportunity to seek to stay the Office's action through an appellate proceeding under section 120.68. Further, the Emergency Order stated that Respondent's loan originator's license is subject to reinstatement, if the criminal charges are ultimately dismissed or not prosecuted. At the final hearing, Respondent conceded that she made the wrong decision to confront the suspected thief. She expressed that she was not thinking clearly at the time. Nevertheless, Respondent asserts that she is falsely accused and has done nothing wrong. She pleads to keep her license during the time it takes Sarasota County to process her criminal case. Respondent proclaims that she should be considered and treated as innocent of all charges up to and until such time as the allegations against her are proven. Respondent asserts that her loan origination business is her sole source of financial support. Based on the facts produced at the final hearing and further discussed below, the undersigned finds that the Office has not met its burden of demonstrating by clear and convincing evidence that immediately suspending Respondent's license to conduct business as a loan originator is an action "necessary to protect the public interest," as required by section 120.60(6)(b).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Office of Financial Regulation, enter a final order rescinding the Emergency Order to Cease and Desist and Suspending License issued to Respondent, Frankie Damiano, on April 8, 2015. DONE AND ENTERED this 21st day of July, 2015, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 2015.
