Findings Of Fact Charles Schwartz, an unlicensed building contractor built several houses in St. Lucie County including the house now owned by Salvatore and Cecelia Patti. In early 1976, Schwartz was in serious financial trouble and after commencing construction of the house here involve and placing a mortgage in the amount of $29,600 on the property on February 20, 1976, found himself unable to make the mortgage payments. This mortgage provided for interest payments only until June 20, 1976 when both principal and interest payments would start. Patti had done work as a subcontractor for Schwartz and was aware Schwartz was anxious to dispose of the property subject to the above mortgage. In April, 1976, before the house was completely finished, Patti purchased the house from Schwartz but didn't obtain a deed or assignment of mortgage until a later date. Patti agreed to assume the mortgage and complete the unfinished work as consideration for transfer of the property. Schwartz advised Patti that he, Schwartz, would record the warranty deed and have it sent to Patti. This deed was recorded on June 1, 1976 and documentary stamp taxes in the amount of $0.30 and surtax stamps in the amount of $0.55 were placed on the deed. When Patti received a copy of the recorded deed he paid no attention to the documentary stamps that had been placed on this instrument. After recording the warranty deed upon the representation to the clerk that the property consisted of unimproved land, Schwartz left town and numerous creditors "holding the bag". Schwartz had also advised Patti that the ad valorem taxes for 1976 had been paid on the property. Patti learned in late 1976 that these taxes had not been paid and to remove the lien thereby created against the property in January, 1977 he redeemed the tax certificates sold for these taxes. Patti's first information that proper documentary stamp taxes had not been placed upon his deed was contained in NOTICE OF PROPOSED ASSESSMENT dated November 19, 1976 (Exhibit 1) which showed an assessment for documentary stamps in the amount of $86.70, penalty $86.70 and interest in the amount of $4.48 for a total of $177.88. Since Petitioner acknowledged the accuracy of the assessment of $86,70 this amount is found to be the proper assessment.
The Issue Whether Respondent committed the offenses alleged in the Amended Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact At all times pertinent to this proceeding, Respondent was licensed as a limited surety agent pursuant to Chapter 648, Florida Statutes. At all times pertinent to this proceeding, Respondent was an agent of American Banker's Insurance Company with authority to write surety bonds and/or bail bonds. At all times pertinent to this proceeding, Respondent was doing business as, or on behalf of, a bail bond business known as A Aachen Express Bail and/or A Aachen Bail Out, 521 South Andrews Avenue, Suite 2, Fort Lauderdale, Florida. On January 13, 1999, Respondent entered into an agreement with BellSouth Advertising and Publishing Corporation that resulted in an advertisement for A Aachen Express Bail in the April 2000 Greater Fort Lauderdale BellSouth Yellow Pages. The subject advertisement contained the following: "GUARANTEED LOWEST RATES!" Underneath that statement, in smaller lettering, was the following: "ALLOWED BY LAW."1 There is only one approved bail bond rate in the State of Florida. The only bail bond rate that has been approved by Petitioner is ten percent (10%) for state bonds and fifteen percent (15%) on Federal bonds, with a minimum premium of fifty dollars. Respondent, as well as all other bail bond agents in Florida may only charge a consumer those approved rates. In addition to the foregoing bond rates, bail bond agents are authorized to impose against consumers certain incidental charges pursuant to Section 648.44(1)(i), Florida Statutes.2 It was Respondent's policy to charge ten percent (10%) for state bonds and fifteen percent (15%) on Federal bonds, with a minimum premium of fifty dollars. It was Respondent's policy not to impose any other charges against consumers, including the incidental charges authorized by Section 648.44(1)(i), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that finds Respondent guilty of violating the provisions of Sections 648.44(6)(b) and 626.954(1)(b), Florida Statutes, and imposes against her an administrative fine in the amount of $100. It is further recommended that the other violations alleged in the Amended Administrative Complaint be dismissed. DONE AND ENTERED this 23rd day of May, 2000, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 23rd day of May, 2000.
Findings Of Fact In his application for registration as a mortgage broker (Exhibit 2), David Stain, Petitioner, in response to question 7 "Have you any judgments against you?" answered "No". By letter dated May 12, 1980 (Exhibit 1), Respondent advised Stein that background investigation revealed numerous judgments against him and stated it would he necessary for Stein to advise why he chose to answer question 7 in the negative. After receiving no response from Stein, Respondent, on 2 July 1980, entered a Final Order denying Stein's application for registration as a mortgage broker. Grounds given in this Order were based upon numerous unsatisfied judgments entered against Stein in Pennsylvania. Exhibit 3, a composite exhibit of court records from Allegheny County, Pennsylvania, shows judgements entered against David Stein and in favor of: Pennsylvania Department of Revenue (2), Diner's Club, Ford Motor Credit Company, Charles Arnold, Alan Shaffer, Carl Kronander, and CNA Financial Corporation.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the assessment of the documentary stamp surtax in the amount of $2,436.50 and the penalty in a like amount, for a total assessment of $4,873.00, be upheld. Respectfully submitted and entered this 17th day of December, 1976, 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 17th day of December, 1976. COPIES FURNISHED: Mr. Gerald J. Biondo PAUL, LANDY, BAILEY & YACOS 200 Southeast First Street Miami, Florida 33131 Mr. Edwin J. Stacker Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32304 Mr. J. Ed Straughn Executive Director Department of Revenue The Capitol Tallahassee, Florida 32304
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint dated April 20, 1995, and, if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the stipulation of the parties, and on the entire record of this proceeding, the following findings of fact are made: The Department of Business and Professional Regulation is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to Chapters 120, 455, and 475, Florida Statutes. The Florida Real Estate Commission ("Commission") operates within the Department and is the entity directly responsible for licensing and disciplining those licensed under Chapter 475. Section 475.02, Florida Statutes. The Division of Real Estate operates within the Department and assists the Commission in carrying out its statutory duties. Section 475.021, Florida Statutes. Janice H. Little is, and was at all times material to this action, licensed as a real estate broker in Florida and was issued license number 0370239. The last license issued to Ms. Little was as a broker %Dennis & Little, Inc., t/a Kays Realty, 421 Southwest 31st Avenue, Fort Lauderdale, Florida, 33312. On April 7, 1993, Ms. Little obtained an offer from Karlene Bascombe to purchase real property owned by Maxine Williams. Ms. Little was acting as the seller's co-broker in this transaction. Ms. Little provided Ms. Bascombe with the names of several mortgage companies. Ms. Bascombe decided to apply for financing to Vision Mortgage Corporation, one of the companies identified by Ms. Little, and she met with Henry Yee, the manager of Vision Mortgage Corporation, at Ms. Little's office. Ms. Little introduced Ms. Bascombe to Mr. Yee but did not participate in their meeting. As part of her loan application, Ms. Bascombe authorized Vision Mortgage Corporation to verify her past and present employment records, among other things. At some point during the time Ms. Bascombe's loan application was being processed, Ms. Little learned that Ms. Bascombe's income was not sufficient to warrant approval of the application. Ms. Little was aware that Ms. Bascombe was a bookkeeper and that she worked full time at Lerner's. After learning that Ms. Bascombe had insufficient income to secure financing for the purchase of Ms. Williams' property, Ms. Little approached Donaval Powell and asked if he would be interested in hiring a part-time bookkeeper. Mr. Powell owns Filament Electronics, a business that sells and repairs electronic equipment. The business is located in the same shopping center in which Ms. Little's office was located and in close proximity to her office. Filament Electronics has been in the same location since it opened in 1992. Ms. Little and Mr. Powell have known each other since shortly after he opened his business. Mr. Powell told Ms. Little he might want to hire a part-time bookkeeper, but Mr. Powell heard nothing further about this matter. He never met Ms. Bascombe, he did not hire her, and she was never employed by Filament Electronics.1 Blanca Tanadell, an employee of Vision Mortgage Corporation, prepared a Fannie Mae Request for Verification of Employment form for Ms. Bascombe. Ms. Tanadell filled out boxes one through eight of the form, and she identified Filament Electronics as the employer from whom verification of Karlene Bascombe's employment was sought. Ms. Tanadell sent the form to Ms. Little, even though the instructions included on the form direct the lender to send the form to the named employer. Ms. Little completed boxes nine through thirty of the employment verification form in which Filament Electronics was identified as Ms. Bascombe's employer. Ms. Little represented that Ms. Bascombe was employed there in January, 1991, and that her present position was as a bookkeeper. Ms. Little knew when she completed the form that Ms. Bascombe had not been employed by Filament Electronics prior to April 10, 1993, but she testified that she believed that Mr. Powell had hired Ms. Bascombe subsequent to that date. Ms. Little further represented that Ms. Bascombe's annual "current gross base pay" was $24,250.00 and that her gross earnings for 1992 were $24,250.00 and for 1991 were $23,500.00. At the time she completed the employment verification form, Ms. Little had no documentation to support the earnings she attributed to Ms. Bascombe.2 Finally, Ms. Little signed the name "Hyacinth Fuller" and identified her as "Supervisor."3 She then sent the completed employment verification form to Vision Mortgage Corporation. Ms Little did not ask Mr. Powell to complete the employment verification form, nor did she ask him whether he employed Ms. Bascombe and, if so, the amount of her earnings. Ms. Bascombe's loan application was approved, and she purchased the real property offered for sale by Maxine Williams. Ms. Little was paid a commission at closing in the amount of three percent of the sales price of the property. Ms. Bascombe subsequently defaulted on her loan, and it was in the course of the loan company's investigation of the default that Mr. Powell denied ever having employed Ms. Bascombe. Ms. Little is licensed in Florida as a mortgage broker, and, at one time, her license was with Vision Mortgage Corporation. She is familiar with the procedures for processing loan applications. The stipulation entered into by the parties and the evidence presented by the Department are sufficient to establish that Ms. Little is guilty of fraud or misrepresentation in a transaction related to her business as a real estate broker. Ms. Little seeks to excuse her actions by claiming that she believed that Ms. Bascombe had been hired by Mr. Powell after April 10, 1993, and that she was provided with the earnings figures by Henry Yee, who was the manager of Vision Mortgage and whom she considered trustworthy. She also claims that Mr. Powell wants to harm her because she spurned his sexual advances and told his wife that he constantly bothered her. These contentions are, however, contrary to the more credible and persuasive proof and, even if true, do not alter the fact that Ms. Little acted with, at the very least, extreme reckless disregard for the truth.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Real Estate Commission enter a Final Order finding Janice H. Little guilty of violating Section 475.25(1)(b), Florida Statutes, and revoking her real estate broker's license. DONE AND ENTERED this 5th day of August, 1997, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 5th day of August, 1997.
The Issue Whether Petitioner is qualified for licensure; specifically does he possess the good character necessary in light of his conviction of a felony.
Findings Of Fact On May 27, 1986, the Petitioner, Charles E. Hillyer, III, made application under the provisions of Chapter 494, Florida Statutes, for license to engage in the business of mortgage solicitor (A-1). The application stated the fact of the applicant's conviction of a crime in the Federal Court, Middle District of Florida, in September 1983 based upon his plea of guilty to: "knowingly, willfully and intentionally distributing a quantity of cocaine, a Schedule II controlled substance, in violation of Title 21, US Code Section 841(a)(1)." Petitioner had been using cocaine for some time and under the stress of a divorce began using more cocaine. He sold two undercover police officers 27.6 grams of cocaine as part of a scheme to pay for his own drug use in early 1982. This conduct reflects adversely on the Petitioner's character and is a crime of moral turpitude. The Petitioner did plead guilty to the offense described in paragraph 1 above, a felony under the Federal law, and the Court, having found the Petitioner guilty, ordered applicant to serve three years in prison, pay a fine of $3,000 and serve a special parole term of three (3) years in an order dated September 29, 1983. Conviction of any felony constitutes an act reflecting adversely on one's moral turpitude and good character. In its notification of denial (A-2), the Agency stated that Petitioner did not have "the honesty, truthfulness, and integrity required for licensure pursuant to Section 494.04, Florida Statutes." The Petitioner meets all qualifications for licensure as mortgage solicitor except for the fact that he was, in 1983, convicted of a crime involving moral turpitude. The Petitioner was released from federal prison at Eglin in August 1984, and was assigned to a halfway house in Jacksonville, Florida, remaining under supervision until December 21, 1984, when he secured employment with Jack Bush Toyota South, Jacksonville, Florida, in September 1984 as an auto salesman. He was then employed with Lawyers Title Insurance Corporation in Jacksonville, Florida in February 1985 as an account executive. He continued this employment after work release and up until June 16, 1986 when the applicant commenced employment as an account executive with Shearson Lehman Mortgage Corporation, Jacksonville, Florida. The Petitioner has performed no acts which would constitute practice without a license but has an offer of promotion to the position of mortgage solicitor if he can be licensed. On August 21, 1986, Petitioner was notified by the Agency that his application for licensure as a mortgage solicitor was denied (A-2). Following receipt of the notice of denial the Petitioner filed a request for a hearing (A- 3), and said request was granted pursuant to the Agency's letter of October 8, 1986 (A-4). Petitioner has taken the required test for the license of mortgage solicitor and received a passing grade of 90. Petitioner is married and has one child by his current wife. He has two children by a previous marriage to which he has regularly contributed support as required since his divorce except for the period when he was imprisoned. He is providing a stable home for his family, contributes regularly to the support of his children by his previous marriage, and leads a lawful, productive life. Petitioner is active in community affairs, his church, and has obeyed all conditions of his probation and parole. He is active with the Jacksonville Board of Realtors and on both the education and communication committees; member of the South Council, Jacksonville Chamber of Commerce; President, Cypress Landing Association (Condo); Treasurer, Full Gospel Business Men's Club; Member, Servants of Christ Episcopal Church; and Loan Officer with Shearson Lehman Mortgage Corporation. The Petitioner enjoys an excellent reputation in his community and is considered honest and trustworthy. In September 1986 Petitioner completed regular parole and began the special period of parole and probation. He is now eligible for early termination of the special parole but has not yet instituted proceedings to obtain early termination of parole. The Petitioner admitted the serious nature of his offense. It appears his life had been changed by his punishment, and he is determined to lead an honest and upright life. The principal cause of concern in the Agency is whether sufficient time has elapsed since Petitioner's conviction and sentence to determine whether Petitioner has been rehabilitated.
Recommendation Based upon the foregoing, the Hearing Officer RECOMMENDS that the application of Charles E Hillyer, III be denied. DONE and ORDERED this 3rd day of February, 1987, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 3rd day of February 1987. APPENDIX The Petitioner and Respondent were both permitted to file post hearing briefs and the Respondent was given the opportunity to file late filed exhibits. The Petitioner objected to the Respondent's late filed exhibits. The Petitioner's objections are well founded and the late filed exhibits are not received into the record, and are stricken. The Respondent did not file proposed findings. The Petitioner did file proposed findings of fact which were adopted with some alterations in organization and small changes in wording with the exception of the fact that Petitioner had established his rehabilitation. COPIES FURNISHED: S. GORDON BLALOCK, ESQUIRE BLALOCK, HOLBROOK & AKEL, P.A. 2301 INDEPENDENT SQUARE JACKSONVILLE, FLORIDA 32202 MILES GOPMAN, ESQUIRE DEPARTMENT OF BANKING AND FINANCE OFFICE OF THE COMPTROLLER SUITE 1302, THE CAPITOL TALLAHASSEE, FLORIDA 32399-0350 HONORABLE GERALD LEWIS, COMPTROLLER DEPARTMENT OF BANKING AND FINANCE THE CAPITOL TALLAHASSEE, FLORIDA 32301 CHARLES STUTTS, ESQUIRE GENERAL COUNSEL DEPARTMENT OF BANKING AND FINANCE THE CAPITOL, PLAZA LEVEL TALLAHASSEE, FLORIDA 32301
The Issue The issue in this case is whether disciplinary action should be taken against Respondent's insurance licenses based upon the alleged violations of Chapter 648, Florida Statutes, as set forth in the Administrative Complaint.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: At all times pertinent to this proceeding, Respondent was licensed in Florida as a limited surety agent (bail bondsman). On September 15, 1989, the Department filed an Administrative Complaint against Respondent seeking disciplinary action against Respondent's license as a result of his alleged employment of a convicted felon identified as Ira Stern. That case, Department of Insurance Case No. 89-L-650RVE, was settled pursuant to a Consent Order entered on January 2, 1990, pursuant to which Respondent was fined $500 and placed on probation for one year. Respondent also agreed not to employ any individual disqualified by Section 648.44(7)(a) to work at his bail bond agency and agreed that no unlicensed person employed by his bail bond agency would be permitted to engage in any activity for which a license was required. The Consent Order incorporated a Settlement Stipulation which specifically provided that the settlement was entered to avoid the costs and uncertainty of litigation and did not constitute an admission by Respondent of any violation of the insurance code. At the time of the hearing in this case, Respondent's license was apparently under suspension pursuant to an Emergency Order of Suspension issued by the Department in Department Case No. 93-ESO-005JDM. The Emergency Order of Suspension is not referenced in the Administrative Complaint and no copy of that Emergency Order has been provided. The basis for entry of that Emergency Order was not established in this case and the parties stipulated that the Emergency Order was not a part of this proceeding. For at least two years prior to the hearing in this case, Respondent was appointed to write bail bonds by American Bankers Insurance Group ("American Bankers"). Respondent previously operated a company known as Barry's Bail Bonds. Apparently as a result of some unsatisfied judgements, Respondent did not issue any bail bonds in his name or in the name of Barry's Bail Bonds during the first 6 months of 1992. At the time of the transactions alleged in the Administrative Complaint, Respondent was married to Linda Ratner. Linda Ratner was a qualified and appointed agent of American Bankers. She was also the principle of Linda's Bail Bonds, Inc. The evidence established that Respondent was a primary contact for American Bankers on behalf of Linda's Bail Bonds. It appears that Linda's Bail Bonds and Barry's Bail Bonds were operating out of the same office in Fort Lauderdale for some periods during 1991 and 1992. Other businesses were also apparently operated out of this office. The evidence established that an individual by the name of Ira Stern was involved in the operations of that office during late 1991 and the first nine months of 1992. The evidence was inconclusive as to who actually employed Ira Stern. The evidence did establish that Respondent and Ira Stern primarily handled the day to day operations of the office, including the bail bond business transacted out of the office. No evidence was presented that Ira Stern was a convicted felon and/or that he was the same individual identified in the prior Administrative Complaint filed against Respondent. Respondent solicited and issued bail bonds through Linda's Bail Bonds on several occasions from January 1992 through July 1992. The evidence established that Linda Ratner signed several American Banker's power of attorney forms in blank. As discussed in more detail below, Respondent utilized several of these forms on behalf of clients during the time period in question. Respondent's authority to write bonds for American Bankers was terminated by American Bankers on or about July 24, 1992. At that same time, the authority of Linda Ratner and Linda's Bail Bonds, Inc. was also terminated. At some point after this termination, Respondent turned over to American Bankers certain tangible collateral that had been held in a safe deposit box. This collateral was turned over sometime between July and September of 1992. The exact date was not established. On September 11, 1992, employees of American Bankers accompanied by a Department investigator, went to Respondent's office and collected all of the files and tangible collateral in the office relating to the outstanding bonds written by Respondent and/or Linda's Bail Bonds for American Bankers. No cash collateral was recovered in connection with those files. Upon arriving at the office, representatives of American Bankers and the Department investigator dealt exclusively with a man who identified himself as Ira Stern and who claimed to be the office manager. As noted above, Respondent was previously disciplined by Petitioner for employing an Ira Stern, who was allegedly a convicted felon. No direct evidence was presented to establish the identity of the person in the office on September 11, 1992 nor was there any evidence that the person who identified himself as Ira Stern was a convicted felon and/or the same individual whom Respondent was accused of improperly employing in the previous disciplinary case. Moreover, no conclusive evidence was presented to establish who actually employed the individual in question. On or about July 9, 1992, Anna Agnew and her husband called Linda's Bail Bonds to obtain a bond to get their nephew out of jail. Respondent responded to the call and told the Agnews that he would issue a bond in return for $100 cash and the delivery of a $1,000 check which was to serve as collateral for the bond. Respondent told the Agnews that he would hold the check as collateral without cashing it until their nephew's case was resolved. To obtain the release of the Agnews' nephew, Respondent submitted American Bankers power of attorney number 0334165 which had been signed in blank by Linda Ratner and filled out by Respondent. The amount of the bond was $1,000. Shortly after the Agnews' nephew was bonded out of jail, Mrs. Agnew discovered that the check they gave to Respondent had been cashed. After the Agnews' many attempts to contact Respondent regarding the check were unsuccessful, Mrs. Agnew wrote to the Department complaining of the situation. On August 17, 1992, the Agnews' nephew's case was resolved. Respondent failed to return the Agnews' collateral within the time provided by law. In an attempt to retrieve their collateral after their nephew's case was completed, Mrs. Agnew testified that her husband unsuccessfully attempted to contact Respondent at his office on a least one occasion. At the time of Mr. Agnew's visit, Respondent's office was allegedly not open. No conclusive evidence was presented as to who cashed the Agnews' check or what happened to the proceeds. On or about January 8, 1993, the managing general agent for American Bankers returned $1,000 to the Agnews in repayment of the collateral. On or about June 21, 1992, American Bankers' power of attorney form number 0333494 was submitted to the Broward County Circuit Court to obtain the release from jail of Wentworth McNorton. The amount of the bond was $1,000. The power of attorney form had been signed in blank by Linda Ratner and was filled in by Respondent. Mr. McNorton's mother, Linnette, arranged for the issuance of the bond by paying Respondent $100 in cash. In addition, she gave Respondent a diamond ring appraised in excess of $10,000 as collateral for the bond. Linnette McNorton asked Respondent to hold the ring as collateral until she could arrange to substitute some other collateral. Liability on Mr. McNorton's bond was discharged by the court on July 14, 1992. Respondent did not return Mrs. McNorton's ring within twenty-one days of discharge of liability on the bond as required by law. Linnette McNorton continued to call Respondent for several months after her collateral was due to be returned. At no time during this period did Respondent return Mrs. McNorton's calls or inform her of the whereabouts of her ring. Approximately five months after Wentworth McNorton was released, Linnette McNorton and her husband went to Respondent's home and confronted him. Respondent advised the McNortons that he did not have the ring and that it had been turned over to the insurance company. Sometime prior to September of 1992, employees of American Bankers took possession of Mrs. McNorton's ring along with other tangible collateral held by Respondent in a safe deposit box. As noted in paragraph 9 above, the evidence did not establish the exact date American Bankers took control of the collateral in the safe deposit box. At the time, Mrs. McNorton's ring was marked improperly and the staff of American Bankers was unable to identify which file it belonged with. Mrs. McNorton's ring was finally returned to her on April 15, 1993 by American Bankers after they had determined that the mislabelled and unidentified ring in their possession was Mrs. McNorton's. On or about March 13, 1992, American Bankers power of attorney numbers 0295546, 0295547, and 0295548 were executed for the issuance of three bail bonds on behalf of Kevin Krohn, the principle. The total face value of these three bonds was $3,000. The powers of attorney had been signed in blank by Linda Ratner. The other handwriting on the powers of attorney appears to be Respondent's, however, the circumstances surrounding the execution and delivery of these powers was not established. The records obtained from Respondent's office on September 11, 1992 indicate that Jeanette Krohn, the indemnitor, paid $300 in premiums for the three bail bonds described in paragraph 24 and also put up $3,000 in cash collateral. The handwriting on the collateral receipts appears to be Ira Stern's however, the circumstances surrounding the execution of these documents was not established. The last of the bonds described in paragraph 24 was discharged by the court on April 22, 1992. In July of 1992, the Department received a complaint that Jeanette Krohn was unable to obtain the return of her $3,000 cash collateral. The Department notified American Bankers of the complaint and a representative of the insurance company contacted Respondent who advised that the collateral had been repaid on June 22, 1992 by check no. 1021 drawn on the trust account of Linda's Bail Bonds. June 22, 1992 was well beyond the twenty-one days provided by law for return of the collateral. The check which Respondent told the insurance company was issued to return Ms. Krohn's collateral was purportedly signed by Linda Ratner. The check was dishonored by the bank. The signature of Linda Ratner on the check given to Ms. Krohn was forged. The evidence was insufficient to establish who forged the signature. American Bankers paid Jeanette Krohn $3,000 on or about January 8, 1993 as repayment for the cash collateral placed for the bonds. In March of 1992, M. T. Heller contacted Respondent to procure a bail bond. Respondent arranged for the issuance of the bond. When the bond was discharged, Mr. Heller returned to Respondent's office, where he dealt with Ira Stern in attempting to obtain return of the collateral.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order finding Respondent guilty of the violations alleged in Counts I, II, and III of the Administrative Complaint and dismissing Counts IV and V. As a penalty for the violations, an administrative fine of $1,500 should be imposed and the license issued to the Respondent, Barry Seth Ratner, under the purview of the Florida Department of Insurance should be suspended for a period of two years, followed by a two year probationary period. DONE and ENTERED this 4th day of October, 1994, at Tallahassee, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 1994. APPENDIX TO RECOMMENDED ORDER Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties. Petitioner's proposed findings of fact Subordinate to Findings of Fact 3. Subordinate to Findings of Fact 4 and 9. Subordinate to Findings of Fact 5. Subordinate to Findings of Fact 24. Subordinate to Findings of Fact 25. Adopted in substance in Findings of Fact 26. Subordinate to Findings of Fact 27. Subordinate to Findings of Fact 28. Subordinate to Findings of Fact 29. Subordinate to Findings of Fact 30. Subordinate to Findings of Fact 27 and 28. Subordinate to Findings of Fact 17. Adopted in substance in Findings of Fact 18. Adopted in substance in Findings of Fact 19. Adopted in substance in Findings of Fact 20. Subordinate to Findings of Fact 22. Subordinate to Findings of Fact 21. Adopted in substance in Findings of Fact 23. Subordinate to Findings of Fact 20 and 22. Adopted in substance in Findings of Fact 11. Adopted in substance in Findings of Fact 11. Adopted in substance in Findings of Fact 13. Adopted in substance in Findings of Fact 13. Subordinate to Findings of Fact 16. Adopted in substance in Findings of Fact 14. Adopted in substance in Findings of Fact 31. Subordinate to Findings of Fact 32. Adopted in substance in Findings of Fact 10. Subordinate to Findings of Fact 33. Adopted in substance in Findings of Fact 2. Subordinate to Findings of Fact 34. Respondent's proposed findings of fact Adopted in substance in Findings of Fact 1 and 3. The first sentence is adopted in substance in Findings of Fact 1. The second sentence is adopted in substance in Findings of Fact 4. The third sentence is adopted in substance in Findings of Fact 9. The remainder is rejected as unnecessary. Adopted in substance in Findings of Fact 6. Subordinate to Findings of Fact 11 and 15. Subordinate to Findings of Fact 17-23. Subordinate to Findings of Fact 24-30. Subordinate to Findings of Fact 14. Subordinate to Findings of Fact 2 and 31-34. Addressed in the Preliminary Statement. COPIES FURNISHED: Joseph D. Mandt, Esquire Division of Legal Services 612 Larson Building Tallahassee, Florida 32399-0333 Joseph R. Fritz, Esquire 4204 North Nebraska Avenue Tampa, Florida 33603 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil, Esquire General Counsel Department of Insurance The Capitol, PL-11 Tallahassee, Florida 32399-0300
The Issue The issues are whether Respondent, who is a limited surety agent, is guilty of violating Section 648.571(1), Florida Statutes, by failing to return the collateral within 21 days after the discharge of the bail bond; Section 648.45(2)(e), Florida Statutes, by demonstrating lack of fitness or trustworthiness to engage in the bail bond business; Section 648.45(2)(g), Florida Statutes, by engaging in fraudulent or dishonest practices in the conduct of business under the license; and Section 648.45(2)(j), Florida Statutes, by willfully failing to comply with, or willfully violating any proper order or rule of the department or willfully violating any provision of Chapter 648, Florida Statutes, or the Insurance Code. If guilty of any of these violations, an additional issue is the penalty that should be imposed.
Findings Of Fact At all material times, Respondent has been a licensed surety agent, holding license number A134458. Respondent is the president and owner of Big Larry Bail Bonds in Fort Lauderdale. Mark Blackman, who is 45 years old, is a licensed mortgage broker and sophisticated in business matters. He has been convicted four times of driving under the influence over the past 20 years. The arrest that resulted in the fourth conviction took place on December 7, 2003. Mr. Blackman's girlfriend at the time of his arrest, Tracy, suggested that he purchase a bail bond from Respondent. Tracy, who was addicted to crack cocaine, had previously purchased a bail bond from Respondent when she had been arrested for the possession of cocaine. Mr. Blackman instructed Tracy to visit Respondent's office and arrange for Respondent to post bond, which was $23,500. Respondent agreed to post bond, but only if Mr. Blackman paid the bond premium of $2350 and delivered, as security, a note for the entire bail bond, an indemnity agreement, title to his 2002 C32 Mercedes Benz, and the vehicle itself. With Tracy's help, Mr. Blackman complied with these conditions, and Respondent bailed him out of jail. At this point, the agreement between Respondent and Mr. Blackman, with respect to the car, was that Respondent would store the car in a safe place. Accordingly, immediately upon receiving the car, Respondent drove it to a body shop where it could be stored safely and without charge. Three or four days later, while out on bail, Mr. Blackman was arrested for felony possession of cocaine. The judge revoked the original bond and refused to set bond for the new offense. At this time, the vehicle no longer served as security because the bail bond that it had secured no longer existed. Thus, at this time, Mr. Blackman was entitled to the return of the vehicle. Neither Mr. Blackman nor Respondent was under any misimpression as to Mr. Blackman's status at the time of the second arrest. Both men knew that Mr. Blackman would not be able to be released from jail on bail for these alleged offenses. Mr. Blackman would remain in jail until February 2004, after which time, following a plea deal, Mr. Blackman began serving nights in jail. The day after his re-arrest, Mr. Blackman called Respondent from jail and asked him if he would help Mr. Blackman sell the vehicle. Mr. Blackman explained that he knew that he was going to lose his driver's license. He asked Respondent if he knew anyone who worked at an automobile auction. Eventually, Mr. Blackman asked Respondent if he wanted to purchase the car, but Respondent declined, at least initially. Within a day or two after speaking to Mr. Blackman the day after his re-arrest, Respondent removed the car from the body shop, so he could show it to a prospective buyer. Respondent did not return the car to the body shop, but instead kept the car at his office or home. The record does not establish that Respondent had driven the car for any reason prior to showing it two or three days after Respondent's second arrest. For several reasons, Mr. Blackman was content with Respondent's possession of the car after it no longer served as collateral for a bail bond. Although released from jail during days starting in February 2004, Mr. Blackman remained concerned about the car during the evenings, while he was in jail. As he explained to Respondent at the time, Mr. Blackman did not want his brother to have access to the car. As Mr. Blackman testified at the hearing, he was also concerned that a friend of Tracy not have access to the car. Mr. Blackman's concerns may have extended to Tracy, who he later determined stole $20,000 from Mr. Blackman while he was in jail. Unable to drive the car due to his loss of driving privileges, Mr. Blackman did not want the car parked in his crime-ridden neighborhood. Additionally, Mr. Blackman's auto insurance expired in January 2004. For these reasons, Mr. Blackman was in no hurry after his re-arrest for Respondent to give up possession of Mr. Blackman's car. The car was safer with Respondent than it would have been returned to Mr. Blackman. Mr. Blackman knew that he would not be charged storage and was hopeful that Respondent would sell the car for Mr. Blackman. At no time, though, did Respondent try to document the change from his holding the car as collateral for a bail bond to holding it for the convenience of Mr. Blackman. Specifically, Respondent never tried to obtain Mr. Blackman's signature on a collateral release, which would document that the car no longer secured a now-nonexistent bail bond. Respondent claimed that he could not obtain Mr. Blackman's signature while he was in jail, but it is customary for limited surety agents to visit inmates in jail to obtain their signatures on paperwork, such as a collateral release. Also, in February 2004, Respondent could have obtained Mr. Blackman's signature at anytime during the day. After showing the car the first time, two or three days after Mr. Blackman's second arrest, Respondent began to use the vehicle for his personal and business purposes, as well as occasionally showing it to a prospective buyer. After January 2004, Mr. Blackman's car was no longer insured. It is unclear whether the registration and license tag expired during this period. Before Mr. Blackman was released on days, Respondent produced offers of $28,000 and $29,000 from two different persons, but Mr. Blackman wanted $38,000 for the car and refused these offers. After being released on days, Mr. Blackman did not visit Respondent or ask for him to return the car. Mr. Blackman was likely preoccupied with other matters immediately after his release from jail in February. Failing to report to jail one night shortly after his release, Mr. Blackman violated one of the conditions of his sentence, took off, and was re-arrested and returned to jail in March or April 2004. Only after he was again incarcerated did Mr. Blackman re-address the issue of the car with Respondent. The first thing he did was tell Respondent to deduct $1200 from the price of the car for a bond forfeiture on a bond that Respondent had written on Tracy. The next thing, on April 13, 2004, Mr. Blackman entered into a written agreement with Respondent for the sale of the vehicle, on the same date, to Respondent for $35,000 cash. However, Respondent backed out of the deal. About six weeks later, in late May 2004, Mr. Blackman sent his sister to pick up the car. She had a power of attorney, but it did not apply to the car, so Respondent would not release the car to her. This was a reasonable action on Respondent's part, given his knowledge of Mr. Blackman's distrust of at least one other family member. A couple of weeks later, in early June, Mr. Blackman's sister returned with a proper power of attorney, and Respondent released the car to her. After taking the car from Respondent, Mr. Blackman's sister and her husband noticed that the car had considerably higher mileage than Mr. Blackman had said that it should have. Respondent had driven the vehicle 7,000 to 10,000 miles during the six months that he had possessed the car, but entirely after the second arrest in December. Respondent was cavalier about his use of the car, as he incurred numerous parking tickets, as well as tolls on Mr. Blackman's SunPass transponder that was in the car when it was delivered to Respondent--all of which charges were imposed on Mr. Blackman. After repeated demands, Respondent paid off only some of these charges. The additional mileage that Respondent put on the vehicle reduced the vehicle's fair market value by as much as $3000. On August 1, 2004, Mr. Blackman's sister, using her power of attorney and with her brother's approval, sold the car for $33,000 to a person other than Respondent.
Recommendation It is RECOMMENDED that the Department of Financial Services enter a final order dismissing Counts I and III, finding Respondent guilty of violation Section 648.45(2)(e), Florida Statutes, in Count II, and imposing a six-month suspension and a $5000 administrative fine. DONE AND ENTERED this 19th day of October, 2006, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 19th day of October, 2006. COPIES FURNISHED: Greg S. Marr, Esquire Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Michael A. Levin, Esquire Law Offices of Michael A. Levin Global Commerce Center 1900 North Commerce Parkway Weston, Florida 33326 Larry Lorenzo Jones 1310 Sistrunk Boulevard Fort Lauderdale, Florida 33331 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capital, Plaza Level 11 Tallahassee, Florida 32399-0300 Carlos G. Muñiz, General Counsel Department of Financial Services The Capitol Plaza Level 11 Tallahassee, Florida 32399-0307
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.
