The Issue Whether the licenses as a limited surety (bail bond) agent and as a legal expense agent held by Latesia Lashonda Chavis should be revoked.
Findings Of Fact Chavis has been licensed in Florida as a limited surety (bail bond) agent, pursuant to Chapter 648, Florida Statutes and as a legal expense agent, pursuant to Chapter 642, Florida Statutes, since 1994, and has performed related work since 1991. In an application dated April 27, 2006, Chavis sought to receive an additional license as a resident managing general insurance (bail bond) agent. On that Application, Chavis answered "NO" to the following questions: Have you ever had any insurance agency contract terminated by an insurance company or managing general agent for any alleged cause? Are you currently indebted to any insurer, managing general agent, agent, or premium finance company? The Department alleged in Count I of the Administrative Complaint that Chavis’ answers to those two questions were false. In Count II, the Department alleged that Chavis owed money for checks that had been returned for insufficient funds for premiums and a build up fund ("BUF") account due, based on a contractual relationship with the Al Estes General Agency, Inc. (the "Estes Agency"), Chavis' managing general agent. Count III alleged that Chavis misappropriated, converted and withheld funds owed to the Estes Agency. Count I Chavis testified that, on April 27, 2007, when she filed the pending application, she was not aware that her contract with the Estes Agency had been terminated, having not been informed until she was contacted by the Department's investigator, Terry Flynn, sometime in August 2006. Chavis also testified that she had been in touch with Al Estes, in January, February, and March about her family problems that were taking her away from devoting herself to the bail bond business and offered to take out a loan to pay him what she owed him. She testified that she was trying to help run a family business, a group home, that her aunt died of cancer in April, and that her mother is still battling cancer. Estes confirmed in his testimony that he recalled her telling him that her husband had used her checkbook to take money out of her account and that her mother was sick. It is undisputed that a letter from the Estes Agency, dated February 9, 2006, was sent to Chavis at her address-of- record with the Estes Agency on that date, in Cocoa, Florida. The letter was "A Termination Notice and Demand for Payment and Accounting." Chavis testified that she did not receive the letter. The Estes Agency also sent, on February 9, 2007, a "Termination Request" for Chavis to be terminated as an agent to their insurer, Safety National Casualty Corporation in Iowa. In addition, the Estes Agency notified the Department of the termination of Chavis as their agent by letter dated February 17, 2006, sent to the Department's Orlando office. In that letter, the Estes Agency listed the following reasons for its actions: Un-report [sic] executed powers, owes premium N.S.F. checks for Premium and BUF accounts Unpaid Premium an (sic) BUF Unpaid Forfeitures and judgments Business phone has been turned off. No response to correspondence sent Will not return phone calls On or about March 27, 2006, the Estes Agency sent as its representative, Norman Britten who was apparently accompanied by other people, to Chavis' Cocoa address to seize the files. When Britten arrived, a neighbor told him that Chavis had moved. The neighbor telephoned Chavis, and asked her if he should tell Britten where she had moved. Britten then also talked to Chavis by telephone and she gave him her address in Fort Pierce, and agreed to meet him at her new address to give him the files on pending cases and accounts. Chavis agreed that these activities took place in late March or early April, just before her aunt's death. The files were taken so that the Estes Agency could meet the requirements and minimize the risks of having unpaid forfeitures become judgments within sixty days that, if not paid within thirty-five days, would result in the State's prohibiting an agency from posting additional bonds. The files were also taken to keep an accounting of remissions, and refunds of forfeited bonds after criminal defendants have been caught. Given the conversations concerning moneys owed, notices, seizure of files, and investigations, all activities that took place in January, February and March 2006, it is reasonable to conclude that Flynn testified truthfully that he informed Chavis of her termination while he was conducting the Department's investigation of her in March 2006. Chavis's testimony to the contrary, that she did not know prior to filing the application in April 2006, that she was answering the two questions cited in the Complaint falsely is rejected as untrue. Nor is Chavis relieved of her personal responsibility to be truthful, because she testified that some other unnamed company with whom she planned to become affiliated told her to give the false answers to those questions, because her BUF account should take care of any money that she owed. There is no showing that the other company knew of the returned checks and unpaid premiums and no reasonable expectation that these debts that were not incurred in the regular course of business would be covered by a BUF account. Additional evidence of her actual knowledge of the termination of her contract with the Estes Agency is the fact that Chavis was negotiating with and seeking licensure with another company, while she admittedly was still dealing with her family's problems that were causing her to neglect her bail bond business. The Department proved the allegations in Count I of its Administrative Complaint that Chavis made material misstatements in response to two questions on an application dated April 27, 2006. Counts II and III Contrary to her explanation that she filed the pending application thinking the BUF account would cover any funds owed to the Estes Agency, Chavis testified that, in conversations with Estes in February and March, she offered to take out a loan to pay the money owed to the Estes Agency, and that he mentioned that she owed approximately $12,000. She said she offered to take out a loan because she did not have the money, but that she did not think that either of them had taken into account the BUF account at that time. Chavis agreed that once the BUF account was depleted, if she still owed money to the Estes Agency, she has not paid it. She also testified that she has not paid anything to cover the checks she issued with insufficient funds and does not deny that she owes that money to the Estes Agency. The senior agent for the Estes Agency testified that, after taking into consideration insufficient funds checks, unpaid and unremitted premiums, the BUF account, and remissions total liabilities incurred by or on behalf of Chavis are $18,851.00. The Department proved the allegations of Counts II and III that Chavis owes money to the Estes Agency, that was misappropriated, converted, or willfully and improperly withheld.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that all licenses held by the Respondent under the Code are revoked and that her pending application be denied. DONE AND ENTERED this 6th day of November, 2007, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 6th day of November 2007.
Findings Of Fact On or about August 18, 1977, Respondent, Charles Leon Winkleman (Winkleman), filed an application with Petitioner, Office of the Comptroller, Department of Banking and Finance (Department) for registration as an associated person with Tax Favored Securities, Inc., now known as Global Investors Securities, Inc. Winkleman's application was granted November 1, 1977. On April 11, 1984, Winkleman pled guilty to an information filed in the United States District Court, Southern District of Florida (District Court) , Case No. 84-6043-Cr-JLK, which charged that he: did wilfully and knowingly aid assist in, and counsel, procure, and advise the preparation and presentation to the Internal Revenue Service of a United States Individual Income Tax Return (Form 1040) of William I. and Amy Steele Donner for the calendar year 1978 which was false and fraudulent as to a material matter, in that it represented that said William I. Donner was entitled under the provisions of the Internal Revenue laws to claim deductions in the sum of $83,313.00 representing an ordinary loss of income, as a result of being owner of a sole proprietorship managed by Charles L. Winkleman, whereas, as . Winkleman . . . then and there well knew and believed William I. Donner was not entitled to said deductions all in violation of Title 26 United States Code, Section 7206(2). 1/ On April 18, 1984, Winkleman filed an amended Form U-4 with the Central Registration Depository, and thereby advised interested parties that he had pled guilty to the information filed in the District Court. A copy of the amended Form U-4 was, contemporaneously, filed with the Department. 2/ On June 6, 1984, the District Court entered a judgment of guilt on Winkleman's plea. Winkleman was sentenced to six months imprisonment and fined $3,000.00. Winkleman failed, however, to notify the Department of such conviction until April 10, 1987, and offered no explanation at hearing for such failure. Following Winkleman's plea of guilty in the District Court, the Department of Commerce and Economic Development, Division of Banking, Securities and Corporations (Department of Commerce) in Juneau, Alaska, issued a notice of intent to revoke Winkleman's registration. This notice, dated June 4, 1984, sought revocation based primarily on Winkleman's plea of guilty to the charges filed in the District Court. Winkleman failed to notify the Department of the pendency of the Alaska proceeding until April 10, 1987, and offered no explanation at hearing for such failure. On March 10, 1987, the Department of Commerce entered an order revoking Winkleman's registration in Alaska based on his conviction in the District Court. By amended Form U-4, filed April 10, 1987, Winkleman advised the Department of his conviction in the District Court and the revocation of his registration by the State of Alaska. 3/ The order of the Department of Commerce, revoking Winkleman's registration, is currently on appeal. Winkleman seeks reversal of such order predicated on his assertion that the Department of Commerce breached an agreement to allow him to withdraw his registration in lieu of revocation. On July 20, 1987, the court, which is reviewing the Department of Commerce proceedings, entered an order staying the order of revocation pending the disposition of Winkleman's appeal. On April 1, 1987, a hearing was held before the National Association of Securities Dealers, Inc. (NASD), to consider whether Winkleman, because of his conviction, should be disqualified as a registered representative with Global Investors Securities, Inc. On August 13, 1986, NASD entered a "Notice Pursuant to Rule 19h-1 of the Securities and Exchange Act of 1934" whereby it proposed that Winkleman not be disqualified. On January 8, 1987, the Securities and Exchange Commission (SEC) rendered its decision that it would not invoke Section 15A(g)(2) of the Securities and Exchange Act of 1934 to direct NASD to disqualify Winkleman.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the registration of Respondent, Charles Leon Winkleman, as an associated person under the Florida Securities and Investor Protection Act be REVOKED. DONE AND ENTERED this 6th day of October, 1987, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1987.
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 hereto, Respondent has been licensed in the State of Florida as a limited surety agent (bail bondsman), a life and health agent and a general lines agent. Respondent has been licensed as an insurance agent for more than eleven years. He has been a licensed limited surety agent for more than ten years. Pursuant to Section 648.442(3), Florida Statutes, all collateral received by Respondent or others acting under his supervision or control in transactions under his surety agent license constituted trust funds received in a fiduciary capacity. At all times pertinent to this proceeding, Respondent has been doing business as Protective Insurance Center, Jenkins Bail Bonds. Until early February of 1991, Respondent's general agent was Banker's Insurance Company. However, in early February, Respondent's relationship with that company was terminated. Respondent's current general agent is American Bankers Insurance Company of Florida. Russell Faibish, Respondent's general agent with American Bankers since February of 1991, has expressed via affidavit that Respondent is in good standing with that company and the company has been satisfied with his performance to date. On January 25, 1991, Respondent, while acting in his capacity as a limited surety agent for Banker's Insurance Company, posted a surety bond, No. 339658, (the "Bond") in the amount of $752.00 to obtain the release of Kim Reinhold Whitford from custody in Clay County, Florida. In connection with the posting of the Bond, Respondent received from Earnest R. Justice (the "Indemnitor") a $75.00 premium payment and a $350.00 cash collateral payment. At the time the Indemnitor arranged with Respondent for the issuance of the bond, the Indemnitor was advised that his collateral would be returned within twenty one days of the receipt of written notice of the discharge of the bond. Respondent was provided with a notice from the Clerk of Court that Ms. Whitford was scheduled for a court appearance on April 3, 1991 for a "plea." Respondent never made any inquiry as to the results of that April 3, 1991 hearing. On April 3, 1991, the Bond was discharged and the obligation of the surety, Banker's Insurance Company, was released in writing by the County Court of Clay County, Florida. Respondent contends that he never received notification of the discharge of the Bond. While the Court document indicates that a notice of the discharge of the Bond was sent to Respondent at the time the requirements for the discharge were satisfied on or about April 3, 1991, no conclusive evidence was presented to establish that the notice of discharge was actually sent to or received by Respondent. Respondent denies ever receiving that document. After Ms. Whitford was released from jail, the Indemnitor contacted Respondent's office several times in April and May of 1991 trying to arrange the return of his collateral. Respondent denies receiving any messages from the Indemnitor. The failure to receive the messages may have been due to office staff turnover. In any event, the evidence was sufficient to establish that the Indemnitor attempted to arrange for the return of his collateral on numerous occasions without success. On August 9, 1991, the Petitioner filed the Administrative Complaint which is the basis for this proceeding against Respondent alleging that he failed to return the Indemnitor's collateral. Upon receipt of the Administrative Complaint, Respondent contacted the Clerk of Court, in Clay County, Florida to determine the status of the bond. On August 30, 1991, the Clerk of Court, Clay County, Florida, sent Respondent a certified copy of the bond discharge. Respondent claims that he first became aware of the discharge of the Bond and the Indemnitor's right to the return of the collateral when he received the August 30 certification from Clay County. Because an Administrative Complaint had already been filed, Respondent did not immediately refund the collateral for fear that such action could be construed as an attempt to influence a witness in the case. In order to avoid the appearance of attempting to influence a witness, Respondent waited until the day of the hearing to arrange to make a refund of the collateral available to the Indemnitor. On January 14, 1992, Respondent sent a Western Union Money Transfer, control no. 7395574746, payable to the Indemnitor in the amount of $350.00 as return of the collateral. Although the Indemnitor did not receive the return of his collateral until approximately eight to nine months after it was due, the collateral was ultimately returned and there is no other evidence in this case of any other financial loss to any member of the public. On average, Respondent has between 100 to 150 active bond cases per month. Most of those bonds are written in Palm Beach County, where Respondent's business is located. In this case, Respondent arranged for a "teletype bond" whereby the arrangements for the bond were made in Palm Beach County and notification of the posting of the bond and authorization for the release of the prisoner were transmitted via teletype to Clay County. Respondent contends that he reviews his active cases on a quarterly basis to confirm the status of the bonds. Nevertheless, it took almost six months for Respondent to determine that the requirements of the Bond in this case had been fully satisfied. No justifiable excuse was given for this delay. However, in mitigation, it does appear that the long distance nature of the transaction, the change in Respondent's general agent and office staff turnover all contributed to the delay in refunding the Indemnitor's collateral. Respondent has had three Administrative Complaints filed against him since 1985. The first Administrative Complaint was filed on June 26, 1985 and alleged that Respondent failed to provide required documentation of his assets to the Department. Pursuant to a Consent Order entered on August 6, 1985, Respondent was fined $200 and placed on probation for one year as a result of this charge. The most serious and pertinent prior administrative proceeding against Respondent was commenced by an Administrative Complaint dated November 17, 1987. That complaint alleged, among other things, that Respondent failed to return collateral to at least two clients. In April of 1989, the parties entered into a settlement stipulation regarding these charges pursuant to which Respondent was suspended for one year and fined $1,000.00. He was also required to make resitution to several individuals who had not been identified in the Administrative Complaint in that case. No explanation has been provided regarding the "restitution" required to be made to those individuals. The third case involved an Emergency Suspension Order entered on March 16, 1988. That Order was dissolved on September 20, 1988 when the underlying criminal charges were nolle prosequi. Respondent has had several IRS liens filed against him and there is currently a foreclosure action pending against his house. However, no specific information was provided regarding the status of those cases. Respondent contends that he is vigorously contesting all of those matters and he believes they will be favorably resolved. The evidence in this case suggests that Respondent is currently involved in disputes with some other customers regarding the return of collateral. The evidence did not establish the exact number or the facts surrounding those disputes. Respondent contends that all of those disputes are related to problems with or caused by his prior General Agent. No conclusions as to the merits of those complaints can be drawn from the evidence presented in this case. Gerald Michael Sandy, a licensed bondsman in the State of Florida and the current president of the Florida Surety Agents Association, testified on behalf of the Respondent in this matter. He indicated that on approximately 40% of the bonds that are executed, the Courts do not provide written notice of the discharge. However, Mr. Sandy conceded that even if written notification from a court is not received, the bail bondsman is primarily responsible for determining whether a bond has been discharged and a bail bondsman must immediately respond to the inquiries of an indemnitor regarding the return of collateral.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered suspending Respondent's licenses for three months, placing him on probation for two years and assessing an administrative fine in the amount of $500. RECOMMENDED this 9th day of March, 1992, 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 9th day of March, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-6302 Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. 1. Adopted in substance in Findings of Fact 1. 2. Adopted in substance in Findings of Fact 1. 3. Adopted in substance in Findings of Fact 2. 4. Adopted in substance in Findings of Fact 3. Findings of Fact 5. 7. Adopted in substance in Findings of Fact 5. 8. Adopted in substance in Findings of Fact 7. Rejected as unnecessary. Adopted in substance in Subordinate to Findings of Fact 13 and 14 and addressed in the Preliminary Statement. Subordinate to Findings of Fact 6 and 10. Adopted in substance in Findings of Fact 8. Subordinate to Findings of Fact 18. Subordinate to Findings of Fact 19. Subordinate to Findings of Fact 20. The Respondents's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. 1. Adopted in substance in Findings of Fact 5. 2. Adopted in substance in Findings of Fact 5. 3. Adopted in substance in Findings of Fact 7. 4. Adopted in substance in Findings of Fact 10. 5. Adopted in substance in Findings of Fact 11. 6. Adopted in substance in Findings of Fact 11. 7. Adopted in substance in Findings of Fact 12. 8. Adopted in substance in Findings of Fact 14. 9. Addressed in the Preliminary Statement. 10a. Adopted in substance in Findings of Fact 10. 10b. Adopted in substance in Findings of Fact 9. 10c. Adopted in substance in Findings of Fact 10. 10d. Adopted in substance in Findings of Fact 10. 10e. Adopted in substance in Findings of Fact 13. 10f. Adopted in substance in Findings of Fact 13. 10e.[sic] Adopted in substance in Findings of Fact 17. 10f.[sic] Adopted in substance in Findings of Fact 16. 10g. Rejected as unnecesdsary. 11a. Adopted in substance in Findings of Fact 21. 11b. Adopted in substance in Findings of Fact 21. 11c. Adopted in substance in Findings of Fact 21. 12. Adopted in substance in Findings of Fact 4. COPIES FURNISHED: David D. Hershel, Esquire Department of Insurance and Treasury Larson Building, Room 412 Tallahassee, Florida 32399-0300 Franklin Prince, Esquire Northbridge Centre, Suite 300-P 515 N. Flagler Drive West Palm Beach, Florida 33401 Tom Gallagher State Treasurer and Insurance Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil Deputy General Counsel Department of Legal Affairs The Capitol, Plaza Level Tallahassee, Florida 32399-0300
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken, if any.
Findings Of Fact At all times material hereto, Respondent was licensed by the Department as a limited surety bail bond agent. He was employed by and authorized to write bail bond business for County Bonding Agency. When Respondent was hired by County Bonding Agency, the office procedures for receiving and accounting for all paperwork and money were explained to him by Deolinda E. Stolowilsky, the owner and operator, and Olympia Delgado, the office manager. Licensed employees were issued a certain number of bail bond powers of attorney on Monday of each week. Each agent was given a "pay sheet" listing the number of each power of attorney. When a power was used, the agent would write on the pay sheet next to that power the defendant's name, the amount of the bail bond, and the date the power was executed. On the following Monday each agent would turn in all files with executed bail bonds. All unused powers of attorney would be re-issued to the agent and any additional needed powers would be issued. The agent's compensation was computed based on the amount of bail bond business the agent had performed during the preceding reporting period. Each Monday when files with executed bail bonds were turned in to County Bonding Agency, all premiums received by the agent for those executed bonds were required to be turned in with the executed bonds. The office manager would make a notation on the outside of that defendant's file that the premium had been paid. Some of the agents working for County Bonding Agency routinely watched to make sure that the office manager made the proper notation on the file when they gave her money. County Bonding Agency did not give its agents receipts for the money received from them. Although County Bonding Agency had an informal policy that an agent receiving a large amount of money should turn that money in on the same day or the following day, there was no specificity for what would constitute a large amount of money. Further, there was no particular consequence for failure to accommodate the owner's preference that such be done. Much of County Bonding Agency's business was written in its office rather than at the jail. In other words, much of the money received by County Bonding Agency came from indemnitors coming to the office and paying the premium there. When that occurred, the agent sent to the jail to execute the bond received no premium money since the money had already been paid at the office. On June 20, 1998, Respondent went to County Bonding Agency. He turned in files and premiums and was issued powers to be used for future bonds. On June 23, Respondent went to County Bonding Agency and was issued new powers. Thereafter, office manager Delgado began telephoning Respondent and writing to him stating that he had failed to turn in the premium money for five defendants. She also filed a police report and contacted the Department alleging that Respondent had failed to turn in money that he had collected. On July 20, 1998, a courier delivered to County Bonding Agency from Respondent folders for six defendants. The folders did not contain any money. On July 22, Respondent went to County Bonding Agency to turn in his beeper, receipt book, and unused powers. The bond money for four defendants is at issue in this proceeding. Their folders were among the six delivered by courier to County Bonding Agency. At the final hearing, Delgado admitted that one of the six defendants was an office bond, and she could not remember one of the defendants. The four at issue are Alain Yara, Seon T. Carter, Demetrius Robertson, and Stanley Bailey. The Department's exhibits admitted in evidence at the final hearing include the paperwork for those four defendants. The paperwork for Yara includes a receipt for $300 and a collateral receipt. Both are signed by Respondent and dated June 21, 1998, two days before Respondent went to County Bonding Agency and was issued new powers. The paperwork for Carter contains a premium receipt for $550 (10 percent of the $5,500 bond) dated June 21, 1998, and signed by Respondent and a collateral receipt signed by "Curly" for what appears to be the same $5,500. The paperwork for both Robertson and Bailey contain premium receipts and collateral receipts dated June 24, 1998. All four receipts are signed "Curly." "Curly" is the nickname of Irwin Stolowilsky. At the final hearing, Delgado admitted signing Curly's name to receipts for bonds when the premium money was received by the office and the agent went to the jail only to obtain the remaining paperwork and write the bond. Delgado is not licensed by the Department and, therefore, she is not authorized to receive premiums for bail. Accordingly, when guarantors came to County Bonding Agency's office to pay premium money, she signed Curly's name, representing that a licensed person rather than an unlicensed person had in fact received the money.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent not guilty and dismissing the Administrative Complaint filed against him in this cause. DONE AND ENTERED this 11th day of October, 2000, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 2000. COPIES FURNISHED: Dickson E. Kesler, Esquire Department of Insurance Division of Legal Services 401 Northwest Second Avenue Suite N-321 Miami, Florida 33128 Miguel J. Alvarez 8501 Northwest 8th Street Apartment 311 Miami, Florida 33126 Honorable Bill Nelson State Treasurer and Insurance Commissioner Department of Insurance The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Daniel Y. Sumner, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307
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 Prior to the bankruptcy of Recreation Corporation of America (RCA), Drexel Properties (Drexel), predecessor in interest to Petitioner Sheridan Ventures, Inc., engaged in negotiations with RCA and Fidelco Growth Investors (Fidelco) for the purchase of some eighty-three acres of land owned by RCA that was located in Hollywood and Dania, Florida. Fidelco held a mortgage on the property in the amount of $2,400,000.00. On January 20, 1976, a bankruptcy judge in the United States District Court for the Southern District of Florida issued an amended order in Case No. 75-16-BK-JE-H, authorizing the trustee in bankruptcy of the estate of RCA, bankrupt, to accept the offer of Drexel to purchase the trustee's equity in the real property of the bankrupt for the sum of $15,000.00, subject to the first lien of Fidelco, taxes, interest, certain costs, and two subordinate liens in the amounts of $5,939.92 and $2,691.50. On January 28, 1976, the trustee executed a Bankruptcy Trustee's Deed conveying the property in question to Petitioner, subject to the Fidelco lien and taxes. Petitioner recorded the aforesaid deed in Broward County on February 27, 1976, and state documentary tax stamps in the amount of $45.00 were paid. (Testimony of Mehallis, Exhibits 1-2, Exhibit D to Petition) Respondent issued a proposed notice of assessment of documentary stamp tax, penalty, and interest in the total amount of $14,807.52 on September 7, 1976, based on a taxable consideration of $2,415,000.00. This sum represented the $15,000.00 cash paid by Petitioner and the $2,400,000.00 existing mortgage on the property. In this assessment, Petitioner was credited with the $45.00 previously paid for documentary tax stamps. An informal conference was held on September 21, 1976, after which a revised assessment in an increased amount was withdrawn when both parties agreed that the subordinate liens had been satisfied out of the $15,000.00 cash given for the deed. Subsequently, Respondent issued Revised Assessment No. 2, dated September 22, 1976, reflecting a sum due of $7,653.30 payable for documentary stamp tax, a like sum as a penalty, and interest for six months and five days in the amount of $471.83, for a total of $15,778.43. It was stipulated by the parties at the hearing that this amount is correctly computed and is the proper amount payable if the Petitioner is deemed liable therefor. (Exhibits A, C, E to Petition, Exhibit 3) At the time Petitioner purchased the trustee's interest in the property, it had no intention of paying Fidelco's full lien because the amount of that mortgage exceeded the fair market value of the land. It intended to use the trustee's deed as a negotiating tool to get a better arrangement with Fidelco. Consequently, it made no payments on the mortgage and, on April 7, 1976, Fidelco filed foreclosure proceedings in the Broward County Circuit Court. Petitioner interposed set-off and a counter claim in an amount exceeding $500,000.00 based on funds it had previously advanced to RCA under a prior contract. (Testimony of Mehallis) A real estate appraisal of the property established its fair market value to be $1,120,000.00 as of January, 1976. (Testimony of Lukacs)
Recommendation That Petitioner be held liable for the proposed assessment of documentary stamp tax, penalty, and interest under Chapter 201, Florida Statutes, in the amount of $15,778.43. DONE and ENTERED this 28th day of April 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Edwin J. Stacker, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32304 Brian C. Deuschle, Esquire Spear, Deuschle and Curran, P.A. 5554 North Federal Highway Ft. Lauderdale, Florida 33308
The Issue Whether Petitioner's application for licensure as a temporary limited surety/bail bond agent pursuant to Sections and 648.355, Florida Statutes, should be granted.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying; documentary materials received into evidence; stipulations by the parties; evidentiary ruling made pursuant to Section 120.57, Florida Statutes; and the record evidence submitted, the following relevant and material facts are determined: Pursuant to Chapter 648, Florida Statutes, Respondent has jurisdiction over bail bond licensure, appointments, and related activities. Petitioner appeared before the undersigned in this proceeding, identified himself and admitted that he is the individual prosecuted in the Thirteenth Judicial Circuit, in and for, Hillsborough County, Florida, Case No. 88-CF-15373, State of Florida v. Bennie Small, Jr., on a Direct Information of two counts of grand theft, and that Respondent has jurisdiction over him and the subject matter involved in its denial letter. The record evidence demonstrated that on or about January 21, 1987, Petitioner entered into a real estate contract with Deltricia Wiggins, a prospective homebuyer. Ms. Wiggins, believing Petitioner to be the realtor representing the seller, gave Petitioner $500.00 to assist her in the purchase of the home. Thereafter, she became aware that the subject home had been sold and demanded that Petitioner return her $500.00. Petitioner failed or refused to return her $500.00. Ms. Wiggins contacted the Hillsborough County State Attorney's Office and made a report. At no time during the above transaction was Petitioner a licensed real estate sales person or licensed real estate broker. The record evidence demonstrated that Petitioner entered into a real estate contract with Janet Richardson, a prospective homebuyer. Ms. Richardson, believing Petitioner to be the realtor representing the seller, gave Petitioner $500.00 to assist her in the purchase of a family home. Thereafter, she became aware that the subject home had been sold and demanded that Petitioner return her $500.00. Petitioner failed or refused to return her $500.00. At no time during the above transaction was Petitioner a licensed real estate sales person or licensed real estate broker. On October 26, 1988, the State Attorney's Office filed a Direct Information charging Petitioner with two counts of grand theft. The two counts of grand theft stemmed from Petitioner's above two unlicensed real estate transactions. At some unknown time on or before January 5, 1989, Petitioner returned the money to both Misses Wiggins and Richardson. The fact that he subsequently returned money to his two victims did not negate his taking their money under illegal and false pretense. Record evidence demonstrated that on January 17, 1989, Petitioner was represented by the Office of the Public Defender of the Thirteenth Judicial Circuit, in and for, Hillsborough County, Florida, in Case No. 88-CF-15373, and a plea of no contest to the charge of grand theft was entered on his behalf. Circuit Judge Harry Lee Coe accepted the plea of no contest on behalf of Petitioner, withheld adjudication of guilt, imposed no probation, and ordered that Petitioner not practice law nor practice real estate without appropriate licensure. Petitioner produced no record evidence that the no contest plea entered on his behalf by the public defender and that the judgment and sentence of the Court imposed by Circuit Judge Harry Lee Coe, of the Hillsborough County Circuit Court on January 17, 1989, in Case No. 88-CF-15373, has been overturned, reversed or set aside by a court of competent jurisdiction. Petitioner, through his evidence and post-hearing submittals, presented the following arguments in support of his position that "he did not enter a plea of no contest to the grand theft charge." First, Petitioner argued that while in court, "he" personally did not enter a no contest plea. Second, he argued that "his" personal approval that a no contest plea be entered on his behalf was neither requested nor given to the public defender that represented him. Third, he argued that he was not made a party at the bench conference between the presiding Judge, the prosecutor, and his public defender, when discussions regarding the terms and condition of resolving his case were ongoing and concluded. Fourth, he argued that copies of the court docket sheet, recording entries written by the court's clerk, who sat in court and made each docket sheet entry as pronounced by the court, were insufficient to establish that those recorded actions were actually taken by the court. Because of the foregone alleged irregularities, argued Petitioner, there is no "official court record" of his having entered a no contest plea to the grand theft charge. Petitioner put forth no evidence in support of his several arguments challenging Respondent's denial of his license application. Petitioner proffered no evidence of the official judicial disposition of the two counts of grand theft filed against him. Petitioner failed to produce a scintilla of evidence in support of his assertions that Respondent did not fully comply with the Florida Statutes when Respondent, by letter dated June 2, 2003, informed Petitioner that his application for licensure as a surety/bail bond agent was denied, and the denial was based on a January 17, 1989, plea of no contest to the charge of grand theft, a felony, in the Thirteenth Judicial Circuit, in and for, Hillsborough County, Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's, Bennie Small, Jr., application for licensure as a temporary limited surety/bail bond agent. DONE AND ENTERED this 4th day of June, 2004, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE 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 4th day of June, 2004.
The Issue Whether Respondent's license as a Limited Surety Agent should be suspended or revoked for alleged violations of Section 648.45, Florida Statutes, as set forth in the Administrative Complaint, dated August 14, 1978. Notice of Hearing was mailed to the Respondent at his last address of record with Petitioner on October 26, 1978, by the Division of Administrative Hearings. The record reflects that the Administrative Complaint issued by Petitioner had been received by the Respondent at that address by virtue of the fact that he had filed an answer to the complaint on September 8, 1978. Neither Respondent nor any representative appeared at the place of hearing at the designated time. Accordingly, the matter was tried as an uncontested proceeding.
Findings Of Fact Respondent Ronald John Anderson, North Miami Florida, is currently licensed as a limited surety agent with Petitioner and was so licensed to represent the Stuyvesant Insurance Company during the period October 1 to September 30, 1977. A limited surety agent licensed under Chapter 648, Florida Statutes, is a bail bondsman whose authority extends only to a power of attorney to execute or countersign bail bonds in connection with judicial proceedings. (Petitioner's Exhibit 1, Testimony of Stewart) On December 15, 1976, Respondent purportedly acting on behalf of the Stuyvesant Insurance Company, New York City, New York, posted a $1,000 immigration bond on behalf of Brutus Cadet, an alien of Haitian nationality, with the Immigration and Naturalization Service, United States Department of Justice, at Miami, Florida. The bond was conditioned for the delivery of an alien; however, the power of attorney executed by Respondent, power no. 582936, recited on its face that the said power of attorney authorized Respondent to execute a criminal bail bond on behalf of the said company. In like manner, on March 24, 1977, Respondent attached his power of attorney no. 603734, for Perelus Charles, a Haitian national, on a $2,500 immigration bond, which was posted with the United States Department of Justice Immigration and Naturalization Service in Miami, Florida. Both bonds were approved and accepted by the district director of the Immigration and Naturalization Service. (Petitioner's Exhibit 4, Supplemented by Petitioner's Exhibit 5) Respondent's contract with the Stuyvesant Insurance Company appointed Respondent as executing agent for the company in Florida for the soliciting and writing of bail bonds, and provided in paragraph 13 thereof that such excuting agent could excute and renew only this type of bond. In fact, separate power of attorney forms were issued by the Stuyvesant Insurance Company for criminal bail bonds and immigration bonds. (Petitioner's Exhibits 2, 6) The only persons authorized to write immigration bonds in Florida are general lines insurance agents licensed under Chapter 626, F.S. (Testimony of Stewart) Although Respondent did not appear at the hearing, he filed an answer in this cause wherein he admitted executing the bonds in question but stated that he was not aware that a bail bondsman could not execute immigration bonds and that it was a common practice by all Dade and Broward County bondsmen. The answer further recited that in order to preclude the surrender of the principals to the custody of the Immigration Service, Respondent obtained new bonds from another Dade County bondsman and paid the premiums himself. The facts alleged in Respondent's answer are considered admissions against interest properly cognizable in this proceeding. (Case Pleadings )
Recommendation That an administrative penalty of $100 be imposed against Respondent and that he be administered a public reprimand, pursuant to Section 648.52(1), Florida Statutes, for the aforesaid actions falling within the purview of Section 648.45 (1)(j), Florida Statutes. DONE and ENTERED this 13th day of December, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Thomas A. T. Taylor, Esquire Department of Insurance Room 428A - Larson Building Tallahassee, Florida 32304 Ronald John Anderson 2170 NE 122nd Road North Miami, Florida 33181
