The Issue The issue is whether Respondent has a policy regarding the approval of on-line continuing education courses for bail bond agents, which are rules as defined in Section 120.52(15), Florida Statutes, and which have not been promulgated as required by Section 120.54(1)(a), Florida Statutes.
Findings Of Fact Petitioner is a non-profit corporation that represents the interest of bail bond agents within the State of Florida. Petitioner is also a provider of continuing education courses for bail bond agents. Petitioner's courses are classes with supervising instructors, who ensure the quality of the course material and who verify the identity of students at least two times during each class. Petitioner's classes do not require an examination. Petitioner's primary purpose is to advocate and promote, on behalf of its members, the professionalism of bail bond agents by improving, maintaining, and advancing the standards for bail bond agents, including licensing and educational requirements. Among the requirements for licensure renewal, bail bond agents must complete a minimum of 14 hours of continuing education courses every two years. Therefore, Petitioner has standing to bring this proceeding. Respondent is a state agency with the duty and responsibility to regulate bail bond agents pursuant to Chapter 648, Florida Statutes, and related administrative rules. Respondent must approve all continuing education course providers and continuing education courses for bail bond agents. On May 10, 2005, Respondent approved Athena, as an on- line provider of continuing education courses for bail bond agents. On May 10, 2005, Respondent approved Athena's application for Melissa H. Villella to serve as the school official. On July 14 or 15, 2005, Respondent approved the following on-line courses provided by Athena: Bail Bond Rules and Regs Refresher Course, Part I; Bail Bond Rules and Regs Refresher Course, Part II; Bail Bond Ethics; The New Castle Doctrine Laws; and Concealed Carry Rights and Responsibilities. The five applications for these courses did not refer to a supervising instructor or a monitored examination. The On-Line Training Course Checklist for each course states as follows in relevant part: Provider: Athena Solutions, LLC d/b/a OnDemandCE * * * Information pertaining to subject: a. On-Line Access Instructions: Go to: http://ondemandce.coursehost.com/ * * * c. Sample Exams: All exam questions are provided in the text copy . . . of the course. Two banks of questions are provided for each of the four quarterly exams. A total of 50 questions are provided, 25 per bank. However, the OnDemandCE learning system ramdomizes all quizzes, including question order and answer order, so that no two quizzes are ever the same. An unlimited number of quizzes will be generated from the questions written in this course. * * * g. Student Identity, Assessment and Control: When students enter the OnDemandCE learning system, a login form must be filled out in order to enter any course. The system will require the agent to provide his or her bail license number, full name, address, email address, and phone number. In addition, each student must agree to the following Terms of Use to enter the course: "By accepting these terms of service, you acknowledge your understanding that you must complete this entire course and achieve a passing grade of 70% or greater in order to receive the defined credit hours. You also agree to read the entire contents of this course, including all corresponding laws and rules. No partial credit will be given for this course. Throughout this course, you will be tested for comprehension of course material through graded quizzes. By accepting these terms of service, you acknowledge your understanding that the on-line course testing must be completed unassisted by any person, the course material or other materials. You also acknowledge understanding that violation of the above said rule shall result in the loss of course credit and administrative sanction by the Florida Department of Financial Services. Upon completion of this course with a passing grade of 70% or better and confirmed payment of all applicable course fees, the system administrator will submit earned credit hours to the Department of Financial Services Agent Education Database within 30 days. You may verify your credit hours at: https://dice.fldfs.com/public/pb index.asp By accessing any information beyond this page, you agree to these Terms of Use in full." Once the student information is submitted and the terms of use are accepted, the OnDemandCE learning system issues the student a temporary license to take the course. The temporary licensee is tracked by the OnDemandCE learning system throughout the entire course. Students have unlimited access to the course during the temporary license term, but must login each time to re-establish student identity. The OnDemandCE learning system will not allow students to advance to the lesson assessment or to the next lesson until the student has completed the current lesson material. Finally, the OnDemandCE learning system will verify that the student has completed each lesson assessment and achieved a passing grade of 70% or greater before issuing a certificate of completion. The course administrator will review and evaluate each student's course progress and test results before his or her credit is submitted to the DFS Education System. Procedures for Marketing Course Student identity is assessed and controlled upon registration and throughout the duration of the course. See explanation under 2(g). To respond to questions regarding course requirements and materials, students will be provided access to the School Official on a ratio of 30:1. Through the OnDemandCE learning system, course enrollment will be limited to 30 students to ensure that the instructor/student ratio is not exceeded. Student progress is assessed through quarterly quizzes. Upon completion of each quiz, the OnDemandCE learning system will notify the student of their score. Students must score at least 70% in order to pass the course and receive a certificate of completion. On-line testing: See 2(g), and student acknowledgement: See 3(c). The syllabus for each of Athena's on-line courses includes the following statements in pertinent part: Student Responsibilities Students must complete this entire course and achieve a passing grade of 70% or greater on internal tests in order to receive credit hours. Students must read the entire contents of this course, including corresponding laws. Throughout this course, students will be tested for comprehension of course material through graded quizzes. Students are required to acknowledge their understanding that the on-line course testing must be completed unassisted by any person, the course material or other materials. Each student must also acknowledge understanding that a violation of such standards shall result in the loss of course credit and administrative sanction by the Florida Department of Financial Services. * * * On-line Assistance Course assistance is available to each student registered and active in this course. The course administrator may be contacted through email available from the On-Demand CE system and will receive assistance during regular business hours. Messages received after regular business hours will be returned the following day. Live customer service can be reached at (850) 906-9111. Neither the On-Line Training Course Checklist nor the syllabus for any of Athena's courses refers to a supervising instructor, a monitor, a monitor group, or a monitored examination. The On-line Training Course Checklist states that students have access to a school official for course assistance. The On-line Training Course Checklist refers to a system or course administrator who will evaluate tests and report the results to Respondent. The syllabus for each course states that students have on-line access to the course administrator for course assistance. On July 25, 2005, Ms. Villella sent Respondent a memorandum by e-mail. The purpose stated was to reassure Respondent that Athena's on-line system was "a fully monitored system." The letter explained that the "system monitors each student's progress through the course and through all exams." Additionally, the letter asserts that Ms. Villella monitors "the integrity of the OnDemandCE system to ensure that the application remains stable, secure, and operational." Finally, the letter states that "no other interactive on-line provider is required to send their students outside of their on-line system for testing, nor are bail agents required to take any quiz in a classroom course." On July 26, 2005, Ms. Villella sent Respondent a memorandum by e-mail. The memorandum refers to administrative rules that Ms. Villella asserts support her position that the on-line internal testing of an interactive on-line self-study course is equal to a monitored exam. Lisa Miller, Respondent's Chief of Staff, wrote a letter dated September 7, 2005, to Janet Collins, president of the Bail Agents Independent League of Florida. The letter stated that Florida Administrative Code Rule 69B-228.080 formed the legal basis for approving on-line continuing education courses for bail bond agents. Ms. Miller also indicated that Ms. Villella was Athena's school official and not its instructor. The September 7, 2005, letter does not contain any reference to a supervisory instructor or monitored exams. On January 9, 2006, Ms. Villella sent Respondent a memorandum by e-mail. The memorandum cites to administrative rules that, according to Ms. Villella, authorize the on-line internal testing of an interactive on-line self-study course as the equivalent of a monitored exam. In a letter to Petitioner's counsel dated January 10, 2006, Respondent's Chief of the Bureau of Licensing, Hazel Muhammad, responded to a request for public records regarding the name of an approved supervising instructor for Athena. The letter did not state that Athena was not required to have an approved supervising instructor. Instead, the January 10, 2006, letter stated that Respondent's records did not contain the name of an approved supervising instructor for Athena's on-line courses. At that time, Athena had withdrawn an initial application for a supervising instructor with the intent to file another such application. The January 10, 2006, letter from Ms. Muhammad stated that Respondent did "not have any public records for monitored examinations for bail bond continuing education courses." The letter did not state that such courses do not require a monitored exam. On January 25, 2006, Respondent approved the application of Warren Eugene Stewart as the supervising instructor for Athena's on-line continuing education courses. Ms. Villella is the owner and operator of Athena. She developed the course material that is contained in the on-line courses. Prior to forming Athena in 2005, Ms. Villella worked for Petitioner for over six years. During her employment with Petitioner, Ms. Villella assisted in the development of continuing education courses and coordinated the presentation of the courses throughout the State of Florida. Athena's on-line courses use the Learning Management System. The system is offered through a vendor known as Mind Flash. When students go on-line to study the course material or to take a quiz, Ms. Villella is able to observe the amount of time spent on each page of content material and/or each test. She is able to determine how the students answer the questions on the tests. Ms. Villella stays in contact with students through e-mail. She verifies that the students successfully complete the course and advises Respondent of their passing grades. There is no documentation showing that Respondent has approved Ms. Villella as a monitor or part of a monitor group for Athena's on-line examinations. Ms. Villella believes that she has Respondent's tacit approval as a monitor based on her communications with Respondent's staff regarding Athena's on- line internal testing process. A course provider of an interactive on-line course with on-line internal testing, to include Athena, cannot confirm the identity of the person taking an on-line examination. The provider must except the student's on-line acknowledgement that he or she is not being assisted by another person or using a textbook or other material to answer test questions. Athena's supervising instructor only becomes involved if a student has a content question that Ms. Villella cannot answer. The supervising instructor acts as a consultant with expertise in content areas. As of the date of the hearing, at least 51 bail bond agents had received credit for taking Athena's continuing education courses. On February 28, 2006, Petitioner took the deposition of Hazel Muhammad, Respondent's Bureau Chief of Licensing. Her deposition was accepted as deposition testimony in lieu of live testimony at the hearing. The deposition, as a whole, creates the impression that the witness was being interrogated to establish her understanding of the rules related to supervising instructors and monitored examinations for bail bond agent continuing education courses. The deposition by its terms did not elucidate preexisting agency policies on these topics, which were not already established by statute or adopted rule. When questioned about specific rules, Ms. Muhammad stated that that a supervising instructor could monitor an on- line continuing education course. According to Ms. Muhammad, the rules allow Respondent to determine whether an on-line course is monitored based on an applicant's outline that describes the on-line monitoring process, including the monitoring of the on-line tests. Ms. Muhammad would not agree that the rules necessarily distinguish between a monitored examination and an on-line examination depending on the physical presence or absence of a monitor. When questioned about Athena's application, Ms. Muhammad testified that Athena's on-line courses, as initially approved by Respondent, did not reflect supervising instructors. She also testified that the on-line checklists for Athena's courses did not refer to monitored or unmonitored examinations. Applying the rules as she interpreted them, Ms. Muhammed concluded that Athena's courses met the requirements for internal on-line testing and monitored examinations.
The Issue The issue is whether Respondent is guilty of unlawfully employing a felon in the conduct of the bail bond business, in violation of Sections 648.44(8)(b) and 648.45(3), Florida Statutes, and Rule 4-221.001, Florida Administrative Code. If so, an additional issue is what penalty should be imposed.
Findings Of Fact At all material times, Respondent has been a licensed limited surety agent, holding license number A025071. At all material times, Respondent has been the president and owner of Dolly Bolding Bail Bonds, Inc. (Dolly Bolding), which is located at 108 South Armenia Avenue in Tampa. In July 1999, Carver Taitt visited the office of Dolly Bolding to obtain a bail bond for his son, who had been arrested on drug charges. The judge had set bond at $20,000, so the bail bond premium was $2000. Mr. Taitt spoke with Respondent and said that he did not have the entire $2000; he had only $1000. Respondent declined to extend Mr. Taitt credit for the $1000 balance. Mr. Taitt then offered $1500, and Respondent agreed to allow Mr. Taitt to owe Dolly Bolding the remaining $500. At this time, Mr. Taitt saw Frank Cueto, Sr., also known as “Paunch,” in the office of Dolly Bolding. Mr. Taitt also told Mr. Cueto that Mr. Taitt would pay the remaining $500. Mr. Taitt had obtained bonds in the past five years from Dolly Bolding. During this time, he had often seen Respondent and Mr. Cueto in the office, and Mr. Taitt was acquainted with both of them from these past purchases of bonds. Mr. Cueto contacted Mr. Taitt several times and asked him to pay the remaining $500. At one point, Mr. Cueto threatened that Dolly Bolding would revoke the bond if Mr. Taitt did not immediately pay the remaining $500, especially because he was about to take a trip whose cost would approximate the outstanding balance. Mr. Taitt paid the $500 on the day prior to his son’s court appearance. When he complained to Mr. Cueto that he should have trusted Mr. Taitt based on their past relationship, Mr. Cueto replied that money is money. Mr. Taitt’s son missed his court appearance, and the judge ordered the forfeiture of the bond. The judge later entered an order reinstating bail, but this order did not reinstate the obligation previously undertaken under the bond by Dolly Bonding or its principal. Consequently, Mr. Taitt telephoned Dolly Bonding and requested a reissuance of the bond. Told that Respondent was unavailable, Mr. Taitt spoke with Mr. Cueto. Mr. Cueto told Mr. Taitt that no surety company would agree to reissue the bond. In the meantime, the assistant public defender obtained an order from the judge for the administrative release of Mr. Taitt’s son. By this means, the jail released Mr. Taitt’s son immediately without posting any bond. The facts contained in paragraphs 4-8 above are derived from Mr. Taitt’s testimony. This constitutes some, but not all, of Mr. Taitt’s testimony. The Administrative Law Judge has not credited much of the remainder of the testimony, including, most significantly, Mr. Taitt’s testimony that Mr. Cueto was always in the office of Dolly Bolding and that he seemed to run the bonding business. Mr. Taitt was angered by Mr. Cueto’s involvement in this transaction. Much of his uncredited testimony lacked the detail of his credited testimony. As for the credited testimony, Respondent, who was not always present in the office, was not able to rebut the more-detailed portion of Mr. Taitt’s description of Mr. Cueto’s handling of the transaction. Mr. Cueto did not testify, although he is engaged to be married to Respondent and lives with her. However, Respondent’s testimony is credited over Mr. Taitt’s vague, conclusory testimony as to the business relationship between Respondent and Mr. Cueto. Thus, consistent with Respondent’s testimony, the Administrative Law Judge finds that Mr. Cueto has not exercised any dominion over Dolly Bolding or Respondent. Respondent is an articulate, intelligent individual, who is a college graduate. She makes all bonding decisions for Dolly Bolding. Mr. Cueto is not an employee, officer, or shareholder of Dolly Bolding, and Respondent is not an employee, officer, or shareholder in any company owned by Mr. Cueto. He maintains an office in the same building as Dolly Bolding’s office, and he is present in the Dolly Bolding office on a frequent basis. At least in the case of the bond for Mr. Taitt’s son, Mr. Cueto has involved himself to some extent in Respondent’s bonding business. It is entirely possible that Mr. Cueto’s involvement in this bonding transaction is isolated, as he may have been inclined to involve himself to an unusual degree in a bonding matter due to the number of years that Mr. Cueto has known Mr. Taitt. It is even more likely that Mr. Cueto’s involvement in this bonding transaction was without the knowledge of Respondent. Mr. Cueto is a felon. He was convicted in 1994 of unlawful engaging in the bail bond business and misleading advertising. Mr. Cueto was formerly a licensed limited surety agent, but Petitioner suspended his license sometime ago. Respondent was at all times aware of these aspects of Mr. Cueto's background. In November 1991, Petitioner commenced an administrative proceeding against Respondent, as a licensed limited surety agent, for allowing an unlicensed person to participate in the bail bond business. By Settlement Stipulation for Consent Order and Consent Order, both signed in April 1992, Respondent agreed, and was ordered, to pay an administrative fine of $2000.
Recommendation It is RECOMMENDED that the Department of Insurance dismiss the Second Amended Administrative Complaint against Respondent. DONE AND ENTERED this 6th day of April, 2001, in Tallahassee, Leon County, Florida. ___________________________________ 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 6th day of April, 2001. COPIES FURNISHED: Honorable Tom Gallagher Commissioner of Insurance and Treasurer The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307 Anoush A. Arakalian Division of Legal Services Department of Insurance 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Joseph R. Fritz Joseph R. Fritz, P.A. 4204 North Nebraska Avenue Tampa, Florida 33602
The Issue The issue is whether Petitioner is entitled to a license as a limited surety/bail bond agent.
Findings Of Fact On July 22, 2002, Petitioner signed, under penalty of perjury, a statement declaring that his application for a license as a limited surety/bail bond agent was true. In the application, Petitioner answered "no" to the question: Have you ever been charged, convicted, found guilty, or pleaded guilty or nolo contendere (no contest) to a crime under the laws of any municipality, county, state, territory, or country, whether or not adjudication was withheld or a judgment of conviction was entered?" By Information dated February 28, 1971, the State of Florida charged Respondent with "unlawfully and feloniously break[ing] and enter[ing]" into a dwelling with the intent to commit a felony--namely, grand larceny. By Order entered October 15, 1971, the court acknowledged that Respondent had entered a plea of guilty to "breaking and entering with intent to commit a misd[demeanor]," withheld adjudication of guilt, and placed Petitioner on three years' probation. By Order entered August 15, 1974, the court terminated Petitioner's probation, noting that he had successfully completed it.
Recommendation It is RECOMMENDED that the Department of Financial Services enter a final order denying Petitioner's application for a license as a limited surety/bail bond agent. DONE AND ENTERED this 30th day of June, 2004, 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 30th day of June, 2004. COPIES FURNISHED: Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Santiago Lavan-dera Law Office of Pena and Lavan-dera 7950 Northwest 155th Street, Suite 201 Miami Lakes, Florida 33016 Eduardo Federico Godoy 969 East 29th Street Hialeah, Florida 33013 Ladasiah Jackson Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333
Findings Of Fact Petitioner, Barry Stephen Yanks (Yanks), has applied to respondent, Department of Insurance (Department), for examination as a bail bondsman (limited surety agent) pursuant to Chapter 648, Florida Statutes. By letter dated February 7, 1989, the Department denied Yanks' application. The gravamen of the Department's denial was its contention that on December 9, 1987, Yanks had accepted jewelry as collateral for a bail bond, and that such jewelry had not been timely returned to its owner. As a consequence, the Department concluded that Yanks had acted as a bail bondsman without being licensed as such, and that he lacked the fitness and trustworthiness to engage in the bail bond business. Yanks filed a timely petition for formal hearing to contest the Department's action. At hearing, the proof failed to demonstrate that Yanks had acted inappropriately as contended by the Department. Rather, the proof demonstrated that when Yanks accepted jewelry from Corrine Hough on December 9, 1987, as collateral for a bail bond to be written on her son, that he was acting on behalf of the attorney for American Bankers Insurance Company (American), the proposed surety. Under the arrangements made with Ms. Hough, the collateral was to be held by the attorney for American because she did not have confidence in the bondsman who was to write the bond, one Nestor Tabares, to safeguard her property. Accordingly, at the request of American's attorney, Yanks secured the collateral from Ms. Hough, gave her a receipt, and delivered the jewelry back to the attorney. After delivery of the jewelry to the attorney, Yanks had no further contact with or control over it. While there was a delay of some 10 months following the termination of the bond that was ultimately written on Ms. Hough's son before her jewelry was returned, such delay was not occasioned by or within the control of Yanks. In sum, Yanks did not act as a bail bondsman on December 9, 1987, and did not exert any control over Ms. Hough's jewelry such that he might be held accountable for any delay in its return.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered granting the application of Petitioner, Barry Stephen Yanks, for examination as a bail bondsman (limited surety agent) pursuant to Chapter 648, Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of October 1989. WILLIAM J. KENDRICK 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 2nd day of October 1989. APPENDIX The proposed findings of fact submitted on behalf of Yanks have been adopted in substance in paragraphs 1-5. The purposed findings of fact submitted on behalf of the Department are addressed as follows: Subordinate or not necessary to the result reached. To the extent supported by the proof, adopted in paragraph 3, otherwise rejected. Adopted in paragraph 3. Not relevant. 5 & 6. Adopted in substance in paragraph 4. COPIES FURNISHED: Robert V. Elias, Esquire Office of Legal Services 412 Larson Building Tallahassee, Florida 32399-0300 Ana Hernandez-Yanks, Esquire 1481 N.W. 7th Street Miami, Florida 33125 The Honorable Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Don Dowdell General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300
Findings Of Fact Mr. Patterson is currently eligible for licensure and is licensed in this state as a limited surety agent (bail bondsman). At all times material to the Administrative Complaint, Mr. Patterson was eligible for licensure and was licensed in Florida as a limited surety agent (bail bondsman) with Crews Bonding Agency located in Jacksonville, Duval County, Florida. As such, he was a full-time employee of the Crews Bonding Agency and worked the 4:30 p.m. to 8:00 a.m., or night shift, each night. Mr. Patterson was the only licensed bail bondsman on this shift at the Crews Bonding Agency. Ralph Bunch Collins was also a full-time employee of Crews Bonding Agency at all times material, and at all times material, Mr. Collins worked the night shift with Mr. Patterson. Mr. Collins was recognized by Mr. Patterson and his employer as an administrative assistant whose job entailed clerical duties with regard to the bonding process. Mr. Patterson and Mr. Collins worked as a team. Mr. Collins is not a limited surety agent, bail bondsman, runner, or permittee under Chapter 648, F.S. At all times material, Jerelyn Rodriguez, ne' Langtree, was licensed in Florida as a limited surety agent (bail bondsman) with Crews Bonding Agency. She, also, was a full-time employee of that agency and was its designated office manager. Mrs. Rodriquez worked the hours of 8:00 a.m. to 4:30 p.m. daily with an administrative assistant named Mrs. Cook, and together Rodriquez and Cook constituted the Crews Bonding Agency's day shift team. The 1983 version of the statute under which Mr. Patterson is charged in the Administrative Complaint read as follows: 648.441 Furnishing supplies to an unlicensed bail bondsmen prohibited: civil liability and penalty.-- No insurer, bail bondsman, runner, or permittee under this chapter shall furnish to any person any blank forms, applications, stationery, or other supplies to be used in soliciting, negotiating, or effecting bail bonds until such person has received from the department a license to act as a bail bondsman and has duly qualified as such. Any insurer, licensee, or permittee who furnishes to any bail bondsman or other person not named or appointed by `the insurer represented any of the supplies mentioned in subsection (1) and accepts any basil bond business from or writes any bail `bond business for such bail bondsman, person, or agency shall be subject to civil liability to any insured of such insurer to thee same extent and in the same manner as if such bail bondsman or other person had been appointed, licensed, or authorized by the insurer, general agent, or bail bondsman to act in its or his behalf by the department. [Emphasis supplied] On March 27, 1984 a Consent Order was entered in the Circuit Court in and for Duval County, Florida, in the case styled, Jack I. Etheridge and F.G.C. Bonding and Insurance Corporation v. State of Florida and State of Florida Department of Insurance, Case No. 82-10537. That Consent Order provided, in pertinent part, as follows: 4. Florida statute 648.441(1) likewise must be given a liberal and common sense application in order to preserve its constitutionality. It is the intent of the Legislature, as interpreted by this Court that said subsection is designed to prohibit licensed bail bondsmen from allowing non- licensed persons to actually conduct a (sic) legitimate and licensed activities of a licensed bail bondsman. Therefore this Court finds that it is a constitutionally permissable (sic) legislative act to prevent licensed person (sic) from providing non- licensed persons with forms and supplies of the trade that would permit the non-licensed persons to violate the law. However, this does not preclude clerical activities by non- licensed persons under the direct supervision of a licensed person to the extent that it is consistent with the general intent of said section. (Emphasis supplied) [Patterson Exhibit 1] The wife of Jack I. Etheridge, who was a plaintiff in the foregoing civil lawsuit, was an owner of the Crews Bonding Agency at all times material to the instant administrative proceeding. The foregoing Circuit Court Consent Order to which DOI was a party is the only relevant interpretation by a court of competent jurisdiction of Section 648.441 F.S. which either party hereto or the undersigned has been able to discover. DOI put on no expert evidence of agency construction of the statute either formally by rule or informally by policy. Subsequent to that Circuit Court Consent Order, the statute interpreted therein [see FOF 5, supra] was amended to add subsection (3), as follows: Any person who violates this section is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. All three statutory subsections were in effect at all times material to the administrative charges against' Mr. Patterson. During the night shift of New Year's Eve, December 31, 1988, Susan Miller a/k/a Sharon Miller, who was then the wife of James Edward Miller, contacted the Crews Bonding Agency by telephone and relayed certain necessary information to Ralph Collins as a predicate to securing a bond to get her husband out of the Duval County Jail. In turn, Mr. Collins called the jail and received basic information for making out the necessary bonding papers. Mrs. Miller arrived at the bonding agency and Mr. Collins prepared certain paperwork for her signature, that of her husband, and that of the Mr. Patterson as bail bondsman. It is the unrefuted testimony of Mr. Patterson, Mr. Collins, Jerelyn Rodriquez, and Gilbert Clark that in doing so, Mr. Collins was conforming to the standard operating procedure of the Crews Bonding Agency and the custom in the bonding trade at least as far as that trade has been practiced within Duval County, Florida, since the entry of the March 27, 1984 Consent Order. Patterson Exhibit 2 and the testimony of Correctional Officer Larry Wooten established that, provided the licensed bondsman presents the bond and personally receives the prisoner into his custody, the foregoing clerical practice and procedure has been acquiesced-in by a published policy of the Duval County Sheriff's Office and by county jail personnel, of which Mr. Wooten is one. There was unrefuted testimony that without such clerical help, a licensed bondsman could not function 24 hours a day, as is common in the trade. It is also the unrefuted testimony of Mr. Patterson, Mr. Collins, and Mrs. Rodriquez that at all times material to the Miller transaction, Mr. Collins was subject to the supervision of Mr. Patterson, that Mr. Patterson had the absolute right to alter any document prepared by Mr. Collins prior to signing the Miller bond, and that Mr. Patterson ultimately could have rejected underwriting Mr. Miller's bond if, after Mr. Patterson's review, the documents Mr. Collins had prepared did not conform to the insurance law, rules, or standards to which Mr. Patterson, as a licensee, was bound to conform. The foregoing testimony is further supported by the testimony of Gilbert Clark. Mr. Clark is a licensed bail bondsman who is not now and never has been associated with the Crews Bonding Agency. He testified that Mr. Patterson could ultimately have refused to place the Miller bond even if Mr. Patterson's only dissatisfaction upon his review of the documents prepared by Mr. Collins had been the sufficiency of the collateral or premium provided by the Millers. With regard to the Miller transaction, Mr. Collins prepared the Indemnity Agreement (DOI Exhibit 2e) for signature by Mr. Miller's wife, which Mr. Collins notarized with certificate, seal, and stamp. Collins prepared a Promissory Note (DOI Exhibit 2f) and signed on the line provided for a witness to Mrs. Miller's signature but without applying his notary certificate, seal, or stamp. Collins prepared a Premium Receipt (DOI Exhibit 2g) and signed on the line acknowledging that the premium had been "received by" him in the form of a check from Mr. and Mrs. Miller. The nature of the Premium Receipt and the Collateral Receipt does not necessarily require the Millers' signatures, but Mr. Collins testified that his own signature on the Premium Receipt was meant to signify that he had witnessed signatures and that he had signed it as a notary but that he did not affix a notary certificate, seal, and stamp because he saw no reason for those formalities. Because of the requirements of Chapter 117 F.S. governing notaries public, because the document speaks for itself, and because Mr. Collins testified that he, in fact, received the premium, his testimony that he signed the Premium Receipt for the Miller transaction only as a notary or witness is not credible, particularly since the exhibit (DOI Exhibit 2g) does not bear the Millers' signatures. Mr. Collins prepared the Collateral Receipt (also DOI Exhibit 2g) and received the collateral, signifying same by his signature. (TR 40-41). However, Mr. Patterson signed on the Miller bond and went through all the bond papers, including the foregoing, with Mr. Miller after Mr. Patterson personally physically obtained Mr. Miller's release from jail. On July 7, 1989, Henry A. Robinson went to Crews Bonding Agency in an effort to bond his son, Henry Steve Robinson, out of the Duval County Jail. All of the father's negotiations were with Mrs. Rodriquez. The father did not testify. At all times material to the Robinson transaction, both Mrs. Cook and Mr. Collins had signs on their respective desks, proclaiming them to be administrative assistants, and a sign on Mr. Patterson's desk proclaimed him to be a bail bondsman. When Mr. Patterson and Mr. Collins arrived at Crews Bonding Agency for the July 7, 1989 night shift, some paperwork had already been prepared by Mrs. Rodriquez and others. Mrs. Rodriquez had already reviewed all the papers prepared by someone else, and Mrs. Rodriquez had tentatively committed to underwriting the bond on Henry Steve Robinson. Mr. Patterson did not thereafter "second guess" Mrs. Rodriquez's initial work or judgment despite his absolute right to reject the bond for all the reasons aforesaid in FOF 12. Some further Robinson transaction paperwork was prepared by Mr. Collins after he came on duty. The nature of several of these documents did not require either the signature of the father, the mother, or the son or the notarizing thereof, but the evidence indicates that Mr. Collins thought some of them did. Premium Receipt 127003 (DOI Exhibit 4f, apparently one of two such receipts) and the Collateral Receipt (DOI Exhibit 4b) for this transaction were signed by Mr. Collins on the "received by" lines. He testified that he signed these only as a Crews employee, i.e., a clerk administrative assistant, and as a notary but without affixing his notarial seal. Collins testified that he signed as a witness for the father's signature on the witness line as a Crews employee for the Contingency Promissory Note (DOI Exhibit 4c, TR 48-50), that he did not notarize the note initially when the senior Mr. Robinson signed it in his presence because arrangements were made for the senior Mr. Robinson's convenience to allow Mrs. Robinson to sign the following day, and that the next day, Mr. Collins just witnessed on the other side of that document. However, the documentary evidence (DOI Exhibit 4c) is clear that Mrs. Robinson (the mother) never signed the Contingency Promissory Note. Mr. Collins testified that he signed as a Crews Bonding Agency employee and then notarized with a certificate, seal, and stamp the Indemnity Agreement to the effect that it had been signed by Mr. Robinson's father and mother when in fact the mother never signed that document. (TR 52-56, DOI 4e). Due to the provisions of Chapter 117 F.S., the discrepancy between the exhibits and the testimony, and the vacillation of Mr. Collins in giving his oral testimony, it is found that contrary to Mr. Collins' oral testimony, he was confused or uninformed as to his actual function with regard to the Robinson transaction. However, Mr. Patterson reviewed all the Robinson papers and documents and signed the General Appearance Bond as surety and as attorney-in-fact and an agent of Crews Bonding Agency. Mr. Patterson also personally effectuated Henry Steve Robinson's release from jail on July 7, 1989. Henry Steve Robinson (the son) had been bonded out of the Duval County Jail by the team of Patterson and Collins of the Crews Bonding Agency on at least two occasions, and due to Mr. Robinson's confusion of dates, his testimony concerning exactly what papers he went over with Mr. Patterson or anyone else on July 7, 1989 was somewhat vague. However, he was very clear on some points: Mr. Collins never said he was a bail bondsman, it was Mr. Patterson who signed Robinson out of jail each time, and Robinson signed papers in the bonding agency office each time. Robinson believed that Mr. Patterson was the person who explained all the papers to him in Collins' presence on the date in question, but could not be sure. Mr. Collins and Mr. Patterson asserted that as of the July 11, 1990 formal hearing, Crews Bonding Agency clerical personnel are no longer permitted to sign premium and collateral receipts. This instruction was given in anticipation of amendments to Section 648.441 F.S. which were due to go into effect October 1, 1990. Although Mrs. Miller did not testify, the evidence as a whole from other witnesses supports the reasonable inference that this case arose partly because she complained to DOI when Mr. Collins and other Crews Bonding Agency employees refused to summarily reincarcerate her husband upon her oral complaints of domestic problems. No finding has been made concerning what impression of Mr. Collins was formed by Mrs. Miller or concerning the state of Mrs. Miller's mind because the evidence presented on those issues was speculative and not the type of hearsay which would explain or supplement direct and probative evidence. Neither Mr. Miller or Mr. Henry Steve Robinson appeared to have any complaints with the bonding process or participants.
Recommendation DOAH Case No. 90-0406 Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance and Treasurer enter a Final Order dismissing the Administrative Complaint. DOAH Case No. 90-0584 Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance and `Treasurer enter a Final Order granting Mr. Patterson's application for a resident license to represent Amwest Surety Insurance Company as a limited surety agent (bail bondsman). DONE and ENTERED this 17th day of October, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 17th day of October, 1990.
The Issue Whether Petitioner should be granted a temporary bail bond license with the Florida Department of Financial Services?
Findings Of Fact Petitioner applied for licensure as a temporary resident surety agent (temporary bail bond agent) on or about December 31, 2008. The Department deemed his application completed on February 5, 2009. In November 1997 in Colquitt County, Georgia, Petitioner pled guilty to a felony charge of possession of more than one ounce of marijuana. He was placed on probation for a period of six years. Pursuant to the Georgia Probation for First Time Offenders Act, there was no adjudication of guilt by the court. On November 7, 2003, Petitioner successfully completed his probation. On November 13, 2003, the Superior Court of Colquitt County issued an order entitled “Record of Discharge and Exoneration of Defendant (First-Offender Act)”. The Notice of Discharge states in pertinent part: THEREFORE, IT IS NOTED AND RECORDED that in accordance with the provisions of the Probation of First Offenders Act (OCGA 42-8- 60 et. seq.): The defendant has been discharged without court adjudication of guilt; That the discharge completely exonerates the defendant of any criminal purpose; asks: That the discharge does not affect any of said defendant’s civil rights or liberties; The defendant is not considered to have a criminal conviction; and The discharge may not be used to disqualify a person in application for employment or appointment to office in either the public or private sector. (emphasis added) Question 3 on the Individual Application for New License Have you ever been charged, convicted, found guilty, or plead guilty or nolo contendere (no contest) to a felony or crime under the laws of any municipality, county, state, territory, or country, whether or not adjudication was withheld or a judgment of conviction was entered? Yes/No Petitioner answered “no” to question 3 on the application for licensure. Question 20 on the Individual Application for New License asks: Have you ever been convicted, found guilty, or plead guilty or nolo contendere (no contest) to a felony under the laws of any municipality, county, state, territory, or country, whether or not adjudication was withheld or judgment of conviction was entered? Yes/No Petitioner responded “no” to question 20 on the Individual Application for New License. At the end of the application, just above his electronic signature, Petitioner checked a box manifesting agreement with the following declaration: Under the penalties of perjury, I declare that I have read the foregoing application for license and that the facts stated in it are true. I understand that misrepresentation of any fact required to be disclosed through this application is a violation of the Florida Insurance and Administrative Codes and may result in the denial of my application and/or the revocation of my insurance license(s). The Department’s denial letter was based on Petitioner’s criminal history, as well as an allegation of failure to disclose same. Petitioner testified at hearing that during the process of completing his application as a bail bondsman, he sought the advice of an attorney regarding his Notice of Discharge and application. Petitioner received legal advice that his answer to the aforementioned questions should be “no.” Petitioner’s testimony in this regard is found to be credible and is accepted.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That Petitioner’s application for licensure as a Temporary Resident Limited Surety Agent be granted. DONE AND ENTERED this 14th day of October, 2009, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 2009.
The Issue The issue for determination in this proceeding is whether Respondent required a service charge in the amount of $20 in connection with a bail bond and, if so, what, if any, disciplinary action should be taken against Respondent's license.
Findings Of Fact Respondent is licensed in the state as a limited surety agent ("bail bondsman"). On or about May 16, 1991, Respondent negotiated a bail bond regarding Bobby Ray Smith in the amount of $500. Nancy Smith, Bobby Ray Smith's mother, paid Respondent a premium of $50 and a service fee of $20 in the form of two separate checks. Both checks were deposited to the Mancini Bail Bond account and negotiated. Respondent is a signatory on the Mancini Bail Bond account. Respondent did not give Nancy Smith a receipt for the service fee of $20. Respondent has no prior disciplinary history.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of the allegations in the Administrative Complaint and suspending Respondent's license for 90 days. DONE AND ENTERED this 14th day of January, 1993, in Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 (904) 488 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1993.
Findings Of Fact Petitioner was first licensed as a ball bondsman in 1961 or 1962. In 1969 (Exhibit 2), Petitioner was charged with being incompetent and untrustworthy as a bail bondsman, found guilty and placed on one year's probation which was successfully completed. In 1973, Petitioner was again charged with conducting himself in a manner unbecoming a bail bondsman (Exhibit 3). These charges alleged failure to return the premium paid on a supersedes bond when the prisoner was not released from jail on the bond and failure to maintain his office open to the general public as required. In the Final Order issued in this case, Petitioner was fined $850 and placed on probation for two years. Upon failure of Petitioner to comply with the terms of the Final Order, his license was revoked for a period of ten months after which the revocation was set aside and his license restored. In 1979, a hearing was conducted by the undersigned Hearing Officer on charges alleging that Petitioner had failed to maintain the minimum requirement for permanent office records and failed to maintain a place of business accessible to the public and be actively engaged in the bail bond business in violation of Chapter 64B, Florida Statutes. Petitioner was found guilty as charged, and the recommendation that his license be revoked was adopted by the Commissioner of Insurance in the Final order. In 1986, Petitioner was arrested for operating a donut shop in Tampa utilizing topless waitresses in violation of Tampa Ordinance 24-11. These charges were dismissed on appeal to the circuit court (Exhibit 5). Witnesses called by Petitioner included the attorney who prosecuted the 1979 case (Exhibit 4) against Respondent; the investigator who investigated the 1979 charges for the Department, and a sitting circuit court judge who filed an appeal of the 1979 revocation order on behalf of the Petitioner At the time the charges which led to the revocation were preferred, Respondent was without power to write bonds, but still had an obligation to service bonds still outstanding. The two witnesses who testified in these proceedings on the status of a licensed bail bondsman without power to write new bonds both concurred that this places a bail bondsman in the anomalous position of one who has no need for an office to provide bail bonds for the public but who still needs to be accessible to those clients for whom he has outstanding bonds. This distinction was not clarified at the 1979 hearing. All three witnesses who testified on behalf of Petitioner were aware of nothing that would disqualify Petitioner as a bail bondsman at this time. No evidence was submitted that Petitioner was convicted of any crime involving moral turpitude, except for the admission by Petitioner that on or about August 11, 1966, he pleaded guilty to uttering a check without sufficient funds on deposit with which the check could be honored. This offense occurred more than 20 years ago and prior to Petitioner twice being found qualified for licensure by Respondent as a bail bondsman.
