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
The Issue Whether the Respondent's license as a limited surety agent should be suspended, revoked or otherwise disciplined based upon the allegations set forth in the Administrative Complaint.
Findings Of Fact Background At all times material to these proceedings, Respondent Harris was licensed as a limited surety agent and continues to be eligible for licensure and appointment in Florida. On June 2, 1988, Respondent executed a bail bond agreement with Indiana Lumbermen's Mutual Insurance Company (Indiana Lumbermen's) as the insurer of the surety bonds, Underwriters Surety, Inc. (Underwriters) as its agent, and Jim Fowler, Jr. d/b/a Fowler Enterprises (Fowler) as its representative indemnitor and supervising representative. Under the terms of the agreement, Indiana Lumbermen's agreed to act as surety on bail bonds solicited and signed in its name by Respondent Harris. In turn, he agreed to charge, collect and remit all bond premiums through Fowler, who has a separate agreement with Indiana Lumbermen's and Underwriters regarding those duties. Additionally, Respondent agreed to hold Indiana Lumbermen's, Underwriters, and Fowler harmless for all bond forfeitures and court costs expended by any of them for bail bonds issued in Indiana Lumbermen's name by him. Because Fowler was also required to indemnify Indiana Lumbermen's and Underwriters against bond forfeitures and court costs resulting from bonds issued by Respondent Harris, a $10,000 mortgage was placed against Respondent's home as collateral for such losses by Fowler. Indiana Lumbermen's and Underwriters also required Respondent Harris to place two per cent of the face amount of each bond in an indemnity fund. The agreement states that after each indemnification is finally determined and satisfied, the remaining portion of the indemnity fund will be delivered to the Respondent or to Fowler. Fowler and the Respondent agreed that when the indemnity fund built up to $25,000.00 in reserved funds, Fowler would release the mortgage. Respondent could also request that the amount of money he was required to place into the indemnity fund for subsequent bond executions be reduced to one per cent of the face of the bonds. After the bail bond agreement was executed by all parties and the Respondent's wife in June of 1988, the bail bonds service office was opened in Tampa, Hillsborough County, Florida. Bond Forfeitures On December 12, 1988, two final judgments were entered in Hillsborough County which required the forfeiture of Surety Bond Power No. BB1-168638 and No. BB1-168639 due to the failure of Charles Douglas, Jr., to appear to answer criminal charges for which the bonds had been issued. Each bond was in the principal amount of $1,000.00 and was issued by Respondent Harris as Attorney- In-Fact for Indiana Lumbermen's. The sum of the two judgments was $2,000.00 and $169.00 and court costs. Warren H. Dawson, attorney for the Defendant, motioned the court to vacate the judgments on January 24, 1989. Instead vacating the judgments, the court stayed the enforcement of the judgments until April 26, 1989. At the chose of the time period, Charles Douglas, Jr., was not located, ad the bond funds were forfeited to the State of Florida for the use and benefit of Hillsborough County. These funds, totalling 2,000.00, were paid to the Clerk of Court by Harry Hamner Enterprises on May 18, 1989, as agent for Fowler. Court costs of $84.50 were paid by Respondent Harris, and $84.50 in court costs remain outstanding. The funds paid to the Clerk of Court on behalf of Fowler were issued to a low Fowler to comply with the bail bond agreement as super representative. Respondent Harris is still obligated to indemnify Fowler for the payment. On December 3, 1990, a remittance of $1,000.00 was given to Fowler because Defendant had been located. As this hearing took place only three days later, it is unknown if a check for the other S1,000.00 was forthcoming to Fowler. If the failure to remit the owner $1,000.00 was an oversight, it could be easily corrected by the Clerk of Court as the location of the Defendant would allow we return of these funds as well. On June 4, 1989, a final judgment was entered in Hillsborough County which required the forfeiture of Surety Bond Power No. BB1-200214 due to the failure of Ivan R. Jacob to appear in court to answer the criminal charges for which the bond had been issued. The bond was in the principal amount of $1,000.00 and was issued by Respondent Harris as Attorney-In-Fact for Indiana Lumbermen's. The judgment was for $1,000.00 and $84.50 in court costs. Warren H. Dawson, attorney for the Defendant, motioned the court to vacate and set aside the judgment and costs on July 12, 1989. The motion was granted on August 24, 1989, except that the payment of $84.50 in court costs was still required. The outstanding court costs of $84.50 were paid by Rubin C. Bazarte, Bail Bonds, on behalf of Indiana Lumbermen's on August 28, 1989. Respondent Harris has not indemnified Indiana Lumbermen's for those funds expended to pay the court costs as required by the bail bond agreement. He is still obligated to do so. On June 14, 1989, a final judgment was entered in Hillsborough County which required the forfeiture of Surety Bond Power No. BB1-197205 due to the failure of William A. Evans to appear to answer criminal charges for which the bond had been issued. The principal amount of the bond was $500.00. It was issued by Respondent Harris as Attorney-In-Fact for Indiana Lumbermen's. The sum of the judgment was $500.00 with court costs of $84.50. The judgment and court costs were satisfied by Rubin C. Bazarte, Bail Bonds, on behalf of Indiana Lumbermen's on August 28, 1939. Respondent Harris has not indemnified Indiana Lumbermen's for the funds expended, as required by the bail bond agreement. On June 21, 1989, a final judgment was entered in Hillsborough County which required the forfeiture of Surety Bond Power No. BB1-197204 due to the failure of Williams A. Evans, Jr., to answer criminal charges for which the bond had been issued. The principal amount of the bond was $500.00, and it was issued by Respondent Harris as Attorney-In-Fact for Indiana Lumbermen's. The sum of the judgment was $500.00 plus court costs of $84.50. On August 28, 1989, the judgment and court costs were satisfied by Rubin C. Bazarte, Bail Bonds, on behalf of Indiana Lumbermen's. Respondent Harris has not indemnified Indiana Lumbermen's for the funds expended, as required by the bail bond agreement. Respondent has not received funds to pay for the bond forfeitures from any source. Bond Net Premiums As part of his duties regarding the issuance of bonds for Indiana Lumbermen's, Respondent was required to regularly report the execution of bail bonds to Fowler and Underwriters. The net premiums were to be paid to either of these agents for Indiana Lumbermen's. According to the business records maintained by Fowler, the Respondent failed to remit the required net premiums owed with reports numbered 35, 36, 37 and 38. The amount of money owed for these premiums is $2,370.00. For April 7, 1989, Rosettia Jacobs paid Respondent $1,000.00 to obtain two bonds for the pretrial release of her son, Andre Hudson. Two bonds, with a face value of $5,000.00 each were executed by Respondent that day. The net premiums for two bonds with a face value of $10,000.00 were listed on bail bond execution report number 36, but the net premium was never paid to Fowler or Underwriters from the cash received from Rosettia Jacobs for that purpose. In July 1989, Melvin Rolfe met with Respondent's son, who represented he could accept funds on behalf of his father for the bail bond business. Melvin Rolfe gave Respondent's son $250.00 for a bail bond in order to obtain the pretrial release of his brother, Joseph Rolfe. Of these funds, $100.00 was for payment of the gross premium and $150.00 was collateral. The bond for $1,000.00 was executed by Respondent on August 1, 1989. The collateral given to Respondent's son was not noted on bail bond execution report number 35. The net premium for the $1,000.00 bond for Joseph Rolfe was not sent to Fowler or Underwriters from the cash delivered by Melvin Rolfe for that purpose. On August 1, 1989, Melvin Hamilton gave the Respondent $250.00 for two bonds in order to obtain the pretrial release of his brother, Mark Hamilton. One bond premium was $100.00 and the other bond premium was $50.00. The additional $100.00 was collateral. Bonds with the total face value of $1,250.00 were executed by Respondent on August 1, 1989. The collateral was not noted on the bail bond execution report number 35, and the net premiums were not sent to Fowler or Underwriters from the funds delivered by Melvin Hamilton for that purpose. On August 4, 1989, Charles Rodriguez paid $350.00 for bond premiums to Respondent in order to obtain the pretrial release of his wife, Tina Dunn. The total gross premium amount was $450.00. Respondent extended credit to Charles Rodriguez and issued three bonds with the total face value of $4,500.00 on August 4, 1989. Although the bonds were issued and noted on bail bond execution report 35, the net premiums were not sent to Fowler or Underwriters from the funds delivered by Charles Rodriguez for that purpose. On September 13, 1989, Fowler, as supervising representative for Indiana Lumbermen's and Underwriters, sent a formal demand to Respondent for the $2,370.00 due for premiums not included with reports numbered 35-38. Respondent has failed to pay any of the funds actually received for those premiums to Fowler, Underwriters, or Lumbermen's. Mitigation Respondent has made some attempts to locate defendants whose bonds have been forfeited to the state. Respondent extended credit to some people seeking bail bonds so he never collected some of the money owed to Indiana Lumbermen's for premiums.
Recommendation Based upon the foregoing, which demonstrates that Respondent misappropriated net bond premiums owed the insurer on four occasions between April and early August 1989, it is RECOMMENDED: The limited surety license of Rudolph Harris, Respondent, be suspended for one year, pursuant to Section 648.49(1), Florida Statutes [1987]. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of February 1991. VERONICA E. DONNELLY 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 22nd day of February, 1991. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-4689 Petitioner's proposed finding of fact are addressed as follows: Accepted. See HO #1. Accepted. See HO #1. Rejected. Contrary to fact. See #18-#23. Also, irrelevant as to charging document which claimed Respondent misappropriated bond forfeiture funds. Rejected. Irrelevant as to charging document which claim Respondent misappropriated forfeiture funds. See HO $14-#17. Rejected. Contrary to fact. See HO #8-#13. Accepted. See HO #35. COPIES FURNISHED: Gordon T. Nicol, Esquire Department of Insurance 412 Larson Building Tallahassee, FL 32399-0300 Rudolph Harris 812 E. Henderson Avenue Tampa, FL 33602 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-0300 Bill O'Neil General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, FL 32399-0300
The Issue The issue to be resolved in this proceeding concerns whether the Respondent's bail bond agent's License issued by the State of Florida should be subjected to sanctions for alleged violation of certain provisions of Chapter 648, Florida Statutes, and related rules, as described in the First Amended Administrative Complaint.
Findings Of Fact The Petitioner is an agency of the State of Florida charged by statute and rule with regulating the entry to licensure, and regulating the practice, of bail bond agents such as the Respondent. The Respondent Donald Frank Shirey was, at times pertinent hereto, a licensed bail bond agent regulated by the Department. The Respondent was a corporate officer and director of Donald Shirey and Associates, Inc., located, at times pertinent hereto, at 112 East Adams Street, Jacksonville, Florida ("Associates"). It was an entity engaged in the bail bond business. The Respondent employed Robert Meyers, James Kinard and Michael Suttles as licensed bail bond agents. Count I On September 25, 1998, Darryl Gerald Irving was incarcerated in the Duval County Jail. The amount of his bond was set at $5003.00, with a premium of $500.00. On that date, the Respondent posted a bail bond for Darryl Gerald Irving. After bonding Mr. Irving out of jail, the Respondent took him to Mr. Irving's former employer, Target, to obtain a check (number 8215734), in the amount of $172.23. The check was signed over to the Respondent as partial payment for the bail bond premium. The Respondent and Mr. Irving then went to the Respondent's office were they called Mr. Irving's girlfriend, Sandra Jennings, who paid the remainder of the bond premium. Mr. Irving then completed Petitioner's Exhibit 3, at the Respondent's office. On this document he listed his address as 3273 University Boulevard, Apartment 244. The address listed on his driver's license is 3273 University Boulevard, Apartment 255. The address listed on his Target check stub is 1706 Art Museum Drive, Apartment G-11. Mr. Irving explained that he would be living at 3273 University Boulevard, Apartment 244, and that the addresses on his driver's license and check stub were prior addresses. The Respondent, however, alleged that Mr. Irving put an incorrect or non-existent address on the document (Petitioner's Exhibit 3), but he never verified that. The Respondent surrendered Mr. Irving back to the Duval County Jail, terminating his liability on the bond, on the theory that Mr. Irving had entered an incorrect address on the document, Petitioner's Exhibit 3; the address he where he would be living, instead of his driver's license address or the address appearing on the check stub from his employer. On this basis, the Respondent returned him to the Duval County Jail for incarceration and retained the $500.00 bond premium paid by Mr. Irving. From the time the Respondent bonded Mr. Irving out of jail until the time he surrendered him back to jail, Mr. Irving remained in the Respondent's custody. Mr. Irving was in handcuffs except for the time when he was completing the written bond documents. At no time was Mr. Irving free to leave the Respondent's custody. Count II On January 8, 1998, the Respondent posted a bail bond for Patrick Andrade in the amount of $3,656.00. The bond premium thereon was $365.60, which was paid by Mr. Andrade. The documents marked as Petitioner's Exhibit 6, were completed and signed by Mr. Andrade. After being bonded out of jail, the Respondent took Mr. Andrade to the Respondent's home. While there he engaged in sexual relations with Mr. Andrade. When Mr. Andrade was no longer willing to engage in sexual relations with the Respondent, the Respondent surrendered him back to jail for re-incarceration and retained the bond premium. Count III On February 14, 1998, the Respondent posted a bail bond for Patrick Andrade in the amount of $50,003.00. The bond premium was $5,003.00. Mr. Andrade paid $2,500.00, as a down payment and paid an additional $1,200.00, of the bond premium for a total of $3,700.00, before being surrendered back to jail by the Respondent. The documents marked as Petitioner's Exhibit 7 in evidence, were completed and signed by Mr. Andrade. After being bonded out of jail, Mr. Andrade was taken by the Respondent to the Respondent's home where he spent several days and engaged in sexual relations with the Respondent. On February 25, 1998, when Mr. Andrade was no longer willing to engage in sexual relations with the Respondent and wished to go home to his wife, the Respondent surrendered Mr. Andrade to the Clay County Jail for re-incarceration and again retained the bond premium. Count IV On September 24, 1998, the Respondent again posted a bond for Mr. Andrade in the amount of $1,502.00. The bond premium of $150.20 was paid by Mr. Andrade and he signed the documents in evidence as Petitioner's Exhibit 8. After being bonded out of jail, Mr. Andrade was again taken to the Respondent's home where he stayed for several days and engaged in sexual relations with the Respondent. Thereafter, when Mr. Andrade wished to go home to his wife the Respondent instead surrendered him to the Clay County Jail and retained the bond premium already paid. Count V Ms. Jeanette Alzola met with the Respondent at his office on April 7, 1999, and entered into an agreement with the Respondent to provide for the bond of Pabel Romero Martinez from incarceration in the Lee County Jail in Fort Myers, Florida. Mr. Martinez's bond was $150,000.00. Ms. Alzola paid a premium of $15,000.00, and a transfer fee of $100.00. She posted the Deed for her house and the title to her car as collateral for the bond. When Ms. Alzola met with the Respondent she explained that Mr. Martinez would be living with her at her residence. She also told the Respondent that Mr. Martinez had difficulties comprehending English and would need assistance completing the required documents. She requested that Mr. Shirey contact her when Mr. Martinez was brought to the Respondent's office so that she could function as a translator and assist him in completing the documents. On April 9, 1999, the Respondent went to the Lee County Jail and posted a bond for Mr. Martinez to remove him from the jail. He brought him back to Jacksonville, Florida. He was in handcuffs the entire time except for a short period of time when he was completing the relevant bond documents. Mr. Martinez explained to the Respondent that he would be living with Ms. Alzola. The Respondent held up Mr. Martinez's driver's license and told him to "copy this address onto there." Mr. Martinez listed an address on the application that was not Ms. Alzola' s address or the address that appears on his driver's license, but it was the address of his previous residence. The Respondent then said that he was going to surrender Mr. Martinez back to the jail "now that we have good cause that I can go by and check this address because the address is a lie." The Respondent then surrendered Mr. Martinez back to the Lee County Jail without ever releasing him from his custody and retained the $15,100.00, that had been paid by Ms. Alzola. Ms. Alzola filed a civil lawsuit against the Respondent in which she obtained a Judgment in the amount of $15,100.00. The Court therein concluded that the: Decision to return him (Martinez) to the Lee County Jail within a few hours of bringing him here without ever releasing him or turning him over to the custody of the plaintiff (Alzola) constituted a breach of their contract with the plaintiff. The acts of the defendants herein did not constitute a "release" of Mr. Martinez anymore than if they had merely transferred him from the Lee County Jail to the Duval County Jail and back. Mr. Martinez remained in the custody of at least two of the defendants' agents at all times. Nothing in the acts or statements of these agents would have indicated to a reasonable person that he was free to leave their custody. In fact, their conduct was a clear indication that Mr. Martinez was still in a custodial status. Count VI Janice Smith met with the Respondent on May 27, 1999, to arrange for a bail bond for her seventeen-year-old son Kevin Smith. Kevin Smith was incarcerated in the Duval County Jail in Jacksonville, Florida. His bond amount was $100,000.00, and the premium on that bond was $10,000.00. Ms. Smith paid $7,000.00 of the premium and entered into a premium agreement for the remaining balance of $3,000.30. Under the terms of the agreement she was to make monthly payments of no less than $300.00 until the balance was paid. The balance was due before discharge of the bond. The Respondent held the title to Ms. Smith's 1999 Chevrolet Lumina as collateral security on the loan. The Respondent told Ms. Smith that he would help her out with any problem that she might have with Kevin. On or about May 31, 1999, she called the Respondent and told him that she was concerned because Kevin was coming home after a curfew that she had set for him. On June 1, 1999, the Respondent called Ms. Smith and recommended that Kevin be surrendered back to the jail for a few days in effect, to teach him a lesson. The Respondent assured Ms. Smith that he would get Kevin out of jail at any time without incurring additional costs. She agreed to allow the Respondent to surrender Kevin back to the jail with the understanding that she could get Kevin out of jail at any time without any additional costs. On June 1, 1999, the Respondent and several of his agents arrived at Ms. Smith's home. At the time of their arrival, Kevin Smith was not at home. The Respondent went into the house with Ms. Smith and two or more of his employees positioned themselves outside the house and waited for Kevin to return home. Kevin Smith approached the house in his vehicle and noticed several cars near his house. He purportedly believed that they belonged to a neighborhood gang which he had had problems with in the past. Allegedly fearing for his safety, he turned in his vehicle and proceeded to drive away. The Respondent's agents tried unsuccessfully to block his retreat with their vehicles and then pursued him but were unable to catch him. Janice Smith then called Kevin on his cell phone to ask him why he left. He replied that he thought the individuals at the house were gang members. Ms. Smith told him that it was just the Respondent and his agents who wanted Kevin to sign some papers. Kevin thereupon went home and attempted to shake the Respondent's hand whereupon the Respondent handcuffed and shackled him and took him back to his office. The Respondent later surrendered him to the Duval County Jail. A few days later, Janice Smith contacted the Respondent and requested that he bond Kevin back out of jail. The Respondent said he would not bond Kevin out of jail until Janice Smith provided proof that Kevin's car had been placed in storage. Ms. Smith put the car in storage and brought the receipt to the Respondent's office. The Respondent still would not bond Kevin out of jail. Ms. Smith went to the Respondent's office on numerous occasions and he refused to meet with her. Ms. Smith made several telephone calls to the Respondent but he would not take or return her calls. After several days had passed, one of the Respondent's employees told Ms. Smith that the Respondent would not bond Kevin out of jail and would not refund the premium payments. In June 1999, when Ms. Smith attempted to purchase a tag for her 1999 Chevrolet Lumina, she learned that the Respondent had transferred the vehicle to his name. The Respondent claimed that that action was taken pursuant to the terms of the premium agreement. However, the Respondent never notified Ms. Smith that the balance was due in full, or of his intent to transfer title of the vehicle to his name. Ms. Smith paid the Respondent the $3,000.00 balance so that the Respondent would release the title to her vehicle, which he did. Ms. Smith paid a total of $10,000.00, as a bail bond premium to the Respondent. The Respondent surrendered Kevin back to the jail but refused to bond him back out of jail as he had previously agreed and he also refused to refund the premium to Ms. Smith.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Insurance revoking the Respondent's license and eligibility for licensure as a bail bond agent, and that the Respondent be found ineligible to apply for licensure with the Department for a minimum period of two years and not until such time as restitution is made to Darryl Irving in the amount of $500.00, Patrick Andrade in the amount of $4,215.80, Jeannett Alzola in the amount of $15,100.00 and Janice Smith in the amount of $10,0003.00. DONE AND ENTERED this 21st day of October, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 21st day of October, 2002. COPIES FURNISHED: Richard J. Santurri, Esquire Department of Insurance Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Donald Frank Shirey, Jr. 5337 107th Street Jacksonville, Florida 32244 Honorable Tom Gallagher State Treasurer/Insurance Commissioner 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
Findings Of Fact Respondent, Larry K. Sechrest, was at all times relevant to the charges contained in the Administrative Complaint, licensed as limited surety agent in the State of Florida representing Allied Fidelity Insurance Company ("Allied"). In February, 1982, Respondent's accounts with Allied were audited by their representative at which time it was discovered that Respondent executed but did not report 202 powers of attorney. The aforementioned powers represented $11,464.51 in premiums due Allied, and an additional $5,732 due the buildup fund. On March 4, 1982, Allied demanded that the Respondent remit to them these premiums and buildup fund payments and account for and return the missing powers of attorney. Respondent had failed to comply with Allied's demands as of the date this Administrative Complaint was filed by Petitioner (July 20, 1982). Respondent subsequently offered to repay Allied at the rate of $1,000 per month, but this was refused. At the final hearing on February 16, 1983, Respondent offered to repay the total amount due within 30 days. On April 29, 1981, Respondent attempted to post a ne exeat bond in the amount of $25,000 for Douglas R. Valentine of Manatee County, Florida, based on power of attorney number FL2800913 issued by Allied. Respondent had not been given authority by Allied to post ne exeat bonds. Power of attorney number FL2800913 was by its language to be issued for appearance bonds only.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order finding Respondent guilty of violating Subsections 648.45(1)(d), (h) and (j), Florida Statutes (1981), as charged in Count I of the Administrative Complaint, and suspending his limited surety agent's license for one year; provided, however, that such license shall not be reinstated until Respondent has made restitution to the Allied Fidelity Insurance Company. DONE and ENTERED this 20th day of May, 1983, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 20th day of May, 1983. COPIES FURNISHED: Clark R. Jennings, Esquire Department of Insurance The Capitol Tallahassee, Florida 32301 Jerry Surfus, Esquire 150 East Avenue, South Sarasota, Florida 33577 The Honorable Bill Gunter Insurance Commissioner Department of Insurance The Capitol Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF INSURANCE AND TREASURER IN THE MATTER OF LARRY K. SECHREST Revocation of License and Case No. 82-L-162J Eligibility for Licensure DOAH Case No. 82-2617 Limited Surety Agent / ORDER REVOKING RESPONDENT'S LICENSES AND ELIGIBILITY TO HOLD LICENSES THIS MATTER came on to be considered upon the transcript of record of hearing held on February 16, 1983, in Sarasota, Florida, and the Report, Findings, Conclusions and Recommendations of the Hearing Examiner dated May 20, 1983. Upon consideration thereof and being otherwise fully advised in the premises, it is ORDERED: The Findings of Fact of the Hearing Examiner are adopted. The Conclusions of Law of the Hearing Examiner are adopted. The Recommendation of the Hearing Examiner is rejected for the following reasons: Section 648.49, Florida Statutes prohibits the establishment of a period of suspension in excess of one (1) year. The Department lacks the authority to condition any Order upon financial restitution by a Respondent to any aggrieved party listed in an Administrative Complaint. Revocation of license and eligibility for licensure is an appropriate remedy under the statutory authority cited in the Administrative Complaint, and the Hearing Officer's Conclusions of Law. All licenses of the Respondent, LARRY K. SECHREST, heretofore issued within the purview of the Florida Department of Insurance and eligibility to hold said licenses be, and the same are hereby revoked. DONE and ORDERED at Tallahassee, Florida, this 28th day of June , 1983. BILL GUNTER Insurance Commissioner and Treasurer WILLIAM D. RUBIN Assistant Insurance Commissioner and Treasurer COPIES FURNISHED: Jerry Surfus, Esquire 150 East Avenue, South Sarasota, Florida 33577 Clark R. Jennings, Esquire Department of Insurance 413-B Larson Building Tallahassee, Florida 32301
Findings Of Fact The Respondent, Adriana Winkelmann, d/b/a Adriana's Bail Bonds, Tampa, currently is licensed and eligible for licensure in this State as a Limited Surety Agent. On or about October 31, 1986, William L. Counts and his wife, Madie Counts, a/k/a Madie G. Clark, went to see the Respondent about getting Mr. Counts' first cousin, Clayton D. Counts, bailed out of jail. Cousin Clayton was charged with second degree murder, and bail was set on the second degree murder charge at $5000. Clayton Counts also had been charged with eight other counts involving sexual battery on a child and sexual activity with a child under his custodial authority. On October 2, 1986, Clayton Counts had posted $14,000 of bonds that had been set on the eight charges and had been released from jail. Adriana's Bail Bonds, acting as bail bondsman and as attorney-in-fact for the surety company, Accredited Surety And Casualty Company, Inc. (Accredited or the surety), was the surety on the $14,000 of bonds, and Scott Erickson, a friend of Clayton Counts, indemnified Accredited and put up collateral to secure the indemnification agreement. All but $150 of the premium on the $14,000 of bonds had been paid to Adriana's Bail Bonds; Clayton Counts' wife promised to pay the additional $150 at a later date. When Clayton Counts was re-arrested and charged with second degree murder and just an additional $5000 bond was set on the new charge, Erickson became fearful that Clayton Counts might skip the bonds, jeopardizing Erickson's collateral. He told the Respondent that he wanted to be taken off the bonds. At about this same time, on or about October 31, 1986, Mr. and Mrs. William L. Counts came in to Adriana's Bail Bonds, at Clayton Counts' request, to see about bailing out Clayton for the second time. Mr. and Mrs. Counts agreed with the Respondent to indemnify the surety on the total amount of all of the bonds, $19,000. They agreed to pay the $150 balance of the premium on the bonds put up on or about October 2, 1986, on the first set of charges, plus a $500 premium on the bond put up on or about October 31, 1986, on the second degree murder charge. The indemnity agreement was to indemnify the surety company for the entire $19,000 amount of the bonds in the event of a forfeiture, plus "all claim, demand, liability, cost, charge, counsel fee, expense, suit order, judgment, or adjudication" sustained or incurred by the surety company. As collateral to secure their indemnity agreement, Mr. and Mrs. Counts put up their mobile home, to which they gave the Respondent a power of attorney dated October 31, 1986, and an $8,000 mortgage on a lot worth approximately $8000. They also gave Adriana's Bail Bonds a $19,000 promissory note as collateral. On October 31, 1986, an employee of Adriana's Bail Bonds gave Mr. Counts a collateral receipt, signed by Mr. Counts and the employee, for the $19,000 promissory note, the indemnity agreement, the mortgage on the lot and the mobile home. The original was given to Mr. Counts and Adriana's Bail Bonds kept a copy. There was no evidence that the collateral receipt, or any other statement or affidavit, for this or any other collateral (other than Erickson's original collateral on the $14,000 of bonds on the first set of charges) ever was filed anywhere. Mr. Counts paid $500 by check dated November 14, 1986, for the premium on the $5000 second degree murder bond. In December 1986, Clayton Counts left the state and missed a court appearance on December 19, 1986. The $19,000 of bonds was estreated. In about January 1987, Mrs. Counts went to see the Respondent about substituting some other collateral for the mobile home. She was concerned about where she and her husband would live if the bonds were estreated and forfeited and the mobile home had to be sold to perform the indemnity agreement. She wanted to be able to move the mobile home somewhere else even in that event. After some discussion, it was agreed that the Respondent would accept $6000 cash as substitute collateral in place of the mobile home. Mrs. Counts promised to pay the $6000 in installments of approximately $500 a month. The Respondent repeatedly was able to have the court delay forfeiture of the bonds because she was able to demonstrate that she was trying to locate and return the defendant to the court. In her efforts, the Respondent incurred expenses for hiring private investigators, for a six- day trip to Missouri, for long distance telephone charges, for attorneys' fees for getting postponements of the forfeiture of the bonds and for other miscellaneous expenses. The Respondent collected portions of the promised cash collateral substitution in the following installments, some of which were picked up at the Counts' home by the Respondent: April 21, 1987 $2,000 July 17, 1987 $ 300 August 10, 1987 $ 500 August 20, 1987 $ 800 January 6, 1988 $ 500 On each occasion, the Respondent gave Mrs. Counts a collateral receipt signed by the Respondent and by Mrs. Counts. Each receipt noted the amount received, the balance due on the cash collateral substitution promise, and the $150 balance on the premium on the October 2, 1986 bonds on the first set of charges. Again, there was no evidence that any of these collateral receipts were "filed" anywhere. On January 6, 1988, Mrs. Counts asked the Respondent for a summary of the amounts of collateral paid to that date. The Respondent wrote on a piece of paper, incorrectly dated January 6, 1987, that $4100 had been received to date. Mrs. Counts also was confused what the money would be used for. The Respondent answered her question, saying that the money, together with the lot, would go towards indemnifying the surety for the $19,000 amount of the bonds if they were forfeited and, under the indemnity agreement, could be used to indemnity Adriana's Bail Bonds for expenses caused by the estreature. The Respondent listed these items on a piece of paper, too: Attorney fees to continue case 4 times over one year. Long distance calls for one year. Gas, stamps, & miscellaneous. One trip to Missouri, gas, motel, meals. Investigators services in Missouri and Florida. Later in January 1988, Clayton Counts was arrested and returned to Florida. The bonds, however, were not discharged at that time. Later in 1988, the Respondent made demand on Mrs. and Mrs. Counts for payment of an additional $2,150. This was supposed to represent $2000 due on the cash collateral substitution promise, plus the $150 balance on the premium on the October 2, 1986 bonds on the first set of charges. In fact, only $1900 was due and owning on the cash collateral substitution agreement. In March and April 1988, the Respondent collected from Mrs. Counts two additional $350 installments of the cash collateral substitution promise. Only one receipt was given for both installments, once again signed by both the Respondent and Mrs. Counts, reducing the balance to $1200, plus the $150 premium owing. In June and July 1988, Mrs. Counts was hospitalized. On June 13, 1988, the Respondent went to the hospital to have Mrs. Counts sign a receipt for the return of the original collateral for the $19,000 of bonds--i.e., the $19,000 promissory note and indemnity agreement, the mortgage on the lot and the mobile home. The Respondent did not return the cash collateral. On July 14, 1988, the court entered an order releasing the surety and Adriana's Bail Bonds from the bonds. The Respondent did not return the cash collateral because Mrs. Counts died in July 1988, and the Respondent was unsure to whom the money should be paid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent be found guilty of the violations set forth in the Conclusions of Law portion of this Recommended Order and that her license and eligibility for licensure be suspended for a period of thirty (30) days, that she be required to pay an administrative fine in the amount of $250, and that she be placed on probation for nine months after expiration of the suspension period, conditioned on : (1) successful completion of either a basic certification course or a correspondence course approved by the Bail Bond Regulatory Board; and (2) payment of the cash collateral to the rightful owner, or in the alternative, if the Respondent is in doubt as to the rightful owner, into a court registry in conjunction with an interpleader action, within 30 days of entry of final order. DONE and ENTERED this 24th day of February, 1989, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Hearing Office 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 24th day of February, 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. 88-2588 To comply with Section 120.59(2), Florida statutes (1987), the following rulings are made on the Petitioner'S proposed findings of fact: 1-9. Accepted and, along with other facts, incorporated. 10. Rejected in part and accepted in part. The note was a receipt of sorts, but it was not the only receipt. The incorrect date on the "receipt" was January 6, 1987; the actual date the "receipt" was given was January 6, 1988. 11.-16. Accepted and incorporated. COPIES FURNISHED: S. Marc Herskovitz, Esquire Office of Legal Services Department of Insurance 412 Larson Building Tallahassee, Florida 32399-0300 Don Dowdell General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, FL 32399-0300 James N. Casesa, Esquire 3845 Fifth Avenue North St. Petersburg, Florida 33713 The Honorable Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32999-0300
The Issue Whether Respondent, a bail bondsman, committed the offenses alleged in the Amended Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact At all times pertinent to this proceeding, Respondent was licensed by Petitioner as a limited surety and as a professional bail bondsman. Prior to November 23, 1992, Gredys Tarazona entered into an agreement for Respondent to post a bond for James Johansen. In connection with that transaction, Ms. Tarazona delivered to Respondent the sum of $200 that was to serve as collateral security for the bond. They agreed that the sum of $200 would be returned to Ms. Tarazona once the conditions of the bond had been satisfied. On November 23, 1992, the conditions of this bond were satisfied and the liability on the underlying bond was terminated. Respondent failed to return the sum of $200 to Ms. Tarazona despite demands for her to do so. Prior to August 23, 1992, Julian Maldonado purchased a bail from Respondent. In connection with that transaction, Mr. Maldonado delivered to Respondent the sum of $200 that was to serve as collateral security for the bond. They agreed that the sum of $200 would be returned to Mr. Maldonado once the conditions of the bond had been satisfied. On August 23, 1992, the conditions of this bond were satisfied and the liability on the underlying bond was terminated. Respondent failed to return the sum of $200 to Mr. Maldonado despite demands for her to do so. Prior to April 1, 1993, Faye Finley entered into an agreement for Respondent to post a bond for Michael Finley. In connection with that transaction, Ms. Finley delivered to Respondent the sum of $200 that was to serve as collateral security for the bond. They agreed that the sum of $200 would be returned to Ms. Finley once the conditions of the bond had been satisfied. On April 1, 1993, the conditions of this bond were satisfied and the liability on the underlying bond was terminated. Respondent failed to return the sum of $200 to Ms. Finley despite demands for her to do so. Prior to November 8, 1992, Robert Post purchased a bail from Respondent. In connection with that transaction, Mr. Post delivered to Respondent the sum of $150 that was to serve as collateral security for the bond. They agreed that the sum of $150 would be returned to Mr. Post once the conditions of the bond had been satisfied. On November 8, 1992, the conditions of this bond were satisfied and the liability on the underlying bond was terminated. Respondent failed to return the sum of $150 to Mr. Post despite demands for her to do so. Prior to December 10, 1992, Jo Anne Adams entered into an agreement for Respondent to post a bond for Wilfred Byam. In connection with that transaction, Ms. Adams delivered to Respondent the sum of $200 that was to serve as collateral security for the bond. They agreed that the sum of $200 would be returned to Ms. Adams once the conditions of the bond had been satisfied. On December 10, 1992, the conditions of this bond were satisfied and the liability on the underlying bond was terminated. Respondent failed to return the sum of $200 to Ms. Adams despite demands for her to do so. Prior to December 22, 1992, Shannon Davidson purchased a bail bond from Respondent. In connection with that transaction, Mr. Davidson delivered to Respondent the sum of $250 that was to serve as collateral security for the bond. They agreed that the sum of $250 would be returned to Mr. Davidson once the conditions of the bond had been satisfied. On December 22, 1992, the conditions of this bond were satisfied and the liability on the underlying bond was terminated. Respondent failed to return the sum of $250 to Mr. Davidson despite demands for her to do so. Prior to July 23, 1993, Albert Perone entered into an agreement for Respondent to post a bond for Richard Falaro. In connection with that transaction, Mr. Perone delivered to Respondent the sum of $250 that was to serve as collateral security for the bond. They agreed that the sum of $250 would be returned to Mr. Perone once the conditions of the bond had been satisfied. On July 23, 1993, the conditions of this bond were satisfied and the liability on the underlying bond was terminated. Respondent failed to return the sum of $250 to Mr. Perone despite demands for her to do so. Respondent permitted her husband, Ken Jenkins, to participate in the transaction involving the bail bond purchased by Mr. Perone for Mr. Falaro. At the time she permitted him to engage in the conduct of her bail bondsman business as part of the Perone transaction, Respondent knew or should have known that her husband's license as a bail bondsman had been revoked and that he had entered a plea of guilty to a felony charge in a criminal proceeding. On or about April 27, 1993, Respondent received payments totaling $650 for placement of a bond from Angelene G. Goulos. No bond was posted by the Respondent. Respondent failed to return any part of the sum she had received from Ms. Goulos despite demands for her to do so. Prior to November 18, 1992, Ross Rankin purchased a bail bond from Respondent. In connection with that transaction, Mr. Rankin delivered to Respondent the sum of $250 that was to serve as collateral security for the bond. They agreed that the sum of $250 would be returned to Mr. Rankin once the conditions of the bond had been satisfied. On November 18, 1992, the conditions of this bond were satisfied and the liability on the underlying bond was terminated. Respondent failed to return the sum of $250 to Mr. Rankin despite demands for her to do so. Prior to May 18, 1993, Mary Pilcher entered into an agreement for Respondent to post a bond for Hassan Niksirat. In connection with that transaction, Ms. Pilcher delivered to Respondent the sum of $200 that was to serve as collateral security for the bond. They agreed that the sum of $200 would be returned to Ms. Pilcher once the conditions of the bond had been satisfied. On May 18, 1993, the conditions of this bond were satisfied and the liability on the underlying bond was terminated. Respondent failed to return the sum of $200 to Ms. Pilcher despite demands for her to do so. Prior to March 31, 1993, Tania Rodriguez, a/k/a, Tania Cuevas entered into an agreement for Respondent to post a bond for Edwin Cuevas. In connection with that transaction, Ms. Rodriguez delivered to Respondent the sum of $400 that was to serve as collateral security for the bond. They agreed that the sum of $400 would be returned to Ms. Rodriguez once the conditions of the bond had been satisfied. On March 31, 1993, the conditions of this bond were satisfied and the liability on the underlying bond was terminated. Respondent failed to return the sum of $400 to Ms. Rodriguez despite demands for her to do so. On May 4, 1993, and May 6, 1993, Respondent permitted her husband, Ken Jenkins, to conduct bail bond business in transactions with Mary Gandy, another bail bondsman. At the time she permitted him to engage in the conduct of her bail bondsman business in transactions with Ms. Gandy, Respondent knew or should have known that her husband's license as a bail bondsman had been revoked and that he had entered a plea of guilty to a felony charge in a criminal proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order that adopts the findings of fact and conclusions of law contained herein. It is further recommended that Petitioner revoke Respondent's existing licensure and her eligibility for licensure under the Florida Insurance Code. DONE AND ENTERED this 7th day of June, 1996, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON, 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 7th day of June, 1996. COPIES FURNISHED: Bill Tharpe, Esquire Division of Legal Services 612 Larson Building Tallahassee, Florida 32399-0333 Dickson E. Kesler, Esquire Division of Agent and Agency Services 8070 N.W. 53rd Street, Suite 103 Miami, Florida 33166 Loudelle Davis Jenkins 1372 Northampton Terrace West Palm Beach, Florida 33414 Honorable Bill Nelson State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Dan Sumner, General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue Whether Respondent's license as a limited surety agent should be revoked or the licensee otherwise disciplined for alleged violations of Chapter 648, Florida Statutes, and Chapter 4-1, Florida Administrative Code, as set forth in the Administrative Complaint dated October 16, 1979. In this proceeding, Petitioner seeks to take disciplinary action against Respondent for various alleged violations of Chapter 648, Florida Statutes, and Chapter 4-1, Florida Administrative Code, arising out of alleged irregularities in connection with a bonding transaction in 1978. Two witnesses testified for the Petitioner and the parties stipulated to the admission of seven documentary exhibits. The Respondent testified in his own behalf at the hearing.
Findings Of Fact Respondent Timothy Michael Paletti is currently licensed as a limited surety agent to represent Cotton Belt Insurance Company, Inc., at Orange Lake, Florida, and was so licensed during the periods alleged in the Administrative Complaint. (Petitioner's Exhibit 1, Stipulation) On November 23, 1978, Respondent executed an appearance bond in the Gilchrist County Circuit Court in the sum of $10,000 as agent of the surety, Cotton Belt Insurance Company, in behalf of Rodney D. Lovett, who was charged with robbery. Respondent did not attach either an affidavit or statement, as prescribed in Rule 4-1.14, Florida Administrative Code, to the bail bond at the time it was filed in the office of the Circuit Court clerk. It was not until January 31, 1979, that Respondent filed a statement concerning collateral security for the bond under Rule 4-1.141 in lieu of the affidavit required by Rule 4-1.14, F.A.C. Lovett's wife paid a $1,000 premium for the bond and his sister-in-law, Deborah Johnson, executed a demand note for $10,000, together with a mortgage deed on a dwelling which she owned in Deland, Florida, on November 23, 1978, as collateral security for the bond. During the transaction, Respondent provided Johnson with a business card bearing his Orange Lake telephone number. (Testimony of Johnson, Petitioner's Exhibits 2-4) On January 8, 1979, a Notice of Sentencing was issued by the Gilchrist County Circuit Court Clerk in Lovett's case for January 22, 1979 at Trenton, Florida. On January 13, Respondent contacted Lovett and Johnson by telephone at their respective homes and advised them of the date of the required court appearance. (Testimony of Respondent, Petitioner's Exhibit 5) During January 1979, Lovett and his wife talked to Johnson about the possibility of "leaving and not going to court." Johnson became concerned about these disclosures and attempted to reach Respondent at his Orange Lake telephone number. Numerous calls to that number on January 15th were unanswered. After unsuccessful attempts to reach Respondent through the Cotton Belt Insurance Company and at another telephone number provided by Petitioner, Respondent finally called Johnson's house on January 20, at which time Johnson and a friend, Barry S. Beatty, told Respondent about Lovett's statements concerning his intentions and requested that Respondent pick up Lovett and surrender him to court so the collateral security could be released. Respondent told Johnson that he would look into the matter. He then telephoned Lovett's attorney and the Lovett home, and was assured that everything was all right. (Testimony of Johnson, Beatty, Respondent) On January 22, 1979, Lovett failed to appear at court for sentencing and the bond was therefore declared to be forfeited. Respondent and law enforcement authorities there after made efforts to locate Lovett and he was eventually apprehended and sentenced to confinement. On July 2, 1979, the Gilchrist County Circuit Court ordered that the bond previously estreated be remitted less the cost expended by the State in apprehending the defendant in the amount of $500. The collateral security posted by Johnson is still outstanding due to a dispute over costs sought by Respondent. (Testimony of Johnson, Respondent, Petitioner's Exhibit 6-7) Respondent testified at the hearing that he felt he had made reasonable efforts to assure that Lovett would appear in court. Although Respondent moved his office in late January 1979, his office phone was in operation and his office was open during the week of January 15-22. (Testimony of Respondent)
Recommendation That the charges against Respondent Timothy Michael Paletti be DISMISSED. DONE and ORDERED this 9th day of July, 1980, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1980. COPIES FURNISHED: S. Strom Maxwell, Esquire Department of Insurance 428-A Larson Building Legal Division Tallahassee Florida 32301 Robert J. Costello, Esquire Bates and DeCarlis - Suite B 726 Northwest Eighth Avenue Gainesville, Florida 32601
