The Issue Whether the Certificate of Authority held by Respondent should be subject to discipline for Respondent's failure to timely return build-up funds to a licensed bail bond agent, Willie David, pursuant to the terms of Section 648.29(3), Florida Statutes (2003).
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: Roche Surety holds a Certificate of Authority as a Florida domestic property and casualty insurer authorized to transact insurance business in the State of Florida, subject to the jurisdiction and regulation of the Department pursuant to the Florida Insurance Code. Roche Surety, Inc. ("Roche-MGA") is a managing general agent licensed by the Department. Armando Roche is an officer and director of Roche Surety and an officer and director of Roche-MGA. He is licensed by the Department as a limited surety (bail bond) agent. Willie David is licensed by the Department as a limited surety (bail bond) agent. On or about April 18, 1995, Mr. David entered into an Agency Agreement with Roche-MGA. "Build-up fund," or "BUF," accounts are held by the insurer in trust for the agent in order to protect the insurer against any liability that the agent does not directly satisfy. The insurer places a portion of the premium due to the agent on each bond into the BUF account. Should there be a forfeiture on the bond, the insurer is allowed to take that amount out of the BUF account. In this case, Roche Surety was the insurer holding Mr. David's BUF account, pursuant to his Agency Agreement with Roche-MGA. Section 648.29(3), Florida Statutes (2003), provides: Build-up funds are maintained as a trust fund created on behalf of a bail bond agent or agency, held by the insurer in a fiduciary capacity to be used to indemnify the insurer for losses and any other agreed- upon costs related to a bail bond executed by the agent. The build-up funds are the sole property of the agent or agency. Upon termination of the bail bond agency or agent's contract and discharge of open bond liabilities on the bonds written, build-up funds are due and payable to the bail bond agent or agency not later than 6 months after final discharge of the open bond liabilities. (Emphasis added) On or about June 23, 2000, the Agency Agreement between Willie David and Roche-MGA was terminated. In July 2001, Mr. David made a complaint to the Department that Roche Surety had not returned funds that it held in his BUF account, as required, pursuant to Section 648.29, Florida Statutes (2003). Mr. David did not provide the Department with documentation sufficient to demonstrate that all of his open bond liabilities had been discharged. The Department provided Mr. David with a list of what was needed to prove discharge of the liabilities. Over a period of months, Mr. David continued to submit letters to the Department. Matters between Mr. David and Roche Surety became increasingly acrimonious. Roche Surety made repeated attempts to schedule an audit of Mr. David's records. Mr. David made allegations against Roche Surety that the company's principal, Armando Roche, considered defamatory. On or about January 7, 2002, Roche Surety filed a civil complaint in the Thirteenth Judicial Circuit in and for Hillsborough County against Willie David for defamation and civil extortion. The case was styled Roche Surety, Inc. v. Willie David, Case No. 02000151. Mr. David ultimately submitted information sufficient to satisfy the Department that all of his outstanding bond liabilities had been discharged as of August 23, 2002. Thus, the Department's position was that Roche Surety should have returned the BUF account funds to Mr. David on or before February 23, 2003. The Department sent Roche Surety a letter, dated March 3, 2003, advising Roche Surety that all of Mr. David's outstanding liabilities had been discharged as of August 23, 2002, and placing Roche Surety on notice that it was required to return the funds held in the BUF account, pursuant to Section 648.29(3), Florida Statutes (2003). On March 7, 2003, Roche Surety filed a motion in the circuit court case requesting "an order allowing [Roche Surety] to hold funds as security or, in the alternative, for a pre- judgment writ of attachment." The motion asserted Roche Surety's belief that Mr. David was judgment proof and that the BUF account represented the only asset available to satisfy any potential judgment in Roche Surety's favor. Roche Surety requested a court order permitting it to transfer the BUF account funds into the registry of the court or some other secure account or, in the alternative, for a pre-judgment writ of attachment of the BUF account. Paragraph 4 of Roche Surety's motion states, in full: Defendant [Willie David] has satisfied his open bond liabilities and said bonds have been discharged. As such, pursuant to Section 648.29, Florida Statutes, defendant is entitled to a return of the BUF account and defendant has made demand for its return. Also on March 7, 2003, counsel for Roche Surety wrote a letter in response to the Department's letter of March 3, 2003, attaching a copy of Roche Surety's circuit court motion. In the letter, counsel asserted, "By transferring the BUF account pursuant to Court Order, Roche Surety would fully comply with Florida law, including Section 648.29, Florida Statutes." The Department made no effort to intervene in the circuit court case. On August 15, 2003, Circuit Judge James D. Arnold entered an order granting Roche Surety's motion, allowing Roche Surety "to hold the proceeds of defendant's BUF Account in the same account as it now exists until this matter is resolved or until further Order of Court." The judge's order noted that Mr. David did not object to entry of an order "based on the facts stated in plaintiff's Motion and the facts stated in defendant's response to the Motion." Among the facts recited in Roche Surety's motion and repeated in the judge's order, was the statement that Mr. David had satisfied his open bond liabilities and was entitled to return of the BUF account. At the hearing in the instant case, Roche Surety offered testimony and some documentation to demonstrate that Mr. David has, in fact, not satisfied all of his open bond liabilities. This evidence directly contradicted Roche Surety's representation to the circuit court that Mr. David had satisfied all open bond liabilities. In particular, Roche Surety offered testimony that Mr. David had taken cash collateral upon the issuance of several bonds and had failed to document or account for that collateral in such a way as to assure Roche Surety that it had been returned. At most, the evidence established that Roche Surety had suspicions regarding Mr. David's handling of collateral, but no actual proof that he had not returned collateral to any of his clients. Roche Surety also offered testimony that Mr. David has not returned, provided proof of discharge, resolved, or otherwise accounted for two outstanding powers of attorney. Evidence presented by the Department demonstrated that Mr. David had reported the two powers of attorney as lost and, pursuant to the Agency Agreement, had paid the premiums on them. No evidence was presented that the powers of attorney were ever used to write bail bonds. Roche Surety's initial representation to the circuit court that Mr. David had satisfied all open bond liabilities is supported by the facts, as well as by the equitable consideration that Roche Surety should not benefit by taking diametrically opposed positions before different tribunals. The evidence established that the amount of money held in the BUF account is $30,792.08, plus any interest that has accrued since December 2002, the date of the last statement presented at hearing.
Recommendation Based on all the evidence of record, it is RECOMMENDED that the Department of Financial Services enter a final order holding that the evidence is not clear and convincing that Roche Surety has willfully violated Section 648.29, Florida Statutes (2003), and that the First Amended Notice and Order to Show Cause be dismissed. DONE AND ENTERED this 28th day of January, 2004, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 2004. COPIES FURNISHED: Douglas S. Gregory, Esquire Preston & Cowan, LLP 100 North Tampa Street, Suite 1975 Tampa, Florida 33602 Richard J. Santurri, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333 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
The Issue The central issue in this case is whether the Respondent, Sandro L. De Andrade, committed the violations alleged in the administrative complaint; and, if so, what penalty should be imposed.
Findings Of Fact At all times material to the allegations of this case, Respondent has been licensed by the Department as a limited surety agent performing bail bond services. The Department is the state agency charged with the responsibility and authority of regulating limited surety agents such as Respondent. On or about March 18, 1995, Bernard Barrineau and Maggie Porto, on special assignment to investigate activities occurring at the Dade County courthouse, went to the east wing of the county jail to observe. While there they met an individual later known to them as Respondent who was assisting someone regarding bail bond services. Respondent asked Mr. Barrineau to go outside with him for a cigarette break. While on the grounds outside Respondent handed Mr. Barrineau a business card bearing the business name "Curly Bail Bonds" and the address as 1670 N.W. 17th Avenue, Miami, Florida 33125. When Ms. Porto came out and approached the two men, Respondent handed her an identical business card with the instruction "just in case." Neither Mr. Barrineau nor Ms. Porto asked Respondent for assistance. Neither did anything to encourage Respondent to think either sought bail bond assistance from him. Either Mr. Barrineau or Ms. Porto answered "yes" when asked if they were at jail to get someone out. The question may have been posed by the client Respondent was at the jail to assist. Respondent was called to the jail to assist someone whose parent was charged with DUI. Ms. Porto and that individual talked while Respondent filled out papers. Respondent alleged he did not hear the conversation. According to Respondent, he was only at the jail to assist the client whose parent was charged with DUI. The "client" did not testify in this matter. At all times material to this case, the business address on record with the Department for the Respondent was McCroys Store, 23 E. Flagler Street, Miami, Florida. Respondent received an appointment to execute bail bonds on behalf of Allegheny Mutual Casualty Company on August 1, 1994. Respondent had been conducting bail bond business for seven months when the incident complained of occurred.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Insurance and Treasurer enter a final order suspending Respondent's limited surety agent license for a period of six months. DONE AND ENTERED this 5th day of March, 1996, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH, 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 5th day of March, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3016 Rulings on the proposed findings of fact submitted by Petitioner: 1. Paragraphs 1 through 4 are accepted. Rulings on the proposed findings of fact submitted by the Respondent: 1. None submitted. COPIES FURNISHED: Bill Nelson State Treasurer and Insurance Commissioner Department of Insurance The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Dan Sumner Acting General Counsel Department of Insurance The Capitol, PL-11 Tallahassee, Florida 32399-0300 Dickson E. Kesler, Esquire Division of Agent and Agency Services 8070 Northwest 53rd Street Suite 103 Miami, Florida 33166 Larry E. Rogers, Esquire 2121 Ponce de Leon Boulevard Suite 240 Coral Gables, Florida 33134 Sandro Lorenz De Andrade 1670 Northwest 17th Avenue Miami, Florida 33125
The Issue The issue for determination in this proceeding is whether Petitioner's application for licensure as a real estate salesman should be granted.
Findings Of Fact Petitioner filed an application for licensure as a real estate salesman on or about January 22, 1991. Respondent denied Petitioner's application on or about April 25, 1991. The sole basis for Respondent's denial of Petitioner's application was Petitioner's status as a defendant in multiple civil lawsuits filed in the United States District Court for the Southern District of Florida. Petitioner voluntarily stated in answer to Question 8(b) on his application that he was a defendant in those suits. The lawsuits at issue arose from the failure of Centrust Savings Bank. Petitioner was President of Centrust Savings from sometime in February, 1988, to sometime in July, 1989. Petitioner served on the Board of Directors of Centrust from sometime in August, 1987, to sometime in July, 1989. The lawsuits allege that Petitioner and other officers and directors of Centrust breached their fiduciary duties to the corporation and violated federal securities laws. The allegations against Petitioner in the law suits at issue are nothing more than allegations in civil suits. Petitioner has motions to dismiss in each law suit. There has been no judicial determination or finding of wrongdoing by Petitioner in any of the law suits in which Petitioner is a named defendant. The uncontroverted evidenced established that Petitioner is an honest, truthful, and trustworthy individual. Petitioner is of good moral character and has an impeccable reputation for honesty and fair dealing in the business community.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order granting Petitioner's application for licensure as a real estate salesman. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 22nd day of January 1992. DANIEL MANRY 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 23rd day of January 1992.
The Issue Whether the Respondent's Florida real estate license should be disciplined based upon the charge that the Respondent is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust in a business transaction in violation of Subsection 475.25(1)(b), Florida Statutes.
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility to Administrative Complaints pursuant to the laws of he State of Florida, in particular, Section 20.30, Florida Statues, Chapters 120, 455, and 475, Florida Statutes and the rules promulgated pursuant thereto. Respondent Doris Duke is now and was at all material hereto a licensed real estate salesman in the State of Florida having been issued license number 0441054 in accordance with Chapter 475, Florida Statutes. On June 13, 1989, the Respondent solicited and obtained a listing for the sale of an adult care center from seller Shirley Holland. The listing price was $300,000. (Petitioner's Exhibit 1). The property had been on the market for sometime and seller was anxious to sell. S. L. Patterson and Anne M. Reese had been interested for sometime. On January 19, 1990, the Respondent solicited and obtained an offer to purchase the adult care center from S. L. Patterson and Anne M. Reese, buyers, in the amount of $225.000. The contract was contingent upon financing. The Respondent presented the offer to the seller on or about January 20, 1990. Seller would have received approximately $25,000 and a second mortgage for $65,000. (Petitioner's Exhibit 2). Subsequently the buyers were unable to obtain financing, and the contract was void at this point. In an effort to consummate the sale, Respondent arranged financing for the buyers. The terms of this transaction as reflect in the closing documents, FREC 4, showed a sales price of $125,00, with a first mortgage of $100,000, a second mortgage of $46,250 and a third mortgage to seller of $84,500. However, this financing required an added $25,000 which came from the $25,000 originally to the seller. The Respondent advised the seller of the changes the day before the closing; however, the changes to the contract were not reflected in writing either in the contract or in an addendum. Instead the changes were reflected in the closing documents (FREC 4). Instead of receiving about $2,000 the seller had to pay $68.08 at closing. The Respondent and Respondent's employer Century 21 Harris Real Estate & Associates, Inc. profited in the amount of a $22,500 commission, an amount which they earned under the listing contract. Subsequently, the purchasers, who were black and operated an adult congregate living facility, were the targets of racially motivated vandalism and hate crimes. As result they were unable to make a financial success on the venture. The buyers defaulted on their mortgage payments, and foreclosure was initiated by one of the principal mortgagees.
Recommendation RECOMMENDED that charges against the Respondent be dismissed. DONE AND ENTERED this 30th day of October, 1991, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1991. APPENDIX CASE NO. 91-4554 The Petitioner's Proposed Recommended Order was read and considered. The following is a list of the findings which were adopted and which were rejected and why. Paragraphs 1, 2, 4, 5, 7, 8, 9, 10, 11, 12 and 13 were adopted. Paragraph 3 was rejected as irrelevant. Paragraph 6 was rejected as irrelevant and contrary to the best and most credible evidence. COPIES FURNISHED: Steven W. Johnson, Esquire Senior Attorney Florida Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Doris Duke 6676 Cedar Point Road Jacksonville, Florida 32226 Darlene F. Keller Division Director 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact At all times relevant hereto Frank LaRocca, Respondent, was the holder of Real Estate Broker License Nos. 0050488, 0236407 and 0170796 issued by the Florida Real Estate Commission. On or about July 12, 1989, the Respondent, in the United States District Court, Middle District of Florida, upon a verdict of guilty rendered by a jury, was found guilty of five counts of conspiracy to commit bank fraud, a felony. On or about July 12, 1989, Respondent was sentenced to imprisonment for four years. On or about August 1, 1989, the United States District Court Judge ordered a stay of the judgment against Respondent pending completion of Respondent's appeal. Frank LaRocca was a vice-president of the Central Bank in Tampa, Florida, when he retired in May 1984 after working at this bank for 31 years. During this period, he enjoyed a good reputation in the community. Upon his retirement from the bank, he became an active real estate broker principally investing in real estate. The transactions which formed the bases for his conviction in federal court involved bank loans on condominiums he and three other partners purchased. These bank loans had all been repaid at the time of Respondent's trial but one, which had been refinanced by the bank.
Recommendation Taking all these factors into consideration, it is recommended that the licenses of Frank LaRocca as a real estate broker be revoked, but the revocation be stayed pending completion of his appeal to the court of appeals or two years whichever first occurs. At that time, depending upon the action of the court of appeals, his license be revoked or these proceedings dismissed. ENTERED this 7th day of February, 1990, in Tallahassee, Florida. K. N. AYERS 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 February, 1990. COPIES FURNISHED: Steven W. Johnson, Esquire Kenneth E. Easley Division of Real Estate General Counsel 400 W. Robinson Street Department of Professional Orlando, FL 32801-1772 Regulation 1940 N. Monroe Street Frank LaRocca Suite 60 Tallahassee, Florida 32399-0792 4814 River Boulevard Tampa, FL 33603 Darlene F. Keller Division Director Division of Real Estate 400 W. Robinson Street Post Office Box 1900 Orlando, FL 32801
The Issue The issue in this case is whether disciplinary action should be taken against Respondent's insurance licenses based upon the alleged violations of Chapter 648, Florida Statutes, as set forth in the Administrative Complaint.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: At all times pertinent to this proceeding, Respondent was licensed in Florida as a limited surety agent (bail bondsman). On September 15, 1989, the Department filed an Administrative Complaint against Respondent seeking disciplinary action against Respondent's license as a result of his alleged employment of a convicted felon identified as Ira Stern. That case, Department of Insurance Case No. 89-L-650RVE, was settled pursuant to a Consent Order entered on January 2, 1990, pursuant to which Respondent was fined $500 and placed on probation for one year. Respondent also agreed not to employ any individual disqualified by Section 648.44(7)(a) to work at his bail bond agency and agreed that no unlicensed person employed by his bail bond agency would be permitted to engage in any activity for which a license was required. The Consent Order incorporated a Settlement Stipulation which specifically provided that the settlement was entered to avoid the costs and uncertainty of litigation and did not constitute an admission by Respondent of any violation of the insurance code. At the time of the hearing in this case, Respondent's license was apparently under suspension pursuant to an Emergency Order of Suspension issued by the Department in Department Case No. 93-ESO-005JDM. The Emergency Order of Suspension is not referenced in the Administrative Complaint and no copy of that Emergency Order has been provided. The basis for entry of that Emergency Order was not established in this case and the parties stipulated that the Emergency Order was not a part of this proceeding. For at least two years prior to the hearing in this case, Respondent was appointed to write bail bonds by American Bankers Insurance Group ("American Bankers"). Respondent previously operated a company known as Barry's Bail Bonds. Apparently as a result of some unsatisfied judgements, Respondent did not issue any bail bonds in his name or in the name of Barry's Bail Bonds during the first 6 months of 1992. At the time of the transactions alleged in the Administrative Complaint, Respondent was married to Linda Ratner. Linda Ratner was a qualified and appointed agent of American Bankers. She was also the principle of Linda's Bail Bonds, Inc. The evidence established that Respondent was a primary contact for American Bankers on behalf of Linda's Bail Bonds. It appears that Linda's Bail Bonds and Barry's Bail Bonds were operating out of the same office in Fort Lauderdale for some periods during 1991 and 1992. Other businesses were also apparently operated out of this office. The evidence established that an individual by the name of Ira Stern was involved in the operations of that office during late 1991 and the first nine months of 1992. The evidence was inconclusive as to who actually employed Ira Stern. The evidence did establish that Respondent and Ira Stern primarily handled the day to day operations of the office, including the bail bond business transacted out of the office. No evidence was presented that Ira Stern was a convicted felon and/or that he was the same individual identified in the prior Administrative Complaint filed against Respondent. Respondent solicited and issued bail bonds through Linda's Bail Bonds on several occasions from January 1992 through July 1992. The evidence established that Linda Ratner signed several American Banker's power of attorney forms in blank. As discussed in more detail below, Respondent utilized several of these forms on behalf of clients during the time period in question. Respondent's authority to write bonds for American Bankers was terminated by American Bankers on or about July 24, 1992. At that same time, the authority of Linda Ratner and Linda's Bail Bonds, Inc. was also terminated. At some point after this termination, Respondent turned over to American Bankers certain tangible collateral that had been held in a safe deposit box. This collateral was turned over sometime between July and September of 1992. The exact date was not established. On September 11, 1992, employees of American Bankers accompanied by a Department investigator, went to Respondent's office and collected all of the files and tangible collateral in the office relating to the outstanding bonds written by Respondent and/or Linda's Bail Bonds for American Bankers. No cash collateral was recovered in connection with those files. Upon arriving at the office, representatives of American Bankers and the Department investigator dealt exclusively with a man who identified himself as Ira Stern and who claimed to be the office manager. As noted above, Respondent was previously disciplined by Petitioner for employing an Ira Stern, who was allegedly a convicted felon. No direct evidence was presented to establish the identity of the person in the office on September 11, 1992 nor was there any evidence that the person who identified himself as Ira Stern was a convicted felon and/or the same individual whom Respondent was accused of improperly employing in the previous disciplinary case. Moreover, no conclusive evidence was presented to establish who actually employed the individual in question. On or about July 9, 1992, Anna Agnew and her husband called Linda's Bail Bonds to obtain a bond to get their nephew out of jail. Respondent responded to the call and told the Agnews that he would issue a bond in return for $100 cash and the delivery of a $1,000 check which was to serve as collateral for the bond. Respondent told the Agnews that he would hold the check as collateral without cashing it until their nephew's case was resolved. To obtain the release of the Agnews' nephew, Respondent submitted American Bankers power of attorney number 0334165 which had been signed in blank by Linda Ratner and filled out by Respondent. The amount of the bond was $1,000. Shortly after the Agnews' nephew was bonded out of jail, Mrs. Agnew discovered that the check they gave to Respondent had been cashed. After the Agnews' many attempts to contact Respondent regarding the check were unsuccessful, Mrs. Agnew wrote to the Department complaining of the situation. On August 17, 1992, the Agnews' nephew's case was resolved. Respondent failed to return the Agnews' collateral within the time provided by law. In an attempt to retrieve their collateral after their nephew's case was completed, Mrs. Agnew testified that her husband unsuccessfully attempted to contact Respondent at his office on a least one occasion. At the time of Mr. Agnew's visit, Respondent's office was allegedly not open. No conclusive evidence was presented as to who cashed the Agnews' check or what happened to the proceeds. On or about January 8, 1993, the managing general agent for American Bankers returned $1,000 to the Agnews in repayment of the collateral. On or about June 21, 1992, American Bankers' power of attorney form number 0333494 was submitted to the Broward County Circuit Court to obtain the release from jail of Wentworth McNorton. The amount of the bond was $1,000. The power of attorney form had been signed in blank by Linda Ratner and was filled in by Respondent. Mr. McNorton's mother, Linnette, arranged for the issuance of the bond by paying Respondent $100 in cash. In addition, she gave Respondent a diamond ring appraised in excess of $10,000 as collateral for the bond. Linnette McNorton asked Respondent to hold the ring as collateral until she could arrange to substitute some other collateral. Liability on Mr. McNorton's bond was discharged by the court on July 14, 1992. Respondent did not return Mrs. McNorton's ring within twenty-one days of discharge of liability on the bond as required by law. Linnette McNorton continued to call Respondent for several months after her collateral was due to be returned. At no time during this period did Respondent return Mrs. McNorton's calls or inform her of the whereabouts of her ring. Approximately five months after Wentworth McNorton was released, Linnette McNorton and her husband went to Respondent's home and confronted him. Respondent advised the McNortons that he did not have the ring and that it had been turned over to the insurance company. Sometime prior to September of 1992, employees of American Bankers took possession of Mrs. McNorton's ring along with other tangible collateral held by Respondent in a safe deposit box. As noted in paragraph 9 above, the evidence did not establish the exact date American Bankers took control of the collateral in the safe deposit box. At the time, Mrs. McNorton's ring was marked improperly and the staff of American Bankers was unable to identify which file it belonged with. Mrs. McNorton's ring was finally returned to her on April 15, 1993 by American Bankers after they had determined that the mislabelled and unidentified ring in their possession was Mrs. McNorton's. On or about March 13, 1992, American Bankers power of attorney numbers 0295546, 0295547, and 0295548 were executed for the issuance of three bail bonds on behalf of Kevin Krohn, the principle. The total face value of these three bonds was $3,000. The powers of attorney had been signed in blank by Linda Ratner. The other handwriting on the powers of attorney appears to be Respondent's, however, the circumstances surrounding the execution and delivery of these powers was not established. The records obtained from Respondent's office on September 11, 1992 indicate that Jeanette Krohn, the indemnitor, paid $300 in premiums for the three bail bonds described in paragraph 24 and also put up $3,000 in cash collateral. The handwriting on the collateral receipts appears to be Ira Stern's however, the circumstances surrounding the execution of these documents was not established. The last of the bonds described in paragraph 24 was discharged by the court on April 22, 1992. In July of 1992, the Department received a complaint that Jeanette Krohn was unable to obtain the return of her $3,000 cash collateral. The Department notified American Bankers of the complaint and a representative of the insurance company contacted Respondent who advised that the collateral had been repaid on June 22, 1992 by check no. 1021 drawn on the trust account of Linda's Bail Bonds. June 22, 1992 was well beyond the twenty-one days provided by law for return of the collateral. The check which Respondent told the insurance company was issued to return Ms. Krohn's collateral was purportedly signed by Linda Ratner. The check was dishonored by the bank. The signature of Linda Ratner on the check given to Ms. Krohn was forged. The evidence was insufficient to establish who forged the signature. American Bankers paid Jeanette Krohn $3,000 on or about January 8, 1993 as repayment for the cash collateral placed for the bonds. In March of 1992, M. T. Heller contacted Respondent to procure a bail bond. Respondent arranged for the issuance of the bond. When the bond was discharged, Mr. Heller returned to Respondent's office, where he dealt with Ira Stern in attempting to obtain return of the collateral.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order finding Respondent guilty of the violations alleged in Counts I, II, and III of the Administrative Complaint and dismissing Counts IV and V. As a penalty for the violations, an administrative fine of $1,500 should be imposed and the license issued to the Respondent, Barry Seth Ratner, under the purview of the Florida Department of Insurance should be suspended for a period of two years, followed by a two year probationary period. DONE and ENTERED this 4th day of October, 1994, at Tallahassee, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 1994. APPENDIX TO RECOMMENDED ORDER Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties. Petitioner's proposed findings of fact Subordinate to Findings of Fact 3. Subordinate to Findings of Fact 4 and 9. Subordinate to Findings of Fact 5. Subordinate to Findings of Fact 24. Subordinate to Findings of Fact 25. Adopted in substance in Findings of Fact 26. Subordinate to Findings of Fact 27. Subordinate to Findings of Fact 28. Subordinate to Findings of Fact 29. Subordinate to Findings of Fact 30. Subordinate to Findings of Fact 27 and 28. Subordinate to Findings of Fact 17. Adopted in substance in Findings of Fact 18. Adopted in substance in Findings of Fact 19. Adopted in substance in Findings of Fact 20. Subordinate to Findings of Fact 22. Subordinate to Findings of Fact 21. Adopted in substance in Findings of Fact 23. Subordinate to Findings of Fact 20 and 22. Adopted in substance in Findings of Fact 11. Adopted in substance in Findings of Fact 11. Adopted in substance in Findings of Fact 13. Adopted in substance in Findings of Fact 13. Subordinate to Findings of Fact 16. Adopted in substance in Findings of Fact 14. Adopted in substance in Findings of Fact 31. Subordinate to Findings of Fact 32. Adopted in substance in Findings of Fact 10. Subordinate to Findings of Fact 33. Adopted in substance in Findings of Fact 2. Subordinate to Findings of Fact 34. Respondent's proposed findings of fact Adopted in substance in Findings of Fact 1 and 3. The first sentence is adopted in substance in Findings of Fact 1. The second sentence is adopted in substance in Findings of Fact 4. The third sentence is adopted in substance in Findings of Fact 9. The remainder is rejected as unnecessary. Adopted in substance in Findings of Fact 6. Subordinate to Findings of Fact 11 and 15. Subordinate to Findings of Fact 17-23. Subordinate to Findings of Fact 24-30. Subordinate to Findings of Fact 14. Subordinate to Findings of Fact 2 and 31-34. Addressed in the Preliminary Statement. COPIES FURNISHED: Joseph D. Mandt, Esquire Division of Legal Services 612 Larson Building Tallahassee, Florida 32399-0333 Joseph R. Fritz, Esquire 4204 North Nebraska Avenue Tampa, Florida 33603 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil, Esquire General Counsel Department of Insurance The Capitol, PL-11 Tallahassee, Florida 32399-0300
The Issue Whether respondent should grant petitioner's application for licensure as a real estate salesman?
Findings Of Fact At the time and place set for hearing petitioner failed to appear in person or otherwise, and proved no facts in support of his application.
Recommendation It is, accordingly, RECOMMENDED: That respondent deny petitioner's application for license as a real estate salesman. DONE and ENTERED this 12th day of July, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 1990. COPIES FURNISHED: Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801 Kenneth Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Manuel E. Oliver, Esquire Assistant Attorney General Office of the Attorney General 400 West Robinson Street Orlando, FL 32801 Frank J. Norris 1038 Arco Road, #4 Jacksonville, FL 32211
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the request of petitioners to participate in the distribution of mortgage broker guaranty funds pertaining to First Fidelity Financial Services, Inc. be granted, and that they be paid their pro-rata portion of the fund in accordance with Section 494.044, Florida Statutes. It is further RECOMMENDED that the request of intervenors in Case No. 85- 3305 to be included in the above group of claimants for fund distribution purposes be denied unless they furnish the Division evidence of compliance with Subsections 494.043(1); (4) and (5), Florida Statutes (1985), by June 18, 1986. DONE and ORDERED this 17th day of February, 1986, in Tallahassee; Florida. DONALD R. ALEXANDER, 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 17th day of February, 1986.
The Issue The issue is whether the Office of Financial Regulation should approve Petitioner’s application for licensure as a mortgage broker.
Findings Of Fact Petitioner is 42 years old. He served 10 years in the United States Air Force and is a veteran of the first Gulf War. Petitioner is a partner in a small business that offers executive recruiting services, Internet-based real estate advertising services, and mortgage brokerage services. Petitioner’s role in the business is “more on the IT side” and involves “a lot of phone work” as well as “the website, data base management [and] things like that.” On October 14, 2003, Petitioner submitted to the Office an application for licensure as a mortgage broker. Question No. 5 on the application asks whether the applicant has “pleaded nolo contendere, been convicted, or found guilty, regardless of adjudication, of a crime involving fraud, dishonest dealing, or any other act of moral turpitude.” Petitioner answered “no” to Question No. 5. Petitioner’s negative answer to Question No. 5 was based upon his understanding that the question was referring only to financial crimes, such as stealing money or extortion, and crimes involving drugs. Petitioner was not attempting to conceal his criminal history from the Office through his negative answer to Question No. 5. Indeed, at the time he submitted the application, Petitioner knew that the Office would conduct a background screening and learn of his criminal history because he was required to, and did, submit a set of fingerprints with his application. Petitioner’s understanding regarding the scope of Question No. 5 was not reasonable in light of the following definition of “moral turpitude,” which appeared immediately below the question on the application form: “Moral turpitude involves duties owed by persons to society as well as acts contrary to justice, honesty, principle or good morals.” This includes, but is not limited to theft, extortion, use of mail to obtain property under false pretenses, tax evasion, and the sale of (or intent to sell) controlled substances. Petitioner did not contact the Office prior to submitting his application to get clarification regarding the scope of Question No. 5, nor did he discuss the issue with legal counsel. Petitioner’s negative answer to Question No. 5 was a material misstatement of his criminal history. On October 21, 1997, Petitioner pled nolo contendere and was adjudicated guilty of one count of lewd and lascivious conduct for “handling and fondling a child under the age of sixteen years” (a second degree felony), one count of false imprisonment (a third degree felony), one count of aggravated assault (a third degree felony), and three counts of misdemeanor battery. On that same date, Petitioner was sentenced to two years of community control followed by eight years of probation for the lewd and lascivious conduct count, two years of community control followed by three years of probation for the false imprisonment and aggravated battery counts, and one year of community control for the battery counts. The sentences ran concurrently. Petitioner is still on probation for the lewd and lascivious conduct count and, as a result of his conviction on that count, he is a registered sex offender. Petitioner’s probation for the lewd and lascivious conduct count runs through October 2007. The Office first learned of Petitioner’s criminal history after it received the results of the background screening conducted by the Florida Department of Law Enforcement based upon the fingerprints submitted by Petitioner with his application. Thereafter, consistent with its standard practice, the Office requested an explanation from Petitioner regarding his criminal history. In May 2004, Petitioner provided a “Statement of Facts” to the Office in which he described the circumstances of his criminal offenses as follows: In October on a Saturday night [I] went into my stepdaughter bedroom and touch [sic] her private areas. I still think about standing at the door and knowing what I was about to do was wrong but I did it anyway. [My wife] and I were having problems and that was the last straw. I had been sleeping in our room and the tension was very high. [My wife] confronted me about what I had done and I of course denied it. The argument escalated and I lost control of my temper and threatened her if she did not shut up. I went to the bedroom and she followed me this is when I struck her the first time and told her to leave me alone. [My stepson] tried to defend his mother and I spanked him and grab [sic] him by his arms and carries [sic] him to his room. Likewise with [my stepdaughter]. I grabbed the keys to the car to leave and [my wife] told me if I took the car she would call the police and tell them that I had stolen it. I then threw the keys at her and grabbed her and threw her to the ground and told her that she would not want to get the police involved. She picked up her keys and tried to get her and the children out of the house and I would not let them leave. She pleaded with me to calm down and that I take care of the problems that I had created. I brought up the many things that she had done that had led up to that night. She told the kids to go back to their room and prepare for school the next day and that everything would be okay. I told her to go to our room and not say another word and she complied with my request. I eventually calmed down and we went to bed. The next day she took me to work as was the normal routine. Later on that day I was arrested and taken to jail. Petitioner expressed remorse for these offenses, both in the Statement of Facts and in his testimony at the final hearing. His remorse appeared to be sincere. Petitioner’s offenses were not acts of youthful indiscretion. He was 33 years old at the time and, as reflected in the Statement of Facts and as reaffirmed in his testimony at the hearing, Petitioner fully understood at the time that what he was doing was wrong. Petitioner’s offenses were extremely serious and are morally and socially reprehensible. Petitioner's stepdaughter, whose “private areas” he touched, was only 11 years old at the time, and his stepson, who he spanked and grabbed for trying to defend his mother from Petitioner, was only nine years old at the time. As Petitioner acknowledged in his testimony at the final hearing (Tr. 108, 119), the relationship between a stepfather and stepdaughter involves a special amount of trust and sexual contact between an adult and an 11-year-old child -- which is the essence of his lewd and lascivious conduct offense -- is contrary to good morals. Petitioner’s original Order of Probation, entered on October 21, 1997, required him to participate in and successfully complete domestic violence counseling and sex offender counseling. Petitioner testified that he successfully completed those counseling programs. Petitioner has not undertaken any volunteer work or other community service since his offenses. He testified that his status as a sex offender on probation makes it difficult for him to do so. Petitioner remained out of trouble with the law from the time that he was placed on probation in October 1997 through October 2005, when he was arrested for an alleged probation violation. A circuit court proceeding involving the alleged probation violation was still pending at the time of the final hearing. The alleged probation violation was based upon an affidavit of Desiree Washington, who was Petitioner’s probation officer in October 2005. The affidavit stated in pertinent part: [O]n 10-20-04, [Petitioner] was instructed not to have any contact with any child under the age of sixteen unless approved by this officer or the sentencing court and [Petitioner] did fail to carry out this instruction by having contact with four of Heather Fisher [sic] children, as told to this officer on 10-4-05 by Sherri [sic] Connelly of DCF. Petitioner testified that he was never given the instructions referenced in Ms. Washington’s affidavit, and it is questionable whether those oral instructions, if given, are consistent with the written conditions of Petitioner’s probation imposed by the court.1 Those issues are being litigated as part of Petitioner’s probation violation proceeding. The information that Ms. Washington was “told . . . by Sherri [sic] Connelly of DCF” is summarized in a letter from Ms. Connelly to Ms. Washington dated October 4, 2005, which states in pertinent part: In April 2005, I advised [Ms. Fisher] that the children were not to be unsupervised with [Petitioner]. At that time they did admit that he did spend time with the children but always supervised by the mother who knows of his offense. On 9/27/05 I received a new report on the children. All four [sic] the children stated that [Petitioner] does watch them sometimes when their mother goes to work. The boys all reported that he is mean and had hit them with his hand, belt, and paddle. [D.F.] and [J.F.] also reported that he slapped and slammed [J.F.]’s head in to the ground. [J.F.] reported that [Petitioner] is at their house every night when they go to bed but not in the morning. Those allegations were based upon Ms. Connelly’s interviews with Ms. Fisher’s children, who are ages 10, seven, five, and four. Petitioner disputes the allegations in the letter, except for the first and second sentences. Petitioner’s testified that he has never had unsupervised contact with Ms. Fisher’s children and that he has never disciplined or struck the children. That testimony was corroborated by Ms. Fisher’s testimony, and there is no credible evidence to the contrary in the record because the children did not testify at the final hearing and Ms. Connelly’s testimony regarding their statements was uncorroborated hearsay.2 The allegations in Ms. Connelly’s letter, which resulted in Ms. Fisher’s children being removed from her custody, are being litigated in circuit court as part of a dependency proceeding involving Ms. Fisher, her children, and the Department of Children and Families. The allegations in Ms. Connelly’s letter regarding the alleged abuse of Ms. Fisher’s children by Petitioner are not material to the pending probation violation proceeding because Ms. Washington unequivocally testified (Tr. 180-81, 190) that Petitioner was “violated” solely for having contact with the children, and not for the alleged abuse. Petitioner had not been charged with child abuse or any other crime based upon the allegations in Ms. Connelly’s letter as of the date of the final hearing, and it is unknown whether such charges are forthcoming from the local State Attorney. There is no credible evidence that Petitioner’s arrest for the probation violation and/or the removal of Ms. Fisher’s children were in any way connected with the Office’s review of Petitioner’s license application. There was not, as Petitioner implied in his testimony at the hearing, a conspiracy between the Office, his probation officer, and/or the Department of Children and Families against him and/or Ms. Fisher. Petitioner has accepted full responsibility for his criminal offenses, and he appears to be sincere in his efforts to turn his life around. By all accounts, he has been forthcoming with his friends and employers regarding his criminal history, and he goes out of his way to comply with the conditions of his probation. Petitioner's friends testified that they would trust him with their money.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Office of Financial Regulation issue a final order denying Petitioner’s application for a mortgage broker’s license. DONE AND ENTERED this 16th day of March, 2006, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 16th day of March, 2006.
Recommendation Based on the foregoing Stipulated Facts, Supplemental Findings Of Fact and Conclusions Of Law, it is recommended that Respondent, Department of Banking and Finance, enter a final order that the following disbursements from the Mortgage Broker Guaranty Fund be made Payee on the claims against Polk Investments, Inc.: Amount Amendolaro $ 2,661,22 Victorias 10,000.00 Fournier, Janice 10,000.00 Wilson 1,334.71 Ledfords 6,573.09 Fournier, Robert 10,000.00 Murphy 4,715.49 Murphy as Trustee 4,715.49 Total $50,000.00 RECOMMENDED this 13th day of November, 1986 in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSON, 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 13th day of November, 1986. COPIES FURNISHED: Paul C. Stadler, Jr., Esquire Assistant General Counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32301 Dennis P. Johnson, Esquire SHELNUT AND JOHNSON, P.A. Suite One Belvedere Professional Center 1525 South Florida Avenue Lakeland, Florida 33806-2436 Cristy F. Harris, Esquire HARRIS, MIDYETTE & CLEMENTS, P.A. Post Office Box 2451 Lakeland, Florida 33806-2451 Honorable Gerald Lewis Comptroller, State of Florida The Capitol Tallahassee, Florida 32301 Charles Stutts General Counsel Plaza Level The Capitol Tallahassee, Florida 32301
