The Issue The issue is whether Respondent is guilty of unlawfully employing a felon in the conduct of the bail bond business, in violation of Sections 648.44(8)(b) and 648.45(3), Florida Statutes, and Rule 4-221.001, Florida Administrative Code. If so, an additional issue is what penalty should be imposed.
Findings Of Fact At all material times, Respondent has been licensed as a limited surety agent, and he has been the chief executive officer of Big John’s Bail Bonds, Inc., which is located in Tampa (Big John’s). Donald Raymond Davis has known Respondent for ten years. From time to time, Mr. Davis has done bail bond pick- ups in which he, serving as a bounty hunter, locates and apprehends a person whose failure to appear in court has resulted in a bond forfeiture. Mr. Davis is a felon. His last conviction was in 1989 for a second-degree felony of threatening to discharge a destructive device, in violation of Section 790.162, Florida Statutes. The court sentenced him to 18 months in prison followed by one year of probation. Mr. Davis has been convicted of one or more other felonies. At all material times, Respondent was aware that Mr. Davis was a felon and was not licensed by Petitioner to engage in the bail bond business. In December 1999, Respondent asked Mr. Davis to locate and cause the apprehension of Hector Lopez, who had failed to appear in court concerning a drug charge. Due to his failure to appear, the court had ordered the forfeiture of a bond that Respondent had written. Upon the apprehension of Mr. Lopez, Respondent would pay Mr. Davis a ten percent commission (presumably calculated with reference to the bail amount or bail premium), less certain debts that Mr. Davis owed Respondent. Respondent also agreed to pay certain expenses of Mr. Davis in pursuing Mr. Lopez. After being retained, Mr. Davis examined the file, but found nothing that would help him find Mr. Lopez. Mr. Davis checked prior bookings and found a couple of co- defendants. By this means, Mr. Davis tracked down Mr. Lopez’s girlfriend, who resided in the Tampa Bay area. Visiting the girlfriend and claiming to be a bail bondsman, Mr. Davis learned that Mr. Lopez was enroute to the New Jersey/New York area. Mr. Davis departed for Fayetteville, North Carolina, where he contacted the girlfriend’s sister and mother. There, he learned that Mr. Lopez had been in Fayetteville, but had already left town on his way to New Jersey. Mr. Davis arrived in New Jersey near Christmas. He investigated the case until Christmas Eve, when he drove back to Florida. However, on January 2, 2000, Mr. Davis drove back to Patterson, New Jersey, to continue his search for Mr. Lopez. Arriving in northern New Jersey, Mr. Davis rented a motel room, from which he resumed his search for Mr. Lopez. By this time, Mr. Davis was out of money, so Respondent used his credit card to pay for the motel room and paid for other expenses, including an informant. Never more than one day behind Mr. Lopez, Mr. Davis beat the street in search of the bond principal. About to apprehend him in New Jersey, Mr. Davis retained the assistance of a New Jersey bondsman who provided four men, with whom Mr. Davis rushed Mr. Lopez’s New Jersey apartment--only to find it recently vacated. Searching the apartment, Mr. Davis found a telephone number for Mr. Lopez’s pager, and, by this means, located Mr. Lopez in the Bronx, New York. At 1:30 a.m. on January 19, 2000, Mr. Davis and now eight New Jersey men apprehended Mr. Lopez and took him to the Elmhurst Park Police Department in New Jersey. Mr. Davis had originally intended to bring Mr. Lopez back to Florida, but did not want to do so for fear that he would get into trouble for engaging in the bail bond business in Florida without a license. While communicating with the New Jersey police, Mr. Davis produced a false identification that he had purchased in North Carolina. After the New Jersey police confirmed the pending charges against Mr. Lopez and agreed to keep him in custody, Mr. Davis negotiated with the New Jersey bail bondsman a price of $2000 for the assistance that he had provided in the apprehension of Mr. Lopez. Respondent transferred this money to New Jersey for payment to the New Jersey bail bondsman. Mr. Lopez was eventually returned to Florida. Upon his return to Florida, Mr. Davis received from Respondent the sum of about $700 for his services in finding and apprehending Mr. Lopez. Respondent paid this sum even though, after the payment, Mr. Davis still owed Respondent some money. At all material times, Respondent employed Mr. Davis as an independent contractor, not an employee. All major factors support this finding. Mr. Davis controlled the means by which he performed the search and apprehension of Mr. Lopez. Payment of Mr. Davis was contingent upon the apprehension of Mr. Lopez. Respondent did not take withholding taxes or social security contributions out of any payments to Mr. Davis. At no time was Mr. Davis ever an employee, officer, director, or shareholder--directly or indirectly--of Big John’s. Mr. Davis was arrested in 2000 for the unlawful practice of the bail bond business. He pleaded guilty to this charge. The court sentenced him to 22 months in prison, but suspended the sentence, subject to successful completion of five years of probation.
Recommendation It is RECOMMENDED that the Department of Insurance dismiss the First Amended Administrative Complaint against Respondent. DONE AND ENTERED this 23rd day of April, 2001, in Tallahassee, Leon County, Florida. ___________________________________ ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of April, 2001. COPIES FURNISHED: Honorable Tom Gallagher State Treasurer/Insurance Commissioner Department of Insurance The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307 Anoush A. Arakalian Division of Legal Services Department of Insurance 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Joseph R. Fritz Joseph R. Fritz, P.A. 4204 North Nebraska Avenue Tampa, Florida 33602
The Issue The issue 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 Did Respondent plead nolo contendere to aggravated stalking, a felony, in violation of Section 784.048(4), Florida Statutes, so as to be subject to discipline by the Department of Insurance pursuant to Sections 648.45(1); 648.45(2)(a), (e), (j), (k); 648.45(3)(a), (c), and/or (e), and if so, what penalties may be imposed, pursuant to Sections 648.45, 648.46, 648.49, 648.50, , and/or 648.53, Florida Statutes?
Findings Of Fact At all times material, Respondent was licensed in the State of Florida by Petitioner Agency as a limited surety agent, License No. 265986204. At the time of formal hearing, Respondent's license was suspended, pursuant to a Second Amended Emergency Order of Suspension entered by the Agency on March 11, 1997. Certified Court documents reveal that on February 10, 1997, Lesley Charles Corbin entered a negotiated plea of nolo contendere to the charge of "aggravated stalking," in the Circuit Court of the Fourth Circuit, in and for Duval County, Florida, in Case No. 96-9760-CF. The particulars of the charge pled to allege that Respondent "did knowingly, willfully, maliciously, and repeatedly follow or harass . . . [name] . . . after an injunction for protection against repeat violence pursuant to Section 784.046, to-wit: 92-1772-DV, contrary to the provisions of Section 784.048(4), Florida Statutes." The Court documents also reveal repetitive previous similar or related criminal charges against Respondent. Section 784.048(4), Florida Statutes, constitutes a felony of the third degree, punishable as provided in Sections 775.082, 775.083, or 775.084, Florida Statutes, (Supp. 1996). Under the plea bargain, Count I, alleging aggravated assault pursuant to Section 784.021, Florida Statutes, was dropped, and adjudication was withheld on Respondent's nolo contendere plea to Count II. Respondent was required to enter into nine months of community control followed by one year probation with special conditions to protect the person he had stalked. Section 775.082(3)(d), Florida Statutes, provides that third degree felonies may be punished by up to 5 years' imprisonment. Section 775.083(1)(c) provides for third degree felonies to be punished by up to a $5,000 fine. Section 775.084(1)(c)1.b. applies to habitual felony offenders/stalkers and is not relevant here. The foregoing establishes prima facie facts in evidence, which facts Respondent did not overcome. Ms. Sarah Burt is the Bail Bond Coordinator for Petitioner Department of Insurance. In that capacity, she is responsible for administrative coordination of all bail bond related matters for the Agency. She is knowledgeable of the practices and procedures of the Agency regarding bail bondsmen and limited surety agency licensure and discipline, pursuant to Chapter 648, Florida Statutes. Based on her education, training, experience, and actual knowledge, Ms. Burt related that a plea of nolo contendere to a felony charge has always resulted in the Agency denying a licensure application or revoking of an existing license. To the best of Ms. Burt's knowledge and belief, this has been the Agency's consistent procedure in all similar circumstances. She did not know of any licensee who had retained his or her licenses after the Agency became aware the licensee had pled nolo contendere to a felony.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Insurance enter a Final Order finding Respondent guilty of violating Sections 648.45(2)(a) and (k), and 648.45(3)(a), Florida Statutes, and revoking his license. RECOMMENDED this 31st day of December, 1997, at Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1997. COPIES FURNISHED: Bill Nelson State Treasurer and Insurance Commissioner The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Y. Sumner, Esquire Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300 Dick E. Kesler, Esquire Department of Insurance 612 Larson Building Tallahassee, Florida 32399 R. Cash Barlow, Esquire Post Office Box 492 Jacksonville, Florida 32201
The Issue Whether Petitioner's application for licensure as a temporary limited surety/bail bond agent pursuant to Sections and 648.355, Florida Statutes, should be granted.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying; documentary materials received into evidence; stipulations by the parties; evidentiary ruling made pursuant to Section 120.57, Florida Statutes; and the record evidence submitted, the following relevant and material facts are determined: Pursuant to Chapter 648, Florida Statutes, Respondent has jurisdiction over bail bond licensure, appointments, and related activities. Petitioner appeared before the undersigned in this proceeding, identified himself and admitted that he is the individual prosecuted in the Thirteenth Judicial Circuit, in and for, Hillsborough County, Florida, Case No. 88-CF-15373, State of Florida v. Bennie Small, Jr., on a Direct Information of two counts of grand theft, and that Respondent has jurisdiction over him and the subject matter involved in its denial letter. The record evidence demonstrated that on or about January 21, 1987, Petitioner entered into a real estate contract with Deltricia Wiggins, a prospective homebuyer. Ms. Wiggins, believing Petitioner to be the realtor representing the seller, gave Petitioner $500.00 to assist her in the purchase of the home. Thereafter, she became aware that the subject home had been sold and demanded that Petitioner return her $500.00. Petitioner failed or refused to return her $500.00. Ms. Wiggins contacted the Hillsborough County State Attorney's Office and made a report. At no time during the above transaction was Petitioner a licensed real estate sales person or licensed real estate broker. The record evidence demonstrated that Petitioner entered into a real estate contract with Janet Richardson, a prospective homebuyer. Ms. Richardson, believing Petitioner to be the realtor representing the seller, gave Petitioner $500.00 to assist her in the purchase of a family home. Thereafter, she became aware that the subject home had been sold and demanded that Petitioner return her $500.00. Petitioner failed or refused to return her $500.00. At no time during the above transaction was Petitioner a licensed real estate sales person or licensed real estate broker. On October 26, 1988, the State Attorney's Office filed a Direct Information charging Petitioner with two counts of grand theft. The two counts of grand theft stemmed from Petitioner's above two unlicensed real estate transactions. At some unknown time on or before January 5, 1989, Petitioner returned the money to both Misses Wiggins and Richardson. The fact that he subsequently returned money to his two victims did not negate his taking their money under illegal and false pretense. Record evidence demonstrated that on January 17, 1989, Petitioner was represented by the Office of the Public Defender of the Thirteenth Judicial Circuit, in and for, Hillsborough County, Florida, in Case No. 88-CF-15373, and a plea of no contest to the charge of grand theft was entered on his behalf. Circuit Judge Harry Lee Coe accepted the plea of no contest on behalf of Petitioner, withheld adjudication of guilt, imposed no probation, and ordered that Petitioner not practice law nor practice real estate without appropriate licensure. Petitioner produced no record evidence that the no contest plea entered on his behalf by the public defender and that the judgment and sentence of the Court imposed by Circuit Judge Harry Lee Coe, of the Hillsborough County Circuit Court on January 17, 1989, in Case No. 88-CF-15373, has been overturned, reversed or set aside by a court of competent jurisdiction. Petitioner, through his evidence and post-hearing submittals, presented the following arguments in support of his position that "he did not enter a plea of no contest to the grand theft charge." First, Petitioner argued that while in court, "he" personally did not enter a no contest plea. Second, he argued that "his" personal approval that a no contest plea be entered on his behalf was neither requested nor given to the public defender that represented him. Third, he argued that he was not made a party at the bench conference between the presiding Judge, the prosecutor, and his public defender, when discussions regarding the terms and condition of resolving his case were ongoing and concluded. Fourth, he argued that copies of the court docket sheet, recording entries written by the court's clerk, who sat in court and made each docket sheet entry as pronounced by the court, were insufficient to establish that those recorded actions were actually taken by the court. Because of the foregone alleged irregularities, argued Petitioner, there is no "official court record" of his having entered a no contest plea to the grand theft charge. Petitioner put forth no evidence in support of his several arguments challenging Respondent's denial of his license application. Petitioner proffered no evidence of the official judicial disposition of the two counts of grand theft filed against him. Petitioner failed to produce a scintilla of evidence in support of his assertions that Respondent did not fully comply with the Florida Statutes when Respondent, by letter dated June 2, 2003, informed Petitioner that his application for licensure as a surety/bail bond agent was denied, and the denial was based on a January 17, 1989, plea of no contest to the charge of grand theft, a felony, in the Thirteenth Judicial Circuit, in and for, Hillsborough County, Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's, Bennie Small, Jr., application for licensure as a temporary limited surety/bail bond agent. DONE AND ENTERED this 4th day of June, 2004, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 2004.
The Issue The issue in the case is whether the allegations of the Administrative Complaints filed by the Petitioner against the Respondents are correct and if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency responsible for licensure and regulation of limited surety agents (bail bondsmen) operating in the State of Florida. The Respondents are individually licensed as limited surety agents in Florida and are officers and directors of "Big John Bail Bonds, Inc.," a bail bond agency. In November of 1999, Gustavo Porro contacted the Respondents regarding bail for Jessie James Bray, a friend of Mr. Porro's son. Mr. Porro did not know Mr. Bray. Based on the charges against Mr. Bray, four bonds were issued, two for $1,000 each and two for $250 each, for a total bond amount of $2,500. The $1,000 bonds were related to pending felony charges and the small bonds were related to pending misdemeanor charges. Mr. Porro signed a contingent promissory note indemnifying American Bankers Insurance Company for an amount up to $2,500 in the event of bond forfeiture. Bray did not appear in court on the scheduled date and the two $1,000 bonds were forfeited. For reasons unclear, the two $250 bonds were not forfeited. The contingent promissory note signed by Mr. Porro provided that no funds were due to be paid until the stated contingency occurred, stated as "upon forfeiture, estreature or breach of the surety bond." After Bray did not appear for court, the Respondents contacted Mr. Porro and told him that the bonds were forfeited and he was required to pay according to the promissory note. On April 15, 2000, Mr. Porro went to the office of Big John Bail Bonds and was told that he owed a total of $2,804, which he immediately paid. Mr. Porro was not offered and did not request an explanation as to how the total amount due was calculated. He received a receipt that appears to have been signed by Ms. Vath. After Mr. Porro paid the money, Ms. Vath remitted $2,000 to the court clerk for the two forfeited bonds. The Respondents retained the remaining $804. Bray was eventually apprehended and returned to custody. The Respondents were not involved in the apprehension. On July 11, 2000, the court refunded $1,994 to the Respondents. The refund included the $2,000 bond forfeitures minus a statutory processing fee of $3 for each of the two forfeited bonds. On August 9, 2000, 29 days after the court refunded the money to the Respondents, Mr. Porro received a check for $1,994 from the Respondents. Mr. Porro, apparently happy to get any of his money back, did not ask about the remaining funds and no explanation was offered. In November of 2000, Ms. Vath contacted Mr. Porro and informed him that a clerical error had occurred and that he was due to receive additional funds. On November 6, 2000, Mr. Porro met with Ms. Vath and received a check for $492. At the time, that Ms. Vath gave Mr. Porro the $492 check she explained that he had been overcharged through a clerical error, and that the additional amount being refunded was the overpayment minus expenses. She explained that the expenses included clerical and "investigation" expenses and the cost of publishing a notice in a newspaper. There was no documentation provided of the expenses charged to Mr. Porro. At the time the additional refund was made, there was no disclosure that the two $250 bonds were never forfeited. At the hearing, the Respondents offered testimony asserting that the charges were miscalculated due to "clerical" error and attempting to account for expenses charged to Mr. Porro. There was no reliable documentation supporting the testimony, which was contradictory and lacked credibility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Insurance enter a Final Order requiring that the Respondents be required to refund $318 to Mr. Porro, which, combined with the previous payments of $1,994 and $492, will constitute refund of the total $2,804 paid by Mr. Porro to the Respondents. It is further recommended that the limited surety licenses of Matilda M. Vath and John L. Vath be suspended for a period of not less than three months or until Mr. Porro receives the remaining $318, whichever is later. DONE AND ENTERED this 22nd day of February, 2002, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 22nd day of February, 2002. COPIES FURNISHED: James A. Bossart, Esquire Department of Insurance Division of Legal Services 200 East Gaines Street, Room 612 Tallahassee, Florida 32399 Joseph R. Fritz, Esquire 4204 North Nebraska Avenue Tampa, Florida 33603 Mark Casteel, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307 Honorable Tom Gallagher State Treasurer/Insurance Commissioner Department of Insurance The Capitol, Plaza Level 02 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 Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact At all pertinent times, respondent Phillip Anthony Ronca has been licensed and eligible for licensure and appointment as a limited surety agent in Florida, and the parties so stipulated. He holds licenses as a limited surety agent and as a professional bail bondsman, both issued by petitioner. Petitioner's Exhibit No. 1. Respondent Ronca is the president and director of Ronca Bail Bonds, Inc., a Florida corporation transacting bail bond business from offices in Suite 12, 9719 South Dixie Highway in Miami, Florida, and has been at all pertinent times. He has no prior history of violating statutes or rules governing bail bond underwriting. On July 13, 1990, Mr. Ronca was at the Metro Dade County Jail at the corner of Northwest 12th Avenue and Northwest 14th Street in Miami, trying to locate Miguel Salamanca, whose lawyer had asked respondent to post bond, in order to accomplish his client's release. (The lawyer told him Mr. Salamanca had been arrested in the aftermath of a car wreck, but did not tell him which law enforcement agency had made the arrest or where the arrestee was being held.) Also present at the jail that day was Rina Romero (then surnamed Dillman) who, at the time, worked for a firm of private investigators retained by the "Dade County Bail Bondsmen Association to locate individuals, or bondsmen who were allegedly suspicious [sic] of soliciting business at the jail." T. 8- She had been shown respondent's photograph, and recognized him as one of seven or eight named "targets" of the investigation. Ms. Romero accosted respondent and related a tale of an apocryphal relative, purportedly confined on cocaine possession charges. In response to her specific questions, Mr. Ronca said bonds in such cases were set at $5,000 in Dade County, and that the premium for a bond in that amount was $500. He asked her questions about her putative relative, designed to ascertain the phantom detainee's whereabouts. Mr. Ronca never told Ms. Romero he was a bail bondsman, never offered to post bond for her (spurious) relative, and never requested the opportunity to do so. T. 75-76. He misrepresented no fact, and proposed no unlawful activity. At her request, as their brief conversation drew to a close, he gave Ms. Romero his business card, which proclaims "RONCA BAIL BONDS . . . Any Cost . Anytime . Anywhere." Petitioner's Exhibit No. 1. She testified she asked for the card so she could prove the fact of the encounter. T. 78, 79, 85. He testified he gave it to her only because she asked for it, and without any intention to advertise. T. 160, 161.
Recommendation It is, accordingly, recommended that petitioner dismiss the administrative complaint filed against respondent. RECOMMENDED this 27th day of January, 1992, 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 27th day of January, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2279 Petitioner's proposed recommended order did not contain proposed findings of fact. Respondent's proposed findings of fact Nos. 1, 2, 3, 7, 8, 9, 11, 12 and 15 have been adopted, in substance, insofar as material. Respondent's proposed findings of fact Nos. 4, 5, 13 and 14 pertain to immaterial matters. With respect to respondent's proposed finding of fact No. 6, the administrative complaint pleaded and respondent admitted 14th Street. With respect to respondent's proposed findings of fact Nos. 10 and 16 he never asked her for bail bonding business, or intended to violate applicable law. COPIES FURNISHED: Tom Gallagher, State Treasurer and Insurance Commissioner Department of Insurance and Treasurer 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 Donald E. Petersen, Esquire 412 Larson Building Tallahassee, FL 32399 Benedict P. Kuehne, Esquire Sonnet, Sale & Kuehne One Biscayne Tower, No. 2600 Two South Biscayne Boulevard Miami, FL 33131-1802
