Findings Of Fact By invitation to bid for Architect's Project No. 9129-A, the Board solicited bids for "construction of one new single story building at Lecanto School Complex in Lecanto, Florida." Joint Exhibit No. 1, p. 01010.1. Specifications (Re)stated The invitation to bid gave notice of a mandatory pre-bid conference at two o'clock on the afternoon of June 10, 1993, at Lecanto Vocational Center at the project site. Joint Exhibit No. 1, A-1. ("BIDDERS MUST ATTEND . . . TO BE ABLE TO BID") The invitation to bid consisted of a project manual, amended seriatim in a series of four addenda. Joint Exhibit No. 1. The project manual required substantial completion of the project within 250 days of written notice to proceed, Joint Exhibit No. 1, p. 00700.8, but on another page the same document required substantial completion by July 13, 1993. Id. at 00100.8. Later Addendum No. 1 put the date for substantial completion at "250 days after Notice to Proceed is given," but superseding Addendum No. 2 reverted to July 13, 1993. Addendum No. 3 directed prospective bidders to "[d]elete all previously issued Proposal Forms and replace with the Proposal Form attached." The attached form states: The undersigned agrees that if this bid is accepted, construction of this project will begin after receipt of "Notice to Proceed" and shall be substantially completed within 250 calendar days and finally completed within thirty (30) calendar days from substantial completion. Directions concerning the form specify that it is to "be copied on Contractor's business letterhead." Addendum No. 3, p. 5. Among the specifications were bond requirements, including minimum ratings for companies writing the bonds: To be acceptable to the owner as surety for Bid Bonds, Performance Bond, and Payment Bonds, a surety company shall comply with the following provisions: 3. The surety shall have at least the following ratings: . . . 1,000,000 to 1,500,000 A Class XI Joint Exhibit No. 1, p. 00600.1. Addendum No. 2 "delete[d] the Class ratings" but not Best's Policyholder's Ratings. Although the copy of the invitation to bid that came in evidence as Joint Exhibit No. 1 lacked pages 00400.1 and 00400.2, the table of contents indicates that these pages contain a bid bond requirement. The proposal form also calls for a bid bond. In its proposed recommended order, moreover, petitioner states that the Board "set forth in its project manual a provision that bidders should submit a bid bond from a company with an 'A 11' rating." The Project Manual states, at page 00100.3, that a contract "will be awarded only to a responsible Bidder, qualified by experience . . . . " Joint Exhibit No. 1. Bidders were required to submit forms along with their bids which called for, among other things, lists of major construction projects in process and major projects completed in the last five years. Joint Exhibit No. 1, p. 00110.3. Compliance Attempted When, on the afternoon of June 10, 1993, Greg Cecil, Grubbs' general manager, arrived for the pre-bid conference, he was erroneously "instructed that Lakeview was at another site in Hernando." T.70. When he arrived there, "somebody on site . . . said . . . Lakeview Relocation is going to be moved to the site that you were previously at." Id. By the time he again reached his original, correct destination, he "ended up being late for the meeting." Id. It was about quarter of three and only Tom Williford, who is the Board's Director for General Services, and an electrical subcontractor remained. T.78. Mr. Williford recounted what had occurred before the other contractors had dispersed, and told Mr. Cecil "that there would be an addendum issue[d] reflecting any items that occurred that day." T.211. The Board's Addendum No. 2 lists Mr. Cecil as having been "in attendance at the Mandatory Pre-Bid Conference." Bids Submitted Grubbs, Caldwell and others submitted bids for Architect's Project No. 9129A. Grubbs' bid was low, at one million one hundred five thousand dollars ($1,105,000.00). Dated June 17, 1993, Grubbs' proposal offered to bring construction to substantial completion by July 13, 1993. In a blank for "Bond Rating," "A- 11" was inserted. Joint Exhibits No. 2 and 3.11. The bid documents contained no other rating information. A form bid bond executed by Grubbs' president and by Sandra McCullough, as attorney in fact both for Reliance Insurance Company, a Pennsylvania Corporation, and for Employees Reinsurance Corporation, a Missouri corporation, accompanied Grubbs' bid. Best rates the former company A- and the latter A++, evidence at hearing showed. The body of the bond begins: KNOW ALL MEN BY THESE PRESENTS, that we JOHN G. GRUBBS, INC. P.O. BOX 10262, BROOKSVILLE, FLORIDA 34601 as Principal, hereinafter called the Principal, and RELIANCE INSURANCE COMPANY AND EMPLOYERS REINSURANCE CORPORATION, P.O. BOX 945090 MAITLAND, FLORIDA 32751 a corporation duly organized under the laws of the State of PENNSYLVANIA as Surety, hereinafter called the Surety, are held and firmly bound unto SCHOOL BOARD OF CITRUS COUNTY . . . . Joint Exhibits Nos. 2 and 3. Attached to the bid is a power of attorney appointing Ms. McCullough attorney in fact for Reliance Insurance Company and another limited power of attorney appointing her attorney in fact for Employees Reinsurance Company, which authorizes her to execute "any bond . . . in co- suretyship with RELIANCE INSURANCE COMPANY." Id. Grubbs' bid included a list of five "open contracts" for amounts ranging from $98,749 to $1,362,252 for projects ranging from a water storage system to sanitary sewer installation to road construction; and a list of some 95 completed projects including roads, sewers, clearing, earthwork, a $53,387 reroofing job, and a $116,772 job installing a canopy and sidewalks for a middle school in Hernando County. Joint Exhibit Nos. 2 and 3. After the bids had been opened, John G. Grubbs told the Board's architect of still other projects Grubbs had completed. On July 1, 1993, a principal of the architectural firm the Board had engaged wrote Mr. Williford, as follows: Dear Tom: We have reviewed the bids received and would recommend that the low bid from John G. Grubbs, Inc. be rejected for being in non- conformance with the Bid Documents for the following reasons: The bid by John G. Grubbs, Inc. was submitted on a proposal form that contained an error in the completion date. Their form indicated construction to be completed by July 13, 1993; rather than 250 days as required by the Bid Documents, per addendum #3. Bid Bond received was written by a bonding company having a Best rating of "A minus" (A-). The Documents require an "A" rating. (Section 00600, Page 00600.1, Third Paragraph) The Contractor's Qualification form indicates that John G. Grubbs, Inc. has been in the Site and Drainage business for ten (10) years but has not constructed any School Facilities. It also shows having completed construction of only two buildings and one under construction. These 3 buildings are small fire stations in the $300,000 range each. Due to the above outlined concerns we would recommend the contract be awarded to Caldwell Construction Company, the next low bidder. Respondent's Exhibit No. 1. The Board met on July 8, 1993. During the meeting, one Board member opined, "the critical thing here is probably the bond rating." Id., p. 26. The Board voted to reject Grubbs' bid and, separately, to accept Caldwell's.
Recommendation It is, accordingly, RECOMMENDED: That the Board dismiss Grubbs' petition and award the contract for Architectural Project No. 9129-A to Caldwell. DONE AND ENTERED this 11th day of October, 1993, in Tallahassee, Florida. ROBERT T. BENTON, II 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 11th day of October, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 93-4325BID Petitioner's proposed findings of fact are not separately numbered. Respondent's proposed findings of fact Nos. 1-11 and 14-19 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 12, respondent's Mr. Williford concluded at the time that Grubbs had complied. Respondent's proposed finding of fact No. 13 pertains to a subordinate matter. With respect to respondent's proposed finding of fact No. 20, Grubbs built a canopy and sidewalks at a school. With respect to respondent's proposed finding of fact No. 21, both the bid rating and the completion date were deviations. Intervenor's proposed findings of fact Nos. 1-22, 25, 26, 27 and 28 have been adopted, in substance, insofar as material. Intervenor's proposed findings Nos. 23 and 24 pertain to subordinate matters. With respect to intervenor's proposed finding of fact No. 29, the completion date and bond rating were both deviations. COPIES FURNISHED: Carl E. Austin, Superintendent Citrus County School Board 1007 W. Main Street Inverness, Florida 34450-4698 Thomas S. Hogan, Jr. 20 South Broad Street Brooksville, Florida 34605 Richard S. Fitzpatrick 213 North Apopka Avenue Inverness, Florida 34450-4239 Clark S. Stillwell Post Office Box 250 Inverness, Florida 34451-0250
The Issue Whether Respondent's license as a limited surety agent should be revoked or the licensee otherwise disciplined for alleged violations of Chapter 648, Florida Statutes, and Chapter 4-1, Florida Administrative Code, as set forth in the Administrative Complaint dated October 16, 1979. In this proceeding, Petitioner seeks to take disciplinary action against Respondent for various alleged violations of Chapter 648, Florida Statutes, and Chapter 4-1, Florida Administrative Code, arising out of alleged irregularities in connection with a bonding transaction in 1978. Two witnesses testified for the Petitioner and the parties stipulated to the admission of seven documentary exhibits. The Respondent testified in his own behalf at the hearing.
Findings Of Fact Respondent Timothy Michael Paletti is currently licensed as a limited surety agent to represent Cotton Belt Insurance Company, Inc., at Orange Lake, Florida, and was so licensed during the periods alleged in the Administrative Complaint. (Petitioner's Exhibit 1, Stipulation) On November 23, 1978, Respondent executed an appearance bond in the Gilchrist County Circuit Court in the sum of $10,000 as agent of the surety, Cotton Belt Insurance Company, in behalf of Rodney D. Lovett, who was charged with robbery. Respondent did not attach either an affidavit or statement, as prescribed in Rule 4-1.14, Florida Administrative Code, to the bail bond at the time it was filed in the office of the Circuit Court clerk. It was not until January 31, 1979, that Respondent filed a statement concerning collateral security for the bond under Rule 4-1.141 in lieu of the affidavit required by Rule 4-1.14, F.A.C. Lovett's wife paid a $1,000 premium for the bond and his sister-in-law, Deborah Johnson, executed a demand note for $10,000, together with a mortgage deed on a dwelling which she owned in Deland, Florida, on November 23, 1978, as collateral security for the bond. During the transaction, Respondent provided Johnson with a business card bearing his Orange Lake telephone number. (Testimony of Johnson, Petitioner's Exhibits 2-4) On January 8, 1979, a Notice of Sentencing was issued by the Gilchrist County Circuit Court Clerk in Lovett's case for January 22, 1979 at Trenton, Florida. On January 13, Respondent contacted Lovett and Johnson by telephone at their respective homes and advised them of the date of the required court appearance. (Testimony of Respondent, Petitioner's Exhibit 5) During January 1979, Lovett and his wife talked to Johnson about the possibility of "leaving and not going to court." Johnson became concerned about these disclosures and attempted to reach Respondent at his Orange Lake telephone number. Numerous calls to that number on January 15th were unanswered. After unsuccessful attempts to reach Respondent through the Cotton Belt Insurance Company and at another telephone number provided by Petitioner, Respondent finally called Johnson's house on January 20, at which time Johnson and a friend, Barry S. Beatty, told Respondent about Lovett's statements concerning his intentions and requested that Respondent pick up Lovett and surrender him to court so the collateral security could be released. Respondent told Johnson that he would look into the matter. He then telephoned Lovett's attorney and the Lovett home, and was assured that everything was all right. (Testimony of Johnson, Beatty, Respondent) On January 22, 1979, Lovett failed to appear at court for sentencing and the bond was therefore declared to be forfeited. Respondent and law enforcement authorities there after made efforts to locate Lovett and he was eventually apprehended and sentenced to confinement. On July 2, 1979, the Gilchrist County Circuit Court ordered that the bond previously estreated be remitted less the cost expended by the State in apprehending the defendant in the amount of $500. The collateral security posted by Johnson is still outstanding due to a dispute over costs sought by Respondent. (Testimony of Johnson, Respondent, Petitioner's Exhibit 6-7) Respondent testified at the hearing that he felt he had made reasonable efforts to assure that Lovett would appear in court. Although Respondent moved his office in late January 1979, his office phone was in operation and his office was open during the week of January 15-22. (Testimony of Respondent)
Recommendation That the charges against Respondent Timothy Michael Paletti be DISMISSED. DONE and ORDERED this 9th day of July, 1980, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1980. COPIES FURNISHED: S. Strom Maxwell, Esquire Department of Insurance 428-A Larson Building Legal Division Tallahassee Florida 32301 Robert J. Costello, Esquire Bates and DeCarlis - Suite B 726 Northwest Eighth Avenue Gainesville, Florida 32601
Findings Of Fact The Respondent, Adriana Winkelmann, d/b/a Adriana's Bail Bonds, Tampa, currently is licensed and eligible for licensure in this State as a Limited Surety Agent. On or about October 31, 1986, William L. Counts and his wife, Madie Counts, a/k/a Madie G. Clark, went to see the Respondent about getting Mr. Counts' first cousin, Clayton D. Counts, bailed out of jail. Cousin Clayton was charged with second degree murder, and bail was set on the second degree murder charge at $5000. Clayton Counts also had been charged with eight other counts involving sexual battery on a child and sexual activity with a child under his custodial authority. On October 2, 1986, Clayton Counts had posted $14,000 of bonds that had been set on the eight charges and had been released from jail. Adriana's Bail Bonds, acting as bail bondsman and as attorney-in-fact for the surety company, Accredited Surety And Casualty Company, Inc. (Accredited or the surety), was the surety on the $14,000 of bonds, and Scott Erickson, a friend of Clayton Counts, indemnified Accredited and put up collateral to secure the indemnification agreement. All but $150 of the premium on the $14,000 of bonds had been paid to Adriana's Bail Bonds; Clayton Counts' wife promised to pay the additional $150 at a later date. When Clayton Counts was re-arrested and charged with second degree murder and just an additional $5000 bond was set on the new charge, Erickson became fearful that Clayton Counts might skip the bonds, jeopardizing Erickson's collateral. He told the Respondent that he wanted to be taken off the bonds. At about this same time, on or about October 31, 1986, Mr. and Mrs. William L. Counts came in to Adriana's Bail Bonds, at Clayton Counts' request, to see about bailing out Clayton for the second time. Mr. and Mrs. Counts agreed with the Respondent to indemnify the surety on the total amount of all of the bonds, $19,000. They agreed to pay the $150 balance of the premium on the bonds put up on or about October 2, 1986, on the first set of charges, plus a $500 premium on the bond put up on or about October 31, 1986, on the second degree murder charge. The indemnity agreement was to indemnify the surety company for the entire $19,000 amount of the bonds in the event of a forfeiture, plus "all claim, demand, liability, cost, charge, counsel fee, expense, suit order, judgment, or adjudication" sustained or incurred by the surety company. As collateral to secure their indemnity agreement, Mr. and Mrs. Counts put up their mobile home, to which they gave the Respondent a power of attorney dated October 31, 1986, and an $8,000 mortgage on a lot worth approximately $8000. They also gave Adriana's Bail Bonds a $19,000 promissory note as collateral. On October 31, 1986, an employee of Adriana's Bail Bonds gave Mr. Counts a collateral receipt, signed by Mr. Counts and the employee, for the $19,000 promissory note, the indemnity agreement, the mortgage on the lot and the mobile home. The original was given to Mr. Counts and Adriana's Bail Bonds kept a copy. There was no evidence that the collateral receipt, or any other statement or affidavit, for this or any other collateral (other than Erickson's original collateral on the $14,000 of bonds on the first set of charges) ever was filed anywhere. Mr. Counts paid $500 by check dated November 14, 1986, for the premium on the $5000 second degree murder bond. In December 1986, Clayton Counts left the state and missed a court appearance on December 19, 1986. The $19,000 of bonds was estreated. In about January 1987, Mrs. Counts went to see the Respondent about substituting some other collateral for the mobile home. She was concerned about where she and her husband would live if the bonds were estreated and forfeited and the mobile home had to be sold to perform the indemnity agreement. She wanted to be able to move the mobile home somewhere else even in that event. After some discussion, it was agreed that the Respondent would accept $6000 cash as substitute collateral in place of the mobile home. Mrs. Counts promised to pay the $6000 in installments of approximately $500 a month. The Respondent repeatedly was able to have the court delay forfeiture of the bonds because she was able to demonstrate that she was trying to locate and return the defendant to the court. In her efforts, the Respondent incurred expenses for hiring private investigators, for a six- day trip to Missouri, for long distance telephone charges, for attorneys' fees for getting postponements of the forfeiture of the bonds and for other miscellaneous expenses. The Respondent collected portions of the promised cash collateral substitution in the following installments, some of which were picked up at the Counts' home by the Respondent: April 21, 1987 $2,000 July 17, 1987 $ 300 August 10, 1987 $ 500 August 20, 1987 $ 800 January 6, 1988 $ 500 On each occasion, the Respondent gave Mrs. Counts a collateral receipt signed by the Respondent and by Mrs. Counts. Each receipt noted the amount received, the balance due on the cash collateral substitution promise, and the $150 balance on the premium on the October 2, 1986 bonds on the first set of charges. Again, there was no evidence that any of these collateral receipts were "filed" anywhere. On January 6, 1988, Mrs. Counts asked the Respondent for a summary of the amounts of collateral paid to that date. The Respondent wrote on a piece of paper, incorrectly dated January 6, 1987, that $4100 had been received to date. Mrs. Counts also was confused what the money would be used for. The Respondent answered her question, saying that the money, together with the lot, would go towards indemnifying the surety for the $19,000 amount of the bonds if they were forfeited and, under the indemnity agreement, could be used to indemnity Adriana's Bail Bonds for expenses caused by the estreature. The Respondent listed these items on a piece of paper, too: Attorney fees to continue case 4 times over one year. Long distance calls for one year. Gas, stamps, & miscellaneous. One trip to Missouri, gas, motel, meals. Investigators services in Missouri and Florida. Later in January 1988, Clayton Counts was arrested and returned to Florida. The bonds, however, were not discharged at that time. Later in 1988, the Respondent made demand on Mrs. and Mrs. Counts for payment of an additional $2,150. This was supposed to represent $2000 due on the cash collateral substitution promise, plus the $150 balance on the premium on the October 2, 1986 bonds on the first set of charges. In fact, only $1900 was due and owning on the cash collateral substitution agreement. In March and April 1988, the Respondent collected from Mrs. Counts two additional $350 installments of the cash collateral substitution promise. Only one receipt was given for both installments, once again signed by both the Respondent and Mrs. Counts, reducing the balance to $1200, plus the $150 premium owing. In June and July 1988, Mrs. Counts was hospitalized. On June 13, 1988, the Respondent went to the hospital to have Mrs. Counts sign a receipt for the return of the original collateral for the $19,000 of bonds--i.e., the $19,000 promissory note and indemnity agreement, the mortgage on the lot and the mobile home. The Respondent did not return the cash collateral. On July 14, 1988, the court entered an order releasing the surety and Adriana's Bail Bonds from the bonds. The Respondent did not return the cash collateral because Mrs. Counts died in July 1988, and the Respondent was unsure to whom the money should be paid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent be found guilty of the violations set forth in the Conclusions of Law portion of this Recommended Order and that her license and eligibility for licensure be suspended for a period of thirty (30) days, that she be required to pay an administrative fine in the amount of $250, and that she be placed on probation for nine months after expiration of the suspension period, conditioned on : (1) successful completion of either a basic certification course or a correspondence course approved by the Bail Bond Regulatory Board; and (2) payment of the cash collateral to the rightful owner, or in the alternative, if the Respondent is in doubt as to the rightful owner, into a court registry in conjunction with an interpleader action, within 30 days of entry of final order. DONE and ENTERED this 24th day of February, 1989, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Hearing Office Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. 88-2588 To comply with Section 120.59(2), Florida statutes (1987), the following rulings are made on the Petitioner'S proposed findings of fact: 1-9. Accepted and, along with other facts, incorporated. 10. Rejected in part and accepted in part. The note was a receipt of sorts, but it was not the only receipt. The incorrect date on the "receipt" was January 6, 1987; the actual date the "receipt" was given was January 6, 1988. 11.-16. Accepted and incorporated. COPIES FURNISHED: S. Marc Herskovitz, Esquire Office of Legal Services Department of Insurance 412 Larson Building Tallahassee, Florida 32399-0300 Don Dowdell General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, FL 32399-0300 James N. Casesa, Esquire 3845 Fifth Avenue North St. Petersburg, Florida 33713 The Honorable Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32999-0300
The Issue At issue is whether respondent committed the offense alleged in the administrative complaint and, if so, what disciplinary action should be taken.
Findings Of Fact The Department excepts to the hearing officer's Finding of Fact number 15, asserting that the hearing officer mischaracterized the persuasive weight of the evidence regarding Mr. Rubino's ownership of the bail funds. At hearing, Mr. Rubino testified that the money he supplied was half of the bond amount necessary to obtain the release of his client's codefendant, Mr. Sergio Gonzalez (Transcript pages 36, 42- 44). He further testified that the source of the bond funds originated from his office account (Transcript page 47) and were not drawn from a check (Transcript page 49). Mr. Rubino's only proof that he owned the bail funds was the following statement: possessed it as "I possessed the money in my pocket" (Transcript page 45). The hearing officer's findings that it was incredulous for Mr. Rubino to advance his own money for a codefendant's bail; that the money advanced by Rubino was street money; and that Mr. Rubino was equivocal in his responses were supported by competent substantial evidence. It is for the hearing officer to consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based upon competent substantial evidence. Heifetz v. Department of Business Regulation, Division of Alcoholic Beverages & Tobacco, 475 So.2d 1277 (Fla. 1st DCA 1985). Therefore, the Department's Exception to Finding of Fact number 15 is REJECTED. The Department excepts to the hearing officer's Finding of Fact number 16, asserting that the hearing officer ignored the Respondent's implicit admission that he mistakenly released the bail money to Ms. Maria Diaz. At hearing, Respondent presented a letter (Respondent's Exhibit 6) in which he advised Mr. Fernandez of his intent to file a complaint with the Miami Police Department against Ms. Maria Diaz for theft of the bail funds. The Respondent also presented a police report receipt from the Miami Police Department (Respondent's Exhibit 4) demonstrating that he filed a police report against Ms. Diaz (Case Incident Number 346-1561T) in connection with the alleged theft of the above-referenced money. Both exhibits were received into evidence and demonstrated that the Respondent concluded that Ms. Diaz was not entitled to the bail money after the fact. Notwithstanding this evidence, the hearing officer's Finding of Fact number 16 addressed Mr. Rubino's ownership interest in the bail funds, not whether Respondent wrongfully returned the bail funds. The Department's arguments regarding this exception are misplaced because the Department fails to demonstrate how the hearing officer's finding of fact that Mr. Rubino did not have any lawful entitlement to the bail funds was not supported by competent substantial evidence. See Heifetz, supra. Therefore, the Department's Exception to Finding of Fact number 16 is REJECTED. The Department excepts to the hearing officer's Finding of Fact number 17, alleging that Mr. Joaquin Fernandez's testimony regarding his disavowment of the bail money was taken out of context. However, Mr. Fernandez's testimony on transcript page 177 is consistent with his testimony contained on transcript pages 163 and 165. Thus, the Department has failed to prove that the hearing officer's finding of fact was not supported by competent substantial evidence. As a result, the Department's Exception to Finding of Fact number 17 is REJECTED. The Department excepts to Finding of Fact number 20, alleging that said finding is inconsistent with the hearing officer's Finding of Fact number 16. The Department confuses the hearing officer's observations regarding Mr. Fernandez's credibility concerning the Respondent's good character with the elements necessary to prove the violations cited in the administrative complaint. Mr. Fernandez testified at hearing that he continued to do business with the Respondent following his written request for the return of the bail money; that he was a very good friend of the Respondent; and that the Respondent was deceived by Ms. Diaz to release the bail money to her (Transcript pages 173- 174,182). The Department has failed to prove that the hearing officer's finding of fact regarding Mr. Fernandez's credibility was not supported by competent substantial evidence. Consequently, the Department's Exception to Finding of Fact number 20 is REJECTED. The Department excepts to Finding of Fact number 21, asserting that the hearing officer drew improper inferences from the evidence presented regarding Respondent's deposit of $10,000 into his attorney's trust account. It appears that the Department has interpreted the hearing officer's finding of fact as dispositive of Respondent's guilt. However, the hearing officer's findings are supported by competent substantial evidence through the testimony of Mr. Rubino, Petitioner's Exhibits 5D, 5E, and 5F and Respondent's Exhibit 10. Moreover, the hearing officer is permitted to draw permissible inferences based upon the evidence presented. Heifetz, supra. Therefore, the Department's Exception to the hearing officer's Finding of Fact number 21 is REJECTED. RULINGS ON THE DEPARTMENT'S EXCEPTIONS TO THE HEARING OFFICER'S CONCLUSIONS OF LAW The hearing officer was entirely correct in finding that Respondent was justified in his belief that Mr. Rubino was not entitled to the return of the bond premium payment. However, the hearing officer erred as a matter of law by concluding that Ms. Diaz was entitled to the return of the bail money. Respondent did not receive the funds from Ms. Diaz, as evidenced by the pre- numbered receipt given to Mr. Fernandez. Respondent had not received any purported written or oral permission from Mr. Fernandez authorizing the release of the funds to Ms. Diaz. There is no evidence noted in the recommended order or the exceptions, that Mr. Fernandez ever indicated to the Respondent that Ms. Diaz was the source of the funds, or had any right to the funds. Respondent had no basis, other than Ms. Diaz's bald oral assertions, that she had any right to receive the refund of the premium deposits. It is uncontested that Respondent received the bail bond premium deposit from Mr. Fernandez's office, and gave Mr. Fernandez a written receipt. In the usual course of business, bail bondsmen return bail moneys to the receipted person or persons upon termination of the bond liability. This receipting system is fundamental to bail bondsmen accounting procedures. See Rule 4-221.115, Florida Administrative Code. Certainly, under normal circumstances, Respondent could have and should have returned the funds to Mr. Fernandez, which would have shielded him from any liability, if he had done so. And in normal circumstances, Respondent would be guilty of violating 648.295(1), Florida Statutes and would be subject to discipline by the Department. However, these are not normal circumstance, due to Mr. Fernandez's testimony that he did not know where the bond premium deposit money came from, where it went, and "could care less." In these highly unusual circumstances, in which the apparently wronged and victimized person, Mr. Fernandez, is indifferent to the events that transpired, it would be incongruous and inequitable to find that the Respondent violated section 648.295(1), Florida Statutes, for failing to return the bond funds to a person, who by his own testimony, "could care less" what happened to the funds. Therefore, while rejecting the hearing officer's conclusion that the Respondent was justified in returning the funds to Ms. Diaz, the hearing officer's ultimate recommendation that the case be dismissed is accepted. Based upon the evidence presented at hearing, as discussed in paragraphs 6, 7 and 8 above, the Department has failed to prove by clear and convincing evidence that the Respondent is subject to discipline by the Department pursuant to section 648.45(2), Florida Statutes. Therefore, the Department's Exception to Conclusion of Law number 27 is REJECTED. Based upon the evidence presented at hearing, as discussed in paragraphs 6, 7, and 8 above, the Department has failed to prove by clear and convincing evidence that the Respondent is subject to discipline by the Department pursuant to section 648.43(3), Florida Statutes. Therefore, the Department's Exception to Conclusion of Law number 28 is REJECTED. Based upon the evidence presented at hearing, as discussed in paragraphs 6, 7, and 8 above, the Department failed to prove that Respondent utilized the bail money to his own use or benefit. As a result, the Department failed to prove by clear and convincing evidence that the Respondent violated section 648.295(3), Florida Statutes. Therefore, the Department's Exception to Conclusion of Law number 30 is REJECTED. Based upon the evidence presented at hearing, as discussed in paragraphs 6, 7, and 8 above, the Department failed to prove by clear and convincing evidence that the Respondent violated section 648.295(1), Florida Statutes. Therefore, the Department's Exception to Conclusion of Law number 32 is REJECTED RULINGS ON THE DEPARTMENT'S EXCEPTIONS TO THE HEARING OFFICER'S ENDNOTES The Department was correct in bring the instant action based upon the allegations, as alleged in the administrative complaint. However, the Department's Exception to Endnote number 1 is REJECTED, to the extent that the allegations were proved by clear and convincing evidence. The Department's Exception to Endnote number 2 is ACCEPTED. The Department's Exception to End note number 3 is REJECTED because the hearing officer clearly stated in this endnote that Finding of Fact number 15 was based upon the record evidence. The Department's Exception to Endnote number 4 is REJECTED. Rule 4- 231.160(e), Florida Administrative Code, permits the Department to consider the timeliness of restitution as a mitigating or aggravating factor. The Department does not have any legal authority, aside from situations involving Consent Orders, thorough its penalty rule or statutory provisions of the Florida Insurance Code, to order restitution or to condition its penalty on the making of restitution. Upon careful consideration of the Record, the submissions of the parties and being otherwise advised in the premises, it is ORDERED: The Findings of Fact of the hearing officer, as modified in this Order, are adopted as the Department's Finding of Fact. The Conclusions of Law of the hearing officer, as modified in this Order, are adopted as the Department's Conclusion of Law. The End notes of the hearing officer, as modified in this Order, are adopted as the Department's End notes. The hearing officer's Recommendation that the Administrative Complaint be dismissed is ACCEPTED as being the appropriate disposition for this particular case. Any party to these proceedings adversely affected by this Order is entitled to seek review of this Order pursuant to Section 120.68, Florida Statutes, and Rule 9.110, Florida Rules of Appellate Procedure. Review proceedings must be instituted by filing a Notice of Appeal with the General Counsel, acting as the agency clerk, at 412 Larson Building, Tallahassee, Florida 32399-0300, an a copy of the same and the filing fee with the appropriate District Court of Appeal within thirty (30) days of rendition of this Order. DONE and ORDERED this 11th day of July, 1996. BILL NELSON Insurance Commissioner and Treasurer
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the administrative complaint. 4/ DONE AND ENTERED this 12th day of April 1996 in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of April 1996.
The Issue This is a license discipline case in which the Respondent has been charged by Administrative Complaint with violations of several provisions of Chapter 648, Florida Statutes. All of the violations charged relate to allegations that the Respondent failed to return certain personal property received by the Respondent as collateral security on a surety bond.
Findings Of Fact Facts admitted by all parties The Respondent, Sergio Roque, Jr., is currently licensed in this state as a limited surety agent. At all times relevant to the dates and occurrences referred to in the Administrative Complaint in this matter, the Respondent was licensed in this state as a limited surety agency. On or about July 19, 1990, Respondent, while acting in his capacity as a limited surety agent, did, as agent for Amwest Surety Insurance Company, post a $100,000 general surety appearance bond, power number X00-0-00000331, to obtain the release of defendant Domingo Arrechea from the Dade County Jail. In conjunction with the posting of the aforementioned surety bond, Respondent did on or about July 19, 1990, receive $10,000, which represented the premium payment for said surety bond. Respondent did in conjunction with the posting of said bond receive from indemnitor Lorraine DeVico a diamond engagement ring, a Rolex watch, and the title to a 1979 Mercedes automobile (ID#11602412149348) as partial collateral security for the aforementioned surety bond. On or about April 3, 1991, Respondent did cause to be surrendered back into custody the defendant Domingo Arrechea, thus terminating all liability for said surety bond. Respondent has failed to return to indemnitor Lorraine DeVico the collateral security described above; namely, the diamond engagement ring, the Rolex watch, and the title to the 1979 Mercedes automobile. Additional facts proved at hearing In addition to the collateral described above, the Respondent also received as collateral from the defendant Arrechea, and from the defendant's wife, a conditional mortgage on a condominium. In addition to the collateral described above, the Respondent also received as collateral from "Mike Farina" a conditional mortgage on real estate owned by Mike Farina. Mike Farina was a friend of the defendant Arrechea. "Mike Farina" later turned out to be a fictitious name. Lorraine DeVico was a very close friend of the defendant Arrechea. The Rolex watch Ms. DeVico put up as part of the collateral for Arrechea's bond was a watch that had been given to her by her father. Shortly after Ms. DeVico put the watch up for collateral, her father began to inquire as to the whereabouts of the watch. Because she felt that her father would disapprove of what she had done, and because her father was the source of most of her wealth, Ms. DeVico told several lies to her father about the whereabouts of the watch. As a result of continuing inquiries by her father, Ms. DeVico wanted her watch back and no longer wanted to be responsible under the indemnity agreement she had signed. Towards the beginning of February 1991, Ms. DeVico began to call the Respondent to advise that she was frightened that the defendant Arrechea was considering jumping bond. The Respondent received numerous calls from Ms. DeVico requesting return of her collateral and requesting to be off the indemnity agreement. Consequently, the Respondent hired MV Investigations on February 16, 1991, to locate the defendant Arrechea. On March 27, 1991, Ms. DeVico advised the Respondent that the defendant Arrechea was not answering his digital pager and that his telephone had been disconnected. She advised the Respondent that she sent her employee to look for Arrechea but could not find him. She asked the Respondent to pick up the defendant Arrechea and get her off the bond, agreeing to pay all the expenses. On April 1, 1991, Ms. DeVico again asked the Respondent to pick up the defendant Arrechea and again agreed that she would pay the costs associated with the pick-up. On April 3, 1991, the investigators hired by the Respondent located and picked up defendant Arrechea and surrendered him back to the Dade County Jail. The Respondent returned the collateral deposited by Mr. Farina and by the defendant Arrechea and his wife. After having the defendant Arrechea picked up and surrendered, the Respondent called Ms. DeVico to give her the information and advise her of the pick-up costs. Ms. DeVico verbally refused to pay any pick-up costs. On April 14, 1991, the Respondent sent by certified mail to Ms. DeVico a notice under Section 648.442, Florida Statutes, notifying her that he would be selling her collateral in ten days against his pick-up expenses. The Respondent sold the Rolex watch and diamond ring pledged as collateral by Ms. DeVico after expiration of the ten days. The indemnity agreement signed by Ms. DeVico in conjunction with applying for bail for the defendant Arrechea included the following language: 2. The indemnitor(s) will at all times indemnify and keep indemnified the Company and save harmless the Company from and against any and all claims, demands, liabilities, costs, charges, legal fees, disbursements and expenses of every kind and nature, which the Company shall at any time sustain or incur, and as well from all orders, decrees, judgments and adjudications against the Company by reason or in consequence of having executed such bond or undertaking in behalf of and/or at the instance of the indemnitor(s) (or any of them) and will pay over, reimburse and make good to the Company, its successors and assigns, all sums and amounts of money required to meet every claim, demand, liability, costs, expense, suit, order, decree, payment and/or adjudication against the Company by reason of the execution of such bond or undertaking and any other bonds or undertakings executed in behalf of and/or at the instance of the Indemnitor(s) and before the Company shall be required to pay thereunder. The liability for legal fees and disbursements includes all legal fees and disbursements that the Company may pay or incur in any legal proceedings, including proceedings in which the Company may assert or defend its right to collect or to charge for any legal fees and/or disbursements incurred in earlier proceedings. * * * 7. The Indemnitor(s) agree(s) that the Company may at any time take such steps as it may deem necessary to obtain its release from any and all liability under any of said bonds or undertakings, and it shall not be necessary for the Company to give the Indemnitor(s) notice of any fact or information coming to the Company's notice or knowledge concerning or affecting its rights or liability under any such bond or undertaking, notice of all such being hereby expressly waived; and that the Company may secure and further indemnify itself against loss, damages and/or expenses in connection with any such bond or undertaking in any manner it may think proper including surrender of the defendant (either before or after forfeiture and/or payment) if the Company shall deem the same advisable; and all expenses which the Company may sustain or incur or be put to in obtaining such release or in further securing itself against loss, shall be borne and paid by the Indemnitor(s). In conjunction with applying for bail for the defendant Arrechea, Ms. DeVico also signed a Bail Bond Information Sheet which advised her in bold print that: When all agreements have been fulfilled and bond is discharged, in writing or by the court, and without loss expense on the bond, your full collateral will be returned to you.
Recommendation On the basis of all of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance and Treasurer enter a Final Order in this case to the following effect: Concluding that the Respondent is guilty of the violations charged in the Administrative Complaint, and Imposing an administrative penalty consisting of an administrative fine in the amount of $1,000.00 and a suspension of the Respondent's license for a period of 90 days. DONE AND ENTERED this 12th day of May 1993, in Tallahassee, Leon County, Florida. MICHAEL M. 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 12th day of May 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-4378 The following are my specific rulings on all of the proposed findings of fact submitted by all of the parties. Proposed findings submitted by Petitioner: Paragraphs 1 through 6: Accepted. Paragraph 7: Rejected for two reasons; first, the proposed finding is irrelevant because it is not alleged in the Administrative Complaint, and, second, the proposed finding was not proved by clear and convincing evidence. Proposed findings submitted by Respondent: Paragraphs 1 through 4: Accepted. Paragraph 5: First sentence accepted. Remainder of this paragraph rejected as subordinate and unnecessary details. Paragraphs 6 through 13: Accepted in substance with some details clarified. Paragraph 14: First sentence accepted. Remainder rejected as subordinate and unnecessary details. Paragraph 15: Rejected as constituting procedural details or conclusions of law, rather than proposed findings of fact. Paragraph 16: Rejected as constituting statement of position or legal argument, rather than proposed finding of fact. Paragraph 17: First sentence accepted. The remainder of this paragraph is rejected as constituting conclusions of law or legal argument, rather than proposed findings of fact. Paragraph 18: Rejected as constituting a conclusion of law, rather than a proposed finding of fact. Paragraphs 19 and 20: Accepted COPIES FURNISHED: David D. Hershel, Esquire Department of Insurance Division of Legal Services 612 Larson Building Tallahassee, Florida 32399-0300 Martin L. Roth, Esquire Haber & Roth 1370 Northwest 16th Street Miami, Florida 33125 Honorable Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neill, General Counsel Department of Insurance The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
