The Issue The issue in this case is whether Respondent is guilty of a violation of bail bondsmen disciplinary statutes.
Findings Of Fact At all material times, Respondent has been licensed in the State of Florida as a bail bondsman. He operates Freedom Bail Bonds in Orlando, Florida. On May 28, 1988, law enforcement officers of the Orange County Sheriff's Office arrested John P. Moody and placed him in the Orange County jail. Mr. Moody had never previously been arrested. After he was arrested, Mr. Moody contactedRespondent about obtaining a bail bond in order to get out of jail. Respondent agreed to come to the jail and interview Mr. Moody to determine if Freedom Bail Bonds could provide him a bond. When Respondent arrived at the jail on the evening of May 28, he was informed by an officer of the three charges that were pending against Mr. Moody. The bond was $1000 per charge, and the premium was 10% of the bond. Respondent met with Mr. Moody and asked him whether he had any assets to secure the bond. Mr. Moody explained that he had no assets such as a car, cash, or cash equivalent. However, he said that he owned jointly with his mother some land in Orange County. At the conclusion of the interview, Respondent had decided to write the bond. Respondent then learned from the booking officer that another charge had been added. Following a brief conversation between Respondent and Mr. Moody concerning the new charge, Respondent learned from the booking officer that a fifth charge had been added. After another conversation with Mr. Moody, Respondent learned in this manner that a sixth, and final, charge had been added. In all, Mr. Moody was charged with one count of failing to return a hired automobile and five counts of fraudulent bank deposits. Each charge carried a $1000 bond, so Mr. Moody now required a total bond of $6000, which in turn required a total premium of $600. Due to the increased amount of the bond, Respondent informed Mr. Moody that he would have to secure the bond with a mortgage on the property jointly held with his mother. Mr. Moody agreed, but asked Respondent not to contact Mr. Moody's mother immediately. It was the middle of the night, and Mr. Moody's mother is an invalid. Respondent agreed to allow Mr. Moody to contact his mother later and obtain her signature on a mortgage. Because Mr. Moody lacked the funds, a friend, Marion Reed Johnson, agreed to pay the premium. Knowing that Mr. Moody would not be able to obtain that evening his mother's signature to a mortgage, Respondent insisted on some interim security and agreed to accept six $1000 promissory notes from Mr. Johnson. These notes were payable on demand, but, according to their terms, became void if Mr. Moody appeared in court when ordered to do so and discharged all of the obligations of the bail bond. Respondent gave Mr. Johnson receipts for the $600 premium and six $1000 notes as soon as Respondent received these items. At the same time, also on the evening of May 28, Respondent completed a bail bond application and indemnity form, on which Mr. Moody provided certain background information. Mr. Moody and Mr. Johnson also signed indemnifications in favor of the surety. The application form states that the surety: shall have control and jurisdiction over the principal during the term for which the bond is executed and shall have the right to apprehend, arrest and surrender the principal to the proper officials at any time as provided by law. The application form also provides: In the event surrender of principal is made prior to the time set for principal's appearances, and for reason other than as enumerated below is paragraph 3, then principal shall be entitled to a refund of the bond premium. It is understood and agreed that the happening of any one of the following events shall constitute a breach of principal's obligations to the Surety hereunder, and the Surety shall have the right to forthwith apprehend, arrest and surrender principal, and principal shall have no right to any refund of premium whatsoever. Said events which shall constitute a breach of principal's obligations hereunder are: If principal shall depart the jurisdiction of the court without the written consent of the court and the Surety or its Agent. * * * If principal shall commit any act which shall constitute reasonable evidence of principal's intention to cause a forfeiture of said bond. * * * The application and indemnities were signed. Mr. Johnson paid the $600 premium and executed and delivered the six $1000 demand notes. Respondent then caused Freedom Bail Bond to issue the bond. Mr. Moody was released from the jail during the evening of his arrest (actually during the predawn hours of May 29). May 28 was a Saturday. The following Monday, Respondent gave one of his employees a copy of the warranty deed from Mr. Moody's mother to herself and Mr. Moody. Mr. Moody hadgiven a copy of the deed to Respondent during their initial interview in order to allow Respondent to prepare the mortgage that Mr. Moody had agreed to provide. Respondent instructed the employee to use the legal description from the warranty deed to prepare a mortgage and send it to Mr. Moody for execution by his mother and him. The employee did as instructed and promptly mailed the mortgage to Mr. Moody with instructions for execution, witnessing, and notarization. After about a week, Respondent asked the employee if she had received the executed mortgage. She replied that she had not and proceeded to telephone Mr. Moody. When she asked him about the mortgage, Mr. Moody did not express any unwillingness to sign it, but said that he had not received it. Confirming the mailing address, the employee agreed to send him another mortgage and did so on June 6, 1988. Several times after mailing the second mortgage, the employee contacted Mr. Moody and discussed the need to get the document fully executed and delivered to Freedom Bail Bonds. On one occasion, Mr. Moody agreed to return the executed mortgage on June 22. But on the last of these conversations, Mr. Moody informed the employee, for the first time, that he had no intention of providing the mortgage. The employee told Respondent what Mr. Moody had said and returned the file to Respondent for further action. At about the same time that Respondent's officehad sent the mortgage to Mr. Moody the second time, Mr. Moody's sister telephoned Respondent. Estranged from her brother, she was concerned that Mr. Moody, whom she believed had misused funds of their invalid mother in the past, might try to obtain their mother's signature on a mortgage to secure a bond in order to get out of jail. Mr. Moody's sister informed Respondent that her brother was not authorized to obtain their mother's signature on the mortgage. She said that her brother was not to be trusted, had improperly removed money from their mother's trust in the past, and had defaulted on at least one debt so as to require the creditor to lien the jointly held property in order to be repaid. At about the same time, a different employee of Respondent received an anonymous telephone tip that Mr. Moody was about to depart, or had already departed, on a trip to Alabama with another man. The informant described what turned out to be a vehicle owned by Mr. Johnson, with whom Mr. Moody had been living since his release from jail on May 29. Several attempts by Respondent's employees to reach Mr. Moody over the next two to four days were unsuccessful. In fact, Mr. Moody had gone to Alabama, which is outside the jurisdiction of the Orange County Circuit Court. On July 18, 1988, one of Respondent's employees contacted the Clerk of Court's office and learned that Mr. Moody had not qualified for the services of a Public Defender. In addition, the employee had been notified on or about July 6, byreceipt of a notice of hearing on a Determination of Counsel, that Mr. Moody had not been diligent in obtaining counsel. After determining that other Determination of Counsel hearings had been and were being set by the Court, the employee reasonably concluded that Mr. Moody was not diligently trying to obtain counsel or independently resolve the pending criminal matters. The employee communicated this information to Respondent on July 18. Respondent contacted Mr. Moody by telephone on July 18 and asked when he was going to supply the executed mortgage. Mr. Moody responded that he had determined that Respondent did not need the additional security and was not going to provide it. At this point, Respondent concluded that it was likely that Mr. Moody had in fact left the state without permission. Respondent also concluded that Mr. Moody no longer represented an acceptable risk. Respondent thus directed another employee to join him to arrest Mr. Moody and surrender him to the Orange County Sheriff's Office. Respondent and his employee immediately visited Mr. Moody and asked him whether he had left the state. Mr. Moody admitted doing so. Respondent and the employee then arrested Mr. Moody and returned him to jail. Mr. Moody remained in jail for 63 days until he pleaded guilty to the charges. He was sentenced to the time served, placed on probation for four years, and required to makerestitution, which he has done so far in accordance with the schedule. Following his release from jail, Mr. Moody returned to live with Mr. Johnson and gradually repaid him the $600 that he owed him. Although Mr. Moody demanded return of the $600, he never offered any proof of payment to Mr. Johnson. Mr. Johnson never demanded the return of the money. Respondent has retained the $600 premium. The six $1000 notes were automatically voided when Mr. Moody was arrested on July 18.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Insurance and Treasurer enter a final order dismissing the Administrative Complaint. ENTERED this 22nd day of March, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399 (904) 488 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1991. COPIES FURNISHED: Hon. Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399 Bill O'Neil, General Counsel Department of Insurance The Capitol, Plaza Level Tallahassee, FL 32399 Attorney David D. Hershel Division of Legal Services 412 Larson Building Tallahassee, FL 32399 Attorney Alan B. Robinson 56 East Pine Street Orlando, FL 32801
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the stipulated facts, the following relevant facts are found: At all times relevant to this proceeding, respondent Joseph Aloysius Von Waldner has been licensed as a limited surety agent. He has been in the bail bond business for nine years and has had no previous or subsequent complaints issued against him. On five occasions during January and February of 1979, respondent did authorize, hire and remunerate Delbert Leroy Sams to pick up principals or skips and surrender them to the Orange County Jail. Delbert Leroy Sams was not and has not been previously licensed in any capacity by the Department of Insurance. On March 2, 1979, Mr. Sams was denied a license by the Department of Insurance. At the time respondent engaged the services of Mr. Sams, respondent believed that Mr. Sams was working as a bail bond runner for another bail bondsman. Respondent did not inquire of Sams as to whether Sams was or was not licensed by the Department of Insurance. Respondent knew that other bail bondsmen had used Sams as a runner, and Sams showed respondent some business cards and forms which Sams used when picking up principals. Respondent admits that he was negligent for not inquiring into Mr. Sams' licensure. Respondent was called in for an investigation by the petitioner's chief investigator, Melvin R. Thayer, on February 28, 1979. After talking with Mr. Thayer and becoming aware that Mr. Sams was not licensed, respondent no longer used Sams as a runner.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Department of Insurance enter a final order finding that respondent violated the provisions of Florida Statutes, s648.45(1)(j) and imposing an administrative penalty against respondent in the amount of $100.00, said penalty to be paid within thirty (30) days of the date of the final order. Respectfully submitted and entered this 27th day of June, 1980, in Tallahassee, Florida. DIANE D. TREMOR 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 27th day of June, 1980. COPIES FURNISHED: Thomas A. T. Taylor, Esquire Room 428-A, Larson Building Tallahassee, Florida 32301 Richard L. Wilson, Esquire 100 South Orange Avenue Orlando, Florida 32801 Insurance Commissioner Bill Gunter The Capitol Tallahassee, Florida 32301
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 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 Whether Respondent violated Section 648.30(1), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact On June 3, 1999, pursuant to Section 626.9581, Florida Statutes, the Department filed a Notice of Intent to Issue Cease and Desist Order and Assess Penalty against Respondent, alleging that he was not currently nor was he at all times relevant to the notice, licensed to transact bail bond business in the State of Florida. Respondent requested a hearing in the matter but failed to appear at the appointed time and place duly noticed for the administrative hearing in this matter. Respondent is not and was not at all times relevant to the subject matter of Petitioner's Notice of Intent to Issue Cease and Desist Order and Assess Penalty, licensed to transact bail bond business in the State of Florida. On February 6, 1998, Respondent, in the Circuit Court of Pasco County, Florida, in Case No. 9603891CFAWS, entered a plea of nolo contendere and was adjudicated guilty attempting to perform the responsibilities of a bail bondsman without a license, a first-degree misdemeanor, in violation of Section 648.30, Florida Statutes. It is a violation of Chapter 648, Florida Statutes, for an unlicensed person to act in the capacity or attempt to act in the capacity of a bail bond agent, temporary bail bond agent, or runner or perform or attempt to perform any of the functions, duties, or powers prescribed therefor.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Insurance and Treasurer: Enter a final order finding that Respondent engaged in a deceptive act by acting or attempting to act in the capacity of a bail bond agency. Issue a Cease and Desist Order directing Respondent to immediately cease and desist from acting or attempting to act in the capacity of a bail bond agent until or unless he is properly licensed pursuant to the provisions of Chapter 648, Florida Statutes. DONE AND ENTERED this 23rd day of November, 1999, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 November, 1999. COPIES FURNISHED: Bill Nelson Commissioner of Insurance and Treasurer Department of Insurance The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Y. Sumner, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300 Ray Henry Anderson 13933 Muriez Avenue Hudson, Florida 34667 Dickson E. Kesler, Esquire Department of Insurance 401 Northwest Second Avenue, Suite N-321 Miami, Florida 33128
Findings Of Fact Mr. Patterson is currently eligible for licensure and is licensed in this state as a limited surety agent (bail bondsman). At all times material to the Administrative Complaint, Mr. Patterson was eligible for licensure and was licensed in Florida as a limited surety agent (bail bondsman) with Crews Bonding Agency located in Jacksonville, Duval County, Florida. As such, he was a full-time employee of the Crews Bonding Agency and worked the 4:30 p.m. to 8:00 a.m., or night shift, each night. Mr. Patterson was the only licensed bail bondsman on this shift at the Crews Bonding Agency. Ralph Bunch Collins was also a full-time employee of Crews Bonding Agency at all times material, and at all times material, Mr. Collins worked the night shift with Mr. Patterson. Mr. Collins was recognized by Mr. Patterson and his employer as an administrative assistant whose job entailed clerical duties with regard to the bonding process. Mr. Patterson and Mr. Collins worked as a team. Mr. Collins is not a limited surety agent, bail bondsman, runner, or permittee under Chapter 648, F.S. At all times material, Jerelyn Rodriguez, ne' Langtree, was licensed in Florida as a limited surety agent (bail bondsman) with Crews Bonding Agency. She, also, was a full-time employee of that agency and was its designated office manager. Mrs. Rodriquez worked the hours of 8:00 a.m. to 4:30 p.m. daily with an administrative assistant named Mrs. Cook, and together Rodriquez and Cook constituted the Crews Bonding Agency's day shift team. The 1983 version of the statute under which Mr. Patterson is charged in the Administrative Complaint read as follows: 648.441 Furnishing supplies to an unlicensed bail bondsmen prohibited: civil liability and penalty.-- No insurer, bail bondsman, runner, or permittee under this chapter shall furnish to any person any blank forms, applications, stationery, or other supplies to be used in soliciting, negotiating, or effecting bail bonds until such person has received from the department a license to act as a bail bondsman and has duly qualified as such. Any insurer, licensee, or permittee who furnishes to any bail bondsman or other person not named or appointed by `the insurer represented any of the supplies mentioned in subsection (1) and accepts any basil bond business from or writes any bail `bond business for such bail bondsman, person, or agency shall be subject to civil liability to any insured of such insurer to thee same extent and in the same manner as if such bail bondsman or other person had been appointed, licensed, or authorized by the insurer, general agent, or bail bondsman to act in its or his behalf by the department. [Emphasis supplied] On March 27, 1984 a Consent Order was entered in the Circuit Court in and for Duval County, Florida, in the case styled, Jack I. Etheridge and F.G.C. Bonding and Insurance Corporation v. State of Florida and State of Florida Department of Insurance, Case No. 82-10537. That Consent Order provided, in pertinent part, as follows: 4. Florida statute 648.441(1) likewise must be given a liberal and common sense application in order to preserve its constitutionality. It is the intent of the Legislature, as interpreted by this Court that said subsection is designed to prohibit licensed bail bondsmen from allowing non- licensed persons to actually conduct a (sic) legitimate and licensed activities of a licensed bail bondsman. Therefore this Court finds that it is a constitutionally permissable (sic) legislative act to prevent licensed person (sic) from providing non- licensed persons with forms and supplies of the trade that would permit the non-licensed persons to violate the law. However, this does not preclude clerical activities by non- licensed persons under the direct supervision of a licensed person to the extent that it is consistent with the general intent of said section. (Emphasis supplied) [Patterson Exhibit 1] The wife of Jack I. Etheridge, who was a plaintiff in the foregoing civil lawsuit, was an owner of the Crews Bonding Agency at all times material to the instant administrative proceeding. The foregoing Circuit Court Consent Order to which DOI was a party is the only relevant interpretation by a court of competent jurisdiction of Section 648.441 F.S. which either party hereto or the undersigned has been able to discover. DOI put on no expert evidence of agency construction of the statute either formally by rule or informally by policy. Subsequent to that Circuit Court Consent Order, the statute interpreted therein [see FOF 5, supra] was amended to add subsection (3), as follows: Any person who violates this section is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. All three statutory subsections were in effect at all times material to the administrative charges against' Mr. Patterson. During the night shift of New Year's Eve, December 31, 1988, Susan Miller a/k/a Sharon Miller, who was then the wife of James Edward Miller, contacted the Crews Bonding Agency by telephone and relayed certain necessary information to Ralph Collins as a predicate to securing a bond to get her husband out of the Duval County Jail. In turn, Mr. Collins called the jail and received basic information for making out the necessary bonding papers. Mrs. Miller arrived at the bonding agency and Mr. Collins prepared certain paperwork for her signature, that of her husband, and that of the Mr. Patterson as bail bondsman. It is the unrefuted testimony of Mr. Patterson, Mr. Collins, Jerelyn Rodriquez, and Gilbert Clark that in doing so, Mr. Collins was conforming to the standard operating procedure of the Crews Bonding Agency and the custom in the bonding trade at least as far as that trade has been practiced within Duval County, Florida, since the entry of the March 27, 1984 Consent Order. Patterson Exhibit 2 and the testimony of Correctional Officer Larry Wooten established that, provided the licensed bondsman presents the bond and personally receives the prisoner into his custody, the foregoing clerical practice and procedure has been acquiesced-in by a published policy of the Duval County Sheriff's Office and by county jail personnel, of which Mr. Wooten is one. There was unrefuted testimony that without such clerical help, a licensed bondsman could not function 24 hours a day, as is common in the trade. It is also the unrefuted testimony of Mr. Patterson, Mr. Collins, and Mrs. Rodriquez that at all times material to the Miller transaction, Mr. Collins was subject to the supervision of Mr. Patterson, that Mr. Patterson had the absolute right to alter any document prepared by Mr. Collins prior to signing the Miller bond, and that Mr. Patterson ultimately could have rejected underwriting Mr. Miller's bond if, after Mr. Patterson's review, the documents Mr. Collins had prepared did not conform to the insurance law, rules, or standards to which Mr. Patterson, as a licensee, was bound to conform. The foregoing testimony is further supported by the testimony of Gilbert Clark. Mr. Clark is a licensed bail bondsman who is not now and never has been associated with the Crews Bonding Agency. He testified that Mr. Patterson could ultimately have refused to place the Miller bond even if Mr. Patterson's only dissatisfaction upon his review of the documents prepared by Mr. Collins had been the sufficiency of the collateral or premium provided by the Millers. With regard to the Miller transaction, Mr. Collins prepared the Indemnity Agreement (DOI Exhibit 2e) for signature by Mr. Miller's wife, which Mr. Collins notarized with certificate, seal, and stamp. Collins prepared a Promissory Note (DOI Exhibit 2f) and signed on the line provided for a witness to Mrs. Miller's signature but without applying his notary certificate, seal, or stamp. Collins prepared a Premium Receipt (DOI Exhibit 2g) and signed on the line acknowledging that the premium had been "received by" him in the form of a check from Mr. and Mrs. Miller. The nature of the Premium Receipt and the Collateral Receipt does not necessarily require the Millers' signatures, but Mr. Collins testified that his own signature on the Premium Receipt was meant to signify that he had witnessed signatures and that he had signed it as a notary but that he did not affix a notary certificate, seal, and stamp because he saw no reason for those formalities. Because of the requirements of Chapter 117 F.S. governing notaries public, because the document speaks for itself, and because Mr. Collins testified that he, in fact, received the premium, his testimony that he signed the Premium Receipt for the Miller transaction only as a notary or witness is not credible, particularly since the exhibit (DOI Exhibit 2g) does not bear the Millers' signatures. Mr. Collins prepared the Collateral Receipt (also DOI Exhibit 2g) and received the collateral, signifying same by his signature. (TR 40-41). However, Mr. Patterson signed on the Miller bond and went through all the bond papers, including the foregoing, with Mr. Miller after Mr. Patterson personally physically obtained Mr. Miller's release from jail. On July 7, 1989, Henry A. Robinson went to Crews Bonding Agency in an effort to bond his son, Henry Steve Robinson, out of the Duval County Jail. All of the father's negotiations were with Mrs. Rodriquez. The father did not testify. At all times material to the Robinson transaction, both Mrs. Cook and Mr. Collins had signs on their respective desks, proclaiming them to be administrative assistants, and a sign on Mr. Patterson's desk proclaimed him to be a bail bondsman. When Mr. Patterson and Mr. Collins arrived at Crews Bonding Agency for the July 7, 1989 night shift, some paperwork had already been prepared by Mrs. Rodriquez and others. Mrs. Rodriquez had already reviewed all the papers prepared by someone else, and Mrs. Rodriquez had tentatively committed to underwriting the bond on Henry Steve Robinson. Mr. Patterson did not thereafter "second guess" Mrs. Rodriquez's initial work or judgment despite his absolute right to reject the bond for all the reasons aforesaid in FOF 12. Some further Robinson transaction paperwork was prepared by Mr. Collins after he came on duty. The nature of several of these documents did not require either the signature of the father, the mother, or the son or the notarizing thereof, but the evidence indicates that Mr. Collins thought some of them did. Premium Receipt 127003 (DOI Exhibit 4f, apparently one of two such receipts) and the Collateral Receipt (DOI Exhibit 4b) for this transaction were signed by Mr. Collins on the "received by" lines. He testified that he signed these only as a Crews employee, i.e., a clerk administrative assistant, and as a notary but without affixing his notarial seal. Collins testified that he signed as a witness for the father's signature on the witness line as a Crews employee for the Contingency Promissory Note (DOI Exhibit 4c, TR 48-50), that he did not notarize the note initially when the senior Mr. Robinson signed it in his presence because arrangements were made for the senior Mr. Robinson's convenience to allow Mrs. Robinson to sign the following day, and that the next day, Mr. Collins just witnessed on the other side of that document. However, the documentary evidence (DOI Exhibit 4c) is clear that Mrs. Robinson (the mother) never signed the Contingency Promissory Note. Mr. Collins testified that he signed as a Crews Bonding Agency employee and then notarized with a certificate, seal, and stamp the Indemnity Agreement to the effect that it had been signed by Mr. Robinson's father and mother when in fact the mother never signed that document. (TR 52-56, DOI 4e). Due to the provisions of Chapter 117 F.S., the discrepancy between the exhibits and the testimony, and the vacillation of Mr. Collins in giving his oral testimony, it is found that contrary to Mr. Collins' oral testimony, he was confused or uninformed as to his actual function with regard to the Robinson transaction. However, Mr. Patterson reviewed all the Robinson papers and documents and signed the General Appearance Bond as surety and as attorney-in-fact and an agent of Crews Bonding Agency. Mr. Patterson also personally effectuated Henry Steve Robinson's release from jail on July 7, 1989. Henry Steve Robinson (the son) had been bonded out of the Duval County Jail by the team of Patterson and Collins of the Crews Bonding Agency on at least two occasions, and due to Mr. Robinson's confusion of dates, his testimony concerning exactly what papers he went over with Mr. Patterson or anyone else on July 7, 1989 was somewhat vague. However, he was very clear on some points: Mr. Collins never said he was a bail bondsman, it was Mr. Patterson who signed Robinson out of jail each time, and Robinson signed papers in the bonding agency office each time. Robinson believed that Mr. Patterson was the person who explained all the papers to him in Collins' presence on the date in question, but could not be sure. Mr. Collins and Mr. Patterson asserted that as of the July 11, 1990 formal hearing, Crews Bonding Agency clerical personnel are no longer permitted to sign premium and collateral receipts. This instruction was given in anticipation of amendments to Section 648.441 F.S. which were due to go into effect October 1, 1990. Although Mrs. Miller did not testify, the evidence as a whole from other witnesses supports the reasonable inference that this case arose partly because she complained to DOI when Mr. Collins and other Crews Bonding Agency employees refused to summarily reincarcerate her husband upon her oral complaints of domestic problems. No finding has been made concerning what impression of Mr. Collins was formed by Mrs. Miller or concerning the state of Mrs. Miller's mind because the evidence presented on those issues was speculative and not the type of hearsay which would explain or supplement direct and probative evidence. Neither Mr. Miller or Mr. Henry Steve Robinson appeared to have any complaints with the bonding process or participants.
Recommendation DOAH Case No. 90-0406 Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance and Treasurer enter a Final Order dismissing the Administrative Complaint. DOAH Case No. 90-0584 Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance and `Treasurer enter a Final Order granting Mr. Patterson's application for a resident license to represent Amwest Surety Insurance Company as a limited surety agent (bail bondsman). DONE and ENTERED this 17th day of October, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 1990.
