Findings Of Fact Petitioner, Barry Stephen Yanks (Yanks), has applied to respondent, Department of Insurance (Department), for examination as a bail bondsman (limited surety agent) pursuant to Chapter 648, Florida Statutes. By letter dated February 7, 1989, the Department denied Yanks' application. The gravamen of the Department's denial was its contention that on December 9, 1987, Yanks had accepted jewelry as collateral for a bail bond, and that such jewelry had not been timely returned to its owner. As a consequence, the Department concluded that Yanks had acted as a bail bondsman without being licensed as such, and that he lacked the fitness and trustworthiness to engage in the bail bond business. Yanks filed a timely petition for formal hearing to contest the Department's action. At hearing, the proof failed to demonstrate that Yanks had acted inappropriately as contended by the Department. Rather, the proof demonstrated that when Yanks accepted jewelry from Corrine Hough on December 9, 1987, as collateral for a bail bond to be written on her son, that he was acting on behalf of the attorney for American Bankers Insurance Company (American), the proposed surety. Under the arrangements made with Ms. Hough, the collateral was to be held by the attorney for American because she did not have confidence in the bondsman who was to write the bond, one Nestor Tabares, to safeguard her property. Accordingly, at the request of American's attorney, Yanks secured the collateral from Ms. Hough, gave her a receipt, and delivered the jewelry back to the attorney. After delivery of the jewelry to the attorney, Yanks had no further contact with or control over it. While there was a delay of some 10 months following the termination of the bond that was ultimately written on Ms. Hough's son before her jewelry was returned, such delay was not occasioned by or within the control of Yanks. In sum, Yanks did not act as a bail bondsman on December 9, 1987, and did not exert any control over Ms. Hough's jewelry such that he might be held accountable for any delay in its return.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered granting the application of Petitioner, Barry Stephen Yanks, for examination as a bail bondsman (limited surety agent) pursuant to Chapter 648, Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of October 1989. 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 2nd day of October 1989. APPENDIX The proposed findings of fact submitted on behalf of Yanks have been adopted in substance in paragraphs 1-5. The purposed findings of fact submitted on behalf of the Department are addressed as follows: Subordinate or not necessary to the result reached. To the extent supported by the proof, adopted in paragraph 3, otherwise rejected. Adopted in paragraph 3. Not relevant. 5 & 6. Adopted in substance in paragraph 4. COPIES FURNISHED: Robert V. Elias, Esquire Office of Legal Services 412 Larson Building Tallahassee, Florida 32399-0300 Ana Hernandez-Yanks, Esquire 1481 N.W. 7th Street Miami, Florida 33125 The Honorable Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Don Dowdell General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300
The Issue The issue for determination is whether Respondent violated Subsections 648.44(8)(a), 648.44(8)(b), 648.45(2), 648.45(2)(e), 648.45(2)(j), 648.45(2)(k), 648.45(3), 648.45(3)(c), 648.45(3)(e), 648.30(1), 648.30(2), 648.30(3), and 648.30(4), Florida Statutes.
Findings Of Fact Pursuant to Chapter 648, the Department has jurisdiction over bail bond licensure, appointments, and related activities. Respondent, Pamela Jean Coleman, appeared before the undersigned in this proceeding, identified herself as Pamela Jean Coleman, and admitted that she is the Respondent in this matter and that the Department has jurisdiction over her and the subject matter involved in the Notice of Intent. At all times relevant to the dates and occurrences referred to in the Notice of Intent, Respondent was also known as Deborah Lee Diehl, Pamela Jean Jones, Pamela Jones, Pamela Coleman, Pam Jones, and Pamela J. Coleman. At all times relevant to the dates and occurrences referred to in the Notice of Intent, Respondent was not licensed as a bail bond agent in the State of Florida. On March 28, 1975, in Case Number 75-239CF, in the Fifteenth Judicial Circuit in and for Palm Beach County, Florida (Criminal Division), Respondent pled guilty and was adjudged guilty of buying or receiving or aiding in concealment of stolen property, a felony (a crime of moral turpitude). On October 22, 1975, in Case Number 75-2390CF, Fifteenth Judicial Circuit in and for Palm Beach County, Florida (Criminal Division), Respondent, a/k/a Deborah Lee Diehl, pled guilty and was adjudged guilty of the felony of violation of drug abuse law. Records of the State of Florida Department of Law Enforcement (FDLE) show that the conviction set forth in paragraph 6 above included convictions on March 28, 1975, and July 17, 1975, for parole violation. At the final hearing counsel for Respondent stated: Mr. Franklin: . . . I don't think there is any dispute as to those underlying facts about what happened in 1975 -- Ms. Coleman: Correct. Mr. Franklin: -- and what happened subsequent. And the subsequent event was that Ms. Coleman was -- received the grace of executive clemency. She did receive a limited restoration of civil rights that granted to her the restoration of all of her civil rights with the exception of a specific statutory authority to own or possess a firearm, at least as to all of the '75 convictions. . . . By Executive Order Number 80-C-0 filed with the Florida Secretary of State on March 7, 1980, Respondent was granted restoration of civil rights, except to specific authority for possession or owning a firearm, for any and all felony convictions in the State of Florida and/or restoration of civil rights in the State of Florida for any and all felony convictions in any state other than Florida, or in any United States court or military court for which this person has been duly discharged from imprisonment and/or parole, adult community control or probation, and for which this person has not been heretofore granted clemency. This grant of clemency included, but was not limited to, Case Nos. 75-239CF and 75-2390CF, in the Fifteenth Judicial Circuit in and for Palm Beach, Florida. On April 16, 1991, in Case Number CF91-1923AI-XX, Tenth Judicial Circuit in and for Polk County, Florida, Respondent, a/k/a Pamela Jean Jones, was charged with grand thief. On or about November 25, 1991, Respondent pled nolo contendere to the reduced charge of petit theft and was found guilty and convicted of petit theft.1 Petit theft is a first-degree misdemeanor, which constitutes a crime of moral turpitude. Record of the Delaware Secretary of State, dated May 5, 1997, confirmed that the Clarence Luther Cephas, Ltd., Inc. (Cephas Bail Bond Agency) was duly incorporated under the laws of the State of Delaware, was in good standing, and had a legal corporate existence as of May 5, 1997. Record of the Florida Secretary of State, Application for Reinstatement, confirmed that the Cephas Bail Bond Agency applied as a corporation qualified to do bail bond business in Florida and was reinstated to do bail bond business as of January 19, 1999. The Cephas Bail Bond Agency's application listed Pamela J. Coleman, 2353 Mammoth Grove Road, Lake Wales, Florida, as its president, secretary, director, and registered agent. The application dated October 26, 2000, bore the signature of Respondent and listed her telephone number as (863) 533-0405. Two Uniform Business Reports (UBR) of the Cephas Bail Bond Agency were filed with the Florida Secretary of State on August 6, 2001, and March 29, 2002. Both reports bore the signature of Respondent as President of the Cephas Bail Bond Agency. Testimony of Petitioner's witnesses conclusively established, without dispute, that Respondent participated in the bail bond business of the Cephas Bail Bond Agency during the approximate period of March 1997 to November 27, 2002. During that span of time, Respondent did on various occasions act and represent herself to the public as one having power to act in several capacities and positions with the Cephas Bail Bond Agency. Her activities included acting as a registered agent, a director, a bail bond agent, a temporary bail bond agent, a runner, a bail enforcement agent, and a bounty hunter. Clarence Luther Cephas, Sr., under oath on November 27, 2002, gave the following statement: I have known Pamela Coleman/Jones for approximately four years and she has been affiliated with me for most of the time that I have been in the bail bond business. I had asked her if she had ever been convicted of a felony and she said that she had been convicted as a teenager. She has a Certificate of Restoration of Civil Rights from the Office of Executive Clemency that is dated March 7, 1980. I was under the impression that if her rights had been restored, that it would not be a problem with her working for me. I named Pamela as an officer in my corporation because I did not have any family that I could list as an officer except for my daughter, who is a deputy sheriff and could not be an officer of the corporation. Records of the Circuit Court of the Tenth Judicial Circuit in and for Polk County, Florida, show that on or about December 16, 2002, an Amended Information was filed in Case No. CF02-00597A-XX, State of Florida vs. Pamela Jean Coleman, W/F, 09/17/1958, XXX-XX-9751, charging that between November 27, 2000, and January 25, 2002, in Polk County, Florida, Respondent, having been convicted of or pled guilty or no contest to a felony or a crime involving moral turpitude or a crime punishable by imprisonment of one year or more under the law of any state, territory, or county, regardless of whether adjudication of guilt was withheld, did participate as a director, officer, manager, or employee of a bail bond agency or office thereof, or exercise direct or indirect control in any manner in such agency or office, or own shares in a closely held corporation which had an interest in a bail bond business, contrary to Section 684.44. The testimonial and documentary evidence clearly and convincingly, during the period of November 2000 through December 2001, identified Respondent as the person who, on various occasions, did act in several capacities and positions as a bail bond agent and performed functions, duties, or powers prescribed for licensed bail bond agents. Undisputed evidence identified Respondent as the person who, early in 2001, presented herself to another and engaged in conduction and solicitation of bail bond business in the office of the Cephas Bail Bond Agency. Undisputed evidence identified Respondent as the person who, on June 19, 2001, presented herself and identified herself as Pamela Jean Coleman, Vice-President of Clarence Cephas Bail Bonds, to Noel Collier who was working in her husband's law office as a paralegal. Respondent presented to Ms. Collier bond release paperwork from the Cephas Bail Bond Agency and requested that a mutual client facing criminal charges sign the paperwork. Undisputed evidence demonstrated that on or about September 2001, Respondent held herself out as the person with whom to conduct bail bond business with Constance Castro in or about the home of Clarence Luther Cephas, Sr., that served also as the Cephas Bail Bond Agency office. The records of Circuit Court of the Tenth Judicial Circuit in and for Polk County, Florida, show that on or about January 31, 2003, in criminal Case No. CF02-00597A-XX, Respondent (a/k/a Deborah Lee Diehl, a/k/a Pamela Jean Jones, a/k/a Pamela Jones, a/k/a Pamela Coleman, a/k/a Pam Jones, and a/k/a Pamela J. Coleman) was tried, found guilty, and adjudicated guilty of a violation of Subsection 648.44(8), acting as a bail bondsman while being a convicted felon, a felony of the third degree, as charged in the aforesaid Amended Information. Respondent was sentenced by the court to 60 days in county jail (to be served on weekends) and placed on probation for a period of five years. The conditions of Respondent's probation required her to: (1) Pay restitution in the amount of $457.99 to the Department of Insurance within two years; (2) pay court costs of $400.00 within two years; and (3) not to be employed as a bail bondsman or to have any contact with her husband's (Clarence Luther Cephas, Sr.) business. Counsel for Respondent represented on this record that: (1) he was counsel of record in Case No. CF02-00597A-XX and that Respondent, in this proceeding, was the person charged, tried, convicted, and adjudicated guilty; and (2) he has filed a timely appeal of the conviction and sentence on behalf of Respondent in Case No. CF02-00597A-XX, in the Second District Court of Appeal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order as follows: Finding that Respondent, Pamela Jean Coleman, is disqualified from participation in bail bond-related activities by a prior conviction of a crime involving moral turpitude; and that Respondent is guilty of participating in the bail bond business, in violation of Subsections 648.30(1) through (3); 648.44(8)(a); 648.45(2)(e), (j), and (k); and 648.45(3)(a), (c), and (e). Enter a Cease and Desist Order pursuant to Section 626.9581 and the Florida Insurance Code, directing Respondent, Pamela Jean Coleman, to immediately cease and desist any and all bail bond-related activities in the State of Florida. DONE AND ENTERED this 17th day of October, 2003, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 2003.
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 Petitioner's application for licensure as a temporary limited surety/bail bond agent pursuant to Sections and 648.355, Florida Statutes, should be granted.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying; documentary materials received into evidence; stipulations by the parties; evidentiary ruling made pursuant to Section 120.57, Florida Statutes; and the record evidence submitted, the following relevant and material facts are determined: Pursuant to Chapter 648, Florida Statutes, Respondent has jurisdiction over bail bond licensure, appointments, and related activities. Petitioner appeared before the undersigned in this proceeding, identified himself and admitted that he is the individual prosecuted in the Thirteenth Judicial Circuit, in and for, Hillsborough County, Florida, Case No. 88-CF-15373, State of Florida v. Bennie Small, Jr., on a Direct Information of two counts of grand theft, and that Respondent has jurisdiction over him and the subject matter involved in its denial letter. The record evidence demonstrated that on or about January 21, 1987, Petitioner entered into a real estate contract with Deltricia Wiggins, a prospective homebuyer. Ms. Wiggins, believing Petitioner to be the realtor representing the seller, gave Petitioner $500.00 to assist her in the purchase of the home. Thereafter, she became aware that the subject home had been sold and demanded that Petitioner return her $500.00. Petitioner failed or refused to return her $500.00. Ms. Wiggins contacted the Hillsborough County State Attorney's Office and made a report. At no time during the above transaction was Petitioner a licensed real estate sales person or licensed real estate broker. The record evidence demonstrated that Petitioner entered into a real estate contract with Janet Richardson, a prospective homebuyer. Ms. Richardson, believing Petitioner to be the realtor representing the seller, gave Petitioner $500.00 to assist her in the purchase of a family home. Thereafter, she became aware that the subject home had been sold and demanded that Petitioner return her $500.00. Petitioner failed or refused to return her $500.00. At no time during the above transaction was Petitioner a licensed real estate sales person or licensed real estate broker. On October 26, 1988, the State Attorney's Office filed a Direct Information charging Petitioner with two counts of grand theft. The two counts of grand theft stemmed from Petitioner's above two unlicensed real estate transactions. At some unknown time on or before January 5, 1989, Petitioner returned the money to both Misses Wiggins and Richardson. The fact that he subsequently returned money to his two victims did not negate his taking their money under illegal and false pretense. Record evidence demonstrated that on January 17, 1989, Petitioner was represented by the Office of the Public Defender of the Thirteenth Judicial Circuit, in and for, Hillsborough County, Florida, in Case No. 88-CF-15373, and a plea of no contest to the charge of grand theft was entered on his behalf. Circuit Judge Harry Lee Coe accepted the plea of no contest on behalf of Petitioner, withheld adjudication of guilt, imposed no probation, and ordered that Petitioner not practice law nor practice real estate without appropriate licensure. Petitioner produced no record evidence that the no contest plea entered on his behalf by the public defender and that the judgment and sentence of the Court imposed by Circuit Judge Harry Lee Coe, of the Hillsborough County Circuit Court on January 17, 1989, in Case No. 88-CF-15373, has been overturned, reversed or set aside by a court of competent jurisdiction. Petitioner, through his evidence and post-hearing submittals, presented the following arguments in support of his position that "he did not enter a plea of no contest to the grand theft charge." First, Petitioner argued that while in court, "he" personally did not enter a no contest plea. Second, he argued that "his" personal approval that a no contest plea be entered on his behalf was neither requested nor given to the public defender that represented him. Third, he argued that he was not made a party at the bench conference between the presiding Judge, the prosecutor, and his public defender, when discussions regarding the terms and condition of resolving his case were ongoing and concluded. Fourth, he argued that copies of the court docket sheet, recording entries written by the court's clerk, who sat in court and made each docket sheet entry as pronounced by the court, were insufficient to establish that those recorded actions were actually taken by the court. Because of the foregone alleged irregularities, argued Petitioner, there is no "official court record" of his having entered a no contest plea to the grand theft charge. Petitioner put forth no evidence in support of his several arguments challenging Respondent's denial of his license application. Petitioner proffered no evidence of the official judicial disposition of the two counts of grand theft filed against him. Petitioner failed to produce a scintilla of evidence in support of his assertions that Respondent did not fully comply with the Florida Statutes when Respondent, by letter dated June 2, 2003, informed Petitioner that his application for licensure as a surety/bail bond agent was denied, and the denial was based on a January 17, 1989, plea of no contest to the charge of grand theft, a felony, in the Thirteenth Judicial Circuit, in and for, Hillsborough County, Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's, Bennie Small, Jr., application for licensure as a temporary limited surety/bail bond agent. DONE AND ENTERED this 4th day of June, 2004, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 2004.
The Issue 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
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint issued against him in the instant case and, if so, what disciplinary action should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent Respondent is now, and has been for the past seven years, a Florida-licensed bail bond agent (license number A134458). He is the owner of Big Larry's Bail Bonds (Agency), a bail bond agency located in Broward County, Florida, with which two other Florida-licensed bail bond agents, James Jones (who is Respondent's brother) and Ron Striggles, are affiliated. Count I On April 23, 2002, Hugh Clarke went to the Agency, where he obtained from Respondent a $4,500.00 bail bond for a friend, Richard Dyke, who had been arrested in Palm Beach County, Florida, on a theft charge. To obtain the bail bond, Mr. Clarke had to pay a bail bond premium fee of $450.00 and provide collateral in the amount of $1,050.00. Payment was made by a single check (check number 611) for $1,500.00 made out to the Agency. Mr. Clarke also signed a promissory note, which read as follows: On Demand Hugh McGrath Clarke after date, for value received, I Promise to pay to the order of CONTINENTAL HERITAGE INSURANCE COMPANY Four Thousand Five Hundred DOLLARS, at Big Larry's Bail Bonds, 1310 Sistrunk Blvd., Ft. Laud., Florida[,] [w]ith interest thereon at the rate of 20 percent, per annum[,] from Call Date until fully paid. Interest payable semi-annually. The maker and endorser of this note agrees to waive demand, notice of non payment and protest; and in case suit shall be brought for the collection hereof, or the same has to be collected upon demand of an attorney, to pay reasonable attorney's fees and assessable cost, for making such collection. Deferred interest payment to bear interest from maturity at 20 percent, per annum, payable semi-annually. It is further agreed and specifically understood that this note shall become null and void in the event the said defendant Richard Dyke shall appear in the proper court at the time or times so directed by the Judge or Judges of competent jurisdiction until the obligations under the appearance bond or bonds posted on behalf of the defendant have been fulfilled and the surety discharged of all liability thereunder, otherwise to remain in full force and effect. Respondent provided Mr. Clarke a signed Receipt and Statement of Charges, acknowledging that he had received from Mr. Clarke payment in full for the $450.00 bail bond premium fee. Respondent also presented Mr. Clarke with a pre-printed form entitled "Collateral Receipt and Informational Notice" (Collateral Receipt) that Respondent had filled out and signed (on the appropriate signature line), acknowledging that, on behalf of the surety, Continental Heritage Insurance Company, he had received from Mr. Clarke $1,050.00 as collateral to secure the bail bond that Mr. Clarke had obtained for Mr. Dyke. The Collateral Receipt contained the following "note," "informational notice," and "indemnitor information": NOTE: Unless a properly drawn, executed, and notarized legal assignment is accepted and acknowledged by the surety agent and the surety company named above, the collateral listed above will be returned only to the person(s) named on line (1) above [Mr. Clarke]. Collateral, except for those documents the surety must retain as directed by the law, will be returned within 21 days after the bail bond(s) has been discharged in writing by the court. The undersigned hereby acknowledges receipt of a copy of all collateral documents indicated above, and the Informational Notice printed below. * * * INFORMATIONAL NOTICE CONDITIONS OF BOND: The SURETY, as bail, 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. In the event surrender of principal is made prior to the time set for principal's appearance, and for reason other than as enumerated below in 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 of any refund 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 move from one address to another without notifying SURETY or his agent in writing prior to said move. If principal shall commit any act which shall constitute reasonable evidence of principal's intention to cause a forfeiture of said bond. If principal is arrested and incarcerated for any other offense other than a minor traffic violation. If principal shall make any material false statement in the application. * * * INDEMNITOR INFORMATION In addition to the terms and conditions of any Indemnity Agreement or other collateral documents which you have executed, this is to notify you that: The Indemnitor(s) will have the defendant(s) forthcoming before the court named in the bond, at the time therein fixed, and as may be further ordered by the court. The Indemnitor(s) is responsible [for] any and all losses or costs of any kind whatsoever which the surety may incur as a result of this undertaking. There should not be any costs or losses provided the defendant(s) does not violate the conditions of the bond and appears at all required court hearings. Collateral will be returned to the person(s) named in the collateral receipt, or their legal assigns, within 21 days after the surety has received written notice of discharge of the bond(s) from the court. It may take several weeks after the case(s) is disposed of before the court discharges the surety bonds. Respondent read to Mr. Clarke that portion of the Collateral Receipt that explained that the collateral would be returned "within 21 days after the surety ha[d] received written notice of discharge of the bond(s) from the court." Nonetheless, for some reason, Mr. Clarke was under the impression that he would be receiving his collateral back within 30 days of April 23, 2002, the date of the transaction, even in the absence of a discharge. In late May 2002, sometime after the 23rd of the month, Mr. Clarke began telephoning the Agency to inquire about the return of his collateral. On each occasion he called, he asked to speak with Respondent, but was told by the person who answered the phone that Respondent was not available. He left messages, but Respondent never returned his calls.2 Mr. Clarke telephoned the Agency approximately twice a month until November 2002, when, frustrated by his inability to reach Respondent by telephone,3 he sent, by facsimile transmission, a letter to the Department of Insurance requesting that it help him in his efforts to gain the return of his collateral. Although Mr. Clarke had been advised in September 2002 by Mr. Dyke that Mr. Dyke's criminal case "was over," Mr. Clarke never got to directly communicate this information to Respondent and to personally ask Respondent to give him back his collateral. Any information Mr. Clarke may have provided about the status of Mr. Dyke's criminal case and any demands Mr. Clarke may have made for the return of his collateral were provided and made to a person or persons at the Agency other than Respondent, who did not communicate them to Respondent. Pat Anthony, a Special Investigator with the Department of Insurance,4 was assigned the task of looking into the allegations Mr. Clarke had made in his letter. Ms. Anthony met with Mr. Clarke on December 6, 2002, and took his statement. The statement was reduced to writing (by Ms. Anthony, who wrote down what she understood Mr. Clarke to have said), and it then was "subscribed and sworn to" by Mr. Clarke. Mr. Clarke's statement read as follows: On 4/23/02, I went to Larry Jones' office to put up bail for Richard Dyke. I gave him a $450 check and a $1,050 check.[5] Richard told me the case was over with in 9/02.[6] I started calling Larry about a week later.[7] He had told me the $450 was his premium and I would get the $1,050 when the case was completed.[8] I have called several times. The man who answered the phone tells me Larry is not there. In January 2003, Ms. Anthony telephoned the Office of the Clerk of the Circuit Court of Palm Beach County (Clerk's Office) to inquire about the status of Mr. Dyke's criminal case. She was told by the person who answered the telephone that the case had concluded and that Mr. Dyke's bond had been discharged, but that there was "no way to know" whether Respondent had been notified of this information inasmuch as the Clerk's Office did not "always notify the out of town bondsman." Ms. Anthony subsequently advised Respondent as to what she had been told and suggested that he go to the Palm Beach County Courthouse to confirm the information she had been provided. Respondent followed Ms. Anthony's suggestion and went to the Palm Beach County Courthouse on January 21, 2003 (which was "within a week" of his conversation with Ms. Anthony). There, he obtained a certified copy (under seal of the Clerk's Office) of a summary or disposition sheet reflecting that Mr. Dyke's bond had been discharged. That same day, when Respondent returned to the Agency, he telephoned Mr. Clarke and made arrangements to have Mr. Clarke come by the Agency on January 27, 2003, to sign paperwork and pick up a check from Respondent for $1,050.00 (the amount of the collateral Mr. Clarke had given Respondent). Mr. Clarke picked up the check on January 27, 2003, as scheduled. It was not until March 2004 that Respondent received from the Clerk's Office a copy of the actual court order discharging Mr. Dyke's bond. Count II On or about September 1, 2002, the Department of Insurance filed a one-count Administrative Complaint (in Department of Insurance Case No. 43742-02-AG) against Respondent, alleging that "he [had] failed to return collateral and charged an amount in excess of the bond premium." On November 13, 2002, the Department of Insurance issued a Consent Order in Case No. 43742-02-AG, which provided as follows: THIS CAUSE came on for consideration and final agency action. Upon consideration of the record including the Settlement Stipulation for Consent Order dated October 25, 2002, and being otherwise advised in the premises, the Insurance Commissioner hereby finds: The Treasurer and Insurance Commissioner, as head of the Department of Insurance, has jurisdiction over the subject matter of this case and parties hereto. The entry of this Consent Order and compliance herewith by the Licensee, LARRY LORENZO JONES, shall conclude the administrative proceeding of Case No. 43742- 02-AG before the Department of Insurance of the State of Florida. IT IS THEREFORE ORDERED: The Settlement Stipulation for Consent Order dated October 25, 2002, is hereby approved and fully incorporated herein by reference; Within thirty (30) days of the date of issue of the Consent Order, pursuant to Section 648.387, Florida Statutes, Licensee shall file[9] notice with the Department of the designated primary agent for each location of all bail bond agencies owned by the Licensee. Failure to file said notice will result in immediate suspension of Licensee's license and eligibility for licensure. Licensee shall be placed on probation for a period of twelve (12) months. As a condition of probation, Licensee shall strictly adhere to the Florida Insurance Code, Rules of the Department and the terms of this agreement. If during the period of probation period [sic] the Department has good cause to believe that Licensee has violated a term or condition of probation, it shall suspend, revoke, or refuse to issue, renew or continue the license of appointment of Licensee. Licensee shall pay a fine of two thousand five hundred dollars ($2500.00) within thirty (30) days of the date of issue of the Consent Order, pursuant to Section 648.52, Florida Statutes. Failure of Licensee to pay the fine within the specified time limit shall result in the immediate suspension of Licensee's license and eligibility for licensure in this state without further proceeding for a period of sixty (60) days. Reinstatement shall be conditioned upon Licensee's compliance with all terms of the Consent Order, including payment of the administrative fine.[10] Sometime in December 2002, Sally Burke, who was then a Bail Bond Coordinator with the Department of Insurance, visited the Agency for purposes of conducting an audit of the Agency's records. Ms. Anthony accompanied her on the visit. During the audit, Ms. Burke asked Respondent if he had completed and "turned in [the] designation form" required by Section 648.387, Florida Statutes. Respondent replied that he had "never received" a blank form to fill out. At Ms. Burke's request, Ms. Anthony handed Respondent a blank designation form. Respondent proceeded to complete it in Ms. Burke's and Ms. Anthony's presence. When he was finished, he attempted to give the completed form to Ms. Burke, but she told him, "Larry, you have to mail it in yourself, but make me a copy for my file." As requested, Respondent made a copy and gave it to Ms. Burke, who, in turn, handed it to Ms. Anthony. He then left the Agency and mailed the original to the Department of Insurance. When he returned to the Agency, Ms. Burke and Ms. Anthony were still there. Months later, in September 2003 at around the time of the issuance of the instant Administrative Complaint, Respondent received a telephone call from Greg Marr, an attorney with Petitioner, who told Respondent that Petitioner had never received his completed designation form.11 Respondent informed Mr. Marr that the completed form had been mailed in December 2002. Mr. Marr responded, "[O]ur records show that it's not in,"12 and asked Respondent to "send in another one," which Respondent did (on or around September 19, 2003). Petitioner received this completed designation form on September 26, 2003.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner issue a final order dismissing, in its entirety, the Administrative Complaint issued against Respondent in the instant case. DONE AND ENTERED this 4th day of June, 2004, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 2004.
