The Issue This is a license discipline case in which the Respondent has been charged by Administrative Complaint with violations of several provisions of Chapter 648, Florida Statutes. All of the violations charged relate to allegations that the Respondent failed to return certain personal property received by the Respondent as collateral security on a surety bond.
Findings Of Fact Facts admitted by all parties The Respondent, Sergio Roque, Jr., is currently licensed in this state as a limited surety agent. At all times relevant to the dates and occurrences referred to in the Administrative Complaint in this matter, the Respondent was licensed in this state as a limited surety agency. On or about July 19, 1990, Respondent, while acting in his capacity as a limited surety agent, did, as agent for Amwest Surety Insurance Company, post a $100,000 general surety appearance bond, power number X00-0-00000331, to obtain the release of defendant Domingo Arrechea from the Dade County Jail. In conjunction with the posting of the aforementioned surety bond, Respondent did on or about July 19, 1990, receive $10,000, which represented the premium payment for said surety bond. Respondent did in conjunction with the posting of said bond receive from indemnitor Lorraine DeVico a diamond engagement ring, a Rolex watch, and the title to a 1979 Mercedes automobile (ID#11602412149348) as partial collateral security for the aforementioned surety bond. On or about April 3, 1991, Respondent did cause to be surrendered back into custody the defendant Domingo Arrechea, thus terminating all liability for said surety bond. Respondent has failed to return to indemnitor Lorraine DeVico the collateral security described above; namely, the diamond engagement ring, the Rolex watch, and the title to the 1979 Mercedes automobile. Additional facts proved at hearing In addition to the collateral described above, the Respondent also received as collateral from the defendant Arrechea, and from the defendant's wife, a conditional mortgage on a condominium. In addition to the collateral described above, the Respondent also received as collateral from "Mike Farina" a conditional mortgage on real estate owned by Mike Farina. Mike Farina was a friend of the defendant Arrechea. "Mike Farina" later turned out to be a fictitious name. Lorraine DeVico was a very close friend of the defendant Arrechea. The Rolex watch Ms. DeVico put up as part of the collateral for Arrechea's bond was a watch that had been given to her by her father. Shortly after Ms. DeVico put the watch up for collateral, her father began to inquire as to the whereabouts of the watch. Because she felt that her father would disapprove of what she had done, and because her father was the source of most of her wealth, Ms. DeVico told several lies to her father about the whereabouts of the watch. As a result of continuing inquiries by her father, Ms. DeVico wanted her watch back and no longer wanted to be responsible under the indemnity agreement she had signed. Towards the beginning of February 1991, Ms. DeVico began to call the Respondent to advise that she was frightened that the defendant Arrechea was considering jumping bond. The Respondent received numerous calls from Ms. DeVico requesting return of her collateral and requesting to be off the indemnity agreement. Consequently, the Respondent hired MV Investigations on February 16, 1991, to locate the defendant Arrechea. On March 27, 1991, Ms. DeVico advised the Respondent that the defendant Arrechea was not answering his digital pager and that his telephone had been disconnected. She advised the Respondent that she sent her employee to look for Arrechea but could not find him. She asked the Respondent to pick up the defendant Arrechea and get her off the bond, agreeing to pay all the expenses. On April 1, 1991, Ms. DeVico again asked the Respondent to pick up the defendant Arrechea and again agreed that she would pay the costs associated with the pick-up. On April 3, 1991, the investigators hired by the Respondent located and picked up defendant Arrechea and surrendered him back to the Dade County Jail. The Respondent returned the collateral deposited by Mr. Farina and by the defendant Arrechea and his wife. After having the defendant Arrechea picked up and surrendered, the Respondent called Ms. DeVico to give her the information and advise her of the pick-up costs. Ms. DeVico verbally refused to pay any pick-up costs. On April 14, 1991, the Respondent sent by certified mail to Ms. DeVico a notice under Section 648.442, Florida Statutes, notifying her that he would be selling her collateral in ten days against his pick-up expenses. The Respondent sold the Rolex watch and diamond ring pledged as collateral by Ms. DeVico after expiration of the ten days. The indemnity agreement signed by Ms. DeVico in conjunction with applying for bail for the defendant Arrechea included the following language: 2. The indemnitor(s) will at all times indemnify and keep indemnified the Company and save harmless the Company from and against any and all claims, demands, liabilities, costs, charges, legal fees, disbursements and expenses of every kind and nature, which the Company shall at any time sustain or incur, and as well from all orders, decrees, judgments and adjudications against the Company by reason or in consequence of having executed such bond or undertaking in behalf of and/or at the instance of the indemnitor(s) (or any of them) and will pay over, reimburse and make good to the Company, its successors and assigns, all sums and amounts of money required to meet every claim, demand, liability, costs, expense, suit, order, decree, payment and/or adjudication against the Company by reason of the execution of such bond or undertaking and any other bonds or undertakings executed in behalf of and/or at the instance of the Indemnitor(s) and before the Company shall be required to pay thereunder. The liability for legal fees and disbursements includes all legal fees and disbursements that the Company may pay or incur in any legal proceedings, including proceedings in which the Company may assert or defend its right to collect or to charge for any legal fees and/or disbursements incurred in earlier proceedings. * * * 7. The Indemnitor(s) agree(s) that the Company may at any time take such steps as it may deem necessary to obtain its release from any and all liability under any of said bonds or undertakings, and it shall not be necessary for the Company to give the Indemnitor(s) notice of any fact or information coming to the Company's notice or knowledge concerning or affecting its rights or liability under any such bond or undertaking, notice of all such being hereby expressly waived; and that the Company may secure and further indemnify itself against loss, damages and/or expenses in connection with any such bond or undertaking in any manner it may think proper including surrender of the defendant (either before or after forfeiture and/or payment) if the Company shall deem the same advisable; and all expenses which the Company may sustain or incur or be put to in obtaining such release or in further securing itself against loss, shall be borne and paid by the Indemnitor(s). In conjunction with applying for bail for the defendant Arrechea, Ms. DeVico also signed a Bail Bond Information Sheet which advised her in bold print that: When all agreements have been fulfilled and bond is discharged, in writing or by the court, and without loss expense on the bond, your full collateral will be returned to you.
Recommendation On the basis of all of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance and Treasurer enter a Final Order in this case to the following effect: Concluding that the Respondent is guilty of the violations charged in the Administrative Complaint, and Imposing an administrative penalty consisting of an administrative fine in the amount of $1,000.00 and a suspension of the Respondent's license for a period of 90 days. DONE AND ENTERED this 12th day of May 1993, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of May 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-4378 The following are my specific rulings on all of the proposed findings of fact submitted by all of the parties. Proposed findings submitted by Petitioner: Paragraphs 1 through 6: Accepted. Paragraph 7: Rejected for two reasons; first, the proposed finding is irrelevant because it is not alleged in the Administrative Complaint, and, second, the proposed finding was not proved by clear and convincing evidence. Proposed findings submitted by Respondent: Paragraphs 1 through 4: Accepted. Paragraph 5: First sentence accepted. Remainder of this paragraph rejected as subordinate and unnecessary details. Paragraphs 6 through 13: Accepted in substance with some details clarified. Paragraph 14: First sentence accepted. Remainder rejected as subordinate and unnecessary details. Paragraph 15: Rejected as constituting procedural details or conclusions of law, rather than proposed findings of fact. Paragraph 16: Rejected as constituting statement of position or legal argument, rather than proposed finding of fact. Paragraph 17: First sentence accepted. The remainder of this paragraph is rejected as constituting conclusions of law or legal argument, rather than proposed findings of fact. Paragraph 18: Rejected as constituting a conclusion of law, rather than a proposed finding of fact. Paragraphs 19 and 20: Accepted COPIES FURNISHED: David D. Hershel, Esquire Department of Insurance Division of Legal Services 612 Larson Building Tallahassee, Florida 32399-0300 Martin L. Roth, Esquire Haber & Roth 1370 Northwest 16th Street Miami, Florida 33125 Honorable Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neill, General Counsel Department of Insurance The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue Whether Respondents are indebted to Petitioner in the amount of $18,330.00 for agricultural products (bahia sod).
Findings Of Fact Petitioner, McCullough Grass Corporation, is a producer of agricultural products and is located in Balm, Florida. Respondent, Landtech Services, Inc. (Landtech), is an agricultural dealer located in Largo, Florida. Co-Respondent, Western Surety Company, is a surety which issued Respondent Landtech a surety bond during times material. On April 19, 1993 and on May 18 and 19, 1993, Petitioner sold to Respondent Landtech 217,000 square feet of bahia sod for the total price of $18,330.00. The terms of the sale between Petitioner and Respondent Landtech were for net payment for products sold within thirty days after the invoice date. Respondent, Landtech, has paid Petitioner approximately $8,000.00 toward the purchase price of the sod leaving a balance now due and owing of $10,470.70. Respondents, Landtech and Western Surety Company, did not appear at the hearing to contest or otherwise refute the charges alleged in Petitioner's complaint. Respondent, Landtech, is indebted to Petitioner in the amount of $10,470.70 for bahia sod purchased from Petitioner during April and May of 1993.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The Department of Agricultural issue its final order requiring that Respondent, Landtech, pay to Petitioner the amount of $10,470.70 within fifteen (15) days of its final order. It is further RECOMMENDED that if Respondent, Landtech, fails to comply with the order directing payment, that the Department shall call upon the surety, Western Surety Company, to pay over to the Department from funds out of the surety certificate, the amount needed to satisfy the indebtedness. 1/ RECOMMENDED this 3rd day of March, 1995, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 3rd day of March, 1995.
The Issue Whether the Respondent is indebted to Petitioner as alleged in the Complaint filed with the Department of Agriculture and Consumer Services.
Findings Of Fact Robert Sepos is the comptroller for Ben-Bud Growers, Inc. As such Mr. Sepos maintains the company records which document amounts owed to it by others. As to this case, Mr. Sepos presented the invoices and statements due and owing from the Respondent. Based upon the unpaid invoices, Respondent owes Petitioner the sum of $10,471.80. Respondent acknowledged that the sum of $10,471.80 is owed to Petitioner but claimed that such amount was not for the purchase of agricultural products as contemplated by Chapter 604, Florida Statutes. According to Mr. Towell the bulk of the debt owed to Petitioner is for packaging and shipping fees for produce from growers represented by Fantastic Produce. Mr. Towell maintains that packing and shipping fees are not encompassed within Chapter 604, Florida Statutes. Mr. Sepos could not verify what sum, if any, of the total amount claimed was for agricultural products (versus packing or shipping). Based upon the admissions made by Mr. Towell, Respondent owes the Petitioner for agricultural products the sum of $775.00 in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a Final Order approving Petitioner's claim in the amount of $775.00 and disallowing the remainder. DONE AND ENTERED this 7th day of November, 1997, in Tallahassee, Leon County, Florida. J. D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 1997. COPIES FURNISHED: Brenda D. Hyatt, Chief Department of Agriculture and Consumer Services Mayo Building, Room 508 Tallahassee, Florida 32399 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza 01 Tallahassee, Florida 32399 Ben Litowich, President Ben-Bud Growers, Inc. 6261 West Atlantic Boulevard Margate, Florida 33063 George Towell, President George Towell Distributors, Inc. d/b/a Fantastic Produce Post Office Box 159 Belle Glade, Florida 33430 American Southern Insurance Company Legal Department 3715 Northside Parkway, 8th Floor Atlanta, Georgia 30327
The Issue At issue is whether petitioner's request for a bond waiver under the provisions of Section 559.927(10)(b)5, Florida Statutes, should be approved.
Findings Of Fact Petitioner, Consolidated Cruises and Tours, Inc., is a "seller of travel," as that term is defined by Section 559.927(1)(a), Florida Statutes, and was formed in April 1993 by Steven Wolf, its president, to carry on the travel business he had previously operated through Consolidated Cruises, Inc., since October 1987. Effective October 1, 1988, Chapter 88-363, Laws of Florida, codified at Section 559.927, Florida Statutes (1989), required sellers of travel to register with the Department, and to post an annual performance bond. Failure to register with the Department or to conduct business as a seller of travel without the required bond was a violation of law, and subjected the person or business to civil and criminal penalties. Consolidated Cruises, Inc., the business through which Mr. Wolf was operating at the time, did not register with the Department as a seller of travel until November 1, 1991. Effective October 1, 1993, Chapter 93-107, Section 1, Laws of Florida, amended Section 559.927, Florida Statutes, to provide that: The department may waive the bond requirement in this subsection if the seller of travel has had 5 or more consecutive years of experience as a seller of travel in Florida. . . . On or about May 25, 1994, petitioner filed an application for registration as a seller of travel with respondent, Department of Agriculture and Consumer Affairs (Department), and requested a waiver of the annual performance bond requirement. Pertinent to this case, the request for waiver described the history of Consolidated Cruises, Inc., and Consolidated Cruises and Tours, Inc., as follows: Consolidated Cruises Inc. was established on 10/1/87 as a company that promoted cruises. The sales for the company was minimal for the first 2 years. The principal stock holder was Steven Wolf (100 percent). In March of 1990 Consolidated Cruises added 3 new major stock holders to the company and split the company stock as follows: Steven Wolf - 25 percent Miriam Wolf - 25 percent Yoav Tavory - 25 percent Judy Tavory - 25 percent In April of 1993 Consolidated Cruises ceased to function since the major stock holders had a disagreement as to the dissolution of the company. In the interim, to keep the company going a new corporation was formed by Steven Wolf & Miriam Wolf called, "CONSOLIDATED CRUISES & TOURS INC. For all practical purposes, the company continued to work the same as before but under the auspices of a new company name. In all the years that we have been providing our services, we have never had ONE complaint. On the basis of our past performance, we request that you waive the requested security bond of $10,000. Our previous registration number for CONSOLIDATED CRUISES INC. are as follows: certificate of registration No: 11347 certificate No. 00283 By letter of June 16, 1994, the Department denied petitioner's request for bond waiver. Such denial was premised on the Department's interpretation of Section 559.927, Florida Statutes, as allowing a waiver of the bond requirement only when the "seller of travel has had 5 or more consecutive years of experience as a seller of travel in Florida" that was lawfully obtained, i.e., that such experience occurred while the person or business was duly registered with the Department as required by law.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered denying petitioner's request for a performance bond waiver. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of January 1995. 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 18th day of January 1995. APPENDIX Respondent's proposed findings of fact are addressed as follows: Addressed in paragraph 4. Addressed in paragraph 4, otherwise not relevant. See, paragraph 9. 3-5. Addressed in paragraph 6, otherwise unnecessary detail. 6. Addressed in paragraph 3, otherwise unnecessary detail. 7 & 8. Addressed in paragraph 5. 9. Addressed in paragraphs 4 and 5. 10 & 11. Addressed in paragraph 6. 12. Rejected as not relevant since the Department did not specify such reason as a basis for denial in its letter of June 16, 1994, did not seek to amend its reasons for denial prior to hearing, and did not raise such issue until after petitioner had presented its case-in-chief. See paragraph 9. COPIES FURNISHED: Steven Wolf, President Consolidated Cruises and Tours, Inc. 8181 Northwest 8th Manor Plantation, Florida 33324 Jay S. Levenstein, Esquire Department of Agriculture and Consumer Services Room 515 Mayo Building Tallahassee, Florida 32399-0800 The Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL - 10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Department of Agriculture The Capitol, PL - 10 Tallahassee, Florida 32399-0810
Findings Of Fact Respondent, Theodore L. Aubuchon, Jr., has been licensed by the Department of Insurance as a general lines agent and limited surety agent for a period of approximately 12 years. Other than the instant Administrative Complaint and its attendant Emergency Order of Suspension, Respondent has never been the subject of an Administrative Complaint or the subject of disciplinary action by the Department of Insurance. Respondent was served with an Emergency Order of Suspension in November of 1985, to which he failed to respond, and as of the date of the hearing in this cause, his licenses as a general lines agent and as a limited surety agent have been suspended since November of 1985. Pioneer Bonding & Insurance Agency, Inc. (hereinafter "Pioneer"), was formed in 1963 by its first president, Respondent's grandfather. Respondent's father took over control of the company in approximately 1965, and Respondent succeeded to the position of president in 1979. Respondent remained as an employee of Pioneer and its president until some time in 1985. Pioneer acted as a general agent for American Druggists' Insurance Company (hereinafter "ADIC") from 1973 until approximately March of 1984, pursuant to an agency agreement. That agreement specifically sets forth the respective responsibilities of ADIC and Pioneer as it pertains to the bail bond business, including but not limited to the processing of claims, reports, disposition of collateral, and the return of collateral. All counts of this Administrative Complaint deal with bonds underwritten by ADIC. By letter dated October 3, 1983, ADIC advised Petitioner that Respondent d/b/a Pioneer had satisfactorily performed all duties as general agent for ADIC, that no claims were outstanding against Respondent, that any claims preceding the date of the letter were forever waived by ADIC, and that all funds collected were being maintained in accordance with the law. Shortly after the letter of October 3, 1983, ADIC advised Respondent that it was exercising its 120-day option for termination of its agency agreement. Upon being so advised, Respondent began negotiating with ADIC in an attempt to enter into a limited agency agreement solely for the purpose of servicing outstanding and continuing bonds beyond March of 1984. No formal limited agency agreement was ever consummated, and by May 29, 1984, ADIC employee Norman Stotts had been sent by ADIC to handle the transition, to audit Pioneer's books and records regarding ADIC bonds, and to essentially take control over all bonds written by Pioneer on behalf of ADIC. Because no limited agency agreement regulating the servicing of outstanding and continuing bonds was entered into between them, both ADIC and Pioneer sought to control the disposition of collateral and to resolve forfeitures. ADIC at no time gave any written directions to Pioneer as to the manner in which collateral was to be disposed of upon the termination of the agency agreement between them. Further, as of June 1984, Norman Stotts was in possession of the books and records of Pioneer on behalf of ADIC. In June of 1984, ADIC filed a civil action in the United States District Court for the Southern District of Florida against Pioneer, Respondent, and others. On August 24, 1985, that federal court issued an injunction prohibiting the release of any funds previously received by Pioneer or by Respondent in connection with the issuance of ADIC bonds. ADIC voluntarily dismissed the federal litigation on July 8, 1986. On April 30, 1986, the Court of Common Pleas in Franklin County, Ohio, issued an Order of Liquidation and Injunction against ADIC, which Order had the effect of prohibiting the disbursement of funds or collateral held by any agents or brokers of that company. On the following day, pursuant to a motion filed by Petitioner, the Circuit Court of the Second Judicial Circuit in and for Leon County, Florida, issued an Order Appointing Ancillary Receiver for purposes of liquidation, which Order also contained an injunction directed against ADIC agents. On January 7, 1983, Karla Myers obtained a surety bond in the amount of $5,000 for Robert Myers Painting, Inc. with ADIC as surety. Respondent signed the surety bond as agent for the surety. Similarly, Respondent signed the collateral security receipt as attorney-in-fact for ADIC. By its terms, the surety bond expired February 28, 1985. By an unnotarized letter dated March 5, 1985, the Tri-County Painters and Decorators Joint Trade Board, Inc. released Robert Myers Painting, Inc. from the surety bond, which letter was received by Karla Myers on March 8, 1985. Subsequent to March 8, 1985, Karla Myers made numerous telephone calls to Pioneer to obtain the return of her $5,000 in collateral. She was advised by employees at Pioneer that Respondent was no longer employed at Pioneer, and on one occasion, Myers contacted Respondent at his home. Respondent advised her that he would need to confer with his attorney regarding the matter. By March, 1985, Respondent was no longer in control of the books and records of Pioneer, with those books and records being in the control and custody of Norman Stotts. A notarized release, along with the original copy of the Collateral Security Agreement, was not provided by Karla Myers to Respondent or Pioneer in order to secure the release of the $5,000 in collateral, and Pioneer and Respondent were already engaged in litigation with ADIC, Respondent having been advised by his attorney not to discuss that litigation. On approximately August 20 1986, ADIC authorized Respondent to return the Myers collateral. Respondent then obtained the authorization of Petitioner, and the collateral was returned to Myers in August of 1986. On August 10, 1983, Pioneer accepted from Antonio and Jane Mininni $10,000 as collateral for a beverage wholesaler's bond underwritten by ADIC. A subsequent increase in the bond to $15,000 was required by the Florida Division of Alcoholic Beverages and Tobacco. On April 9, 1985, ADIC advised Mininni d/b/a Old Bridge, Inc., that its bond was being cancelled effective June 10, 1985, and that there would be a 90-day waiting period before the collateral would be returned. That waiting period would have expired on September 10, 1985, after the entry of the federal injunction. On June 13, 1985, the Old Bridge, Inc. bond was transferred from ADIC to Southland Insurance Company in order that Old Bridge, Inc. would continue to have the state-required coverage. Mininni participated in and approved that transfer. At all times Old Bridge, Inc. had coverage for the total amount of coverage it had purchased. In August of 1986, Mr. and Mrs. Mininni on behalf of their business, Old Bridge, Inc., executed a release releasing Pioneer, ADIC, and Respondent; the federal court litigation had been dismissed; Respondent obtained authorization from ADIC and from Petitioner to return to Old Bridge, Inc. its collateral; and the collateral was returned. On behalf of a client, attorney Sam Pendino needed to make arrangements for collateral on four bail bonds. In a telephone conversation with Respondent, Pendino advised that he wanted an attorney, rather than an insurance company, to hold the collateral under an escrow agreement. Respondent suggested the name of attorney Terence T. O'Malley, Sr. Pendino subsequently satisfied himself that O'Malley was a licensed attorney authorized to practice law in the State of Florida, and on January 13, 1984, an escrow agreement was entered into by and between Pendino and O'Malley under which O'Malley became the escrow agent for the collateral. That escrow agreement was later signed by Respondent on behalf of ADIC. Pendino and O'Malley physically put the collateral, with an approximate value of $100,000 made up of $57,500 in cash and the balance in precious metals, into a safe deposit box which they rented on the same day that the escrow agreement was signed. Respondent was not a signator on the safe deposit box and was not present at the time the actual transfer of the collateral took place. No evidence was offered to indicate that Respondent ever came into possession of any of the collateral. Under the terms of the escrow agreement, O'Malley was responsible for returning the collateral with no further authorization needed upon the discharge of the bonds for which the collateral had been placed. The bonds were discharged on September 3, 1985, after entry of the federal court injunction. Pendino contacted O'Malley, but O'Malley failed to return the collateral. Pendino filed a lawsuit against O'Malley. He included Respondent as a defendant because Respondent had signed the escrow agreement. According to Pendino's attorney who was the only witness to testify on Petitioner's behalf regarding this transaction, at all stages of the litigation Respondent was disassociated from O'Malley's position, had agreed to the return of the collateral, and had requested the Court to enter orders returning the collateral to Pendino. By the time of the final hearing in this cause, O'Malley had already been held in civil contempt of court and there was presently pending an indirect criminal contempt proceeding regarding false testimony given by O'Malley as to the location of the collateral in question. Respondent, on behalf of Pioneer and ADIC, wrote a bail bond in the amount of $250,000 to guarantee the appearance of John Lee Paul, Sr., in the Circuit Court of St. Johns County, Florida. Certain real property in Georgia was placed as collateral for the bond. The bond was subsequently ordered forfeited, and judgment was entered against ADIC on January 16, 1984. The real property which was the collateral for the bail bond was sold, and the proceeds were transferred to the general operating account of Pioneer. On June 20, 1984, the legal representative of ADIC and Pioneer, the Assistant State Attorney, the St. Johns County Attorney, the Clerk of the Circuit Court for St. Johns County, and the attorney for the Clerk of the Circuit Court entered into a stipulation for a payment schedule on that final judgment. The payment schedule set forth in that stipulation was approved by the Court on June 21, 1984. Since that time, the bond has been paid in full. It is a common practice for a surety company, with the approval of the Court, to arrange an extended payment schedule when such a large bond has been estreated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty of the allegations contained within the Administrative Complaint filed against him, dismissing that Administrative Complaint with prejudice, and immediately reinstating Respondent's suspended licenses. DONE and RECOMMENDED this 9th day of April, 1987, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway The Oakland Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0660 Specific rulings as to Petitioner's proposed findings of fact are as follows: Adopted. Rejected as being immaterial. Adopted. Adopted. Rejected as not constituting a finding of fact. Rejected as being immaterial. Adopted. Adopted. Rejected as being secondary. Rejected as being secondary. Adopted. Adopted. Adopted. Rejected as being secondary. Adopted. Rejected as not constituting a finding of fact. Rejected as not constituting a finding of fact. Adopted. Adopted. Rejected as not constituting a finding of fact. Adopted. Specific rulings as to Respondent's proposed findings of fact are as follows: Rejected as not constituting a finding of fact. Rejected as not constituting a finding of fact. Rejected as not constituting a finding of fact. Adopted as to Respondent's licensure; remainder rejected since marital status and education are irrelevant. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Rejected as being secondary. Adopted. Adopted. Rejected as not constituting a finding of fact. Rejected as not constituting a finding of fact. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Rejected as being secondary. Adopted. Adopted. Adopted. Rejected as being secondary. Adopted. Rejected as being secondary. Rejected as being secondary. Rejected as not constituting a finding of fact. COPIES FURNISHED: Howard L. Greitzer, Esquire Post Office Box 1778 Ft. Lauderdale, Florida 33302-1778 Lealand L. McCharen, Esquire 413-B Larson Building Tallahassee, Florida 32399-0300 Honorable William Gunter State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300
Findings Of Fact Respondent, Larry K. Sechrest, was at all times relevant to the charges contained in the Administrative Complaint, licensed as limited surety agent in the State of Florida representing Allied Fidelity Insurance Company ("Allied"). In February, 1982, Respondent's accounts with Allied were audited by their representative at which time it was discovered that Respondent executed but did not report 202 powers of attorney. The aforementioned powers represented $11,464.51 in premiums due Allied, and an additional $5,732 due the buildup fund. On March 4, 1982, Allied demanded that the Respondent remit to them these premiums and buildup fund payments and account for and return the missing powers of attorney. Respondent had failed to comply with Allied's demands as of the date this Administrative Complaint was filed by Petitioner (July 20, 1982). Respondent subsequently offered to repay Allied at the rate of $1,000 per month, but this was refused. At the final hearing on February 16, 1983, Respondent offered to repay the total amount due within 30 days. On April 29, 1981, Respondent attempted to post a ne exeat bond in the amount of $25,000 for Douglas R. Valentine of Manatee County, Florida, based on power of attorney number FL2800913 issued by Allied. Respondent had not been given authority by Allied to post ne exeat bonds. Power of attorney number FL2800913 was by its language to be issued for appearance bonds only.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order finding Respondent guilty of violating Subsections 648.45(1)(d), (h) and (j), Florida Statutes (1981), as charged in Count I of the Administrative Complaint, and suspending his limited surety agent's license for one year; provided, however, that such license shall not be reinstated until Respondent has made restitution to the Allied Fidelity Insurance Company. DONE and ENTERED this 20th day of May, 1983, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 20th day of May, 1983. COPIES FURNISHED: Clark R. Jennings, Esquire Department of Insurance The Capitol Tallahassee, Florida 32301 Jerry Surfus, Esquire 150 East Avenue, South Sarasota, Florida 33577 The Honorable Bill Gunter Insurance Commissioner Department of Insurance The Capitol Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF INSURANCE AND TREASURER IN THE MATTER OF LARRY K. SECHREST Revocation of License and Case No. 82-L-162J Eligibility for Licensure DOAH Case No. 82-2617 Limited Surety Agent / ORDER REVOKING RESPONDENT'S LICENSES AND ELIGIBILITY TO HOLD LICENSES THIS MATTER came on to be considered upon the transcript of record of hearing held on February 16, 1983, in Sarasota, Florida, and the Report, Findings, Conclusions and Recommendations of the Hearing Examiner dated May 20, 1983. Upon consideration thereof and being otherwise fully advised in the premises, it is ORDERED: The Findings of Fact of the Hearing Examiner are adopted. The Conclusions of Law of the Hearing Examiner are adopted. The Recommendation of the Hearing Examiner is rejected for the following reasons: Section 648.49, Florida Statutes prohibits the establishment of a period of suspension in excess of one (1) year. The Department lacks the authority to condition any Order upon financial restitution by a Respondent to any aggrieved party listed in an Administrative Complaint. Revocation of license and eligibility for licensure is an appropriate remedy under the statutory authority cited in the Administrative Complaint, and the Hearing Officer's Conclusions of Law. All licenses of the Respondent, LARRY K. SECHREST, heretofore issued within the purview of the Florida Department of Insurance and eligibility to hold said licenses be, and the same are hereby revoked. DONE and ORDERED at Tallahassee, Florida, this 28th day of June , 1983. BILL GUNTER Insurance Commissioner and Treasurer WILLIAM D. RUBIN Assistant Insurance Commissioner and Treasurer COPIES FURNISHED: Jerry Surfus, Esquire 150 East Avenue, South Sarasota, Florida 33577 Clark R. Jennings, Esquire Department of Insurance 413-B Larson Building Tallahassee, Florida 32301
