The Issue Did Respondent plead nolo contendere to aggravated stalking, a felony, in violation of Section 784.048(4), Florida Statutes, so as to be subject to discipline by the Department of Insurance pursuant to Sections 648.45(1); 648.45(2)(a), (e), (j), (k); 648.45(3)(a), (c), and/or (e), and if so, what penalties may be imposed, pursuant to Sections 648.45, 648.46, 648.49, 648.50, , and/or 648.53, Florida Statutes?
Findings Of Fact At all times material, Respondent was licensed in the State of Florida by Petitioner Agency as a limited surety agent, License No. 265986204. At the time of formal hearing, Respondent's license was suspended, pursuant to a Second Amended Emergency Order of Suspension entered by the Agency on March 11, 1997. Certified Court documents reveal that on February 10, 1997, Lesley Charles Corbin entered a negotiated plea of nolo contendere to the charge of "aggravated stalking," in the Circuit Court of the Fourth Circuit, in and for Duval County, Florida, in Case No. 96-9760-CF. The particulars of the charge pled to allege that Respondent "did knowingly, willfully, maliciously, and repeatedly follow or harass . . . [name] . . . after an injunction for protection against repeat violence pursuant to Section 784.046, to-wit: 92-1772-DV, contrary to the provisions of Section 784.048(4), Florida Statutes." The Court documents also reveal repetitive previous similar or related criminal charges against Respondent. Section 784.048(4), Florida Statutes, constitutes a felony of the third degree, punishable as provided in Sections 775.082, 775.083, or 775.084, Florida Statutes, (Supp. 1996). Under the plea bargain, Count I, alleging aggravated assault pursuant to Section 784.021, Florida Statutes, was dropped, and adjudication was withheld on Respondent's nolo contendere plea to Count II. Respondent was required to enter into nine months of community control followed by one year probation with special conditions to protect the person he had stalked. Section 775.082(3)(d), Florida Statutes, provides that third degree felonies may be punished by up to 5 years' imprisonment. Section 775.083(1)(c) provides for third degree felonies to be punished by up to a $5,000 fine. Section 775.084(1)(c)1.b. applies to habitual felony offenders/stalkers and is not relevant here. The foregoing establishes prima facie facts in evidence, which facts Respondent did not overcome. Ms. Sarah Burt is the Bail Bond Coordinator for Petitioner Department of Insurance. In that capacity, she is responsible for administrative coordination of all bail bond related matters for the Agency. She is knowledgeable of the practices and procedures of the Agency regarding bail bondsmen and limited surety agency licensure and discipline, pursuant to Chapter 648, Florida Statutes. Based on her education, training, experience, and actual knowledge, Ms. Burt related that a plea of nolo contendere to a felony charge has always resulted in the Agency denying a licensure application or revoking of an existing license. To the best of Ms. Burt's knowledge and belief, this has been the Agency's consistent procedure in all similar circumstances. She did not know of any licensee who had retained his or her licenses after the Agency became aware the licensee had pled nolo contendere to a felony.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Insurance enter a Final Order finding Respondent guilty of violating Sections 648.45(2)(a) and (k), and 648.45(3)(a), Florida Statutes, and revoking his license. RECOMMENDED this 31st day of December, 1997, at Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1997. COPIES FURNISHED: Bill Nelson State Treasurer and Insurance Commissioner The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Y. Sumner, Esquire Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300 Dick E. Kesler, Esquire Department of Insurance 612 Larson Building Tallahassee, Florida 32399 R. Cash Barlow, Esquire Post Office Box 492 Jacksonville, Florida 32201
Findings Of Fact The Respondent, Adriana Winkelmann, d/b/a Adriana's Bail Bonds, Tampa, currently is licensed and eligible for licensure in this State as a Limited Surety Agent. On or about October 31, 1986, William L. Counts and his wife, Madie Counts, a/k/a Madie G. Clark, went to see the Respondent about getting Mr. Counts' first cousin, Clayton D. Counts, bailed out of jail. Cousin Clayton was charged with second degree murder, and bail was set on the second degree murder charge at $5000. Clayton Counts also had been charged with eight other counts involving sexual battery on a child and sexual activity with a child under his custodial authority. On October 2, 1986, Clayton Counts had posted $14,000 of bonds that had been set on the eight charges and had been released from jail. Adriana's Bail Bonds, acting as bail bondsman and as attorney-in-fact for the surety company, Accredited Surety And Casualty Company, Inc. (Accredited or the surety), was the surety on the $14,000 of bonds, and Scott Erickson, a friend of Clayton Counts, indemnified Accredited and put up collateral to secure the indemnification agreement. All but $150 of the premium on the $14,000 of bonds had been paid to Adriana's Bail Bonds; Clayton Counts' wife promised to pay the additional $150 at a later date. When Clayton Counts was re-arrested and charged with second degree murder and just an additional $5000 bond was set on the new charge, Erickson became fearful that Clayton Counts might skip the bonds, jeopardizing Erickson's collateral. He told the Respondent that he wanted to be taken off the bonds. At about this same time, on or about October 31, 1986, Mr. and Mrs. William L. Counts came in to Adriana's Bail Bonds, at Clayton Counts' request, to see about bailing out Clayton for the second time. Mr. and Mrs. Counts agreed with the Respondent to indemnify the surety on the total amount of all of the bonds, $19,000. They agreed to pay the $150 balance of the premium on the bonds put up on or about October 2, 1986, on the first set of charges, plus a $500 premium on the bond put up on or about October 31, 1986, on the second degree murder charge. The indemnity agreement was to indemnify the surety company for the entire $19,000 amount of the bonds in the event of a forfeiture, plus "all claim, demand, liability, cost, charge, counsel fee, expense, suit order, judgment, or adjudication" sustained or incurred by the surety company. As collateral to secure their indemnity agreement, Mr. and Mrs. Counts put up their mobile home, to which they gave the Respondent a power of attorney dated October 31, 1986, and an $8,000 mortgage on a lot worth approximately $8000. They also gave Adriana's Bail Bonds a $19,000 promissory note as collateral. On October 31, 1986, an employee of Adriana's Bail Bonds gave Mr. Counts a collateral receipt, signed by Mr. Counts and the employee, for the $19,000 promissory note, the indemnity agreement, the mortgage on the lot and the mobile home. The original was given to Mr. Counts and Adriana's Bail Bonds kept a copy. There was no evidence that the collateral receipt, or any other statement or affidavit, for this or any other collateral (other than Erickson's original collateral on the $14,000 of bonds on the first set of charges) ever was filed anywhere. Mr. Counts paid $500 by check dated November 14, 1986, for the premium on the $5000 second degree murder bond. In December 1986, Clayton Counts left the state and missed a court appearance on December 19, 1986. The $19,000 of bonds was estreated. In about January 1987, Mrs. Counts went to see the Respondent about substituting some other collateral for the mobile home. She was concerned about where she and her husband would live if the bonds were estreated and forfeited and the mobile home had to be sold to perform the indemnity agreement. She wanted to be able to move the mobile home somewhere else even in that event. After some discussion, it was agreed that the Respondent would accept $6000 cash as substitute collateral in place of the mobile home. Mrs. Counts promised to pay the $6000 in installments of approximately $500 a month. The Respondent repeatedly was able to have the court delay forfeiture of the bonds because she was able to demonstrate that she was trying to locate and return the defendant to the court. In her efforts, the Respondent incurred expenses for hiring private investigators, for a six- day trip to Missouri, for long distance telephone charges, for attorneys' fees for getting postponements of the forfeiture of the bonds and for other miscellaneous expenses. The Respondent collected portions of the promised cash collateral substitution in the following installments, some of which were picked up at the Counts' home by the Respondent: April 21, 1987 $2,000 July 17, 1987 $ 300 August 10, 1987 $ 500 August 20, 1987 $ 800 January 6, 1988 $ 500 On each occasion, the Respondent gave Mrs. Counts a collateral receipt signed by the Respondent and by Mrs. Counts. Each receipt noted the amount received, the balance due on the cash collateral substitution promise, and the $150 balance on the premium on the October 2, 1986 bonds on the first set of charges. Again, there was no evidence that any of these collateral receipts were "filed" anywhere. On January 6, 1988, Mrs. Counts asked the Respondent for a summary of the amounts of collateral paid to that date. The Respondent wrote on a piece of paper, incorrectly dated January 6, 1987, that $4100 had been received to date. Mrs. Counts also was confused what the money would be used for. The Respondent answered her question, saying that the money, together with the lot, would go towards indemnifying the surety for the $19,000 amount of the bonds if they were forfeited and, under the indemnity agreement, could be used to indemnity Adriana's Bail Bonds for expenses caused by the estreature. The Respondent listed these items on a piece of paper, too: Attorney fees to continue case 4 times over one year. Long distance calls for one year. Gas, stamps, & miscellaneous. One trip to Missouri, gas, motel, meals. Investigators services in Missouri and Florida. Later in January 1988, Clayton Counts was arrested and returned to Florida. The bonds, however, were not discharged at that time. Later in 1988, the Respondent made demand on Mrs. and Mrs. Counts for payment of an additional $2,150. This was supposed to represent $2000 due on the cash collateral substitution promise, plus the $150 balance on the premium on the October 2, 1986 bonds on the first set of charges. In fact, only $1900 was due and owning on the cash collateral substitution agreement. In March and April 1988, the Respondent collected from Mrs. Counts two additional $350 installments of the cash collateral substitution promise. Only one receipt was given for both installments, once again signed by both the Respondent and Mrs. Counts, reducing the balance to $1200, plus the $150 premium owing. In June and July 1988, Mrs. Counts was hospitalized. On June 13, 1988, the Respondent went to the hospital to have Mrs. Counts sign a receipt for the return of the original collateral for the $19,000 of bonds--i.e., the $19,000 promissory note and indemnity agreement, the mortgage on the lot and the mobile home. The Respondent did not return the cash collateral. On July 14, 1988, the court entered an order releasing the surety and Adriana's Bail Bonds from the bonds. The Respondent did not return the cash collateral because Mrs. Counts died in July 1988, and the Respondent was unsure to whom the money should be paid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent be found guilty of the violations set forth in the Conclusions of Law portion of this Recommended Order and that her license and eligibility for licensure be suspended for a period of thirty (30) days, that she be required to pay an administrative fine in the amount of $250, and that she be placed on probation for nine months after expiration of the suspension period, conditioned on : (1) successful completion of either a basic certification course or a correspondence course approved by the Bail Bond Regulatory Board; and (2) payment of the cash collateral to the rightful owner, or in the alternative, if the Respondent is in doubt as to the rightful owner, into a court registry in conjunction with an interpleader action, within 30 days of entry of final order. DONE and ENTERED this 24th day of February, 1989, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Hearing Office Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. 88-2588 To comply with Section 120.59(2), Florida statutes (1987), the following rulings are made on the Petitioner'S proposed findings of fact: 1-9. Accepted and, along with other facts, incorporated. 10. Rejected in part and accepted in part. The note was a receipt of sorts, but it was not the only receipt. The incorrect date on the "receipt" was January 6, 1987; the actual date the "receipt" was given was January 6, 1988. 11.-16. Accepted and incorporated. COPIES FURNISHED: S. Marc Herskovitz, Esquire Office of Legal Services Department of Insurance 412 Larson Building Tallahassee, Florida 32399-0300 Don Dowdell General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, FL 32399-0300 James N. Casesa, Esquire 3845 Fifth Avenue North St. Petersburg, Florida 33713 The Honorable Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32999-0300
Findings Of Fact Based upon the testimony of the witness and the documentary evidence received at the hearing, the following findings of fact are made: At all times material to the allegations of the administrative complaint, Respondent was licensed and was eligible for licensure as a limited surety agent in the State of Florida. Respondent's application for examination for limited surety agent was filed in June, 1986. This application represented that Respondent would be employed by Carroll Collins Bonding when licensed. At the time of the hearing, Respondent was not licensed as a bail bondsman. During the period January through June, 1988, Respondent was licensed as a limited surety agent for Allegheny Mutual Casualty Company (Allegheny). This license had been issued in April, 1987, based upon a form application submitted on Respondent's behalf by an employee of Carroll Collins Bonding. The information submitted on that application (such as social security number, date of birth, and home address) was accurate and was identical to that which had been included in Respondent's application for examination. While Respondent admitted he had signed a contract to work with Collins, he claimed that he was unaware that the Allegheny license had been sought and approved. I find such claim not credible. Respondent did not, however, work for Carroll Collins in a bonding capacity. Whether he worked for him in some other role was not addressed at the hearing. Respondent did not timely provide statistical reports to the Department for Allegheny. When contacted by the Department, Respondent submitted a report which indicated no activity for Allegheny for the subject period, and requested that the license be cancelled. No one from Carroll Collins Bond testified at the hearing. Consequently, no explanation for why the Allegheny application was filed for Respondent was offered. It can reasonably be inferred that Carroll Collins Bond pursued the Allegheny application based upon information Respondent had given them and that Respondent should have known of its submittal.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Insurance and Treasurer enter a final order imposing an administrative fine in the amount of $250.00 against Respondent, Kenneth Alford Durham. DONE and ENTERED this 31st day of October, 1989, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-2193 Rulings On The Proposed Findings of Fact Submitted By Petitioner: 1. Paragraphs 1 through 3 are accepted. Rulings On The Proposed Findings of Fact Submitted By Respondent: Since Respondent submission was in one paragraph, each sentence has been considered a separate proposed fact and is ruled upon accordingly. The first six sentences are accepted The seventh sentence is rejected as unsupported by the record or hearsay. The ninth and tenth sentences are accepted. COPIES FURNISHED: Clyde W. Galloway, Jr. Office of Legal Services 412 Larson Building Tallahassee, Florida 32399-0300 Ralph L. Flowers Post Office Box 3668 Fort Pierce, Florida 34948 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 in this case is whether the allegations of the Amended Administrative Complaint are correct and, if so, what penalty should be imposed.
Findings Of Fact Charles Bernard Smith (Respondent) was licensed as a limited surety agent (bail bond agent) by the Department of Insurance and Treasurer (Department) at all times material to this matter. On or about June 3, 1997, the Respondent entered a plea of nolo contendere to one count of larceny by embezzlement, a felony in violation of Section 648.295, Florida Statutes, in Case No. 96-1922F in the Twelfth Circuit Court, Manatee County, Florida. On or about June 3, 1997, the Respondent entered a plea of nolo contendere to one count of giving a worthless check, a felony in violation of Section 832.05(2)(a), Florida Statutes, and to one count of unlawful deposit of an item, a felony in violation of Section 832.05(3)(a), Florida Statutes, in Case No. 96-1982F in the Twelfth Circuit Court, Manatee County, Florida. Based upon the two nolo contendere pleas, the Court withheld adjudication, placed the Respondent on two years probation, ordered restitution and payment of court costs, and imposed a public service requirement of 100 hours. At the formal administrative hearing, the Respondent acknowledged the resolution of the criminal charges as set forth herein. There is no evidence that the Respondent has previously been subjected to disciplinary action by the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Insurance and Treasurer enter a Final Order revoking the licensure of Charles Bernard Smith as a limited surety agent. DONE AND ORDERED this 29th day of December, 1997, 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 Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1997. COPIES FURNISHED: Dickson E. Kesler, Esquire Division of Legal Services 401 Northwest 2nd Avenue, Suite N-321 Miami, Florida 33128 Charles Bernard Smith 1701 4th Avenue West Palmetto, Florida 34221 Daniel Y. Sumner, General Counsel Department of Insurance and Treasurer The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300 Bill Nelson State Treasurer and Insurance Commissioner The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
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
Findings Of Fact Respondent Leroy Ellsworth Hardman has been licensed by petitioner as a limited surety agent since 1974. In January of 1976, he opened an office in Sanford, Florida, under the name of Action Bail Bonds. By December of 1978, he had qualified with the clerks of court in Orange, Seminole and Volusia Counties, and had written bonds in all three counties. Respondent decided to open an office in Deland, in addition to his office in Sanford. He leased office space on December 1, 1978, and began renovation. He had arranged for an advertisement to appear in the yellow pages of the Deland telephone directory, effective December 18, 1978, but did not succeed in opening the Deland office until December 19, 1978. Respondent hired Barbara Linkel to be in the office weekdays until four o'clock in the afternoon. He himself visited the office daily. Respondent, who had a 24 hour answering service and wore an electronic pager, instructed Ms. Linkel to notify him if anybody wanted a bond written. Respondent had charge of his Deland office while continuing to have charge of his office in Sanford. On January 29, 1979, John Wolmac, a limited surety agent, registered at the courthouse and began working for respondent, taking charge of the Deland office. On January 31, 1979, respondent executed the first bond written at the Deland office. Respondent's exhibit No. 8. Records of all bonds written at the Deland office were kept on file there until that office closed on May 31, 1979, when the records were transferred to respondent's office in Sanford. At all pertinent times, respondent's records were complete and open to the public for inspection. At the time of the hearing, respondent still had records of every bond executed or countersigned by him.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss the administrative complaint against respondent. DONE and ENTERED this 8th day of October, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Thomas A. T. Taylor, Esquire Office of the Insurance Commissioner The Capitol Tallahassee, Florida 32301 James C. Weart, Esquire 201 West Firth Street Suite 206, Paulucci Building Sanford, Florida 32771
The Issue The issue is whether Petitioner is entitled to a license as a limited surety/bail bond agent.
Findings Of Fact On July 22, 2002, Petitioner signed, under penalty of perjury, a statement declaring that his application for a license as a limited surety/bail bond agent was true. In the application, Petitioner answered "no" to the question: Have you ever been charged, convicted, found guilty, or pleaded guilty or nolo contendere (no contest) to a crime under the laws of any municipality, county, state, territory, or country, whether or not adjudication was withheld or a judgment of conviction was entered?" By Information dated February 28, 1971, the State of Florida charged Respondent with "unlawfully and feloniously break[ing] and enter[ing]" into a dwelling with the intent to commit a felony--namely, grand larceny. By Order entered October 15, 1971, the court acknowledged that Respondent had entered a plea of guilty to "breaking and entering with intent to commit a misd[demeanor]," withheld adjudication of guilt, and placed Petitioner on three years' probation. By Order entered August 15, 1974, the court terminated Petitioner's probation, noting that he had successfully completed it.
Recommendation It is RECOMMENDED that the Department of Financial Services enter a final order denying Petitioner's application for a license as a limited surety/bail bond agent. DONE AND ENTERED this 30th day of June, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2004. COPIES FURNISHED: Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Santiago Lavan-dera Law Office of Pena and Lavan-dera 7950 Northwest 155th Street, Suite 201 Miami Lakes, Florida 33016 Eduardo Federico Godoy 969 East 29th Street Hialeah, Florida 33013 Ladasiah Jackson Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333
The Issue The issue in this case is whether disciplinary action should be taken against Respondent's insurance licenses based upon the alleged violations of Chapter 648, Florida Statutes, as set forth in the Administrative Complaint.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: At all times pertinent to this proceeding, Respondent was licensed in Florida as a limited surety agent (bail bondsman). On September 15, 1989, the Department filed an Administrative Complaint against Respondent seeking disciplinary action against Respondent's license as a result of his alleged employment of a convicted felon identified as Ira Stern. That case, Department of Insurance Case No. 89-L-650RVE, was settled pursuant to a Consent Order entered on January 2, 1990, pursuant to which Respondent was fined $500 and placed on probation for one year. Respondent also agreed not to employ any individual disqualified by Section 648.44(7)(a) to work at his bail bond agency and agreed that no unlicensed person employed by his bail bond agency would be permitted to engage in any activity for which a license was required. The Consent Order incorporated a Settlement Stipulation which specifically provided that the settlement was entered to avoid the costs and uncertainty of litigation and did not constitute an admission by Respondent of any violation of the insurance code. At the time of the hearing in this case, Respondent's license was apparently under suspension pursuant to an Emergency Order of Suspension issued by the Department in Department Case No. 93-ESO-005JDM. The Emergency Order of Suspension is not referenced in the Administrative Complaint and no copy of that Emergency Order has been provided. The basis for entry of that Emergency Order was not established in this case and the parties stipulated that the Emergency Order was not a part of this proceeding. For at least two years prior to the hearing in this case, Respondent was appointed to write bail bonds by American Bankers Insurance Group ("American Bankers"). Respondent previously operated a company known as Barry's Bail Bonds. Apparently as a result of some unsatisfied judgements, Respondent did not issue any bail bonds in his name or in the name of Barry's Bail Bonds during the first 6 months of 1992. At the time of the transactions alleged in the Administrative Complaint, Respondent was married to Linda Ratner. Linda Ratner was a qualified and appointed agent of American Bankers. She was also the principle of Linda's Bail Bonds, Inc. The evidence established that Respondent was a primary contact for American Bankers on behalf of Linda's Bail Bonds. It appears that Linda's Bail Bonds and Barry's Bail Bonds were operating out of the same office in Fort Lauderdale for some periods during 1991 and 1992. Other businesses were also apparently operated out of this office. The evidence established that an individual by the name of Ira Stern was involved in the operations of that office during late 1991 and the first nine months of 1992. The evidence was inconclusive as to who actually employed Ira Stern. The evidence did establish that Respondent and Ira Stern primarily handled the day to day operations of the office, including the bail bond business transacted out of the office. No evidence was presented that Ira Stern was a convicted felon and/or that he was the same individual identified in the prior Administrative Complaint filed against Respondent. Respondent solicited and issued bail bonds through Linda's Bail Bonds on several occasions from January 1992 through July 1992. The evidence established that Linda Ratner signed several American Banker's power of attorney forms in blank. As discussed in more detail below, Respondent utilized several of these forms on behalf of clients during the time period in question. Respondent's authority to write bonds for American Bankers was terminated by American Bankers on or about July 24, 1992. At that same time, the authority of Linda Ratner and Linda's Bail Bonds, Inc. was also terminated. At some point after this termination, Respondent turned over to American Bankers certain tangible collateral that had been held in a safe deposit box. This collateral was turned over sometime between July and September of 1992. The exact date was not established. On September 11, 1992, employees of American Bankers accompanied by a Department investigator, went to Respondent's office and collected all of the files and tangible collateral in the office relating to the outstanding bonds written by Respondent and/or Linda's Bail Bonds for American Bankers. No cash collateral was recovered in connection with those files. Upon arriving at the office, representatives of American Bankers and the Department investigator dealt exclusively with a man who identified himself as Ira Stern and who claimed to be the office manager. As noted above, Respondent was previously disciplined by Petitioner for employing an Ira Stern, who was allegedly a convicted felon. No direct evidence was presented to establish the identity of the person in the office on September 11, 1992 nor was there any evidence that the person who identified himself as Ira Stern was a convicted felon and/or the same individual whom Respondent was accused of improperly employing in the previous disciplinary case. Moreover, no conclusive evidence was presented to establish who actually employed the individual in question. On or about July 9, 1992, Anna Agnew and her husband called Linda's Bail Bonds to obtain a bond to get their nephew out of jail. Respondent responded to the call and told the Agnews that he would issue a bond in return for $100 cash and the delivery of a $1,000 check which was to serve as collateral for the bond. Respondent told the Agnews that he would hold the check as collateral without cashing it until their nephew's case was resolved. To obtain the release of the Agnews' nephew, Respondent submitted American Bankers power of attorney number 0334165 which had been signed in blank by Linda Ratner and filled out by Respondent. The amount of the bond was $1,000. Shortly after the Agnews' nephew was bonded out of jail, Mrs. Agnew discovered that the check they gave to Respondent had been cashed. After the Agnews' many attempts to contact Respondent regarding the check were unsuccessful, Mrs. Agnew wrote to the Department complaining of the situation. On August 17, 1992, the Agnews' nephew's case was resolved. Respondent failed to return the Agnews' collateral within the time provided by law. In an attempt to retrieve their collateral after their nephew's case was completed, Mrs. Agnew testified that her husband unsuccessfully attempted to contact Respondent at his office on a least one occasion. At the time of Mr. Agnew's visit, Respondent's office was allegedly not open. No conclusive evidence was presented as to who cashed the Agnews' check or what happened to the proceeds. On or about January 8, 1993, the managing general agent for American Bankers returned $1,000 to the Agnews in repayment of the collateral. On or about June 21, 1992, American Bankers' power of attorney form number 0333494 was submitted to the Broward County Circuit Court to obtain the release from jail of Wentworth McNorton. The amount of the bond was $1,000. The power of attorney form had been signed in blank by Linda Ratner and was filled in by Respondent. Mr. McNorton's mother, Linnette, arranged for the issuance of the bond by paying Respondent $100 in cash. In addition, she gave Respondent a diamond ring appraised in excess of $10,000 as collateral for the bond. Linnette McNorton asked Respondent to hold the ring as collateral until she could arrange to substitute some other collateral. Liability on Mr. McNorton's bond was discharged by the court on July 14, 1992. Respondent did not return Mrs. McNorton's ring within twenty-one days of discharge of liability on the bond as required by law. Linnette McNorton continued to call Respondent for several months after her collateral was due to be returned. At no time during this period did Respondent return Mrs. McNorton's calls or inform her of the whereabouts of her ring. Approximately five months after Wentworth McNorton was released, Linnette McNorton and her husband went to Respondent's home and confronted him. Respondent advised the McNortons that he did not have the ring and that it had been turned over to the insurance company. Sometime prior to September of 1992, employees of American Bankers took possession of Mrs. McNorton's ring along with other tangible collateral held by Respondent in a safe deposit box. As noted in paragraph 9 above, the evidence did not establish the exact date American Bankers took control of the collateral in the safe deposit box. At the time, Mrs. McNorton's ring was marked improperly and the staff of American Bankers was unable to identify which file it belonged with. Mrs. McNorton's ring was finally returned to her on April 15, 1993 by American Bankers after they had determined that the mislabelled and unidentified ring in their possession was Mrs. McNorton's. On or about March 13, 1992, American Bankers power of attorney numbers 0295546, 0295547, and 0295548 were executed for the issuance of three bail bonds on behalf of Kevin Krohn, the principle. The total face value of these three bonds was $3,000. The powers of attorney had been signed in blank by Linda Ratner. The other handwriting on the powers of attorney appears to be Respondent's, however, the circumstances surrounding the execution and delivery of these powers was not established. The records obtained from Respondent's office on September 11, 1992 indicate that Jeanette Krohn, the indemnitor, paid $300 in premiums for the three bail bonds described in paragraph 24 and also put up $3,000 in cash collateral. The handwriting on the collateral receipts appears to be Ira Stern's however, the circumstances surrounding the execution of these documents was not established. The last of the bonds described in paragraph 24 was discharged by the court on April 22, 1992. In July of 1992, the Department received a complaint that Jeanette Krohn was unable to obtain the return of her $3,000 cash collateral. The Department notified American Bankers of the complaint and a representative of the insurance company contacted Respondent who advised that the collateral had been repaid on June 22, 1992 by check no. 1021 drawn on the trust account of Linda's Bail Bonds. June 22, 1992 was well beyond the twenty-one days provided by law for return of the collateral. The check which Respondent told the insurance company was issued to return Ms. Krohn's collateral was purportedly signed by Linda Ratner. The check was dishonored by the bank. The signature of Linda Ratner on the check given to Ms. Krohn was forged. The evidence was insufficient to establish who forged the signature. American Bankers paid Jeanette Krohn $3,000 on or about January 8, 1993 as repayment for the cash collateral placed for the bonds. In March of 1992, M. T. Heller contacted Respondent to procure a bail bond. Respondent arranged for the issuance of the bond. When the bond was discharged, Mr. Heller returned to Respondent's office, where he dealt with Ira Stern in attempting to obtain return of the collateral.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order finding Respondent guilty of the violations alleged in Counts I, II, and III of the Administrative Complaint and dismissing Counts IV and V. As a penalty for the violations, an administrative fine of $1,500 should be imposed and the license issued to the Respondent, Barry Seth Ratner, under the purview of the Florida Department of Insurance should be suspended for a period of two years, followed by a two year probationary period. DONE and ENTERED this 4th day of October, 1994, at Tallahassee, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 1994. APPENDIX TO RECOMMENDED ORDER Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties. Petitioner's proposed findings of fact Subordinate to Findings of Fact 3. Subordinate to Findings of Fact 4 and 9. Subordinate to Findings of Fact 5. Subordinate to Findings of Fact 24. Subordinate to Findings of Fact 25. Adopted in substance in Findings of Fact 26. Subordinate to Findings of Fact 27. Subordinate to Findings of Fact 28. Subordinate to Findings of Fact 29. Subordinate to Findings of Fact 30. Subordinate to Findings of Fact 27 and 28. Subordinate to Findings of Fact 17. Adopted in substance in Findings of Fact 18. Adopted in substance in Findings of Fact 19. Adopted in substance in Findings of Fact 20. Subordinate to Findings of Fact 22. Subordinate to Findings of Fact 21. Adopted in substance in Findings of Fact 23. Subordinate to Findings of Fact 20 and 22. Adopted in substance in Findings of Fact 11. Adopted in substance in Findings of Fact 11. Adopted in substance in Findings of Fact 13. Adopted in substance in Findings of Fact 13. Subordinate to Findings of Fact 16. Adopted in substance in Findings of Fact 14. Adopted in substance in Findings of Fact 31. Subordinate to Findings of Fact 32. Adopted in substance in Findings of Fact 10. Subordinate to Findings of Fact 33. Adopted in substance in Findings of Fact 2. Subordinate to Findings of Fact 34. Respondent's proposed findings of fact Adopted in substance in Findings of Fact 1 and 3. The first sentence is adopted in substance in Findings of Fact 1. The second sentence is adopted in substance in Findings of Fact 4. The third sentence is adopted in substance in Findings of Fact 9. The remainder is rejected as unnecessary. Adopted in substance in Findings of Fact 6. Subordinate to Findings of Fact 11 and 15. Subordinate to Findings of Fact 17-23. Subordinate to Findings of Fact 24-30. Subordinate to Findings of Fact 14. Subordinate to Findings of Fact 2 and 31-34. Addressed in the Preliminary Statement. COPIES FURNISHED: Joseph D. Mandt, Esquire Division of Legal Services 612 Larson Building Tallahassee, Florida 32399-0333 Joseph R. Fritz, Esquire 4204 North Nebraska Avenue Tampa, Florida 33603 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil, Esquire General Counsel Department of Insurance The Capitol, PL-11 Tallahassee, Florida 32399-0300
