The Issue The central issue in this case is whether the Respondent committed violations as alleged in the amended administrative complaint and, if so, what penalty should be imposed.
Findings Of Fact At all times material to the allegations of this case the Respondent has been licensed as a limited surety agent. On April 10, 1995, Elsa De La Cruz went to the criminal courthouse in Miami, Dade County, Florida, and waited on the fifth floor. A male who represented himself to be Respondent approached Ms. De La Cruz and asked her if he could help her. He specifically wanted to know if she was there to bail someone out and identified himself as a bail bondsman. The male also gave Ms. De La Cruz a business card bearing Respondent's name and business location. Ms. De La Cruz left the fifth floor of the courthouse and walked to the east wing which is commonly referred to as "the jail wing." The same male was also there and again approached Ms. De La Cruz. At this time he advised her that if the bond was set at $10,000, he would need $1,000 and collateral to help her. Ms. De La Cruz left the property and returned to her office to complete the affidavit which is Petitioner's exhibit 2. Ms. De La Cruz did not initiate any of the contact between herself and the male who represented himself as Respondent. On April 11, 1995, Maggie Porto went to the criminal courthouse in Miami, Dade County, Florida, and waited on the fifth floor. A male who later identified himself as Respondent initiated contact with Ms. Porto and advised her that he was in business if she needed him. After a short while, Ms. Porto left the fifth floor and walked over to the east wing of the criminal center. Upon her arrival there, the same male handed Ms. Porto a business card. When Ms. Porto asked the male if he was the man identified on the card, the subject answered "yes." The business card represented Respondent's name. Later, Ms. Porto left the criminal center and returned to her office to complete the affidavit which is Petitioner's exhibit number 3. All contact between Ms. Porto and Respondent was initiated by the Respondent.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Insurance and Treasurer enter a final order revoking Respondent's license. DONE AND ENTERED this 8th day of February, 1996, 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 8th day of February, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3032 Rulings on the proposed findings of fact submitted by Petitioner: Paragraphs 1, 4, 5 and 6 are accepted. With regard to paragraph 2, the allegation as to the time of the incident is rejected as not supported by the record or hearsay. With regard to paragraph 3, the allegation as to when the business card was delivered to Ms. De La Cruz is rejected as contrary to the weight of the record. Rulings on the proposed findings of fact submitted by Respondent: 1. None submitted. COPIES FURNISHED: Bill Nelson State Treasurer and Insurance Commissioner Department of Insurance The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Dan Sumner Acting General Counsel Department of Insurance The Capitol, PL-11 Tallahassee, Florida 32399-0300 Dickson E. Kesler, Esquire Division of Agent and Agency Services 8070 Northwest 53rd Street, Suite 103 Miami, Florida 33166 Noel A. Rivera 2200 Northwest 11th Street Miami, Florida 33172 Anthony Alvarez 350 Sevilla Avenue, Suite 201 Coral Gables, Florida 33134
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the stipulated facts, the following relevant facts are found: At all times relevant to this proceeding, respondent Joseph Aloysius Von Waldner has been licensed as a limited surety agent. He has been in the bail bond business for nine years and has had no previous or subsequent complaints issued against him. On five occasions during January and February of 1979, respondent did authorize, hire and remunerate Delbert Leroy Sams to pick up principals or skips and surrender them to the Orange County Jail. Delbert Leroy Sams was not and has not been previously licensed in any capacity by the Department of Insurance. On March 2, 1979, Mr. Sams was denied a license by the Department of Insurance. At the time respondent engaged the services of Mr. Sams, respondent believed that Mr. Sams was working as a bail bond runner for another bail bondsman. Respondent did not inquire of Sams as to whether Sams was or was not licensed by the Department of Insurance. Respondent knew that other bail bondsmen had used Sams as a runner, and Sams showed respondent some business cards and forms which Sams used when picking up principals. Respondent admits that he was negligent for not inquiring into Mr. Sams' licensure. Respondent was called in for an investigation by the petitioner's chief investigator, Melvin R. Thayer, on February 28, 1979. After talking with Mr. Thayer and becoming aware that Mr. Sams was not licensed, respondent no longer used Sams as a runner.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Department of Insurance enter a final order finding that respondent violated the provisions of Florida Statutes, s648.45(1)(j) and imposing an administrative penalty against respondent in the amount of $100.00, said penalty to be paid within thirty (30) days of the date of the final order. Respectfully submitted and entered this 27th day of June, 1980, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 1980. COPIES FURNISHED: Thomas A. T. Taylor, Esquire Room 428-A, Larson Building Tallahassee, Florida 32301 Richard L. Wilson, Esquire 100 South Orange Avenue Orlando, Florida 32801 Insurance Commissioner Bill Gunter The Capitol Tallahassee, Florida 32301
Findings Of Fact Petitioner was first licensed as a ball bondsman in 1961 or 1962. In 1969 (Exhibit 2), Petitioner was charged with being incompetent and untrustworthy as a bail bondsman, found guilty and placed on one year's probation which was successfully completed. In 1973, Petitioner was again charged with conducting himself in a manner unbecoming a bail bondsman (Exhibit 3). These charges alleged failure to return the premium paid on a supersedes bond when the prisoner was not released from jail on the bond and failure to maintain his office open to the general public as required. In the Final Order issued in this case, Petitioner was fined $850 and placed on probation for two years. Upon failure of Petitioner to comply with the terms of the Final Order, his license was revoked for a period of ten months after which the revocation was set aside and his license restored. In 1979, a hearing was conducted by the undersigned Hearing Officer on charges alleging that Petitioner had failed to maintain the minimum requirement for permanent office records and failed to maintain a place of business accessible to the public and be actively engaged in the bail bond business in violation of Chapter 64B, Florida Statutes. Petitioner was found guilty as charged, and the recommendation that his license be revoked was adopted by the Commissioner of Insurance in the Final order. In 1986, Petitioner was arrested for operating a donut shop in Tampa utilizing topless waitresses in violation of Tampa Ordinance 24-11. These charges were dismissed on appeal to the circuit court (Exhibit 5). Witnesses called by Petitioner included the attorney who prosecuted the 1979 case (Exhibit 4) against Respondent; the investigator who investigated the 1979 charges for the Department, and a sitting circuit court judge who filed an appeal of the 1979 revocation order on behalf of the Petitioner At the time the charges which led to the revocation were preferred, Respondent was without power to write bonds, but still had an obligation to service bonds still outstanding. The two witnesses who testified in these proceedings on the status of a licensed bail bondsman without power to write new bonds both concurred that this places a bail bondsman in the anomalous position of one who has no need for an office to provide bail bonds for the public but who still needs to be accessible to those clients for whom he has outstanding bonds. This distinction was not clarified at the 1979 hearing. All three witnesses who testified on behalf of Petitioner were aware of nothing that would disqualify Petitioner as a bail bondsman at this time. No evidence was submitted that Petitioner was convicted of any crime involving moral turpitude, except for the admission by Petitioner that on or about August 11, 1966, he pleaded guilty to uttering a check without sufficient funds on deposit with which the check could be honored. This offense occurred more than 20 years ago and prior to Petitioner twice being found qualified for licensure by Respondent as a bail bondsman.
Findings Of Fact James L. Sponheim is licensed as a Limited Surety Agent to represent Cotton Belt Insurance Company, Inc., and was so licensed at all times relevant to this proceeding. His office is located in Dade City, Florida. (Testimony of J. Sponheim, petitioner's Exhibit 2) Respondent Bonnie L. Sponheim is qualified, but not currently licensed, as a bail bond runner. She was previously licensed as a runner, but her license was cancelled on April 3, 1980. Thereafter, she has served as a secretary in her husband's Dade City office. (Testimony of B. Sponheim, Petitioner's Exhibit l) On August 6, 1980, Stephen W. Sissitka, of Zephyrhills, Florida, made application to the Cotton Belt Insurance Company for appearance bonds B6A095951- 52 to effect his release from the custody of the Pasco County Sheriff's office. The application contained provisions as to events which would constitute a breach of the obligations under the bond, including the applicant's change from one address to another without notifying the Cotton Belt Insurance Company or its agent in writing prior to any such move. On the reverse of the application, Glenna Lilly and Spurgeon Phillips executed an indemnity agreement whereby they agreed to bind themselves to produce Sissitka in court at the required time. The application further identified Glenna Lilly as Sissitka's mother. Phillips executed a separate indemnity agreement on August 30, 1980. He is the father- in-law of Sissitka and resides in Dade City. (Testimony of J. Sponheim, S. Sissitka, Respondent's Exhibits 1,2) On August 6, 1980, Mr. Sponheim, as agent for Cotton Belt Insurance Company, issued the requested bonds in the total amount `of $2,500.00. (Testimony of J. Sponheim, Petitioner's Composite Exhibit 4) Although Sissitka had listed his address as Zephyrhills, Florida, he was living at the home of his father-in-law Spurgeon Phillips, in Dade City at the time he was released on bond. However, he was having difficulties with his wife and did not remain in Dade City on a continuous basis. On several occasions, he went over night to his mother's house in Zephyrhills, and another time he visited his wife's mother for several days in Pasco County. He did not tell Mr. Sponheim about the latter visit, nor did Phillips know where he was. In fact, he stayed only sporadically with Phillips during the period August to October, 1980, and sometimes would be gone for a week or two. Phillips complained to Mr. Sponheim about his inability to keep up with Sissitka's whereabouts, and wanted to have him returned to custody. As a result, Mr. Sponheim and Phillips had a meeting with Sissitka on October 7, 1980, at which time Mr. Sponheim reminded Sissitka of his obligations to report any changes of address or employment and imposed the requirement that Sissitka "check in" with Sponheim's office once a week. Sissitka was also told to stay at Phillips' house in the future. Sissitka agreed to follow the conditions imposed and keep Mr. Sponheim and Phillips notified of his whereabouts. (Testimony of J. Sponheim, B. Sponheim, Phillips, Harrelson, S. Sissitka, M. Sissitka, Petitioner's Exhibit 3, Stipulation) On October 15, 1980, Mrs. Sponheim discovered Sissitka was no longer employed at a restaurant in Dade City. Mr. Sponheim was out of the state at the time. Mrs. Sponheim was under the impression that Sissitka was living at Zephyrhills, and so she drove out to Phillips' house to talk to his wife in an attempt to ascertain his current situation. When she knocked on the door, Sissitka answered and told her that he had been living there. Mrs. Sponheim told him that they needed to talk. She waited in her car while he put on a shirt and some shoes, and joined her in the car. They then drove to Mr. Sponheim's office. On the way, she asked him about his job and where he was living, but Sissitka indicated that it was none of her business, that Mr. Sponheim had no control over him, and that as long as he showed up in court that was all that mattered. He asked her if he was going to jail, and she told him that was between him and Mr. Sponheim. When they arrived at the office they discussed the conditions of the bond and the arrangements which had been made at the previous meeting with Phillips and Mr. Sponheim on October 7. Sissitka told her that he was tired of being harrassed not only by her husband, but by Phillips, and that everyone was giving him a hard time, and he wanted it stopped. Mrs. Sponheim inferred from this statement that Sissitka wished to terminate the bond relationship and told him that if he wanted to "end it" he was free to go to the jail and surrender himself at any time. At that point, Sissitka said "fine, let's go" but Mrs. Sponheim told him that they needed to talk to Mr. Sponheim about it first. She went into the adjoining private office, telephoned her husband and informed him of the situation. He told her that Sissitka could either go ahead and surrender himself, or otherwise they would have to wait until he returned to the city to settle the matter. He further told her that if Sissitka wanted to turn himself in that she should make sure to get the surrender documents to the jail so that he couldn't walk out again. Mr. Sponheim made a practice of pre-signing the appropriate surrender forms for each person he bonded out at the time the bond was written; therefore, a signed surrender form had been previously prepared for Sissitka. The Pasco County Sheriff's Department requires that the surrender document be filed with that office prior to permitting an individual to surrender himself. Otherwise, the individual would be free to leave the jail because the bond would still be valid. After talking to her husband, Mrs. Sponheim informed Sissitka of the conversation and he asked to use the phone to call his mother. After he completed the call, he said "o.k. let's go." Mrs. Sponheim then filled in the date on the "off bond" form and they walked across the street to the jail. Sissitka went up to the jail door and said "here I am again" and opened the metal door and went on in. Mrs. Sponheim handed the surrender forms to the official at the booking office and said that she was coming off the bond. She then returned to her office and later that day Sissitka called her and inquired about the possibility of being bonded out again because he did not have enough money to post a cash bond. Mrs. Sponheim told him that her husband was not there and he asked if she could bond him out. She replied that she didn't have a license, but gave him the name of another bondsman. (Testimony of J. Sponheim, B. Sponheim, Kelly, Brown, Shytle, Petitioner's Exhibits 5,6)
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
The Issue The issue is whether Respondent is guilty of unlawfully employing a felon in the conduct of the bail bond business, in violation of Sections 648.44(8)(b) and 648.45(3), Florida Statutes, and Rule 4-221.001, Florida Administrative Code. If so, an additional issue is what penalty should be imposed.
Findings Of Fact At all material times, Respondent has been a licensed limited surety agent, holding license number A025071. At all material times, Respondent has been the president and owner of Dolly Bolding Bail Bonds, Inc. (Dolly Bolding), which is located at 108 South Armenia Avenue in Tampa. In July 1999, Carver Taitt visited the office of Dolly Bolding to obtain a bail bond for his son, who had been arrested on drug charges. The judge had set bond at $20,000, so the bail bond premium was $2000. Mr. Taitt spoke with Respondent and said that he did not have the entire $2000; he had only $1000. Respondent declined to extend Mr. Taitt credit for the $1000 balance. Mr. Taitt then offered $1500, and Respondent agreed to allow Mr. Taitt to owe Dolly Bolding the remaining $500. At this time, Mr. Taitt saw Frank Cueto, Sr., also known as “Paunch,” in the office of Dolly Bolding. Mr. Taitt also told Mr. Cueto that Mr. Taitt would pay the remaining $500. Mr. Taitt had obtained bonds in the past five years from Dolly Bolding. During this time, he had often seen Respondent and Mr. Cueto in the office, and Mr. Taitt was acquainted with both of them from these past purchases of bonds. Mr. Cueto contacted Mr. Taitt several times and asked him to pay the remaining $500. At one point, Mr. Cueto threatened that Dolly Bolding would revoke the bond if Mr. Taitt did not immediately pay the remaining $500, especially because he was about to take a trip whose cost would approximate the outstanding balance. Mr. Taitt paid the $500 on the day prior to his son’s court appearance. When he complained to Mr. Cueto that he should have trusted Mr. Taitt based on their past relationship, Mr. Cueto replied that money is money. Mr. Taitt’s son missed his court appearance, and the judge ordered the forfeiture of the bond. The judge later entered an order reinstating bail, but this order did not reinstate the obligation previously undertaken under the bond by Dolly Bonding or its principal. Consequently, Mr. Taitt telephoned Dolly Bonding and requested a reissuance of the bond. Told that Respondent was unavailable, Mr. Taitt spoke with Mr. Cueto. Mr. Cueto told Mr. Taitt that no surety company would agree to reissue the bond. In the meantime, the assistant public defender obtained an order from the judge for the administrative release of Mr. Taitt’s son. By this means, the jail released Mr. Taitt’s son immediately without posting any bond. The facts contained in paragraphs 4-8 above are derived from Mr. Taitt’s testimony. This constitutes some, but not all, of Mr. Taitt’s testimony. The Administrative Law Judge has not credited much of the remainder of the testimony, including, most significantly, Mr. Taitt’s testimony that Mr. Cueto was always in the office of Dolly Bolding and that he seemed to run the bonding business. Mr. Taitt was angered by Mr. Cueto’s involvement in this transaction. Much of his uncredited testimony lacked the detail of his credited testimony. As for the credited testimony, Respondent, who was not always present in the office, was not able to rebut the more-detailed portion of Mr. Taitt’s description of Mr. Cueto’s handling of the transaction. Mr. Cueto did not testify, although he is engaged to be married to Respondent and lives with her. However, Respondent’s testimony is credited over Mr. Taitt’s vague, conclusory testimony as to the business relationship between Respondent and Mr. Cueto. Thus, consistent with Respondent’s testimony, the Administrative Law Judge finds that Mr. Cueto has not exercised any dominion over Dolly Bolding or Respondent. Respondent is an articulate, intelligent individual, who is a college graduate. She makes all bonding decisions for Dolly Bolding. Mr. Cueto is not an employee, officer, or shareholder of Dolly Bolding, and Respondent is not an employee, officer, or shareholder in any company owned by Mr. Cueto. He maintains an office in the same building as Dolly Bolding’s office, and he is present in the Dolly Bolding office on a frequent basis. At least in the case of the bond for Mr. Taitt’s son, Mr. Cueto has involved himself to some extent in Respondent’s bonding business. It is entirely possible that Mr. Cueto’s involvement in this bonding transaction is isolated, as he may have been inclined to involve himself to an unusual degree in a bonding matter due to the number of years that Mr. Cueto has known Mr. Taitt. It is even more likely that Mr. Cueto’s involvement in this bonding transaction was without the knowledge of Respondent. Mr. Cueto is a felon. He was convicted in 1994 of unlawful engaging in the bail bond business and misleading advertising. Mr. Cueto was formerly a licensed limited surety agent, but Petitioner suspended his license sometime ago. Respondent was at all times aware of these aspects of Mr. Cueto's background. In November 1991, Petitioner commenced an administrative proceeding against Respondent, as a licensed limited surety agent, for allowing an unlicensed person to participate in the bail bond business. By Settlement Stipulation for Consent Order and Consent Order, both signed in April 1992, Respondent agreed, and was ordered, to pay an administrative fine of $2000.
Recommendation It is RECOMMENDED that the Department of Insurance dismiss the Second Amended Administrative Complaint against Respondent. DONE AND ENTERED this 6th day of April, 2001, in Tallahassee, Leon County, Florida. ___________________________________ 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 6th day of April, 2001. COPIES FURNISHED: Honorable Tom Gallagher Commissioner of Insurance and Treasurer The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307 Anoush A. Arakalian Division of Legal Services Department of Insurance 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Joseph R. Fritz Joseph R. Fritz, P.A. 4204 North Nebraska Avenue Tampa, Florida 33602
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 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
