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
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
The Issue Whether Respondent, a bail bondsman, committed the offenses alleged in the Amended Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact At all times pertinent to this proceeding, Respondent was licensed by Petitioner as a limited surety and as a professional bail bondsman. Prior to November 23, 1992, Gredys Tarazona entered into an agreement for Respondent to post a bond for James Johansen. In connection with that transaction, Ms. Tarazona delivered to Respondent the sum of $200 that was to serve as collateral security for the bond. They agreed that the sum of $200 would be returned to Ms. Tarazona once the conditions of the bond had been satisfied. On November 23, 1992, the conditions of this bond were satisfied and the liability on the underlying bond was terminated. Respondent failed to return the sum of $200 to Ms. Tarazona despite demands for her to do so. Prior to August 23, 1992, Julian Maldonado purchased a bail from Respondent. In connection with that transaction, Mr. Maldonado delivered to Respondent the sum of $200 that was to serve as collateral security for the bond. They agreed that the sum of $200 would be returned to Mr. Maldonado once the conditions of the bond had been satisfied. On August 23, 1992, the conditions of this bond were satisfied and the liability on the underlying bond was terminated. Respondent failed to return the sum of $200 to Mr. Maldonado despite demands for her to do so. Prior to April 1, 1993, Faye Finley entered into an agreement for Respondent to post a bond for Michael Finley. In connection with that transaction, Ms. Finley delivered to Respondent the sum of $200 that was to serve as collateral security for the bond. They agreed that the sum of $200 would be returned to Ms. Finley once the conditions of the bond had been satisfied. On April 1, 1993, the conditions of this bond were satisfied and the liability on the underlying bond was terminated. Respondent failed to return the sum of $200 to Ms. Finley despite demands for her to do so. Prior to November 8, 1992, Robert Post purchased a bail from Respondent. In connection with that transaction, Mr. Post delivered to Respondent the sum of $150 that was to serve as collateral security for the bond. They agreed that the sum of $150 would be returned to Mr. Post once the conditions of the bond had been satisfied. On November 8, 1992, the conditions of this bond were satisfied and the liability on the underlying bond was terminated. Respondent failed to return the sum of $150 to Mr. Post despite demands for her to do so. Prior to December 10, 1992, Jo Anne Adams entered into an agreement for Respondent to post a bond for Wilfred Byam. In connection with that transaction, Ms. Adams delivered to Respondent the sum of $200 that was to serve as collateral security for the bond. They agreed that the sum of $200 would be returned to Ms. Adams once the conditions of the bond had been satisfied. On December 10, 1992, the conditions of this bond were satisfied and the liability on the underlying bond was terminated. Respondent failed to return the sum of $200 to Ms. Adams despite demands for her to do so. Prior to December 22, 1992, Shannon Davidson purchased a bail bond from Respondent. In connection with that transaction, Mr. Davidson delivered to Respondent the sum of $250 that was to serve as collateral security for the bond. They agreed that the sum of $250 would be returned to Mr. Davidson once the conditions of the bond had been satisfied. On December 22, 1992, the conditions of this bond were satisfied and the liability on the underlying bond was terminated. Respondent failed to return the sum of $250 to Mr. Davidson despite demands for her to do so. Prior to July 23, 1993, Albert Perone entered into an agreement for Respondent to post a bond for Richard Falaro. In connection with that transaction, Mr. Perone delivered to Respondent the sum of $250 that was to serve as collateral security for the bond. They agreed that the sum of $250 would be returned to Mr. Perone once the conditions of the bond had been satisfied. On July 23, 1993, the conditions of this bond were satisfied and the liability on the underlying bond was terminated. Respondent failed to return the sum of $250 to Mr. Perone despite demands for her to do so. Respondent permitted her husband, Ken Jenkins, to participate in the transaction involving the bail bond purchased by Mr. Perone for Mr. Falaro. At the time she permitted him to engage in the conduct of her bail bondsman business as part of the Perone transaction, Respondent knew or should have known that her husband's license as a bail bondsman had been revoked and that he had entered a plea of guilty to a felony charge in a criminal proceeding. On or about April 27, 1993, Respondent received payments totaling $650 for placement of a bond from Angelene G. Goulos. No bond was posted by the Respondent. Respondent failed to return any part of the sum she had received from Ms. Goulos despite demands for her to do so. Prior to November 18, 1992, Ross Rankin purchased a bail bond from Respondent. In connection with that transaction, Mr. Rankin delivered to Respondent the sum of $250 that was to serve as collateral security for the bond. They agreed that the sum of $250 would be returned to Mr. Rankin once the conditions of the bond had been satisfied. On November 18, 1992, the conditions of this bond were satisfied and the liability on the underlying bond was terminated. Respondent failed to return the sum of $250 to Mr. Rankin despite demands for her to do so. Prior to May 18, 1993, Mary Pilcher entered into an agreement for Respondent to post a bond for Hassan Niksirat. In connection with that transaction, Ms. Pilcher delivered to Respondent the sum of $200 that was to serve as collateral security for the bond. They agreed that the sum of $200 would be returned to Ms. Pilcher once the conditions of the bond had been satisfied. On May 18, 1993, the conditions of this bond were satisfied and the liability on the underlying bond was terminated. Respondent failed to return the sum of $200 to Ms. Pilcher despite demands for her to do so. Prior to March 31, 1993, Tania Rodriguez, a/k/a, Tania Cuevas entered into an agreement for Respondent to post a bond for Edwin Cuevas. In connection with that transaction, Ms. Rodriguez delivered to Respondent the sum of $400 that was to serve as collateral security for the bond. They agreed that the sum of $400 would be returned to Ms. Rodriguez once the conditions of the bond had been satisfied. On March 31, 1993, the conditions of this bond were satisfied and the liability on the underlying bond was terminated. Respondent failed to return the sum of $400 to Ms. Rodriguez despite demands for her to do so. On May 4, 1993, and May 6, 1993, Respondent permitted her husband, Ken Jenkins, to conduct bail bond business in transactions with Mary Gandy, another bail bondsman. At the time she permitted him to engage in the conduct of her bail bondsman business in transactions with Ms. Gandy, Respondent knew or should have known that her husband's license as a bail bondsman had been revoked and that he had entered a plea of guilty to a felony charge in a criminal proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order that adopts the findings of fact and conclusions of law contained herein. It is further recommended that Petitioner revoke Respondent's existing licensure and her eligibility for licensure under the Florida Insurance Code. DONE AND ENTERED this 7th day of June, 1996, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON, 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 7th day of June, 1996. COPIES FURNISHED: Bill Tharpe, Esquire Division of Legal Services 612 Larson Building Tallahassee, Florida 32399-0333 Dickson E. Kesler, Esquire Division of Agent and Agency Services 8070 N.W. 53rd Street, Suite 103 Miami, Florida 33166 Loudelle Davis Jenkins 1372 Northampton Terrace West Palm Beach, Florida 33414 Honorable Bill Nelson State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Dan Sumner, General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the stipulated facts, the following relevant facts are found: At all times relevant to this proceeding, respondent Joseph Aloysius Von Waldner has been licensed as a limited surety agent. He has been in the bail bond business for nine years and has had no previous or subsequent complaints issued against him. On five occasions during January and February of 1979, respondent did authorize, hire and remunerate Delbert Leroy Sams to pick up principals or skips and surrender them to the Orange County Jail. Delbert Leroy Sams was not and has not been previously licensed in any capacity by the Department of Insurance. On March 2, 1979, Mr. Sams was denied a license by the Department of Insurance. At the time respondent engaged the services of Mr. Sams, respondent believed that Mr. Sams was working as a bail bond runner for another bail bondsman. Respondent did not inquire of Sams as to whether Sams was or was not licensed by the Department of Insurance. Respondent knew that other bail bondsmen had used Sams as a runner, and Sams showed respondent some business cards and forms which Sams used when picking up principals. Respondent admits that he was negligent for not inquiring into Mr. Sams' licensure. Respondent was called in for an investigation by the petitioner's chief investigator, Melvin R. Thayer, on February 28, 1979. After talking with Mr. Thayer and becoming aware that Mr. Sams was not licensed, respondent no longer used Sams as a runner.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Department of Insurance enter a final order finding that respondent violated the provisions of Florida Statutes, s648.45(1)(j) and imposing an administrative penalty against respondent in the amount of $100.00, said penalty to be paid within thirty (30) days of the date of the final order. Respectfully submitted and entered this 27th day of June, 1980, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 1980. COPIES FURNISHED: Thomas A. T. Taylor, Esquire Room 428-A, Larson Building Tallahassee, Florida 32301 Richard L. Wilson, Esquire 100 South Orange Avenue Orlando, Florida 32801 Insurance Commissioner Bill Gunter The Capitol Tallahassee, Florida 32301
The Issue Did Respondent knowingly permit a person who had been convicted of or who had pled guilty or no contest to a felony or a crime involving moral turpitude or a crime punishable by imprisonment of one year or more under law of any state, territory or country, regardless of whether adjudication of guilt was withheld, to engage in the bail bond business as an employee of Respondent's bail bond agency? If yes, should Respondent have her limited surety agent license disciplined?
Findings Of Fact At all relevant times Respondent was licensed by Petitioner as a limited surety agent, license no. 224404483. Petitioner has regulatory jurisdiction over that license. For that reason Petitioner may impose discipline should Respondent violate laws pertaining to Respondent's activities associated with the license. Respondent is President and Director of Crews Bonding Agency, Inc., 24 North Liberty Street, Jacksonville, Florida 32222, through which business she performs insurance-related activities concerning bail bonds. Crews Bonding Agency, Inc. was incorporated in Florida on March 31, 1988. The corporation is organized for the purpose of transacting any or all lawful business. The corporation provides bail bonds at the Liberty Street premises. The corporation also runs a parking lot concession at that location. Both businesses were operated at times relevant to the inquiry. On August 28, 1995, Star Legal Research, Inc. was incorporated to operate at 350 East Forsyth Street, Jacksonville, Florida 32202. That street address is the street adjacent to the Liberty Street address. The Star Legal Research business works out of the same building that Crews Bonding Agency uses. The difference being that the entrance to Crews Bonding Agency is on Liberty Street and the Star Legal Research entrance is on Forsyth Street. A 1995-96 occupational license was issued to Star Legal Research c/o Jack I. Etheridge, Jr., Respondent's son, for the period October 1, 1995 to September 30, 1996. Jack I. Etheridge, Jr. owns Star Legal Research. Jack I. Etheridge, Jr. stated that the purpose for incorporating Star Legal Research was to provide work for Jack I. Etheridge, his father and Respondent's husband, in a setting in which Mr. Jack Etheridge, Jr. contends would be unassociated with Crews Bonding Agency. The attempt to disassociate Mr. Jack Etheridge from Crews Bonding Agency will be subsequently explained. When the hearing was convened Jack I. Etheridge had been working in an office in the building where Crews Bonding Agency has its business. That employment was under the guise of Star Legal Research. The office where Jack I. Etheridge works in the building is separated from the office associated with Crews Bonding Agency by a door. Jack I. Etheridge uses a separate entrance into the office where he works. That entrance is from Forsyth Street rather than the Bonding agency entrance from Liberty Street. The business done by Star Legal Research, according to Jack Etheridge, Jr., is one where "you can research any type of legal matters . . . that's pretty much it". Again, Jack Etheridge, Jr. states that his father, Jack Etheridge, ". . . researches legal, you know, business". Under this arrangement, Jack Etheridge is supposedly no longer affiliated with the Crews Bonding Agency in operating its parking lot or otherwise. From the record, it is unclear exactly what is meant by Jack Etheridge's performance of legal research. At present, the bail bond business is done in the front office to the building that houses Crews Bonding Agency and Star Legal Research. That office faces Liberty Street. In addition to the office where bail bond activities are conducted and the back office which faces Forsyth Street, where Star Legal Research is housed, there is a kitchen in the building. That constitutes the rooms in that building. Contrary to the claim by his son that Jack Etheridge is no longer affiliated with Crews Bonding Agency, Respondent identified that the present circumstances are such that Jack Etheridge helps with the Crews Bonding Agency parking lot business "if he sees a car and I don't, he will go there . . .". Respondent identified that she principally handles the parking lot when she is there at the business premises, but that on one occasion, she was in the hospital and was not available to do that work. Further, she stated that her physician did not really want her "running back and forth to the parking lot". Respondent intends to transfer the parking lot business from Crews Bonding Agency to Star Legal Research by January 1997. At one time, Jack Etheridge had been licensed by Petitioner as an insurance agent entitled to participate in bail bond activities. Prior to the passage of Section 648.44(3), Florida Statutes (1983), he had been convicted of a felony in Florida. Section 648.44(3), Florida Statutes (1983), stated: No person who has been convicted of or who has pleaded guilty or no contest to any felony, regardless of whether adjudication of guilt was withheld, may participate as a director, officer, manager, or employee of any bail bond agency or office thereof or own shares in any closely held corporation which has any interest in any bail bond business. Having a concern that Section 648.44(3), Florida Statutes (1983), might disqualify him from continuing to act as an insurance agent in the bail bond business, Jack Etheridge brought suit in the Circuit Court, Fourth Judicial Circuit, In and For Duval County, Florida, Case No. 82-10537CA, Division K. Petitioner was named defendant in that suit. As a result, an order was entered stating: The provisions of Florida Statutes 648.44(3), Fla. Stat. (1983), or its successor(s) do not and cannot be determined to effect the status of plaintiff, Jack I. Etheridge, in his individual capacity as an officer and director of F.G.C. Bonding Insurance Corporation nor his ability to continue to maintain stock ownership of shares of F.G.C. Bonding Insurance Corporation. The provisions of this paragraph shall serve as notice to all interested parties that said statute does not apply to Jack I. Etheridge, individually, nor in his capacity as an officer, director and stockholder in F.G.C. Bonding Insurance Corporation. Subsequently, in a case in the United States District Court, Middle District of Louisiana, Case No. CR.89-40-A-M1, Jack Etheridge pled guilty and was found guilty and convicted of the offense of mail fraud, in accordance with 18 U.S.C. 1341-2. For this offense, he was imprisoned for a period of five years and ordered to make restitution in the amount of $237,393.83. The sentence was imposed on April 6, 1990. At that time, Jack Etheridge was not licensed by Petitioner. Respondent had separated from Mr. Jack Etheridge in 1986. She was reunited with her husband in 1989. Respondent was aware that her husband had been convicted in Florida in state court, the offense for which he sought relief in Circuit Court Case No. 82-10537CA, Division K, and that he had committed the federal offense in Case No. CR.89-40-A-M1. In August or September, 1992, federal probation officers came to the Crews Bonding Agency and spoke to Respondent about her husband's pending release from federal prison. In particular, those persons indicated that Mr. Jack Etheridge was going to be released in December of 1992. In this conversation, the probation officers told Respondent that they expected the husband to work for Crews Bonding Agency in a capacity that did not involve the handling of bail. Respondent told them that her husband could not work at the agency because she did not wish to jeopardize her Florida insurance license and livelihood. This is taken to mean that she was concerned about having a convicted felon working for her at the bail bond agency. In the conversation with the probation officers, Respondent was persuaded that the probation officers had the authority to place her husband with the bail bond agency to give the husband employment in some capacity, other than dealing with bail bond activities. The probation officers did not indicate the specific authority for requiring this placement. Respondent replied to the probation officers that her husband could run the parking lot and clean up. In offering that arrangement, Respondent operated on the assumption that the probation officers were familiar with the requirements in the Florida Insurance Regulations and Statutes. In the conversation between Respondent and the federal probation officers, Respondent made no mention of the ruling in the Circuit Court Case No. 82-10537CA, Division K, concerning her husband's exemption from Section 648.44(3), Florida Statutes (1983), and its effects, or any subsequent law. After the conversation with the probation officers, and prior to her husband's release from prison, Respondent sought advice of counsel concerning the propriety of having her husband employed by Crews Bonding Agency. Robert Persons, Esquire is corporate counsel for Crews Bonding Agency. He incorporated the business. He has done work for the business as corporate counsel, beginning in 1988. He was aware that Mr. Jack Etheridge had been incarcerated in the federal corrections system. Before Mr. Jack Etheridge was released, Mr. Persons reviewed the previously-quoted language in Circuit Court Case No. 82-10537CA, Division K, in response to Respondent's request for legal advice. Respondent had told Mr. Persons that it was possible that she was going to hire her husband to run the parking lot for the Crews Bonding Agency. She wanted to know if there would be a problem with Petitioner's statutes that prohibited a bonding agency from operating with a felon working for it. Specifically, Respondent asked Mr. Persons if her husband could work in the parking lot. Mr. Persons told Respondent that his interpretation of the order was that the statutory prohibition against felons working for a bonding agency did not apply to her husband. For that reason, he did not believe that there would be a problem having the husband work at the parking lot. Moreover, he told Respondent that he did not believe that it presented a problem, in that the activities by the husband, when running the parking lot business, did not involve employment with the bail bonding operation. When he gave this advice, Mr. Persons was familiar with the parking lot concessions operation, having used the parking lot himself. He was also familiar with the bail bond business conducted by Crews Bonding Agency. John Gary Baker, Esquire was retained to assist Mr. Jack Etheridge in meeting the terms of the federal parole granted the client. This included correspondence with the probation office in an attempt to obtain early release. Once Mr. Jack Etheridge was released, Mr. Baker went with the client and spoke to probation officer, Diane Thomas. This conversation took place sometime in late August or early September, 1993. Ms. Thomas told Mr. Baker and Mr. Etheridge that Mr. Etheridge needed to obtain a job as a means to meet requirements for restitution. In this conversation, Ms. Thomas inquired concerning Respondent's income in an attempt to determine the amount that Mr. Etheridge should pay in the way of restitution. Mr. Baker tried to impress Ms. Thomas with the fact that Respondent's income and business were separate from Mr. Etheridge's circumstance. In the conversation, Mr. Etheridge told Ms. Thomas that he wished to be a bus driver. That was his profession prior to being involved in the insurance business in Louisiana, which led to his incarceration. Ms. Thomas would not agree to that arrangement. She indicated that Mr. Etheridge had to be located in a place where the probation officers could come and see him at anytime, day or night. Ms. Thomas asked the question about whether Mr. Etheridge could work for his wife at Crews Bonding Agency, and Mr. Etheridge stated that he did not wish to work for his wife. Ms. Thomas responded to these remarks by saying that she had an order that indicated that Mr. Etheridge could work at the Crews Bonding Agency. This refers to the Circuit Court Case No. 82-10537CA, Division K. Ms. Thomas further told Mr. Etheridge that Mr. Etheridge needed to work at Crews Bonding Agency. Before the date upon which the meeting was held with Ms. Thomas, Mr. Baker had not been acquainted with the circuit court order. When Mr. Baker and Mr. Etheridge left the meeting with Ms. Thomas, they went to the Crews Bonding Agency office; and Mr. Etheridge produced a copy of the circuit court order. Respondent was there at that time. Mr. Baker reviewed the order and expressed an opinion to Respondent and her husband that the husband could work at Crews Bonding Agency in any capacity, other than giving out forms or advice about bail bonds. At that point, there was conversation about the husband running the parking lot. That arrangement was one which Mr. Baker stated would be acceptable and would satisfy the terms of Mr. Etheridge's probation. Moreover, Mr. Baker offered the advice that the circuit court order would allow the husband to attend to clerical matters, such as answering the telephones. David R. Fletcher, Esquire was acquainted with Respondent. Mr. Fletcher was aware that Jack Etheridge had been incarcerated in a federal facility. Mr. Fletcher was approached by Respondent, who asked Mr. Fletcher about the Circuit Court Case No. 82-10537CA, Division K, and the meaning of the order. In particular, Respondent made Mr. Fletcher aware that she was concerned about the federal probation office's instructions or the condition upon which Mr. Etheridge's probation would be served as an employee at Crews Bonding Agency. Respondent told Mr. Fletcher that she was concerned that this would create a problem because of the husband's prior record, taken to mean felony record. When Mr. Fletcher read the order, he expressed the opinion that the husband was exempt from the disqualifying provisions for felons working in a bail bond agency. At the time the conversation was held between Mr. Fletcher and Respondent concerning the husband's status as a felon, Mr. Fletcher understood that the husband would be returning from incarceration and working at the bail bond agency as a parking lot attendant. Respondent relied upon advice of counsel in deciding to allow her husband to work at the bail bond agency as a parking lot attendant. As contemplated by the instructions which the probation officers gave Mr. Jack Etheridge, he took employment at the Crews Bonding Agency. His duties included running the parking lot, vacuuming the building where the bond agency was located, and answering the telephone at the bail bond agency. When he would answer the telephone, Respondent noted that Jack Etheridge would state that he was not a bail bond agent and that the person who was calling would need to speak to the "bonds man". At times, Respondent received calls that had been patched through from the bail bond agency to another location, through efforts by Jack Etheridge. Respondent is aware that her husband took messages for the bail bond agency, as well. Respondent observed that Jack Etheridge principally stayed in the back office, which fronts Forsyth Street, when he worked for the Crews Bonding Agency as parking lot attendant. Specific remarks made by Jack Etheridge in receiving calls for the bonding agency would be "Crews Bonding, would you hold please". If someone needed to speak to Respondent immediately, Mr. Etheridge would state "she is busy, hold please, if you will give me your number, I will have her call you back". Once while Jack Etheridge was employed at the Crews Bonding Agency, following release from federal prison, Ms. Thomas came to the agency to check on his status. Upon that occasion, Respondent spoke to Ms. Thomas and asked if her husband could drive a bus, instead of being employed by the bail bond agency. Ms. Thomas replied in the negative and stated that the husband had to stay with the agency and work with Respondent. Ms. Thomas told Respondent that Mr. Jack Etheridge had to be paid a check from the bonding agency. Respondent honored that request. The reason given for requiring that Mr. Jack Etheridge be paid a check was based upon the statement by Ms. Thomas that the husband had to take evidence of the check being issued and present that to the probation office. According to the Florida Department of Labor and Employment Security, Jack Etheridge was paid $800.00 for four weeks worked in the third quarter of 1993; $2,800.00 for 13 weeks worked in the fourth quarter of 1993; $2,419.23 for 12 weeks worked in the first quarter of 1994; $2,854.61 for 13 weeks worked in the second quarter of 1994; and $3,080.00 for 13 weeks worked in the third quarter of 1994. Jack Etheridge, Jr. observed that his father, upon taking the position as parking lot attendant, worked in the kitchen area of the premises most of the time for a period and then moved into the back office, which fronts Forsyth Street, later on. The kitchen area is separated from the room where the bail bonding business is conducted. The room on Liberty Street is where Respondent has traditionally conducted her bail bond business. Jack Etheridge, Jr. never observed his father work in a bail bond capacity once the father returned from incarceration. He did observe that when a car came into the parking lot, his father would direct the driver where to park the car and then return to the building. Jack Etheridge, Jr. made these observations while working in the front office, where bail bond business was conducted, and never noted his father being in that front office. Jack Etheridge, Jr. was at the premises most every day before attending the police academy. After attending the police academy, he spends most of his time at the bail bond agency, pending employment as a policeman. Mr. Persons goes to the location of the bail bond agency two to three times per week and uses a parking space in the parking lot. On those occasions, he sees Jack Etheridge in the parking lot. Mr. Persons has seen Jack Etheridge at the location of the Crews Bonding Agency numerous times, following Jack Etheridge's release from prison. Mr. Persons has gone to that location 150 times within two and one-half years, and it would be uncommon for Jack Etheridge not to have been at the location when Mr. Persons came by. On some visits Mr. Persons has spent as much as 15 or 20 minutes with Respondent and her son at the bail bond agency. On occasions when he visited the bail bond agency, he has never observed Mr. Jack Etheridge do anything related to the bail bond business, unless one considers that answering the telephone at the bail bond agency, when Respondent is unable to, constitutes bail bond business. Mr. Persons has seen Jack Etheridge put a caller on hold and then refer the call to Respondent. The observation by Mr. Persons, where Mr. Jack Etheridge was involved with answering the telephone in the bail bond office, was not the usual circumstance. In the past, when Mr. Persons observed the operation at the bail bond agency, the door separating the room that faces Liberty Street and the room that faces Forsyth Street was open. More recently, that door has been closed between the two rooms. Mr. Persons observed that in the more recent circumstances, Jack Etheridge was using the office that fronts Forsyth Street. Mr. Persons observed that at the time the hearing was conducted, Jack Etheridge was still maintaining the parking lot. Mr. Persons observed that prior to the creation of the Star Legal Research business, Jack Etheridge, when not located in the parking lot, would be found in the office which fronts Forsyth Street. In summary, under the present circumstances, it is unclear what Mr. Jack Etheridge is principally involved with at the premises primarily associated with Crews Bonding Agency and its businesses. Following advice by Mr. Baker that it would be acceptable for Mr. Jack Etheridge to work at the bail bond agency, he has been in the Crews Bonding Agency office approximately 100 times. On almost every occasion, Jack Etheridge would be in the back room on Forsyth Street. Nine out of ten times, Jack Etheridge would be in that location when observed by Mr. Baker. The only times that Mr. Baker would observe Jack Etheridge in the front office, where the bail bonding business was being conducted, would be if other bail bond agency employees were out making a bond or something of that nature. In that instance, Jack Etheridge would be sitting in the front office, where the bail bond business is conducted; and if someone came to park their car, he would take care of that business. If someone came into the office and asked about a bail bond, Jack Etheridge would remark, "Look, Anne (Respondent) is going to be back in a half hour, she is making a bond, or Clara will be back. Come back, or you can sit over there and wait". Clara refers to another employee of the bail bond agency. Mr. Baker also observed that on the occasion on which Jack Etheridge was in the front office, he would refuse to give information about bail bonds and limit himself to handling parking duties and answering the telephone if no one else was available to answer the telephone. Mr. Fletcher has seen Jack Etheridge at the bail bond agency location approximately twice per week, following Mr. Etheridge's release from incarceration. On these occasions, Mr. Fletcher would give Jack Etheridge keys to Mr. Fletcher's car and seek assistance in parking. In these visits to the agency, Mr. Fletcher never observed Jack Etheridge perform work as a bail bond agent. In fact, he never observed Jack Etheridge work anywhere other than in the parking lot. Respondent and her husband brought further action in Circuit Court Case No. 82-10537CA, assigned to Division CV-F. At that time, the previous judge, who had issued the aforementioned order on March 27, 1984, was not presiding in the case. That refers to the Honorable Henry Lee Adams, Jr., who now serves as a federal district judge. The judge who presided in the reopening of the circuit court case was the Honorable Lawrence D. Fay, Circuit Judge. On October 30, 1995, Judge Fay entered an order in Case No. 82- 10537CA, Division CV-F, enjoining consideration of Count I to the present administrative complaint, in which he ordered: The Plaintiff's Motion for Injunction is here- by GRANTED with respect to Count I of the Administrative Complaint and First Amended Administrative Complaint filed by Defendant against Plaintiff, Anne Evans Etheridge, and Defendant shall be enjoined from proceeding against Plaintiff, Anne Evans Etheridge, as to Count I of same in DOAH Case No. 95-3964. Judge Fay also ruled: The Plaintiff's Motion for Injunction is here- by DENIED with respect to the filing of any complaints under Section 648.44(7), Florida Statutes, relative to convictions, guilty pleas, or no contest pleas by Jack I. Ethe- ridge entered subsequent to March 27, 1984. Plaintiffs have failed to exhaust adminis- trative remedies. Based upon the orders by Judge Fay, administrative prosecution has proceeded to resolve Count II to the administrative complaint addressed in DOAH Case No. 95-3964.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That a Final Order be entered which dismisses the First Amended Administrative Complaint. DONE and ENTERED this 15th day of February, 1996, in Tallahassee, Florida. CHARLES C. ADAMS, 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 15th day of February, 1996. APPENDIX TO RECOMMENDED ORDER CASE NO. 95-3964 The following discussion is given concerning the proposed findings of fact and conclusions of law by the parties. Petitioner's Findings: Paragraphs 1 through 4 are subordinate to facts found. Paragraph 5 constitutes legal argument. Respondent's Findings: Paragraph 1 is subordinate to facts found. Paragraph 2 is not necessary to the resolution of the dispute. Paragraph 3 is subordinate to facts found. Paragraph 4 is established through the Preliminary Statement. Paragraphs 5 and 6 are subordinate to facts found. Paragraph 7 is subordinate to facts found, with the exception that several other local attorneys were not contacted for advice. One additional attorney was sought out for advice, Mr. Baker. Paragraph 8, the first sentence is not necessary to the resolution of the dispute. The remaining sentences are subordinate to facts found. Paragraphs 9 through 13 are subordinate to facts found. Paragraph 14 is not necessary to the resolution of the dispute. Paragraphs 15-16 are subordinate to facts found. COPIES FURNISHED: Dickson E. Kesler, Esquire Department of Insurance Division of Agent and Agency Services 8070 North West 53rd Street, Suite 103 Miami, FL 33166 Judy Groover, Esquire 24 North Market Street, Suite 301-A Jacksonville, FL 32202 Bill Nelson, State Treasurer and Insurance Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, FL 32399-0300 Dan Sumner, Acting General Counsel Department of Insurance and Treasurer The Capitol, PL-11 Tallahassee, FL 32399-0300
The Issue The issue to be resolved in this proceeding concerns whether the Respondent's bail bond agent's License issued by the State of Florida should be subjected to sanctions for alleged violation of certain provisions of Chapter 648, Florida Statutes, and related rules, as described in the First Amended Administrative Complaint.
Findings Of Fact The Petitioner is an agency of the State of Florida charged by statute and rule with regulating the entry to licensure, and regulating the practice, of bail bond agents such as the Respondent. The Respondent Donald Frank Shirey was, at times pertinent hereto, a licensed bail bond agent regulated by the Department. The Respondent was a corporate officer and director of Donald Shirey and Associates, Inc., located, at times pertinent hereto, at 112 East Adams Street, Jacksonville, Florida ("Associates"). It was an entity engaged in the bail bond business. The Respondent employed Robert Meyers, James Kinard and Michael Suttles as licensed bail bond agents. Count I On September 25, 1998, Darryl Gerald Irving was incarcerated in the Duval County Jail. The amount of his bond was set at $5003.00, with a premium of $500.00. On that date, the Respondent posted a bail bond for Darryl Gerald Irving. After bonding Mr. Irving out of jail, the Respondent took him to Mr. Irving's former employer, Target, to obtain a check (number 8215734), in the amount of $172.23. The check was signed over to the Respondent as partial payment for the bail bond premium. The Respondent and Mr. Irving then went to the Respondent's office were they called Mr. Irving's girlfriend, Sandra Jennings, who paid the remainder of the bond premium. Mr. Irving then completed Petitioner's Exhibit 3, at the Respondent's office. On this document he listed his address as 3273 University Boulevard, Apartment 244. The address listed on his driver's license is 3273 University Boulevard, Apartment 255. The address listed on his Target check stub is 1706 Art Museum Drive, Apartment G-11. Mr. Irving explained that he would be living at 3273 University Boulevard, Apartment 244, and that the addresses on his driver's license and check stub were prior addresses. The Respondent, however, alleged that Mr. Irving put an incorrect or non-existent address on the document (Petitioner's Exhibit 3), but he never verified that. The Respondent surrendered Mr. Irving back to the Duval County Jail, terminating his liability on the bond, on the theory that Mr. Irving had entered an incorrect address on the document, Petitioner's Exhibit 3; the address he where he would be living, instead of his driver's license address or the address appearing on the check stub from his employer. On this basis, the Respondent returned him to the Duval County Jail for incarceration and retained the $500.00 bond premium paid by Mr. Irving. From the time the Respondent bonded Mr. Irving out of jail until the time he surrendered him back to jail, Mr. Irving remained in the Respondent's custody. Mr. Irving was in handcuffs except for the time when he was completing the written bond documents. At no time was Mr. Irving free to leave the Respondent's custody. Count II On January 8, 1998, the Respondent posted a bail bond for Patrick Andrade in the amount of $3,656.00. The bond premium thereon was $365.60, which was paid by Mr. Andrade. The documents marked as Petitioner's Exhibit 6, were completed and signed by Mr. Andrade. After being bonded out of jail, the Respondent took Mr. Andrade to the Respondent's home. While there he engaged in sexual relations with Mr. Andrade. When Mr. Andrade was no longer willing to engage in sexual relations with the Respondent, the Respondent surrendered him back to jail for re-incarceration and retained the bond premium. Count III On February 14, 1998, the Respondent posted a bail bond for Patrick Andrade in the amount of $50,003.00. The bond premium was $5,003.00. Mr. Andrade paid $2,500.00, as a down payment and paid an additional $1,200.00, of the bond premium for a total of $3,700.00, before being surrendered back to jail by the Respondent. The documents marked as Petitioner's Exhibit 7 in evidence, were completed and signed by Mr. Andrade. After being bonded out of jail, Mr. Andrade was taken by the Respondent to the Respondent's home where he spent several days and engaged in sexual relations with the Respondent. On February 25, 1998, when Mr. Andrade was no longer willing to engage in sexual relations with the Respondent and wished to go home to his wife, the Respondent surrendered Mr. Andrade to the Clay County Jail for re-incarceration and again retained the bond premium. Count IV On September 24, 1998, the Respondent again posted a bond for Mr. Andrade in the amount of $1,502.00. The bond premium of $150.20 was paid by Mr. Andrade and he signed the documents in evidence as Petitioner's Exhibit 8. After being bonded out of jail, Mr. Andrade was again taken to the Respondent's home where he stayed for several days and engaged in sexual relations with the Respondent. Thereafter, when Mr. Andrade wished to go home to his wife the Respondent instead surrendered him to the Clay County Jail and retained the bond premium already paid. Count V Ms. Jeanette Alzola met with the Respondent at his office on April 7, 1999, and entered into an agreement with the Respondent to provide for the bond of Pabel Romero Martinez from incarceration in the Lee County Jail in Fort Myers, Florida. Mr. Martinez's bond was $150,000.00. Ms. Alzola paid a premium of $15,000.00, and a transfer fee of $100.00. She posted the Deed for her house and the title to her car as collateral for the bond. When Ms. Alzola met with the Respondent she explained that Mr. Martinez would be living with her at her residence. She also told the Respondent that Mr. Martinez had difficulties comprehending English and would need assistance completing the required documents. She requested that Mr. Shirey contact her when Mr. Martinez was brought to the Respondent's office so that she could function as a translator and assist him in completing the documents. On April 9, 1999, the Respondent went to the Lee County Jail and posted a bond for Mr. Martinez to remove him from the jail. He brought him back to Jacksonville, Florida. He was in handcuffs the entire time except for a short period of time when he was completing the relevant bond documents. Mr. Martinez explained to the Respondent that he would be living with Ms. Alzola. The Respondent held up Mr. Martinez's driver's license and told him to "copy this address onto there." Mr. Martinez listed an address on the application that was not Ms. Alzola' s address or the address that appears on his driver's license, but it was the address of his previous residence. The Respondent then said that he was going to surrender Mr. Martinez back to the jail "now that we have good cause that I can go by and check this address because the address is a lie." The Respondent then surrendered Mr. Martinez back to the Lee County Jail without ever releasing him from his custody and retained the $15,100.00, that had been paid by Ms. Alzola. Ms. Alzola filed a civil lawsuit against the Respondent in which she obtained a Judgment in the amount of $15,100.00. The Court therein concluded that the: Decision to return him (Martinez) to the Lee County Jail within a few hours of bringing him here without ever releasing him or turning him over to the custody of the plaintiff (Alzola) constituted a breach of their contract with the plaintiff. The acts of the defendants herein did not constitute a "release" of Mr. Martinez anymore than if they had merely transferred him from the Lee County Jail to the Duval County Jail and back. Mr. Martinez remained in the custody of at least two of the defendants' agents at all times. Nothing in the acts or statements of these agents would have indicated to a reasonable person that he was free to leave their custody. In fact, their conduct was a clear indication that Mr. Martinez was still in a custodial status. Count VI Janice Smith met with the Respondent on May 27, 1999, to arrange for a bail bond for her seventeen-year-old son Kevin Smith. Kevin Smith was incarcerated in the Duval County Jail in Jacksonville, Florida. His bond amount was $100,000.00, and the premium on that bond was $10,000.00. Ms. Smith paid $7,000.00 of the premium and entered into a premium agreement for the remaining balance of $3,000.30. Under the terms of the agreement she was to make monthly payments of no less than $300.00 until the balance was paid. The balance was due before discharge of the bond. The Respondent held the title to Ms. Smith's 1999 Chevrolet Lumina as collateral security on the loan. The Respondent told Ms. Smith that he would help her out with any problem that she might have with Kevin. On or about May 31, 1999, she called the Respondent and told him that she was concerned because Kevin was coming home after a curfew that she had set for him. On June 1, 1999, the Respondent called Ms. Smith and recommended that Kevin be surrendered back to the jail for a few days in effect, to teach him a lesson. The Respondent assured Ms. Smith that he would get Kevin out of jail at any time without incurring additional costs. She agreed to allow the Respondent to surrender Kevin back to the jail with the understanding that she could get Kevin out of jail at any time without any additional costs. On June 1, 1999, the Respondent and several of his agents arrived at Ms. Smith's home. At the time of their arrival, Kevin Smith was not at home. The Respondent went into the house with Ms. Smith and two or more of his employees positioned themselves outside the house and waited for Kevin to return home. Kevin Smith approached the house in his vehicle and noticed several cars near his house. He purportedly believed that they belonged to a neighborhood gang which he had had problems with in the past. Allegedly fearing for his safety, he turned in his vehicle and proceeded to drive away. The Respondent's agents tried unsuccessfully to block his retreat with their vehicles and then pursued him but were unable to catch him. Janice Smith then called Kevin on his cell phone to ask him why he left. He replied that he thought the individuals at the house were gang members. Ms. Smith told him that it was just the Respondent and his agents who wanted Kevin to sign some papers. Kevin thereupon went home and attempted to shake the Respondent's hand whereupon the Respondent handcuffed and shackled him and took him back to his office. The Respondent later surrendered him to the Duval County Jail. A few days later, Janice Smith contacted the Respondent and requested that he bond Kevin back out of jail. The Respondent said he would not bond Kevin out of jail until Janice Smith provided proof that Kevin's car had been placed in storage. Ms. Smith put the car in storage and brought the receipt to the Respondent's office. The Respondent still would not bond Kevin out of jail. Ms. Smith went to the Respondent's office on numerous occasions and he refused to meet with her. Ms. Smith made several telephone calls to the Respondent but he would not take or return her calls. After several days had passed, one of the Respondent's employees told Ms. Smith that the Respondent would not bond Kevin out of jail and would not refund the premium payments. In June 1999, when Ms. Smith attempted to purchase a tag for her 1999 Chevrolet Lumina, she learned that the Respondent had transferred the vehicle to his name. The Respondent claimed that that action was taken pursuant to the terms of the premium agreement. However, the Respondent never notified Ms. Smith that the balance was due in full, or of his intent to transfer title of the vehicle to his name. Ms. Smith paid the Respondent the $3,000.00 balance so that the Respondent would release the title to her vehicle, which he did. Ms. Smith paid a total of $10,000.00, as a bail bond premium to the Respondent. The Respondent surrendered Kevin back to the jail but refused to bond him back out of jail as he had previously agreed and he also refused to refund the premium to Ms. Smith.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Insurance revoking the Respondent's license and eligibility for licensure as a bail bond agent, and that the Respondent be found ineligible to apply for licensure with the Department for a minimum period of two years and not until such time as restitution is made to Darryl Irving in the amount of $500.00, Patrick Andrade in the amount of $4,215.80, Jeannett Alzola in the amount of $15,100.00 and Janice Smith in the amount of $10,0003.00. DONE AND ENTERED this 21st day of October, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 21st day of October, 2002. COPIES FURNISHED: Richard J. Santurri, Esquire Department of Insurance Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Donald Frank Shirey, Jr. 5337 107th Street Jacksonville, Florida 32244 Honorable Tom Gallagher State Treasurer/Insurance Commissioner 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
