The Issue The issue in this proceeding is whether just cause exists to discipline or terminate Petitioner’s employment with Respondent based on misconduct.
Findings Of Fact Respondent, Escambia County School Board, is responsible for grades K-12 public education in Escambia County, Florida. Many of the schools in Escambia County include cafeterias where food services are provided to students. In the schools that provide such services, cash is often received on a daily basis from students for the meals they purchase in the cafeteria. Petitioner, Ronald Mixon, was employed to work in food service by Respondent in 2000. He was first employed as a substitute employee. Eventually, he was employed on a full-time basis under the Collective Bargaining Agreement (CBA) between the School District of Escambia County and The Union of Escambia Education Staff Professionals as a Food Service Assistant II in the cafeteria at Ferry Pass Middle School. As a Food service Assistant II, Petitioner was "the lead worker" responsible for the preparation and serving of food in the cafeteria, as well as, assistance in inventory, sanitization of the kitchen, and cash control. Additionally, Petitioner might be responsible for managerial or supervisory duties as assigned by his supervisor. During the 2008-2009 school year, Petitioner was supervised by the Food Service Manager, Virginia Mattox. Prior to Ms. Mattox, Petitioner was supervised by Lisa Anderson. When Lisa Anderson was the Food Service Manager, Petitioner was not assigned the responsibility for bank deposits of cafeteria funds. However, during the 2008-2009 school year, Petitioner was required by his supervisor to make bank deposits for the cash that was collected in the cafeteria at Ferry Pass. The evidence did not demonstrate that Petitioner was given any instructions regarding when to make these deposits when he was first assigned this duty. According to School District Policy, all funds received by a cafeteria were required to be deposited in a bank on a daily basis. Such deposits are reflected in a deposit ledger generated by the bank. The ledger shows the date, time, and location of each deposit. Initially, Petitioner was not aware of the District's policy regarding deposits. During the 2008-2009 school year, Diane Boland, a financial officer with the School District responsible for accounting of cafeteria funds, noticed in her review of the bank’s ledger that bank deposits of cafeteria funds from Ferry Pass were not being made on a daily basis. To address the situation, Ms. Boland contacted Ms. Mattox and told her that deposits were not being made on a daily basis from Ferry Pass. She also advised her that not making daily deposits violated District policy. However, the practice of not making daily bank deposits continued and Ms. Boland contacted Ms. Mattox several more times in an effort to resolve the problem. Sometime around the first part of January, Ms. Mattox, who has poor communication skills, spoke with Petitioner about making bank deposits. Although somewhat confusing, the evidence did not demonstrate that Petitioner was told such deposits were required since Ms. Mattox, also, told Petitioner that if he could not get by the bank to make the deposit each day, he should leave the funds in the safe located in the cafeteria office. Additionally, Ms. Mattox gave Petitioner a key to the night deposit box at the bank so that he could make the deposit after banking hours. Unfortunately, there was some difficulty with the night deposit key, which was resolved by Petitioner when he obtained a new key from the bank. Clearly Petitioner, even to the present, does not understand the District's policy regarding deposit of school funds since he states that the deposits should be made daily, but also states that he could leave them in the safe overnight. He clearly talks about the deposits without understanding and seems to use the term "daily deposit" like a name, as opposed to meaning he deposited the funds daily or that these funds should be deposited every day. In late January 2009, sometime after the conversation with Ms. Mattox, Petitioner gave Ms. Mattox a handwritten travel reimbursement request for the period covering August 18, 2008 (the beginning of school) through January 23, 2009. School District policy authorizes employees to be reimbursed for mileage when they travel in personal vehicles for School District purposes as part of their job. Petitioner, who has limited skills and limited communication skills, had never filled out a travel reimbursement form before and had never been instructed in how to fill one out. The travel form reflected deposits being made on a daily basis. However, Petitioner did not fill in the number of miles he traveled because he did not know that information. Petitioner assumed someone would let him know if the handwritten form was wrong and would correct any errors or omissions he had made on the form. Unfortunately, instead of discussing or helping Petitioner with the travel form, Ms. Mattox gave Petitioner some sort of dramatic look and shook her head. She assumed and expected Petitioner to interpret her vague look and gesture as indicating she knew Petitioner's travel form was false. Petitioner left the travel form with Ms. Mattox who did not do anything with it and never communicated anything to Petitioner regarding the form. Later, in a memo dated August 31, 2009, Ms. Mattox claimed that she did not sign the travel form because it contained trips made by Petitioner on his own that were not authorized by her. Ms. Mattox did not indicate that she thought Petitioner's travel voucher was falsified. The memo forwarded the handwritten travel form to another administrator. In late April 2009, Ms. Mattox showed Petitioner an email from Ms. Boland and spoke with him about making cafeteria deposits on a daily basis. She also told him he could use the safe if he could not make the deposits. However, Ms. Boland continued to notice that cafeteria deposits from Ferry Pass were not being made on a daily basis. Therefore, on May 15, 2009, Ms. Boland contacted Mary Gilliard, the Food Service Area Manager, and Ms. Mattox’s supervisor. Ms. Boland advised Ms. Gilliard that daily deposits of Ferry Pass cafeteria funds had not been made since the beginning of the school year in August 2008, and that she had been in contact with Ms. Mattox multiple times over the issue without results. Ms. Gilliard then contacted Ms. Mattox and instructed her to make the deposits herself or have her assistant, Juanita Forest, make the deposits. In a later memo on the subject, Ms. Mattox made it sound as if she had just learned of the deposit problem on May 15. Nevertheless, around May 15, 2009, just before the end of the school year, the task of making daily deposits was removed from Petitioner. However, this date is uncertain and Petitioner's deposit duties may have ended at a later date since the deposits continued not being made on a daily basis. Sometime in early June 2009, Petitioner asked Ms. Mattox about the earlier travel form and was told that she did not have it and to prepare another travel reimbursement form. In fact, Ms. Mattox was untruthful and did have the earlier travel form. On June 17, 2009, Petitioner again prepared a handwritten request for travel reimbursement that requested reimbursement for a period running from the first day of school on August 18, 2008, through the end of the school year. Petitioner prepared the form by looking at a calendar to determine the days that school was in session. He was claiming reimbursement for making deposits at the bank virtually every day school was in session. Again, this form did not have the miles travelled filled in and Petitioner thought that any errors or omissions would be corrected by others. Petitioner called Ms. Mattox to find out when she could review and sign the form. Ms. Mattox was not at the school or her office and did not want to drive to the school to look at and sign the travel form. She told Petitioner to have the form approved by the Ferry Pass principal. Petitioner then took the form to the school office where the school secretary, Patricia Griffy, offered to type the travel reimbursement form for Petitioner because the handwritten form was messy. Ms. Griffy typed the reimbursement request form from the handwritten version provided by Petitioner. It was signed by Petitioner with the certification that it was true and just in all respects. Petitioner signed the form because he was told to. He continued to believe others would correct any errors or omissions in the travel form. The form was also signed by the Ferry Pass school principal. Once signed, Petitioner took the reimbursement request form to the District office and delivered it to Diane Boland. Ms. Boland compared all the claimed trips to the bank with the bank’s deposit records. According to Ms. Boland’s reconciliation, there were 117 trips that bank deposit records confirmed; however, Petitioner was claiming 183 trips. Petitioner’s claimed trips for which he was requesting reimbursement expenses, exceeded the bank record of deposits by 66 trips, totaling $117.48 in reimbursement requests not supported by bank deposits. She did not authorize reimbursement for trips made prior to the last three months of the school year based on District policy that limited reimbursement to a period of 90 days prior to the submission of the travel request. She did authorize reimbursement for the final three months of the school year, paying Petitioner for travel to the bank, to the extent there were bank deposits to confirm the travel, through May 29, 2009, the last day of school. As a result of Ms. Boland’s audit and the review by her supervisor, Petitioner was reimbursed for 184 miles, which resulted in a check for $81.88. He was not overpaid for his reimbursements. The difference in what was contained in the claim form and what was actually paid by Respondent was $58.74. Petitioner did not question the amount paid; he was relying on the District to pay him what was due. At hearing, he admitted that his request for reimbursement for trips to the bank that he did not make was wrong and that he should be disciplined, however, he did not believe that termination was appropriate since it was not his intention to falsify his travel form. Petitioner received a letter dated October 16, 2009, from the Superintendant of Schools. This letter was the beginning of the disciplinary process under the CBA. The October letter advised Petitioner that he was being recommended for termination based on the submission of “false and untrue travel claims for mileage reimbursement in connection with depositing food service funds collected at Ferry Pass Middle School.” The misconduct was more specifically identified as You claimed mileage reimbursement for trips to the bank to make deposits when you did not make deposits on the dates claimed. The letter also asserted that Petitioner “demonstrated poor and unsatisfactory work performance.” This conduct is then described as follows: You have not performed assigned tasks in a timely manner. You have previously been counseled for leaving your work site without authorization prior to scheduled departure time and not completing assigned duties. Other than the facts regarding the bank deposits and prior counseling, no additional performance issues were alleged in the October letter. Petitioner did not have any prior letters of reprimand or suspensions with or without pay. However, in August of 2008, there was one incidence of Petitioner leaving the work site without authorization prior to the authorized departure time, not completing his assigned duties and leaving the work site in a substandard condition. On August 22, 2008, Petitioner received a disciplinary action consideration notice and was formally counseled for the August 2008 incident, along with all of the employees at the Ferry Pass cafeteria who had left early that day. Later, Petitioner received improvement strategies for the 2008-2009 school year. Petitioner satisfactorily met and completed the improvement strategies. Except for informal counseling, this is the least amount of discipline that Respondent imposes on its employees. In her testimony, Ms. Mattox referenced an August 2009 "baking incident" to show that Mr. Mattox did not perform his job when he failed to comply with menu components on the first day of school due to a shortage of a certain baking ingredients to bake enough products to meet the requirements for that day's menu. However, the evidence demonstrated that, at that point in the school year, the lack of product was the responsibility of Ms. Mattox and not Petitioner. Petitioner was never disciplined for the incident and would not have been subject to discipline for the incident. Moreover, Ms. Mattox completed Petitioner’s annual performance evaluation. Even though Ms. Mattox testified the Petitioner was not consistently meeting performance standards, the most recent evaluation for school year 2008-2009 completed by Ms. Mattox indicated that Petitioner met position duty requirements and states, "Ron is much improved in performance. . . ." The better evidence regarding Petitioner’s past performance is the most recent employee evaluation of Petitioner. On the other hand, after this evaluation, Petitioner was instructed to deposit cafeteria funds on a daily basis. He did not consistently perform this duty; he also submitted an inaccurate travel voucher. However, the evidence did not demonstrate that he intentionally submitted a false travel form. At best, he was negligent in the preparation of the form and too reliant on others to correct the form. In this regard, Petitioner did not perform his assigned duties and should be disciplined for these non-serious infractions according to the progressive discipline policy of the CAB.
Recommendation Based upon the foregoing, Finding of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That Respondent, Escambia County School Board, enter a Final Order reinstating the Petitioner’s employment, issuing a written reprimand to Petitioner, and requiring further employee training by Petitioner. DONE AND ENTERED this 28th day of January, 2011, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 2011. COPIES FURNISHED: Joseph L. Hammons, Esquire The Hammons Law Firm, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 H. B. Stivers, Esquire Levine & Stivers 245 East Virginia Street Tallahassee, Florida 32301 Malcolm Thomas, Superintendent School District of Escambia County 215 West Garden Street Pensacola, Florida 32502 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399 Dr. Eric J. Smith, Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399
The Issue In relation to DOAH Case No. 05-0515, does the case involve the sale of securities as described in Chapter 517, Florida Statutes (2002), that would confer jurisdiction upon OFR to proceed to a hearing on the merits of the Administrative Complaint that forms the basis for DOAH Case No. 05-0515, and to what extent, if any, the named Respondents have been involved with the sale of securities sufficient to declare jurisdiction over their activities? Preliminary to that determination is the related issue concerning the possible pre-emption of OFR's regulatory authority by virtue of the regulatory action previously taken by the State of Florida, Department of Business and Professional Regulation, Division of Land Sales, Condominiums and Mobile Homes (DBPR) under authority set forth in Chapter 721, Florida Statutes (2002)? Argument has also been set forth concerning the significance of court cases as they might influence OFR's ability to declare their regulatory authority in this instance.
Findings Of Fact * * * 2. RESPONDENT is the 'creating developer' of the Universal Luxury Lease Plan, a personal property 'timeshare plan' as those terms are defined in sections 721.05(9)(a) and 721.05(37), Florida Statutes, located in the city of Sanford, Florida. * * * On or about July 10, 2003, DIVISION was made aware of a newspaper advertisement for Universal Luxury Lease Plan. This advertisement, promoted the purchase of a timeshare interest in the Universal Luxury Lease Plan as an investment that offered purchasers a 10 percent per year return on their investment. On July 25, 2003, DIVISION'S investigators were given an application package containing the Universal Luxury Lease Plan Enrollment Forms, CD-ROM, Public Offering Statement, Contracts and Motor Coach Brochures. The application package stated that it was advertising material being used for the purposes of soliciting timeshare interests. It described a component of the timeshare plan called the 'Affinity Rental Program' and stated that the program will typically produce a monthly income of 10 percent of the lease-hold ownership interest.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That an order be entered by OFR finding jurisdiction to proceed with the Administrative Complaint in DOAH Case No. 05- 0515 on its merits. DONE AND ENTERED this 6th day of January, 2006, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 January, 2006.
The Issue The issue for disposition is whether Barry Amos d/b/a Cloud Nine Travel violated section 559.927, F.S., by operating as a seller of travel without being registered, and if so, what remedial action is appropriate.
Findings Of Fact At all times relevant to the issues here, Barry Amos operated a business at 4312-101 Plaza Gate Lane, Jacksonville, Florida. In the latter months of 1993, Mr. Amos was interested in starting up a travel agency. He requested information from the department and was sent a registration packet with forms and a copy of the statute and rules. On December 29, 1993, Mr. Amos wrote to the department requesting an exemption from registration based on his understanding that he was entitled to such. His letter references a telephone conversation with "Melissa" at the department and states: "She informed me that since I would not be handling ticket stock or actual payments that I would not be required to register or post the surety bond with your department." (Petitioner's composite exhibit #1) Mr. Amos did not receive his exemption; instead the department sent another letter on February 10, 1994 reiterating that the law required registration unless he provided proof that he was exempt. Joseph Nicolosi is an investigator with the department's Division of Consumer Services. On July 19, 1994 he conducted what he calls an "on-site inspection" of Mr. Amos' business. He had the information on the business but did not have a proper phone number. He looked in the yellow pages and found a listing for "Cloud 9 Travel" with a telephone number. The individual who answered Mr. Nicolosi's telephone call identified himself as Barry Amos. Mr. Nicolosi asked about coming to the office to look at brochures and to plan a trip from Jacksonville to Colorado. Mr. Amos told him that his wife would meet him someplace or send him the brochures. Mr. Amos also said that he would have to figure out the cost of the trip and call him back and that payment would be made by Mr. Nicolosi to him for the trip; he, Mr. Amos, would make the arrangements. After the telephone call was terminated, Mr. Nicolosi called Mr. Amos back a few minutes later and asked if he would accept a check as payment. Mr. Amos replied that it would be better to use a credit card but he agreed that he would accept a check. Mr. Amos concedes that when he was in business as Cloud 9, he accepted personal or cashier's checks from the public for ticket purchases. He did not accept payment from the public for what he called "services", like a commission. The checks he accepted for ticket purchases were made out to Cloud 9 Travel and were used to purchase tickets for the clients. Commissions were paid to Cloud 9 from the ticket sellers. Barry Amos ceased operation as Cloud 9 Travel in January, 1995. He never registered as a seller of travel.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Department of Agriculture and Consumer Services enter its final order finding that Respondent, Barry Amos d/b/a Cloud 9 Travel, violated section 559.927, F.S., imposing an administrative fine of $250.00, requiring that Respondent continue to cease and desist until properly registered as a seller of travel and denying such registration until the administrative fine is paid. DONE and ORDERED this 19th day of April, 1995, in Tallahassee, Leon County, Florida. MARY W. CLARK, 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 19th day of April, 1995. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, Esquire Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Jo Englander, Esquire Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, Florida 32399-0800 Mr. Barry Amos 4312-101 Plaza Gate Lane Jacksonville, Florida 32217
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
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all relevant times, respondent, Passport Internationale, Inc. (Passport or respondent), was a seller of travel registered with the Department of Agriculture and Consumer Services (Department). As such, it was required to post a performance bond with the Department conditioned on the performance of contracted services. In this case, petitioner, H. Fleischer, has filed a claim against the bond for $648.95 alleging that Passport failed to perform on certain contracted services. On an undisclosed date in 1991, petitioner responded to a newspaper advertisement promoting a five-day, four-night cruise to the Bahamas for $99.00 per person. After calling a toll-free number, petitioner was told that in order to take the trip, he must purchase a video for $198.00 plus $11.95 postage, or a total of $209.95. Petitioner agreed to purchase the video in order to take advantage of the trip. The advertisement was being run by a telemarketeer in Tennessee who had been authorized to sell Passport's travel certificates. As such, it was acting as an agent on behalf of Passport. In June 1991, the assets and liabilities of Passport were assumed by Incentive Internationale Travel, Inc. (Incentive). Even so, any travel described in certificates sold after that date under the name of Passport was still protected by Passport's bond. Within seven days after receiving the video and other materials, which carried the name, address, logo and telephone number of Passport, petitioner returned the same to the telemarketeer along with a request for a refund of his money. When he did not receive a refund, he filed a complaint with the Department. In response to a Department inquiry, in December 1991 Incentive declined to issue a refund on the ground the video was purchased from a Tennessee firm, and not Passport, and Passport had never received any money from the telemarketeer. Incentive offered, however, to honor the travel certificate by allowing petitioner to purchase a trip to the Bahamas under the same terms and conditions as were previously offered. On July 6, 1992, petitioner accepted Incentive's offer and paid that firm $439.00 for additional accommodations, meals, fees and taxes. Shortly after July 24, 1992, petitioner received a letter from Incentive advising that his trip had been cancelled and that the firm had filed for bankruptcy protection. To date, petitioner has not received a refund of his money.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be granted, and he be reimbursed $648.95 from the bond. DONE AND ENTERED this 13th day of December, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER 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 13th day of December, 1994. COPIES FURNISHED: H. Fleischer 15 Wind Ridge Road North Caldwell, NJ 07006 Michael J. Panaggio 2441 Bellevue Avenue Daytona Beach, FL 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, FL 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, FL 32399-0810
Findings Of Fact On approximately November 1, 1972, Sandestin, Inc., entered into a contract involving construction and improvement of realty known as the Sandestin Development, located on the north side of United States Highway No. 98, 8 miles east of Destin, Florida. On or about May 14, 1973, the Florida Department of Revenue advised the owners of Sandestin, Inc. that the contractor had not secured a dealer's certificate of registration, or posted bond for payment of sales and use taxes as required by Florida Statute, Section 212.14(5). Sandestin, Inc., subsequently submitted an application for certificate of registration to the Department. The registration was processed with an effective date of July 1, 1973. Sandestin, Inc., as principal, and Commercial Union Insurance Company as surety entered into a "contractor's sales or use tax bond" on June 1, 1973. This statutory bond provides that Sandestin, Inc., entered into a contract with an entity called Sandestin Project on June 1, 1973. The bond further provides that the principal applied for the bond pursuant to Florida Statutes, Section 212.14(5), and that the bond is conditioned upon the principal making all reports and remitting all sales and use taxes imposed and required by Florida Statutes, Chapter 212. There is no express provision in the bond providing that the surety would not be liable for sales and use taxes accruing prior to June 1, 1973. Sandestin, Inc., subsequently defaulted in its sales and use tax obligations. Commercial Union Insurance Company paid $15,430.06 to the Respondent, which amount represents the total sales and use tax obligations, including interest, of Sandestin, Inc. Commercial Union Insurance Company paid $2,023.75 of that amount under protest. This latter figure represents the sales bond use tax obligations, including interest, which accrued prior to June 1, 1973. Commercial Union Insurance Company has maintained this action to recover that amount.
Findings Of Fact Respondent 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 Respondent, Petitioner's Exhibit 2). Respondent's wife, 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 1) The following findings relate to Count I of the Administrative Complaint. On August 6, 1980, Stephen W. Sissitka, of Zephyrhills, Florida, made application to the Cotton Belt Insurance Company for appearance bends 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 Respondent, S. Sissitka, Respondent's Exhibits 1,2). On August 6, 1980, Respondent, as agent for Cotton Belt Insurance Company, issued the requested bonds in the total amount of $2,500.00 (Testimony of Respondent, 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 Respondent 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 Respondent about his inability to keep up with Sissitka's whereabouts, and wanted to have him returned to custody. As a result, Respondent and Phillips had a meeting with Sissitka on October 7, 1980, at which time the Respondent reminded Sissitka of his obligations to report any changes of address or employment and imposed the requirement that Sissitka "check in" with Respondent'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 Respondent and Phillips notified of his whereabouts. (Testimony of Respondent, 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. Respondent 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 Respondent'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 Respondent 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 Respondent. 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 Respondent on October 7. Sissitka told her that he was tired of being harassed not only by Respondent, 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 Respondent about it first. She went into the adjoining private office of Respondent, telephoned him and informed him of the situation. Respondent 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. Respondent 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 Respondent, 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 Respondent's 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 Respondent 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 Respondent, B. Sponheim, Kelly, Brown, Shytle, Petitioner's Exhibits 5,6) The following findings relate to Counts III through XXII and are based solely upon the testimony of witnesses contained in the transcript of proceedings before the Pasco County Court in Case No. 800995MMAES: For several years prior to December, 1979, Respondent had had an oral agreement with the student government association of St. Leo College under which he agreed to provide bonds for arrested students of the college upon his verification with college authorities that they were students in good standing. During the three years prior to December 11, 1979, Respondent had bonded about 31 students pursuant to his agreement. In the fall of 1979, Respondent renewed the agreement with the then president of the student government association, Curt Reilly. The agreement provided that Respondent would bond out any student from St. Leo College who was arrested and contacted the Respondent's office, provided that Respondent determined then from Reilly, or in his absence, from Charles Gordon, the college chief of security, that the student attended St. Leo College and was in good standing. The association agreed to guarantee or underwrite the bond premium if not paid by the arrested individual or someone in his behalf. Although the testimony of Respondent and Reilly was conflicting with respect to the terms of the bonding arrangement, the above version is based on Respondent's testimony which was corroborated, and is deemed credible. It is not uncommon in the bail bond business for a relative or friend of an arrested individual to make a request for bond to a bondsman, or for a bondsman to have an arrangement with an organization to provide bonds for members. (Testimony of Respondent, Reilly, Gordon, Taylor, Roche (Hearing Officer Exhibit 1) On December 11, 1979, a large number of student arrests were made at the St. Leo College campus as a result of an investigation initiated by the security officer of the college and the St. Leo Police Department. The charges involved various offenses involving possession and sale of controlled drugs. On December 11, Respondent was approached by several students who asked him to bond out several of the arrested students who were their friends. Thereafter, during the course of the day, other students requested that friends be bonded out of jail by Respondent. These requests came primarily to Respondent's wife who had been called into the office to make the appropriate contacts with St. Leo College. Although she tried to reach Curt Reilly to verify the student status, she was unable to reach him and thereafter dealt with the security office. Respondent went back and forth from the jail bonding out students as he received verification of their status from his wife. He was assisted in this regard by Andy Anderson, another bondsman employed in his office. All but two of the arrested students were bonded out at the request of others, and not by requests to Respondent by the students themselves. In one instance, the personnel at the security office told Respondent's wife that the individual was not in good standing. As a consequence, he was not bonded out pursuant to the arrangements with the college, but was later bonded based on the request of his brother who made the necessary arrangements for collateral. (Testimony of Gordon, Respondent, B. Sponheim, Anderson (Hearing Officer's Exhibit l)) St. Leo College students who were bonded out by Respondent on December 11th included Margaret O'Connell, Sally Sciulli, Gina Catalano, John Conte, David Ruiz, Susan Halpin, Daniel Kenyon, John Bennis, John Curci, Jr., Daniel Fontaine, and Steven Long. In all cases except that of Long, the students, after being booked, were informed by jail personnel that they were being bonded out. At that point, they were met by either Respondent or Anderson in or about the jail, and were taken to Respondent's office. John Conte saw Respondent as he was entering the jail and Respondent asked if he was "John." When Conte replied that he was, Respondent said "I'll have you out in a couple of hours", and Conte said "o.k., fine." Susan Halpin had inquired of jail personnel as to how she was going to get out of jail, and saw Respondent standing in the vicinity. He stated "don't worry about that, I'm getting you out of here right now. John Curci had made arrangements with a friend to bail him out, but prior to the friend's arrival, jail personnel released him and he met Respondent who proceeded to take him to his office for bonding arrangements. Steven Long asked Mr. Gordon, the college security officer, at the jail as to how he was going to be released and Gordon said "don't worry about it, we'll take care of it." At the jail, an official gave Long the telephone numbers of Respondent and another bondsman. Long then called Respondent's office to arrange for bond. The person who answered the phone in Respondent's office told him that Respondent was on his way over to the jail at that time. (Testimony of Gordon, O'Connell, Sciulli, Catalano, Conte, Ruiz, Halpin, Kenyon, Bennis, Curci, Kuzdale, Fontaine, Long (Hearing Officer's Exhibit 1))
Recommendation That the Department of Insurance dismiss the complaint against Respondent James Leroy Sponheim. DONE and ENTERED this 23rd day of June, 1982, in Tallahassee, Florida. THOMAS C. OLDHAM 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 23rd day of June, 1982. COPIES FURNISHED: Clark R. Jennings, Esquire Department of Insurance 413B Larson Building Tallahassee, Florida 32301 Ben W. Thompson, Esquire Post Office Box 466 Dade City, Florida 33525 Honorable Bill Gunter Insurance Commissioner The Capitol Tallahassee, Florida 32301
Findings Of Fact On April 23, 1982, a Grand Jury in the Southern District of Florida filed an Indictment against the Petitioner, Anthony Stephen Vitale, which was docketed as Case No. 82-204-Cr-SMA. On August 12, 1982, the Petitioner entered a plea of guilty to Count I of the Indictment and the remaining counts were dismissed. The count to which the Petitioner pled guilty charged him with a violation of Title 18, United States Code, Section 371, by reason of the following acts alleged in Count I of the Indictment: From July, 1975, through June, 1977, A. STEPHEN VITALE, whose last known residence is within the Southern District of Florida, was a Consular Officer of the United States assigned to the United States Embassy at Nassau, Commonwealth of the Bahamas, and, as such, was an officer and employee of the United States Department of State. As a Consular Officer, A. STEPHEN VITALE had the authority to issue immigrant visas and non-immigrant visas to qualified nationals of other countries. From on or about July 1975, and continuously thereafter up to and including June 24, 1977, in Nassau, Bahamas, an area outside the juris- diction of any particular state or district of the United States, A. STEPHEN VITALE, the defendant herein, William Lawrence Neng, a co-conspirator not indicted herein, and Sok Harn Neng, a co-conspirator not indicted herein, did knowingly and willfully combine, conspire, confederate and agree together and with persons whose identities are both known and unknown to the Grand Jury, to defraud the United States of its lawful governmental functions and right to have its business and its affairs, particularly the insurance of visas by the United States Department, conducted honestly, impartially, and free from corruption and improper influence. It was part of said conspiracy that certain foreign nationals seeking immigrant visas and non-immigrant visas, hereinafter referred to as the Applicants, were required to pay money to William Lawrence Neng for said visas. It was further part of said conspiracy that William Lawrence Neng submitted the Applicants' visa applications and documents in support thereof to A. STEPHEN VITALE for approval. It was further part of said conspiracy that A. STEPHEN VITALE approved the Applicants' visa applications and issued visas without diligently, faithfully and effectively reviewing said applicants for fraud. It was further part of said conspiracy that A. STEPHEN VITALE required and accepted money from William Lawrence Neng in return for approving the Applicants' visa applications and issuing immigrant visas and non-immigrant visas to the Applicants. 1/ On his plea of guilty, the Petitioner was adjudged guilty of the charge described above and was sentenced to a period of imprisonment of one year. The judgment further provided that the Petitioner would be confined in a community treatment center for a period of three months and would thereafter be placed on probation for a period of five years. The judgment also ordered the Petitioner to pay a fine in the amount of $10,000.00. The crime to which the Petitioner pled guilty is a felony under federal law. At the time the Petitioner committed the crime to which he pled guilty, he was a grown man more than forty years of age. The Petitioner duly served his term of confinement and fulfilled all terms of his probation, including the payment of the fine. Thereafter, on January 21, 1988, the State Office of Executive Clemency restored the Petitioner's civil rights in the State of Florida. On May 9, 1991, the Petitioner applied to the Respondent for licensure as a limited surety agent. As required by the application, the Petitioner disclosed the criminal history information described above. In response to questions on the application form, the Petitioner answered "yes" with regard to whether the crime to which he pled guilty and of which he had been convicted was a felony and also answered "yes" with regard to whether that crime was a crime involving moral turpitude. On June 12, 1991, the Respondent sent a letter to the Petitioner advising him that his application file lacked certificates indicating completion of certain specified courses which are prerequisites to licensure. The Petitioner thereafter submitted a certificate of completion from the University of Florida showing he had completed his course work on July 24, 1991, and a certificate from Miami-Dade Community College showing he had completed an eighty-hour surety agent/bail bond course on April 27, 1991. The Petitioner's application shows that he has been self-employed and that he has been employed with a legal courier service over the past few years. The Petitioner is a graduate of the Georgetown Law Center. The Petitioner acknowledged that the bail bond profession involves the constant signing of documents regarding persons charged with crimes, as well as constant handling of collateral and transfer of funds in the regular course of the bail bond business.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Department of Insurance issue a Final Order in this case denying the Petitioner's application for licensure as a limited surety agent and dismissing the petition. RECOMMENDED in Tallahassee, Leon County, Florida, this 24th day of April 1992. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of April 1992.
