Findings Of Fact Cruises Unlimited Travel/Tours, Inc. (Petitioner), is a "seller of travel", as that term is defined by Section 559.927(1)(2), Florida Statutes. 2/ Elaine Scola is Petitioner's owner. As of 1988, sellers of travel were required to register with the Department of Agriculture and Consumer Services, Division of Consumer Services (Respondent), and it was a violation of Section 559.927, Florida Statutes, for any person to conduct business as a seller of travel without registering annually with Respondent. Any such violation subjected the offending party to civil and criminal penalties. Petitioner did not register with respondent and, in or around November 1993, Respondent notified Petitioner of its (Petitioner's) obligation to register with Respondent. Around or on February 23, 1994, Petitioner, by and through Ms. Scola, made application for registration as a seller of travel and requested Respondent to waive the annual performance bond requirement. Petitioner included with the application, among other things, a registration fee and a 1993 unaudited financial statement. Around or on March 16, 1994, Respondent requested additional information: an audited financial statement or latest income tax return, and documentation showing five or more consecutive years of business ownership experience as a seller of travel in Florida (occupational license or tax returns). Around or on March 21, 1994, Petitioner provided Respondent a copy of its occupational licenses for the past seven years and a copy of its 1992 income tax return. Petitioner indicated that its 1993 tax return was not, as yet, completed. Petitioner's occupational licenses dated back to 1986. For a brief period from September 30, 1988, to March 29, 1989, Petitioner did not have an occupational license. Around or on April 7, 1994, Respondent denied Petitioner's request for a waiver of the bond requirement, contending that Petitioner had failed to satisfy the waiver requirements of Section 559.925(10)(b), Florida Statutes, on two grounds. One was that Petitioner had failed to submit an audited financial statement. The second was that Petitioner had failed to show that it had "five or more consecutive years of experience as a seller of travel in Florida, while in compliance with the law." The second reason presented by Respondent is based upon its interpretation of Section 559.927(10)(b)5, Florida Statutes, to require that the "five or more consecutive years of experience as a seller of travel" must have been lawful, i.e. that it have occurred while the person was duly registered with Respondent, with appropriate security. By waiving the requirement for an annual performance bond, Respondent contends the statute was designed to reward sellers of travel who have complied with the registration and bond requirements. Respondent has not promulgated any rule evidencing its interpretation. However, it has begun the rulemaking process. Prior to Petitioner making application for registration as a seller of travel, it had never registered with Respondent as a seller of travel or posted a performance bond.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order DENYING Cruises Unlimited Travel/Tours, Inc.'s, request for a performance bond waiver. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of October 1994. ERROL H. POWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October 1994.
The Issue Whether Respondent violated provision of the Florida Insurance Code by employing a convicted felon in the bail bond business. Whether Respondent violated the provisions of the Florida Insurance Code by failing to report a change of address to Petitioner.
Findings Of Fact At all times relevant to the dates and occurrences referred to in this matter, Respondent Clarence Luther Cephas, Sr., was licensed in the State of Florida as a bail bond agent. Pursuant to Florida law, Petitioner has jurisdiction over the bail bond licensure and appointments of Respondent. Records of the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida (Criminal Division), show that Pamela Jean Coleman, a/k/a Deborah Lee Diehl, a/k/a Pamela Jean Jones, a/k/a Pamela Jones, a/k/a Pamela Coleman, pleaded guilty and was adjudicated guilty on March 28, 1975, in case number 75-239 CF, of buying or receiving or aiding in concealment of stolen property, a felony. Records of the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida (Criminal Division), show that Pamela Jean Coleman, a/k/a Deborah Lee Diehl, a/k/a Pamela Jean Jones, a/k/a Pamela Jones, a/k/a Pamela Coleman, pleaded guilty and was adjudicated guilty on October 22, 1975, in case number 75-2390 CF, of violation of drug abuse law, a felony. Records of the State of Florida Department of Law Enforcement (FDLE) show that the conviction set forth in paragraph 4 above included convictions on March 28, 1975, and July 17, 1975, for parole violations. On or about March 7, 1980, the State of Florida Office of Executive Clemency restored the civil rights of Pamela Jean Coleman, relative to Coleman's criminal convictions in Palm Beach County, Florida, in 1975. Records of the FDLE show that on or about November 25, 1991, Pamela Jean Coleman, a/k/a Deborah Lee Diehl, a/k/a Pamela Jean Jones, a/k/a Pamela Jones, a/k/a Pamela Coleman, plead nolo contendere, was adjudicated guilty, and convicted of retail theft in Polk County, Florida, a misdemeanor of the first degree, which constituted a crime of moral turpitude. Records of the Circuit Court of the Tenth Judicial Circuit, in and for Polk County, State of Florida, show that on or about November 25, 1991, Pamela Jean Coleman, a/k/a Deborah Lee Diehl, a/k/a Pamela Jean Jones, a/k/a Pamela Jones, a/k/a Pamela Coleman, in case number CF91-1923, pled nolo contendere, was adjudicated guilty and convicted of petit theft, a misdemeanor of the first degree, which constituted a crime of moral turpitude. Records of the Circuit Court of the Tenth Judicial Circuit, in and for Polk County, State of Florida, show that on or about December 16, 2002, an Amended Information was filed against Pamela Jean Coleman (a/k/a Deborah Lee Diehl, a/k/a Pamela Jean Jones, a/k/a Pamela Jones, a/k/a Pamela Coleman) in case number CFO2-00597A-XX, charging that between November 27, 2000, and January 25, 2002, in the County of Polk and State of Florida, having been convicted of or 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 the law of any state, territory, or county, regardless of whether adjudication of guilt was withheld, did participate as a director, officer, manager, or employee of a bail bond agency or office thereof or exercise direct or indirect control in any manner in such agency or office or own shares in a closely held corporation which had an interest in a bail bond business contrary to Section 648.44, Florida Statutes. Further, the records of said court show that on or about January 31, 2002, Pamela Jean Coleman (a/k/a Deborah Lee Diehl, a/k/a Pamela Jean Jones, a/k/a Pamela Jones, a/k/a Pamela Coleman) in case number CFO2-00597A-XX, was tried, found guilty and adjudicated guilty of a violation of Section 648.44(8), Florida Statutes, acting as a bail bondsman while being a convicted felon, a felony of the third degree, as charged in the aforesaid Amended Information. Said conviction is presently on appeal before the Florida Second District Court of Appeal. Respondent knew or should have known the foregoing information. Documents under Seal from the Florida Department of State, Division of Corporations, pertaining to Clarence Luther Cephas, Sr., Bailbonds, Ltd., Inc., show that Pamela Jean Coleman filed original documents on behalf of Respondent's corporation and corresponded with the Department of State, Division of Corporations, on behalf of the said corporation. She was listed as both the registered agent of the corporation and also a vice-president and director of the said corporation as set forth on a document filed over the signature of Respondent. Other filed documentation show Pamela Jean Coleman as the president, secretary, and as director of said corporation. These documents are accurate and valid. The original license application form, Florida Insurance Temporary License Application, under Section 11, Screening Question Information, contains the following language: "If you were adjudged guilty or convicted of a felony crime and your civil rights were lost, provide evidence that your civil rights have been restored." There is no evidence in the record that Coleman provided that information to Petitioner at the time the original application was filed or at any time subsequent to that period, and Coleman signed the application. Respondent gave a statement, under oath, before Luis Rivera, Special Investigator for Petitioner's predecessor (Department of Insurance), on November 27, 2000, wherein he stated: I have known Pamela Coleman/Jones for approximately four years and she has been affiliated with me for most of the time that I have been in the bail bond business. I had asked her if she had ever been convicted of a felony and she said that she had been convicted as a teenager. She had a Certificate of Restoration of Civil Rights from the Office of Executive Clemency that is dated March 7, 1980. I was under the impression that if her rights had been restored, that it would not be a problem with her working for me. I named Pamela as an officer in my corporation because I did not have any family that I could list as an officer except for my daughter, who is a deputy sheriff and could not be an office of the corporation. Respondent had a business address-of-record with Petitioner of B & B Bail Bonds, 580 North Broadway Avenue, Bartow, Florida 33830-3918, when in fact his business address was 2095 East Georgia Street, Bartow, Florida 33830-6710. Respondent did not notify Petitioner of a change of address for his corporation as required by law. In November 2000 during an interview, Luis Rivera and another Special Investigator from his office advised Respondent that Petitioner (then the Department of Insurance) considered him to be in violation of Section 648.44(8), Florida Statutes, notwithstanding any restoration of civil rights granted to Pamela Jean Coleman. Luis Rivera visited the home office of Respondent, on March 7 and 21, 2000, at 2095 East Georgia Street, Bartow, Florida 33830-6710, and knew of no other office location for that agent after that date. Constance Castro, a Special Investigator with the Tampa Office, Petitioner (then the Department of Insurance), Bureau of Agent and Agency Investigations, during September 2001, made an undercover visit to the bail bond office of Respondent, and pretended to be in need of a bail bond for a fictitious relative. She dealt directly with Pamela Jean Coleman who proceeded from the home living area of the house where Respondent was also located, to the office area of the home where Coleman conducted bail bond business with Castro. Special Agent Michael Kreis, Drug Enforcement Agency, in early 2001, had business with Cephas Bail Bonds. He went to the office thereof where he observed Pamela Jean Coleman sitting behind the desk. Coleman told him that she had posted bond the night before for the people he was asking about, and was very familiar with the street names of the people that were being sought. Coleman helped to arrange what was supposed to be a meeting between her and one of the suspects using the ruse that she needed the suspect to sign some bail bond paperwork. Kreis observed Respondent in the office but Coleman seemed to be in charge. Kreis observed her on the phone and dealing with people who came into the Cephas' bail bond office, and noted that by her actions and conduct, she was acting as a bail bond agent. On or about June 19, 2001, Noel Elizabeth "Nikki" Collier was working as a paralegal in her husband's law office when Pamela Jean Coleman visited their office with paperwork for one of their mutual clients to fill out. Coleman left her business card which read "Pamela J. Coleman, President, Clarence L. Cephas, Sr. Bail Bonds." Coleman was dressed in a black outfit with a badge attached to her belt. Coleman told her that if the mutual client did not sign the paperwork then the bail bonds would be revoked. When in the law office, Coleman identified herself as an agent for Clarence Cephas Bail Bonds. Respondent acknowledged that Petitioner's Exhibit numbered 8 was indeed a sworn statement made by him during a visit to Petitioner (then Department of Insurance), Bureau of Agent and Agency Investigations, at its offices in Tampa, Florida, in November 2000, and that he was indeed warned by Petitioner's personnel that he was in violation of Section 648.44(8), Florida Statutes. He was subsequently warned by the filing of an Administrative Complaint in June 2001, an Amended Administrative Complaint in December 2001, and a Second Amended Complaint in March 2003. Respondent acknowledged that Pamela Jean Coleman was indeed listed as an officer and as a registered agent as well as the filer of various corporation documents, regarding his corporation and on file with the Department of State, Division of Corporations, and that he did sign the paperwork indicating that she was a corporate officer. Respondent further acknowledged that Coleman did participate in his bail bond business and that he did make payments to her as an employee, which included filing of a W-2 Form indicating said payments. During the pendency of this action, the State of Florida, by and through Jerry Hill, State Attorney for the Tenth Judicial Circuit, prosecuted Respondent for criminal violations of Chapter 648, Florida Statutes (2003), in the case styled State of Florida v Clarence Luther Cephas, Florida Tenth Circuit Court, Case Number CF02-00598A-XX (the "criminal case"). The Circuit Court of the Tenth Judicial Circuit conducted a jury trial in the criminal case. On December 17, 2003, the jury rendered a verdict of "not guilty," and the Circuit Court of the Tenth Judicial Circuit rendered a judgment of not guilty in the criminal case. The allegations contained in the criminal case were identical to the allegation contained in Count one of Petitioner's Second Amended Administrative Complaint. During the approximate period of time March 1997 to at least December 2001, Respondent did employ and/or did otherwise allow Pamela Jean Coleman to participate in the bail bond business. Respondent did fail to notify the Department of Financial Services of a change of address as required by law.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Financial Services enter a final order as follows: Finding Respondent guilty of employing a convicted felon in the bail bond business, in violation of Sections 648.30, 348.44(8)(b), 648.45(2)(e) and (j), and 648.45(3)(a) and (c), Florida Statutes; Finding Respondent guilty of failing to report a change of address; and Revoking the bail bond agent license and eligibility for licensure of Respondent pursuant to Chapter 648, Florida Statutes. DONE AND ENTERED this 1st day of July, 2003, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 1st day of June, 2003. COPIES FURNISHED: James R. Franklin, Esquire The Franklin & Carmichael Law Firm, P.A. 301 East Main Street Post Office Box 50 Bartow, Florida 33806 Dickson E. Kesler, Esquire Department of Financial Services 401 Northwest 2nd Avenue, Suite N-321 Miami, Florida 33128 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
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 Petitioner, Barry Stephen Yanks (Yanks), has applied to respondent, Department of Insurance (Department), for examination as a bail bondsman (limited surety agent) pursuant to Chapter 648, Florida Statutes. By letter dated February 7, 1989, the Department denied Yanks' application. The gravamen of the Department's denial was its contention that on December 9, 1987, Yanks had accepted jewelry as collateral for a bail bond, and that such jewelry had not been timely returned to its owner. As a consequence, the Department concluded that Yanks had acted as a bail bondsman without being licensed as such, and that he lacked the fitness and trustworthiness to engage in the bail bond business. Yanks filed a timely petition for formal hearing to contest the Department's action. At hearing, the proof failed to demonstrate that Yanks had acted inappropriately as contended by the Department. Rather, the proof demonstrated that when Yanks accepted jewelry from Corrine Hough on December 9, 1987, as collateral for a bail bond to be written on her son, that he was acting on behalf of the attorney for American Bankers Insurance Company (American), the proposed surety. Under the arrangements made with Ms. Hough, the collateral was to be held by the attorney for American because she did not have confidence in the bondsman who was to write the bond, one Nestor Tabares, to safeguard her property. Accordingly, at the request of American's attorney, Yanks secured the collateral from Ms. Hough, gave her a receipt, and delivered the jewelry back to the attorney. After delivery of the jewelry to the attorney, Yanks had no further contact with or control over it. While there was a delay of some 10 months following the termination of the bond that was ultimately written on Ms. Hough's son before her jewelry was returned, such delay was not occasioned by or within the control of Yanks. In sum, Yanks did not act as a bail bondsman on December 9, 1987, and did not exert any control over Ms. Hough's jewelry such that he might be held accountable for any delay in its return.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered granting the application of Petitioner, Barry Stephen Yanks, for examination as a bail bondsman (limited surety agent) pursuant to Chapter 648, Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of October 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October 1989. APPENDIX The proposed findings of fact submitted on behalf of Yanks have been adopted in substance in paragraphs 1-5. The purposed findings of fact submitted on behalf of the Department are addressed as follows: Subordinate or not necessary to the result reached. To the extent supported by the proof, adopted in paragraph 3, otherwise rejected. Adopted in paragraph 3. Not relevant. 5 & 6. Adopted in substance in paragraph 4. COPIES FURNISHED: Robert V. Elias, Esquire Office of Legal Services 412 Larson Building Tallahassee, Florida 32399-0300 Ana Hernandez-Yanks, Esquire 1481 N.W. 7th Street Miami, Florida 33125 The Honorable Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Don Dowdell General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300
The Issue Whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, the penalty which should be imposed.
Findings Of Fact Respondent was at all times relevant hereto licensed by Petitioner in the State of Florida as a Limited Surety Agent (Bail Bondsman) and as a Life and Health Insurance Agent. On January 1, 1988, Daniel Del Sardo was arrested and incarcerated in Broward County, Florida, on charges of forgery, uttering a forged instrument, grand theft of the second degree, and possession of a stolen credit card. His bail was set in the amount of $3,100.00. On March 29, 1988, Sabastian Del Sardo (Complainant), the father of Daniel Del Sardo, and Respondent entered into an agreement for Accredited Surety & Casualty Company, Inc., for whom Respondent acted as agent and attorney in fact, to post the bail bond for Daniel Del Sardo. Complainant paid Respondent the sum of $350.00 as the premium for the bail bond and agreed to indemnify Accredited Surety & Casualty Company, Inc., the surety on the bond, in the event the surety suffered a loss on the bail bond. In addition, Complainant tendered to Respondent, as additional security, a check in the amount of $1,000.00 and the title to a 1979 Cadillac. Complainant told Respondent to hold the check until April 3, 1988, the date Complainant was scheduled to receive his social security check. On April 4, 1988, Complainant gave to Respondent the sum of $750.00 in cash in exchange for the $1,000.00 check that Respondent had been holding since March 29, 1988. The collateral security was accepted by Respondent as attorney in fact and in trust for Accredited Surety & Casualty Company, Inc. By the terms of the agreement executed by Complainant and Respondent, Complainant was entitled to a return of the collateral security within 21 days after the bail bond was discharged in writing by the court. On or about April 7, 1988, Complainant asked Respondent to take Daniel Del Sardo back into custody because Daniel had gotten back on drugs and had been stealing from Complainant and Complainant's wife. Respondent had sufficient justification to return Daniel Del Sardo to custody. While there was a verbal agreement between Complainant and Respondent that Respondent would return Daniel to custody, there was no agreement as to how, or whether, Respondent was to be compensated for doing so. Respondent incurred expenses in locating Daniel Del Sardo and in returning him to custody. Respondent and one of his employees spent over twenty hours looking for Daniel Del Sardo. When he was located, Daniel Del Sardo was high on drugs and did not go to jail peaceably. While he was in the process of taking Daniel Del Sardo back into custody, Respondent's clothing was damaged. Respondent's employee transported Daniel Del Sardo from Miami, Florida, to the Broward County, Florida, jail on April 10, 1988. On April 20, 1988, Daniel Del Sardo changed his plea from not guilty to guilty on the four counts and was sentenced to a total of four years in prison. The bond posted on behalf of Daniel Del Sardo was discharged on April 26, 1988. On April 28, 1988, Complainant asked Respondent to return the car title and the $750.00 security deposit he had given Respondent. Respondent refused to return the entire deposit and told Complainant that he was going to keep the sum of $525.00 to reimburse himself for expenses he had incurred in taking Daniel Del Sardo back into custody. Complainant did not agree that Respondent was entitled to reimbursement of expenses. Further, Complainant did not agree that $525.00 was a reasonable figure for the expenses Respondent had incurred. In response to Complainant's demand that his entire deposit be refunded, Respondent, on April 28, 1988, returned the car title and the sum of $225.00 to Complainant. Respondent kept the sum of $525.00 to reimburse himself for the expenses he incurred in returning Daniel to custody. In charging Complainant for the expenses he incurred in returning Daniel Del Sardo to custody and in deducting those expenses from the collateral security, Respondent was following a practice that has developed among those engaged in the bail bond business in Dade County, Florida. Complainant filed a complaint with Petitioner on the grounds that his entire deposit of $750.00 had not been returned, asserting that there had been no agreement that he would pay Respondent's expenses for taking Daniel back into custody. On or about June 20, 1988, one of Petitioner's investigators contacted Respondent about the complaint. On June 21, 1988, Respondent paid to Complainant the sum of $525.00, representing the balance of the security deposit he had earlier received from Complainant. On January 26, 1989, Petitioner filed an administrative complaint against Respondent based on his dealings with Sabastian Del Sardo. The administrative complaint charged Respondent with violating the following: Section 648.44(1)(g), Florida Statutes, Section 648.442(1), Florida Statutes, Section 648.442(4), Florida Statutes, Section 648.45(2)(e), Florida Statutes, Section 648.45(2)(f), Florida Statutes, and Section 648.45(2)(j), Florida Statutes. Respondent denied the allegations of the Administrative Complaint and timely requested a formal hearing. There was no evidence that Respondent has been previously disciplined by Petitioner.
Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED that Petitioner, Florida Department of Insurance, enter a final order which finds that Respondent, Gerald Carpenter, violated the provisions of Sections 648.422(1) and (4), Florida Statutes, and Section 648.45(2)(j), Florida Statutes. It is further RECOMMENDED that an administrative fine in the amount of $500.00 be levied against Respondent. DONE AND ENTERED this 6th day of October, 1989, 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 6th day of October, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-2356 The following rulings are made on the proposed findings of fact submitted by Respondent: The proposed findings of paragraph 1 are rejected as being unnecessary to the results reached. Whether Respondent was justified in returning Daniel Del Sardo to custody is not in issue. The proposed findings of paragraph 2 are rejected as being speculation. The proposed findings of paragraph 3 are rejected as being subordinate to the findings made. The proposed findings of paragraph 4 are rejected as being conclusions of law. COPIES FURNISHED: Brian Norton, Esquire Office of Legal Services 412 Larson Building Tallahassee, Florida 32399-0300 Randolph Q. Ferguson 1644 Northwest 17th Avenue Miami, Florida 33125 Honorable Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Don Dowdell, General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300
The Issue The issue 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
