Findings Of Fact The Respondent, Adriana Winkelmann, d/b/a Adriana's Bail Bonds, Tampa, currently is licensed and eligible for licensure in this State as a Limited Surety Agent. On or about October 31, 1986, William L. Counts and his wife, Madie Counts, a/k/a Madie G. Clark, went to see the Respondent about getting Mr. Counts' first cousin, Clayton D. Counts, bailed out of jail. Cousin Clayton was charged with second degree murder, and bail was set on the second degree murder charge at $5000. Clayton Counts also had been charged with eight other counts involving sexual battery on a child and sexual activity with a child under his custodial authority. On October 2, 1986, Clayton Counts had posted $14,000 of bonds that had been set on the eight charges and had been released from jail. Adriana's Bail Bonds, acting as bail bondsman and as attorney-in-fact for the surety company, Accredited Surety And Casualty Company, Inc. (Accredited or the surety), was the surety on the $14,000 of bonds, and Scott Erickson, a friend of Clayton Counts, indemnified Accredited and put up collateral to secure the indemnification agreement. All but $150 of the premium on the $14,000 of bonds had been paid to Adriana's Bail Bonds; Clayton Counts' wife promised to pay the additional $150 at a later date. When Clayton Counts was re-arrested and charged with second degree murder and just an additional $5000 bond was set on the new charge, Erickson became fearful that Clayton Counts might skip the bonds, jeopardizing Erickson's collateral. He told the Respondent that he wanted to be taken off the bonds. At about this same time, on or about October 31, 1986, Mr. and Mrs. William L. Counts came in to Adriana's Bail Bonds, at Clayton Counts' request, to see about bailing out Clayton for the second time. Mr. and Mrs. Counts agreed with the Respondent to indemnify the surety on the total amount of all of the bonds, $19,000. They agreed to pay the $150 balance of the premium on the bonds put up on or about October 2, 1986, on the first set of charges, plus a $500 premium on the bond put up on or about October 31, 1986, on the second degree murder charge. The indemnity agreement was to indemnify the surety company for the entire $19,000 amount of the bonds in the event of a forfeiture, plus "all claim, demand, liability, cost, charge, counsel fee, expense, suit order, judgment, or adjudication" sustained or incurred by the surety company. As collateral to secure their indemnity agreement, Mr. and Mrs. Counts put up their mobile home, to which they gave the Respondent a power of attorney dated October 31, 1986, and an $8,000 mortgage on a lot worth approximately $8000. They also gave Adriana's Bail Bonds a $19,000 promissory note as collateral. On October 31, 1986, an employee of Adriana's Bail Bonds gave Mr. Counts a collateral receipt, signed by Mr. Counts and the employee, for the $19,000 promissory note, the indemnity agreement, the mortgage on the lot and the mobile home. The original was given to Mr. Counts and Adriana's Bail Bonds kept a copy. There was no evidence that the collateral receipt, or any other statement or affidavit, for this or any other collateral (other than Erickson's original collateral on the $14,000 of bonds on the first set of charges) ever was filed anywhere. Mr. Counts paid $500 by check dated November 14, 1986, for the premium on the $5000 second degree murder bond. In December 1986, Clayton Counts left the state and missed a court appearance on December 19, 1986. The $19,000 of bonds was estreated. In about January 1987, Mrs. Counts went to see the Respondent about substituting some other collateral for the mobile home. She was concerned about where she and her husband would live if the bonds were estreated and forfeited and the mobile home had to be sold to perform the indemnity agreement. She wanted to be able to move the mobile home somewhere else even in that event. After some discussion, it was agreed that the Respondent would accept $6000 cash as substitute collateral in place of the mobile home. Mrs. Counts promised to pay the $6000 in installments of approximately $500 a month. The Respondent repeatedly was able to have the court delay forfeiture of the bonds because she was able to demonstrate that she was trying to locate and return the defendant to the court. In her efforts, the Respondent incurred expenses for hiring private investigators, for a six- day trip to Missouri, for long distance telephone charges, for attorneys' fees for getting postponements of the forfeiture of the bonds and for other miscellaneous expenses. The Respondent collected portions of the promised cash collateral substitution in the following installments, some of which were picked up at the Counts' home by the Respondent: April 21, 1987 $2,000 July 17, 1987 $ 300 August 10, 1987 $ 500 August 20, 1987 $ 800 January 6, 1988 $ 500 On each occasion, the Respondent gave Mrs. Counts a collateral receipt signed by the Respondent and by Mrs. Counts. Each receipt noted the amount received, the balance due on the cash collateral substitution promise, and the $150 balance on the premium on the October 2, 1986 bonds on the first set of charges. Again, there was no evidence that any of these collateral receipts were "filed" anywhere. On January 6, 1988, Mrs. Counts asked the Respondent for a summary of the amounts of collateral paid to that date. The Respondent wrote on a piece of paper, incorrectly dated January 6, 1987, that $4100 had been received to date. Mrs. Counts also was confused what the money would be used for. The Respondent answered her question, saying that the money, together with the lot, would go towards indemnifying the surety for the $19,000 amount of the bonds if they were forfeited and, under the indemnity agreement, could be used to indemnity Adriana's Bail Bonds for expenses caused by the estreature. The Respondent listed these items on a piece of paper, too: Attorney fees to continue case 4 times over one year. Long distance calls for one year. Gas, stamps, & miscellaneous. One trip to Missouri, gas, motel, meals. Investigators services in Missouri and Florida. Later in January 1988, Clayton Counts was arrested and returned to Florida. The bonds, however, were not discharged at that time. Later in 1988, the Respondent made demand on Mrs. and Mrs. Counts for payment of an additional $2,150. This was supposed to represent $2000 due on the cash collateral substitution promise, plus the $150 balance on the premium on the October 2, 1986 bonds on the first set of charges. In fact, only $1900 was due and owning on the cash collateral substitution agreement. In March and April 1988, the Respondent collected from Mrs. Counts two additional $350 installments of the cash collateral substitution promise. Only one receipt was given for both installments, once again signed by both the Respondent and Mrs. Counts, reducing the balance to $1200, plus the $150 premium owing. In June and July 1988, Mrs. Counts was hospitalized. On June 13, 1988, the Respondent went to the hospital to have Mrs. Counts sign a receipt for the return of the original collateral for the $19,000 of bonds--i.e., the $19,000 promissory note and indemnity agreement, the mortgage on the lot and the mobile home. The Respondent did not return the cash collateral. On July 14, 1988, the court entered an order releasing the surety and Adriana's Bail Bonds from the bonds. The Respondent did not return the cash collateral because Mrs. Counts died in July 1988, and the Respondent was unsure to whom the money should be paid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent be found guilty of the violations set forth in the Conclusions of Law portion of this Recommended Order and that her license and eligibility for licensure be suspended for a period of thirty (30) days, that she be required to pay an administrative fine in the amount of $250, and that she be placed on probation for nine months after expiration of the suspension period, conditioned on : (1) successful completion of either a basic certification course or a correspondence course approved by the Bail Bond Regulatory Board; and (2) payment of the cash collateral to the rightful owner, or in the alternative, if the Respondent is in doubt as to the rightful owner, into a court registry in conjunction with an interpleader action, within 30 days of entry of final order. DONE and ENTERED this 24th day of February, 1989, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Hearing Office Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. 88-2588 To comply with Section 120.59(2), Florida statutes (1987), the following rulings are made on the Petitioner'S proposed findings of fact: 1-9. Accepted and, along with other facts, incorporated. 10. Rejected in part and accepted in part. The note was a receipt of sorts, but it was not the only receipt. The incorrect date on the "receipt" was January 6, 1987; the actual date the "receipt" was given was January 6, 1988. 11.-16. Accepted and incorporated. COPIES FURNISHED: S. Marc Herskovitz, Esquire Office of Legal Services Department of Insurance 412 Larson Building Tallahassee, Florida 32399-0300 Don Dowdell General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, FL 32399-0300 James N. Casesa, Esquire 3845 Fifth Avenue North St. Petersburg, Florida 33713 The Honorable Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32999-0300
The Issue The issues in this case are whether Respondent violated sections 648.442(1), 648.442(2), 648.442(4), 648.571(1), 648.45(2)(e), 648.45(2)(h), 648.45(2)(j), 648.571(3)(b)1., and 648.571(3)(b)2., Florida Statutes (2007),1/ and Florida Administrative Code Rules 69B-221.145(4)(a) and 69B- 221.145(4)(b), and, if so, what discipline should be imposed.
Findings Of Fact The Department is the state agency responsible for regulating insurance and insurance-related activities, including limited surety (bail bond) licensees in Florida. At all times relevant to this proceeding, Mr. Wilson has been licensed in this state as a limited surety (bail bond) (2-34) agent, license number D012026. Mr. Wilson is the owner of Against All Odds Bail Bonds (Against All Odds), which is located in Tampa, Florida. As a bail bond agent, Mr. Wilson's duties include writing bail bonds for defendants who are incarcerated; ensuring the defendants appear for court dates; arresting defendants who fail to appear in court and returning them to jail; and returning collateral to defendants when requested. In 2007, Mr. Wilson was the only limited surety agent working at Against All Odds. In May 2007, Michael Wisher (Mr. Wisher) was arrested for driving under the influence, and his bond was set at $2,000. Mr. Wilson was contacted to post a surety bond on Mr. Wisher's behalf. On May 12 or 13, 2007, Mr. Wilson met Mr. Wisher at the Hillsborough County Jail, where Mr. Wisher was being held. Mr. Wilson advised Mr. Wisher that the premium for the bail bond was $200 and that an additional $1,800 for collateral was required. Mr. Wisher agreed to the arrangement and gave Mr. Wilson permission to use his credit card for the payment. Mr. Wilson used Mr. Wisher's credit card at the jail to pay for the premium and collateral for a total of $2,000. Mr. Wilson secured an appearance bond with United States Fire Insurance Company on May 13, 2007. Mr. Wilson was released and accompanied Mr. Wilson to the office of Against All Odds, where he executed an Indemnitor/Guarantor Check List dated May 12, 2007. Two of the provisions of the checklist provide: I understand that my collateral cannot be released until all bonds posted on my behalf for defendant have been exonerated and written notice form the court received by the bail agency. I understand that it is my [Mr. Wisher's] responsibility to request return of any collateral provided. There may be a delay of return of collateral until the bail agency has researched the exoneration date and verified the bail bond status with the appropriate courts. The process may be done faster if I obtain written verification of the bond exoneration from the court and provide it to the bail agency. Mr. Wilson did not issue a receipt to Mr. Wisher, showing that Mr. Wisher had paid $2,000. Based on Mr. Wilson's testimony, the Indemnitor/Guarantor Check List is not the receipt. Mr. Wilson claims that he did issue a collateral receipt, but that receipt did not show the credit card fee that was being imposed. According to Mr. Wilson, the copy of the receipt was destroyed in a fire. Mr. Wisher's testimony is credited that he did not receive a receipt. Computer records of the Clerk of Hillsborough Circuit Court show that on September 18, 2007, the bond was deactivated and a certificate of discharge of bond was issued in Mr. Wisher's case. Mr. Wilson claims not to have received the certificate of discharge, and no certificate of discharge was entered in evidence. Mr. Wisher contacted Mr. Wilson on December 17, 2007, requesting that his collateral be returned. Mr. Wisher advised Mr. Wilson that the bond had been discharged. Mr. Wilson was aware that the bond had been discharged because he had checked the computer records of the Clerk of the Hillsborough Circuit Court and saw the record showing the discharge of the bond. Mr. Wilson sent Mr. Wisher a money order for $500 on January 3, 2008. He sent Mr. Wisher another money order dated January 31, 2008, for another $500. Mr. Wisher did not agree to have his collateral returned in installments. By the end of January 2008, Mr. Wilson still owed Mr. Wisher $800. Mr. Wisher made numerous telephone calls to Mr. Wilson in an attempt to get the remaining amount of his collateral. In June 2008, Mr. Wisher wrote Mr. Wilson two times in an attempt to get his collateral returned. Both letters were returned by the United States Postal Service as unclaimed. Mr. Wisher did not receive any additional money from Mr. Wilson. Mr. Wilson claims that he mailed Mr. Wisher an additional $400, but the evidence does not support his claim. He submitted a copy of an envelope addressed to Mr. Wisher with a first class stamp on it. The envelope did not bear a post mark. The exhibit also had a portion of a customer receipt from the United States Postal Service, which states return of collateral in the section entitled "Pay To" and Michael Wisher in the section labeled "C.O.D. or Used For." The receipt contains no date and does not specify what service or goods for which the receipt was issued. Additionally, it appears that the receipt is not complete based on the wording at the bottom which states serial number; year, month, day; post office; and amount. Such wording would suggest that additional information would be part of the receipt, but the receipt provided by Mr. Wilson did not contain the additional information. In addition to the premium of $200, Mr. Wilson charged Mr. Wisher $400 for a credit card fee. This amount represented percent of the total bond amount, not just the collateral amount. The credit card fee which Mr. Wilson charged was more than the fee which the credit card company charged him for use of the credit card. Mr. Wilson claims that he was taught at the bail bond school held in Fort Lauderdale that up to 20 percent of the total bond amount could be charged to the client for the use of a credit card. The Department did not establish that Mr. Wilson failed to have a sign in his office posting the credit card fee schedule when Mr. Wisher visited his office. However, Mr. Wisher was not provided a copy of the credit card fee schedule.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mr. Wilson did not violate sections 648.442(1), 648.442(4), and 648.571(3)(b)2.; finding that Mr. Wilson violated sections 648.442(2), 648.571(1), 648.571(3)(b)1., 648.45(2)(e), 648.45(2)(h), and 648.45(2)(j) and rules 69B-221.145(4)(a) and 69B-221.145(4)(b); suspending Mr. Wilson's license for six months; imposing an administrative fine of $5,000; and requiring Mr. Wilson to return the remainder of Mr. Wisher's collateral to him. DONE AND ENTERED this 29th day of November, 2011, in Tallahassee, Leon County, Florida. S SUSAN BELYEU KIRKLAND 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 29th day of November, 2011.
The Issue The issues are whether Respondent, who is a limited surety agent, is guilty of violating Section 648.571(1), Florida Statutes, by failing to return the collateral within 21 days after the discharge of the bail bond; Section 648.45(2)(e), Florida Statutes, by demonstrating lack of fitness or trustworthiness to engage in the bail bond business; Section 648.45(2)(g), Florida Statutes, by engaging in fraudulent or dishonest practices in the conduct of business under the license; and Section 648.45(2)(j), Florida Statutes, by willfully failing to comply with, or willfully violating any proper order or rule of the department or willfully violating any provision of Chapter 648, Florida Statutes, or the Insurance Code. If guilty of any of these violations, an additional issue is the penalty that should be imposed.
Findings Of Fact At all material times, Respondent has been a licensed surety agent, holding license number A134458. Respondent is the president and owner of Big Larry Bail Bonds in Fort Lauderdale. Mark Blackman, who is 45 years old, is a licensed mortgage broker and sophisticated in business matters. He has been convicted four times of driving under the influence over the past 20 years. The arrest that resulted in the fourth conviction took place on December 7, 2003. Mr. Blackman's girlfriend at the time of his arrest, Tracy, suggested that he purchase a bail bond from Respondent. Tracy, who was addicted to crack cocaine, had previously purchased a bail bond from Respondent when she had been arrested for the possession of cocaine. Mr. Blackman instructed Tracy to visit Respondent's office and arrange for Respondent to post bond, which was $23,500. Respondent agreed to post bond, but only if Mr. Blackman paid the bond premium of $2350 and delivered, as security, a note for the entire bail bond, an indemnity agreement, title to his 2002 C32 Mercedes Benz, and the vehicle itself. With Tracy's help, Mr. Blackman complied with these conditions, and Respondent bailed him out of jail. At this point, the agreement between Respondent and Mr. Blackman, with respect to the car, was that Respondent would store the car in a safe place. Accordingly, immediately upon receiving the car, Respondent drove it to a body shop where it could be stored safely and without charge. Three or four days later, while out on bail, Mr. Blackman was arrested for felony possession of cocaine. The judge revoked the original bond and refused to set bond for the new offense. At this time, the vehicle no longer served as security because the bail bond that it had secured no longer existed. Thus, at this time, Mr. Blackman was entitled to the return of the vehicle. Neither Mr. Blackman nor Respondent was under any misimpression as to Mr. Blackman's status at the time of the second arrest. Both men knew that Mr. Blackman would not be able to be released from jail on bail for these alleged offenses. Mr. Blackman would remain in jail until February 2004, after which time, following a plea deal, Mr. Blackman began serving nights in jail. The day after his re-arrest, Mr. Blackman called Respondent from jail and asked him if he would help Mr. Blackman sell the vehicle. Mr. Blackman explained that he knew that he was going to lose his driver's license. He asked Respondent if he knew anyone who worked at an automobile auction. Eventually, Mr. Blackman asked Respondent if he wanted to purchase the car, but Respondent declined, at least initially. Within a day or two after speaking to Mr. Blackman the day after his re-arrest, Respondent removed the car from the body shop, so he could show it to a prospective buyer. Respondent did not return the car to the body shop, but instead kept the car at his office or home. The record does not establish that Respondent had driven the car for any reason prior to showing it two or three days after Respondent's second arrest. For several reasons, Mr. Blackman was content with Respondent's possession of the car after it no longer served as collateral for a bail bond. Although released from jail during days starting in February 2004, Mr. Blackman remained concerned about the car during the evenings, while he was in jail. As he explained to Respondent at the time, Mr. Blackman did not want his brother to have access to the car. As Mr. Blackman testified at the hearing, he was also concerned that a friend of Tracy not have access to the car. Mr. Blackman's concerns may have extended to Tracy, who he later determined stole $20,000 from Mr. Blackman while he was in jail. Unable to drive the car due to his loss of driving privileges, Mr. Blackman did not want the car parked in his crime-ridden neighborhood. Additionally, Mr. Blackman's auto insurance expired in January 2004. For these reasons, Mr. Blackman was in no hurry after his re-arrest for Respondent to give up possession of Mr. Blackman's car. The car was safer with Respondent than it would have been returned to Mr. Blackman. Mr. Blackman knew that he would not be charged storage and was hopeful that Respondent would sell the car for Mr. Blackman. At no time, though, did Respondent try to document the change from his holding the car as collateral for a bail bond to holding it for the convenience of Mr. Blackman. Specifically, Respondent never tried to obtain Mr. Blackman's signature on a collateral release, which would document that the car no longer secured a now-nonexistent bail bond. Respondent claimed that he could not obtain Mr. Blackman's signature while he was in jail, but it is customary for limited surety agents to visit inmates in jail to obtain their signatures on paperwork, such as a collateral release. Also, in February 2004, Respondent could have obtained Mr. Blackman's signature at anytime during the day. After showing the car the first time, two or three days after Mr. Blackman's second arrest, Respondent began to use the vehicle for his personal and business purposes, as well as occasionally showing it to a prospective buyer. After January 2004, Mr. Blackman's car was no longer insured. It is unclear whether the registration and license tag expired during this period. Before Mr. Blackman was released on days, Respondent produced offers of $28,000 and $29,000 from two different persons, but Mr. Blackman wanted $38,000 for the car and refused these offers. After being released on days, Mr. Blackman did not visit Respondent or ask for him to return the car. Mr. Blackman was likely preoccupied with other matters immediately after his release from jail in February. Failing to report to jail one night shortly after his release, Mr. Blackman violated one of the conditions of his sentence, took off, and was re-arrested and returned to jail in March or April 2004. Only after he was again incarcerated did Mr. Blackman re-address the issue of the car with Respondent. The first thing he did was tell Respondent to deduct $1200 from the price of the car for a bond forfeiture on a bond that Respondent had written on Tracy. The next thing, on April 13, 2004, Mr. Blackman entered into a written agreement with Respondent for the sale of the vehicle, on the same date, to Respondent for $35,000 cash. However, Respondent backed out of the deal. About six weeks later, in late May 2004, Mr. Blackman sent his sister to pick up the car. She had a power of attorney, but it did not apply to the car, so Respondent would not release the car to her. This was a reasonable action on Respondent's part, given his knowledge of Mr. Blackman's distrust of at least one other family member. A couple of weeks later, in early June, Mr. Blackman's sister returned with a proper power of attorney, and Respondent released the car to her. After taking the car from Respondent, Mr. Blackman's sister and her husband noticed that the car had considerably higher mileage than Mr. Blackman had said that it should have. Respondent had driven the vehicle 7,000 to 10,000 miles during the six months that he had possessed the car, but entirely after the second arrest in December. Respondent was cavalier about his use of the car, as he incurred numerous parking tickets, as well as tolls on Mr. Blackman's SunPass transponder that was in the car when it was delivered to Respondent--all of which charges were imposed on Mr. Blackman. After repeated demands, Respondent paid off only some of these charges. The additional mileage that Respondent put on the vehicle reduced the vehicle's fair market value by as much as $3000. On August 1, 2004, Mr. Blackman's sister, using her power of attorney and with her brother's approval, sold the car for $33,000 to a person other than Respondent.
Recommendation It is RECOMMENDED that the Department of Financial Services enter a final order dismissing Counts I and III, finding Respondent guilty of violation Section 648.45(2)(e), Florida Statutes, in Count II, and imposing a six-month suspension and a $5000 administrative fine. DONE AND ENTERED this 19th day of October, 2006, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 2006. COPIES FURNISHED: Greg S. Marr, Esquire Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Michael A. Levin, Esquire Law Offices of Michael A. Levin Global Commerce Center 1900 North Commerce Parkway Weston, Florida 33326 Larry Lorenzo Jones 1310 Sistrunk Boulevard Fort Lauderdale, Florida 33331 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capital, Plaza Level 11 Tallahassee, Florida 32399-0300 Carlos G. Muñiz, General Counsel Department of Financial Services The Capitol Plaza Level 11 Tallahassee, Florida 32399-0307
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
Findings Of Fact Respondent Leroy Ellsworth Hardman has been licensed by petitioner as a limited surety agent since 1974. In January of 1976, he opened an office in Sanford, Florida, under the name of Action Bail Bonds. By December of 1978, he had qualified with the clerks of court in Orange, Seminole and Volusia Counties, and had written bonds in all three counties. Respondent decided to open an office in Deland, in addition to his office in Sanford. He leased office space on December 1, 1978, and began renovation. He had arranged for an advertisement to appear in the yellow pages of the Deland telephone directory, effective December 18, 1978, but did not succeed in opening the Deland office until December 19, 1978. Respondent hired Barbara Linkel to be in the office weekdays until four o'clock in the afternoon. He himself visited the office daily. Respondent, who had a 24 hour answering service and wore an electronic pager, instructed Ms. Linkel to notify him if anybody wanted a bond written. Respondent had charge of his Deland office while continuing to have charge of his office in Sanford. On January 29, 1979, John Wolmac, a limited surety agent, registered at the courthouse and began working for respondent, taking charge of the Deland office. On January 31, 1979, respondent executed the first bond written at the Deland office. Respondent's exhibit No. 8. Records of all bonds written at the Deland office were kept on file there until that office closed on May 31, 1979, when the records were transferred to respondent's office in Sanford. At all pertinent times, respondent's records were complete and open to the public for inspection. At the time of the hearing, respondent still had records of every bond executed or countersigned by him.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss the administrative complaint against respondent. DONE and ENTERED this 8th day of October, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Thomas A. T. Taylor, Esquire Office of the Insurance Commissioner The Capitol Tallahassee, Florida 32301 James C. Weart, Esquire 201 West Firth Street Suite 206, Paulucci Building Sanford, Florida 32771
Findings Of Fact The facts relevant to the charges here preferred are largely undisputed. In May 1978 Respondent's business address as reported by him to Petitioner was 2812 North 34th Street, Tampa, Florida. This address was visited by Petitioner's investigators on 23, 24, 25, and 30 May 1978. The building located at that address is owned and used by Scaglione Construction Company as its main office. There is no sign on the exterior of this building indicating a bail bondsman's office is located inside. While visiting the address, the investigators were advised that Respondent had no office there but Frank Puig did have a bail bond office in the building. Although there was some dispute regarding whether the investigators were shown Puig's office, or even allowed to go to the door of that office, whether they did or not is immaterial because Respondent readily admitted he had no files at this location and conducted no business therefrom. Again witnesses differed on whether there was a sign on the door of the office occupied by Puig. Whether there was a sign on that door reading "Frank Puig - Bail- bondsman" is irrelevant to the charge that Respondent had no sign designating his office. During the period in question, in fact, during most, if not all, of 1978, Respondent testified he was without power [of attorney] to write bonds. Exhibit 1 shows that three companies, Midland Insurance Company, Allied Fidelity Insurance Company, and Cotton Belt Insurance Company, Inc. all renewed Respondent's limited surety agency in October 1977 and all cancelled his limited surety agency 12-14-78. Respondent's testimony indicated that he was an agent only for Cotton Belt and that his power to write bonds had been withdrawn. According to Respondent's own testimony, he had no permanent office in which to keep his files and records and that these records were carried in his car and stored at his residence when not in his car. He was using Puig's telephone number as a place at which messages could be left for him. Respondent also testified that during 1978 he wrote no bonds and was only servicing existing accounts which preceded 1978.
The Issue Should Respondent's license as a bail bond agent in the State of Florida be disciplined for the alleged violation of certain provisions of Chapter 648, Florida Statutes, as set forth in the Administrative Complaint and, if so, what penalty should be imposed?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida vested with the statutory authority to administer the disciplinary provisions of Chapter 648, Florida Statutes. Respondent, at all times relevant to this proceeding, was licensed as a bail bond agent in the State of Florida and subject to the provisions of Chapter 648, Florida Statutes. Respondent, at all times relevant to this proceeding, was employed by Alliance Bail Bonds (Alliance), which was owned by Linda Jones. There was a verbal employment agreement between Alliance and Respondent, which provided for, among other things, Respondent's salary. However, the verbal employment agreement did not require that Respondent write bail bonds exclusively for Alliance. At all times relevant to this proceeding, Alliance's office was located in Respondent's home in Titusville, Brevard County, Florida, which had a separate entrance and separate telephone for Alliance. Alliance's files, both active and inactive, were also housed in this office. On March 30, 2000, a person identifying himself as Johnny Lamb contacted Respondent by telephone concerning a bail bond for an individual known as Bernard J. Dougherty who was being held in the Brevard County, Florida, jail. The bond amount was $8,500.00. Since Dougherty was not a resident of the State of Florida, Respondent wanted Lamb to put up the full amount of the bond as collateral. However, Lamb advised Respondent that he did not have enough cash to put up the full amount of the bond. Therefore, Respondent and Lamb eventually agreed on $7,000.00 cash as collateral. Additionally, Respondent advised Lamb that the premium for writing the bail bond would be $850.00 (10 percent of the bond amount). Later that same day, Lamb came to Respondent's office to complete the paperwork and put up the necessary funds for the collateral and bond premium. Lamb paid Respondent the collateral and bond premium in cash (U.S. currency, 20's, 50's, and 100's). Respondent prepared a Collateral Receipt and Informational Notice (Collateral Receipt), which was signed by Lamb. The Collateral Receipt indicated that Lamb had deposited the $7,000.00 collateral with Respondent and had executed an Indemnity Agreement and Promissory Note. Lamb also executed a Bail Application. Respondent gave Lamb the white copy of the Collateral Receipt for his records. The goldenrod copy of the Collateral Receipt was also given to Lamb to be delivered to Dougherty at the jail. The yellow copy and pink copy of the Collateral Receipt were retained by Respondent for Alliance's record. Lamb also paid Respondent $850.00 in cash (U.S. Currency) for the bail bond premium for which Respondent gave Lamb a receipt (number 20454) indicating that Lamb had paid the bail bond premium in the amount of $850.00. After completing the bond transaction with Lamb, Respondent prepared a file in Dougherty's name, which included the copies of the Collateral Receipt, Promissory Note, Indemnity Agreement, Bail Application, and a copy of the receipt for the bail bond premium. After preparing the file, Respondent prepared two Powers of Attorney (Powers), one in the amount of $5,000.00 and one in the amount of $3,500.00, and proceeded to the Brevard County jail to interview Dougherty. Upon arriving at the Brevard County jail, Respondent was advised that in addition to the Brevard County charges, there was an outstanding warrant for Dougherty from Volusia County and a hold for a parole violation in the State of Pennsylvania. Lamb was not present at the Brevard County jail at this time. Therefore, Respondent advised Dougherty of the Volusia County warrant and the hold from Pennsylvania. Respondent further advised Dougherty that although he could post bond for the Brevard County charges, Dougherty would not be released because of the Volusia County warrant and the hold for parole violation in Pennsylvania. Dougherty advised Respondent that he did not want to post bond. Whereupon, Respondent attempted to contact Lamb using the telephone numbers furnished Respondent by Lamb but was unsuccessful in locating Lamb. On March 31, 2000, Respondent called the Brevard County jail and had Lamb paged. Upon being advised that Lamb was present in the Brevard County jail, Respondent asked that they instruct Lamb to call Respondent at his office. Lamb called Respondent at his office and was advised of the situation concerning Dougherty. Respondent also advised Lamb that he was on his way to the jail and would bring Lamb's money with him. Upon arriving at the Brevard County jail, Respondent explained the circumstances regarding the posting of bail for Dougherty and proceeded to return Lamb's money. Lamb did not have the copies of the Collateral Receipt with him that had been given to Lamb on March 30, 2000. Therefore, Respondent took his copy of the Collateral Receipt and documented the return of the $7,000.00 collateral and the $850.00 premium fee. Lamb signed the documentation on the Collateral Receipt showing the return of the $7,000.00 collateral and the $850.00 premium fee. Respondent then placed all of the documents, including the Collateral Receipt with the documentation showing the return of the $7,000.00 collateral and the $850.00 bond premium, in Dougherty's file with Dougherty's name highlighted in blue for filing. Afterwards, Respondent voided the Powers by writing "Void" across the front of the Powers and had them sent to Linda Jones by UPS. Subsequently, the Powers were forwarded by Linda Jones to Charles A. Parish, Agent for Continental Heritage Insurance Co., on whom the Powers were written. On March 31, 2000, Respondent returned the $7,000.00 collateral plus the $850.00 bond premium fee to Lamb, notwithstanding the testimony of Lamb to the contrary, which lacks credibility. Respondent did not at any time present any of the paperwork for posting Dougherty's bond, including the Powers, to the Brevard County jail personnel. Since Alliance's Brevard County files were being kept at Respondent's office in Titusville, Florida, Respondent did not forward Dougherty's file to Linda Jones. However, as a caution, Respondent advised Linda Jones by telephone of what had occurred in regards to Dougherty, notwithstanding Linda Jones' testimony to the contrary, which lacks credibility. Sometime in January 2001, Linda Jones came into Respondent's office in Titusville, Florida, and removed all of Alliance's Brevard County files, both active and inactive, that were in the possession of Respondent. The Alliance files removed by Linda Jones included Dougherty's inactive file with the documentation concerning the return of the $7,000.00 collateral and the $850.00 bail bond premium, notwithstanding Linda Jones' testimony to the contrary, which lacks credibility. By letter dated May 10, 2001, after talking to William Travis and Linda Jones, Lamb filed a complaint with the Department alleging that Respondent had failed to return the $7,000.00 collateral and this proceeding ensued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order finding Respondent, Michael Scott Kelly, not guilty of violating Subsections 648.442(1) and (3); and 648.45(2)(d),(e),(g),(h), (j), and (n), and (3)(a),(c),(d), and (e), Florida Statutes, and dismissing the Administrative Complaint filed against Michael Scott Kelly. DONE AND ENTERED this 23rd day of April, 2002, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 23rd day of April, 2002. COPIES FURNISHED: Dickson E. Kesler, Esquire Department of Insurance Division of Legal Services 200 East Gaines Street 612 Larson Building Tallahassee, Florida 32399-0333 Honorable Tom Gallagher State Treasurer/Insurance Commissioner Department of Insurance 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 Steven G. Casanova, Esquire 100 Rialto Place, Suite 510 Melbourne, Florida 32935
