The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken, if any.
Findings Of Fact At all times material hereto, Respondent was licensed by the Department as a limited surety bail bond agent. He was employed by and authorized to write bail bond business for County Bonding Agency. When Respondent was hired by County Bonding Agency, the office procedures for receiving and accounting for all paperwork and money were explained to him by Deolinda E. Stolowilsky, the owner and operator, and Olympia Delgado, the office manager. Licensed employees were issued a certain number of bail bond powers of attorney on Monday of each week. Each agent was given a "pay sheet" listing the number of each power of attorney. When a power was used, the agent would write on the pay sheet next to that power the defendant's name, the amount of the bail bond, and the date the power was executed. On the following Monday each agent would turn in all files with executed bail bonds. All unused powers of attorney would be re-issued to the agent and any additional needed powers would be issued. The agent's compensation was computed based on the amount of bail bond business the agent had performed during the preceding reporting period. Each Monday when files with executed bail bonds were turned in to County Bonding Agency, all premiums received by the agent for those executed bonds were required to be turned in with the executed bonds. The office manager would make a notation on the outside of that defendant's file that the premium had been paid. Some of the agents working for County Bonding Agency routinely watched to make sure that the office manager made the proper notation on the file when they gave her money. County Bonding Agency did not give its agents receipts for the money received from them. Although County Bonding Agency had an informal policy that an agent receiving a large amount of money should turn that money in on the same day or the following day, there was no specificity for what would constitute a large amount of money. Further, there was no particular consequence for failure to accommodate the owner's preference that such be done. Much of County Bonding Agency's business was written in its office rather than at the jail. In other words, much of the money received by County Bonding Agency came from indemnitors coming to the office and paying the premium there. When that occurred, the agent sent to the jail to execute the bond received no premium money since the money had already been paid at the office. On June 20, 1998, Respondent went to County Bonding Agency. He turned in files and premiums and was issued powers to be used for future bonds. On June 23, Respondent went to County Bonding Agency and was issued new powers. Thereafter, office manager Delgado began telephoning Respondent and writing to him stating that he had failed to turn in the premium money for five defendants. She also filed a police report and contacted the Department alleging that Respondent had failed to turn in money that he had collected. On July 20, 1998, a courier delivered to County Bonding Agency from Respondent folders for six defendants. The folders did not contain any money. On July 22, Respondent went to County Bonding Agency to turn in his beeper, receipt book, and unused powers. The bond money for four defendants is at issue in this proceeding. Their folders were among the six delivered by courier to County Bonding Agency. At the final hearing, Delgado admitted that one of the six defendants was an office bond, and she could not remember one of the defendants. The four at issue are Alain Yara, Seon T. Carter, Demetrius Robertson, and Stanley Bailey. The Department's exhibits admitted in evidence at the final hearing include the paperwork for those four defendants. The paperwork for Yara includes a receipt for $300 and a collateral receipt. Both are signed by Respondent and dated June 21, 1998, two days before Respondent went to County Bonding Agency and was issued new powers. The paperwork for Carter contains a premium receipt for $550 (10 percent of the $5,500 bond) dated June 21, 1998, and signed by Respondent and a collateral receipt signed by "Curly" for what appears to be the same $5,500. The paperwork for both Robertson and Bailey contain premium receipts and collateral receipts dated June 24, 1998. All four receipts are signed "Curly." "Curly" is the nickname of Irwin Stolowilsky. At the final hearing, Delgado admitted signing Curly's name to receipts for bonds when the premium money was received by the office and the agent went to the jail only to obtain the remaining paperwork and write the bond. Delgado is not licensed by the Department and, therefore, she is not authorized to receive premiums for bail. Accordingly, when guarantors came to County Bonding Agency's office to pay premium money, she signed Curly's name, representing that a licensed person rather than an unlicensed person had in fact received the money.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent not guilty and dismissing the Administrative Complaint filed against him in this cause. DONE AND ENTERED this 11th day of October, 2000, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 11th day of October, 2000. COPIES FURNISHED: Dickson E. Kesler, Esquire Department of Insurance Division of Legal Services 401 Northwest Second Avenue Suite N-321 Miami, Florida 33128 Miguel J. Alvarez 8501 Northwest 8th Street Apartment 311 Miami, Florida 33126 Honorable Bill Nelson State Treasurer and Insurance Commissioner Department of Insurance The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Daniel Y. Sumner, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307
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.
Conclusions THIS CAUSE, arising under Florida’s “Agricultural License and Bond Law” (Sections 604.15-604.34), Florida Statutes, came before the Commissioner of Agriculture of the State of Florida for consideration and final agency action. On August 26, 2009, the Petitioner, Dixie Growers, Inc., an Agent for producers of Florida agricultural products as defined by Section 604.15(10), Florida Statutes, timely filed an administrative claim pursuant to Section 604.21, Florida Statutes, to collect $176,869.20 (including the $50 claim filing fee) for strawberries they sold to Respondent, a licensed dealer in agricultural products. Respondent’s license for the time in question was supported by a surety bond required by Section 604.20, Florida Statutes, written by Lincoln General Insurance Company in the amount of $100,000. On September 2, 2009, a Notice of Filing of an Amended Claim was mailed to Respondent and Co-Respondent. The September 2, 2009 certified claim mailing to the Respondent was returned by the United States postal service on October 5, 2009 marked “UNCLAIMED”. A second certified mailing was sent by the Department to the Respondent at another address of record on October 9, 2009 and it was received by the Respondent on October 23, 2009. On November 10, 2009, the Respondent filed an ANSWER OF RESPONDENT with an attachment to the Department and requested a hearing. Accordingly, this case was referred to the Division of Administrative Hearings (“DOAH”) for a administrative hearing in accordance with the provisions of Section 120.57(1), Florida Statutes. DOAH issued a NOTICE OF HEARING on December 2, 2009 for a hearing to be held on February 25, 2010. The hearing was held with DOAH on February 25, 2010 and the Administrative Law Judge (the “ALJ”) entered her RECOMMENDED ORDER (“R.O.”) on March 24, 2010, a copy of which is attached hereto as Exhibit “A”, to which neither party filed written exceptions with this Department. Upon the consideration of the foregoing and being otherwise fully advised in the premises, it is ORDERED: The Department adopts the ALJ’s R.O. in toto including the following technical corrections to the R.O.: 1. In the caption on page one (1) of the R.O. the Respondent is shown as America Growers, Inc. and it should read American Growers, Inc. 2. On page one (1), paragraph (1) of the R.O., it states Counsel for Respondent, the witness and court reporter appeared ... . It should read Counsel for Petitioner, the witness and court reporter appeared ... . 3. On page two (2) under PRELIMINARY STATEMENT, paragraph (2), it states Petitioner filed a response on the Department’s form titled, .... It should read Respondent filed a response on the Department’s form titled ... . 4. On page three (3) under FINDINGS OF FACT, paragraph number one (1), it states; Petitioner, Dixie Growers, Inc., is a producer of agricultural products in Florida, i.e.., strawberries. It should read; Petitioner, Dixie Growers, Inc., is an Agent for the Producer(s) of agricultural products in Florida, i.e., strawberries. 5. On page five (5), paragraph eleven (11), under CONCLUSIONS OF LAW, it states; Petitioner is a “producer” of agricultural products as defined in subsection 604. 15(9), Florida Statutes. It should read; Petitioner is a “producer’s agent” for the producer(s) of agricultural products as defined in subsection 604.15(10), Florida Statutes. The ALJ’s recommendation that the Respondent, American Growers, Inc., pay Petitioner, $176,819.20 and the $50 filing fee is hereby adopted. For purposes of this Final Order consistent with the requirements of Sections 604.21(7) and (8), Florida Statutes, the ALJ’s recommendation is modified to include that payment shall be made within fifteen (15) days after this Final Order is adopted. In the event Respondent fails to pay Petitioner $176,869.20 within fifteen (15) days of the Final Order, Lincoln General Insurance Company, as Surety for Respondent, is hereby ordered to provide payment under the conditions and provisions of the Bond to CHARLES H. BRONSON, COMMISSIONER OF AGRICULTURE AND CONSUMER SERVICES, as Obligee on the Bond. The Department will notify the Surety in the event it (the Surety) is required to pay. This Order is final and effective on the date filed with the Agency Clerk of the Department. Any party to these proceedings adversely affected by this Final Order is entitled to seek review of this Final Order pursuant to Section 120.68, Florida Statutes (2002) and Rule 9.110, Florida Rules of Appellate Procedure (2003). Review proceedings must be instituted by filing a petition or notice of appeal with the Agency Clerk, 5" Floor, Mayo Building, Tallahassee, FL 32399-0800. A copy of the petition for review or notice of appeal, accompanied by the filing fees prescribed by law must also be filed with the appropriate District Court of Appeal within thirty (30) days of the date this Final Order was filed with the Agency Clerk. = DONE AND ORDERED this27_ day of Frrnach , 2010. TERRY L.’RHODES Assistant Commissioner of Agriculture WA. Filed with Agency Clerk this”? _ day of Bel , 2010. Agency Clerk COPIES FURNISHED TO: Judge Carolyn S. Holifield Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (Certified Receipt No. 7160 3901 9848 8028 7649) Mr. Glenn C. Thomason, Registered Agent American Growers, Inc. P. O. Box 1207 Loxahatchee, FL 33470 (Certified Receipt No. 7160 3901 9848 8028 7656) Ms. Rene Herder, Surety Bond Claims Lincoln General Insurance Company 4902 Eisenhower Blvd., Suite 155 Tampa, FL 33634 (Certified Receipt No. 7160 3901 9848 8028 7663) Mr. John Northrop, Surety Bond Claims Lincoln General Insurance Company 4902 Eisenhower Blvd., Suite 155 Tampa, FL 33634 (Certified Receipt No. 7160 3901 9848 8028 9230) Gregg E. Hutt, Attorney for Petitioner Dixie Growers, Inc. TRENAM, KEMKER, SCHARF, BARKIN, FRYE, O’NEILL & MULLIS, P.A. 101 East Kennedy Boulevard, Suite 2700 P. O. Box 1102 Tampa, FL 33601-1102 (Certified Receipt No. 7160 3901 9848 8028 9247) Ms. Linda Terry Lawton, Vice President Dixie Growers, Inc. P. O. Box 1686 Plant City, FL 33564-1686 (Certified Receipt No. 7160 3901 9848 8028 9254) Steven Hall, Attorney Florida Department of Agriculture and Consumer Services, Suite 520 Mayo Building, M-11 Tallahassee, FL 32399-0800 Mr. Mark Moritz and Mr. Brad Robson, Field Representatives
Findings Of Fact Respondent, Larry K. Sechrest, was at all times relevant to the charges contained in the Administrative Complaint, licensed as limited surety agent in the State of Florida representing Allied Fidelity Insurance Company ("Allied"). In February, 1982, Respondent's accounts with Allied were audited by their representative at which time it was discovered that Respondent executed but did not report 202 powers of attorney. The aforementioned powers represented $11,464.51 in premiums due Allied, and an additional $5,732 due the buildup fund. On March 4, 1982, Allied demanded that the Respondent remit to them these premiums and buildup fund payments and account for and return the missing powers of attorney. Respondent had failed to comply with Allied's demands as of the date this Administrative Complaint was filed by Petitioner (July 20, 1982). Respondent subsequently offered to repay Allied at the rate of $1,000 per month, but this was refused. At the final hearing on February 16, 1983, Respondent offered to repay the total amount due within 30 days. On April 29, 1981, Respondent attempted to post a ne exeat bond in the amount of $25,000 for Douglas R. Valentine of Manatee County, Florida, based on power of attorney number FL2800913 issued by Allied. Respondent had not been given authority by Allied to post ne exeat bonds. Power of attorney number FL2800913 was by its language to be issued for appearance bonds only.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order finding Respondent guilty of violating Subsections 648.45(1)(d), (h) and (j), Florida Statutes (1981), as charged in Count I of the Administrative Complaint, and suspending his limited surety agent's license for one year; provided, however, that such license shall not be reinstated until Respondent has made restitution to the Allied Fidelity Insurance Company. DONE and ENTERED this 20th day of May, 1983, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 20th day of May, 1983. COPIES FURNISHED: Clark R. Jennings, Esquire Department of Insurance The Capitol Tallahassee, Florida 32301 Jerry Surfus, Esquire 150 East Avenue, South Sarasota, Florida 33577 The Honorable Bill Gunter Insurance Commissioner Department of Insurance The Capitol Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF INSURANCE AND TREASURER IN THE MATTER OF LARRY K. SECHREST Revocation of License and Case No. 82-L-162J Eligibility for Licensure DOAH Case No. 82-2617 Limited Surety Agent / ORDER REVOKING RESPONDENT'S LICENSES AND ELIGIBILITY TO HOLD LICENSES THIS MATTER came on to be considered upon the transcript of record of hearing held on February 16, 1983, in Sarasota, Florida, and the Report, Findings, Conclusions and Recommendations of the Hearing Examiner dated May 20, 1983. Upon consideration thereof and being otherwise fully advised in the premises, it is ORDERED: The Findings of Fact of the Hearing Examiner are adopted. The Conclusions of Law of the Hearing Examiner are adopted. The Recommendation of the Hearing Examiner is rejected for the following reasons: Section 648.49, Florida Statutes prohibits the establishment of a period of suspension in excess of one (1) year. The Department lacks the authority to condition any Order upon financial restitution by a Respondent to any aggrieved party listed in an Administrative Complaint. Revocation of license and eligibility for licensure is an appropriate remedy under the statutory authority cited in the Administrative Complaint, and the Hearing Officer's Conclusions of Law. All licenses of the Respondent, LARRY K. SECHREST, heretofore issued within the purview of the Florida Department of Insurance and eligibility to hold said licenses be, and the same are hereby revoked. DONE and ORDERED at Tallahassee, Florida, this 28th day of June , 1983. BILL GUNTER Insurance Commissioner and Treasurer WILLIAM D. RUBIN Assistant Insurance Commissioner and Treasurer COPIES FURNISHED: Jerry Surfus, Esquire 150 East Avenue, South Sarasota, Florida 33577 Clark R. Jennings, Esquire Department of Insurance 413-B Larson Building Tallahassee, Florida 32301
The Issue Whether the Respondent's license as a limited surety agent should be suspended, revoked or otherwise disciplined based upon the allegations set forth in the Administrative Complaint.
Findings Of Fact Background At all times material to these proceedings, Respondent Harris was licensed as a limited surety agent and continues to be eligible for licensure and appointment in Florida. On June 2, 1988, Respondent executed a bail bond agreement with Indiana Lumbermen's Mutual Insurance Company (Indiana Lumbermen's) as the insurer of the surety bonds, Underwriters Surety, Inc. (Underwriters) as its agent, and Jim Fowler, Jr. d/b/a Fowler Enterprises (Fowler) as its representative indemnitor and supervising representative. Under the terms of the agreement, Indiana Lumbermen's agreed to act as surety on bail bonds solicited and signed in its name by Respondent Harris. In turn, he agreed to charge, collect and remit all bond premiums through Fowler, who has a separate agreement with Indiana Lumbermen's and Underwriters regarding those duties. Additionally, Respondent agreed to hold Indiana Lumbermen's, Underwriters, and Fowler harmless for all bond forfeitures and court costs expended by any of them for bail bonds issued in Indiana Lumbermen's name by him. Because Fowler was also required to indemnify Indiana Lumbermen's and Underwriters against bond forfeitures and court costs resulting from bonds issued by Respondent Harris, a $10,000 mortgage was placed against Respondent's home as collateral for such losses by Fowler. Indiana Lumbermen's and Underwriters also required Respondent Harris to place two per cent of the face amount of each bond in an indemnity fund. The agreement states that after each indemnification is finally determined and satisfied, the remaining portion of the indemnity fund will be delivered to the Respondent or to Fowler. Fowler and the Respondent agreed that when the indemnity fund built up to $25,000.00 in reserved funds, Fowler would release the mortgage. Respondent could also request that the amount of money he was required to place into the indemnity fund for subsequent bond executions be reduced to one per cent of the face of the bonds. After the bail bond agreement was executed by all parties and the Respondent's wife in June of 1988, the bail bonds service office was opened in Tampa, Hillsborough County, Florida. Bond Forfeitures On December 12, 1988, two final judgments were entered in Hillsborough County which required the forfeiture of Surety Bond Power No. BB1-168638 and No. BB1-168639 due to the failure of Charles Douglas, Jr., to appear to answer criminal charges for which the bonds had been issued. Each bond was in the principal amount of $1,000.00 and was issued by Respondent Harris as Attorney- In-Fact for Indiana Lumbermen's. The sum of the two judgments was $2,000.00 and $169.00 and court costs. Warren H. Dawson, attorney for the Defendant, motioned the court to vacate the judgments on January 24, 1989. Instead vacating the judgments, the court stayed the enforcement of the judgments until April 26, 1989. At the chose of the time period, Charles Douglas, Jr., was not located, ad the bond funds were forfeited to the State of Florida for the use and benefit of Hillsborough County. These funds, totalling 2,000.00, were paid to the Clerk of Court by Harry Hamner Enterprises on May 18, 1989, as agent for Fowler. Court costs of $84.50 were paid by Respondent Harris, and $84.50 in court costs remain outstanding. The funds paid to the Clerk of Court on behalf of Fowler were issued to a low Fowler to comply with the bail bond agreement as super representative. Respondent Harris is still obligated to indemnify Fowler for the payment. On December 3, 1990, a remittance of $1,000.00 was given to Fowler because Defendant had been located. As this hearing took place only three days later, it is unknown if a check for the other S1,000.00 was forthcoming to Fowler. If the failure to remit the owner $1,000.00 was an oversight, it could be easily corrected by the Clerk of Court as the location of the Defendant would allow we return of these funds as well. On June 4, 1989, a final judgment was entered in Hillsborough County which required the forfeiture of Surety Bond Power No. BB1-200214 due to the failure of Ivan R. Jacob to appear in court to answer the criminal charges for which the bond had been issued. The bond was in the principal amount of $1,000.00 and was issued by Respondent Harris as Attorney-In-Fact for Indiana Lumbermen's. The judgment was for $1,000.00 and $84.50 in court costs. Warren H. Dawson, attorney for the Defendant, motioned the court to vacate and set aside the judgment and costs on July 12, 1989. The motion was granted on August 24, 1989, except that the payment of $84.50 in court costs was still required. The outstanding court costs of $84.50 were paid by Rubin C. Bazarte, Bail Bonds, on behalf of Indiana Lumbermen's on August 28, 1989. Respondent Harris has not indemnified Indiana Lumbermen's for those funds expended to pay the court costs as required by the bail bond agreement. He is still obligated to do so. On June 14, 1989, a final judgment was entered in Hillsborough County which required the forfeiture of Surety Bond Power No. BB1-197205 due to the failure of William A. Evans to appear to answer criminal charges for which the bond had been issued. The principal amount of the bond was $500.00. It was issued by Respondent Harris as Attorney-In-Fact for Indiana Lumbermen's. The sum of the judgment was $500.00 with court costs of $84.50. The judgment and court costs were satisfied by Rubin C. Bazarte, Bail Bonds, on behalf of Indiana Lumbermen's on August 28, 1939. Respondent Harris has not indemnified Indiana Lumbermen's for the funds expended, as required by the bail bond agreement. On June 21, 1989, a final judgment was entered in Hillsborough County which required the forfeiture of Surety Bond Power No. BB1-197204 due to the failure of Williams A. Evans, Jr., to answer criminal charges for which the bond had been issued. The principal amount of the bond was $500.00, and it was issued by Respondent Harris as Attorney-In-Fact for Indiana Lumbermen's. The sum of the judgment was $500.00 plus court costs of $84.50. On August 28, 1989, the judgment and court costs were satisfied by Rubin C. Bazarte, Bail Bonds, on behalf of Indiana Lumbermen's. Respondent Harris has not indemnified Indiana Lumbermen's for the funds expended, as required by the bail bond agreement. Respondent has not received funds to pay for the bond forfeitures from any source. Bond Net Premiums As part of his duties regarding the issuance of bonds for Indiana Lumbermen's, Respondent was required to regularly report the execution of bail bonds to Fowler and Underwriters. The net premiums were to be paid to either of these agents for Indiana Lumbermen's. According to the business records maintained by Fowler, the Respondent failed to remit the required net premiums owed with reports numbered 35, 36, 37 and 38. The amount of money owed for these premiums is $2,370.00. For April 7, 1989, Rosettia Jacobs paid Respondent $1,000.00 to obtain two bonds for the pretrial release of her son, Andre Hudson. Two bonds, with a face value of $5,000.00 each were executed by Respondent that day. The net premiums for two bonds with a face value of $10,000.00 were listed on bail bond execution report number 36, but the net premium was never paid to Fowler or Underwriters from the cash received from Rosettia Jacobs for that purpose. In July 1989, Melvin Rolfe met with Respondent's son, who represented he could accept funds on behalf of his father for the bail bond business. Melvin Rolfe gave Respondent's son $250.00 for a bail bond in order to obtain the pretrial release of his brother, Joseph Rolfe. Of these funds, $100.00 was for payment of the gross premium and $150.00 was collateral. The bond for $1,000.00 was executed by Respondent on August 1, 1989. The collateral given to Respondent's son was not noted on bail bond execution report number 35. The net premium for the $1,000.00 bond for Joseph Rolfe was not sent to Fowler or Underwriters from the cash delivered by Melvin Rolfe for that purpose. On August 1, 1989, Melvin Hamilton gave the Respondent $250.00 for two bonds in order to obtain the pretrial release of his brother, Mark Hamilton. One bond premium was $100.00 and the other bond premium was $50.00. The additional $100.00 was collateral. Bonds with the total face value of $1,250.00 were executed by Respondent on August 1, 1989. The collateral was not noted on the bail bond execution report number 35, and the net premiums were not sent to Fowler or Underwriters from the funds delivered by Melvin Hamilton for that purpose. On August 4, 1989, Charles Rodriguez paid $350.00 for bond premiums to Respondent in order to obtain the pretrial release of his wife, Tina Dunn. The total gross premium amount was $450.00. Respondent extended credit to Charles Rodriguez and issued three bonds with the total face value of $4,500.00 on August 4, 1989. Although the bonds were issued and noted on bail bond execution report 35, the net premiums were not sent to Fowler or Underwriters from the funds delivered by Charles Rodriguez for that purpose. On September 13, 1989, Fowler, as supervising representative for Indiana Lumbermen's and Underwriters, sent a formal demand to Respondent for the $2,370.00 due for premiums not included with reports numbered 35-38. Respondent has failed to pay any of the funds actually received for those premiums to Fowler, Underwriters, or Lumbermen's. Mitigation Respondent has made some attempts to locate defendants whose bonds have been forfeited to the state. Respondent extended credit to some people seeking bail bonds so he never collected some of the money owed to Indiana Lumbermen's for premiums.
Recommendation Based upon the foregoing, which demonstrates that Respondent misappropriated net bond premiums owed the insurer on four occasions between April and early August 1989, it is RECOMMENDED: The limited surety license of Rudolph Harris, Respondent, be suspended for one year, pursuant to Section 648.49(1), Florida Statutes [1987]. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of February 1991. VERONICA E. DONNELLY 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 22nd day of February, 1991. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-4689 Petitioner's proposed finding of fact are addressed as follows: Accepted. See HO #1. Accepted. See HO #1. Rejected. Contrary to fact. See #18-#23. Also, irrelevant as to charging document which claimed Respondent misappropriated bond forfeiture funds. Rejected. Irrelevant as to charging document which claim Respondent misappropriated forfeiture funds. See HO $14-#17. Rejected. Contrary to fact. See HO #8-#13. Accepted. See HO #35. COPIES FURNISHED: Gordon T. Nicol, Esquire Department of Insurance 412 Larson Building Tallahassee, FL 32399-0300 Rudolph Harris 812 E. Henderson Avenue Tampa, FL 33602 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-0300 Bill O'Neil General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, FL 32399-0300
The Issue The issue is whether Smallwood Design Group/Smallwood Landscape, Inc. (Respondent), and its surety, Hartford Fire Insurance Company, owe funds to American Farms, LLC, (Petitioner) for the sale of agricultural products.
Findings Of Fact At all times material to this case, the Petitioner was a licensed agricultural producer in the State of Florida. At all times material to this case, the Respondent was a licensed agricultural dealer in the State of Florida. From May 30 through October 27, 2006, the Respondent purchased agricultural products, specifically foliage plants, from the Petitioner. All charges for the plants sold by the Petitioner to the Respondent were billed on invoices that were sent to the Respondent by the Petitioner. The quantities and prices of the delivered plants were clearly identified on the invoices. The Respondent has failed to pay invoices totaling $11,777.18 that were sent by the Petitioner to the Respondent. There is no evidence that any of the charges were disputed by the Respondent at the time the sales were invoiced. There is no evidence that any of the plants sold by the Petitioner to the Respondent were unsatisfactory in terms of price or quality. As required by law, the Respondent had in place an Agricultural Products Dealer Bond dated December 9, 2005. The bond was executed by Joann Smallwood as "principal" for the Respondent. The bond was effective for one year and included the time period relevant to this proceeding. In correspondence filed during the course of this proceeding, the Respondent asserted that Joann Smallwood sold the business to another owner during the time relevant to this proceeding. The evidence established that at all times material to this case, Joann Smallwood acted as the owner/manager of the business. The plants sold by the Petitioner to the Respondent were picked up by trucks with Smallwood logos and signage. There was no evidence that the Petitioner was ever advised during the time the Respondent was purchasing plants from the Petitioner that Joann Smallwood had sold the business or that the Respondent would not be liable for payment of products purchased from the Petitioner.
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 directing that the Respondent pay the total of $11,777.18 to the Petitioner (plus the filing fee paid by the Petitioner to the DACS) and establishing such other procedures as are necessary to provide for satisfaction of the debt. DONE AND ENTERED this 3rd day of August, 2007, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 3rd day of August, 2007.
The Issue The issue is whether Respondent is guilty of unlawfully employing a felon in the conduct of the bail bond business, in violation of Sections 648.44(8)(b) and 648.45(3), Florida Statutes, and Rule 4-221.001, Florida Administrative Code. If so, an additional issue is what penalty should be imposed.
Findings Of Fact At all material times, Respondent has been a licensed limited surety agent, holding license number A025071. At all material times, Respondent has been the president and owner of Dolly Bolding Bail Bonds, Inc. (Dolly Bolding), which is located at 108 South Armenia Avenue in Tampa. In July 1999, Carver Taitt visited the office of Dolly Bolding to obtain a bail bond for his son, who had been arrested on drug charges. The judge had set bond at $20,000, so the bail bond premium was $2000. Mr. Taitt spoke with Respondent and said that he did not have the entire $2000; he had only $1000. Respondent declined to extend Mr. Taitt credit for the $1000 balance. Mr. Taitt then offered $1500, and Respondent agreed to allow Mr. Taitt to owe Dolly Bolding the remaining $500. At this time, Mr. Taitt saw Frank Cueto, Sr., also known as “Paunch,” in the office of Dolly Bolding. Mr. Taitt also told Mr. Cueto that Mr. Taitt would pay the remaining $500. Mr. Taitt had obtained bonds in the past five years from Dolly Bolding. During this time, he had often seen Respondent and Mr. Cueto in the office, and Mr. Taitt was acquainted with both of them from these past purchases of bonds. Mr. Cueto contacted Mr. Taitt several times and asked him to pay the remaining $500. At one point, Mr. Cueto threatened that Dolly Bolding would revoke the bond if Mr. Taitt did not immediately pay the remaining $500, especially because he was about to take a trip whose cost would approximate the outstanding balance. Mr. Taitt paid the $500 on the day prior to his son’s court appearance. When he complained to Mr. Cueto that he should have trusted Mr. Taitt based on their past relationship, Mr. Cueto replied that money is money. Mr. Taitt’s son missed his court appearance, and the judge ordered the forfeiture of the bond. The judge later entered an order reinstating bail, but this order did not reinstate the obligation previously undertaken under the bond by Dolly Bonding or its principal. Consequently, Mr. Taitt telephoned Dolly Bonding and requested a reissuance of the bond. Told that Respondent was unavailable, Mr. Taitt spoke with Mr. Cueto. Mr. Cueto told Mr. Taitt that no surety company would agree to reissue the bond. In the meantime, the assistant public defender obtained an order from the judge for the administrative release of Mr. Taitt’s son. By this means, the jail released Mr. Taitt’s son immediately without posting any bond. The facts contained in paragraphs 4-8 above are derived from Mr. Taitt’s testimony. This constitutes some, but not all, of Mr. Taitt’s testimony. The Administrative Law Judge has not credited much of the remainder of the testimony, including, most significantly, Mr. Taitt’s testimony that Mr. Cueto was always in the office of Dolly Bolding and that he seemed to run the bonding business. Mr. Taitt was angered by Mr. Cueto’s involvement in this transaction. Much of his uncredited testimony lacked the detail of his credited testimony. As for the credited testimony, Respondent, who was not always present in the office, was not able to rebut the more-detailed portion of Mr. Taitt’s description of Mr. Cueto’s handling of the transaction. Mr. Cueto did not testify, although he is engaged to be married to Respondent and lives with her. However, Respondent’s testimony is credited over Mr. Taitt’s vague, conclusory testimony as to the business relationship between Respondent and Mr. Cueto. Thus, consistent with Respondent’s testimony, the Administrative Law Judge finds that Mr. Cueto has not exercised any dominion over Dolly Bolding or Respondent. Respondent is an articulate, intelligent individual, who is a college graduate. She makes all bonding decisions for Dolly Bolding. Mr. Cueto is not an employee, officer, or shareholder of Dolly Bolding, and Respondent is not an employee, officer, or shareholder in any company owned by Mr. Cueto. He maintains an office in the same building as Dolly Bolding’s office, and he is present in the Dolly Bolding office on a frequent basis. At least in the case of the bond for Mr. Taitt’s son, Mr. Cueto has involved himself to some extent in Respondent’s bonding business. It is entirely possible that Mr. Cueto’s involvement in this bonding transaction is isolated, as he may have been inclined to involve himself to an unusual degree in a bonding matter due to the number of years that Mr. Cueto has known Mr. Taitt. It is even more likely that Mr. Cueto’s involvement in this bonding transaction was without the knowledge of Respondent. Mr. Cueto is a felon. He was convicted in 1994 of unlawful engaging in the bail bond business and misleading advertising. Mr. Cueto was formerly a licensed limited surety agent, but Petitioner suspended his license sometime ago. Respondent was at all times aware of these aspects of Mr. Cueto's background. In November 1991, Petitioner commenced an administrative proceeding against Respondent, as a licensed limited surety agent, for allowing an unlicensed person to participate in the bail bond business. By Settlement Stipulation for Consent Order and Consent Order, both signed in April 1992, Respondent agreed, and was ordered, to pay an administrative fine of $2000.
Recommendation It is RECOMMENDED that the Department of Insurance dismiss the Second Amended Administrative Complaint against Respondent. DONE AND ENTERED this 6th day of April, 2001, in Tallahassee, Leon County, Florida. ___________________________________ ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 2001. COPIES FURNISHED: Honorable Tom Gallagher Commissioner of Insurance and Treasurer The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307 Anoush A. Arakalian Division of Legal Services Department of Insurance 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Joseph R. Fritz Joseph R. Fritz, P.A. 4204 North Nebraska Avenue Tampa, Florida 33602
