Findings Of Fact Mr. Patterson is currently eligible for licensure and is licensed in this state as a limited surety agent (bail bondsman). At all times material to the Administrative Complaint, Mr. Patterson was eligible for licensure and was licensed in Florida as a limited surety agent (bail bondsman) with Crews Bonding Agency located in Jacksonville, Duval County, Florida. As such, he was a full-time employee of the Crews Bonding Agency and worked the 4:30 p.m. to 8:00 a.m., or night shift, each night. Mr. Patterson was the only licensed bail bondsman on this shift at the Crews Bonding Agency. Ralph Bunch Collins was also a full-time employee of Crews Bonding Agency at all times material, and at all times material, Mr. Collins worked the night shift with Mr. Patterson. Mr. Collins was recognized by Mr. Patterson and his employer as an administrative assistant whose job entailed clerical duties with regard to the bonding process. Mr. Patterson and Mr. Collins worked as a team. Mr. Collins is not a limited surety agent, bail bondsman, runner, or permittee under Chapter 648, F.S. At all times material, Jerelyn Rodriguez, ne' Langtree, was licensed in Florida as a limited surety agent (bail bondsman) with Crews Bonding Agency. She, also, was a full-time employee of that agency and was its designated office manager. Mrs. Rodriquez worked the hours of 8:00 a.m. to 4:30 p.m. daily with an administrative assistant named Mrs. Cook, and together Rodriquez and Cook constituted the Crews Bonding Agency's day shift team. The 1983 version of the statute under which Mr. Patterson is charged in the Administrative Complaint read as follows: 648.441 Furnishing supplies to an unlicensed bail bondsmen prohibited: civil liability and penalty.-- No insurer, bail bondsman, runner, or permittee under this chapter shall furnish to any person any blank forms, applications, stationery, or other supplies to be used in soliciting, negotiating, or effecting bail bonds until such person has received from the department a license to act as a bail bondsman and has duly qualified as such. Any insurer, licensee, or permittee who furnishes to any bail bondsman or other person not named or appointed by `the insurer represented any of the supplies mentioned in subsection (1) and accepts any basil bond business from or writes any bail `bond business for such bail bondsman, person, or agency shall be subject to civil liability to any insured of such insurer to thee same extent and in the same manner as if such bail bondsman or other person had been appointed, licensed, or authorized by the insurer, general agent, or bail bondsman to act in its or his behalf by the department. [Emphasis supplied] On March 27, 1984 a Consent Order was entered in the Circuit Court in and for Duval County, Florida, in the case styled, Jack I. Etheridge and F.G.C. Bonding and Insurance Corporation v. State of Florida and State of Florida Department of Insurance, Case No. 82-10537. That Consent Order provided, in pertinent part, as follows: 4. Florida statute 648.441(1) likewise must be given a liberal and common sense application in order to preserve its constitutionality. It is the intent of the Legislature, as interpreted by this Court that said subsection is designed to prohibit licensed bail bondsmen from allowing non- licensed persons to actually conduct a (sic) legitimate and licensed activities of a licensed bail bondsman. Therefore this Court finds that it is a constitutionally permissable (sic) legislative act to prevent licensed person (sic) from providing non- licensed persons with forms and supplies of the trade that would permit the non-licensed persons to violate the law. However, this does not preclude clerical activities by non- licensed persons under the direct supervision of a licensed person to the extent that it is consistent with the general intent of said section. (Emphasis supplied) [Patterson Exhibit 1] The wife of Jack I. Etheridge, who was a plaintiff in the foregoing civil lawsuit, was an owner of the Crews Bonding Agency at all times material to the instant administrative proceeding. The foregoing Circuit Court Consent Order to which DOI was a party is the only relevant interpretation by a court of competent jurisdiction of Section 648.441 F.S. which either party hereto or the undersigned has been able to discover. DOI put on no expert evidence of agency construction of the statute either formally by rule or informally by policy. Subsequent to that Circuit Court Consent Order, the statute interpreted therein [see FOF 5, supra] was amended to add subsection (3), as follows: Any person who violates this section is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. All three statutory subsections were in effect at all times material to the administrative charges against' Mr. Patterson. During the night shift of New Year's Eve, December 31, 1988, Susan Miller a/k/a Sharon Miller, who was then the wife of James Edward Miller, contacted the Crews Bonding Agency by telephone and relayed certain necessary information to Ralph Collins as a predicate to securing a bond to get her husband out of the Duval County Jail. In turn, Mr. Collins called the jail and received basic information for making out the necessary bonding papers. Mrs. Miller arrived at the bonding agency and Mr. Collins prepared certain paperwork for her signature, that of her husband, and that of the Mr. Patterson as bail bondsman. It is the unrefuted testimony of Mr. Patterson, Mr. Collins, Jerelyn Rodriquez, and Gilbert Clark that in doing so, Mr. Collins was conforming to the standard operating procedure of the Crews Bonding Agency and the custom in the bonding trade at least as far as that trade has been practiced within Duval County, Florida, since the entry of the March 27, 1984 Consent Order. Patterson Exhibit 2 and the testimony of Correctional Officer Larry Wooten established that, provided the licensed bondsman presents the bond and personally receives the prisoner into his custody, the foregoing clerical practice and procedure has been acquiesced-in by a published policy of the Duval County Sheriff's Office and by county jail personnel, of which Mr. Wooten is one. There was unrefuted testimony that without such clerical help, a licensed bondsman could not function 24 hours a day, as is common in the trade. It is also the unrefuted testimony of Mr. Patterson, Mr. Collins, and Mrs. Rodriquez that at all times material to the Miller transaction, Mr. Collins was subject to the supervision of Mr. Patterson, that Mr. Patterson had the absolute right to alter any document prepared by Mr. Collins prior to signing the Miller bond, and that Mr. Patterson ultimately could have rejected underwriting Mr. Miller's bond if, after Mr. Patterson's review, the documents Mr. Collins had prepared did not conform to the insurance law, rules, or standards to which Mr. Patterson, as a licensee, was bound to conform. The foregoing testimony is further supported by the testimony of Gilbert Clark. Mr. Clark is a licensed bail bondsman who is not now and never has been associated with the Crews Bonding Agency. He testified that Mr. Patterson could ultimately have refused to place the Miller bond even if Mr. Patterson's only dissatisfaction upon his review of the documents prepared by Mr. Collins had been the sufficiency of the collateral or premium provided by the Millers. With regard to the Miller transaction, Mr. Collins prepared the Indemnity Agreement (DOI Exhibit 2e) for signature by Mr. Miller's wife, which Mr. Collins notarized with certificate, seal, and stamp. Collins prepared a Promissory Note (DOI Exhibit 2f) and signed on the line provided for a witness to Mrs. Miller's signature but without applying his notary certificate, seal, or stamp. Collins prepared a Premium Receipt (DOI Exhibit 2g) and signed on the line acknowledging that the premium had been "received by" him in the form of a check from Mr. and Mrs. Miller. The nature of the Premium Receipt and the Collateral Receipt does not necessarily require the Millers' signatures, but Mr. Collins testified that his own signature on the Premium Receipt was meant to signify that he had witnessed signatures and that he had signed it as a notary but that he did not affix a notary certificate, seal, and stamp because he saw no reason for those formalities. Because of the requirements of Chapter 117 F.S. governing notaries public, because the document speaks for itself, and because Mr. Collins testified that he, in fact, received the premium, his testimony that he signed the Premium Receipt for the Miller transaction only as a notary or witness is not credible, particularly since the exhibit (DOI Exhibit 2g) does not bear the Millers' signatures. Mr. Collins prepared the Collateral Receipt (also DOI Exhibit 2g) and received the collateral, signifying same by his signature. (TR 40-41). However, Mr. Patterson signed on the Miller bond and went through all the bond papers, including the foregoing, with Mr. Miller after Mr. Patterson personally physically obtained Mr. Miller's release from jail. On July 7, 1989, Henry A. Robinson went to Crews Bonding Agency in an effort to bond his son, Henry Steve Robinson, out of the Duval County Jail. All of the father's negotiations were with Mrs. Rodriquez. The father did not testify. At all times material to the Robinson transaction, both Mrs. Cook and Mr. Collins had signs on their respective desks, proclaiming them to be administrative assistants, and a sign on Mr. Patterson's desk proclaimed him to be a bail bondsman. When Mr. Patterson and Mr. Collins arrived at Crews Bonding Agency for the July 7, 1989 night shift, some paperwork had already been prepared by Mrs. Rodriquez and others. Mrs. Rodriquez had already reviewed all the papers prepared by someone else, and Mrs. Rodriquez had tentatively committed to underwriting the bond on Henry Steve Robinson. Mr. Patterson did not thereafter "second guess" Mrs. Rodriquez's initial work or judgment despite his absolute right to reject the bond for all the reasons aforesaid in FOF 12. Some further Robinson transaction paperwork was prepared by Mr. Collins after he came on duty. The nature of several of these documents did not require either the signature of the father, the mother, or the son or the notarizing thereof, but the evidence indicates that Mr. Collins thought some of them did. Premium Receipt 127003 (DOI Exhibit 4f, apparently one of two such receipts) and the Collateral Receipt (DOI Exhibit 4b) for this transaction were signed by Mr. Collins on the "received by" lines. He testified that he signed these only as a Crews employee, i.e., a clerk administrative assistant, and as a notary but without affixing his notarial seal. Collins testified that he signed as a witness for the father's signature on the witness line as a Crews employee for the Contingency Promissory Note (DOI Exhibit 4c, TR 48-50), that he did not notarize the note initially when the senior Mr. Robinson signed it in his presence because arrangements were made for the senior Mr. Robinson's convenience to allow Mrs. Robinson to sign the following day, and that the next day, Mr. Collins just witnessed on the other side of that document. However, the documentary evidence (DOI Exhibit 4c) is clear that Mrs. Robinson (the mother) never signed the Contingency Promissory Note. Mr. Collins testified that he signed as a Crews Bonding Agency employee and then notarized with a certificate, seal, and stamp the Indemnity Agreement to the effect that it had been signed by Mr. Robinson's father and mother when in fact the mother never signed that document. (TR 52-56, DOI 4e). Due to the provisions of Chapter 117 F.S., the discrepancy between the exhibits and the testimony, and the vacillation of Mr. Collins in giving his oral testimony, it is found that contrary to Mr. Collins' oral testimony, he was confused or uninformed as to his actual function with regard to the Robinson transaction. However, Mr. Patterson reviewed all the Robinson papers and documents and signed the General Appearance Bond as surety and as attorney-in-fact and an agent of Crews Bonding Agency. Mr. Patterson also personally effectuated Henry Steve Robinson's release from jail on July 7, 1989. Henry Steve Robinson (the son) had been bonded out of the Duval County Jail by the team of Patterson and Collins of the Crews Bonding Agency on at least two occasions, and due to Mr. Robinson's confusion of dates, his testimony concerning exactly what papers he went over with Mr. Patterson or anyone else on July 7, 1989 was somewhat vague. However, he was very clear on some points: Mr. Collins never said he was a bail bondsman, it was Mr. Patterson who signed Robinson out of jail each time, and Robinson signed papers in the bonding agency office each time. Robinson believed that Mr. Patterson was the person who explained all the papers to him in Collins' presence on the date in question, but could not be sure. Mr. Collins and Mr. Patterson asserted that as of the July 11, 1990 formal hearing, Crews Bonding Agency clerical personnel are no longer permitted to sign premium and collateral receipts. This instruction was given in anticipation of amendments to Section 648.441 F.S. which were due to go into effect October 1, 1990. Although Mrs. Miller did not testify, the evidence as a whole from other witnesses supports the reasonable inference that this case arose partly because she complained to DOI when Mr. Collins and other Crews Bonding Agency employees refused to summarily reincarcerate her husband upon her oral complaints of domestic problems. No finding has been made concerning what impression of Mr. Collins was formed by Mrs. Miller or concerning the state of Mrs. Miller's mind because the evidence presented on those issues was speculative and not the type of hearsay which would explain or supplement direct and probative evidence. Neither Mr. Miller or Mr. Henry Steve Robinson appeared to have any complaints with the bonding process or participants.
Recommendation DOAH Case No. 90-0406 Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance and Treasurer enter a Final Order dismissing the Administrative Complaint. DOAH Case No. 90-0584 Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance and `Treasurer enter a Final Order granting Mr. Patterson's application for a resident license to represent Amwest Surety Insurance Company as a limited surety agent (bail bondsman). DONE and ENTERED this 17th day of October, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 17th day of October, 1990.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Robert Mitchell Thomas, was licensed and eligible for licensure and appointment as a limited surety agent (bail bondsman) by petitioner, Department of Insurance and Treasurer (Department). When the events herein occurred, respondent was employed as manager/agent of the Fort Myers office of Hamilton Bonding, Inc. (Hamilton). At hearing respondent represented he has been licensed as a bail bondsman for approximately fifteen years. The facts which underlie this dispute are as follows. On November 16, 1989, Debra Rahn, a resident of Cape Coral, Florida and the wife of Richard A. Rahn, had Richard arrested for possession of a controlled substance and/or narcotic paraphanelia. She did this so that Richard could be placed in a drug treatment program. His bond was thereafter set in the amount of $2500. In order to get Richard released from jail and placed in the drug program, Debra contacted respondent at Hamilton's Fort Myers office and, after conferring with respondent, agreed to enter into an indemnity agreement with Thomas wherein respondent, acting as agent for Hamilton, agreed to post a $2500 surety bond with the Lee County Sheriff's Department for the release of Richard. In return for this service, Debra paid respondent a premium in the amount of $250. In addition to paying the foregoing sum of money, Debra was asked to sign a blank security agreement, notice of lien and power of attorney, and to deliver to respondent the title to her 1983 Chevrolet Chevette. After doing so, she received a receipt for the premium and automobile title. Finally, Debra was told there would be no other fees for this service. A few weeks later, Debra decided she wanted off of the bond because Richard was not responding favorably to the drug treatment. She accordingly telephoned Thomas who offered her several alternatives. One alternative suggested by respondent was for Debra to file new charges against Richard so that he would be arrested and shown to be in violation of the terms of the bond. Acting on respondent's advice, in early January 1990 Debra filed additional unspecified charges against her husband. On January 10, 1990, Ronald W. Millette, a licensed bail bondsman who had worked for respondent on previous occasions, was told by respondent that Debra wanted off of the bond and to pick up Richard and return him to the Lee County jail. He was paid a $50 fee for this service. That evening Millette went to Debra's house and advised her to go to respondent's office because Richard might seek retribution against her. Later on that evening, Millette apprehended Richard and carried him to respondent's office. Respondent and Millette then transported Richard to the jail. It may be reasonably inferred from the evidence that on a later date, the obligation of the surety on the bond was released by the court. In accordance with Millette's instructions, Debra went to respondent's office the evening of January 10 and was told by respondent that Richard was handcuffed in the next room. Whether this statement was accurate is not of record. In any event, respondent told Debra she must pay an additional $250 pick-up fee or he would not return her automobile title. This amount was derived by taking ten percent of the original $2500 bond. Respondent requested this fee even though there is no evidence that he forfeited any portion of Richard's bond or that the court ordered any fees. Debra replied she did not have the money but would return on Saturday to pay the money due. On a later undisclosed date, Debra's Chevette was "totaled" in an automobile accident. Because of this, she claimed she was unable to promptly pay the $250 fee. Even so, respondent continued to make demands for the money. The record does not show whether the automobile title was returned to Debra although Millette believes another employee in respondent's office did so at a later date. On May 29, 1990, respondent sent Debra a letter in which he again demanded payment of the $250 fee. However, based upon advice from a Department employee, he apologized to her for calling the fee a "pick-up fee" and instead characterized the charge as a "principal's apprehension fee" for expenses incurred in having Millette place Richard in custody on January 10. The record reflects that on June 10, 1990, Debra sent respondent a $10 check as partial payment on the demand but the check was never cashed. There is no evidence that respondent's license has ever been disciplined during his lengthy tenure as a bail bondsman.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsections 648.44(1)(g), 648.45(2)(d), (g), (j), (l), and 648.45(3)b) and (d), Florida Statutes (1989), and that his license be suspended for ten days and a $500 administrative fine be imposed. DONE and ENTERED this 22nd day of August, 1991, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 1991.
The Issue Whether Respondent's license as a limited surety agent should be revoked or the licensee otherwise disciplined for alleged violations of Chapter 648, Florida Statutes, and Chapter 4-1, Florida Administrative Code, as set forth in the Administrative Complaint dated October 16, 1979. In this proceeding, Petitioner seeks to take disciplinary action against Respondent for various alleged violations of Chapter 648, Florida Statutes, and Chapter 4-1, Florida Administrative Code, arising out of alleged irregularities in connection with a bonding transaction in 1978. Two witnesses testified for the Petitioner and the parties stipulated to the admission of seven documentary exhibits. The Respondent testified in his own behalf at the hearing.
Findings Of Fact Respondent Timothy Michael Paletti is currently licensed as a limited surety agent to represent Cotton Belt Insurance Company, Inc., at Orange Lake, Florida, and was so licensed during the periods alleged in the Administrative Complaint. (Petitioner's Exhibit 1, Stipulation) On November 23, 1978, Respondent executed an appearance bond in the Gilchrist County Circuit Court in the sum of $10,000 as agent of the surety, Cotton Belt Insurance Company, in behalf of Rodney D. Lovett, who was charged with robbery. Respondent did not attach either an affidavit or statement, as prescribed in Rule 4-1.14, Florida Administrative Code, to the bail bond at the time it was filed in the office of the Circuit Court clerk. It was not until January 31, 1979, that Respondent filed a statement concerning collateral security for the bond under Rule 4-1.141 in lieu of the affidavit required by Rule 4-1.14, F.A.C. Lovett's wife paid a $1,000 premium for the bond and his sister-in-law, Deborah Johnson, executed a demand note for $10,000, together with a mortgage deed on a dwelling which she owned in Deland, Florida, on November 23, 1978, as collateral security for the bond. During the transaction, Respondent provided Johnson with a business card bearing his Orange Lake telephone number. (Testimony of Johnson, Petitioner's Exhibits 2-4) On January 8, 1979, a Notice of Sentencing was issued by the Gilchrist County Circuit Court Clerk in Lovett's case for January 22, 1979 at Trenton, Florida. On January 13, Respondent contacted Lovett and Johnson by telephone at their respective homes and advised them of the date of the required court appearance. (Testimony of Respondent, Petitioner's Exhibit 5) During January 1979, Lovett and his wife talked to Johnson about the possibility of "leaving and not going to court." Johnson became concerned about these disclosures and attempted to reach Respondent at his Orange Lake telephone number. Numerous calls to that number on January 15th were unanswered. After unsuccessful attempts to reach Respondent through the Cotton Belt Insurance Company and at another telephone number provided by Petitioner, Respondent finally called Johnson's house on January 20, at which time Johnson and a friend, Barry S. Beatty, told Respondent about Lovett's statements concerning his intentions and requested that Respondent pick up Lovett and surrender him to court so the collateral security could be released. Respondent told Johnson that he would look into the matter. He then telephoned Lovett's attorney and the Lovett home, and was assured that everything was all right. (Testimony of Johnson, Beatty, Respondent) On January 22, 1979, Lovett failed to appear at court for sentencing and the bond was therefore declared to be forfeited. Respondent and law enforcement authorities there after made efforts to locate Lovett and he was eventually apprehended and sentenced to confinement. On July 2, 1979, the Gilchrist County Circuit Court ordered that the bond previously estreated be remitted less the cost expended by the State in apprehending the defendant in the amount of $500. The collateral security posted by Johnson is still outstanding due to a dispute over costs sought by Respondent. (Testimony of Johnson, Respondent, Petitioner's Exhibit 6-7) Respondent testified at the hearing that he felt he had made reasonable efforts to assure that Lovett would appear in court. Although Respondent moved his office in late January 1979, his office phone was in operation and his office was open during the week of January 15-22. (Testimony of Respondent)
Recommendation That the charges against Respondent Timothy Michael Paletti be DISMISSED. DONE and ORDERED this 9th day of July, 1980, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1980. COPIES FURNISHED: S. Strom Maxwell, Esquire Department of Insurance 428-A Larson Building Legal Division Tallahassee Florida 32301 Robert J. Costello, Esquire Bates and DeCarlis - Suite B 726 Northwest Eighth Avenue Gainesville, Florida 32601
The Issue The issue in this case is whether Petitioner, Sara Kaczmerek Schubert, should be licensed as a limited surety (bail bond) agent pursuant to Chapter 648, Florida Statutes.
Findings Of Fact The Parties. Respondent, the Department of Financial Services (hereinafter referred to as the "Department"), is the state agency responsible for, among other things, licensing of temporary bail bond agents and bail bond agents in the State of Florida. Chap. 648, Fla. Stat. In particular, the Department's Division of Agent and Agency Services, Bureau of Licensing, has been designated within the Department to review applications and make decisions thereon. Petitioner, Sara Kaczmerek Schubert, is an individual residing in Florida who is seeking licensure as a bail bond agent. Ms. Schubert's Temporary Bail Bond Agent License and Her Application for Licensure. Section 648.355, Florida Statutes, authorizes the Department to issue a temporary license to an individual as a bail bond agent under certain conditions. Those conditions include the requirements, among others, that the applicant complete basic certification courses within four years prior to the date an application is filed and that the applicant "be employed full time at the time of licensure, and at all times throughout the existence of the temporary license, by only one licensed and appointed supervising bail bond agent, who supervises the work of the applicant and is responsible for the licensee's conduct in the bail bond business. " § 648.355(1)(d) and (e), Fla. Stat. On August 24, 2001, Ms. Schubert was issued a certificate by Florida Bail Bond School, Inc., for successfully completing courses in criminal justice for bail bond agents required as a prerequisite to applying for a temporary bail bond agent license.2 (Stipulated fact). On October 30, 2001, Ms. Schubert was issued a certificate by the University of Florida, Division of Continuing Education, certifying her completion of the requirements of "INS 3 - Bail Bond Agent Qual Crse - Self Study."3 (Stipulated fact). On or about December 12, 2001, the Department received an application from Ms. Schubert seeking licensure as a temporary bail bond agent (hereinafter referred to as a "temporary license") pursuant to Section 648.355, Florida Statutes. Ms. Schubert designated Jenny Garcia, Florida License number A03131, Manager of Estrella Bail Bonds, on the application as her supervising bail bond agent. (Stipulated fact). After review of Ms. Schubert's application, the Department concluded that she met the requirements of Section 648.355, Florida Statutes, and on or about April 22, 2002, issued her a temporary license, license number E023179. (Stipulated fact). Ms. Schubert was employed by Estrella Bail Bonds and was under the supervision of Ms. Garcia upon the issuance of her temporary license. Between July 2002 and December 2002, Ms. Schubert completed her temporary license internship hours of employment with Estrella Bail Bonds. (Stipulated fact). In October 2002, in anticipation of completing her internship, Ms. Schubert filed an application for the bail bond agent license at issue in this proceeding. By letter dated April 18, 2003, the Department denied Ms. Schubert's license application based upon the following alleged facts: You, Sara K. Schubert, have acted in the capacity of, and held yourself out as bail bond agent without being properly licensed and appointed, in violation of the Florida Insurance Code. You have established a place of business, designated by you as "A Bunny Bail Bonds Agency," which is not under the active full-time charge of a licensed and appointed bail bond agent; you have provided, or had provided on your behalf, internet advertising and business cards which identify you as the agent/owner of "A Bunny Bail Bonds Agency" and advertise the services of that agency; you have entered into a lease agreement for office space for "A Bunny Bail Bonds Agency," representing yourself as the President of that agency; you have provided for the advertising of the services of "A Bunny Bail Bonds Agency" at the leased location; you have acquired and maintained telephone services for "A Bunny Bail Bonds Agency," and have advertised the availability of the bond agency's services through the availability of that telephone service. You are operating a bail bond agency separate from your supervising agent's business address. Ms. Schubert's Business Planning and General Activities. As early as the beginning of 2001, Ms. Schubert decided that she wanted to become licensed as a bail bond agent and began planning accordingly. In addition to taking the steps required by the Department to obtain licensure as a bail bond agency, including obtaining a temporary license, Ms. Schubert began taking certain actions to ensure that she could begin to operate her bail bond agency immediately upon being licensed as a bail bond agent. The steps which Ms. Schubert took to prepare her business included the naming of her business, the creation of a corporate entity, logo, and business slogan, obtaining local and toll-free telephone numbers for the business, having a business plan prepared, having an internet web-page readied, executing a lease for office space, arranging for a yellow-pages advertisement, and obtaining advertising materials, including business cards, key chains, pens, and stickers. In addition to planning for her future business, Ms. Schubert also actually advertised her future business. The evidence failed to prove that Ms. Schubert or anyone on her behalf was actually "appointed by an insurer by power of attorney to execute or countersign bail bonds in connection with judicial proceedings who receives or is promised money or other things of value therefor" or that that she "pledge[d] United States currency, United States postal money orders, or cashier's checks as security for a bail bond in connection with a judicial proceeding and receive[d] or [was] promised therefor money or other things of value." The evidence also failed to prove that Ms. Schubert, based upon the facts alleged by the Department in support of its denial of her license application, is incompetent, untrustworthy, unfit as to character and background or lacking in one or more of the required qualifications for license or appointment, or has demonstrated a course of conduct or practice which indicate that she is incompetent, negligent, or dishonest. The following is a summary of the timing of the events pertinent to this matter, each of which is discussed in further detail, infra.: 2001 April: Future business is named. A Bunny Bail Bonds, Inc. formed. Aug. to Oct.: Courses required for temporary license taken. December: Application for temporary license filed. 2002 March: 1 year lease for office space executed. April: Temporary bail bond agent license issued. Spring: Business cards, stickers, pens, and other advertisements purchased. Internet web page created. Sign placed on door of office, mail box, and office-building information board. July to Dec.: Internship for Estrella Bail Bonds. October: Ms. Schubert filed application for licensure. November: Telephone service contract entered into. Department investigation begun. 2003 February: Telephone approval to arrange for yellow- pages advertisement obtained from Department. April: Business plan prepared. Department denied license application. May: Department's investigation closed with letter of guidance. Naming and Incorporating the Future Business. In April 2001, at least eight months prior to filing her application for temporary license with the Department, Ms. Schubert decided that she would call her bail bond agency "A Bunny Bail Bonds." Toward that end, on April 16, 2001, Ms. Schubert filed documents with the Department of State creating a corporate entity named "A Bunny Bail Bonds Agency, Inc." The Articles of Incorporation for the corporation, which were signed by Ms. Schubert on or about April 10, 2001, designated Ms. Schubert as the president of, and the registered agent for, the corporation. The Articles of Incorporation do not describe the nature of the business to be conducted by the corporation. Telephone Services for A Bunny Bail Bonds. At roughly the same time that Ms. Schubert decided on the name of her business in April 2001, Ms. Schubert contacted AT&T to inquire about obtaining a toll-free number for A Bunny Bail Bonds. Ms. Schubert selected and reserved "866 The-Buny" (843-2869) as the toll-free number for A Bunny Bail Bonds. The evidence failed to prove, however, that any calls were actually made to this number. The evidence also failed to prove whose name the toll-free service was contracted under. Effective November 1, 2002, just over six months after receiving her temporary license and two months before she completed her required internship with Estrella Bail Bonds, Ms. Schubert opened an account for telephone services for A Bunny Bail Bonds. The account was opened with BellSouth Telecommunications, the local telephone provider for Fort Lauderdale. Ms. Schubert contracted for basic service for three separate phone lines at a monthly charge of $27.75: telephone numbers (954) 462-1600; 462-5800; and 469-1300. Ms. Schubert also selected three optional services for A Bunny Bail Bonds: the "Complete Choice for Business Messaging Package," the "Complete Choice for Business Maintenance 3 Line Package," and the "Complete Choice for Business 3 Line Package."4 Ms. Schubert committed to pay $164.00 a month for the optional services she agreed to.5 Office Space Rental. On or bout March 13, 2002, almost a month before Ms. Schubert was issued her temporary license, Ms. Schubert entered into a one-year lease agreement for a 350 square-foot office (hereinafter referred to as the "Office"), identified as "suite 3" and located at 521 South Andrews Avenue, Fort Lauderdale, Broward County, Florida. (Stipulated fact). The Office is conveniently located across the street from the Broward County courthouse. The lease agreement identifies "A Bunny Bail Bonds Agency, Inc., Sara Schubert, President" as the Lessee of the Office and was entered into by Ms. Schubert as "President" of A Bunny Bail Bonds Agency, Inc. (Stipulated fact). The one-year lease period commenced April 1, 2002, the month Ms. Schubert received her temporary license. She made a security deposit in the amount of $873.50 and has paid a monthly rental fee of $463.75 for the Office. (Stipulated fact). The evidence failed to prove that the Office was actually used to carry out any bail bond business.6 The mailbox for the Office was located with other mailboxes for the building at a central location. To ensure that she received mail addressed to the Office, Ms. Schubert placed a small yellow-sticky on the box which had "#3, Schubert, A Bunny Bail Bonds" hand-written on it. Web-Page for A Bunny Bail Bonds. Ms. Schubert arranged to have an internet web page created for A Bunny Bond Bonds. The web page identifies Ms. Schubert as "Agent/Owner" of A Bunny Bail Bonds, identifies the business address as 521 South Andrew Street, Suite 3, Fort Lauderdale, Florida 33001 (the address for the Office), and lists three telephone numbers: the toll-free telephone number she had reserved with AT&T; (305) 606-9662 a Dade County telephone number; and (954) 439-2211, a Broward County telephone number. The Broward County telephone number is listed as Ms. Schubert's home telephone number on Respondent's Exhibits 13 through 15. The web page represents that A Bunny Bail Bonds accepts all major credit cards. The A Bunny Bail Bonds web page was accessible in December 2002 and it is inferred, because of the telephone numbers listed on the web page, that the web page was developed after March 2002 (when the lease was entered into) and before November 2002 (when local telephone services were contracted for). The web page was not registered with any internet search engine and, therefore, could only be accessed if the web address was known. The web-address was, however, included on the business cards Ms. Schubert purchased. The evidence failed to prove whether anyone other than someone at the Department ever accessed the web page. Yellow-Page Advertisement. Ms. Schubert had applied for licensure in October 2002 and, therefore, she began planning to place an advertisement in the newest addition of the telephone book yellow pages for 2003, when she anticipated that she would be able to open her business. Because of concern over whether she would receive her license before the deadline for taking out a yellow-pages advertisement expired, she arranged for James Moore, a friend and licensed bail bond agent, to contact the Department about going forward with the advertisement in anticipation of the approval of her license. (Stipulated fact). Despite the fact that Ms. Schubert had not received her license and had in fact been the subject of an investigation by the Department, the Department, through its agents, approved the placement of the yellow pages advertisement by Ms. Schubert. In reliance upon the Department's approval, Ms. Schubert paid $28,000.00 for a half-page yellow-pages advertisement for A Bunny Bail Bonds. The advertisement included the corporate name, a picture of Ms. Schubert with her name and "C.E.O." under it, the web page address, the toll-free telephone number, telephone number (954) 462-1600, the address of the Office, and the logos for several credit cards. Business Cards, Stickers, Pens, and Key Chains. In anticipation of becoming licensed as a bail bond agent, Ms. Schubert purchased business cards, stickers, ink pens, and key chains to be used in advertising A Bunny Bail Bond. The business cards, which were purple, included the name of the corporation, a logo which consists of a rabbit with a key in its paw standing behind a rabbit dressed in striped- prison garb (hereinafter referred to as the "Logo"), Ms. Schubert's name as "Agent/Owner," a business slogan, "We'll get your tail out of jail" (hereinafter referred to as the "Slogan"), the address of the Office, the toll-free telephone number listed as the "Office" number, telephone number (954) 439-2211, Ms. Shubert's home telephone number, as a "Mobile" number, and the internet web page address.7 The stickers included the name of the corporation, the Logo, and two telephone numbers: the toll-free number and (954) 439-2211, Ms. Schubert's home telephone number.8 The pens purchased by Ms. Schubert include the name of the corporation, the Logo, and two telephone numbers: the toll- free number and (954) 439-2211, Ms. Schubert's home telephone number.9 The business cards described in Finding of Fact 38, the stickers, and the pens were purchased sometime after Ms. Schubert leased the Office in March 2002 and before she contracted for local telephone services for the office in November 2002. A later version of business cards was purchased by Ms. Schubert in late 2002 or early 2003.10 The later version of the business card changed the telephone numbers listed on the card to (954) 462-1600 as the "Office" number, 1-866-The-Buny as a "Toll Free" number, and (305) 366-5532 as a "Pager" number. These cards were purchased after November 2002 when Ms. Schubert contracted for local telephone services. Ms. Schubert also purchased key chains which include the name of the name of the corporation, the logo, the toll-free number, and telephone number (954) 462-1600.11 The key chains were, therefore, purchased after November 2002 when Ms. Schubert contracted for local telephone services. Good Business Planning vs. Public Harm. Most of Ms. Schubert's actions described in this Recommended Order constituted good business planning. Those activities, to the extent there was no public disclosure, also were of little if any potential harm to the public: creating a corporation, selecting the name of a future business, contracting for the office and telephone services, creating a web page not generally accessible to the public, obtaining a business plan, and purchasing advertising materials (business cards, key chains, pens, and stickers). The number of individuals involved with those transactions and who, therefore, were aware of Ms. Schubert's activities, were too insignificant to constitute any potential harm to the public. Ms. Schubert, however, went beyond good business planning when she began to disclose the existence of her company to the public before she obtained her license: In November 2002, if not earlier, a piece of wood shaped like a rabbit and one of the stickers purchased by Ms. Schubert were placed on the door of the Office, which was located in a building where person seeking the services of bail bond agencies often visited12; Ms. Schubert replaced the rabbit on her door with a crow. She placed several of her business cards on top of the crow. The cards were, therefore, available to anyone who passed by the Office13; Ms. Schubert had a sign on the door of her automobile with A Bunny Bail Bonds written on it; Ms. Schubert placed a number of her cards, pens, and key chains on the door of a bail bond agency located in the same building the Office was located in. The bail bond agency was Dolphin Bail Bonds, which was owned by Ronald Blum14; and Ms. Schubert sent a Christmas present to her former employer in an envelope with "Bunny Bail" and the address of the Office as the return address. The Department's Investigation of Ms. Schubert. During the fall of 2002, the Department received a complaint from Mr. Blum of Dolphin Bail Bonds, suggesting that Ms. Schubert was operating A Bunny Bail Bonds. On or about November 25, 2002, as a result of Mr. Blum's complaint, Patricia Anthony, an investigator for the Department, sent a letter to Ms. Schubert informing her of the investigation. (Stipulated fact). On December 5, 2002, Ms. Schubert met with Ms. Anthony to discuss the matter. (Stipulated fact). Ms. Schubert executed an affidavit at Ms. Anthony's request, concerning her use of the Office. (Stipulated fact). At no time after the investigation was commenced until the investigation was completed, sometime in 2003, was the office found to be open despite the fact that Ms. Anthony visited the office several times. (Stipulated fact). The Department's investigation of Ms. Schubert was concluded with the issuance of a letter of guidance on or about May 29, 2003. (Stipulated Fact).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the granting Ms. Schubert's application for licensure as a limited surety (bail bond) agent pursuant to Chapter 648, Florida Statutes, conditioned on her taking additional bail bond agent training and/or placing Ms. Schubert on probation for an appropriate period of time. DONE AND ENTERED this 26th day of January, 2004, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 26th day of January, 2004.
Findings Of Fact Petitioner was first licensed as a ball bondsman in 1961 or 1962. In 1969 (Exhibit 2), Petitioner was charged with being incompetent and untrustworthy as a bail bondsman, found guilty and placed on one year's probation which was successfully completed. In 1973, Petitioner was again charged with conducting himself in a manner unbecoming a bail bondsman (Exhibit 3). These charges alleged failure to return the premium paid on a supersedes bond when the prisoner was not released from jail on the bond and failure to maintain his office open to the general public as required. In the Final Order issued in this case, Petitioner was fined $850 and placed on probation for two years. Upon failure of Petitioner to comply with the terms of the Final Order, his license was revoked for a period of ten months after which the revocation was set aside and his license restored. In 1979, a hearing was conducted by the undersigned Hearing Officer on charges alleging that Petitioner had failed to maintain the minimum requirement for permanent office records and failed to maintain a place of business accessible to the public and be actively engaged in the bail bond business in violation of Chapter 64B, Florida Statutes. Petitioner was found guilty as charged, and the recommendation that his license be revoked was adopted by the Commissioner of Insurance in the Final order. In 1986, Petitioner was arrested for operating a donut shop in Tampa utilizing topless waitresses in violation of Tampa Ordinance 24-11. These charges were dismissed on appeal to the circuit court (Exhibit 5). Witnesses called by Petitioner included the attorney who prosecuted the 1979 case (Exhibit 4) against Respondent; the investigator who investigated the 1979 charges for the Department, and a sitting circuit court judge who filed an appeal of the 1979 revocation order on behalf of the Petitioner At the time the charges which led to the revocation were preferred, Respondent was without power to write bonds, but still had an obligation to service bonds still outstanding. The two witnesses who testified in these proceedings on the status of a licensed bail bondsman without power to write new bonds both concurred that this places a bail bondsman in the anomalous position of one who has no need for an office to provide bail bonds for the public but who still needs to be accessible to those clients for whom he has outstanding bonds. This distinction was not clarified at the 1979 hearing. All three witnesses who testified on behalf of Petitioner were aware of nothing that would disqualify Petitioner as a bail bondsman at this time. No evidence was submitted that Petitioner was convicted of any crime involving moral turpitude, except for the admission by Petitioner that on or about August 11, 1966, he pleaded guilty to uttering a check without sufficient funds on deposit with which the check could be honored. This offense occurred more than 20 years ago and prior to Petitioner twice being found qualified for licensure by Respondent as a bail bondsman.
The Issue The issues in this case are whether Respondent, Wayne Calvin Summerlin, committed the offenses alleged in an Administrative Complaint issued by Petitioner, the Department of Financial Services, on May 4, 2007, and, if so, what penalty should be imposed.
Findings Of Fact The Parties. Petitioner, the Department of Financial Services (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for, among other things, the investigation and prosecution of complaints against individuals licensed to conduct insurance business in Florida. Ch. 626, Fla. Stat. Respondent Wayne Calvin Summerlin was, at the times relevant, licensed in Florida as a bail bond agent. Mr. Summerlin’s license number is A257941. Count I; Failure to Notify Department of Change in Employer. On or about July 23, 2003, Mr. Summerlin became the owner of, and began serving as primary bail bonds agent for, Wayne’s Bail Bonds. Having notified the Department of his relationship with Wayne’s Bail Bonds, he continued in this capacity until he sold Wayne’s Bail Bonds in 2004. Subsequent to his sale of Wayne’s Bail Bonds, Mr. Summerlin was employed as a bail bonds agent with Broward County Bail Bonds. Mr. Summerlin became an associate with Broward County Bail Bonds on or about September 13, 2005. Mr. Summerlin failed to inform the Department in writing, within ten days of beginning his employment with Broward County Bail Bonds of the fact that he was writing bail bonds for Broward County Bail Bonds. Count II; Failure to Notify Department of Change in Business Address. Mr. Summerlin, as of June 2005, maintained his business address as 15 Northeast Fourth Street, Fort Lauderdale, Florida. As of December 2005 Mr. Summerlin maintained his business address as 15 Southwest Seventh Street, Fort Lauderdale, Florida. On August 16, 2005, business cards with Mr. Summerlin’s name on them were found by a Department investigator with the following address on them: 10 South New River Drive, No. 109, Fort Lauderdale, Florida. Mr. Summerlin did not report to the Department that his business address had changed to 10 South New River Drive, No. 109, Fort Lauderdale. Counts III through VI. The Department apparently abandoned these Counts, having failed to address them in the Department’s Proposed Recommended Order. The evidence failed to prove the allegations of fact that support Counts III, IV, V, and VI.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department finding that Wayne Calvin Summerlin violated the provisions of Section 648.45(3)(c), Florida Statutes, as alleged in Counts I and II of the Administrative Complaint; dismissing Counts III through VI of the Administrative Complaint; and suspending his licenses and appointments as a bails bond agent for a period of three months. DONE AND ENTERED this 14th day of November, 2007, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 14th day of November, 2007. COPIES FURNISHED: Robert Alan Fox, Senior Attorney Division of Legal Services Department of Financial Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Wayne Calvin Summerlin 520 Southeast 16th Avenue Pompano Beach, Florida 33060 Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Sumner, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307
