Findings Of Fact On September 8, 1987, the Department of Insurance received a letter dated September 1, 1987, from Joseph F. Kinman, Jr., which stated: Another insurance agent (Daniel Bruce Caughey) from Pensacola, Florida and his incorporated agency (Caughey Insurance Agency, Inc.) are refusing to forward premium payments on to Jordan Roberts & Company, Inc. despite a final judgment for such amounts here in Hillsborough County Circuit Court. Enclosed is a copy of the Final Judgment entered August 13, 1987, as well as a copy of the Complaint. We represent Jordan Roberts & Company, as well as Poe & Associates, Inc. here in Tampa, Florida. In approximately August of 1982, Daniel Bruce Caughey and Caughey Insurance Agency, Inc. entered into a brokerage agreement with Jordan Roberts & Company, Inc. wherein Mr. Caughey and the Agency were to collect premiums on behalf of Jordan Roberts & Company, Inc. and in turn, Mr. Caughey and the Agency were to receive commissions. Mr. Caughey signed an Individual Guarantee Agreement on October 21, 1983, guaranteeing that Brokerage Agreement with Caughey Insurance Agency, Inc. Mr. Caughey and the Agency failed to forward the insurance premiums collected on behalf of Jordan Roberts & Company, Inc. despite repeated demands and inquiries. Finally, a lawsuit was filed against Mr. Caughey and the Agency in the Circuit Court of the Thirteenth Judicial Circuit of the State of Florida, in and for Hillsborough County in December of 1986. Final judgment for Jordan Roberts & Company, Inc. against Mr. Caughey and the Agency was entered on August 13, 1987, for an amount of $6,595.94. Mr. Caughey and his Agency have unlawfully withheld monies belonging to an insurer, Jordan Roberts & Company, Inc. and, accordingly, appear to be in violation of Florida Statutes 626 et seq. Jordan Roberts & Company, Inc. has a judgment for unpaid insurance premiums against Mr. Caughey and the Agency, however, Mr. Caughey and the Agency refuse or fail to pay over to Jordan Roberts & Company, Inc. premium funds rightfully belonging to Jordan Roberts & Company, Inc. Accordingly, we would respectfully request that your office conduct an investigation of Mr. Caughey and the Caughey Insurance Agency, Inc. Enclosed with this letter were copies of the complaint and final judgment in the circuit court case, Case No. 86-21454. As found in the main administrative case, Case No. 89-2651: In Count 1, JORO's complaint [in Case No. 86-21454] alleges the existence of a brokerage agreement between JORO and Caughey Insurance Agency, Inc., entered into "[o]n or about April 27, 1982"; execution and delivery of respondent's guarantee "[o]n or about October 21, 1983"; and the agency's indebtedness "for premiums on policies underwritten by [JORO] for the sum of $20,975.36." Petitioner's Exhibit No. 3. In Count II, the complaint also alleges execution and delivery of a promissory note "[o]n or about October 21, 1983," without, however, explicitly indicating its relationship (if any) with the guarantee executed the same date. Petitioner's Exhibit No. 3. The final judgment does not specify which count(s) JORO recovered on. Petitioner's Exhibit No. 4. Attached to the complaint are copies of the promissory note, executed by "CAUGHEY INSURANCE AGENCY, INC., By: D B Caughey Vice President"; the guarantee, executed in the same way; and the brokerage agreement, executed on behalf of Caughey Insurance Agency by "William C. Caughey, President." Although the Individual Guarantee Agreement names respondent as guarantor in the opening paragraph, the corporation is shown as guarantor on the signature line. The complaint does not allege and the judgment does not recite that respondent personally failed to remit premiums but says he is responsible as an officer of the agency. Without any further investigation, as far as the record shows, the Department of Insurance filed a complaint amended on April 24, 1989, to allege, inter alia, that "[o]n or about August 19, 1982 Caughey Insurance Agency, Inc. entered into a brokerage agreement with Jordan Roberts and Company, Inc. . . . requir[ing] Caughey Insurance Agency, Inc. to remit premiums, unearned commissions and additional premiums to Jordan Roberts and Company, Inc."; and that respondent "personally guaranteed the [agency's] obligation under this agreement in" writing, but "failed to remit five thousand five dollars and forty-four cents due under th[e] agreement" for which sum Jordan Roberts and Company, Inc. obtained judgment. After a formal administrative hearing, a recommended order was entered on April 2, 1990, recommending dismissal of the administrative complaint, because "ambiguities in the court papers do not clearly and convincingly rule out the possibility that the court's judgment rests on the dishonored promissory note . . . [rather than] a breach of respondent's [here petitioner's] fiduciary responsibilities." In its final order, the Department dismissed the administrative complaint; Daniel Bruce Caughey was the prevailing party in that case. The parties have stipulated that "Daniel B. Caughey qualifies as a small business party as defined in Section 57.111(3)(d), Florida Statutes." The parties also stipulated that the "total value of the reasonable attorney's fees and costs at issue is $2,830."
The Issue The issue to be resolved in this proceeding concerns whether the Respondent's license as an insurance agent should be disciplined for alleged violation of various provisions of Chapter 626, Florida Statutes (1999).
Findings Of Fact The Petitioner is an agency of the State of Florida charged under its statutory authority with administering the disciplinary provisions of Chapter 626, Florida Statutes, and related rules: This duty includes disciplining the licensure of licensed agents who have been proven, by clear and convincing evidence, to have transgressed statutes or rules the Petitioner is charged with enforcing. The Respondent at all times material hereto has been a licensed Life and Health Insurance Agent in the State of Florida. He holds license no. A031648. At times material to the Administrative Complaint and this action, the Respondent did business as an "Account Representative" for 21st Century, as well as performing his business as a licensed life and health insurance agent. The former Department of Banking and Finance received a complaint about 21st Century and initiated an investigation. Ms. Margaret Johnson, an investigator with that agency, performed a background check on sales agents for the company, learning that they were mostly licensed insurance agents, including the Respondent. She obtained copies of 21st Century investor files and compiled a list of investors to whom she addressed questionnaires. She obtained bank records and was able to determine how much in commissions each agent had received from 21st Century investment instrument sales. This information was later transmitted to the Department of Insurance. Ms. Johnson interviewed the Respondent and he provided her copies of his tax return forms and copies of commission checks. He informed Ms. Johnson that he had sold the promissory notes involved in this proceeding to himself, members of his family, and to friends and clients. He did this, he maintained, after investigating and researching information about the company, and speaking to its vice president, Spencer Tyrell. He also provided Ms. Johnson with a list of his investors, including those involved in this proceeding, named above as witnesses (with the exception of Myrtle Miller, who was deceased by the time of the hearing). Based on that information, Ms. Johnson prepared a spreadsheet showing the amount that the Respondent's various clients had invested in the notes in question and the commissions he earned on those sales. (Petitioner's Exhibit 17). Ms. Johnson also received copies of sales or offering materials used by the sales agents in marketing to prospective investors and obtained copies of documents that 21st Century sent out to its sales force regarding marketing of the notes and agreements involved. 21st Century began operation in 1997 in Florida. The company initially paid out interest checks in accordance with the written obligations it undertook with the investors, and so the first complaint was not actually received by Ms. Johnson's agency until 2001, when the defaults by 21st Century began. COUNT I Lynda V. Stewart is 65 years old and formerly employed as a teacher and administrator in the Marion County School System. The Respondent was a friend of hers, whom she had known for approximately 10 or 15 years through her school system employment. She purchased three annuities from the Respondent as part of her retirement plan. The Respondent telephoned Ms. Stewart on one occasion and told her of an investment that she might be interested in. They arranged a meeting at a restaurant and the Respondent showed her a brochure and sales material for 21st Century. He told Ms. Stewart that he had reviewed the investment documents; had visited the company headquarters; had met the principals of the company; and examined the operation, which seemed to be legitimate in his view. Ms. Stewart understood the deal to be that she was lending 21st Century money to support their capital acquisition and their purchase of equipment for their satellite communications business. She understood that she would be given a promissory note at a high rate of interest (13%) per annum over the five-year life of the note. She also expected to receive "25% of profits" earned on the operation of 21st Century's business. As demonstrated by Petitioner's Exhibit 8 in evidence "This 25% profit incentive shall be paid on an annual basis and shall be paid no later than ninety (90) days after the close of the installation's anniversary date." Ms. Stewart invested $8,000 by her personal check, delivered to the Respondent. She obtained those funds by taking out a loan against one of the annuity contracts that she had previously purchased from the Respondent. That loan has not been re-paid as yet. In return for her $8,000, she received a welcome letter from 21st Century showing receipt of the funds and a package of documents, including "Pledge of Personal Property" dated June 29, 1999, and signed by Robert S. Byrch as president of 21st Century. The "Pledge of Personal Property" document contained the following: The PLEDGOR warrants that the value (principal amount financed) of the collateral shall be maintained at a minimum of the amount loaned as the principal balance of the note hereby collateralized, and PLEDGOR shall make contributions to collateral in cash or in kind, if necessary, in order to prevent any reductions of collateral value below said minimum. Ms. Stewart also received a promissory note dated June 29, 1999, that stated that she would receive "quarterly payments of interest only at the rate of 13% per annum." She also received a "Security Agreement (Chattel Mortgage)" wherein the "DEBTOR" (21st Century) promised to pay the obligation, defend the title to the "collateral," and keep the collateral free of encumbrances, et cetera. Ms. Stewart testified that she trusted the Respondent because he was a friend and she didn't think he would lead her astray. As a result of her investment, Ms. Stewart received two yearly interest payments and a $5.00 payment. At the company's suggestion, she thereafter waived further receipt of the interest payments by signing an agreement to "roll them" or re- invest them into the original $8,000 principal amount invested so that they would draw interest and compound. Ms. Stewart later received a copy of an October 27, 2000, letter from Byron J. Nenos, Jr., an attorney, addressed to the company president, Mr. Byrch, demanding immediate payment of overdue note payments. That was Ms. Stewart's first information that 21st Century was in financial difficulty. She later received other communications indicating that the company was insolvent and, indeed, had filed bankruptcy. COUNT II Count II relates to alleged sales of unregistered securities (the notes, etc.) by the Respondent to Myrtle Miller. Ms. Miller died shortly before the final hearing and the Department elected to voluntarily dismiss this Count. COUNT III Mr. John Thomas is 64 years of age and has lived in Cocoa, Florida, for 36 years. He has known the Respondent as a friend since grade school. He and his wife previously purchased life insurance from the Respondent. The Respondent met with Mr. Thomas and discussed the 21st Century investment plan with him in conjunction with Mr. Thomas' contemplated retirement from the U.S. Postal Service. In Mr. Thomas' words, "He stopped by my office and I had about two minutes and he told me about 21st Century. And I said okay, Oscar, stop by the house and we'll give you a check. He said don't you want to hear. I said no, I don't have time. See you." Mr. Thomas gave the Respondent a check for $5,000, and the Respondent gave Mr. Thomas what Mr. Thomas characterized as "a stack of papers" which Mr. Thomas apparently did not read and "threw in his closet." The Respondent informed Mr. Thomas that he had invested in 21st Century. Mr. Thomas gave the Respondent the $5,000 to invest because he trusted him and believed that the satellite television industry was an "up and coming" industry and that 21st Century's arrangement would be a good investment. COUNT IV Mr. Albert Eamer is a retired school teacher, approximately 70 years of age. He has known the Respondent for 15 or 20 years. He purchased annuities from the Respondent as part of a deferred compensation investment plan made available through the school system where he had been employed. The Respondent later approached Mr. Eamer and requested that he consider investing in 21st Century. The Respondent told him that he had invested $5,000 in the 21st Century investments himself. The Respondent told him that he had investigated the company and that it "looked like a good opportunity." Mr. Eamer gave the Respondent a $5,000 check on July 26, 1999, on behalf of himself and his wife. The Respondent gave him "a bunch of paperwork" and told him that he would receive an interest payment from 21st Century on a quarterly basis. It appeared to Mr. Eamer that there was an opportunity to make more money on the program than with any other opportunity that Mr. Eamer knew of. The interest was represented by the Respondent to be 13% annual interest, payable quarterly and Mr. Eamer was also told by the Respondent that he might also receive 25% of company profits. The Respondent advised Mr. Eamer that the arrangement looked like a sound investment and that the company "had six million dollars on hand." Mr. Eamer then later decided to give the Respondent another $5,000 check to make a similar investment in his son Mark's name. Mr. Eamer considered the Respondent to be a friend who had never steered him wrong. The Respondent explained to Mr. Eamer that 21st Century was looking for capital growth and that if necessary, the company could liquidate its assets and equipment to re-pay loans to the investors. After 21st Century defaulted on its loan payments, Mr. Eamer was contacted by Department investigators who took his statement. At the hearing Mr. Eamer identified the collection of 21st Century sales material documents which had been delivered to him at his home by the Respondent. Some other 21st Century documents were received either through the mail or from the Respondent, or from the Federal Bankruptcy Court. Mr. Eamer understood the "Pledge of Personal Property" to mean that, if the company went defunct, as a lienholder, he would be able to get the company's equipment, and sell it to re- coup losses. Mr. Eamer acknowledged that he had not carefully read over the "Security Agreement (Chattel Mortgage)" and instead trusted Oscar Brown concerning the matter. He testified that Oscar Brown told him it was a good deal, "so, I bought it." The 13% interest rate set forth in the "Security Agreement" and explained to Mr. Eamer by the Respondent, according to Mr. Eamer, did not make him suspicious. Initially, Mr. Eamer and his son received some interest payment checks. But then he received the November 14, 2000, letter from Attorney Nenos explaining that 21st Century was in arrears in making its interest payments. Mr. Eamer never received any portion of the so-called "25% profit incentive." Mr. Eamer testified that he assumed the $5,000 loss that his son incurred, as well as his own, so that his total loss in effect amounted to $10,000 (he paid his son back the $5,000 the son had invested). Mr. Eamer has received no money to date from 21st Century's bankruptcy proceeding. COUNT V Sandra F. Cook has been an apartment complex manager for some 30 years and has known the Respondent most of that time. She purchased life insurance from him in the past. The Respondent suggested to Ms. Cook that she consider investing in 21st Century. He presented her with sales material, told her that he had checked out the company and that he intended to invest in it himself. At the Respondent's suggestion, Ms. Cook took out a loan on her insurance policy and invested $5,000 in the 21st Century promissory note program. She enjoyed a good business relationship with the Respondent and trusted his judgment. It was Ms. Cook's understanding that she was making a loan to 21st Century and that she would receive a percentage rate of return plus a percentage return on the company's profits. She received about three interest payment checks from 21st Century, but never received any portion of her original $5,000 principal investment. The evidence reveals that the Respondent and possibly members of his family also invested in the 21st Century promissory notes. There has been no showing that he knew that the obligations represented by the notes might not be paid by 21st Century nor that he had any deceptive or fraudulent intent in selling them to the investors involved in this Administrative Complaint. While the evidence reveals that he made some efforts to ascertain the bona fide nature of the investments, the record does not reveal through any evidence adduced by the Respondent that he made a detailed inquiry to determine the exact nature and basis for the issuance of the promissory notes, including whether or not they were "registered securities" and were instruments he was authorized by law to sell.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that the Administrative Complaint be dismissed. DONE AND ENTERED this 30th day of September, 2004, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 2004. COPIES FURNISHED: Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Peter Dunbar, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 David J. Busch, Esquire Department of Financial Services, Division of Legal Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 William M. Furlow, Esquire Akerman Senterfitt 106 East College Avenue, Suite 1200 Tallahassee, Florida 32301
The Issue Whether the licenses as a limited surety (bail bond) agent and as a legal expense agent held by Latesia Lashonda Chavis should be revoked.
Findings Of Fact Chavis has been licensed in Florida as a limited surety (bail bond) agent, pursuant to Chapter 648, Florida Statutes and as a legal expense agent, pursuant to Chapter 642, Florida Statutes, since 1994, and has performed related work since 1991. In an application dated April 27, 2006, Chavis sought to receive an additional license as a resident managing general insurance (bail bond) agent. On that Application, Chavis answered "NO" to the following questions: Have you ever had any insurance agency contract terminated by an insurance company or managing general agent for any alleged cause? Are you currently indebted to any insurer, managing general agent, agent, or premium finance company? The Department alleged in Count I of the Administrative Complaint that Chavis’ answers to those two questions were false. In Count II, the Department alleged that Chavis owed money for checks that had been returned for insufficient funds for premiums and a build up fund ("BUF") account due, based on a contractual relationship with the Al Estes General Agency, Inc. (the "Estes Agency"), Chavis' managing general agent. Count III alleged that Chavis misappropriated, converted and withheld funds owed to the Estes Agency. Count I Chavis testified that, on April 27, 2007, when she filed the pending application, she was not aware that her contract with the Estes Agency had been terminated, having not been informed until she was contacted by the Department's investigator, Terry Flynn, sometime in August 2006. Chavis also testified that she had been in touch with Al Estes, in January, February, and March about her family problems that were taking her away from devoting herself to the bail bond business and offered to take out a loan to pay him what she owed him. She testified that she was trying to help run a family business, a group home, that her aunt died of cancer in April, and that her mother is still battling cancer. Estes confirmed in his testimony that he recalled her telling him that her husband had used her checkbook to take money out of her account and that her mother was sick. It is undisputed that a letter from the Estes Agency, dated February 9, 2006, was sent to Chavis at her address-of- record with the Estes Agency on that date, in Cocoa, Florida. The letter was "A Termination Notice and Demand for Payment and Accounting." Chavis testified that she did not receive the letter. The Estes Agency also sent, on February 9, 2007, a "Termination Request" for Chavis to be terminated as an agent to their insurer, Safety National Casualty Corporation in Iowa. In addition, the Estes Agency notified the Department of the termination of Chavis as their agent by letter dated February 17, 2006, sent to the Department's Orlando office. In that letter, the Estes Agency listed the following reasons for its actions: Un-report [sic] executed powers, owes premium N.S.F. checks for Premium and BUF accounts Unpaid Premium an (sic) BUF Unpaid Forfeitures and judgments Business phone has been turned off. No response to correspondence sent Will not return phone calls On or about March 27, 2006, the Estes Agency sent as its representative, Norman Britten who was apparently accompanied by other people, to Chavis' Cocoa address to seize the files. When Britten arrived, a neighbor told him that Chavis had moved. The neighbor telephoned Chavis, and asked her if he should tell Britten where she had moved. Britten then also talked to Chavis by telephone and she gave him her address in Fort Pierce, and agreed to meet him at her new address to give him the files on pending cases and accounts. Chavis agreed that these activities took place in late March or early April, just before her aunt's death. The files were taken so that the Estes Agency could meet the requirements and minimize the risks of having unpaid forfeitures become judgments within sixty days that, if not paid within thirty-five days, would result in the State's prohibiting an agency from posting additional bonds. The files were also taken to keep an accounting of remissions, and refunds of forfeited bonds after criminal defendants have been caught. Given the conversations concerning moneys owed, notices, seizure of files, and investigations, all activities that took place in January, February and March 2006, it is reasonable to conclude that Flynn testified truthfully that he informed Chavis of her termination while he was conducting the Department's investigation of her in March 2006. Chavis's testimony to the contrary, that she did not know prior to filing the application in April 2006, that she was answering the two questions cited in the Complaint falsely is rejected as untrue. Nor is Chavis relieved of her personal responsibility to be truthful, because she testified that some other unnamed company with whom she planned to become affiliated told her to give the false answers to those questions, because her BUF account should take care of any money that she owed. There is no showing that the other company knew of the returned checks and unpaid premiums and no reasonable expectation that these debts that were not incurred in the regular course of business would be covered by a BUF account. Additional evidence of her actual knowledge of the termination of her contract with the Estes Agency is the fact that Chavis was negotiating with and seeking licensure with another company, while she admittedly was still dealing with her family's problems that were causing her to neglect her bail bond business. The Department proved the allegations in Count I of its Administrative Complaint that Chavis made material misstatements in response to two questions on an application dated April 27, 2006. Counts II and III Contrary to her explanation that she filed the pending application thinking the BUF account would cover any funds owed to the Estes Agency, Chavis testified that, in conversations with Estes in February and March, she offered to take out a loan to pay the money owed to the Estes Agency, and that he mentioned that she owed approximately $12,000. She said she offered to take out a loan because she did not have the money, but that she did not think that either of them had taken into account the BUF account at that time. Chavis agreed that once the BUF account was depleted, if she still owed money to the Estes Agency, she has not paid it. She also testified that she has not paid anything to cover the checks she issued with insufficient funds and does not deny that she owes that money to the Estes Agency. The senior agent for the Estes Agency testified that, after taking into consideration insufficient funds checks, unpaid and unremitted premiums, the BUF account, and remissions total liabilities incurred by or on behalf of Chavis are $18,851.00. The Department proved the allegations of Counts II and III that Chavis owes money to the Estes Agency, that was misappropriated, converted, or willfully and improperly withheld.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that all licenses held by the Respondent under the Code are revoked and that her pending application be denied. DONE AND ENTERED this 6th day of November, 2007, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 November 2007.
Findings Of Fact By letter dated December 27, 1977, VIRGINIA E. BELL, of VIRGINIA BELL REALTY, INC., forwarded to Mr. and Mrs. George Kuruzovich a contract for sale and purchase of real estate which had been executed by Robert and Patricia Gaudet. The cover letter from this respondent to Mr. and Mrs. Kuruzovich, stated that the contract provided for ". . . a net cash to you of not less than $7,500. This contract provided in paragraph twenty-two, "It is agreed that the seller shall net not less than $7,500 cash from sale herein upon closing." By letter dated January 3, 1978, Mr. George Kuruzovich informed Virginia E. Bell that the sellers approved the terms of the contract, with the understanding that they would receive net cash not less than $7,500. The contract dated December 27, 1977, was not consummated. However, a new contract, dated February 18, 1978, was executed by the sellers, George and Loretta Kuruzovich, with purchaser Patricia A. Gaudet. This contract likewise provided in paragraph twenty-two, ". . . sell [sic] shall net no less than $7,500 cash from sale herein payable upon closing." The contract dated February 18, 1978, was executed by all parties. The matter proceeded to closing, with the sellers authorizing Virginia E. Bell, to act as their agent. On May 4, 1978, Virginia E. Bell signed a letter to American Title Insurance Company stating that: "I, Virginia Bell, hereby certify that the proceeds of sale regarding the above captioned property is $7,053.34 and not $7,500.00 as required under the special provisions of the Sales Contract and that Virginia Bell Realty will assume any liability as far as payment concerning the net proceeds to Mr. and Mrs. George Kuruzovich, and furthermore, I will not hold American Title Insurance Company responsible for same." On May 4, 1978, the closing on the February 18, 1978, contract was consummated. Mr. and Mrs. George Kuruzovich, the sellers, received $7,053.34 in cash for the sale of their home. By letter dated May 5, 1978, to Mr. and Mrs. Kuruzovich the Respondent, Virginia Bell, explained that the cash discrepancy was due to prorations of $155 for taxes, $219.60 for interest in addition to the mortgage balance, and $94.22 for an FHA insurance premium paid by Respondent. In mitigation, Virginia E. Bell contends that she informed the sellers that the net cash required by the contract did not include tax, interest and insurance prorations, but this self-serving oral representation must be disregarded as contrary to the expressed terms of the contract and against the weight of the evidence. This respondent admits that the transaction which is the subject of this proceeding was not handled properly, and she asserts that it will not happen again.
Recommendation Upon Consideration of the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Virginia E. Bell be fined the sum of $500.00. It is further RECOMMENDED that the administrative Complaint against Virginia Bell Realty, Inc., be dismissed. THIS RECOMMENDED ORDER entered on this 16th day of September, 1980. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301 (904)488-1779 Filed with the Clerk of the Division of Administrative Hearings this 16thday of September, 1980. COPIES FURNISHED: S. Ralph Fetner, Esquire 2009 Apalachee Parkway Tallahassee, Florida 32301 Virginia E. Bell 1927 U.S. Highway 17 Orange Park, Florida 32073 George E. Marcellus 64 Sleepy Hollow Road Middleburg, Florida 32068
The Issue Is Worldwide Investment Group, Inc. (Worldwide) entitled to apply to the State of Florida, Department of Environmental Protection (the Department) for funds to reimburse Worldwide for costs associated with petroleum clean-up at 500 Wells Road, Orange Park, Florida, Facility ID#108736319? See Section 376.3071(12), Florida Statutes.
Findings Of Fact The Property Howard A. Steinberg is a Certified Public Accountant, (CPA) licensed to practice in Florida. In addition to his work as a CPA, Mr. Steinberg has other business interests. Among those interests is Worldwide, a corporation which Mr. Steinberg formed for the purpose of acquiring certain assets, or properties, from Home Savings Bank and American Homes Service Corporation (Home Savings Bank). Worldwide became a corporation in July 1996. Mr. Steinberg is the sole shareholder of that corporation and has been since the inception of the corporation. In addition to controlling all of the assets within Worldwide, Mr. Steinberg is the sole officer of the corporation. The corporation has no other employees. Worldwide has its office in Hollywood, Florida, in the same physical location as Mr. Steinberg's accounting firm of Keystone, Steinberg and Company, C.P.A. Under its arrangement with Home Savings Bank, Worldwide acquired property known as Save-A-Stop at 500 Wells Road, Orange Park, Florida. Mr. Steinberg engaged the law firm of Burnstein and Knee, to assist Worldwide in the purchase of the Save-A-Stop property. The Save-A-Stop property is a commercial parcel that has experienced environmental contamination from petroleum products. To address that problem the firm of M. P. Brown & Associates, Inc., (Brown) was paid for services in rendering environmental clean-up of that site. Substantial work had been done by Brown to remediate the contamination before Worldwide purchased the property from Home Savings Bank. Home Savings had paid Brown for part of the costs of clean-up before Worldwide acquired the Save- A-Stop property. After the purchase, Mr. Steinberg paid Brown to finish the clean-up. Application for Reimbursement Mr. Steinberg, as owner of Worldwide, understood that the possibility existed that Worldwide could be reimbursed for some of the clean-up costs by resorting to funds available from the Department. On July 29, 1997, Bonnie J. Novak, P.G., Senior Environmental Geologist for Brown, wrote to Mr. Steinberg to provide a cost estimate for preparing a reimbursement application in relation to the Save-A-Stop property. The cost to prepare the application was $1,870.00. On August 27, 1996, Mr. Steinberg accepted the offer that had been executed by Brown by Mr. Steinberg signing a contract, and by calling for Brown to prepare an application, to be presented to the Department for reimbursement of costs expended in the clean-up. In furtherance of the agreement between Worldwide and Brown, $935.00 was paid as part of the costs of preparation of the application. This payment was by a check mailed on August 27, 1996. The balance of the fee was to be paid upon the completion of the preparation of the application. In 1996, outside the experience of his businesses, Mr. Steinberg was having difficulties in his marriage. To address the situation, Mr. Steinberg filed a Petition for Dissolution of Marriage. That Petition was filed in April 1996, at which time Mr. Steinberg assumed custody of the children of that marriage, with no right for their mother to unaccompanied visits. After filing for dissolution, Mr. Steinberg relied on others to assist him in dealing with his personal and business life. From December 1996 through January 6, 1997, Mr. Steinberg was particularly influenced by the upheaval in his personal life. It caused him to request extension of deadlines from the Internal Revenue Service for the benefit of his clients whom he served as a CPA. During December, Mr. Steinberg was only in his office for approximately 10 percent of the normal time he would have spent had conditions in his personal life been more serene. On January 6, 1997, the conditions in Mr. Steinberg's personal life took a turn for the worse when his wife committed suicide. In December 1996, attorney Jerrold Knee, who had assisted Mr. Steinberg as counsel in purchasing the Save-A-Stop property, spoke to someone at Brown concerning the status of the preparation of the application for reimbursement of funds expended in the clean-up. He was told that the application was being worked on. Mr. Knee was aware that the deadline for filing the application was December 31, 1996. Mr. Steinberg was also aware of the December 31, 1996, deadline for submitting the application. In that connection, Mr. Knee was familiar with the difficulties that Mr. Steinberg was having in Mr. Steinberg's marriage in 1996. Mr. Knee knew that Mr. Steinberg was infrequently in the office attending to business. Mr. Knee surmised that Mr. Steinberg was relying upon Mr. Knee to make certain that the application was timely submitted, and Mr. Knee felt personally obligated to assist Mr. Steinberg in filing the application, given the knowledge that Mr. Steinberg was not in the office routinely during December 1996. His sense of responsibility did not rise to the level of a legal obligation between lawyer and client. Although Mr. Knee was aware of the pending deadline for submitting the application for reimbursement, and had inquired about its preparation by Brown, and had discussed it with Mr. Steinberg, Mr. Knee never specifically committed to making certain that the reimbursement application was filed on time. As it had committed to do, Brown prepared the reimbursement application for the Save-A-Stop site. The application was for the total amount of $58,632.85, not including preparation charges and CPA Fees. Written notification of the preparation of the application was provided to Mr. Steinberg on December 12, 1996. The correspondence reminded Mr. Steinberg that the application needed CPA approval, an invoice and registration, and a signed certification affidavit. Most importantly, the notification reminded Mr. Steinberg that an original and two copies of the application must be sent to a person within the Department prior to December 31, 1996. The notification specifically indicated the name of that individual within the Department and set forth that person's address. The notification arrived in Mr. Steinberg's office during the week of December 12, 1996. That notification was not opened until late January or early February 1997. Mr. Steinberg opened the letter at that time. During December 1996 Mr. Steinberg was responsible for opening the mail received in his office. No other person was expected to open that mail for the benefit of Worldwide. Untimely Application On February 6, 1997, Worldwide submitted its application for reimbursement for clean-up at the Save-A-Stop location. That application was received by the Department on February 7, 1997. The Department has consistently interpreted the statutory deadline for submitting reimbursement applications in accordance with Section 376.3071(12), Florida Statutes, (Supp. 1996) to be absolute. Consequently, on February 11, 1997, the Department denied the Worldwide application because it had been filed beyond the December 31, 1996, deadline recognized by the statute. Worldwide contested that proposed agency action by requesting a hearing to examine the issue of the timing of the application submission. Consequences of Untimely Application In Florida, petroleum taxes are deposited for the benefit of the Inland Protection Trust Fund. The Florida Legislature allows monies to be appropriated from those deposited funds. In that budgetary process, the Governor's office serves as liaison in requesting the Legislature to appropriate monies from the Inland Protection Trust Fund in relation to the costs of cleanup of sites contaminated by petroleum products. To assist the Governor's office, the Department identifies the need for covering the costs of the clean-up and makes a recommendation to the Governor to provide to the Legislature concerning the amount to be appropriated for the clean-up. In the history of the clean-up program, in 1995, problems were experienced with fraudulent and inflated claims calling for reimbursement for the cost of clean-up. This led to a debt of approximately $550,000,000.00. There was a concern that that debt could not be repaid in a reasonable time frame. In response, the Department, as authorized by the Legislature in action taken in 1996, negotiated a bond transaction through the Inland Protection Financing Corporation. With the advent of the bond issue, $343,000,000.00, not to include the cost of funding the bond, was made available to pay for petroleum clean-up. That bond issue was designed to fund the payment of reimbursement applications that had been received before the end of the life of the petroleum clean-up reimbursement program in place. During the 1996 session, in which the Legislature approved the bond issue, the Legislature also made changes to the petroleum clean-up program. The changes were fundamental in that applicants were no longer reimbursed for clean-up work that had been performed. With the advent of the legislative changes, petroleum clean-up, under a system calling for payment from the fund, could only be conducted if an applicant was pre-approved to conduct the clean- up. As part of that process of gaining funds pursuant to the bond issue, the Department performed an analysis, as authorized by the Legislature, to determine that amount necessary to pay existing obligations that had accrued under the petroleum clean-up reimbursement program that predated the Legislative change in 1996. To ascertain the existing obligation, the Department totaled the known dollar amount associated with the existing reimbursement applications and a portion of unreviewed reimbursement applications that had been received. The Department adjusted the sum to be paid in association with applications that had not been reviewed to that point, having in mind prior experience in which only 82 percent of claims had been allowed. The overriding concern by the Department was that it needed to determine whether the bond issue would be sufficient to defease the backlog of applications for reimbursement previously filed. Information concerning the reimbursement obligations was made known to the Florida Supreme Court in bond validation proceedings held before that court. The Inland Protection Finance Corporation was also made aware of the reimbursement obligations. In 1997, the Department gave further information to the Inland Protection Financing Corporation, indicating that the amount of bond was sufficient for reimbursement obligations. The Department in association with the terms of the bond transaction agreed that the bond proceeds would not be used to fund claims that were received after January 3, 1997. The deadline for submitting applications had been extended until January 3, 1997, by virtue of a statutory amendment found at Section 376.3071(12), Florida Statutes, (1997). Therefore, consistent with the statutory change, the Department had allowed applications submitted after December 31, 1996, but before January 4, 1997, to be considered on their merits. The December 31, 1996, deadline had existed under Section 376.3071(12), Florida Statutes (Supp. 1996). The statutory change occurred because a number of applications that were filed pursuant to the December 31, 1996, deadline set forth in Section 376.3071(12), Florida Statutes (Supp. 1996) did not meet that deadline. The reason for this failure was due to weather conditions that caused overnight couriers, Federal Express and United Parcel Service, to be unable to deliver parcels to the Tallahassee, Florida, airport. These applications, as other applications, were sent to the Department at a Tallahassee, Florida, address. Based on the inability of the two couriers to deliver applications under the timeline anticipated, the Department did not receive that group of applications until January 2, 1997. Subsequently, the applications were accepted as timely based upon the amendment found in Section 376.371(12), Florida Statutes (1997) which extended the filing deadline until January 3, 1997. As a policy consideration, the Department believes it must strictly enforce the deadline for submission of reimbursement applications, as extended by the Legislature, to avoid the future accrual of debt for applications submitted after January 3, 1997, which the Department cannot reasonably anticipate. Apropos of the present case, the Department does not believe that it is well-advised to allow even a single claim for reimbursement, if that claim was received after January 3, 1997. To date, 64 applications have been received by the Department subsequent to December 31, 1996. All but six of those applications were received no later than January 3, 1997. Two of that six applications for reimbursement are still pending before the Department. Historically 22,000 applications for petroleum clean-up have been received by the Department since 1986. At the time of the hearing, 9,000 applications were pending before the Department. In December 1996, 3,000 applications were received calling for reimbursement of costs. At the time of hearing, approximately $340,000,000 in reimbursement claims had not been satisfied. Petitioner makes its claim to be excepted from the deadline for submitting its application based upon the doctrine of equitable tolling.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED that a Final Order be entered denying the application of Worldwide to participate in the reimbursement program for clean-up expenses as untimely. DONE AND ENTERED this 7th day of May, 1998, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1998. COPIES FURNISHED: P. Tim Howard, Esquire P. Tim Howard and Associates, P.A. 1424 East Piedmont Drive, Suite 202 Tallahassee, Florida 32312 Jeffrey Brown, Esquire Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kathy Carter, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virginia B. Wetherell, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue Whether Respondent, a licensed insurance agent, committed the offenses alleged in the Amended Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact Petitioner is a licensing and regulatory agency of the State of Florida charged with the responsibility and duty to enforce the provisions of the Florida Insurance Code, which consists of Chapters 624-632, 634, 635, 641, 642, 648, and 651, Florida Statutes. See Section 624.307(1), Florida Statutes. Respondent has been continuously licensed in the State of Florida as a life insurance agent (a 2-16 license) and a general license agent (a 2-20 license) since March 1974, and continuously as a RPCJUA insurance agent (a 00-17 license) since March 1993. On November 4, 1996, Respondent was charged with possession of cocaine in violation of Section 893.13(6)(a), Florida Statutes. This charge, filed in Palm Beach County Circuit Court and assigned Case Number 96-12206 CFA02, is a third degree felony. On May 14, 1997, Respondent entered a plea of nolo contendere to the charge of possession of cocaine, which was accepted. Adjudication of guilt was withheld and Respondent was placed on probation for a period of 18 months. The terms and conditions of Respondent's probation included working at a lawful occupation, intensive drug and alcohol evaluation, successful completion of any recommended treatment, payment of a fine in the amount of $250.00 and court costs in the amount of $461.00, performance of 100 hours of community service, random testing for the use of alcohol and drugs, six months' suspension of driver's license, and DUI school. Respondent successfully completed his probation on November 13, 1998. Respondent continued to work as an insurance agent during the term of his probation. Respondent voluntarily reported the incident to State Farm shortly after its occurrence. As a result, State Farm placed Respondent on probation and conducted a series of random alcohol and drug tests, which Respondent satisfactorily completed. Section 626.621(11), Florida Statutes, provides that the following constitutes grounds for the discretionary discipline of an agent's licensure: (11) Failure to inform the department in writing within 30 days after pleading guilty or nolo contendere to, or being convicted or found guilty of, any felony or a crime punishable by imprisonment of 1 year or more under the law of the United States or of any state thereof, or under the law of any other country without regard to whether a judgment of conviction has been entered by the court having jurisdiction of the case. Respondent failed to report to Petitioner within 30 days of doing so that he entered a plea of nolo contendere to a third degree felony charge of possession of cocaine in Case Number 96-12206 CFA02 on May 14, 1997. On or about March 18, 1998, Respondent applied for licensure as a Variable Annuity Insurance Agent (a 2-19 license). That application contained Question 18, which provides as follows and to which Respondent answered "yes": Have you ever been convicted, found guilty, or pleaded guilty or nolo contendere (no contest) to a felony under the laws of any municipality, county, state, territory or country, whether or not a judgment of conviction has been entered. As a result of his answer to Question 18, Petitioner started an investigation, with which Respondent fully cooperated. As a result of that investigation, Petitioner learned the details of Respondent's plea in the criminal proceeding. Respondent testified, credibly, that he did not timely report the entry of his plea in the criminal proceeding because he did not know he was required to do so. 1/ Respondent has continuously worked as an insurance agent licensed by Petitioner in the State of Florida since March 1974. Respondent has been continuously appointed by State Farm and has built up a successful insurance business. This proceeding is the first disciplinary proceeding brought against Respondent's insurance licenses. There have been no other complaints filed by anyone in this state against Respondent's insurance licenses. Respondent's insurance licenses have not been previously disciplined in the State of Florida. The testimony of Respondent's witnesses established that he enjoys a good reputation for honesty, trustworthiness, truthfulness, and integrity in his community. He has engaged in charitable works, including work with the food bank, the Guardian Ad Litem Program, and Brazilian Indians. Respondent's witnesses also established that they had been pleased with their business dealings with Respondent, and that he has the ability and trustworthiness to successfully engage in the business of insurance. Respondent testified that State Farm will terminate his appointment as an agent if his license is suspended. Respondent testified that he will lose his business and his employees will lose their employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of violating Section 626.621(8), Florida Statutes, as alleged in Count I of the Amended Administrative Complaint, and guilty of violating Section 626.621(11), Florida Statutes, as alleged in Count II of the Amended Administrative Complaint. It is further recommended that Respondent's licensure as an insurance agent be suspended for two months for the violation of Count I and for three months for the violation of Count II, to run concurrently. DONE AND ENTERED this 30th day of June, 2000, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 30th day of June, 2000.
Findings Of Fact Respondent, Theodore L. Aubuchon, Jr., has been licensed by the Department of Insurance as a general lines agent and limited surety agent for a period of approximately 12 years. Other than the instant Administrative Complaint and its attendant Emergency Order of Suspension, Respondent has never been the subject of an Administrative Complaint or the subject of disciplinary action by the Department of Insurance. Respondent was served with an Emergency Order of Suspension in November of 1985, to which he failed to respond, and as of the date of the hearing in this cause, his licenses as a general lines agent and as a limited surety agent have been suspended since November of 1985. Pioneer Bonding & Insurance Agency, Inc. (hereinafter "Pioneer"), was formed in 1963 by its first president, Respondent's grandfather. Respondent's father took over control of the company in approximately 1965, and Respondent succeeded to the position of president in 1979. Respondent remained as an employee of Pioneer and its president until some time in 1985. Pioneer acted as a general agent for American Druggists' Insurance Company (hereinafter "ADIC") from 1973 until approximately March of 1984, pursuant to an agency agreement. That agreement specifically sets forth the respective responsibilities of ADIC and Pioneer as it pertains to the bail bond business, including but not limited to the processing of claims, reports, disposition of collateral, and the return of collateral. All counts of this Administrative Complaint deal with bonds underwritten by ADIC. By letter dated October 3, 1983, ADIC advised Petitioner that Respondent d/b/a Pioneer had satisfactorily performed all duties as general agent for ADIC, that no claims were outstanding against Respondent, that any claims preceding the date of the letter were forever waived by ADIC, and that all funds collected were being maintained in accordance with the law. Shortly after the letter of October 3, 1983, ADIC advised Respondent that it was exercising its 120-day option for termination of its agency agreement. Upon being so advised, Respondent began negotiating with ADIC in an attempt to enter into a limited agency agreement solely for the purpose of servicing outstanding and continuing bonds beyond March of 1984. No formal limited agency agreement was ever consummated, and by May 29, 1984, ADIC employee Norman Stotts had been sent by ADIC to handle the transition, to audit Pioneer's books and records regarding ADIC bonds, and to essentially take control over all bonds written by Pioneer on behalf of ADIC. Because no limited agency agreement regulating the servicing of outstanding and continuing bonds was entered into between them, both ADIC and Pioneer sought to control the disposition of collateral and to resolve forfeitures. ADIC at no time gave any written directions to Pioneer as to the manner in which collateral was to be disposed of upon the termination of the agency agreement between them. Further, as of June 1984, Norman Stotts was in possession of the books and records of Pioneer on behalf of ADIC. In June of 1984, ADIC filed a civil action in the United States District Court for the Southern District of Florida against Pioneer, Respondent, and others. On August 24, 1985, that federal court issued an injunction prohibiting the release of any funds previously received by Pioneer or by Respondent in connection with the issuance of ADIC bonds. ADIC voluntarily dismissed the federal litigation on July 8, 1986. On April 30, 1986, the Court of Common Pleas in Franklin County, Ohio, issued an Order of Liquidation and Injunction against ADIC, which Order had the effect of prohibiting the disbursement of funds or collateral held by any agents or brokers of that company. On the following day, pursuant to a motion filed by Petitioner, the Circuit Court of the Second Judicial Circuit in and for Leon County, Florida, issued an Order Appointing Ancillary Receiver for purposes of liquidation, which Order also contained an injunction directed against ADIC agents. On January 7, 1983, Karla Myers obtained a surety bond in the amount of $5,000 for Robert Myers Painting, Inc. with ADIC as surety. Respondent signed the surety bond as agent for the surety. Similarly, Respondent signed the collateral security receipt as attorney-in-fact for ADIC. By its terms, the surety bond expired February 28, 1985. By an unnotarized letter dated March 5, 1985, the Tri-County Painters and Decorators Joint Trade Board, Inc. released Robert Myers Painting, Inc. from the surety bond, which letter was received by Karla Myers on March 8, 1985. Subsequent to March 8, 1985, Karla Myers made numerous telephone calls to Pioneer to obtain the return of her $5,000 in collateral. She was advised by employees at Pioneer that Respondent was no longer employed at Pioneer, and on one occasion, Myers contacted Respondent at his home. Respondent advised her that he would need to confer with his attorney regarding the matter. By March, 1985, Respondent was no longer in control of the books and records of Pioneer, with those books and records being in the control and custody of Norman Stotts. A notarized release, along with the original copy of the Collateral Security Agreement, was not provided by Karla Myers to Respondent or Pioneer in order to secure the release of the $5,000 in collateral, and Pioneer and Respondent were already engaged in litigation with ADIC, Respondent having been advised by his attorney not to discuss that litigation. On approximately August 20 1986, ADIC authorized Respondent to return the Myers collateral. Respondent then obtained the authorization of Petitioner, and the collateral was returned to Myers in August of 1986. On August 10, 1983, Pioneer accepted from Antonio and Jane Mininni $10,000 as collateral for a beverage wholesaler's bond underwritten by ADIC. A subsequent increase in the bond to $15,000 was required by the Florida Division of Alcoholic Beverages and Tobacco. On April 9, 1985, ADIC advised Mininni d/b/a Old Bridge, Inc., that its bond was being cancelled effective June 10, 1985, and that there would be a 90-day waiting period before the collateral would be returned. That waiting period would have expired on September 10, 1985, after the entry of the federal injunction. On June 13, 1985, the Old Bridge, Inc. bond was transferred from ADIC to Southland Insurance Company in order that Old Bridge, Inc. would continue to have the state-required coverage. Mininni participated in and approved that transfer. At all times Old Bridge, Inc. had coverage for the total amount of coverage it had purchased. In August of 1986, Mr. and Mrs. Mininni on behalf of their business, Old Bridge, Inc., executed a release releasing Pioneer, ADIC, and Respondent; the federal court litigation had been dismissed; Respondent obtained authorization from ADIC and from Petitioner to return to Old Bridge, Inc. its collateral; and the collateral was returned. On behalf of a client, attorney Sam Pendino needed to make arrangements for collateral on four bail bonds. In a telephone conversation with Respondent, Pendino advised that he wanted an attorney, rather than an insurance company, to hold the collateral under an escrow agreement. Respondent suggested the name of attorney Terence T. O'Malley, Sr. Pendino subsequently satisfied himself that O'Malley was a licensed attorney authorized to practice law in the State of Florida, and on January 13, 1984, an escrow agreement was entered into by and between Pendino and O'Malley under which O'Malley became the escrow agent for the collateral. That escrow agreement was later signed by Respondent on behalf of ADIC. Pendino and O'Malley physically put the collateral, with an approximate value of $100,000 made up of $57,500 in cash and the balance in precious metals, into a safe deposit box which they rented on the same day that the escrow agreement was signed. Respondent was not a signator on the safe deposit box and was not present at the time the actual transfer of the collateral took place. No evidence was offered to indicate that Respondent ever came into possession of any of the collateral. Under the terms of the escrow agreement, O'Malley was responsible for returning the collateral with no further authorization needed upon the discharge of the bonds for which the collateral had been placed. The bonds were discharged on September 3, 1985, after entry of the federal court injunction. Pendino contacted O'Malley, but O'Malley failed to return the collateral. Pendino filed a lawsuit against O'Malley. He included Respondent as a defendant because Respondent had signed the escrow agreement. According to Pendino's attorney who was the only witness to testify on Petitioner's behalf regarding this transaction, at all stages of the litigation Respondent was disassociated from O'Malley's position, had agreed to the return of the collateral, and had requested the Court to enter orders returning the collateral to Pendino. By the time of the final hearing in this cause, O'Malley had already been held in civil contempt of court and there was presently pending an indirect criminal contempt proceeding regarding false testimony given by O'Malley as to the location of the collateral in question. Respondent, on behalf of Pioneer and ADIC, wrote a bail bond in the amount of $250,000 to guarantee the appearance of John Lee Paul, Sr., in the Circuit Court of St. Johns County, Florida. Certain real property in Georgia was placed as collateral for the bond. The bond was subsequently ordered forfeited, and judgment was entered against ADIC on January 16, 1984. The real property which was the collateral for the bail bond was sold, and the proceeds were transferred to the general operating account of Pioneer. On June 20, 1984, the legal representative of ADIC and Pioneer, the Assistant State Attorney, the St. Johns County Attorney, the Clerk of the Circuit Court for St. Johns County, and the attorney for the Clerk of the Circuit Court entered into a stipulation for a payment schedule on that final judgment. The payment schedule set forth in that stipulation was approved by the Court on June 21, 1984. Since that time, the bond has been paid in full. It is a common practice for a surety company, with the approval of the Court, to arrange an extended payment schedule when such a large bond has been estreated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty of the allegations contained within the Administrative Complaint filed against him, dismissing that Administrative Complaint with prejudice, and immediately reinstating Respondent's suspended licenses. DONE and RECOMMENDED this 9th day of April, 1987, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway The Oakland Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0660 Specific rulings as to Petitioner's proposed findings of fact are as follows: Adopted. Rejected as being immaterial. Adopted. Adopted. Rejected as not constituting a finding of fact. Rejected as being immaterial. Adopted. Adopted. Rejected as being secondary. Rejected as being secondary. Adopted. Adopted. Adopted. Rejected as being secondary. Adopted. Rejected as not constituting a finding of fact. Rejected as not constituting a finding of fact. Adopted. Adopted. Rejected as not constituting a finding of fact. Adopted. Specific rulings as to Respondent's proposed findings of fact are as follows: Rejected as not constituting a finding of fact. Rejected as not constituting a finding of fact. Rejected as not constituting a finding of fact. Adopted as to Respondent's licensure; remainder rejected since marital status and education are irrelevant. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Rejected as being secondary. Adopted. Adopted. Rejected as not constituting a finding of fact. Rejected as not constituting a finding of fact. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Adopted. Rejected as being secondary. Adopted. Adopted. Adopted. Rejected as being secondary. Adopted. Rejected as being secondary. Rejected as being secondary. Rejected as not constituting a finding of fact. COPIES FURNISHED: Howard L. Greitzer, Esquire Post Office Box 1778 Ft. Lauderdale, Florida 33302-1778 Lealand L. McCharen, Esquire 413-B Larson Building Tallahassee, Florida 32399-0300 Honorable William Gunter State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300
