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 Upon failure of Petitioner to comply with the terms of the Final Order, his license was revoked for a period of ten months after which the revocation was set aside and his license restored.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.
Findings Of Fact The Respondent, Adriana Winkelmann, d/b/a Adriana's Bail Bonds, Tampa, currently is licensed and eligible for licensure in this State as a Limited Surety Agent. On or about October 31, 1986, William L. Counts and his wife, Madie Counts, a/k/a Madie G. Clark, went to see the Respondent about getting Mr. Counts' first cousin, Clayton D. Counts, bailed out of jail. Cousin Clayton was charged with second degree murder, and bail was set on the second degree murder charge at $5000. Clayton Counts also had been charged with eight other counts involving sexual battery on a child and sexual activity with a child under his custodial authority. On October 2, 1986, Clayton Counts had posted $14,000 of bonds that had been set on the eight charges and had been released from jail. Adriana's Bail Bonds, acting as bail bondsman and as attorney-in-fact for the surety company, Accredited Surety And Casualty Company, Inc. (Accredited or the surety), was the surety on the $14,000 of bonds, and Scott Erickson, a friend of Clayton Counts, indemnified Accredited and put up collateral to secure the indemnification agreement. All but $150 of the premium on the $14,000 of bonds had been paid to Adriana's Bail Bonds; Clayton Counts' wife promised to pay the additional $150 at a later date. When Clayton Counts was re-arrested and charged with second degree murder and just an additional $5000 bond was set on the new charge, Erickson became fearful that Clayton Counts might skip the bonds, jeopardizing Erickson's collateral. He told the Respondent that he wanted to be taken off the bonds. At about this same time, on or about October 31, 1986, Mr. and Mrs. William L. Counts came in to Adriana's Bail Bonds, at Clayton Counts' request, to see about bailing out Clayton for the second time. Mr. and Mrs. Counts agreed with the Respondent to indemnify the surety on the total amount of all of the bonds, $19,000. They agreed to pay the $150 balance of the premium on the bonds put up on or about October 2, 1986, on the first set of charges, plus a $500 premium on the bond put up on or about October 31, 1986, on the second degree murder charge. The indemnity agreement was to indemnify the surety company for the entire $19,000 amount of the bonds in the event of a forfeiture, plus "all claim, demand, liability, cost, charge, counsel fee, expense, suit order, judgment, or adjudication" sustained or incurred by the surety company. As collateral to secure their indemnity agreement, Mr. and Mrs. Counts put up their mobile home, to which they gave the Respondent a power of attorney dated October 31, 1986, and an $8,000 mortgage on a lot worth approximately $8000. They also gave Adriana's Bail Bonds a $19,000 promissory note as collateral. On October 31, 1986, an employee of Adriana's Bail Bonds gave Mr. Counts a collateral receipt, signed by Mr. Counts and the employee, for the $19,000 promissory note, the indemnity agreement, the mortgage on the lot and the mobile home. The original was given to Mr. Counts and Adriana's Bail Bonds kept a copy. There was no evidence that the collateral receipt, or any other statement or affidavit, for this or any other collateral (other than Erickson's original collateral on the $14,000 of bonds on the first set of charges) ever was filed anywhere. Mr. Counts paid $500 by check dated November 14, 1986, for the premium on the $5000 second degree murder bond. In December 1986, Clayton Counts left the state and missed a court appearance on December 19, 1986. The $19,000 of bonds was estreated. In about January 1987, Mrs. Counts went to see the Respondent about substituting some other collateral for the mobile home. She was concerned about where she and her husband would live if the bonds were estreated and forfeited and the mobile home had to be sold to perform the indemnity agreement. She wanted to be able to move the mobile home somewhere else even in that event. After some discussion, it was agreed that the Respondent would accept $6000 cash as substitute collateral in place of the mobile home. Mrs. Counts promised to pay the $6000 in installments of approximately $500 a month. The Respondent repeatedly was able to have the court delay forfeiture of the bonds because she was able to demonstrate that she was trying to locate and return the defendant to the court. In her efforts, the Respondent incurred expenses for hiring private investigators, for a six- day trip to Missouri, for long distance telephone charges, for attorneys' fees for getting postponements of the forfeiture of the bonds and for other miscellaneous expenses. The Respondent collected portions of the promised cash collateral substitution in the following installments, some of which were picked up at the Counts' home by the Respondent: April 21, 1987 $2,000 July 17, 1987 $ 300 August 10, 1987 $ 500 August 20, 1987 $ 800 January 6, 1988 $ 500 On each occasion, the Respondent gave Mrs. Counts a collateral receipt signed by the Respondent and by Mrs. Counts. Each receipt noted the amount received, the balance due on the cash collateral substitution promise, and the $150 balance on the premium on the October 2, 1986 bonds on the first set of charges. Again, there was no evidence that any of these collateral receipts were "filed" anywhere. On January 6, 1988, Mrs. Counts asked the Respondent for a summary of the amounts of collateral paid to that date. The Respondent wrote on a piece of paper, incorrectly dated January 6, 1987, that $4100 had been received to date. Mrs. Counts also was confused what the money would be used for. The Respondent answered her question, saying that the money, together with the lot, would go towards indemnifying the surety for the $19,000 amount of the bonds if they were forfeited and, under the indemnity agreement, could be used to indemnity Adriana's Bail Bonds for expenses caused by the estreature. The Respondent listed these items on a piece of paper, too: Attorney fees to continue case 4 times over one year. Long distance calls for one year. Gas, stamps, & miscellaneous. One trip to Missouri, gas, motel, meals. Investigators services in Missouri and Florida. Later in January 1988, Clayton Counts was arrested and returned to Florida. The bonds, however, were not discharged at that time. Later in 1988, the Respondent made demand on Mrs. and Mrs. Counts for payment of an additional $2,150. This was supposed to represent $2000 due on the cash collateral substitution promise, plus the $150 balance on the premium on the October 2, 1986 bonds on the first set of charges. In fact, only $1900 was due and owning on the cash collateral substitution agreement. In March and April 1988, the Respondent collected from Mrs. Counts two additional $350 installments of the cash collateral substitution promise. Only one receipt was given for both installments, once again signed by both the Respondent and Mrs. Counts, reducing the balance to $1200, plus the $150 premium owing. In June and July 1988, Mrs. Counts was hospitalized. On June 13, 1988, the Respondent went to the hospital to have Mrs. Counts sign a receipt for the return of the original collateral for the $19,000 of bonds--i.e., the $19,000 promissory note and indemnity agreement, the mortgage on the lot and the mobile home. The Respondent did not return the cash collateral. On July 14, 1988, the court entered an order releasing the surety and Adriana's Bail Bonds from the bonds. The Respondent did not return the cash collateral because Mrs. Counts died in July 1988, and the Respondent was unsure to whom the money should be paid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent be found guilty of the violations set forth in the Conclusions of Law portion of this Recommended Order and that her license and eligibility for licensure be suspended for a period of thirty (30) days, that she be required to pay an administrative fine in the amount of $250, and that she be placed on probation for nine months after expiration of the suspension period, conditioned on : (1) successful completion of either a basic certification course or a correspondence course approved by the Bail Bond Regulatory Board; and (2) payment of the cash collateral to the rightful owner, or in the alternative, if the Respondent is in doubt as to the rightful owner, into a court registry in conjunction with an interpleader action, within 30 days of entry of final order. DONE and ENTERED this 24th day of February, 1989, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Hearing Office Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. 88-2588 To comply with Section 120.59(2), Florida statutes (1987), the following rulings are made on the Petitioner'S proposed findings of fact: 1-9. Accepted and, along with other facts, incorporated. 10. Rejected in part and accepted in part. The note was a receipt of sorts, but it was not the only receipt. The incorrect date on the "receipt" was January 6, 1987; the actual date the "receipt" was given was January 6, 1988. 11.-16. Accepted and incorporated. COPIES FURNISHED: S. Marc Herskovitz, Esquire Office of Legal Services Department of Insurance 412 Larson Building Tallahassee, Florida 32399-0300 Don Dowdell General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, FL 32399-0300 James N. Casesa, Esquire 3845 Fifth Avenue North St. Petersburg, Florida 33713 The Honorable Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32999-0300
The Issue Whether Respondent violated provision of the Florida Insurance Code by employing a convicted felon in the bail bond business. Whether Respondent violated the provisions of the Florida Insurance Code by failing to report a change of address to Petitioner.
Findings Of Fact At all times relevant to the dates and occurrences referred to in this matter, Respondent Clarence Luther Cephas, Sr., was licensed in the State of Florida as a bail bond agent. Pursuant to Florida law, Petitioner has jurisdiction over the bail bond licensure and appointments of Respondent. Records of the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida (Criminal Division), show that Pamela Jean Coleman, a/k/a Deborah Lee Diehl, a/k/a Pamela Jean Jones, a/k/a Pamela Jones, a/k/a Pamela Coleman, pleaded guilty and was adjudicated guilty on March 28, 1975, in case number 75-239 CF, of buying or receiving or aiding in concealment of stolen property, a felony. Records of the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida (Criminal Division), show that Pamela Jean Coleman, a/k/a Deborah Lee Diehl, a/k/a Pamela Jean Jones, a/k/a Pamela Jones, a/k/a Pamela Coleman, pleaded guilty and was adjudicated guilty on October 22, 1975, in case number 75-2390 CF, of violation of drug abuse law, a felony. Records of the State of Florida Department of Law Enforcement (FDLE) show that the conviction set forth in paragraph 4 above included convictions on March 28, 1975, and July 17, 1975, for parole violations. On or about March 7, 1980, the State of Florida Office of Executive Clemency restored the civil rights of Pamela Jean Coleman, relative to Coleman's criminal convictions in Palm Beach County, Florida, in 1975. Records of the FDLE show that on or about November 25, 1991, Pamela Jean Coleman, a/k/a Deborah Lee Diehl, a/k/a Pamela Jean Jones, a/k/a Pamela Jones, a/k/a Pamela Coleman, plead nolo contendere, was adjudicated guilty, and convicted of retail theft in Polk County, Florida, a misdemeanor of the first degree, which constituted a crime of moral turpitude. Records of the Circuit Court of the Tenth Judicial Circuit, in and for Polk County, State of Florida, show that on or about November 25, 1991, Pamela Jean Coleman, a/k/a Deborah Lee Diehl, a/k/a Pamela Jean Jones, a/k/a Pamela Jones, a/k/a Pamela Coleman, in case number CF91-1923, pled nolo contendere, was adjudicated guilty and convicted of petit theft, a misdemeanor of the first degree, which constituted a crime of moral turpitude. Records of the Circuit Court of the Tenth Judicial Circuit, in and for Polk County, State of Florida, show that on or about December 16, 2002, an Amended Information was filed against Pamela Jean Coleman (a/k/a Deborah Lee Diehl, a/k/a Pamela Jean Jones, a/k/a Pamela Jones, a/k/a Pamela Coleman) in case number CFO2-00597A-XX, charging that between November 27, 2000, and January 25, 2002, in the County of Polk and State of Florida, having been convicted of or pled guilty or no contest to a felony or a crime involving moral turpitude or a crime punishable by imprisonment of one year or more under the law of any state, territory, or county, regardless of whether adjudication of guilt was withheld, did participate as a director, officer, manager, or employee of a bail bond agency or office thereof or exercise direct or indirect control in any manner in such agency or office or own shares in a closely held corporation which had an interest in a bail bond business contrary to Section 648.44, Florida Statutes. Further, the records of said court show that on or about January 31, 2002, Pamela Jean Coleman (a/k/a Deborah Lee Diehl, a/k/a Pamela Jean Jones, a/k/a Pamela Jones, a/k/a Pamela Coleman) in case number CFO2-00597A-XX, was tried, found guilty and adjudicated guilty of a violation of Section 648.44(8), Florida Statutes, acting as a bail bondsman while being a convicted felon, a felony of the third degree, as charged in the aforesaid Amended Information. Said conviction is presently on appeal before the Florida Second District Court of Appeal. Respondent knew or should have known the foregoing information. Documents under Seal from the Florida Department of State, Division of Corporations, pertaining to Clarence Luther Cephas, Sr., Bailbonds, Ltd., Inc., show that Pamela Jean Coleman filed original documents on behalf of Respondent's corporation and corresponded with the Department of State, Division of Corporations, on behalf of the said corporation. She was listed as both the registered agent of the corporation and also a vice-president and director of the said corporation as set forth on a document filed over the signature of Respondent. Other filed documentation show Pamela Jean Coleman as the president, secretary, and as director of said corporation. These documents are accurate and valid. The original license application form, Florida Insurance Temporary License Application, under Section 11, Screening Question Information, contains the following language: "If you were adjudged guilty or convicted of a felony crime and your civil rights were lost, provide evidence that your civil rights have been restored." There is no evidence in the record that Coleman provided that information to Petitioner at the time the original application was filed or at any time subsequent to that period, and Coleman signed the application. Respondent gave a statement, under oath, before Luis Rivera, Special Investigator for Petitioner's predecessor (Department of Insurance), on November 27, 2000, wherein he stated: I have known Pamela Coleman/Jones for approximately four years and she has been affiliated with me for most of the time that I have been in the bail bond business. I had asked her if she had ever been convicted of a felony and she said that she had been convicted as a teenager. She had a Certificate of Restoration of Civil Rights from the Office of Executive Clemency that is dated March 7, 1980. I was under the impression that if her rights had been restored, that it would not be a problem with her working for me. I named Pamela as an officer in my corporation because I did not have any family that I could list as an officer except for my daughter, who is a deputy sheriff and could not be an office of the corporation. Respondent had a business address-of-record with Petitioner of B & B Bail Bonds, 580 North Broadway Avenue, Bartow, Florida 33830-3918, when in fact his business address was 2095 East Georgia Street, Bartow, Florida 33830-6710. Respondent did not notify Petitioner of a change of address for his corporation as required by law. In November 2000 during an interview, Luis Rivera and another Special Investigator from his office advised Respondent that Petitioner (then the Department of Insurance) considered him to be in violation of Section 648.44(8), Florida Statutes, notwithstanding any restoration of civil rights granted to Pamela Jean Coleman. Luis Rivera visited the home office of Respondent, on March 7 and 21, 2000, at 2095 East Georgia Street, Bartow, Florida 33830-6710, and knew of no other office location for that agent after that date. Constance Castro, a Special Investigator with the Tampa Office, Petitioner (then the Department of Insurance), Bureau of Agent and Agency Investigations, during September 2001, made an undercover visit to the bail bond office of Respondent, and pretended to be in need of a bail bond for a fictitious relative. She dealt directly with Pamela Jean Coleman who proceeded from the home living area of the house where Respondent was also located, to the office area of the home where Coleman conducted bail bond business with Castro. Special Agent Michael Kreis, Drug Enforcement Agency, in early 2001, had business with Cephas Bail Bonds. He went to the office thereof where he observed Pamela Jean Coleman sitting behind the desk. Coleman told him that she had posted bond the night before for the people he was asking about, and was very familiar with the street names of the people that were being sought. Coleman helped to arrange what was supposed to be a meeting between her and one of the suspects using the ruse that she needed the suspect to sign some bail bond paperwork. Kreis observed Respondent in the office but Coleman seemed to be in charge. Kreis observed her on the phone and dealing with people who came into the Cephas' bail bond office, and noted that by her actions and conduct, she was acting as a bail bond agent. On or about June 19, 2001, Noel Elizabeth "Nikki" Collier was working as a paralegal in her husband's law office when Pamela Jean Coleman visited their office with paperwork for one of their mutual clients to fill out. Coleman left her business card which read "Pamela J. Coleman, President, Clarence L. Cephas, Sr. Bail Bonds." Coleman was dressed in a black outfit with a badge attached to her belt. Coleman told her that if the mutual client did not sign the paperwork then the bail bonds would be revoked. When in the law office, Coleman identified herself as an agent for Clarence Cephas Bail Bonds. Respondent acknowledged that Petitioner's Exhibit numbered 8 was indeed a sworn statement made by him during a visit to Petitioner (then Department of Insurance), Bureau of Agent and Agency Investigations, at its offices in Tampa, Florida, in November 2000, and that he was indeed warned by Petitioner's personnel that he was in violation of Section 648.44(8), Florida Statutes. He was subsequently warned by the filing of an Administrative Complaint in June 2001, an Amended Administrative Complaint in December 2001, and a Second Amended Complaint in March 2003. Respondent acknowledged that Pamela Jean Coleman was indeed listed as an officer and as a registered agent as well as the filer of various corporation documents, regarding his corporation and on file with the Department of State, Division of Corporations, and that he did sign the paperwork indicating that she was a corporate officer. Respondent further acknowledged that Coleman did participate in his bail bond business and that he did make payments to her as an employee, which included filing of a W-2 Form indicating said payments. During the pendency of this action, the State of Florida, by and through Jerry Hill, State Attorney for the Tenth Judicial Circuit, prosecuted Respondent for criminal violations of Chapter 648, Florida Statutes (2003), in the case styled State of Florida v Clarence Luther Cephas, Florida Tenth Circuit Court, Case Number CF02-00598A-XX (the "criminal case"). The Circuit Court of the Tenth Judicial Circuit conducted a jury trial in the criminal case. On December 17, 2003, the jury rendered a verdict of "not guilty," and the Circuit Court of the Tenth Judicial Circuit rendered a judgment of not guilty in the criminal case. The allegations contained in the criminal case were identical to the allegation contained in Count one of Petitioner's Second Amended Administrative Complaint. During the approximate period of time March 1997 to at least December 2001, Respondent did employ and/or did otherwise allow Pamela Jean Coleman to participate in the bail bond business. Respondent did fail to notify the Department of Financial Services of a change of address as required by law.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Financial Services enter a final order as follows: Finding Respondent guilty of employing a convicted felon in the bail bond business, in violation of Sections 648.30, 348.44(8)(b), 648.45(2)(e) and (j), and 648.45(3)(a) and (c), Florida Statutes; Finding Respondent guilty of failing to report a change of address; and Revoking the bail bond agent license and eligibility for licensure of Respondent pursuant to Chapter 648, Florida Statutes. DONE AND ENTERED this 1st day of July, 2003, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 2003. COPIES FURNISHED: James R. Franklin, Esquire The Franklin & Carmichael Law Firm, P.A. 301 East Main Street Post Office Box 50 Bartow, Florida 33806 Dickson E. Kesler, Esquire Department of Financial Services 401 Northwest 2nd Avenue, Suite N-321 Miami, Florida 33128 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue At issue is whether respondent committed the offense alleged in the administrative complaint and, if so, what disciplinary action should be taken.
Findings Of Fact The Department excepts to the hearing officer's Finding of Fact number 15, asserting that the hearing officer mischaracterized the persuasive weight of the evidence regarding Mr. Rubino's ownership of the bail funds. At hearing, Mr. Rubino testified that the money he supplied was half of the bond amount necessary to obtain the release of his client's codefendant, Mr. Sergio Gonzalez (Transcript pages 36, 42- 44). He further testified that the source of the bond funds originated from his office account (Transcript page 47) and were not drawn from a check (Transcript page 49). Mr. Rubino's only proof that he owned the bail funds was the following statement: possessed it as "I possessed the money in my pocket" (Transcript page 45). The hearing officer's findings that it was incredulous for Mr. Rubino to advance his own money for a codefendant's bail; that the money advanced by Rubino was street money; and that Mr. Rubino was equivocal in his responses were supported by competent substantial evidence. It is for the hearing officer to consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based upon competent substantial evidence. Heifetz v. Department of Business Regulation, Division of Alcoholic Beverages & Tobacco, 475 So.2d 1277 (Fla. 1st DCA 1985). Therefore, the Department's Exception to Finding of Fact number 15 is REJECTED. The Department excepts to the hearing officer's Finding of Fact number 16, asserting that the hearing officer ignored the Respondent's implicit admission that he mistakenly released the bail money to Ms. Maria Diaz. At hearing, Respondent presented a letter (Respondent's Exhibit 6) in which he advised Mr. Fernandez of his intent to file a complaint with the Miami Police Department against Ms. Maria Diaz for theft of the bail funds. The Respondent also presented a police report receipt from the Miami Police Department (Respondent's Exhibit 4) demonstrating that he filed a police report against Ms. Diaz (Case Incident Number 346-1561T) in connection with the alleged theft of the above-referenced money. Both exhibits were received into evidence and demonstrated that the Respondent concluded that Ms. Diaz was not entitled to the bail money after the fact. Notwithstanding this evidence, the hearing officer's Finding of Fact number 16 addressed Mr. Rubino's ownership interest in the bail funds, not whether Respondent wrongfully returned the bail funds. The Department's arguments regarding this exception are misplaced because the Department fails to demonstrate how the hearing officer's finding of fact that Mr. Rubino did not have any lawful entitlement to the bail funds was not supported by competent substantial evidence. See Heifetz, supra. Therefore, the Department's Exception to Finding of Fact number 16 is REJECTED. The Department excepts to the hearing officer's Finding of Fact number 17, alleging that Mr. Joaquin Fernandez's testimony regarding his disavowment of the bail money was taken out of context. However, Mr. Fernandez's testimony on transcript page 177 is consistent with his testimony contained on transcript pages 163 and 165. Thus, the Department has failed to prove that the hearing officer's finding of fact was not supported by competent substantial evidence. As a result, the Department's Exception to Finding of Fact number 17 is REJECTED. The Department excepts to Finding of Fact number 20, alleging that said finding is inconsistent with the hearing officer's Finding of Fact number 16. The Department confuses the hearing officer's observations regarding Mr. Fernandez's credibility concerning the Respondent's good character with the elements necessary to prove the violations cited in the administrative complaint. Mr. Fernandez testified at hearing that he continued to do business with the Respondent following his written request for the return of the bail money; that he was a very good friend of the Respondent; and that the Respondent was deceived by Ms. Diaz to release the bail money to her (Transcript pages 173- 174,182). The Department has failed to prove that the hearing officer's finding of fact regarding Mr. Fernandez's credibility was not supported by competent substantial evidence. Consequently, the Department's Exception to Finding of Fact number 20 is REJECTED. The Department excepts to Finding of Fact number 21, asserting that the hearing officer drew improper inferences from the evidence presented regarding Respondent's deposit of $10,000 into his attorney's trust account. It appears that the Department has interpreted the hearing officer's finding of fact as dispositive of Respondent's guilt. However, the hearing officer's findings are supported by competent substantial evidence through the testimony of Mr. Rubino, Petitioner's Exhibits 5D, 5E, and 5F and Respondent's Exhibit 10. Moreover, the hearing officer is permitted to draw permissible inferences based upon the evidence presented. Heifetz, supra. Therefore, the Department's Exception to the hearing officer's Finding of Fact number 21 is REJECTED. RULINGS ON THE DEPARTMENT'S EXCEPTIONS TO THE HEARING OFFICER'S CONCLUSIONS OF LAW The hearing officer was entirely correct in finding that Respondent was justified in his belief that Mr. Rubino was not entitled to the return of the bond premium payment. However, the hearing officer erred as a matter of law by concluding that Ms. Diaz was entitled to the return of the bail money. Respondent did not receive the funds from Ms. Diaz, as evidenced by the pre- numbered receipt given to Mr. Fernandez. Respondent had not received any purported written or oral permission from Mr. Fernandez authorizing the release of the funds to Ms. Diaz. There is no evidence noted in the recommended order or the exceptions, that Mr. Fernandez ever indicated to the Respondent that Ms. Diaz was the source of the funds, or had any right to the funds. Respondent had no basis, other than Ms. Diaz's bald oral assertions, that she had any right to receive the refund of the premium deposits. It is uncontested that Respondent received the bail bond premium deposit from Mr. Fernandez's office, and gave Mr. Fernandez a written receipt. In the usual course of business, bail bondsmen return bail moneys to the receipted person or persons upon termination of the bond liability. This receipting system is fundamental to bail bondsmen accounting procedures. See Rule 4-221.115, Florida Administrative Code. Certainly, under normal circumstances, Respondent could have and should have returned the funds to Mr. Fernandez, which would have shielded him from any liability, if he had done so. And in normal circumstances, Respondent would be guilty of violating 648.295(1), Florida Statutes and would be subject to discipline by the Department. However, these are not normal circumstance, due to Mr. Fernandez's testimony that he did not know where the bond premium deposit money came from, where it went, and "could care less." In these highly unusual circumstances, in which the apparently wronged and victimized person, Mr. Fernandez, is indifferent to the events that transpired, it would be incongruous and inequitable to find that the Respondent violated section 648.295(1), Florida Statutes, for failing to return the bond funds to a person, who by his own testimony, "could care less" what happened to the funds. Therefore, while rejecting the hearing officer's conclusion that the Respondent was justified in returning the funds to Ms. Diaz, the hearing officer's ultimate recommendation that the case be dismissed is accepted. Based upon the evidence presented at hearing, as discussed in paragraphs 6, 7 and 8 above, the Department has failed to prove by clear and convincing evidence that the Respondent is subject to discipline by the Department pursuant to section 648.45(2), Florida Statutes. Therefore, the Department's Exception to Conclusion of Law number 27 is REJECTED. Based upon the evidence presented at hearing, as discussed in paragraphs 6, 7, and 8 above, the Department has failed to prove by clear and convincing evidence that the Respondent is subject to discipline by the Department pursuant to section 648.43(3), Florida Statutes. Therefore, the Department's Exception to Conclusion of Law number 28 is REJECTED. Based upon the evidence presented at hearing, as discussed in paragraphs 6, 7, and 8 above, the Department failed to prove that Respondent utilized the bail money to his own use or benefit. As a result, the Department failed to prove by clear and convincing evidence that the Respondent violated section 648.295(3), Florida Statutes. Therefore, the Department's Exception to Conclusion of Law number 30 is REJECTED. Based upon the evidence presented at hearing, as discussed in paragraphs 6, 7, and 8 above, the Department failed to prove by clear and convincing evidence that the Respondent violated section 648.295(1), Florida Statutes. Therefore, the Department's Exception to Conclusion of Law number 32 is REJECTED RULINGS ON THE DEPARTMENT'S EXCEPTIONS TO THE HEARING OFFICER'S ENDNOTES The Department was correct in bring the instant action based upon the allegations, as alleged in the administrative complaint. However, the Department's Exception to Endnote number 1 is REJECTED, to the extent that the allegations were proved by clear and convincing evidence. The Department's Exception to Endnote number 2 is ACCEPTED. The Department's Exception to End note number 3 is REJECTED because the hearing officer clearly stated in this endnote that Finding of Fact number 15 was based upon the record evidence. The Department's Exception to Endnote number 4 is REJECTED. Rule 4- 231.160(e), Florida Administrative Code, permits the Department to consider the timeliness of restitution as a mitigating or aggravating factor. The Department does not have any legal authority, aside from situations involving Consent Orders, thorough its penalty rule or statutory provisions of the Florida Insurance Code, to order restitution or to condition its penalty on the making of restitution. Upon careful consideration of the Record, the submissions of the parties and being otherwise advised in the premises, it is ORDERED: The Findings of Fact of the hearing officer, as modified in this Order, are adopted as the Department's Finding of Fact. The Conclusions of Law of the hearing officer, as modified in this Order, are adopted as the Department's Conclusion of Law. The End notes of the hearing officer, as modified in this Order, are adopted as the Department's End notes. The hearing officer's Recommendation that the Administrative Complaint be dismissed is ACCEPTED as being the appropriate disposition for this particular case. Any party to these proceedings adversely affected by this Order is entitled to seek review of this Order pursuant to Section 120.68, Florida Statutes, and Rule 9.110, Florida Rules of Appellate Procedure. Review proceedings must be instituted by filing a Notice of Appeal with the General Counsel, acting as the agency clerk, at 412 Larson Building, Tallahassee, Florida 32399-0300, an a copy of the same and the filing fee with the appropriate District Court of Appeal within thirty (30) days of rendition of this Order. DONE and ORDERED this 11th day of July, 1996. BILL NELSON Insurance Commissioner and Treasurer
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the administrative complaint. 4/ DONE AND ENTERED this 12th day of April 1996 in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of April 1996.
The Issue Whether Respondent, a bail bondsman, committed the offenses alleged in the Amended Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact At all times pertinent to this proceeding, Respondent was licensed by Petitioner as a limited surety and as a professional bail bondsman. Prior to November 23, 1992, Gredys Tarazona entered into an agreement for Respondent to post a bond for James Johansen. In connection with that transaction, Ms. Tarazona delivered to Respondent the sum of $200 that was to serve as collateral security for the bond. They agreed that the sum of $200 would be returned to Ms. Tarazona once the conditions of the bond had been satisfied. On November 23, 1992, the conditions of this bond were satisfied and the liability on the underlying bond was terminated. Respondent failed to return the sum of $200 to Ms. Tarazona despite demands for her to do so. Prior to August 23, 1992, Julian Maldonado purchased a bail from Respondent. In connection with that transaction, Mr. Maldonado delivered to Respondent the sum of $200 that was to serve as collateral security for the bond. They agreed that the sum of $200 would be returned to Mr. Maldonado once the conditions of the bond had been satisfied. On August 23, 1992, the conditions of this bond were satisfied and the liability on the underlying bond was terminated. Respondent failed to return the sum of $200 to Mr. Maldonado despite demands for her to do so. Prior to April 1, 1993, Faye Finley entered into an agreement for Respondent to post a bond for Michael Finley. In connection with that transaction, Ms. Finley delivered to Respondent the sum of $200 that was to serve as collateral security for the bond. They agreed that the sum of $200 would be returned to Ms. Finley once the conditions of the bond had been satisfied. On April 1, 1993, the conditions of this bond were satisfied and the liability on the underlying bond was terminated. Respondent failed to return the sum of $200 to Ms. Finley despite demands for her to do so. Prior to November 8, 1992, Robert Post purchased a bail from Respondent. In connection with that transaction, Mr. Post delivered to Respondent the sum of $150 that was to serve as collateral security for the bond. They agreed that the sum of $150 would be returned to Mr. Post once the conditions of the bond had been satisfied. On November 8, 1992, the conditions of this bond were satisfied and the liability on the underlying bond was terminated. Respondent failed to return the sum of $150 to Mr. Post despite demands for her to do so. Prior to December 10, 1992, Jo Anne Adams entered into an agreement for Respondent to post a bond for Wilfred Byam. In connection with that transaction, Ms. Adams delivered to Respondent the sum of $200 that was to serve as collateral security for the bond. They agreed that the sum of $200 would be returned to Ms. Adams once the conditions of the bond had been satisfied. On December 10, 1992, the conditions of this bond were satisfied and the liability on the underlying bond was terminated. Respondent failed to return the sum of $200 to Ms. Adams despite demands for her to do so. Prior to December 22, 1992, Shannon Davidson purchased a bail bond from Respondent. In connection with that transaction, Mr. Davidson delivered to Respondent the sum of $250 that was to serve as collateral security for the bond. They agreed that the sum of $250 would be returned to Mr. Davidson once the conditions of the bond had been satisfied. On December 22, 1992, the conditions of this bond were satisfied and the liability on the underlying bond was terminated. Respondent failed to return the sum of $250 to Mr. Davidson despite demands for her to do so. Prior to July 23, 1993, Albert Perone entered into an agreement for Respondent to post a bond for Richard Falaro. In connection with that transaction, Mr. Perone delivered to Respondent the sum of $250 that was to serve as collateral security for the bond. They agreed that the sum of $250 would be returned to Mr. Perone once the conditions of the bond had been satisfied. On July 23, 1993, the conditions of this bond were satisfied and the liability on the underlying bond was terminated. Respondent failed to return the sum of $250 to Mr. Perone despite demands for her to do so. Respondent permitted her husband, Ken Jenkins, to participate in the transaction involving the bail bond purchased by Mr. Perone for Mr. Falaro. At the time she permitted him to engage in the conduct of her bail bondsman business as part of the Perone transaction, Respondent knew or should have known that her husband's license as a bail bondsman had been revoked and that he had entered a plea of guilty to a felony charge in a criminal proceeding. On or about April 27, 1993, Respondent received payments totaling $650 for placement of a bond from Angelene G. Goulos. No bond was posted by the Respondent. Respondent failed to return any part of the sum she had received from Ms. Goulos despite demands for her to do so. Prior to November 18, 1992, Ross Rankin purchased a bail bond from Respondent. In connection with that transaction, Mr. Rankin delivered to Respondent the sum of $250 that was to serve as collateral security for the bond. They agreed that the sum of $250 would be returned to Mr. Rankin once the conditions of the bond had been satisfied. On November 18, 1992, the conditions of this bond were satisfied and the liability on the underlying bond was terminated. Respondent failed to return the sum of $250 to Mr. Rankin despite demands for her to do so. Prior to May 18, 1993, Mary Pilcher entered into an agreement for Respondent to post a bond for Hassan Niksirat. In connection with that transaction, Ms. Pilcher delivered to Respondent the sum of $200 that was to serve as collateral security for the bond. They agreed that the sum of $200 would be returned to Ms. Pilcher once the conditions of the bond had been satisfied. On May 18, 1993, the conditions of this bond were satisfied and the liability on the underlying bond was terminated. Respondent failed to return the sum of $200 to Ms. Pilcher despite demands for her to do so. Prior to March 31, 1993, Tania Rodriguez, a/k/a, Tania Cuevas entered into an agreement for Respondent to post a bond for Edwin Cuevas. In connection with that transaction, Ms. Rodriguez delivered to Respondent the sum of $400 that was to serve as collateral security for the bond. They agreed that the sum of $400 would be returned to Ms. Rodriguez once the conditions of the bond had been satisfied. On March 31, 1993, the conditions of this bond were satisfied and the liability on the underlying bond was terminated. Respondent failed to return the sum of $400 to Ms. Rodriguez despite demands for her to do so. On May 4, 1993, and May 6, 1993, Respondent permitted her husband, Ken Jenkins, to conduct bail bond business in transactions with Mary Gandy, another bail bondsman. At the time she permitted him to engage in the conduct of her bail bondsman business in transactions with Ms. Gandy, Respondent knew or should have known that her husband's license as a bail bondsman had been revoked and that he had entered a plea of guilty to a felony charge in a criminal proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order that adopts the findings of fact and conclusions of law contained herein. It is further recommended that Petitioner revoke Respondent's existing licensure and her eligibility for licensure under the Florida Insurance Code. DONE AND ENTERED this 7th day of June, 1996, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of June, 1996. COPIES FURNISHED: Bill Tharpe, Esquire Division of Legal Services 612 Larson Building Tallahassee, Florida 32399-0333 Dickson E. Kesler, Esquire Division of Agent and Agency Services 8070 N.W. 53rd Street, Suite 103 Miami, Florida 33166 Loudelle Davis Jenkins 1372 Northampton Terrace West Palm Beach, Florida 33414 Honorable Bill Nelson State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Dan Sumner, General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
