The Issue This is a license discipline case in which the Respondent has been charged by Administrative Complaint with violations of several provisions of Chapter 648, Florida Statutes. All of the violations charged relate to allegations that the Respondent failed to return certain personal property received by the Respondent as collateral security on a surety bond.
Findings Of Fact Facts admitted by all parties The Respondent, Sergio Roque, Jr., is currently licensed in this state as a limited surety agent. At all times relevant to the dates and occurrences referred to in the Administrative Complaint in this matter, the Respondent was licensed in this state as a limited surety agency. On or about July 19, 1990, Respondent, while acting in his capacity as a limited surety agent, did, as agent for Amwest Surety Insurance Company, post a $100,000 general surety appearance bond, power number X00-0-00000331, to obtain the release of defendant Domingo Arrechea from the Dade County Jail. In conjunction with the posting of the aforementioned surety bond, Respondent did on or about July 19, 1990, receive $10,000, which represented the premium payment for said surety bond. Respondent did in conjunction with the posting of said bond receive from indemnitor Lorraine DeVico a diamond engagement ring, a Rolex watch, and the title to a 1979 Mercedes automobile (ID#11602412149348) as partial collateral security for the aforementioned surety bond. On or about April 3, 1991, Respondent did cause to be surrendered back into custody the defendant Domingo Arrechea, thus terminating all liability for said surety bond. Respondent has failed to return to indemnitor Lorraine DeVico the collateral security described above; namely, the diamond engagement ring, the Rolex watch, and the title to the 1979 Mercedes automobile. Additional facts proved at hearing In addition to the collateral described above, the Respondent also received as collateral from the defendant Arrechea, and from the defendant's wife, a conditional mortgage on a condominium. In addition to the collateral described above, the Respondent also received as collateral from "Mike Farina" a conditional mortgage on real estate owned by Mike Farina. Mike Farina was a friend of the defendant Arrechea. "Mike Farina" later turned out to be a fictitious name. Lorraine DeVico was a very close friend of the defendant Arrechea. The Rolex watch Ms. DeVico put up as part of the collateral for Arrechea's bond was a watch that had been given to her by her father. Shortly after Ms. DeVico put the watch up for collateral, her father began to inquire as to the whereabouts of the watch. Because she felt that her father would disapprove of what she had done, and because her father was the source of most of her wealth, Ms. DeVico told several lies to her father about the whereabouts of the watch. As a result of continuing inquiries by her father, Ms. DeVico wanted her watch back and no longer wanted to be responsible under the indemnity agreement she had signed. Towards the beginning of February 1991, Ms. DeVico began to call the Respondent to advise that she was frightened that the defendant Arrechea was considering jumping bond. The Respondent received numerous calls from Ms. DeVico requesting return of her collateral and requesting to be off the indemnity agreement. Consequently, the Respondent hired MV Investigations on February 16, 1991, to locate the defendant Arrechea. On March 27, 1991, Ms. DeVico advised the Respondent that the defendant Arrechea was not answering his digital pager and that his telephone had been disconnected. She advised the Respondent that she sent her employee to look for Arrechea but could not find him. She asked the Respondent to pick up the defendant Arrechea and get her off the bond, agreeing to pay all the expenses. On April 1, 1991, Ms. DeVico again asked the Respondent to pick up the defendant Arrechea and again agreed that she would pay the costs associated with the pick-up. On April 3, 1991, the investigators hired by the Respondent located and picked up defendant Arrechea and surrendered him back to the Dade County Jail. The Respondent returned the collateral deposited by Mr. Farina and by the defendant Arrechea and his wife. After having the defendant Arrechea picked up and surrendered, the Respondent called Ms. DeVico to give her the information and advise her of the pick-up costs. Ms. DeVico verbally refused to pay any pick-up costs. On April 14, 1991, the Respondent sent by certified mail to Ms. DeVico a notice under Section 648.442, Florida Statutes, notifying her that he would be selling her collateral in ten days against his pick-up expenses. The Respondent sold the Rolex watch and diamond ring pledged as collateral by Ms. DeVico after expiration of the ten days. The indemnity agreement signed by Ms. DeVico in conjunction with applying for bail for the defendant Arrechea included the following language: 2. The indemnitor(s) will at all times indemnify and keep indemnified the Company and save harmless the Company from and against any and all claims, demands, liabilities, costs, charges, legal fees, disbursements and expenses of every kind and nature, which the Company shall at any time sustain or incur, and as well from all orders, decrees, judgments and adjudications against the Company by reason or in consequence of having executed such bond or undertaking in behalf of and/or at the instance of the indemnitor(s) (or any of them) and will pay over, reimburse and make good to the Company, its successors and assigns, all sums and amounts of money required to meet every claim, demand, liability, costs, expense, suit, order, decree, payment and/or adjudication against the Company by reason of the execution of such bond or undertaking and any other bonds or undertakings executed in behalf of and/or at the instance of the Indemnitor(s) and before the Company shall be required to pay thereunder. The liability for legal fees and disbursements includes all legal fees and disbursements that the Company may pay or incur in any legal proceedings, including proceedings in which the Company may assert or defend its right to collect or to charge for any legal fees and/or disbursements incurred in earlier proceedings. * * * 7. The Indemnitor(s) agree(s) that the Company may at any time take such steps as it may deem necessary to obtain its release from any and all liability under any of said bonds or undertakings, and it shall not be necessary for the Company to give the Indemnitor(s) notice of any fact or information coming to the Company's notice or knowledge concerning or affecting its rights or liability under any such bond or undertaking, notice of all such being hereby expressly waived; and that the Company may secure and further indemnify itself against loss, damages and/or expenses in connection with any such bond or undertaking in any manner it may think proper including surrender of the defendant (either before or after forfeiture and/or payment) if the Company shall deem the same advisable; and all expenses which the Company may sustain or incur or be put to in obtaining such release or in further securing itself against loss, shall be borne and paid by the Indemnitor(s). In conjunction with applying for bail for the defendant Arrechea, Ms. DeVico also signed a Bail Bond Information Sheet which advised her in bold print that: When all agreements have been fulfilled and bond is discharged, in writing or by the court, and without loss expense on the bond, your full collateral will be returned to you.
Recommendation On the basis of all of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance and Treasurer enter a Final Order in this case to the following effect: Concluding that the Respondent is guilty of the violations charged in the Administrative Complaint, and Imposing an administrative penalty consisting of an administrative fine in the amount of $1,000.00 and a suspension of the Respondent's license for a period of 90 days. DONE AND ENTERED this 12th day of May 1993, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 May 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-4378 The following are my specific rulings on all of the proposed findings of fact submitted by all of the parties. Proposed findings submitted by Petitioner: Paragraphs 1 through 6: Accepted. Paragraph 7: Rejected for two reasons; first, the proposed finding is irrelevant because it is not alleged in the Administrative Complaint, and, second, the proposed finding was not proved by clear and convincing evidence. Proposed findings submitted by Respondent: Paragraphs 1 through 4: Accepted. Paragraph 5: First sentence accepted. Remainder of this paragraph rejected as subordinate and unnecessary details. Paragraphs 6 through 13: Accepted in substance with some details clarified. Paragraph 14: First sentence accepted. Remainder rejected as subordinate and unnecessary details. Paragraph 15: Rejected as constituting procedural details or conclusions of law, rather than proposed findings of fact. Paragraph 16: Rejected as constituting statement of position or legal argument, rather than proposed finding of fact. Paragraph 17: First sentence accepted. The remainder of this paragraph is rejected as constituting conclusions of law or legal argument, rather than proposed findings of fact. Paragraph 18: Rejected as constituting a conclusion of law, rather than a proposed finding of fact. Paragraphs 19 and 20: Accepted COPIES FURNISHED: David D. Hershel, Esquire Department of Insurance Division of Legal Services 612 Larson Building Tallahassee, Florida 32399-0300 Martin L. Roth, Esquire Haber & Roth 1370 Northwest 16th Street Miami, Florida 33125 Honorable Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neill, General Counsel Department of Insurance The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue Should Respondent's license as a bail bond agent in the State of Florida be disciplined for the alleged violation of certain provisions of Chapter 648, Florida Statutes, as set forth in the Administrative Complaint and, if so, what penalty should be imposed?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida vested with the statutory authority to administer the disciplinary provisions of Chapter 648, Florida Statutes. Respondent, at all times relevant to this proceeding, was licensed as a bail bond agent in the State of Florida and subject to the provisions of Chapter 648, Florida Statutes. Respondent, at all times relevant to this proceeding, was employed by Alliance Bail Bonds (Alliance), which was owned by Linda Jones. There was a verbal employment agreement between Alliance and Respondent, which provided for, among other things, Respondent's salary. However, the verbal employment agreement did not require that Respondent write bail bonds exclusively for Alliance. At all times relevant to this proceeding, Alliance's office was located in Respondent's home in Titusville, Brevard County, Florida, which had a separate entrance and separate telephone for Alliance. Alliance's files, both active and inactive, were also housed in this office. On March 30, 2000, a person identifying himself as Johnny Lamb contacted Respondent by telephone concerning a bail bond for an individual known as Bernard J. Dougherty who was being held in the Brevard County, Florida, jail. The bond amount was $8,500.00. Since Dougherty was not a resident of the State of Florida, Respondent wanted Lamb to put up the full amount of the bond as collateral. However, Lamb advised Respondent that he did not have enough cash to put up the full amount of the bond. Therefore, Respondent and Lamb eventually agreed on $7,000.00 cash as collateral. Additionally, Respondent advised Lamb that the premium for writing the bail bond would be $850.00 (10 percent of the bond amount). Later that same day, Lamb came to Respondent's office to complete the paperwork and put up the necessary funds for the collateral and bond premium. Lamb paid Respondent the collateral and bond premium in cash (U.S. currency, 20's, 50's, and 100's). Respondent prepared a Collateral Receipt and Informational Notice (Collateral Receipt), which was signed by Lamb. The Collateral Receipt indicated that Lamb had deposited the $7,000.00 collateral with Respondent and had executed an Indemnity Agreement and Promissory Note. Lamb also executed a Bail Application. Respondent gave Lamb the white copy of the Collateral Receipt for his records. The goldenrod copy of the Collateral Receipt was also given to Lamb to be delivered to Dougherty at the jail. The yellow copy and pink copy of the Collateral Receipt were retained by Respondent for Alliance's record. Lamb also paid Respondent $850.00 in cash (U.S. Currency) for the bail bond premium for which Respondent gave Lamb a receipt (number 20454) indicating that Lamb had paid the bail bond premium in the amount of $850.00. After completing the bond transaction with Lamb, Respondent prepared a file in Dougherty's name, which included the copies of the Collateral Receipt, Promissory Note, Indemnity Agreement, Bail Application, and a copy of the receipt for the bail bond premium. After preparing the file, Respondent prepared two Powers of Attorney (Powers), one in the amount of $5,000.00 and one in the amount of $3,500.00, and proceeded to the Brevard County jail to interview Dougherty. Upon arriving at the Brevard County jail, Respondent was advised that in addition to the Brevard County charges, there was an outstanding warrant for Dougherty from Volusia County and a hold for a parole violation in the State of Pennsylvania. Lamb was not present at the Brevard County jail at this time. Therefore, Respondent advised Dougherty of the Volusia County warrant and the hold from Pennsylvania. Respondent further advised Dougherty that although he could post bond for the Brevard County charges, Dougherty would not be released because of the Volusia County warrant and the hold for parole violation in Pennsylvania. Dougherty advised Respondent that he did not want to post bond. Whereupon, Respondent attempted to contact Lamb using the telephone numbers furnished Respondent by Lamb but was unsuccessful in locating Lamb. On March 31, 2000, Respondent called the Brevard County jail and had Lamb paged. Upon being advised that Lamb was present in the Brevard County jail, Respondent asked that they instruct Lamb to call Respondent at his office. Lamb called Respondent at his office and was advised of the situation concerning Dougherty. Respondent also advised Lamb that he was on his way to the jail and would bring Lamb's money with him. Upon arriving at the Brevard County jail, Respondent explained the circumstances regarding the posting of bail for Dougherty and proceeded to return Lamb's money. Lamb did not have the copies of the Collateral Receipt with him that had been given to Lamb on March 30, 2000. Therefore, Respondent took his copy of the Collateral Receipt and documented the return of the $7,000.00 collateral and the $850.00 premium fee. Lamb signed the documentation on the Collateral Receipt showing the return of the $7,000.00 collateral and the $850.00 premium fee. Respondent then placed all of the documents, including the Collateral Receipt with the documentation showing the return of the $7,000.00 collateral and the $850.00 bond premium, in Dougherty's file with Dougherty's name highlighted in blue for filing. Afterwards, Respondent voided the Powers by writing "Void" across the front of the Powers and had them sent to Linda Jones by UPS. Subsequently, the Powers were forwarded by Linda Jones to Charles A. Parish, Agent for Continental Heritage Insurance Co., on whom the Powers were written. On March 31, 2000, Respondent returned the $7,000.00 collateral plus the $850.00 bond premium fee to Lamb, notwithstanding the testimony of Lamb to the contrary, which lacks credibility. Respondent did not at any time present any of the paperwork for posting Dougherty's bond, including the Powers, to the Brevard County jail personnel. Since Alliance's Brevard County files were being kept at Respondent's office in Titusville, Florida, Respondent did not forward Dougherty's file to Linda Jones. However, as a caution, Respondent advised Linda Jones by telephone of what had occurred in regards to Dougherty, notwithstanding Linda Jones' testimony to the contrary, which lacks credibility. Sometime in January 2001, Linda Jones came into Respondent's office in Titusville, Florida, and removed all of Alliance's Brevard County files, both active and inactive, that were in the possession of Respondent. The Alliance files removed by Linda Jones included Dougherty's inactive file with the documentation concerning the return of the $7,000.00 collateral and the $850.00 bail bond premium, notwithstanding Linda Jones' testimony to the contrary, which lacks credibility. By letter dated May 10, 2001, after talking to William Travis and Linda Jones, Lamb filed a complaint with the Department alleging that Respondent had failed to return the $7,000.00 collateral and this proceeding ensued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order finding Respondent, Michael Scott Kelly, not guilty of violating Subsections 648.442(1) and (3); and 648.45(2)(d),(e),(g),(h), (j), and (n), and (3)(a),(c),(d), and (e), Florida Statutes, and dismissing the Administrative Complaint filed against Michael Scott Kelly. DONE AND ENTERED this 23rd day of April, 2002, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of April, 2002. COPIES FURNISHED: Dickson E. Kesler, Esquire Department of Insurance Division of Legal Services 200 East Gaines Street 612 Larson Building Tallahassee, Florida 32399-0333 Honorable Tom Gallagher State Treasurer/Insurance Commissioner Department of Insurance The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307 Steven G. Casanova, Esquire 100 Rialto Place, Suite 510 Melbourne, Florida 32935
The Issue Whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, the penalty which should be imposed.
Findings Of Fact Respondent was at all times relevant hereto licensed by Petitioner in the State of Florida as a Limited Surety Agent (Bail Bondsman) and as a Life and Health Insurance Agent. On January 1, 1988, Daniel Del Sardo was arrested and incarcerated in Broward County, Florida, on charges of forgery, uttering a forged instrument, grand theft of the second degree, and possession of a stolen credit card. His bail was set in the amount of $3,100.00. On March 29, 1988, Sabastian Del Sardo (Complainant), the father of Daniel Del Sardo, and Respondent entered into an agreement for Accredited Surety & Casualty Company, Inc., for whom Respondent acted as agent and attorney in fact, to post the bail bond for Daniel Del Sardo. Complainant paid Respondent the sum of $350.00 as the premium for the bail bond and agreed to indemnify Accredited Surety & Casualty Company, Inc., the surety on the bond, in the event the surety suffered a loss on the bail bond. In addition, Complainant tendered to Respondent, as additional security, a check in the amount of $1,000.00 and the title to a 1979 Cadillac. Complainant told Respondent to hold the check until April 3, 1988, the date Complainant was scheduled to receive his social security check. On April 4, 1988, Complainant gave to Respondent the sum of $750.00 in cash in exchange for the $1,000.00 check that Respondent had been holding since March 29, 1988. The collateral security was accepted by Respondent as attorney in fact and in trust for Accredited Surety & Casualty Company, Inc. By the terms of the agreement executed by Complainant and Respondent, Complainant was entitled to a return of the collateral security within 21 days after the bail bond was discharged in writing by the court. On or about April 7, 1988, Complainant asked Respondent to take Daniel Del Sardo back into custody because Daniel had gotten back on drugs and had been stealing from Complainant and Complainant's wife. Respondent had sufficient justification to return Daniel Del Sardo to custody. While there was a verbal agreement between Complainant and Respondent that Respondent would return Daniel to custody, there was no agreement as to how, or whether, Respondent was to be compensated for doing so. Respondent incurred expenses in locating Daniel Del Sardo and in returning him to custody. Respondent and one of his employees spent over twenty hours looking for Daniel Del Sardo. When he was located, Daniel Del Sardo was high on drugs and did not go to jail peaceably. While he was in the process of taking Daniel Del Sardo back into custody, Respondent's clothing was damaged. Respondent's employee transported Daniel Del Sardo from Miami, Florida, to the Broward County, Florida, jail on April 10, 1988. On April 20, 1988, Daniel Del Sardo changed his plea from not guilty to guilty on the four counts and was sentenced to a total of four years in prison. The bond posted on behalf of Daniel Del Sardo was discharged on April 26, 1988. On April 28, 1988, Complainant asked Respondent to return the car title and the $750.00 security deposit he had given Respondent. Respondent refused to return the entire deposit and told Complainant that he was going to keep the sum of $525.00 to reimburse himself for expenses he had incurred in taking Daniel Del Sardo back into custody. Complainant did not agree that Respondent was entitled to reimbursement of expenses. Further, Complainant did not agree that $525.00 was a reasonable figure for the expenses Respondent had incurred. In response to Complainant's demand that his entire deposit be refunded, Respondent, on April 28, 1988, returned the car title and the sum of $225.00 to Complainant. Respondent kept the sum of $525.00 to reimburse himself for the expenses he incurred in returning Daniel to custody. In charging Complainant for the expenses he incurred in returning Daniel Del Sardo to custody and in deducting those expenses from the collateral security, Respondent was following a practice that has developed among those engaged in the bail bond business in Dade County, Florida. Complainant filed a complaint with Petitioner on the grounds that his entire deposit of $750.00 had not been returned, asserting that there had been no agreement that he would pay Respondent's expenses for taking Daniel back into custody. On or about June 20, 1988, one of Petitioner's investigators contacted Respondent about the complaint. On June 21, 1988, Respondent paid to Complainant the sum of $525.00, representing the balance of the security deposit he had earlier received from Complainant. On January 26, 1989, Petitioner filed an administrative complaint against Respondent based on his dealings with Sabastian Del Sardo. The administrative complaint charged Respondent with violating the following: Section 648.44(1)(g), Florida Statutes, Section 648.442(1), Florida Statutes, Section 648.442(4), Florida Statutes, Section 648.45(2)(e), Florida Statutes, Section 648.45(2)(f), Florida Statutes, and Section 648.45(2)(j), Florida Statutes. Respondent denied the allegations of the Administrative Complaint and timely requested a formal hearing. There was no evidence that Respondent has been previously disciplined by Petitioner.
Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED that Petitioner, Florida Department of Insurance, enter a final order which finds that Respondent, Gerald Carpenter, violated the provisions of Sections 648.422(1) and (4), Florida Statutes, and Section 648.45(2)(j), Florida Statutes. It is further RECOMMENDED that an administrative fine in the amount of $500.00 be levied against Respondent. DONE AND ENTERED this 6th day of October, 1989, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-2356 The following rulings are made on the proposed findings of fact submitted by Respondent: The proposed findings of paragraph 1 are rejected as being unnecessary to the results reached. Whether Respondent was justified in returning Daniel Del Sardo to custody is not in issue. The proposed findings of paragraph 2 are rejected as being speculation. The proposed findings of paragraph 3 are rejected as being subordinate to the findings made. The proposed findings of paragraph 4 are rejected as being conclusions of law. COPIES FURNISHED: Brian Norton, Esquire Office of Legal Services 412 Larson Building Tallahassee, Florida 32399-0300 Randolph Q. Ferguson 1644 Northwest 17th Avenue Miami, Florida 33125 Honorable Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Don Dowdell, General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300
Findings Of Fact Petitioner was first licensed as a ball bondsman in 1961 or 1962. In 1969 (Exhibit 2), Petitioner was charged with being incompetent and untrustworthy as a bail bondsman, found guilty and placed on one year's probation which was successfully completed. In 1973, Petitioner was again charged with conducting himself in a manner unbecoming a bail bondsman (Exhibit 3). These charges alleged failure to return the premium paid on a supersedes bond when the prisoner was not released from jail on the bond and failure to maintain his office open to the general public as required. In the Final Order issued in this case, Petitioner was fined $850 and placed on probation for two years. Upon failure of Petitioner to comply with the terms of the Final Order, his license was revoked for a period of ten months after which the revocation was set aside and his license restored. In 1979, a hearing was conducted by the undersigned Hearing Officer on charges alleging that Petitioner had failed to maintain the minimum requirement for permanent office records and failed to maintain a place of business accessible to the public and be actively engaged in the bail bond business in violation of Chapter 64B, Florida Statutes. Petitioner was found guilty as charged, and the recommendation that his license be revoked was adopted by the Commissioner of Insurance in the Final order. In 1986, Petitioner was arrested for operating a donut shop in Tampa utilizing topless waitresses in violation of Tampa Ordinance 24-11. These charges were dismissed on appeal to the circuit court (Exhibit 5). Witnesses called by Petitioner included the attorney who prosecuted the 1979 case (Exhibit 4) against Respondent; the investigator who investigated the 1979 charges for the Department, and a sitting circuit court judge who filed an appeal of the 1979 revocation order on behalf of the Petitioner At the time the charges which led to the revocation were preferred, Respondent was without power to write bonds, but still had an obligation to service bonds still outstanding. The two witnesses who testified in these proceedings on the status of a licensed bail bondsman without power to write new bonds both concurred that this places a bail bondsman in the anomalous position of one who has no need for an office to provide bail bonds for the public but who still needs to be accessible to those clients for whom he has outstanding bonds. This distinction was not clarified at the 1979 hearing. All three witnesses who testified on behalf of Petitioner were aware of nothing that would disqualify Petitioner as a bail bondsman at this time. No evidence was submitted that Petitioner was convicted of any crime involving moral turpitude, except for the admission by Petitioner that on or about August 11, 1966, he pleaded guilty to uttering a check without sufficient funds on deposit with which the check could be honored. This offense occurred more than 20 years ago and prior to Petitioner twice being found qualified for licensure by Respondent as a bail bondsman.
The Issue The issue in this case is whether Respondent is guilty of a violation of bail bondsmen disciplinary statutes.
Findings Of Fact At all material times, Respondent has been licensed in the State of Florida as a bail bondsman. He operates Freedom Bail Bonds in Orlando, Florida. On May 28, 1988, law enforcement officers of the Orange County Sheriff's Office arrested John P. Moody and placed him in the Orange County jail. Mr. Moody had never previously been arrested. After he was arrested, Mr. Moody contactedRespondent about obtaining a bail bond in order to get out of jail. Respondent agreed to come to the jail and interview Mr. Moody to determine if Freedom Bail Bonds could provide him a bond. When Respondent arrived at the jail on the evening of May 28, he was informed by an officer of the three charges that were pending against Mr. Moody. The bond was $1000 per charge, and the premium was 10% of the bond. Respondent met with Mr. Moody and asked him whether he had any assets to secure the bond. Mr. Moody explained that he had no assets such as a car, cash, or cash equivalent. However, he said that he owned jointly with his mother some land in Orange County. At the conclusion of the interview, Respondent had decided to write the bond. Respondent then learned from the booking officer that another charge had been added. Following a brief conversation between Respondent and Mr. Moody concerning the new charge, Respondent learned from the booking officer that a fifth charge had been added. After another conversation with Mr. Moody, Respondent learned in this manner that a sixth, and final, charge had been added. In all, Mr. Moody was charged with one count of failing to return a hired automobile and five counts of fraudulent bank deposits. Each charge carried a $1000 bond, so Mr. Moody now required a total bond of $6000, which in turn required a total premium of $600. Due to the increased amount of the bond, Respondent informed Mr. Moody that he would have to secure the bond with a mortgage on the property jointly held with his mother. Mr. Moody agreed, but asked Respondent not to contact Mr. Moody's mother immediately. It was the middle of the night, and Mr. Moody's mother is an invalid. Respondent agreed to allow Mr. Moody to contact his mother later and obtain her signature on a mortgage. Because Mr. Moody lacked the funds, a friend, Marion Reed Johnson, agreed to pay the premium. Knowing that Mr. Moody would not be able to obtain that evening his mother's signature to a mortgage, Respondent insisted on some interim security and agreed to accept six $1000 promissory notes from Mr. Johnson. These notes were payable on demand, but, according to their terms, became void if Mr. Moody appeared in court when ordered to do so and discharged all of the obligations of the bail bond. Respondent gave Mr. Johnson receipts for the $600 premium and six $1000 notes as soon as Respondent received these items. At the same time, also on the evening of May 28, Respondent completed a bail bond application and indemnity form, on which Mr. Moody provided certain background information. Mr. Moody and Mr. Johnson also signed indemnifications in favor of the surety. The application form states that the surety: shall have control and jurisdiction over the principal during the term for which the bond is executed and shall have the right to apprehend, arrest and surrender the principal to the proper officials at any time as provided by law. The application form also provides: In the event surrender of principal is made prior to the time set for principal's appearances, and for reason other than as enumerated below is paragraph 3, then principal shall be entitled to a refund of the bond premium. It is understood and agreed that the happening of any one of the following events shall constitute a breach of principal's obligations to the Surety hereunder, and the Surety shall have the right to forthwith apprehend, arrest and surrender principal, and principal shall have no right to any refund of premium whatsoever. Said events which shall constitute a breach of principal's obligations hereunder are: If principal shall depart the jurisdiction of the court without the written consent of the court and the Surety or its Agent. * * * If principal shall commit any act which shall constitute reasonable evidence of principal's intention to cause a forfeiture of said bond. * * * The application and indemnities were signed. Mr. Johnson paid the $600 premium and executed and delivered the six $1000 demand notes. Respondent then caused Freedom Bail Bond to issue the bond. Mr. Moody was released from the jail during the evening of his arrest (actually during the predawn hours of May 29). May 28 was a Saturday. The following Monday, Respondent gave one of his employees a copy of the warranty deed from Mr. Moody's mother to herself and Mr. Moody. Mr. Moody hadgiven a copy of the deed to Respondent during their initial interview in order to allow Respondent to prepare the mortgage that Mr. Moody had agreed to provide. Respondent instructed the employee to use the legal description from the warranty deed to prepare a mortgage and send it to Mr. Moody for execution by his mother and him. The employee did as instructed and promptly mailed the mortgage to Mr. Moody with instructions for execution, witnessing, and notarization. After about a week, Respondent asked the employee if she had received the executed mortgage. She replied that she had not and proceeded to telephone Mr. Moody. When she asked him about the mortgage, Mr. Moody did not express any unwillingness to sign it, but said that he had not received it. Confirming the mailing address, the employee agreed to send him another mortgage and did so on June 6, 1988. Several times after mailing the second mortgage, the employee contacted Mr. Moody and discussed the need to get the document fully executed and delivered to Freedom Bail Bonds. On one occasion, Mr. Moody agreed to return the executed mortgage on June 22. But on the last of these conversations, Mr. Moody informed the employee, for the first time, that he had no intention of providing the mortgage. The employee told Respondent what Mr. Moody had said and returned the file to Respondent for further action. At about the same time that Respondent's officehad sent the mortgage to Mr. Moody the second time, Mr. Moody's sister telephoned Respondent. Estranged from her brother, she was concerned that Mr. Moody, whom she believed had misused funds of their invalid mother in the past, might try to obtain their mother's signature on a mortgage to secure a bond in order to get out of jail. Mr. Moody's sister informed Respondent that her brother was not authorized to obtain their mother's signature on the mortgage. She said that her brother was not to be trusted, had improperly removed money from their mother's trust in the past, and had defaulted on at least one debt so as to require the creditor to lien the jointly held property in order to be repaid. At about the same time, a different employee of Respondent received an anonymous telephone tip that Mr. Moody was about to depart, or had already departed, on a trip to Alabama with another man. The informant described what turned out to be a vehicle owned by Mr. Johnson, with whom Mr. Moody had been living since his release from jail on May 29. Several attempts by Respondent's employees to reach Mr. Moody over the next two to four days were unsuccessful. In fact, Mr. Moody had gone to Alabama, which is outside the jurisdiction of the Orange County Circuit Court. On July 18, 1988, one of Respondent's employees contacted the Clerk of Court's office and learned that Mr. Moody had not qualified for the services of a Public Defender. In addition, the employee had been notified on or about July 6, byreceipt of a notice of hearing on a Determination of Counsel, that Mr. Moody had not been diligent in obtaining counsel. After determining that other Determination of Counsel hearings had been and were being set by the Court, the employee reasonably concluded that Mr. Moody was not diligently trying to obtain counsel or independently resolve the pending criminal matters. The employee communicated this information to Respondent on July 18. Respondent contacted Mr. Moody by telephone on July 18 and asked when he was going to supply the executed mortgage. Mr. Moody responded that he had determined that Respondent did not need the additional security and was not going to provide it. At this point, Respondent concluded that it was likely that Mr. Moody had in fact left the state without permission. Respondent also concluded that Mr. Moody no longer represented an acceptable risk. Respondent thus directed another employee to join him to arrest Mr. Moody and surrender him to the Orange County Sheriff's Office. Respondent and his employee immediately visited Mr. Moody and asked him whether he had left the state. Mr. Moody admitted doing so. Respondent and the employee then arrested Mr. Moody and returned him to jail. Mr. Moody remained in jail for 63 days until he pleaded guilty to the charges. He was sentenced to the time served, placed on probation for four years, and required to makerestitution, which he has done so far in accordance with the schedule. Following his release from jail, Mr. Moody returned to live with Mr. Johnson and gradually repaid him the $600 that he owed him. Although Mr. Moody demanded return of the $600, he never offered any proof of payment to Mr. Johnson. Mr. Johnson never demanded the return of the money. Respondent has retained the $600 premium. The six $1000 notes were automatically voided when Mr. Moody was arrested on July 18.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Insurance and Treasurer enter a final order dismissing the Administrative Complaint. ENTERED this 22nd day of March, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399 (904) 488 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1991. COPIES FURNISHED: Hon. Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399 Bill O'Neil, General Counsel Department of Insurance The Capitol, Plaza Level Tallahassee, FL 32399 Attorney David D. Hershel Division of Legal Services 412 Larson Building Tallahassee, FL 32399 Attorney Alan B. Robinson 56 East Pine Street Orlando, FL 32801
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
Findings Of Fact Russell Bruce Moncrief is licensed with Respondent as a general lines agent (2-20) and at all times here relevant was so licensed. Shortly after Respondent opened his bail bond office, he was approached by Sams who represented himself as a bounty hunter who could pick up "skips" and others the bail bondsman wanted for surrender under their bonds. Sams represented that he was a member of the Florida Assurity Association, that he so worked for several bail bondsmen and was qualified to pick up skips for bail bondsmen. Sams produced an impressive badge, business cards and arrest forms for the bondsman to sign which would authorize Sams to pick up the individuals who had skipped out on their bonds. At this time Respondent had no skips to pick up and suggested Sams contact him later; and, during the period between June and September, 1978, Sams picked up some five (5) to eight (8) individuals on whom Respondent had written a bond and returned these people to Respondent. For these services, Respondent paid Sams a percentage of the bond. This relationship with Sams terminated when the latter gave Respondent a worthless check. Subsequently, Sams learned that his "bounty hunting" was unauthorized and applied for licensure as a bail bond runner. During Petitioner's investigation of Sams' application, his association with Respondent became known and Respondent told Petitioner's agents of his relationship with Sams. This led to an investigation of Respondent and to the charges here preferred. On March 9, 14, 15 and 20, 1979, agents of Petitioner visited the office of Respondent during the morning hours and found the office closed. These times the office was visited were generally between 9:00 A.M. and 12:00 Noon. On March 9, 1979, Nelson Messimore waited at Respondent's office from 6:00 A.M. until 2:00 P.M. before the office was opened. This individual tried numerous times to call the phone number shown on a sign inside Respondent's office but received no answer. He obtained the bond desired when the office was opened. From the time he opened his bail bond office in early 1978, until he learned of the charges being investigated, Respondent had his office opened around noon by his secretary who stayed at the office until 6:00 P.M. Respondent usually arrived between 2:00 and 4:00 P.M. and kept the office open until nearly midnight. During this period he had an answering service to answer his calls 24 hours per day when the office was not open and a paging service to "beep" him when someone was trying to contact him. After learning that Petitioner's agents deemed his office hours to be in violation of Petitioner's regulations, Respondent engaged the services of another bail bondsman and had the office opened at 8:00 A.M. and it remained open during the normal working day. Respondent continued to keep the evening hours he previously used. On or about February 28, 1978, Respondent was given the jail card of Willie Frank Boone by the booking officer to use in preparing a bailbond. Boone had previously been bonded by Respondent and he was somewhat familiar with Boone's record. While the card was in his custody, Respondent thought one entry on the card was an error and interlined that item. Further perusal of the card led Respondent to realize the card had not been in error. When he returned the card to the booking officer, he told the booking officer of the changes he had made to the card. This caused considerable consternation in the booking officer and led to procedural changes to not allow custody of the jail cards to be given to bail bondsmen. The change to the jail card made by Respondent could not benefit Respondent financially or otherwise. However, the change could have affected the sentencing of the accused.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint issued against him in the instant case and, if so, what disciplinary action should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent Respondent is now, and has been for the past seven years, a Florida-licensed bail bond agent (license number A134458). He is the owner of Big Larry's Bail Bonds (Agency), a bail bond agency located in Broward County, Florida, with which two other Florida-licensed bail bond agents, James Jones (who is Respondent's brother) and Ron Striggles, are affiliated. Count I On April 23, 2002, Hugh Clarke went to the Agency, where he obtained from Respondent a $4,500.00 bail bond for a friend, Richard Dyke, who had been arrested in Palm Beach County, Florida, on a theft charge. To obtain the bail bond, Mr. Clarke had to pay a bail bond premium fee of $450.00 and provide collateral in the amount of $1,050.00. Payment was made by a single check (check number 611) for $1,500.00 made out to the Agency. Mr. Clarke also signed a promissory note, which read as follows: On Demand Hugh McGrath Clarke after date, for value received, I Promise to pay to the order of CONTINENTAL HERITAGE INSURANCE COMPANY Four Thousand Five Hundred DOLLARS, at Big Larry's Bail Bonds, 1310 Sistrunk Blvd., Ft. Laud., Florida[,] [w]ith interest thereon at the rate of 20 percent, per annum[,] from Call Date until fully paid. Interest payable semi-annually. The maker and endorser of this note agrees to waive demand, notice of non payment and protest; and in case suit shall be brought for the collection hereof, or the same has to be collected upon demand of an attorney, to pay reasonable attorney's fees and assessable cost, for making such collection. Deferred interest payment to bear interest from maturity at 20 percent, per annum, payable semi-annually. It is further agreed and specifically understood that this note shall become null and void in the event the said defendant Richard Dyke shall appear in the proper court at the time or times so directed by the Judge or Judges of competent jurisdiction until the obligations under the appearance bond or bonds posted on behalf of the defendant have been fulfilled and the surety discharged of all liability thereunder, otherwise to remain in full force and effect. Respondent provided Mr. Clarke a signed Receipt and Statement of Charges, acknowledging that he had received from Mr. Clarke payment in full for the $450.00 bail bond premium fee. Respondent also presented Mr. Clarke with a pre-printed form entitled "Collateral Receipt and Informational Notice" (Collateral Receipt) that Respondent had filled out and signed (on the appropriate signature line), acknowledging that, on behalf of the surety, Continental Heritage Insurance Company, he had received from Mr. Clarke $1,050.00 as collateral to secure the bail bond that Mr. Clarke had obtained for Mr. Dyke. The Collateral Receipt contained the following "note," "informational notice," and "indemnitor information": NOTE: Unless a properly drawn, executed, and notarized legal assignment is accepted and acknowledged by the surety agent and the surety company named above, the collateral listed above will be returned only to the person(s) named on line (1) above [Mr. Clarke]. Collateral, except for those documents the surety must retain as directed by the law, will be returned within 21 days after the bail bond(s) has been discharged in writing by the court. The undersigned hereby acknowledges receipt of a copy of all collateral documents indicated above, and the Informational Notice printed below. * * * INFORMATIONAL NOTICE CONDITIONS OF BOND: The SURETY, as bail, shall have control and jurisdiction over the principal during the term for which the bond is executed and shall have the right to apprehend, arrest, and surrender the principal to the proper officials at any time as provided by law. In the event surrender of principal is made prior to the time set for principal's appearance, and for reason other than as enumerated below in paragraph 3, then principal shall be entitled to a refund of the bond premium. It is understood and agreed that the happening of any one of the following events shall constitute a breach of principal's obligations to the SURETY hereunder, and the SURETY shall have the right to forthwith apprehend, arrest and surrender principal and principal shall have no right of any refund whatsoever. Said events which shall constitute a breach of principal's obligations hereunder are: If principal shall depart the jurisdiction of the court without the written consent of the court and the SURETY or its Agent. If principal shall move from one address to another without notifying SURETY or his agent in writing prior to said move. If principal shall commit any act which shall constitute reasonable evidence of principal's intention to cause a forfeiture of said bond. If principal is arrested and incarcerated for any other offense other than a minor traffic violation. If principal shall make any material false statement in the application. * * * INDEMNITOR INFORMATION In addition to the terms and conditions of any Indemnity Agreement or other collateral documents which you have executed, this is to notify you that: The Indemnitor(s) will have the defendant(s) forthcoming before the court named in the bond, at the time therein fixed, and as may be further ordered by the court. The Indemnitor(s) is responsible [for] any and all losses or costs of any kind whatsoever which the surety may incur as a result of this undertaking. There should not be any costs or losses provided the defendant(s) does not violate the conditions of the bond and appears at all required court hearings. Collateral will be returned to the person(s) named in the collateral receipt, or their legal assigns, within 21 days after the surety has received written notice of discharge of the bond(s) from the court. It may take several weeks after the case(s) is disposed of before the court discharges the surety bonds. Respondent read to Mr. Clarke that portion of the Collateral Receipt that explained that the collateral would be returned "within 21 days after the surety ha[d] received written notice of discharge of the bond(s) from the court." Nonetheless, for some reason, Mr. Clarke was under the impression that he would be receiving his collateral back within 30 days of April 23, 2002, the date of the transaction, even in the absence of a discharge. In late May 2002, sometime after the 23rd of the month, Mr. Clarke began telephoning the Agency to inquire about the return of his collateral. On each occasion he called, he asked to speak with Respondent, but was told by the person who answered the phone that Respondent was not available. He left messages, but Respondent never returned his calls.2 Mr. Clarke telephoned the Agency approximately twice a month until November 2002, when, frustrated by his inability to reach Respondent by telephone,3 he sent, by facsimile transmission, a letter to the Department of Insurance requesting that it help him in his efforts to gain the return of his collateral. Although Mr. Clarke had been advised in September 2002 by Mr. Dyke that Mr. Dyke's criminal case "was over," Mr. Clarke never got to directly communicate this information to Respondent and to personally ask Respondent to give him back his collateral. Any information Mr. Clarke may have provided about the status of Mr. Dyke's criminal case and any demands Mr. Clarke may have made for the return of his collateral were provided and made to a person or persons at the Agency other than Respondent, who did not communicate them to Respondent. Pat Anthony, a Special Investigator with the Department of Insurance,4 was assigned the task of looking into the allegations Mr. Clarke had made in his letter. Ms. Anthony met with Mr. Clarke on December 6, 2002, and took his statement. The statement was reduced to writing (by Ms. Anthony, who wrote down what she understood Mr. Clarke to have said), and it then was "subscribed and sworn to" by Mr. Clarke. Mr. Clarke's statement read as follows: On 4/23/02, I went to Larry Jones' office to put up bail for Richard Dyke. I gave him a $450 check and a $1,050 check.[5] Richard told me the case was over with in 9/02.[6] I started calling Larry about a week later.[7] He had told me the $450 was his premium and I would get the $1,050 when the case was completed.[8] I have called several times. The man who answered the phone tells me Larry is not there. In January 2003, Ms. Anthony telephoned the Office of the Clerk of the Circuit Court of Palm Beach County (Clerk's Office) to inquire about the status of Mr. Dyke's criminal case. She was told by the person who answered the telephone that the case had concluded and that Mr. Dyke's bond had been discharged, but that there was "no way to know" whether Respondent had been notified of this information inasmuch as the Clerk's Office did not "always notify the out of town bondsman." Ms. Anthony subsequently advised Respondent as to what she had been told and suggested that he go to the Palm Beach County Courthouse to confirm the information she had been provided. Respondent followed Ms. Anthony's suggestion and went to the Palm Beach County Courthouse on January 21, 2003 (which was "within a week" of his conversation with Ms. Anthony). There, he obtained a certified copy (under seal of the Clerk's Office) of a summary or disposition sheet reflecting that Mr. Dyke's bond had been discharged. That same day, when Respondent returned to the Agency, he telephoned Mr. Clarke and made arrangements to have Mr. Clarke come by the Agency on January 27, 2003, to sign paperwork and pick up a check from Respondent for $1,050.00 (the amount of the collateral Mr. Clarke had given Respondent). Mr. Clarke picked up the check on January 27, 2003, as scheduled. It was not until March 2004 that Respondent received from the Clerk's Office a copy of the actual court order discharging Mr. Dyke's bond. Count II On or about September 1, 2002, the Department of Insurance filed a one-count Administrative Complaint (in Department of Insurance Case No. 43742-02-AG) against Respondent, alleging that "he [had] failed to return collateral and charged an amount in excess of the bond premium." On November 13, 2002, the Department of Insurance issued a Consent Order in Case No. 43742-02-AG, which provided as follows: THIS CAUSE came on for consideration and final agency action. Upon consideration of the record including the Settlement Stipulation for Consent Order dated October 25, 2002, and being otherwise advised in the premises, the Insurance Commissioner hereby finds: The Treasurer and Insurance Commissioner, as head of the Department of Insurance, has jurisdiction over the subject matter of this case and parties hereto. The entry of this Consent Order and compliance herewith by the Licensee, LARRY LORENZO JONES, shall conclude the administrative proceeding of Case No. 43742- 02-AG before the Department of Insurance of the State of Florida. IT IS THEREFORE ORDERED: The Settlement Stipulation for Consent Order dated October 25, 2002, is hereby approved and fully incorporated herein by reference; Within thirty (30) days of the date of issue of the Consent Order, pursuant to Section 648.387, Florida Statutes, Licensee shall file[9] notice with the Department of the designated primary agent for each location of all bail bond agencies owned by the Licensee. Failure to file said notice will result in immediate suspension of Licensee's license and eligibility for licensure. Licensee shall be placed on probation for a period of twelve (12) months. As a condition of probation, Licensee shall strictly adhere to the Florida Insurance Code, Rules of the Department and the terms of this agreement. If during the period of probation period [sic] the Department has good cause to believe that Licensee has violated a term or condition of probation, it shall suspend, revoke, or refuse to issue, renew or continue the license of appointment of Licensee. Licensee shall pay a fine of two thousand five hundred dollars ($2500.00) within thirty (30) days of the date of issue of the Consent Order, pursuant to Section 648.52, Florida Statutes. Failure of Licensee to pay the fine within the specified time limit shall result in the immediate suspension of Licensee's license and eligibility for licensure in this state without further proceeding for a period of sixty (60) days. Reinstatement shall be conditioned upon Licensee's compliance with all terms of the Consent Order, including payment of the administrative fine.[10] Sometime in December 2002, Sally Burke, who was then a Bail Bond Coordinator with the Department of Insurance, visited the Agency for purposes of conducting an audit of the Agency's records. Ms. Anthony accompanied her on the visit. During the audit, Ms. Burke asked Respondent if he had completed and "turned in [the] designation form" required by Section 648.387, Florida Statutes. Respondent replied that he had "never received" a blank form to fill out. At Ms. Burke's request, Ms. Anthony handed Respondent a blank designation form. Respondent proceeded to complete it in Ms. Burke's and Ms. Anthony's presence. When he was finished, he attempted to give the completed form to Ms. Burke, but she told him, "Larry, you have to mail it in yourself, but make me a copy for my file." As requested, Respondent made a copy and gave it to Ms. Burke, who, in turn, handed it to Ms. Anthony. He then left the Agency and mailed the original to the Department of Insurance. When he returned to the Agency, Ms. Burke and Ms. Anthony were still there. Months later, in September 2003 at around the time of the issuance of the instant Administrative Complaint, Respondent received a telephone call from Greg Marr, an attorney with Petitioner, who told Respondent that Petitioner had never received his completed designation form.11 Respondent informed Mr. Marr that the completed form had been mailed in December 2002. Mr. Marr responded, "[O]ur records show that it's not in,"12 and asked Respondent to "send in another one," which Respondent did (on or around September 19, 2003). Petitioner received this completed designation form on September 26, 2003.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner issue a final order dismissing, in its entirety, the Administrative Complaint issued against Respondent in the instant case. DONE AND ENTERED this 4th day of June, 2004, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 4th day of June, 2004.
