The Issue The issue in the case is whether the allegations of the Administrative Complaints filed by the Petitioner against the Respondents are correct and if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency responsible for licensure and regulation of limited surety agents (bail bondsmen) operating in the State of Florida. The Respondents are individually licensed as limited surety agents in Florida and are officers and directors of "Big John Bail Bonds, Inc.," a bail bond agency. In November of 1999, Gustavo Porro contacted the Respondents regarding bail for Jessie James Bray, a friend of Mr. Porro's son. Mr. Porro did not know Mr. Bray. Based on the charges against Mr. Bray, four bonds were issued, two for $1,000 each and two for $250 each, for a total bond amount of $2,500. The $1,000 bonds were related to pending felony charges and the small bonds were related to pending misdemeanor charges. Mr. Porro signed a contingent promissory note indemnifying American Bankers Insurance Company for an amount up to $2,500 in the event of bond forfeiture. Bray did not appear in court on the scheduled date and the two $1,000 bonds were forfeited. For reasons unclear, the two $250 bonds were not forfeited. The contingent promissory note signed by Mr. Porro provided that no funds were due to be paid until the stated contingency occurred, stated as "upon forfeiture, estreature or breach of the surety bond." After Bray did not appear for court, the Respondents contacted Mr. Porro and told him that the bonds were forfeited and he was required to pay according to the promissory note. On April 15, 2000, Mr. Porro went to the office of Big John Bail Bonds and was told that he owed a total of $2,804, which he immediately paid. Mr. Porro was not offered and did not request an explanation as to how the total amount due was calculated. He received a receipt that appears to have been signed by Ms. Vath. After Mr. Porro paid the money, Ms. Vath remitted $2,000 to the court clerk for the two forfeited bonds. The Respondents retained the remaining $804. Bray was eventually apprehended and returned to custody. The Respondents were not involved in the apprehension. On July 11, 2000, the court refunded $1,994 to the Respondents. The refund included the $2,000 bond forfeitures minus a statutory processing fee of $3 for each of the two forfeited bonds. On August 9, 2000, 29 days after the court refunded the money to the Respondents, Mr. Porro received a check for $1,994 from the Respondents. Mr. Porro, apparently happy to get any of his money back, did not ask about the remaining funds and no explanation was offered. In November of 2000, Ms. Vath contacted Mr. Porro and informed him that a clerical error had occurred and that he was due to receive additional funds. On November 6, 2000, Mr. Porro met with Ms. Vath and received a check for $492. At the time, that Ms. Vath gave Mr. Porro the $492 check she explained that he had been overcharged through a clerical error, and that the additional amount being refunded was the overpayment minus expenses. She explained that the expenses included clerical and "investigation" expenses and the cost of publishing a notice in a newspaper. There was no documentation provided of the expenses charged to Mr. Porro. At the time the additional refund was made, there was no disclosure that the two $250 bonds were never forfeited. At the hearing, the Respondents offered testimony asserting that the charges were miscalculated due to "clerical" error and attempting to account for expenses charged to Mr. Porro. There was no reliable documentation supporting the testimony, which was contradictory and lacked credibility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Insurance enter a Final Order requiring that the Respondents be required to refund $318 to Mr. Porro, which, combined with the previous payments of $1,994 and $492, will constitute refund of the total $2,804 paid by Mr. Porro to the Respondents. It is further recommended that the limited surety licenses of Matilda M. Vath and John L. Vath be suspended for a period of not less than three months or until Mr. Porro receives the remaining $318, whichever is later. DONE AND ENTERED this 22nd day of February, 2002, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February, 2002. COPIES FURNISHED: James A. Bossart, Esquire Department of Insurance Division of Legal Services 200 East Gaines Street, Room 612 Tallahassee, Florida 32399 Joseph R. Fritz, Esquire 4204 North Nebraska Avenue Tampa, Florida 33603 Mark Casteel, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307 Honorable Tom Gallagher State Treasurer/Insurance Commissioner Department of Insurance The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300
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.
The Issue The central issue in this case is whether the Respondent committed violations as alleged in the amended administrative complaint and, if so, what penalty should be imposed.
Findings Of Fact At all times material to the allegations of this case the Respondent has been licensed as a limited surety agent. On April 10, 1995, Elsa De La Cruz went to the criminal courthouse in Miami, Dade County, Florida, and waited on the fifth floor. A male who represented himself to be Respondent approached Ms. De La Cruz and asked her if he could help her. He specifically wanted to know if she was there to bail someone out and identified himself as a bail bondsman. The male also gave Ms. De La Cruz a business card bearing Respondent's name and business location. Ms. De La Cruz left the fifth floor of the courthouse and walked to the east wing which is commonly referred to as "the jail wing." The same male was also there and again approached Ms. De La Cruz. At this time he advised her that if the bond was set at $10,000, he would need $1,000 and collateral to help her. Ms. De La Cruz left the property and returned to her office to complete the affidavit which is Petitioner's exhibit 2. Ms. De La Cruz did not initiate any of the contact between herself and the male who represented himself as Respondent. On April 11, 1995, Maggie Porto went to the criminal courthouse in Miami, Dade County, Florida, and waited on the fifth floor. A male who later identified himself as Respondent initiated contact with Ms. Porto and advised her that he was in business if she needed him. After a short while, Ms. Porto left the fifth floor and walked over to the east wing of the criminal center. Upon her arrival there, the same male handed Ms. Porto a business card. When Ms. Porto asked the male if he was the man identified on the card, the subject answered "yes." The business card represented Respondent's name. Later, Ms. Porto left the criminal center and returned to her office to complete the affidavit which is Petitioner's exhibit number 3. All contact between Ms. Porto and Respondent was initiated by the Respondent.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Insurance and Treasurer enter a final order revoking Respondent's license. DONE AND ENTERED this 8th day of February, 1996, in Tallahassee, Leon County, Florida. JOYOUS D. 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 8th day of February, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3032 Rulings on the proposed findings of fact submitted by Petitioner: Paragraphs 1, 4, 5 and 6 are accepted. With regard to paragraph 2, the allegation as to the time of the incident is rejected as not supported by the record or hearsay. With regard to paragraph 3, the allegation as to when the business card was delivered to Ms. De La Cruz is rejected as contrary to the weight of the record. Rulings on the proposed findings of fact submitted by Respondent: 1. None submitted. COPIES FURNISHED: Bill Nelson State Treasurer and Insurance Commissioner Department of Insurance The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Dan Sumner Acting General Counsel Department of Insurance The Capitol, PL-11 Tallahassee, Florida 32399-0300 Dickson E. Kesler, Esquire Division of Agent and Agency Services 8070 Northwest 53rd Street, Suite 103 Miami, Florida 33166 Noel A. Rivera 2200 Northwest 11th Street Miami, Florida 33172 Anthony Alvarez 350 Sevilla Avenue, Suite 201 Coral Gables, Florida 33134
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 Did Respondent plead nolo contendere to aggravated stalking, a felony, in violation of Section 784.048(4), Florida Statutes, so as to be subject to discipline by the Department of Insurance pursuant to Sections 648.45(1); 648.45(2)(a), (e), (j), (k); 648.45(3)(a), (c), and/or (e), and if so, what penalties may be imposed, pursuant to Sections 648.45, 648.46, 648.49, 648.50, , and/or 648.53, Florida Statutes?
Findings Of Fact At all times material, Respondent was licensed in the State of Florida by Petitioner Agency as a limited surety agent, License No. 265986204. At the time of formal hearing, Respondent's license was suspended, pursuant to a Second Amended Emergency Order of Suspension entered by the Agency on March 11, 1997. Certified Court documents reveal that on February 10, 1997, Lesley Charles Corbin entered a negotiated plea of nolo contendere to the charge of "aggravated stalking," in the Circuit Court of the Fourth Circuit, in and for Duval County, Florida, in Case No. 96-9760-CF. The particulars of the charge pled to allege that Respondent "did knowingly, willfully, maliciously, and repeatedly follow or harass . . . [name] . . . after an injunction for protection against repeat violence pursuant to Section 784.046, to-wit: 92-1772-DV, contrary to the provisions of Section 784.048(4), Florida Statutes." The Court documents also reveal repetitive previous similar or related criminal charges against Respondent. Section 784.048(4), Florida Statutes, constitutes a felony of the third degree, punishable as provided in Sections 775.082, 775.083, or 775.084, Florida Statutes, (Supp. 1996). Under the plea bargain, Count I, alleging aggravated assault pursuant to Section 784.021, Florida Statutes, was dropped, and adjudication was withheld on Respondent's nolo contendere plea to Count II. Respondent was required to enter into nine months of community control followed by one year probation with special conditions to protect the person he had stalked. Section 775.082(3)(d), Florida Statutes, provides that third degree felonies may be punished by up to 5 years' imprisonment. Section 775.083(1)(c) provides for third degree felonies to be punished by up to a $5,000 fine. Section 775.084(1)(c)1.b. applies to habitual felony offenders/stalkers and is not relevant here. The foregoing establishes prima facie facts in evidence, which facts Respondent did not overcome. Ms. Sarah Burt is the Bail Bond Coordinator for Petitioner Department of Insurance. In that capacity, she is responsible for administrative coordination of all bail bond related matters for the Agency. She is knowledgeable of the practices and procedures of the Agency regarding bail bondsmen and limited surety agency licensure and discipline, pursuant to Chapter 648, Florida Statutes. Based on her education, training, experience, and actual knowledge, Ms. Burt related that a plea of nolo contendere to a felony charge has always resulted in the Agency denying a licensure application or revoking of an existing license. To the best of Ms. Burt's knowledge and belief, this has been the Agency's consistent procedure in all similar circumstances. She did not know of any licensee who had retained his or her licenses after the Agency became aware the licensee had pled nolo contendere to a felony.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Insurance enter a Final Order finding Respondent guilty of violating Sections 648.45(2)(a) and (k), and 648.45(3)(a), Florida Statutes, and revoking his license. RECOMMENDED this 31st day of December, 1997, at Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1997. COPIES FURNISHED: Bill Nelson State Treasurer and Insurance Commissioner The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Y. Sumner, Esquire Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300 Dick E. Kesler, Esquire Department of Insurance 612 Larson Building Tallahassee, Florida 32399 R. Cash Barlow, Esquire Post Office Box 492 Jacksonville, Florida 32201
Findings Of Fact The facts relevant to the charges here preferred are largely undisputed. In May 1978 Respondent's business address as reported by him to Petitioner was 2812 North 34th Street, Tampa, Florida. This address was visited by Petitioner's investigators on 23, 24, 25, and 30 May 1978. The building located at that address is owned and used by Scaglione Construction Company as its main office. There is no sign on the exterior of this building indicating a bail bondsman's office is located inside. While visiting the address, the investigators were advised that Respondent had no office there but Frank Puig did have a bail bond office in the building. Although there was some dispute regarding whether the investigators were shown Puig's office, or even allowed to go to the door of that office, whether they did or not is immaterial because Respondent readily admitted he had no files at this location and conducted no business therefrom. Again witnesses differed on whether there was a sign on the door of the office occupied by Puig. Whether there was a sign on that door reading "Frank Puig - Bail- bondsman" is irrelevant to the charge that Respondent had no sign designating his office. During the period in question, in fact, during most, if not all, of 1978, Respondent testified he was without power [of attorney] to write bonds. Exhibit 1 shows that three companies, Midland Insurance Company, Allied Fidelity Insurance Company, and Cotton Belt Insurance Company, Inc. all renewed Respondent's limited surety agency in October 1977 and all cancelled his limited surety agency 12-14-78. Respondent's testimony indicated that he was an agent only for Cotton Belt and that his power to write bonds had been withdrawn. According to Respondent's own testimony, he had no permanent office in which to keep his files and records and that these records were carried in his car and stored at his residence when not in his car. He was using Puig's telephone number as a place at which messages could be left for him. Respondent also testified that during 1978 he wrote no bonds and was only servicing existing accounts which preceded 1978.
