The Issue The issue in this case is whether Petitioner, Sara Kaczmerek Schubert, should be licensed as a limited surety (bail bond) agent pursuant to Chapter 648, Florida Statutes.
Findings Of Fact The Parties. Respondent, the Department of Financial Services (hereinafter referred to as the "Department"), is the state agency responsible for, among other things, licensing of temporary bail bond agents and bail bond agents in the State of Florida. Chap. 648, Fla. Stat. In particular, the Department's Division of Agent and Agency Services, Bureau of Licensing, has been designated within the Department to review applications and make decisions thereon. Petitioner, Sara Kaczmerek Schubert, is an individual residing in Florida who is seeking licensure as a bail bond agent. Ms. Schubert's Temporary Bail Bond Agent License and Her Application for Licensure. Section 648.355, Florida Statutes, authorizes the Department to issue a temporary license to an individual as a bail bond agent under certain conditions. Those conditions include the requirements, among others, that the applicant complete basic certification courses within four years prior to the date an application is filed and that the applicant "be employed full time at the time of licensure, and at all times throughout the existence of the temporary license, by only one licensed and appointed supervising bail bond agent, who supervises the work of the applicant and is responsible for the licensee's conduct in the bail bond business. " § 648.355(1)(d) and (e), Fla. Stat. On August 24, 2001, Ms. Schubert was issued a certificate by Florida Bail Bond School, Inc., for successfully completing courses in criminal justice for bail bond agents required as a prerequisite to applying for a temporary bail bond agent license.2 (Stipulated fact). On October 30, 2001, Ms. Schubert was issued a certificate by the University of Florida, Division of Continuing Education, certifying her completion of the requirements of "INS 3 - Bail Bond Agent Qual Crse - Self Study."3 (Stipulated fact). On or about December 12, 2001, the Department received an application from Ms. Schubert seeking licensure as a temporary bail bond agent (hereinafter referred to as a "temporary license") pursuant to Section 648.355, Florida Statutes. Ms. Schubert designated Jenny Garcia, Florida License number A03131, Manager of Estrella Bail Bonds, on the application as her supervising bail bond agent. (Stipulated fact). After review of Ms. Schubert's application, the Department concluded that she met the requirements of Section 648.355, Florida Statutes, and on or about April 22, 2002, issued her a temporary license, license number E023179. (Stipulated fact). Ms. Schubert was employed by Estrella Bail Bonds and was under the supervision of Ms. Garcia upon the issuance of her temporary license. Between July 2002 and December 2002, Ms. Schubert completed her temporary license internship hours of employment with Estrella Bail Bonds. (Stipulated fact). In October 2002, in anticipation of completing her internship, Ms. Schubert filed an application for the bail bond agent license at issue in this proceeding. By letter dated April 18, 2003, the Department denied Ms. Schubert's license application based upon the following alleged facts: You, Sara K. Schubert, have acted in the capacity of, and held yourself out as bail bond agent without being properly licensed and appointed, in violation of the Florida Insurance Code. You have established a place of business, designated by you as "A Bunny Bail Bonds Agency," which is not under the active full-time charge of a licensed and appointed bail bond agent; you have provided, or had provided on your behalf, internet advertising and business cards which identify you as the agent/owner of "A Bunny Bail Bonds Agency" and advertise the services of that agency; you have entered into a lease agreement for office space for "A Bunny Bail Bonds Agency," representing yourself as the President of that agency; you have provided for the advertising of the services of "A Bunny Bail Bonds Agency" at the leased location; you have acquired and maintained telephone services for "A Bunny Bail Bonds Agency," and have advertised the availability of the bond agency's services through the availability of that telephone service. You are operating a bail bond agency separate from your supervising agent's business address. Ms. Schubert's Business Planning and General Activities. As early as the beginning of 2001, Ms. Schubert decided that she wanted to become licensed as a bail bond agent and began planning accordingly. In addition to taking the steps required by the Department to obtain licensure as a bail bond agency, including obtaining a temporary license, Ms. Schubert began taking certain actions to ensure that she could begin to operate her bail bond agency immediately upon being licensed as a bail bond agent. The steps which Ms. Schubert took to prepare her business included the naming of her business, the creation of a corporate entity, logo, and business slogan, obtaining local and toll-free telephone numbers for the business, having a business plan prepared, having an internet web-page readied, executing a lease for office space, arranging for a yellow-pages advertisement, and obtaining advertising materials, including business cards, key chains, pens, and stickers. In addition to planning for her future business, Ms. Schubert also actually advertised her future business. The evidence failed to prove that Ms. Schubert or anyone on her behalf was actually "appointed by an insurer by power of attorney to execute or countersign bail bonds in connection with judicial proceedings who receives or is promised money or other things of value therefor" or that that she "pledge[d] United States currency, United States postal money orders, or cashier's checks as security for a bail bond in connection with a judicial proceeding and receive[d] or [was] promised therefor money or other things of value." The evidence also failed to prove that Ms. Schubert, based upon the facts alleged by the Department in support of its denial of her license application, is incompetent, untrustworthy, unfit as to character and background or lacking in one or more of the required qualifications for license or appointment, or has demonstrated a course of conduct or practice which indicate that she is incompetent, negligent, or dishonest. The following is a summary of the timing of the events pertinent to this matter, each of which is discussed in further detail, infra.: 2001 April: Future business is named. A Bunny Bail Bonds, Inc. formed. Aug. to Oct.: Courses required for temporary license taken. December: Application for temporary license filed. 2002 March: 1 year lease for office space executed. April: Temporary bail bond agent license issued. Spring: Business cards, stickers, pens, and other advertisements purchased. Internet web page created. Sign placed on door of office, mail box, and office-building information board. July to Dec.: Internship for Estrella Bail Bonds. October: Ms. Schubert filed application for licensure. November: Telephone service contract entered into. Department investigation begun. 2003 February: Telephone approval to arrange for yellow- pages advertisement obtained from Department. April: Business plan prepared. Department denied license application. May: Department's investigation closed with letter of guidance. Naming and Incorporating the Future Business. In April 2001, at least eight months prior to filing her application for temporary license with the Department, Ms. Schubert decided that she would call her bail bond agency "A Bunny Bail Bonds." Toward that end, on April 16, 2001, Ms. Schubert filed documents with the Department of State creating a corporate entity named "A Bunny Bail Bonds Agency, Inc." The Articles of Incorporation for the corporation, which were signed by Ms. Schubert on or about April 10, 2001, designated Ms. Schubert as the president of, and the registered agent for, the corporation. The Articles of Incorporation do not describe the nature of the business to be conducted by the corporation. Telephone Services for A Bunny Bail Bonds. At roughly the same time that Ms. Schubert decided on the name of her business in April 2001, Ms. Schubert contacted AT&T to inquire about obtaining a toll-free number for A Bunny Bail Bonds. Ms. Schubert selected and reserved "866 The-Buny" (843-2869) as the toll-free number for A Bunny Bail Bonds. The evidence failed to prove, however, that any calls were actually made to this number. The evidence also failed to prove whose name the toll-free service was contracted under. Effective November 1, 2002, just over six months after receiving her temporary license and two months before she completed her required internship with Estrella Bail Bonds, Ms. Schubert opened an account for telephone services for A Bunny Bail Bonds. The account was opened with BellSouth Telecommunications, the local telephone provider for Fort Lauderdale. Ms. Schubert contracted for basic service for three separate phone lines at a monthly charge of $27.75: telephone numbers (954) 462-1600; 462-5800; and 469-1300. Ms. Schubert also selected three optional services for A Bunny Bail Bonds: the "Complete Choice for Business Messaging Package," the "Complete Choice for Business Maintenance 3 Line Package," and the "Complete Choice for Business 3 Line Package."4 Ms. Schubert committed to pay $164.00 a month for the optional services she agreed to.5 Office Space Rental. On or bout March 13, 2002, almost a month before Ms. Schubert was issued her temporary license, Ms. Schubert entered into a one-year lease agreement for a 350 square-foot office (hereinafter referred to as the "Office"), identified as "suite 3" and located at 521 South Andrews Avenue, Fort Lauderdale, Broward County, Florida. (Stipulated fact). The Office is conveniently located across the street from the Broward County courthouse. The lease agreement identifies "A Bunny Bail Bonds Agency, Inc., Sara Schubert, President" as the Lessee of the Office and was entered into by Ms. Schubert as "President" of A Bunny Bail Bonds Agency, Inc. (Stipulated fact). The one-year lease period commenced April 1, 2002, the month Ms. Schubert received her temporary license. She made a security deposit in the amount of $873.50 and has paid a monthly rental fee of $463.75 for the Office. (Stipulated fact). The evidence failed to prove that the Office was actually used to carry out any bail bond business.6 The mailbox for the Office was located with other mailboxes for the building at a central location. To ensure that she received mail addressed to the Office, Ms. Schubert placed a small yellow-sticky on the box which had "#3, Schubert, A Bunny Bail Bonds" hand-written on it. Web-Page for A Bunny Bail Bonds. Ms. Schubert arranged to have an internet web page created for A Bunny Bond Bonds. The web page identifies Ms. Schubert as "Agent/Owner" of A Bunny Bail Bonds, identifies the business address as 521 South Andrew Street, Suite 3, Fort Lauderdale, Florida 33001 (the address for the Office), and lists three telephone numbers: the toll-free telephone number she had reserved with AT&T; (305) 606-9662 a Dade County telephone number; and (954) 439-2211, a Broward County telephone number. The Broward County telephone number is listed as Ms. Schubert's home telephone number on Respondent's Exhibits 13 through 15. The web page represents that A Bunny Bail Bonds accepts all major credit cards. The A Bunny Bail Bonds web page was accessible in December 2002 and it is inferred, because of the telephone numbers listed on the web page, that the web page was developed after March 2002 (when the lease was entered into) and before November 2002 (when local telephone services were contracted for). The web page was not registered with any internet search engine and, therefore, could only be accessed if the web address was known. The web-address was, however, included on the business cards Ms. Schubert purchased. The evidence failed to prove whether anyone other than someone at the Department ever accessed the web page. Yellow-Page Advertisement. Ms. Schubert had applied for licensure in October 2002 and, therefore, she began planning to place an advertisement in the newest addition of the telephone book yellow pages for 2003, when she anticipated that she would be able to open her business. Because of concern over whether she would receive her license before the deadline for taking out a yellow-pages advertisement expired, she arranged for James Moore, a friend and licensed bail bond agent, to contact the Department about going forward with the advertisement in anticipation of the approval of her license. (Stipulated fact). Despite the fact that Ms. Schubert had not received her license and had in fact been the subject of an investigation by the Department, the Department, through its agents, approved the placement of the yellow pages advertisement by Ms. Schubert. In reliance upon the Department's approval, Ms. Schubert paid $28,000.00 for a half-page yellow-pages advertisement for A Bunny Bail Bonds. The advertisement included the corporate name, a picture of Ms. Schubert with her name and "C.E.O." under it, the web page address, the toll-free telephone number, telephone number (954) 462-1600, the address of the Office, and the logos for several credit cards. Business Cards, Stickers, Pens, and Key Chains. In anticipation of becoming licensed as a bail bond agent, Ms. Schubert purchased business cards, stickers, ink pens, and key chains to be used in advertising A Bunny Bail Bond. The business cards, which were purple, included the name of the corporation, a logo which consists of a rabbit with a key in its paw standing behind a rabbit dressed in striped- prison garb (hereinafter referred to as the "Logo"), Ms. Schubert's name as "Agent/Owner," a business slogan, "We'll get your tail out of jail" (hereinafter referred to as the "Slogan"), the address of the Office, the toll-free telephone number listed as the "Office" number, telephone number (954) 439-2211, Ms. Shubert's home telephone number, as a "Mobile" number, and the internet web page address.7 The stickers included the name of the corporation, the Logo, and two telephone numbers: the toll-free number and (954) 439-2211, Ms. Schubert's home telephone number.8 The pens purchased by Ms. Schubert include the name of the corporation, the Logo, and two telephone numbers: the toll- free number and (954) 439-2211, Ms. Schubert's home telephone number.9 The business cards described in Finding of Fact 38, the stickers, and the pens were purchased sometime after Ms. Schubert leased the Office in March 2002 and before she contracted for local telephone services for the office in November 2002. A later version of business cards was purchased by Ms. Schubert in late 2002 or early 2003.10 The later version of the business card changed the telephone numbers listed on the card to (954) 462-1600 as the "Office" number, 1-866-The-Buny as a "Toll Free" number, and (305) 366-5532 as a "Pager" number. These cards were purchased after November 2002 when Ms. Schubert contracted for local telephone services. Ms. Schubert also purchased key chains which include the name of the name of the corporation, the logo, the toll-free number, and telephone number (954) 462-1600.11 The key chains were, therefore, purchased after November 2002 when Ms. Schubert contracted for local telephone services. Good Business Planning vs. Public Harm. Most of Ms. Schubert's actions described in this Recommended Order constituted good business planning. Those activities, to the extent there was no public disclosure, also were of little if any potential harm to the public: creating a corporation, selecting the name of a future business, contracting for the office and telephone services, creating a web page not generally accessible to the public, obtaining a business plan, and purchasing advertising materials (business cards, key chains, pens, and stickers). The number of individuals involved with those transactions and who, therefore, were aware of Ms. Schubert's activities, were too insignificant to constitute any potential harm to the public. Ms. Schubert, however, went beyond good business planning when she began to disclose the existence of her company to the public before she obtained her license: In November 2002, if not earlier, a piece of wood shaped like a rabbit and one of the stickers purchased by Ms. Schubert were placed on the door of the Office, which was located in a building where person seeking the services of bail bond agencies often visited12; Ms. Schubert replaced the rabbit on her door with a crow. She placed several of her business cards on top of the crow. The cards were, therefore, available to anyone who passed by the Office13; Ms. Schubert had a sign on the door of her automobile with A Bunny Bail Bonds written on it; Ms. Schubert placed a number of her cards, pens, and key chains on the door of a bail bond agency located in the same building the Office was located in. The bail bond agency was Dolphin Bail Bonds, which was owned by Ronald Blum14; and Ms. Schubert sent a Christmas present to her former employer in an envelope with "Bunny Bail" and the address of the Office as the return address. The Department's Investigation of Ms. Schubert. During the fall of 2002, the Department received a complaint from Mr. Blum of Dolphin Bail Bonds, suggesting that Ms. Schubert was operating A Bunny Bail Bonds. On or about November 25, 2002, as a result of Mr. Blum's complaint, Patricia Anthony, an investigator for the Department, sent a letter to Ms. Schubert informing her of the investigation. (Stipulated fact). On December 5, 2002, Ms. Schubert met with Ms. Anthony to discuss the matter. (Stipulated fact). Ms. Schubert executed an affidavit at Ms. Anthony's request, concerning her use of the Office. (Stipulated fact). At no time after the investigation was commenced until the investigation was completed, sometime in 2003, was the office found to be open despite the fact that Ms. Anthony visited the office several times. (Stipulated fact). The Department's investigation of Ms. Schubert was concluded with the issuance of a letter of guidance on or about May 29, 2003. (Stipulated Fact).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the granting Ms. Schubert's application for licensure as a limited surety (bail bond) agent pursuant to Chapter 648, Florida Statutes, conditioned on her taking additional bail bond agent training and/or placing Ms. Schubert on probation for an appropriate period of time. DONE AND ENTERED this 26th day of January, 2004, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 2004.
The Issue The issue is whether Respondent is guilty of unlawfully employing a felon in the conduct of the bail bond business, in violation of Sections 648.44(8)(b) and 648.45(3), Florida Statutes, and Rule 4-221.001, Florida Administrative Code. If so, an additional issue is what penalty should be imposed.
Findings Of Fact At all material times, Respondent has been licensed as a limited surety agent, and he has been the chief executive officer of Big John’s Bail Bonds, Inc., which is located in Tampa (Big John’s). Donald Raymond Davis has known Respondent for ten years. From time to time, Mr. Davis has done bail bond pick- ups in which he, serving as a bounty hunter, locates and apprehends a person whose failure to appear in court has resulted in a bond forfeiture. Mr. Davis is a felon. His last conviction was in 1989 for a second-degree felony of threatening to discharge a destructive device, in violation of Section 790.162, Florida Statutes. The court sentenced him to 18 months in prison followed by one year of probation. Mr. Davis has been convicted of one or more other felonies. At all material times, Respondent was aware that Mr. Davis was a felon and was not licensed by Petitioner to engage in the bail bond business. In December 1999, Respondent asked Mr. Davis to locate and cause the apprehension of Hector Lopez, who had failed to appear in court concerning a drug charge. Due to his failure to appear, the court had ordered the forfeiture of a bond that Respondent had written. Upon the apprehension of Mr. Lopez, Respondent would pay Mr. Davis a ten percent commission (presumably calculated with reference to the bail amount or bail premium), less certain debts that Mr. Davis owed Respondent. Respondent also agreed to pay certain expenses of Mr. Davis in pursuing Mr. Lopez. After being retained, Mr. Davis examined the file, but found nothing that would help him find Mr. Lopez. Mr. Davis checked prior bookings and found a couple of co- defendants. By this means, Mr. Davis tracked down Mr. Lopez’s girlfriend, who resided in the Tampa Bay area. Visiting the girlfriend and claiming to be a bail bondsman, Mr. Davis learned that Mr. Lopez was enroute to the New Jersey/New York area. Mr. Davis departed for Fayetteville, North Carolina, where he contacted the girlfriend’s sister and mother. There, he learned that Mr. Lopez had been in Fayetteville, but had already left town on his way to New Jersey. Mr. Davis arrived in New Jersey near Christmas. He investigated the case until Christmas Eve, when he drove back to Florida. However, on January 2, 2000, Mr. Davis drove back to Patterson, New Jersey, to continue his search for Mr. Lopez. Arriving in northern New Jersey, Mr. Davis rented a motel room, from which he resumed his search for Mr. Lopez. By this time, Mr. Davis was out of money, so Respondent used his credit card to pay for the motel room and paid for other expenses, including an informant. Never more than one day behind Mr. Lopez, Mr. Davis beat the street in search of the bond principal. About to apprehend him in New Jersey, Mr. Davis retained the assistance of a New Jersey bondsman who provided four men, with whom Mr. Davis rushed Mr. Lopez’s New Jersey apartment--only to find it recently vacated. Searching the apartment, Mr. Davis found a telephone number for Mr. Lopez’s pager, and, by this means, located Mr. Lopez in the Bronx, New York. At 1:30 a.m. on January 19, 2000, Mr. Davis and now eight New Jersey men apprehended Mr. Lopez and took him to the Elmhurst Park Police Department in New Jersey. Mr. Davis had originally intended to bring Mr. Lopez back to Florida, but did not want to do so for fear that he would get into trouble for engaging in the bail bond business in Florida without a license. While communicating with the New Jersey police, Mr. Davis produced a false identification that he had purchased in North Carolina. After the New Jersey police confirmed the pending charges against Mr. Lopez and agreed to keep him in custody, Mr. Davis negotiated with the New Jersey bail bondsman a price of $2000 for the assistance that he had provided in the apprehension of Mr. Lopez. Respondent transferred this money to New Jersey for payment to the New Jersey bail bondsman. Mr. Lopez was eventually returned to Florida. Upon his return to Florida, Mr. Davis received from Respondent the sum of about $700 for his services in finding and apprehending Mr. Lopez. Respondent paid this sum even though, after the payment, Mr. Davis still owed Respondent some money. At all material times, Respondent employed Mr. Davis as an independent contractor, not an employee. All major factors support this finding. Mr. Davis controlled the means by which he performed the search and apprehension of Mr. Lopez. Payment of Mr. Davis was contingent upon the apprehension of Mr. Lopez. Respondent did not take withholding taxes or social security contributions out of any payments to Mr. Davis. At no time was Mr. Davis ever an employee, officer, director, or shareholder--directly or indirectly--of Big John’s. Mr. Davis was arrested in 2000 for the unlawful practice of the bail bond business. He pleaded guilty to this charge. The court sentenced him to 22 months in prison, but suspended the sentence, subject to successful completion of five years of probation.
Recommendation It is RECOMMENDED that the Department of Insurance dismiss the First Amended Administrative Complaint against Respondent. DONE AND ENTERED this 23rd day of April, 2001, in Tallahassee, Leon County, Florida. ___________________________________ ROBERT E. MEALE 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, 2001. COPIES FURNISHED: 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 Anoush A. Arakalian Division of Legal Services Department of Insurance 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Joseph R. Fritz Joseph R. Fritz, P.A. 4204 North Nebraska Avenue Tampa, Florida 33602
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.
Findings Of Fact At all material times, Respondent has been a licensed limited surety agent, holding license number A025071. At all material times, Respondent has been the president and owner of Dolly Bolding Bail Bonds, Inc. (Dolly Bolding), which is located at 108 South Armenia Avenue in Tampa. In July 1999, Carver Taitt visited the office of Dolly Bolding to obtain a bail bond for his son, who had been arrested on drug charges. The judge had set bond at $20,000, so the bail bond premium was $2000. Mr. Taitt spoke with Respondent and said that he did not have the entire $2000; he had only $1000. Respondent declined to extend Mr. Taitt credit for the $1000 balance. Mr. Taitt then offered $1500, and Respondent agreed to allow Mr. Taitt to owe Dolly Bolding the remaining $500. At this time, Mr. Taitt saw Frank Cueto, Sr., also known as “Paunch,” in the office of Dolly Bolding. Mr. Taitt also told Mr. Cueto that Mr. Taitt would pay the remaining $500. Mr. Taitt had obtained bonds in the past five years from Dolly Bolding. During this time, he had often seen Respondent and Mr. Cueto in the office, and Mr. Taitt was acquainted with both of them from these past purchases of bonds. Mr. Cueto contacted Mr. Taitt several times and asked him to pay the remaining $500. At one point, Mr. Cueto threatened that Dolly Bolding would revoke the bond if Mr. Taitt did not immediately pay the remaining $500, especially because he was about to take a trip whose cost would approximate the outstanding balance. Mr. Taitt paid the $500 on the day prior to his son’s court appearance. When he complained to Mr. Cueto that he should have trusted Mr. Taitt based on their past relationship, Mr. Cueto replied that money is money. Mr. Taitt’s son missed his court appearance, and the judge ordered the forfeiture of the bond. The judge later entered an order reinstating bail, but this order did not reinstate the obligation previously undertaken under the bond by Dolly Bonding or its principal. Consequently, Mr. Taitt telephoned Dolly Bonding and requested a reissuance of the bond. Told that Respondent was unavailable, Mr. Taitt spoke with Mr. Cueto. Mr. Cueto told Mr. Taitt that no surety company would agree to reissue the bond. In the meantime, the assistant public defender obtained an order from the judge for the administrative release of Mr. Taitt’s son. By this means, the jail released Mr. Taitt’s son immediately without posting any bond. The facts contained in paragraphs 4-8 above are derived from Mr. Taitt’s testimony. This constitutes some, but not all, of Mr. Taitt’s testimony. The Administrative Law Judge has not credited much of the remainder of the testimony, including, most significantly, Mr. Taitt’s testimony that Mr. Cueto was always in the office of Dolly Bolding and that he seemed to run the bonding business. Mr. Taitt was angered by Mr. Cueto’s involvement in this transaction. Much of his uncredited testimony lacked the detail of his credited testimony. As for the credited testimony, Respondent, who was not always present in the office, was not able to rebut the more-detailed portion of Mr. Taitt’s description of Mr. Cueto’s handling of the transaction. Mr. Cueto did not testify, although he is engaged to be married to Respondent and lives with her. However, Respondent’s testimony is credited over Mr. Taitt’s vague, conclusory testimony as to the business relationship between Respondent and Mr. Cueto. Thus, consistent with Respondent’s testimony, the Administrative Law Judge finds that Mr. Cueto has not exercised any dominion over Dolly Bolding or Respondent. Respondent is an articulate, intelligent individual, who is a college graduate. She makes all bonding decisions for Dolly Bolding. Mr. Cueto is not an employee, officer, or shareholder of Dolly Bolding, and Respondent is not an employee, officer, or shareholder in any company owned by Mr. Cueto. He maintains an office in the same building as Dolly Bolding’s office, and he is present in the Dolly Bolding office on a frequent basis. At least in the case of the bond for Mr. Taitt’s son, Mr. Cueto has involved himself to some extent in Respondent’s bonding business. It is entirely possible that Mr. Cueto’s involvement in this bonding transaction is isolated, as he may have been inclined to involve himself to an unusual degree in a bonding matter due to the number of years that Mr. Cueto has known Mr. Taitt. It is even more likely that Mr. Cueto’s involvement in this bonding transaction was without the knowledge of Respondent. Mr. Cueto is a felon. He was convicted in 1994 of unlawful engaging in the bail bond business and misleading advertising. Mr. Cueto was formerly a licensed limited surety agent, but Petitioner suspended his license sometime ago. Respondent was at all times aware of these aspects of Mr. Cueto's background. In November 1991, Petitioner commenced an administrative proceeding against Respondent, as a licensed limited surety agent, for allowing an unlicensed person to participate in the bail bond business. By Settlement Stipulation for Consent Order and Consent Order, both signed in April 1992, Respondent agreed, and was ordered, to pay an administrative fine of $2000.
Recommendation It is RECOMMENDED that the Department of Insurance dismiss the Second Amended Administrative Complaint against Respondent. DONE AND ENTERED this 6th day of April, 2001, in Tallahassee, Leon County, Florida. ___________________________________ ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 2001. COPIES FURNISHED: Honorable Tom Gallagher Commissioner of Insurance and Treasurer 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 Anoush A. Arakalian Division of Legal Services Department of Insurance 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Joseph R. Fritz Joseph R. Fritz, P.A. 4204 North Nebraska Avenue Tampa, Florida 33602
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the stipulated facts, the following relevant facts are found: At all times relevant to this proceeding, respondent Joseph Aloysius Von Waldner has been licensed as a limited surety agent. He has been in the bail bond business for nine years and has had no previous or subsequent complaints issued against him. On five occasions during January and February of 1979, respondent did authorize, hire and remunerate Delbert Leroy Sams to pick up principals or skips and surrender them to the Orange County Jail. Delbert Leroy Sams was not and has not been previously licensed in any capacity by the Department of Insurance. On March 2, 1979, Mr. Sams was denied a license by the Department of Insurance. At the time respondent engaged the services of Mr. Sams, respondent believed that Mr. Sams was working as a bail bond runner for another bail bondsman. Respondent did not inquire of Sams as to whether Sams was or was not licensed by the Department of Insurance. Respondent knew that other bail bondsmen had used Sams as a runner, and Sams showed respondent some business cards and forms which Sams used when picking up principals. Respondent admits that he was negligent for not inquiring into Mr. Sams' licensure. Respondent was called in for an investigation by the petitioner's chief investigator, Melvin R. Thayer, on February 28, 1979. After talking with Mr. Thayer and becoming aware that Mr. Sams was not licensed, respondent no longer used Sams as a runner.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Department of Insurance enter a final order finding that respondent violated the provisions of Florida Statutes, s648.45(1)(j) and imposing an administrative penalty against respondent in the amount of $100.00, said penalty to be paid within thirty (30) days of the date of the final order. Respectfully submitted and entered this 27th day of June, 1980, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 1980. COPIES FURNISHED: Thomas A. T. Taylor, Esquire Room 428-A, Larson Building Tallahassee, Florida 32301 Richard L. Wilson, Esquire 100 South Orange Avenue Orlando, Florida 32801 Insurance Commissioner Bill Gunter The Capitol Tallahassee, Florida 32301
