The Issue The issue in this case is whether the allegations set forth in the Administrative Complaint filed by the Department of Health (Petitioner) against Ekemi A. Tinson, C.N.A. (Respondent), are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged by statute with regulating the practice of nursing in Florida. At all times material to this case, the Respondent was licensed as a certified nursing assistant in the State of Florida, holding license number 262882. At all times material to this case, the Respondent was employed as a C.N.A. to provide personal care and assistance to M.U., an elderly female suffering from dementia and Parkinson’s disease. The Respondent initially provided her services to M.U. through a company identified as “Hopewell Home Healthcare.” Towards the end of 2013, the Respondent began to provide her services to M.U. by private agreement with J.U., M.U.’s husband. During the time of the Respondent’s employment by J.U., J.U. exhibited signs of short-term memory loss. The Respondent was aware of the continuing decline in J.U.’s memory, and on occasion, accompanied J.U. to physician appointments when his memory was included in the topics discussed. By the time of the hearing, J.U. had suffered a stroke resulting in memory loss and an inability to communicate (“dysphasia”). M.U. required in excess of 20 hours of care per day. When the Respondent began to work for the couple privately, the Respondent recruited other caretakers to assist in providing the required care, but the Respondent remained the primary caregiver, working for approximately 60 hours per week. In addition to the services the Respondent initially provided to M.U., as time passed, she also helped J.U. in other ways, performing cooking and light household tasks, answering phone calls, scheduling and keeping appointments, and assisting in shopping errands and paying bills. The Respondent was paid by the hour for the services she provided to M.U. and J.U. In December 2013, the Respondent purchased a car through a loan that was co-signed by J.U. The loan amount was in excess of $24,000. As a co-signer, J.U. was responsible for payment of the loan in the event that the Respondent failed to make the required installment payments. The Petitioner has implied that the Respondent influenced and manipulated J.U.’s participation in the transaction because J.U. exhibited a decline in short-term memory abilities. The evidence is insufficient to establish that J.U. was not competent and capable of making financial decisions at the time of the loan execution. While employed by J.U., the Respondent was authorized to use a credit card issued to J.U. to make various purchases of food, medications and household items for the couple. The Respondent also used J.U.’s credit card, without authorization, to make various personal purchases and to pay her own car insurance and cable TV bills. Beginning in February 2014, S.U., the son of M.U and J.U., assumed powers of attorney for his parents. In February 2015, S.U. became aware that the monthly amount of charges routinely made to J.U.’s credit card account had increased. He reviewed the credit card account statements, and observed charges unrelated to the services being provided by the Respondent to J.U. and M.U. After speaking with his father about the statements, S.U. met with the Respondent on February 28, 2015, to discuss the charges. During the discussion, the Respondent admitted she had used J.U.’s credit card to pay her personal expenses, but claimed that J.U. had given her permission to use the cards. She thereafter provided a check in the amount of $1,060 to repay a portion of the expenses she had charged to J.U.’s card. There is no evidence that the Respondent was authorized by J.U., or by anyone else, to use J.U.’s credit card to make personal purchases or to pay her own household bills. The Respondent’s employment by J.U. and M.U. was terminated on February 28, 2015. The Respondent charged approximately $19,000 of personal expenses to J.U.’s credit card. The Respondent eventually defaulted on the car loan. The lender has been attempting to collect the net amount due on the loan of $10,493.83 from J.U.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner enter a final order finding the Respondent guilty of the statutory violations set forth herein and revoking the Respondent’s license to practice as a certified nursing assistant. DONE AND ENTERED this 4th day of May, 2016, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 2016. COPIES FURNISHED: Shoshana Jean Silver, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed) Ekemi A. Tinson, C.N.A. 6620 Livingston Avenue North St. Petersburg, Florida 33702 Amy C. Thorn, Esquire Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed) Louise Wilhite-St Laurent, Esquire Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed) Nichole C. Geary, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 (eServed) Joe Baker, Jr., Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-3252 (eServed) Ms. Jody Bryant Newman, EdD, EdS, Board Chair Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-3252
The Issue The issue presented for decision herein is whether or not the Respondents, Andrew DeGraffenreidt and Circle D. Realty, are guilty of conduct, set forth hereinafter in detail, amounting to fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust in a business transaction and have failed to account and deliver rental money all in violation of Subsections 475.25(1)(b)and (d), Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and entire record compiled herein, I hereby make the following relevant factual findings. Petitioner, Department of Professional Regulation, Division of Real Estate (hereinafter sometimes called the Petitioner), is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute the Administrative Complaints pursuant to Chapters 20, 120, 455 and 475, Florida Statutes and rules promulgated pursuant thereto. Respondent, Andrew DeGraffenreidt, is now and was at all times material, a licensed real estate broker having been issued license number 0320099. Respondent, Circle D Realty, Inc., Is now and was at all times material hereto, a corporation licensed as a real estate broker in Florida having been issued license number 0221329. At all times material hereto, Respondent DeGraffenreidt was an officer of, and was the qualifying broker for Respondent, Circle D Realty, Inc. Respondents, in their capacity as a real estate broker, entered into an agreement with Emmett and Louis Anderson, during August, 1984 to handle the rental management of certain residential property owned by the Andersons located at 320 Northwest 20th Avenue, Fort Lauderdale, Florida. The management agreement was by its terms, effective for a period of one year beginning August 21, 1984 and ending August 22, 1985, and continuing from year to year until either party terminated the agreement by giving notice to the other party sixty (60) days prior to the end of any yearly renewal period. The Andersons, as owners, granted Respondents, inter alia, the following authority: Full management and control of said property with authority to collect rents and other monies and securities from tenants, to negotiate leases and renewals thereof, to have minor repairs made and to purchase necessary supplies and to pay all bills and charge same to owner, to serve vacate notices upon tenants and to prosecute in the name of the owner, to hire, discharge and pay from owners' funds any and all employees necessary to the maintenance and operation of the building, and were clothed with such general authority and powers as maybe necessary or expeditious to carry out the spirit and intent of the management agreement with respect to the renting, management and operation of the property. For such services, Respondents would receive 10 percent of gross rentals and other monies. Respondent was authorized to deduct from the owners' funds held by them, any amount due Respondent for any charges incurred on the owners' behalf. At the time when Respondents entered into the management agreement with the Andersons, there were two outstanding mortgages on the subject property in favor of Associates Financial Services Company and California Federal of Florida, Inc. Both mortgages were delinquent at the time Respondents agreed to manage the Andersons' property. When Respondent assumed management of the subject property, the tenants were paying monthly rent of $450.00, an amount insufficient to cover the outstanding mortgages. During some undetermined time during August 1984 and June, 1985, Respondent raised the rent from $450.00 to $600.00, an amount agreed to by the tenants who were desirous of purchasing the property. The management agreement between Respondent and the Andersons was for management of the property and not one for the payment of the mortgages. However, during some unspecified period of time, Mrs. Emmett Anderson, by telephone, requested Respondent's office manager, Mary MacDonald, to mail the mortgage payments of $338.48 and $207.00 to the various mortgage companies. Ms. MacDonald agreed to accept Mrs. Anderson's request and have rent monies mailed directly from Respondent to the two financial institutions without consulting Respondent, DeGraffenreidt. Respondent DeGraffenreidt, upon learning of the verbal agreement with Mrs. Anderson and the office manager, MacDonald, informed Ms. MacDonald that she would have to assume the task of paying and mailing mortgage payments each month and he (DeGraffenreidt) would cash the rental check and give her money orders to be mailed and/or paid to the respective financial institutions. As early as February, 1984, the mortgages were delinquent for the Andersons' property and both institutions were contemplating instituting foreclosure proceedings. (Respondent's Exhibit 2). All written communications between the financial institutions concerning the delinquency were mailed to the Andersons who had relocated to Boston, Georgia. Unbeknownst to Respondent DeGraffenreidt, the mortgage payment to California Federal was increased from $207.00 to $296.00 per month. California Federal refused one payment for $207.00 which had been sent by Respondent after the amount was increased to $296.00. Respondent DeGraffenreidt requested Anderson to advise him of the correct amount of the mortgage payment to be sent to California Federal. Mr. Anderson did not respond to this request. During October and November, 1985, Respondent DeGraffenreidt advised the Andersons that additional monies were needed from them to bring the mortgages current. Respondent DeGraffenreidt again telephoned the Andersons and advised them during early December, 1985 that he needed $1,000.00 to prevent California Federal from foreclosing on the mortgage. At that time, Mr. Anderson requested that the Respondents try to sell the property. Respondent DeGraffenreidt contacted some business associates and investors trying to arrange a sale for the Anderson property. However, no investors were interested based on the asking price and all potential buyers lost interest in the Andersons' property when they learned that the two outstanding mortgages exceeded the marketable value for the property. During June and July, 1986, Respondent DeGraffenreidt attempted to reconcile the Anderson account and determined the exact amount that the Andersons were owed based on some returned payments which Circle D received from the financial institutions and which were placed in an escrow account. Respondent determined this amount to be approximately $557.35, which amount was tendered to the Andersons via a money order during the course of the hearing. Respondents maintained a ledger which correctly showed the monies due and owing to the Andersons based on monies returned by the financial institutions. The Andersons never provided Respondents a written account of any change in the mortgage payments. On or about January, 1986, the Andersons notified the Johnsons (tenants) to pay the rent directly to the Andersons. The Andersons never advised the Respondents that they were terminating the management contract which required written notice from the Andersons.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Administrative Complaint filed herein be DISMISSED. DONE and RECOMMENDED this 24th day of November, 1987, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 1987. COPIES FURNISHED: Arthur R. Shell, Jr., Esquire Department of Professional Regulation - Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Andrew DeGraffenreidt and Circle D. Realty, Inc. 2123 Northwest Sixth Street Ft. Lauderdale, Florida 33311 Harold Huff, Executive Director Department of Professional Regulation, Division of Real Estate 400 West Robisnon Street Post Office Box 1900 Orlando, Florida Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neill General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issues are whether Respondent violated Chapter 648, Florida Statutes (2007),1 by charging more for a bail bond than the statutorily allowed amount, withholding and failing to return money to his principal or the principal’s wife, and suggesting employment of a particular attorney to represent the principal, and, if so, what, if any, penalty should be imposed against Respondent’s limited surety (bail bond) license.
Findings Of Fact Petitioner is the state agency responsible, in relevant part, for regulating limited surety licensees (bail bond agents) in Florida pursuant to Chapter 648. Respondent is licensed as a bail bond agent in Florida pursuant to license number A054475. Respondent conducts business as the sole owner of Nickel American Bail Bonds (Nickel). Nickel is located at 2641 Airport Road, Naples, Florida 34112-4878. Respondent is the primary agent for Nickel. Respondent employs Mr. Anthony Robert Bennett (Tony Bennett) directly through Nickel and through SWFLGPS Monitoring Solutions (GPS Solutions). GPS Solutions is a fictitious name registered to Freedom 247, Inc. (Freedom), a Florida, for-profit corporation, for which Respondent is a principal and controlling shareholder. At the time of the events at issue in this proceeding, Mr. Tony Bennett was licensed as a temporary bail bond agent through Nickel. At the time of the hearing, Mr. Tony Bennett was a licensed bail bond agent through Nickel. At the time of the events at issue in this proceeding, Respondent also employed Ms. Michelle Blake. Respondent employed Ms. Blake directly and through Nickel. Ms. Blake sometimes performed minor tasks for GPS Solutions. Sometime in December 2007, the Sheriff for Collier County, Florida (Collier County Sheriff), arrested Mr. Edel Rodriguez and incarcerated Mr. Rodriguez in the Collier County Jail. The court set bond in the amount of $202,000.00 for all charges. During December 2007, Ms. Ana Cabrera, the wife of Mr. Rodriguez, attempted to arrange bond for her husband with Respondent, but was unsuccessful. She successfully obtained a bond when she returned to Respondent’s office on January 2, 2008, with two friends who were willing to secure the bond with mortgages on their homes. Bankers Insurance Company (Bankers) issued a bond in the aggregate amount of $202,000.00 pursuant to what is identified in the record as three separate identification numbers. Bankers issued identification numbers 510505690-0 and 510505182-2, each for $100,000.00, and identification number 580036136-7 for $2,000.00. The Collier County Sheriff released Mr. Rodriguez from custody on January 2, 2008. Mr. Rodriguez enjoyed approximately 72 days of freedom until March 15, 2008, at 8:50 p.m., when Respondent re-arrested Mr. Rodriguez, where Mr. Rodriguez worked, and returned Mr. Rodriguez to the custody of the Collier County Sheriff. The maximum amount that Respondent was permitted under Florida law to charge Mr. Rodriguez for his 72 days of freedom was 10 percent of $202,000.00, or $20,200.00. Respondent charged Mr. Rodriguez $22,040.00 in violation of Section 648.33 and Florida Administrative Code Rule 69B-221.105(2). Ms. Cabrera paid $20,200.00 on January 2, 2008, when she signed the bond documents.2 Mr. Rodriguez paid an additional $1,840.00 in fees related to the use of the GPS device required by Respondent. The GPS device was a cost of the bail bond transaction that was required by Respondent. Respondent paid a company identified in the record as Secure Alert up to $9.00 a day to monitor the GPS device and charged Mr. Rodriguez $12.00 a day for a monthly profit of $90.00, but at a gross monthly cost to Mr. Rodriguez of $360.00. Respondent allowed Mr. Rodriguez to spend the first 24 hours of his release from jail without a GPS device without fear that Mr. Rodriguez was a flight danger. As will be discussed in greater detail, Mr. Rodriguez eventually cut the GPS device from his leg. For reasons discussed hereinafter, the fact-finder finds that the act of cutting the device from Mr. Rodriguez's leg represented more of a financial threat to Respondent than a threat of flight by Mr. Rodriguez. The court did not order Mr. Rodriguez to wear a GPS device as a condition of his release. The Bankers bond documents did not require a GPS device as a condition of the bond documents. Florida Administrative Code Rule 69B-221.100 does not require a GPS device as a condition of release. Florida Administrative Code Rule 69B-221.100 prohibits Mr. Rodriguez from: departing the jurisdiction of the court, which was Collier County, Florida; moving from one address to another; demonstrating any intention to cause a forfeiture of the bond; and being arrested or incarcerated for any offense while on bond. There is no credible and persuasive evidence that any one of the foregoing factors were present in this case. Respondent testified that the GPS device was not a cost of the bail bond transaction. For reasons previously discussed in paragraphs 12 and 13, the fact-finder finds Respondent’s testimony to be less than credible and persuasive. Other testimony by Respondent belies his disclaimer. For example, Respondent testified, in substantial effect, that he would not have participated without the GPS device and that he did not intend to re-arrest Mr. Rodriguez until he discovered that Mr. Rodriguez had cut the GPS strap from his leg. For reasons discussed in paragraphs 12 and 13, the overwhelming evidence shows that Respondent’s decision to re-arrest Mr. Rodriguez had nothing to do with a threat of flight and had everything to do with a financial threat to Respondent. Mr. Rodriguez cut the GPS strap because the GPS strap was malfunctioning while Mr. Rodriguez was at work at the Wal- Mart located at 11748 Tamiami Trail, Naples, Florida, in Collier County, Florida, within the jurisdiction of the court. The malfunctioning device caused Mr. Rodriguez embarrassment, irritation, and discomfort on the job. Mr. Rodriguez was a plumber by trade, did not understand much English, and needed his job to pay the $360.00 monthly fee Respondent charged for the GPS device. Mr. Rodriguez placed the severed GPS device in his personal vehicle. The severed device continued to accurately disclose the location of Mr. Rodriguez at his job. Mr. Rodriguez telephoned Mr. Tony Bennett for instructions. While Mr. Tony Bennett had some difficulty understanding Mr. Rodriguez, Mr. Tony Bennett understood enough to instruct Mr. Rodriguez to bring the defective device in on Monday for repair or exchange. There was no attempt at flight or to evade Respondent. When Respondent arrived at the Wal-Mart, Mr. Rodriguez continued to work. It was approximately 8:50 p.m. None of this activity violated any of the court ordered conditions of release, applicable rules, or the conditions of the Bankers bond instruments. Respondent surrendered Mr. Rodriguez back to the Collier County Sheriff's office. On the statement of surrender form, Respondent indicated that Mr. Rodriguez had violated the bail agreement. That assertion is incorrect. Mr. Rodriguez acted in good faith to comply with the bail agreement and was in material compliance with the terms of the agreement at all times. Mr. Rodriguez did not violate the terms of release ordered by the court, the Bankers bond instruments, or applicable rules. Respondent has not refunded any of the excess premium to Mr. Rodriguez. Respondent is not entitled to retain the excess premium. At some point between December 2007 and January 2, 2008, Respondent recommended that Ms. Cabrera retain a specific attorney identified in the record as Mr. Josh Faett. In doing so, Respondent violated Subsection 648.44(1)(a).3 Neither Mr. Rodriguez nor Ms. Cabrera speaks or reads English. Ms. Blake filled in the blanks on the application for bond for Ms. Cabrera and provided little, if any, explanation to Ms. Cabrera.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order finding Respondent guilty of violating the statutory provisions cited in paragraph 35, suspending Respondent’s license for seven months, and imposing an administrative fine in the amount of $22,040.00. DONE AND ENTERED this 23rd day of September, 2010, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 2010.
The Issue The issue in this case is whether the Respondent, Michael Crudele, should be disciplined for alleged violations of the statutes and rules governing the conduct of insurance agents.
Findings Of Fact The Respondent, Michael Crudele, is currently eligible for licensure and is licensed in Florida as a life insurance agent and as a life and health insurance agent. The Respondent was the agent-of-record on two American Life and Casualty Insurance Company (American Life) annuities purchased by Mary Clem, one in the face amount of $30,000 dated October 28, 1992, and the other in the face amount of $20,000 dated December 28, 1992. Clem was 84 years old at the time and a widow. The annuities represented more than 80 percent of her life savings. The Respondent became agent-of-record on these annuities at the request of Charles Perks, a good friend and former fellow Metropolitan Life agent. Clem had been an insurance customer of Perks since approximately 1985. When Clem complained to Perks that "the bottom fell out of interest" on her certificates of deposit, he suggested the American Life annuities as a safe alternative that paid higher interest. But Perks was not an authorized agent for American Life, so he asked the Respondent to participate in the sales and split the commissions. In 1992, the Respondent became involved in the Zuma Engineering Co., Inc., a startup tire recycling venture. After being introduced to Zuma, the Respondent became very enthusiastic about its prospects. He invested $30,000 in Zuma, received stock in return for his investment, and became a thirty percent owner. He also became involved in all aspects of the startup business, from promoting the business to the public, to raising capital from and working with private investors, to cleaning up Zuma's recycling facility. He understood that he was a corporate director, but corporate filings with the Secretary of State indicate that he was a vice-president from October 27, 1993, until March 20, 1994. The Respondent not only solicited investors himself, he participated in recruiting a sales force. As part of this effort, he recruited his friend Charles Perks. In late 1993 and early 1994, Perks and the Respondent approached Mary Clem to solicit her investment in Zuma. It is not clear from the evidence how the solicitation of Mary Clem proceeded. It is believed that Clem may have initially contacted Perks around the time of the anniversary date of the $30,000 annuity to complain that she had been notified of a drop in the interest rate paid by the annuity. Mary Clem received a guaranteed 5.75 percent interest, plus a one percent interest "bonus" for a total of 6.75 percent interest during the first year of her two American Life annuities. The "bonus" interest automatically terminated at the end of the first year. In addition, the evidence was that the standard interest guarantee decreased to five percent starting with the second year. It is not clear when Clem received notice of the decrease in the interest guarantee or whether she received notice from American Life as to the elimination of the interest "bonus," but it is found that by December 2, 1993, Clem knew the interest rate on her $30,000 annuity was being decreased to five percent for the second year of the annuity. It is possible that she also knew by then that the interest on her $20,000 annuity was being decreased to five percent as well. Perks saw Mary Clem's dissatisfaction with the American Life annuities as an opportunity to sell Zuma promissory notes to her. On or about December 2, 1993, Charles Perks approached Mary Clem and sold her a $10,000 promissory note issued by Zuma. On its face, the promissory note was dated December 3, 1993, and paid twelve percent interest, with a single balloon payment of principal and interest due on June 3, 1995. The evidence was that the Respondent did not participate in this transaction on December 2, 1993. Mary Clem does not recall, and both Perks and the Respondent testified that the Respondent was not present. The Respondent testified that he was not even aware of this $10,000 Zuma note until the Department's Order of Emergency Suspension and Administrative Complaint on or about July, 1996, but this testimony is rejected as not being credible. It is found that the Respondent knew about Clem's purchase of the $10,000 promissory note either on December 2, 1993, or soon thereafter. It is found that by December 2, 1993, or shortly thereafter, Clem complained to both Perks and the Respondent about the interest on her annuities. It is found that all three of them discussed Zuma promissory notes as an alternative investment. Contrary to the Respondent's testimony, it is found that, if he did not already know about Clem's purchase of the $10,000 Zuma promissory note by then, the Respondent would have learned of the $10,000 Zuma promissory note during these discussions. It also is found that, based on those discussions, Clem decided to surrender her $20,000 annuity and use the money to buy Zuma promissory notes. It is found that Perks and the Respondent helped Clem with the surrender of her $20,000 annuity. It also is found, contrary to the Respondent's testimony, that Perks and the Respondent assisted in arranging for Clem to be able to purchase a Zuma promissory note in the face amount of $20,000 for the net cash surrender value of the $20,000 annuity, after deduction of premium tax and surrender penalty. When American Life was notified of Clem's desire to surrender the $20,000 annuity, the company contacted the Respondent and asked him to "conserve" the annuity, i.e., dissuade Clem from surrendering it. It is found that, if he did not already know about it by then, the Respondent would have learned of Clem's intentions to buy Zuma promissory notes when he contacted her on behalf of American Life to comply with American Life's request that he attempt to conserve the annuity. It also is found that, if he did not already know about Clem's purchase of the $10,000 Zuma promissory note, he would have learned of the $10,000 Zuma promissory note at this time. By letter dated January 24, 1994, American Life responded to Clem's request to surrender her $20,000 annuity. American Life's letter advised Clem that she was entitled to principal and $69.67 in interest, less premium tax in the amount of $213.69 and surrender charges in the amount of $1,625.65, for a net of $18,230.33. A check for the net amount was enclosed. A copy of American Life's January 24, 1994, letter was sent to the Respondent as the agent-of-record. On or about February 1, 1994, Perks and the Respondent went to Clem's home to complete the purchase of a $20,000 Zuma promissory note. The Respondent testified that, since all of the arrangements had been made in advance, the Respondent's role in the transaction was solely as "corporate director and verifier" on behalf of Zuma; however, the Respondent also would receive $900 of the $2,000 commission paid by Zuma on the transaction. Meanwhile, his additional role as American Life's agent required him to attempt to "conserve" the annuity policy. At one point, the Respondent testified that, as "corporate director and verifier," he inquired into Clem's assets (presumably to ascertain if the investment was appropriate for her). But he also testified that he assumed her assets were unchanged from 1992, raising a question as to whether the Respondent undertook any inquiry into Clem's assets on February 1, 1994, at all. At another point, the Respondent testified that he understood Mary Clem to have $200,000 in assets. See Department Exhibit 6. But, if so, those assets consisted of her home, the annuities and the $10,000 Zuma promissory note. It is found that the Respondent had no reason to believe she had any other assets. The Respondent also testified that he did not determine from his alleged inquiry into Clem's assets, and did not know, that Clem already had purchased a $10,000 Zuma promissory note. As previously found, it is considered incredible that the Respondent did not already know by February 1, 1994, that Clem had purchased the $10,000 Zuma promissory note; it is all the more incredible that he would not have learned of it from a diligent inquiry into Clem's assets for purposes of determining the appropriateness of the $20,000 Zuma investment. Mary Clem testified that the Respondent and Perks touted the safety of the Zuma investment as well as the higher interest it paid. The Respondent testified that, although acting in the conflicting roles described in the preceding finding, he discussed the differences between the two investments, including the risk of the Zuma investment. The Respondent testified that he read to Mary Clem from a written disclosure statement that defined Zuma's promissory notes as being a "risk investment," but no written disclosure statement was introduced in evidence. In any event, the "verification" was a mere formality; as the Respondent knew full well, Clem already had decided to buy the promissory note. Clem wrote a personal check in the amount of $18,230, and Perks and the Respondent gave her Zuma's $20,000 promissory note bearing twelve percent interest. The note was erroneously dated February 1, 1993, and erroneously stated on its face that the single balloon payment of principal and interest was due on February 1, 1995. The note was supposed to have a 24- month term from February 1, 1994, to February 1, 1996. (This discrepancy would lead to problems later. See Findings 32-33, infra.) In view of the conflict of interest inherent in the Respondent's multiple roles in the transaction, it is found that the Respondent did not make a good faith inquiry into appropriateness of the Zuma investment for Mary Clem and did not fully disclose the risk associated with it, as compared to the American Life annuity. If the Respondent disclosed the risk, it is found that he did not do so fully and clearly, again probably due to the conflict of interest inherent in his multiple roles. Neither Mary Clem nor her late husband had ever invested in any stocks, mutual funds or even bonds. Before Mary Clem invested in the American Life annuities, she and her late husband always invested in certificates of deposit. While it is true that Clem wanted higher interest than she was getting on her annuities, she also wanted safety and security. It is found that, if the Respondent had fully and completely disclosed the risk of investing in Zuma promissory notes, Mary Clem would not have invested in them. Mary Clem also surrendered her $30,000 American Life annuity and used the money she received to buy another Zuma promissory note. The Respondent claimed not to have known anything about the third Zuma note, and the Department was not able to prove that he did. It is not clear exactly when Clem decided to surrender her $30,000 annuity and buy a third Zuma note. It was before March 3, 1994, the date of the American Life letter responding to Clem's request to surrender her $30,000 annuity. American Life's letter advised Clem that she was entitled to principal and $16.04 in interest, less premium tax in the amount of $324.71 and surrender charges in the amount of $2,474.92, for a net of $27,216.41. A check for the net amount was enclosed. As with Clem's request to surrender her $20,000 annuity, American Life contacted the Respondent and asked him to try to "conserve" the annuity. The Respondent also received a copy of American Life's March 3, 1994, letter as the agent-of- record. The Respondent admitted that he telephoned Clem on or about February 28, 1994, to try to conserve the annuity but that Clem was adamant. He claimed that Clem did not tell him what she intended to do with the money and that he did not ask. The meeting at which Clem bought the third Zuma promissory note took place on March 10, 1994. Mary Clem thought the Respondent was there but could not swear to it. Perks also testified that he thought the Respondent was there. The Respondent testified that he definitely was not there and did not know the transaction took place. By that time of the meeting on March 10, 1994, the Respondent had become suspicious and distrustful of Zuma's principals. They had diluted his thirty percent share of the company to a mere 0.3 percent. In addition, the Respondent did not think that the principals were following the business plan they had "sold" the Respondent, and which the Respondent in turn had "sold" to private investors, including Mary Clem. By early March 1994, the Respondent began to take steps to attempt to protect the investors in Zuma, including himself, and force Zuma to follow its business plan. Eventually, he emptied Zuma's accounts and placed the funds in the trust account of the lawyers he hired to sue Zuma and its principals to enjoin them to follow the business plan. The court ruled against the Respondent and required him to return the money to Zuma. The Respondent paid his lawyers' fees out of his own pocket. Based on the timing of events, it seems probable that the Respondent did not meet with Perks and Clem on March 10, 1994. By that time, he was becoming deeply involved in his dispute with Zuma and its principals. It is less clear that the Respondent was completely ignorant of Clem's intention to use the money from the surrender of the $30,000 American Life annuity to buy a third Zuma note, but he may well have lost track of Mary Clem and her intentions in the midst of his dispute with Zuma and its principals. It had been arranged before the March 10, 1994, meeting for Clem to be able to purchase a Zuma promissory note in the face amount of $30,000 for the net cash surrender value of the $30,000 annuity, after deduction of premium tax and surrender penalty. The Respondent denied participating in making these arrangements or having any knowledge of them. A similar arrangement already had been made for the $20,000 annuity and Zuma note, and it is conceivable that Perks did not require the Respondent's participation to arrange it for the $30,000 annuity and Zuma note. It is found that the evidence did not prove the Respondent's participation. On March 10, 1994, Clem wrote a personal check in the amount of $27,2126.41, and received Zuma's $30,000 promissory note dated March 10, 1994. On its face, the note paid twelve percent interest, with quarterly payments of $900 interest and the principal payable on March 10, 1996. The Respondent contacted Mary Clem in June or July, 1994, to inquire about her Zuma investment. Clem told him everything was fine. In December 1994, the notes were revised to show Mary Clem's daughter as a beneficiary on the notes in the event of Clem's death. The revised $20,000 note preserved the erroneous issuance and due dates. See Finding 21, supra. The $900 interest payment due on the $30,000 Zuma note on March 1995, was seriously past due. In addition, no payments were made on the $20,000 note. On April 1, 1995, the $20,000 note was renewed upon payment of $6,200 interest and penalties. Under the renewal note, monthly interest payments of $200 were due, and a balloon payment of principal and remaining interest was due on September 1, 1995. By mid-1995, Zuma was in default again, and Clem received no payments after August 8, 1995. Zuma paid Clem a total of just $23,400 on the three promissory notes. The Respondent conceded that there was a high risk of losing one's entire investment in Zuma and that someone investing in Zuma had to be prepared to lose the entire investment. He also conceded that Mary Clem should not have invested the bulk of her life savings in Zuma. He also conceded that it would have been significant to know, and he should have wanted to know, the extent of Clem's investment in Zuma before increasing her investment in Zuma.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance enter a final order: (1) finding the Respondent, Michael Crudele, guilty of violating Sections 626.611(7), 626.621(3), and 626.621(6), Florida Statutes (1993); and (2) suspending his license and eligibility for licensure as a life insurance agent and as a life and health insurance agent for six months. RECOMMENDED this 6th day of January, 1998, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 6th day of January, 1998.
Findings Of Fact The pleadings in this case, Petitioner's Notice of Intention to Suspend" and Respondent's "Petition for Formal Hearing" establish the following uncontroverted facts: William D. McCaffrey is a mortgage solicitor holding license number HK0007207. The Department of Banking and Finance is charged with the responsibility and duty of administering and enforcing the provisions of the Mortgage Brokerage Act, including the duty to suspend the license of those persons registered under the act for violations of the terms therein. William D. McCaffrey has been convicted of a federal offense and is presently in federal custody at the Federal Correctional Institute in Montgomery, Alabama. On November 13, 1985, Respondent pled guilty to "Interstate transportation of fraudulently obtained credit cards, in violation of title 15 U.S. Code, Section 1644(b) as charged in count 6 of the Indictment". (Petitioner's Exhibit #2) Count 6 of the indictment provides: Count Six On or about December 13, 1982, defendants WILLIAM D. McCAFFREY and WILLIAM BARTRAM III did knowingly, with unlawful and fraud- ulent intent, transport and cause to be transported in interstate commerce from Clarkston, Georgia, by way of Nevada, to the District of Arizona, a fraudulently obtained American Express Credit Card in the name of William Smith, knowing said credit card to have been fraudulently obtained. All in violation of Title IS, United States Code, Section 1644(b), and Title 18, United States Code, Section 2. (Petitioner's Exhibit #1) The U.S. District Court for the District of Arizona in case #CR 85-53 PHX adjudged William D. McCaffrey guilty as charged and convicted, sentenced him to imprisonment for 5 years, and ordered that he pay a fine of $10,000 and make restitution to American Express in the amount of $5,481.27. (Petitioner's Exhibit #2 Judgement and Probation/Commitment Order)
Recommendation Based upon the foregoing it is recommended that a final order be entered suspending Respondent's mortgage solicitor's license for a period of two years. DONE AND ORDERED this 23rd day of October 1986, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1986. COPIES FURNISHED: Robert K. Good, Esquire Office of the Comptroller 400 West Robinson Street Orlando, Florida 32801 Clyde Taylor, Jr., Esquire 1105 Hays Street Tallahassee, Florida 32301
Findings Of Fact Petitioner is the administrative agency charged with responsibility for administering and enforcing the provisions of Chapter 493, Florida Statutes. Respondent, Mortgage Refunds Research and Consulting ("Mortgage"), is a Florida corporation that is wholely owned by Respondent, Richard Vidair. Respondent has sole responsibility for the direction, control, operation, and management of Mortgage. Respondent is not licensed as a private investigator and Mortgage is not a licensed private investigative agency. Respondent is considered by the United States Department of Housing and Urban Development to be a third party tracer. Respondent and his agency locate persons who may be owed refunds for mortgage insurance premiums. From sometime in August, 1990, through May 2, 1991, Respondent contacted individuals who may be owed mortgage insurance refunds by the federal government. Respondent solicited a fee contingent upon actual receipt of the mortgage refund from the federal government. Respondent obtained from the United States government a list of persons owed mortgage refunds. Such lists are available to anyone for a nominal processing fee. Respondent determined the whereabouts of persons named on the list. Respondent either telephoned or mailed a letter to the person named on the list and informed that person of the service offered by Respondent. Respondent included in the letter sent to the person a finder's fee agreement to be signed by the person on the list. Once the contract was signed and returned to Respondent, Respondent provided the person on the list with additional documents to be filled out for the purpose of filing a claim with the federal government. Government refunds were mailed directly to the person on the list. The terms of the finder's fee agreement required the person on the list to pay Respondent's fee within three days of the date the person received his or her money from the government. The agreement further provided that if Respondent's fee was not paid within 30 days, Respondent was entitled to a fee equal to 50 percent of the government refund. Finally, the agreement provided that all collection and legal expenses incurred by Respondent in collecting the finder's fee must be paid by the other party. Respondent received a letter in March, 1991, from the Division of Licensing notifying Respondent that his activities required licensure. After conferring with his attorney, Respondent terminated his activities in Florida but continued his activities outside the state. On October 14, 1987, an attorney for the Division of Licensing issued an internal legal opinion to then Division Director Dave Register. The opinion concluded that persons who engage in the business of locating individuals to whom mortgage insurance premium refunds are due from the federal government are not required to be licensed pursuant to Chapter 493, Florida Statutes. On October 30, 1987, Ken Rouse, General Counsel, Department of State, issued a legal opinion which rescinded the prior internal opinion and concluded that such activities must be licensed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Section 493.6118(1)(g), Florida Statutes, and Florida Administrative Code Rule 1C-3.122(1), imposing an administrative fine of $500 pursuant to Florida Administrative Code Rule 1C-3.113(1)(a)2, imposing an administrative fine of $150 pursuant to Florida Administrative Code Rule 1C- 3.113(1)(b)2, and ordering Respondent to cease all investigative activities until Respondent is properly licensed in accordance with Chapter 493. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23 day of January 1992. DANIEL MANRY 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 23th day of January 1992.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: Florida Brethren Homes, Inc. is a not for profit corporation doing business as the Palms. The Palms is a nursing home facility certified to participate in the Medicaid program. The Department is the state agency charged with the responsibility of reviewing costs claimed by facilities participating in the Medicaid program. The Palms filed a cost report for Medicaid reimbursement for the fiscal period ending December 31, 1987. The cost report reviews the past payment rate and sets the prospective rate. The Department reviewed Petitioner's report and disallowed interest costs in the amount of $298,500 which were included by the Palms. The Palms timely challenged that disallowance. In 1984, the Palms participated in a revenue bond issuance in order to finance the construction of certain improvements to its health care facilities. That bond issue in the amount of $13,970,000 bore a tax exempt interest rate of approximately 12.89 %. For the period ending December 31, 1987, the interest which was due on that bond debt was $298,500. On April 5, 1988, the Palms filed a Chapter 11 action in the Bankruptcy Court for the Southern District of Florida. The Palms did not pay the accrued interest prior to filing its petition in bankruptcy. In fact, the Palms was in default on the interest at the time of the bankruptcy petition. The Medicaid rate which had been established prior to that time had presumed an allowable interest cost for the period and had included that interest payment in the calculation of the rates then available to the Palms. In filing bankruptcy, the Palms sought to restructure its debt. As a result, the Palms executed an Amended And Restated Indenture of Trust which included the accrued but unpaid interest which had accumulated under the 1984 revenue bond issue. The plan called for a bond issuance and for deferred interest certificates to cover the unpaid interest. The deferred interest certificates had not been issued as of the date of the final hearing. The accrued but unpaid interest provided in the deferred interest certificate has a maturity date of December 1, 2016. The unpaid interest is subject to a mandatory prepayment from available net cash flow after December 1, 1992. The restructure of Petitioner's debt has allowed it to remain in business. The plan of reorganization was entered into as a good faith, arm's length transaction. The plan of reorganization was confirmed by the Bankruptcy Court and the proceedings before that tribunal have concluded. In its audit of the Palms, the Department determined that the deferred interest obligation does not mature and become due and payable until December 1, 2016, and that, therefore, the interest expense is not a reimbursable cost for the period that ended December 31, 1987. The Palms' claims that for cost reimbursement purposes the accrued interest was paid by the refinancing of the debt and that the amount should remain an allowable cost to be included for that period.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Department audit disallowing interest claimed for the period that ended December 31, 1987, be confirmed. DONE and ENTERED this 14th day of June, 1991, in Tallahassee, Leon County, Florida. Joyous D. Parrish Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of June, 1991. APPENDIX TO CASE NO. 90-1770 Rulings on the proposed findings of fact submitted by the Petitioner: Paragraphs 1 through 3 are accepted. Paragraphs 4 and 5 are not findings of fact but restate the stipulation reached by the parties at the outset of the hearing. Paragraphs 6 through 11 are accepted. Paragraph 12 is rejected as it is not a finding of fact but, if accurate, would be a conclusion of law. Such conclusion has not been reached in this case. Paragraph 13 is rejected as irrelevant. Paragraph 14 is accepted. With regard to paragraph 15, it is accepted that the repayment of the accrued interest is not a short term liability. Otherwise, the paragraph is rejected as irrelevant. Paragraph 16 is rejected as a restatement of the issue or fact not supported by the weight of the evidence. Paragraph 17 is rejected as irrelevant. Paragraph 18 is accepted. Paragraph 19 is rejected as irrelevant. Paragraphs 20 and 21 are rejected as irrelevant or a conclusion of law. Paragraph 22 is accepted. Paragraph 23 is rejected as irrelevant. Paragraph 24 is rejected as a conclusion of law not supported by the record in this case. Paragraph 25 is rejected to the extent that the term "refinancing" is used to suggest a payment of allowable interest; it is accepted that restructuring the Palms' debt was required to allow it to continue in business. Paragraph 26 is rejected as irrelevant. Rulings on the proposed findings of fact submitted by the Department: 1. Paragraphs 1 through 14 are accepted. COPIES FURNISHED: Scott D. LaRue Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 Karen L. Goldsmith Goldsmith and Grout, P.A. P.O. Box 2011 Winter Park, Florida 32790-2011 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Linda K. Harris Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the license #16-7170-H of Robert A. Rinehart should be suspended or revoked, or whether a civil penalty should be assessed.
Findings Of Fact The Respondent, Robert A. Rinehart, trading as 629 Apartments, was at all times pertinent to this cause licensed as a public lodging establishment, holding license control #16-7170-H. A notice to show cause and notice of hearing' was served upon Respondent Rinehart, notifying him that certain evidence had been presented which, if true, was good and sufficient reason to cause his license to be suspended or revoked or to have a fine assessed against him. The Notice to Show Cause indicated also that an administrative hearing would be held to which the Respondent would receive notice, and was dated December 5, 1978. No answer was filed to the Notice to Show Cause. The Notice of Hearing was mailed April 26, 1979, and was returned. The Respondent did not appear at the administrative hearing or send a representative to testify in his behalf. It is found that the address to which the Notice of Hearing was sent was the same address as provided on the existing license held by Respondent, which is active until December 1, 1980. This address is the same address as indicated on the standard form apartment lease entered into evidence as Petitioner's Exhibit 2. The Respondent is under obligation to keep the Petitioner Division advised of his current address to be shown on his official records in the Division of Hotels and Restaurants, Department of Business Regulation, State of Florida. In December of 1976, Respondent Rinehart rented, or permitted his agent to rent, an apartment in 629 Apartments to Carol Miller. Ms. Miller was required to pay a security deposit in the sum of $100.00 shortly after renting the apartment, and later paid an additional security deposit of $35.00 upon acquiring a pet. Subsequently Ms. Miller moved from the apartment after personally notifying Respondent Rinehart of her intent to vacate the rented premises at a time in excess of thirty (30) days before the intended date of her departure. Ms. Miller then again informed Respondent of her intent to move and requested that he give her an address where he could be contacted and to also return her security deposits, however Respondent did not do so. Ms. Miller moved from the licensed premises in September of 1978, and has not received her security deposits, nor has there been a claim submitted by Respondent Rinehart for the deposit. Entered into evidence was a typed rental agreement and a receipt for various sums of monies growing out of the rental agreement with Respondent Rinehart. The testimony of Carol Miller, together with the evidence submitted, is sufficient to show that Respondent Rinehart in fact received security deposits from Ms. Miller as a tenant and failed to return said security deposits to her or to make a claim against them. A proposed recommended order was submitted by the Petitioner Division, and this instrument was considered in the writing of this Order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this Order they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that a civil penalty be assessed in the amount of $250.00 to be imposed upon the Respondent, Robert A. Rinehart t/a 629 Apartments. DONE and ORDERED this 31st day of August, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Mary Jo M. Gallay, Esquire Robert A. Rinehart t/a Department of Business 629 Apartments Regulation 629 NE 5th Avenue 725 South Bronough Street Fort Lauderdale, Florida Tallahassee, Florida 32301
The Issue Whether the modification of a promissory note and mortgage should be taxed on the full amount as modified ($157,500.00) or on the difference between the amount of the original note and mortgage and the modification.
Findings Of Fact Eleven individuals executed a promissory note to the Lewis State Bank in the amount of $142,500.00. Stamps were affixed thereto as required by Florida Statutes 201.08, which assess the documentary stamp tax on obligations to pay money. Approximately three years later, six of the individuals who had executed the note, executed a modification of the promissory note mortgage. The later note increased the amount from $142,500.00 to $157,500.00 and the interest rate was increased from 7 1/2 to 10 percent. In addition to the increase in the face amount of the note and the increase in the interest, the note provided for the release from liability of five of the original makers. At the, time of the recordation of the modification the amount of $22.50 was affixed which was documentary stamps for the amount of $15,000. The Respondent notified the Petitioner that documentary stamps under Florida Statutes 201.08 were due on the total amount of the new obligation, $157,500.00. tax:
Recommendation Affirm the assessment of the Department of Revenue, Respondent. DONE and ORDERED this 7th day of May, 1976. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Bryan W. Henry, Esquire Henry & Buchanan, P.A. P. O. Box 1049 Tallahassee, Florida 32302 Harry F.X. Purnell, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32304
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
