The Issue The issue presented is whether Petitioner's application for licensure as a mortgage broker should be granted.
Findings Of Fact Petitioner is 54 years of age and has been a resident of the State of Florida for eighteen years. On January 28, 1983, Petitioner was convicted of six counts of mortgage fraud in the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida, Case No. 81-3411CF. That conviction arose out of certain conduct by Petitioner in approximately 1980. Petitioner was sentenced to five years of confinement, with credit for time served, and twelve years of probation. That conviction was affirmed by the District Court of Appeal on July 5, 1984, and re-hearing was denied on August 1, 1984. Zaremba v. State, 452 So.2d 1026 (Fla. 4th Dist. 1984). On February 25, 1987, Petitioner entered a plea of nolo contendere to the offense of grand theft in the Circuit Court of the Twentieth Judicial Circuit in and for Lee County, Florida, Case No. 86-0836CF. On that same date, he was adjudicated guilty and placed on probation for a period of five years to run concurrently with the probation imposed by the Circuit Court of Broward County in Case No. 81-3411CF. That charge arose out of a dispute with his employer, and Petitioner was required to make restitution during his probationary period in the amount of $16,082 pursuant to an order entered by the Court on March 5, 1987. Petitioner's probation was terminated in Case No. 81-3411CF on October 5, 1993, and in Case No. 86-0836CF on April 12, 1993. Petitioner timely made restitution in the total amount ordered by the Court. For the last eight years Petitioner has been employed by Atlantic Real Estate Company in Pompano Beach, Florida, a developer of time-share properties. As the closing officer for that company, Petitioner reviews the closing documents, including mortgages, deeds, and contracts. As the closing officer, Petitioner also handles the money and has for the last eight years. He accepts down payments and closing costs from people purchasing units by the week. He takes the money home at night and deposits it in the bank the next morning. Although he handles thousands of dollars a week in this manner, none of the money which has come into his possession has ended up "missing," and no one has ever accused him of improperly handling any of that money. Petitioner has been licensed as a real estate salesperson by the State of Florida since 1991. Although his application for that licensure was initially denied as a result of his criminal history, Petitioner requested an informal hearing before the Florida Real Estate Commission, and the Commission granted his application for a license. That real estate salesperson's license is current, having been renewed by the Department of Professional Regulation, Division of Real Estate, on August 7, 1993. Petitioner has also successfully handled monies belonging to others as a member of the Board of Directors of the Silver Seas Beach Club, a time-share resort on the Fort Lauderdale "strip." In that capacity, Petitioner has handled money from sales and has also operated the front desk on Saturdays receiving money from people renting units in that resort. He has so handled that money for four years. Petitioner was considered to be "an exemplary probationer" by his probation officer. Petitioner also enjoys a reputation for being competent, honest, reliable, and trustworthy in his handling of money belonging to other persons and in his business dealings, as evidenced by letters from his employer, from the management at Silver Seas, and from a local practicing attorney who was formerly employed by the State of Florida as a prosecutor. Petitioner has rehabilitated himself since the time of his activities which resulted in his two convictions. Petitioner has shown himself to be trustworthy and of good character. On July 29, 1993, Petitioner submitted to the Department his application for licensure as a mortgage broker. In that application he disclosed his two convictions and has provided to the Department all information requested relative thereto. That application reveals that Petitioner has complied with all procedures prerequisite to licensure, including filing the application, paying the appropriate application fee, providing fingerprints, attending the required mortgage broker education courses, and successfully passing the examination for licensure. By letter dated December 14, 1993, the Department denied Petitioner's application for licensure based solely on Petitioner's convictions. In denying Petitioner's application, the Department did not conduct any investigation as to Petitioner's rehabilitation or good character. Rather, the Department relied on its "policy" that no application for licensure as a mortgage broker will be granted if the applicant has ever been convicted of a crime involving fraud, dishonest dealing, or acts involving moral turpitude.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting Petitioner's application for licensure as a mortgage broker. DONE and ENTERED this 3rd day of August, 1994, at Tallahassee, Florida. LINDA M. RIGOT 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 3rd day of August, 1994. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 94-1229 Petitioner's proposed findings of fact numbered 9-13 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 1, 8 and 9 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 2-7 and 11 have been rejected as being irrelevant to the issues under consideration in this cause. Respondent's proposed finding of fact numbered 10 has been rejected as being unnecessary for determination of the issues involved herein. Respondent's proposed findings of fact numbered 12 and 13 have been rejected as not constituting findings of fact but rather as constituting argument of counsel. COPIES FURNISHED: Richard C. Booth, Esquire Booth & Associates Post Office Box 12639 Tallahassee, Florida 32302 Cassandra A. Evans, Esquire H. Richard Bisbee, Esquire Department of Banking and Finance Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32399-0350 William G. Reeves, General Counsel Department of Banking and Finance The Capitol, Suite 1302 Tallahassee, Florida 32399-0350 Honorable Gerald Lewis Department of Banking and Finance Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350
The Issue The issue is whether Respondent has a policy regarding the approval of on-line continuing education courses for bail bond agents, which are rules as defined in Section 120.52(15), Florida Statutes, and which have not been promulgated as required by Section 120.54(1)(a), Florida Statutes.
Findings Of Fact Petitioner is a non-profit corporation that represents the interest of bail bond agents within the State of Florida. Petitioner is also a provider of continuing education courses for bail bond agents. Petitioner's courses are classes with supervising instructors, who ensure the quality of the course material and who verify the identity of students at least two times during each class. Petitioner's classes do not require an examination. Petitioner's primary purpose is to advocate and promote, on behalf of its members, the professionalism of bail bond agents by improving, maintaining, and advancing the standards for bail bond agents, including licensing and educational requirements. Among the requirements for licensure renewal, bail bond agents must complete a minimum of 14 hours of continuing education courses every two years. Therefore, Petitioner has standing to bring this proceeding. Respondent is a state agency with the duty and responsibility to regulate bail bond agents pursuant to Chapter 648, Florida Statutes, and related administrative rules. Respondent must approve all continuing education course providers and continuing education courses for bail bond agents. On May 10, 2005, Respondent approved Athena, as an on- line provider of continuing education courses for bail bond agents. On May 10, 2005, Respondent approved Athena's application for Melissa H. Villella to serve as the school official. On July 14 or 15, 2005, Respondent approved the following on-line courses provided by Athena: Bail Bond Rules and Regs Refresher Course, Part I; Bail Bond Rules and Regs Refresher Course, Part II; Bail Bond Ethics; The New Castle Doctrine Laws; and Concealed Carry Rights and Responsibilities. The five applications for these courses did not refer to a supervising instructor or a monitored examination. The On-Line Training Course Checklist for each course states as follows in relevant part: Provider: Athena Solutions, LLC d/b/a OnDemandCE * * * Information pertaining to subject: a. On-Line Access Instructions: Go to: http://ondemandce.coursehost.com/ * * * c. Sample Exams: All exam questions are provided in the text copy . . . of the course. Two banks of questions are provided for each of the four quarterly exams. A total of 50 questions are provided, 25 per bank. However, the OnDemandCE learning system ramdomizes all quizzes, including question order and answer order, so that no two quizzes are ever the same. An unlimited number of quizzes will be generated from the questions written in this course. * * * g. Student Identity, Assessment and Control: When students enter the OnDemandCE learning system, a login form must be filled out in order to enter any course. The system will require the agent to provide his or her bail license number, full name, address, email address, and phone number. In addition, each student must agree to the following Terms of Use to enter the course: "By accepting these terms of service, you acknowledge your understanding that you must complete this entire course and achieve a passing grade of 70% or greater in order to receive the defined credit hours. You also agree to read the entire contents of this course, including all corresponding laws and rules. No partial credit will be given for this course. Throughout this course, you will be tested for comprehension of course material through graded quizzes. By accepting these terms of service, you acknowledge your understanding that the on-line course testing must be completed unassisted by any person, the course material or other materials. You also acknowledge understanding that violation of the above said rule shall result in the loss of course credit and administrative sanction by the Florida Department of Financial Services. Upon completion of this course with a passing grade of 70% or better and confirmed payment of all applicable course fees, the system administrator will submit earned credit hours to the Department of Financial Services Agent Education Database within 30 days. You may verify your credit hours at: https://dice.fldfs.com/public/pb index.asp By accessing any information beyond this page, you agree to these Terms of Use in full." Once the student information is submitted and the terms of use are accepted, the OnDemandCE learning system issues the student a temporary license to take the course. The temporary licensee is tracked by the OnDemandCE learning system throughout the entire course. Students have unlimited access to the course during the temporary license term, but must login each time to re-establish student identity. The OnDemandCE learning system will not allow students to advance to the lesson assessment or to the next lesson until the student has completed the current lesson material. Finally, the OnDemandCE learning system will verify that the student has completed each lesson assessment and achieved a passing grade of 70% or greater before issuing a certificate of completion. The course administrator will review and evaluate each student's course progress and test results before his or her credit is submitted to the DFS Education System. Procedures for Marketing Course Student identity is assessed and controlled upon registration and throughout the duration of the course. See explanation under 2(g). To respond to questions regarding course requirements and materials, students will be provided access to the School Official on a ratio of 30:1. Through the OnDemandCE learning system, course enrollment will be limited to 30 students to ensure that the instructor/student ratio is not exceeded. Student progress is assessed through quarterly quizzes. Upon completion of each quiz, the OnDemandCE learning system will notify the student of their score. Students must score at least 70% in order to pass the course and receive a certificate of completion. On-line testing: See 2(g), and student acknowledgement: See 3(c). The syllabus for each of Athena's on-line courses includes the following statements in pertinent part: Student Responsibilities Students must complete this entire course and achieve a passing grade of 70% or greater on internal tests in order to receive credit hours. Students must read the entire contents of this course, including corresponding laws. Throughout this course, students will be tested for comprehension of course material through graded quizzes. Students are required to acknowledge their understanding that the on-line course testing must be completed unassisted by any person, the course material or other materials. Each student must also acknowledge understanding that a violation of such standards shall result in the loss of course credit and administrative sanction by the Florida Department of Financial Services. * * * On-line Assistance Course assistance is available to each student registered and active in this course. The course administrator may be contacted through email available from the On-Demand CE system and will receive assistance during regular business hours. Messages received after regular business hours will be returned the following day. Live customer service can be reached at (850) 906-9111. Neither the On-Line Training Course Checklist nor the syllabus for any of Athena's courses refers to a supervising instructor, a monitor, a monitor group, or a monitored examination. The On-line Training Course Checklist states that students have access to a school official for course assistance. The On-line Training Course Checklist refers to a system or course administrator who will evaluate tests and report the results to Respondent. The syllabus for each course states that students have on-line access to the course administrator for course assistance. On July 25, 2005, Ms. Villella sent Respondent a memorandum by e-mail. The purpose stated was to reassure Respondent that Athena's on-line system was "a fully monitored system." The letter explained that the "system monitors each student's progress through the course and through all exams." Additionally, the letter asserts that Ms. Villella monitors "the integrity of the OnDemandCE system to ensure that the application remains stable, secure, and operational." Finally, the letter states that "no other interactive on-line provider is required to send their students outside of their on-line system for testing, nor are bail agents required to take any quiz in a classroom course." On July 26, 2005, Ms. Villella sent Respondent a memorandum by e-mail. The memorandum refers to administrative rules that Ms. Villella asserts support her position that the on-line internal testing of an interactive on-line self-study course is equal to a monitored exam. Lisa Miller, Respondent's Chief of Staff, wrote a letter dated September 7, 2005, to Janet Collins, president of the Bail Agents Independent League of Florida. The letter stated that Florida Administrative Code Rule 69B-228.080 formed the legal basis for approving on-line continuing education courses for bail bond agents. Ms. Miller also indicated that Ms. Villella was Athena's school official and not its instructor. The September 7, 2005, letter does not contain any reference to a supervisory instructor or monitored exams. On January 9, 2006, Ms. Villella sent Respondent a memorandum by e-mail. The memorandum cites to administrative rules that, according to Ms. Villella, authorize the on-line internal testing of an interactive on-line self-study course as the equivalent of a monitored exam. In a letter to Petitioner's counsel dated January 10, 2006, Respondent's Chief of the Bureau of Licensing, Hazel Muhammad, responded to a request for public records regarding the name of an approved supervising instructor for Athena. The letter did not state that Athena was not required to have an approved supervising instructor. Instead, the January 10, 2006, letter stated that Respondent's records did not contain the name of an approved supervising instructor for Athena's on-line courses. At that time, Athena had withdrawn an initial application for a supervising instructor with the intent to file another such application. The January 10, 2006, letter from Ms. Muhammad stated that Respondent did "not have any public records for monitored examinations for bail bond continuing education courses." The letter did not state that such courses do not require a monitored exam. On January 25, 2006, Respondent approved the application of Warren Eugene Stewart as the supervising instructor for Athena's on-line continuing education courses. Ms. Villella is the owner and operator of Athena. She developed the course material that is contained in the on-line courses. Prior to forming Athena in 2005, Ms. Villella worked for Petitioner for over six years. During her employment with Petitioner, Ms. Villella assisted in the development of continuing education courses and coordinated the presentation of the courses throughout the State of Florida. Athena's on-line courses use the Learning Management System. The system is offered through a vendor known as Mind Flash. When students go on-line to study the course material or to take a quiz, Ms. Villella is able to observe the amount of time spent on each page of content material and/or each test. She is able to determine how the students answer the questions on the tests. Ms. Villella stays in contact with students through e-mail. She verifies that the students successfully complete the course and advises Respondent of their passing grades. There is no documentation showing that Respondent has approved Ms. Villella as a monitor or part of a monitor group for Athena's on-line examinations. Ms. Villella believes that she has Respondent's tacit approval as a monitor based on her communications with Respondent's staff regarding Athena's on- line internal testing process. A course provider of an interactive on-line course with on-line internal testing, to include Athena, cannot confirm the identity of the person taking an on-line examination. The provider must except the student's on-line acknowledgement that he or she is not being assisted by another person or using a textbook or other material to answer test questions. Athena's supervising instructor only becomes involved if a student has a content question that Ms. Villella cannot answer. The supervising instructor acts as a consultant with expertise in content areas. As of the date of the hearing, at least 51 bail bond agents had received credit for taking Athena's continuing education courses. On February 28, 2006, Petitioner took the deposition of Hazel Muhammad, Respondent's Bureau Chief of Licensing. Her deposition was accepted as deposition testimony in lieu of live testimony at the hearing. The deposition, as a whole, creates the impression that the witness was being interrogated to establish her understanding of the rules related to supervising instructors and monitored examinations for bail bond agent continuing education courses. The deposition by its terms did not elucidate preexisting agency policies on these topics, which were not already established by statute or adopted rule. When questioned about specific rules, Ms. Muhammad stated that that a supervising instructor could monitor an on- line continuing education course. According to Ms. Muhammad, the rules allow Respondent to determine whether an on-line course is monitored based on an applicant's outline that describes the on-line monitoring process, including the monitoring of the on-line tests. Ms. Muhammad would not agree that the rules necessarily distinguish between a monitored examination and an on-line examination depending on the physical presence or absence of a monitor. When questioned about Athena's application, Ms. Muhammad testified that Athena's on-line courses, as initially approved by Respondent, did not reflect supervising instructors. She also testified that the on-line checklists for Athena's courses did not refer to monitored or unmonitored examinations. Applying the rules as she interpreted them, Ms. Muhammed concluded that Athena's courses met the requirements for internal on-line testing and monitored examinations.
Findings Of Fact On April 23, 1982, a Grand Jury in the Southern District of Florida filed an Indictment against the Petitioner, Anthony Stephen Vitale, which was docketed as Case No. 82-204-Cr-SMA. On August 12, 1982, the Petitioner entered a plea of guilty to Count I of the Indictment and the remaining counts were dismissed. The count to which the Petitioner pled guilty charged him with a violation of Title 18, United States Code, Section 371, by reason of the following acts alleged in Count I of the Indictment: From July, 1975, through June, 1977, A. STEPHEN VITALE, whose last known residence is within the Southern District of Florida, was a Consular Officer of the United States assigned to the United States Embassy at Nassau, Commonwealth of the Bahamas, and, as such, was an officer and employee of the United States Department of State. As a Consular Officer, A. STEPHEN VITALE had the authority to issue immigrant visas and non-immigrant visas to qualified nationals of other countries. From on or about July 1975, and continuously thereafter up to and including June 24, 1977, in Nassau, Bahamas, an area outside the juris- diction of any particular state or district of the United States, A. STEPHEN VITALE, the defendant herein, William Lawrence Neng, a co-conspirator not indicted herein, and Sok Harn Neng, a co-conspirator not indicted herein, did knowingly and willfully combine, conspire, confederate and agree together and with persons whose identities are both known and unknown to the Grand Jury, to defraud the United States of its lawful governmental functions and right to have its business and its affairs, particularly the insurance of visas by the United States Department, conducted honestly, impartially, and free from corruption and improper influence. It was part of said conspiracy that certain foreign nationals seeking immigrant visas and non-immigrant visas, hereinafter referred to as the Applicants, were required to pay money to William Lawrence Neng for said visas. It was further part of said conspiracy that William Lawrence Neng submitted the Applicants' visa applications and documents in support thereof to A. STEPHEN VITALE for approval. It was further part of said conspiracy that A. STEPHEN VITALE approved the Applicants' visa applications and issued visas without diligently, faithfully and effectively reviewing said applicants for fraud. It was further part of said conspiracy that A. STEPHEN VITALE required and accepted money from William Lawrence Neng in return for approving the Applicants' visa applications and issuing immigrant visas and non-immigrant visas to the Applicants. 1/ On his plea of guilty, the Petitioner was adjudged guilty of the charge described above and was sentenced to a period of imprisonment of one year. The judgment further provided that the Petitioner would be confined in a community treatment center for a period of three months and would thereafter be placed on probation for a period of five years. The judgment also ordered the Petitioner to pay a fine in the amount of $10,000.00. The crime to which the Petitioner pled guilty is a felony under federal law. At the time the Petitioner committed the crime to which he pled guilty, he was a grown man more than forty years of age. The Petitioner duly served his term of confinement and fulfilled all terms of his probation, including the payment of the fine. Thereafter, on January 21, 1988, the State Office of Executive Clemency restored the Petitioner's civil rights in the State of Florida. On May 9, 1991, the Petitioner applied to the Respondent for licensure as a limited surety agent. As required by the application, the Petitioner disclosed the criminal history information described above. In response to questions on the application form, the Petitioner answered "yes" with regard to whether the crime to which he pled guilty and of which he had been convicted was a felony and also answered "yes" with regard to whether that crime was a crime involving moral turpitude. On June 12, 1991, the Respondent sent a letter to the Petitioner advising him that his application file lacked certificates indicating completion of certain specified courses which are prerequisites to licensure. The Petitioner thereafter submitted a certificate of completion from the University of Florida showing he had completed his course work on July 24, 1991, and a certificate from Miami-Dade Community College showing he had completed an eighty-hour surety agent/bail bond course on April 27, 1991. The Petitioner's application shows that he has been self-employed and that he has been employed with a legal courier service over the past few years. The Petitioner is a graduate of the Georgetown Law Center. The Petitioner acknowledged that the bail bond profession involves the constant signing of documents regarding persons charged with crimes, as well as constant handling of collateral and transfer of funds in the regular course of the bail bond business.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Department of Insurance issue a Final Order in this case denying the Petitioner's application for licensure as a limited surety agent and dismissing the petition. RECOMMENDED in Tallahassee, Leon County, Florida, this 24th day of April 1992. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of April 1992.
The Issue At issue is whether petitioner's request for a bond waiver under the provisions of Section 559.927(10)(b)5, Florida Statutes, should be approved.
Findings Of Fact Petitioner, Consolidated Cruises and Tours, Inc., is a "seller of travel," as that term is defined by Section 559.927(1)(a), Florida Statutes, and was formed in April 1993 by Steven Wolf, its president, to carry on the travel business he had previously operated through Consolidated Cruises, Inc., since October 1987. Effective October 1, 1988, Chapter 88-363, Laws of Florida, codified at Section 559.927, Florida Statutes (1989), required sellers of travel to register with the Department, and to post an annual performance bond. Failure to register with the Department or to conduct business as a seller of travel without the required bond was a violation of law, and subjected the person or business to civil and criminal penalties. Consolidated Cruises, Inc., the business through which Mr. Wolf was operating at the time, did not register with the Department as a seller of travel until November 1, 1991. Effective October 1, 1993, Chapter 93-107, Section 1, Laws of Florida, amended Section 559.927, Florida Statutes, to provide that: The department may waive the bond requirement in this subsection if the seller of travel has had 5 or more consecutive years of experience as a seller of travel in Florida. . . . On or about May 25, 1994, petitioner filed an application for registration as a seller of travel with respondent, Department of Agriculture and Consumer Affairs (Department), and requested a waiver of the annual performance bond requirement. Pertinent to this case, the request for waiver described the history of Consolidated Cruises, Inc., and Consolidated Cruises and Tours, Inc., as follows: Consolidated Cruises Inc. was established on 10/1/87 as a company that promoted cruises. The sales for the company was minimal for the first 2 years. The principal stock holder was Steven Wolf (100 percent). In March of 1990 Consolidated Cruises added 3 new major stock holders to the company and split the company stock as follows: Steven Wolf - 25 percent Miriam Wolf - 25 percent Yoav Tavory - 25 percent Judy Tavory - 25 percent In April of 1993 Consolidated Cruises ceased to function since the major stock holders had a disagreement as to the dissolution of the company. In the interim, to keep the company going a new corporation was formed by Steven Wolf & Miriam Wolf called, "CONSOLIDATED CRUISES & TOURS INC. For all practical purposes, the company continued to work the same as before but under the auspices of a new company name. In all the years that we have been providing our services, we have never had ONE complaint. On the basis of our past performance, we request that you waive the requested security bond of $10,000. Our previous registration number for CONSOLIDATED CRUISES INC. are as follows: certificate of registration No: 11347 certificate No. 00283 By letter of June 16, 1994, the Department denied petitioner's request for bond waiver. Such denial was premised on the Department's interpretation of Section 559.927, Florida Statutes, as allowing a waiver of the bond requirement only when the "seller of travel has had 5 or more consecutive years of experience as a seller of travel in Florida" that was lawfully obtained, i.e., that such experience occurred while the person or business was duly registered with the Department as required by law.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered denying petitioner's request for a performance bond waiver. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of January 1995. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of January 1995. APPENDIX Respondent's proposed findings of fact are addressed as follows: Addressed in paragraph 4. Addressed in paragraph 4, otherwise not relevant. See, paragraph 9. 3-5. Addressed in paragraph 6, otherwise unnecessary detail. 6. Addressed in paragraph 3, otherwise unnecessary detail. 7 & 8. Addressed in paragraph 5. 9. Addressed in paragraphs 4 and 5. 10 & 11. Addressed in paragraph 6. 12. Rejected as not relevant since the Department did not specify such reason as a basis for denial in its letter of June 16, 1994, did not seek to amend its reasons for denial prior to hearing, and did not raise such issue until after petitioner had presented its case-in-chief. See paragraph 9. COPIES FURNISHED: Steven Wolf, President Consolidated Cruises and Tours, Inc. 8181 Northwest 8th Manor Plantation, Florida 33324 Jay S. Levenstein, Esquire Department of Agriculture and Consumer Services Room 515 Mayo Building Tallahassee, Florida 32399-0800 The Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL - 10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Department of Agriculture The Capitol, PL - 10 Tallahassee, Florida 32399-0810
The Issue Whether Respondent violated provision of the Florida Insurance Code by employing a convicted felon in the bail bond business. Whether Respondent violated the provisions of the Florida Insurance Code by failing to report a change of address to Petitioner.
Findings Of Fact At all times relevant to the dates and occurrences referred to in this matter, Respondent Clarence Luther Cephas, Sr., was licensed in the State of Florida as a bail bond agent. Pursuant to Florida law, Petitioner has jurisdiction over the bail bond licensure and appointments of Respondent. Records of the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida (Criminal Division), show that Pamela Jean Coleman, a/k/a Deborah Lee Diehl, a/k/a Pamela Jean Jones, a/k/a Pamela Jones, a/k/a Pamela Coleman, pleaded guilty and was adjudicated guilty on March 28, 1975, in case number 75-239 CF, of buying or receiving or aiding in concealment of stolen property, a felony. Records of the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida (Criminal Division), show that Pamela Jean Coleman, a/k/a Deborah Lee Diehl, a/k/a Pamela Jean Jones, a/k/a Pamela Jones, a/k/a Pamela Coleman, pleaded guilty and was adjudicated guilty on October 22, 1975, in case number 75-2390 CF, of violation of drug abuse law, a felony. Records of the State of Florida Department of Law Enforcement (FDLE) show that the conviction set forth in paragraph 4 above included convictions on March 28, 1975, and July 17, 1975, for parole violations. On or about March 7, 1980, the State of Florida Office of Executive Clemency restored the civil rights of Pamela Jean Coleman, relative to Coleman's criminal convictions in Palm Beach County, Florida, in 1975. Records of the FDLE show that on or about November 25, 1991, Pamela Jean Coleman, a/k/a Deborah Lee Diehl, a/k/a Pamela Jean Jones, a/k/a Pamela Jones, a/k/a Pamela Coleman, plead nolo contendere, was adjudicated guilty, and convicted of retail theft in Polk County, Florida, a misdemeanor of the first degree, which constituted a crime of moral turpitude. Records of the Circuit Court of the Tenth Judicial Circuit, in and for Polk County, State of Florida, show that on or about November 25, 1991, Pamela Jean Coleman, a/k/a Deborah Lee Diehl, a/k/a Pamela Jean Jones, a/k/a Pamela Jones, a/k/a Pamela Coleman, in case number CF91-1923, pled nolo contendere, was adjudicated guilty and convicted of petit theft, a misdemeanor of the first degree, which constituted a crime of moral turpitude. Records of the Circuit Court of the Tenth Judicial Circuit, in and for Polk County, State of Florida, show that on or about December 16, 2002, an Amended Information was filed against Pamela Jean Coleman (a/k/a Deborah Lee Diehl, a/k/a Pamela Jean Jones, a/k/a Pamela Jones, a/k/a Pamela Coleman) in case number CFO2-00597A-XX, charging that between November 27, 2000, and January 25, 2002, in the County of Polk and State of Florida, having been convicted of or pled guilty or no contest to a felony or a crime involving moral turpitude or a crime punishable by imprisonment of one year or more under the law of any state, territory, or county, regardless of whether adjudication of guilt was withheld, did participate as a director, officer, manager, or employee of a bail bond agency or office thereof or exercise direct or indirect control in any manner in such agency or office or own shares in a closely held corporation which had an interest in a bail bond business contrary to Section 648.44, Florida Statutes. Further, the records of said court show that on or about January 31, 2002, Pamela Jean Coleman (a/k/a Deborah Lee Diehl, a/k/a Pamela Jean Jones, a/k/a Pamela Jones, a/k/a Pamela Coleman) in case number CFO2-00597A-XX, was tried, found guilty and adjudicated guilty of a violation of Section 648.44(8), Florida Statutes, acting as a bail bondsman while being a convicted felon, a felony of the third degree, as charged in the aforesaid Amended Information. Said conviction is presently on appeal before the Florida Second District Court of Appeal. Respondent knew or should have known the foregoing information. Documents under Seal from the Florida Department of State, Division of Corporations, pertaining to Clarence Luther Cephas, Sr., Bailbonds, Ltd., Inc., show that Pamela Jean Coleman filed original documents on behalf of Respondent's corporation and corresponded with the Department of State, Division of Corporations, on behalf of the said corporation. She was listed as both the registered agent of the corporation and also a vice-president and director of the said corporation as set forth on a document filed over the signature of Respondent. Other filed documentation show Pamela Jean Coleman as the president, secretary, and as director of said corporation. These documents are accurate and valid. The original license application form, Florida Insurance Temporary License Application, under Section 11, Screening Question Information, contains the following language: "If you were adjudged guilty or convicted of a felony crime and your civil rights were lost, provide evidence that your civil rights have been restored." There is no evidence in the record that Coleman provided that information to Petitioner at the time the original application was filed or at any time subsequent to that period, and Coleman signed the application. Respondent gave a statement, under oath, before Luis Rivera, Special Investigator for Petitioner's predecessor (Department of Insurance), on November 27, 2000, wherein he stated: I have known Pamela Coleman/Jones for approximately four years and she has been affiliated with me for most of the time that I have been in the bail bond business. I had asked her if she had ever been convicted of a felony and she said that she had been convicted as a teenager. She had a Certificate of Restoration of Civil Rights from the Office of Executive Clemency that is dated March 7, 1980. I was under the impression that if her rights had been restored, that it would not be a problem with her working for me. I named Pamela as an officer in my corporation because I did not have any family that I could list as an officer except for my daughter, who is a deputy sheriff and could not be an office of the corporation. Respondent had a business address-of-record with Petitioner of B & B Bail Bonds, 580 North Broadway Avenue, Bartow, Florida 33830-3918, when in fact his business address was 2095 East Georgia Street, Bartow, Florida 33830-6710. Respondent did not notify Petitioner of a change of address for his corporation as required by law. In November 2000 during an interview, Luis Rivera and another Special Investigator from his office advised Respondent that Petitioner (then the Department of Insurance) considered him to be in violation of Section 648.44(8), Florida Statutes, notwithstanding any restoration of civil rights granted to Pamela Jean Coleman. Luis Rivera visited the home office of Respondent, on March 7 and 21, 2000, at 2095 East Georgia Street, Bartow, Florida 33830-6710, and knew of no other office location for that agent after that date. Constance Castro, a Special Investigator with the Tampa Office, Petitioner (then the Department of Insurance), Bureau of Agent and Agency Investigations, during September 2001, made an undercover visit to the bail bond office of Respondent, and pretended to be in need of a bail bond for a fictitious relative. She dealt directly with Pamela Jean Coleman who proceeded from the home living area of the house where Respondent was also located, to the office area of the home where Coleman conducted bail bond business with Castro. Special Agent Michael Kreis, Drug Enforcement Agency, in early 2001, had business with Cephas Bail Bonds. He went to the office thereof where he observed Pamela Jean Coleman sitting behind the desk. Coleman told him that she had posted bond the night before for the people he was asking about, and was very familiar with the street names of the people that were being sought. Coleman helped to arrange what was supposed to be a meeting between her and one of the suspects using the ruse that she needed the suspect to sign some bail bond paperwork. Kreis observed Respondent in the office but Coleman seemed to be in charge. Kreis observed her on the phone and dealing with people who came into the Cephas' bail bond office, and noted that by her actions and conduct, she was acting as a bail bond agent. On or about June 19, 2001, Noel Elizabeth "Nikki" Collier was working as a paralegal in her husband's law office when Pamela Jean Coleman visited their office with paperwork for one of their mutual clients to fill out. Coleman left her business card which read "Pamela J. Coleman, President, Clarence L. Cephas, Sr. Bail Bonds." Coleman was dressed in a black outfit with a badge attached to her belt. Coleman told her that if the mutual client did not sign the paperwork then the bail bonds would be revoked. When in the law office, Coleman identified herself as an agent for Clarence Cephas Bail Bonds. Respondent acknowledged that Petitioner's Exhibit numbered 8 was indeed a sworn statement made by him during a visit to Petitioner (then Department of Insurance), Bureau of Agent and Agency Investigations, at its offices in Tampa, Florida, in November 2000, and that he was indeed warned by Petitioner's personnel that he was in violation of Section 648.44(8), Florida Statutes. He was subsequently warned by the filing of an Administrative Complaint in June 2001, an Amended Administrative Complaint in December 2001, and a Second Amended Complaint in March 2003. Respondent acknowledged that Pamela Jean Coleman was indeed listed as an officer and as a registered agent as well as the filer of various corporation documents, regarding his corporation and on file with the Department of State, Division of Corporations, and that he did sign the paperwork indicating that she was a corporate officer. Respondent further acknowledged that Coleman did participate in his bail bond business and that he did make payments to her as an employee, which included filing of a W-2 Form indicating said payments. During the pendency of this action, the State of Florida, by and through Jerry Hill, State Attorney for the Tenth Judicial Circuit, prosecuted Respondent for criminal violations of Chapter 648, Florida Statutes (2003), in the case styled State of Florida v Clarence Luther Cephas, Florida Tenth Circuit Court, Case Number CF02-00598A-XX (the "criminal case"). The Circuit Court of the Tenth Judicial Circuit conducted a jury trial in the criminal case. On December 17, 2003, the jury rendered a verdict of "not guilty," and the Circuit Court of the Tenth Judicial Circuit rendered a judgment of not guilty in the criminal case. The allegations contained in the criminal case were identical to the allegation contained in Count one of Petitioner's Second Amended Administrative Complaint. During the approximate period of time March 1997 to at least December 2001, Respondent did employ and/or did otherwise allow Pamela Jean Coleman to participate in the bail bond business. Respondent did fail to notify the Department of Financial Services of a change of address as required by law.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Financial Services enter a final order as follows: Finding Respondent guilty of employing a convicted felon in the bail bond business, in violation of Sections 648.30, 348.44(8)(b), 648.45(2)(e) and (j), and 648.45(3)(a) and (c), Florida Statutes; Finding Respondent guilty of failing to report a change of address; and Revoking the bail bond agent license and eligibility for licensure of Respondent pursuant to Chapter 648, Florida Statutes. DONE AND ENTERED this 1st day of July, 2003, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 2003. COPIES FURNISHED: James R. Franklin, Esquire The Franklin & Carmichael Law Firm, P.A. 301 East Main Street Post Office Box 50 Bartow, Florida 33806 Dickson E. Kesler, Esquire Department of Financial Services 401 Northwest 2nd Avenue, Suite N-321 Miami, Florida 33128 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
