The Issue This is a license discipline case in which the Respondent has been charged by Administrative Complaint with violations of several provisions of Chapter 648, Florida Statutes. All of the violations charged relate to allegations that the Respondent failed to return certain personal property received by the Respondent as collateral security on a surety bond.
Findings Of Fact Facts admitted by all parties The Respondent, Sergio Roque, Jr., is currently licensed in this state as a limited surety agent. At all times relevant to the dates and occurrences referred to in the Administrative Complaint in this matter, the Respondent was licensed in this state as a limited surety agency. On or about July 19, 1990, Respondent, while acting in his capacity as a limited surety agent, did, as agent for Amwest Surety Insurance Company, post a $100,000 general surety appearance bond, power number X00-0-00000331, to obtain the release of defendant Domingo Arrechea from the Dade County Jail. In conjunction with the posting of the aforementioned surety bond, Respondent did on or about July 19, 1990, receive $10,000, which represented the premium payment for said surety bond. Respondent did in conjunction with the posting of said bond receive from indemnitor Lorraine DeVico a diamond engagement ring, a Rolex watch, and the title to a 1979 Mercedes automobile (ID#11602412149348) as partial collateral security for the aforementioned surety bond. On or about April 3, 1991, Respondent did cause to be surrendered back into custody the defendant Domingo Arrechea, thus terminating all liability for said surety bond. Respondent has failed to return to indemnitor Lorraine DeVico the collateral security described above; namely, the diamond engagement ring, the Rolex watch, and the title to the 1979 Mercedes automobile. Additional facts proved at hearing In addition to the collateral described above, the Respondent also received as collateral from the defendant Arrechea, and from the defendant's wife, a conditional mortgage on a condominium. In addition to the collateral described above, the Respondent also received as collateral from "Mike Farina" a conditional mortgage on real estate owned by Mike Farina. Mike Farina was a friend of the defendant Arrechea. "Mike Farina" later turned out to be a fictitious name. Lorraine DeVico was a very close friend of the defendant Arrechea. The Rolex watch Ms. DeVico put up as part of the collateral for Arrechea's bond was a watch that had been given to her by her father. Shortly after Ms. DeVico put the watch up for collateral, her father began to inquire as to the whereabouts of the watch. Because she felt that her father would disapprove of what she had done, and because her father was the source of most of her wealth, Ms. DeVico told several lies to her father about the whereabouts of the watch. As a result of continuing inquiries by her father, Ms. DeVico wanted her watch back and no longer wanted to be responsible under the indemnity agreement she had signed. Towards the beginning of February 1991, Ms. DeVico began to call the Respondent to advise that she was frightened that the defendant Arrechea was considering jumping bond. The Respondent received numerous calls from Ms. DeVico requesting return of her collateral and requesting to be off the indemnity agreement. Consequently, the Respondent hired MV Investigations on February 16, 1991, to locate the defendant Arrechea. On March 27, 1991, Ms. DeVico advised the Respondent that the defendant Arrechea was not answering his digital pager and that his telephone had been disconnected. She advised the Respondent that she sent her employee to look for Arrechea but could not find him. She asked the Respondent to pick up the defendant Arrechea and get her off the bond, agreeing to pay all the expenses. On April 1, 1991, Ms. DeVico again asked the Respondent to pick up the defendant Arrechea and again agreed that she would pay the costs associated with the pick-up. On April 3, 1991, the investigators hired by the Respondent located and picked up defendant Arrechea and surrendered him back to the Dade County Jail. The Respondent returned the collateral deposited by Mr. Farina and by the defendant Arrechea and his wife. After having the defendant Arrechea picked up and surrendered, the Respondent called Ms. DeVico to give her the information and advise her of the pick-up costs. Ms. DeVico verbally refused to pay any pick-up costs. On April 14, 1991, the Respondent sent by certified mail to Ms. DeVico a notice under Section 648.442, Florida Statutes, notifying her that he would be selling her collateral in ten days against his pick-up expenses. The Respondent sold the Rolex watch and diamond ring pledged as collateral by Ms. DeVico after expiration of the ten days. The indemnity agreement signed by Ms. DeVico in conjunction with applying for bail for the defendant Arrechea included the following language: 2. The indemnitor(s) will at all times indemnify and keep indemnified the Company and save harmless the Company from and against any and all claims, demands, liabilities, costs, charges, legal fees, disbursements and expenses of every kind and nature, which the Company shall at any time sustain or incur, and as well from all orders, decrees, judgments and adjudications against the Company by reason or in consequence of having executed such bond or undertaking in behalf of and/or at the instance of the indemnitor(s) (or any of them) and will pay over, reimburse and make good to the Company, its successors and assigns, all sums and amounts of money required to meet every claim, demand, liability, costs, expense, suit, order, decree, payment and/or adjudication against the Company by reason of the execution of such bond or undertaking and any other bonds or undertakings executed in behalf of and/or at the instance of the Indemnitor(s) and before the Company shall be required to pay thereunder. The liability for legal fees and disbursements includes all legal fees and disbursements that the Company may pay or incur in any legal proceedings, including proceedings in which the Company may assert or defend its right to collect or to charge for any legal fees and/or disbursements incurred in earlier proceedings. * * * 7. The Indemnitor(s) agree(s) that the Company may at any time take such steps as it may deem necessary to obtain its release from any and all liability under any of said bonds or undertakings, and it shall not be necessary for the Company to give the Indemnitor(s) notice of any fact or information coming to the Company's notice or knowledge concerning or affecting its rights or liability under any such bond or undertaking, notice of all such being hereby expressly waived; and that the Company may secure and further indemnify itself against loss, damages and/or expenses in connection with any such bond or undertaking in any manner it may think proper including surrender of the defendant (either before or after forfeiture and/or payment) if the Company shall deem the same advisable; and all expenses which the Company may sustain or incur or be put to in obtaining such release or in further securing itself against loss, shall be borne and paid by the Indemnitor(s). In conjunction with applying for bail for the defendant Arrechea, Ms. DeVico also signed a Bail Bond Information Sheet which advised her in bold print that: When all agreements have been fulfilled and bond is discharged, in writing or by the court, and without loss expense on the bond, your full collateral will be returned to you.
Recommendation On the basis of all of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance and Treasurer enter a Final Order in this case to the following effect: Concluding that the Respondent is guilty of the violations charged in the Administrative Complaint, and Imposing an administrative penalty consisting of an administrative fine in the amount of $1,000.00 and a suspension of the Respondent's license for a period of 90 days. DONE AND ENTERED this 12th day of May 1993, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of May 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-4378 The following are my specific rulings on all of the proposed findings of fact submitted by all of the parties. Proposed findings submitted by Petitioner: Paragraphs 1 through 6: Accepted. Paragraph 7: Rejected for two reasons; first, the proposed finding is irrelevant because it is not alleged in the Administrative Complaint, and, second, the proposed finding was not proved by clear and convincing evidence. Proposed findings submitted by Respondent: Paragraphs 1 through 4: Accepted. Paragraph 5: First sentence accepted. Remainder of this paragraph rejected as subordinate and unnecessary details. Paragraphs 6 through 13: Accepted in substance with some details clarified. Paragraph 14: First sentence accepted. Remainder rejected as subordinate and unnecessary details. Paragraph 15: Rejected as constituting procedural details or conclusions of law, rather than proposed findings of fact. Paragraph 16: Rejected as constituting statement of position or legal argument, rather than proposed finding of fact. Paragraph 17: First sentence accepted. The remainder of this paragraph is rejected as constituting conclusions of law or legal argument, rather than proposed findings of fact. Paragraph 18: Rejected as constituting a conclusion of law, rather than a proposed finding of fact. Paragraphs 19 and 20: Accepted COPIES FURNISHED: David D. Hershel, Esquire Department of Insurance Division of Legal Services 612 Larson Building Tallahassee, Florida 32399-0300 Martin L. Roth, Esquire Haber & Roth 1370 Northwest 16th Street Miami, Florida 33125 Honorable Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neill, General Counsel Department of Insurance The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue Whether Petitioner's application for licensure as a temporary limited surety/bail bond agent pursuant to Sections and 648.355, Florida Statutes, should be granted.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying; documentary materials received into evidence; stipulations by the parties; evidentiary ruling made pursuant to Section 120.57, Florida Statutes; and the record evidence submitted, the following relevant and material facts are determined: Pursuant to Chapter 648, Florida Statutes, Respondent has jurisdiction over bail bond licensure, appointments, and related activities. Petitioner appeared before the undersigned in this proceeding, identified himself and admitted that he is the individual prosecuted in the Thirteenth Judicial Circuit, in and for, Hillsborough County, Florida, Case No. 88-CF-15373, State of Florida v. Bennie Small, Jr., on a Direct Information of two counts of grand theft, and that Respondent has jurisdiction over him and the subject matter involved in its denial letter. The record evidence demonstrated that on or about January 21, 1987, Petitioner entered into a real estate contract with Deltricia Wiggins, a prospective homebuyer. Ms. Wiggins, believing Petitioner to be the realtor representing the seller, gave Petitioner $500.00 to assist her in the purchase of the home. Thereafter, she became aware that the subject home had been sold and demanded that Petitioner return her $500.00. Petitioner failed or refused to return her $500.00. Ms. Wiggins contacted the Hillsborough County State Attorney's Office and made a report. At no time during the above transaction was Petitioner a licensed real estate sales person or licensed real estate broker. The record evidence demonstrated that Petitioner entered into a real estate contract with Janet Richardson, a prospective homebuyer. Ms. Richardson, believing Petitioner to be the realtor representing the seller, gave Petitioner $500.00 to assist her in the purchase of a family home. Thereafter, she became aware that the subject home had been sold and demanded that Petitioner return her $500.00. Petitioner failed or refused to return her $500.00. At no time during the above transaction was Petitioner a licensed real estate sales person or licensed real estate broker. On October 26, 1988, the State Attorney's Office filed a Direct Information charging Petitioner with two counts of grand theft. The two counts of grand theft stemmed from Petitioner's above two unlicensed real estate transactions. At some unknown time on or before January 5, 1989, Petitioner returned the money to both Misses Wiggins and Richardson. The fact that he subsequently returned money to his two victims did not negate his taking their money under illegal and false pretense. Record evidence demonstrated that on January 17, 1989, Petitioner was represented by the Office of the Public Defender of the Thirteenth Judicial Circuit, in and for, Hillsborough County, Florida, in Case No. 88-CF-15373, and a plea of no contest to the charge of grand theft was entered on his behalf. Circuit Judge Harry Lee Coe accepted the plea of no contest on behalf of Petitioner, withheld adjudication of guilt, imposed no probation, and ordered that Petitioner not practice law nor practice real estate without appropriate licensure. Petitioner produced no record evidence that the no contest plea entered on his behalf by the public defender and that the judgment and sentence of the Court imposed by Circuit Judge Harry Lee Coe, of the Hillsborough County Circuit Court on January 17, 1989, in Case No. 88-CF-15373, has been overturned, reversed or set aside by a court of competent jurisdiction. Petitioner, through his evidence and post-hearing submittals, presented the following arguments in support of his position that "he did not enter a plea of no contest to the grand theft charge." First, Petitioner argued that while in court, "he" personally did not enter a no contest plea. Second, he argued that "his" personal approval that a no contest plea be entered on his behalf was neither requested nor given to the public defender that represented him. Third, he argued that he was not made a party at the bench conference between the presiding Judge, the prosecutor, and his public defender, when discussions regarding the terms and condition of resolving his case were ongoing and concluded. Fourth, he argued that copies of the court docket sheet, recording entries written by the court's clerk, who sat in court and made each docket sheet entry as pronounced by the court, were insufficient to establish that those recorded actions were actually taken by the court. Because of the foregone alleged irregularities, argued Petitioner, there is no "official court record" of his having entered a no contest plea to the grand theft charge. Petitioner put forth no evidence in support of his several arguments challenging Respondent's denial of his license application. Petitioner proffered no evidence of the official judicial disposition of the two counts of grand theft filed against him. Petitioner failed to produce a scintilla of evidence in support of his assertions that Respondent did not fully comply with the Florida Statutes when Respondent, by letter dated June 2, 2003, informed Petitioner that his application for licensure as a surety/bail bond agent was denied, and the denial was based on a January 17, 1989, plea of no contest to the charge of grand theft, a felony, in the Thirteenth Judicial Circuit, in and for, Hillsborough County, Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's, Bennie Small, Jr., application for licensure as a temporary limited surety/bail bond agent. DONE AND ENTERED this 4th day of June, 2004, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 2004.
The Issue 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
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the stipulated facts, the following relevant facts are found: At all times relevant to this proceeding, respondent Joseph Aloysius Von Waldner has been licensed as a limited surety agent. He has been in the bail bond business for nine years and has had no previous or subsequent complaints issued against him. On five occasions during January and February of 1979, respondent did authorize, hire and remunerate Delbert Leroy Sams to pick up principals or skips and surrender them to the Orange County Jail. Delbert Leroy Sams was not and has not been previously licensed in any capacity by the Department of Insurance. On March 2, 1979, Mr. Sams was denied a license by the Department of Insurance. At the time respondent engaged the services of Mr. Sams, respondent believed that Mr. Sams was working as a bail bond runner for another bail bondsman. Respondent did not inquire of Sams as to whether Sams was or was not licensed by the Department of Insurance. Respondent knew that other bail bondsmen had used Sams as a runner, and Sams showed respondent some business cards and forms which Sams used when picking up principals. Respondent admits that he was negligent for not inquiring into Mr. Sams' licensure. Respondent was called in for an investigation by the petitioner's chief investigator, Melvin R. Thayer, on February 28, 1979. After talking with Mr. Thayer and becoming aware that Mr. Sams was not licensed, respondent no longer used Sams as a runner.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Department of Insurance enter a final order finding that respondent violated the provisions of Florida Statutes, s648.45(1)(j) and imposing an administrative penalty against respondent in the amount of $100.00, said penalty to be paid within thirty (30) days of the date of the final order. Respectfully submitted and entered this 27th day of June, 1980, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 1980. COPIES FURNISHED: Thomas A. T. Taylor, Esquire Room 428-A, Larson Building Tallahassee, Florida 32301 Richard L. Wilson, Esquire 100 South Orange Avenue Orlando, Florida 32801 Insurance Commissioner Bill Gunter The Capitol Tallahassee, Florida 32301
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint issued against him in the instant case and, if so, what disciplinary action should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent Respondent is now, and has been for the past seven years, a Florida-licensed bail bond agent (license number A134458). He is the owner of Big Larry's Bail Bonds (Agency), a bail bond agency located in Broward County, Florida, with which two other Florida-licensed bail bond agents, James Jones (who is Respondent's brother) and Ron Striggles, are affiliated. Count I On April 23, 2002, Hugh Clarke went to the Agency, where he obtained from Respondent a $4,500.00 bail bond for a friend, Richard Dyke, who had been arrested in Palm Beach County, Florida, on a theft charge. To obtain the bail bond, Mr. Clarke had to pay a bail bond premium fee of $450.00 and provide collateral in the amount of $1,050.00. Payment was made by a single check (check number 611) for $1,500.00 made out to the Agency. Mr. Clarke also signed a promissory note, which read as follows: On Demand Hugh McGrath Clarke after date, for value received, I Promise to pay to the order of CONTINENTAL HERITAGE INSURANCE COMPANY Four Thousand Five Hundred DOLLARS, at Big Larry's Bail Bonds, 1310 Sistrunk Blvd., Ft. Laud., Florida[,] [w]ith interest thereon at the rate of 20 percent, per annum[,] from Call Date until fully paid. Interest payable semi-annually. The maker and endorser of this note agrees to waive demand, notice of non payment and protest; and in case suit shall be brought for the collection hereof, or the same has to be collected upon demand of an attorney, to pay reasonable attorney's fees and assessable cost, for making such collection. Deferred interest payment to bear interest from maturity at 20 percent, per annum, payable semi-annually. It is further agreed and specifically understood that this note shall become null and void in the event the said defendant Richard Dyke shall appear in the proper court at the time or times so directed by the Judge or Judges of competent jurisdiction until the obligations under the appearance bond or bonds posted on behalf of the defendant have been fulfilled and the surety discharged of all liability thereunder, otherwise to remain in full force and effect. Respondent provided Mr. Clarke a signed Receipt and Statement of Charges, acknowledging that he had received from Mr. Clarke payment in full for the $450.00 bail bond premium fee. Respondent also presented Mr. Clarke with a pre-printed form entitled "Collateral Receipt and Informational Notice" (Collateral Receipt) that Respondent had filled out and signed (on the appropriate signature line), acknowledging that, on behalf of the surety, Continental Heritage Insurance Company, he had received from Mr. Clarke $1,050.00 as collateral to secure the bail bond that Mr. Clarke had obtained for Mr. Dyke. The Collateral Receipt contained the following "note," "informational notice," and "indemnitor information": NOTE: Unless a properly drawn, executed, and notarized legal assignment is accepted and acknowledged by the surety agent and the surety company named above, the collateral listed above will be returned only to the person(s) named on line (1) above [Mr. Clarke]. Collateral, except for those documents the surety must retain as directed by the law, will be returned within 21 days after the bail bond(s) has been discharged in writing by the court. The undersigned hereby acknowledges receipt of a copy of all collateral documents indicated above, and the Informational Notice printed below. * * * INFORMATIONAL NOTICE CONDITIONS OF BOND: The SURETY, as bail, shall have control and jurisdiction over the principal during the term for which the bond is executed and shall have the right to apprehend, arrest, and surrender the principal to the proper officials at any time as provided by law. In the event surrender of principal is made prior to the time set for principal's appearance, and for reason other than as enumerated below in paragraph 3, then principal shall be entitled to a refund of the bond premium. It is understood and agreed that the happening of any one of the following events shall constitute a breach of principal's obligations to the SURETY hereunder, and the SURETY shall have the right to forthwith apprehend, arrest and surrender principal and principal shall have no right of any refund whatsoever. Said events which shall constitute a breach of principal's obligations hereunder are: If principal shall depart the jurisdiction of the court without the written consent of the court and the SURETY or its Agent. If principal shall move from one address to another without notifying SURETY or his agent in writing prior to said move. If principal shall commit any act which shall constitute reasonable evidence of principal's intention to cause a forfeiture of said bond. If principal is arrested and incarcerated for any other offense other than a minor traffic violation. If principal shall make any material false statement in the application. * * * INDEMNITOR INFORMATION In addition to the terms and conditions of any Indemnity Agreement or other collateral documents which you have executed, this is to notify you that: The Indemnitor(s) will have the defendant(s) forthcoming before the court named in the bond, at the time therein fixed, and as may be further ordered by the court. The Indemnitor(s) is responsible [for] any and all losses or costs of any kind whatsoever which the surety may incur as a result of this undertaking. There should not be any costs or losses provided the defendant(s) does not violate the conditions of the bond and appears at all required court hearings. Collateral will be returned to the person(s) named in the collateral receipt, or their legal assigns, within 21 days after the surety has received written notice of discharge of the bond(s) from the court. It may take several weeks after the case(s) is disposed of before the court discharges the surety bonds. Respondent read to Mr. Clarke that portion of the Collateral Receipt that explained that the collateral would be returned "within 21 days after the surety ha[d] received written notice of discharge of the bond(s) from the court." Nonetheless, for some reason, Mr. Clarke was under the impression that he would be receiving his collateral back within 30 days of April 23, 2002, the date of the transaction, even in the absence of a discharge. In late May 2002, sometime after the 23rd of the month, Mr. Clarke began telephoning the Agency to inquire about the return of his collateral. On each occasion he called, he asked to speak with Respondent, but was told by the person who answered the phone that Respondent was not available. He left messages, but Respondent never returned his calls.2 Mr. Clarke telephoned the Agency approximately twice a month until November 2002, when, frustrated by his inability to reach Respondent by telephone,3 he sent, by facsimile transmission, a letter to the Department of Insurance requesting that it help him in his efforts to gain the return of his collateral. Although Mr. Clarke had been advised in September 2002 by Mr. Dyke that Mr. Dyke's criminal case "was over," Mr. Clarke never got to directly communicate this information to Respondent and to personally ask Respondent to give him back his collateral. Any information Mr. Clarke may have provided about the status of Mr. Dyke's criminal case and any demands Mr. Clarke may have made for the return of his collateral were provided and made to a person or persons at the Agency other than Respondent, who did not communicate them to Respondent. Pat Anthony, a Special Investigator with the Department of Insurance,4 was assigned the task of looking into the allegations Mr. Clarke had made in his letter. Ms. Anthony met with Mr. Clarke on December 6, 2002, and took his statement. The statement was reduced to writing (by Ms. Anthony, who wrote down what she understood Mr. Clarke to have said), and it then was "subscribed and sworn to" by Mr. Clarke. Mr. Clarke's statement read as follows: On 4/23/02, I went to Larry Jones' office to put up bail for Richard Dyke. I gave him a $450 check and a $1,050 check.[5] Richard told me the case was over with in 9/02.[6] I started calling Larry about a week later.[7] He had told me the $450 was his premium and I would get the $1,050 when the case was completed.[8] I have called several times. The man who answered the phone tells me Larry is not there. In January 2003, Ms. Anthony telephoned the Office of the Clerk of the Circuit Court of Palm Beach County (Clerk's Office) to inquire about the status of Mr. Dyke's criminal case. She was told by the person who answered the telephone that the case had concluded and that Mr. Dyke's bond had been discharged, but that there was "no way to know" whether Respondent had been notified of this information inasmuch as the Clerk's Office did not "always notify the out of town bondsman." Ms. Anthony subsequently advised Respondent as to what she had been told and suggested that he go to the Palm Beach County Courthouse to confirm the information she had been provided. Respondent followed Ms. Anthony's suggestion and went to the Palm Beach County Courthouse on January 21, 2003 (which was "within a week" of his conversation with Ms. Anthony). There, he obtained a certified copy (under seal of the Clerk's Office) of a summary or disposition sheet reflecting that Mr. Dyke's bond had been discharged. That same day, when Respondent returned to the Agency, he telephoned Mr. Clarke and made arrangements to have Mr. Clarke come by the Agency on January 27, 2003, to sign paperwork and pick up a check from Respondent for $1,050.00 (the amount of the collateral Mr. Clarke had given Respondent). Mr. Clarke picked up the check on January 27, 2003, as scheduled. It was not until March 2004 that Respondent received from the Clerk's Office a copy of the actual court order discharging Mr. Dyke's bond. Count II On or about September 1, 2002, the Department of Insurance filed a one-count Administrative Complaint (in Department of Insurance Case No. 43742-02-AG) against Respondent, alleging that "he [had] failed to return collateral and charged an amount in excess of the bond premium." On November 13, 2002, the Department of Insurance issued a Consent Order in Case No. 43742-02-AG, which provided as follows: THIS CAUSE came on for consideration and final agency action. Upon consideration of the record including the Settlement Stipulation for Consent Order dated October 25, 2002, and being otherwise advised in the premises, the Insurance Commissioner hereby finds: The Treasurer and Insurance Commissioner, as head of the Department of Insurance, has jurisdiction over the subject matter of this case and parties hereto. The entry of this Consent Order and compliance herewith by the Licensee, LARRY LORENZO JONES, shall conclude the administrative proceeding of Case No. 43742- 02-AG before the Department of Insurance of the State of Florida. IT IS THEREFORE ORDERED: The Settlement Stipulation for Consent Order dated October 25, 2002, is hereby approved and fully incorporated herein by reference; Within thirty (30) days of the date of issue of the Consent Order, pursuant to Section 648.387, Florida Statutes, Licensee shall file[9] notice with the Department of the designated primary agent for each location of all bail bond agencies owned by the Licensee. Failure to file said notice will result in immediate suspension of Licensee's license and eligibility for licensure. Licensee shall be placed on probation for a period of twelve (12) months. As a condition of probation, Licensee shall strictly adhere to the Florida Insurance Code, Rules of the Department and the terms of this agreement. If during the period of probation period [sic] the Department has good cause to believe that Licensee has violated a term or condition of probation, it shall suspend, revoke, or refuse to issue, renew or continue the license of appointment of Licensee. Licensee shall pay a fine of two thousand five hundred dollars ($2500.00) within thirty (30) days of the date of issue of the Consent Order, pursuant to Section 648.52, Florida Statutes. Failure of Licensee to pay the fine within the specified time limit shall result in the immediate suspension of Licensee's license and eligibility for licensure in this state without further proceeding for a period of sixty (60) days. Reinstatement shall be conditioned upon Licensee's compliance with all terms of the Consent Order, including payment of the administrative fine.[10] Sometime in December 2002, Sally Burke, who was then a Bail Bond Coordinator with the Department of Insurance, visited the Agency for purposes of conducting an audit of the Agency's records. Ms. Anthony accompanied her on the visit. During the audit, Ms. Burke asked Respondent if he had completed and "turned in [the] designation form" required by Section 648.387, Florida Statutes. Respondent replied that he had "never received" a blank form to fill out. At Ms. Burke's request, Ms. Anthony handed Respondent a blank designation form. Respondent proceeded to complete it in Ms. Burke's and Ms. Anthony's presence. When he was finished, he attempted to give the completed form to Ms. Burke, but she told him, "Larry, you have to mail it in yourself, but make me a copy for my file." As requested, Respondent made a copy and gave it to Ms. Burke, who, in turn, handed it to Ms. Anthony. He then left the Agency and mailed the original to the Department of Insurance. When he returned to the Agency, Ms. Burke and Ms. Anthony were still there. Months later, in September 2003 at around the time of the issuance of the instant Administrative Complaint, Respondent received a telephone call from Greg Marr, an attorney with Petitioner, who told Respondent that Petitioner had never received his completed designation form.11 Respondent informed Mr. Marr that the completed form had been mailed in December 2002. Mr. Marr responded, "[O]ur records show that it's not in,"12 and asked Respondent to "send in another one," which Respondent did (on or around September 19, 2003). Petitioner received this completed designation form on September 26, 2003.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner issue a final order dismissing, in its entirety, the Administrative Complaint issued against Respondent in the instant case. DONE AND ENTERED this 4th day of June, 2004, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 2004.
