The Issue The issue is whether Respondent Gulf Coast Foodservice, Inc., or its surety, Respondent United Pacific Insurance Company, is liable for funds due to Petitioner Hillandale Farms, Inc. for the sale of agricultural products.
Findings Of Fact Petitioner is a producer of agricultural products as defined by Section 604.15(5), Florida Statutes. Petitioner produces eggs on a farm that it owns in or near Lake City, Florida. Respondent Gulf Coast is a dealer in agricultural products as defined by Section 604.15(1), Florida Statutes. Respondent Gulf Coast operates a food service distributorship in the state of Florida. Eggs are agricultural products as defined in Section 604.15(3), Florida Statutes. Respondent United Pacific is Respondent Gulf Coast's surety. Pursuant to an agreement between Petitioner and Respondent Gulf Coast, Petitioner sold and shipped eggs to Respondent Gulf Coast from Petitioner's Hillandale-Bushnell Division. Respondent Gulf Coast initially paid thousands of dollars on invoices for shipments of eggs it received from Petitioner. On August 25, 1997, Respondent Gulf Coast paid $1,287.00 on its account with Petitioner. This payment created an overpayment in the amount of $247.50 for Invoice No. 21938 dated May 31, 1997. As of October 23, 1997, Respondent Gulf Coast's account with Petitioner included the following unpaid/overpaid invoices: 6/19/97 22144 810.00 7/2/97 22489 1,665.00 7/15/97 22870 1,701.00 7/28/97 23211 2,340.00 8/11/97 23606 2,043.00 8/18/97 23800 1,665.00 8/25/97 24318 1,233.00 Total Balance Due $11,209.50 Invoice Date Invoice No. Balance Due 5/31/97 21938 $ (247.50) Respondent Gulf Coast currently owes Petitioner for unpaid invoices in the amount of $11,209.50.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Department of Agriculture and Consumer Services enter a Final Order requiring Respondent Gulf Coast, or its surety, Respondent Union Pacific, to pay Petitioner for unpaid invoices in the amount of $11,209.50. DONE AND ENTERED this 1st day of October, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 1st day of October, 1998. COPIES FURNISHED: Stephen C. Bullock, Esquire Brannon, Brown, Haley, Robinson, and Bullock, P.A. 10 North Columbia Street Lake City, Florida 32056-1029 Saul Zalka, President Gulf Coast Foodservice, Inc. 8402 Lemon Road Port Richey, Florida 34668 United Pacific Insurance Company 4 Penn Center Plaza Philadelphia, Pennsylvania 19103 Phillip H. Hudson, III, Esquire One Biscayne Boulevard, Suite 3400 Miami, Florida 33131 Soneet R. Kapila, Chapter 7 Trustee Suite 2601 1 East Broward Boulevard Fort Lauderdale, Florida 33301 Geoffrey S. Aaronson, Esquire Suite 1050 200 South Biscayne Boulevard Miami, Florida 33131 Steven Turner, Esquire Suite 1204 51 Southwest 1st Avenue Miami, Florida 33131 Brenda Hyatt, Chief Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Bob Crawford, Commissioner Department of Agriculture and Consumer Services The Capitol, Plaza Leve 10 Tallahassee, Florida 32399-0810
The Issue The issues in this case are whether Respondent, Wayne Calvin Summerlin, committed the offenses alleged in an Administrative Complaint issued by Petitioner, the Department of Financial Services, on May 4, 2007, and, if so, what penalty should be imposed.
Findings Of Fact The Parties. Petitioner, the Department of Financial Services (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for, among other things, the investigation and prosecution of complaints against individuals licensed to conduct insurance business in Florida. Ch. 626, Fla. Stat. Respondent Wayne Calvin Summerlin was, at the times relevant, licensed in Florida as a bail bond agent. Mr. Summerlin’s license number is A257941. Count I; Failure to Notify Department of Change in Employer. On or about July 23, 2003, Mr. Summerlin became the owner of, and began serving as primary bail bonds agent for, Wayne’s Bail Bonds. Having notified the Department of his relationship with Wayne’s Bail Bonds, he continued in this capacity until he sold Wayne’s Bail Bonds in 2004. Subsequent to his sale of Wayne’s Bail Bonds, Mr. Summerlin was employed as a bail bonds agent with Broward County Bail Bonds. Mr. Summerlin became an associate with Broward County Bail Bonds on or about September 13, 2005. Mr. Summerlin failed to inform the Department in writing, within ten days of beginning his employment with Broward County Bail Bonds of the fact that he was writing bail bonds for Broward County Bail Bonds. Count II; Failure to Notify Department of Change in Business Address. Mr. Summerlin, as of June 2005, maintained his business address as 15 Northeast Fourth Street, Fort Lauderdale, Florida. As of December 2005 Mr. Summerlin maintained his business address as 15 Southwest Seventh Street, Fort Lauderdale, Florida. On August 16, 2005, business cards with Mr. Summerlin’s name on them were found by a Department investigator with the following address on them: 10 South New River Drive, No. 109, Fort Lauderdale, Florida. Mr. Summerlin did not report to the Department that his business address had changed to 10 South New River Drive, No. 109, Fort Lauderdale. Counts III through VI. The Department apparently abandoned these Counts, having failed to address them in the Department’s Proposed Recommended Order. The evidence failed to prove the allegations of fact that support Counts III, IV, V, and VI.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department finding that Wayne Calvin Summerlin violated the provisions of Section 648.45(3)(c), Florida Statutes, as alleged in Counts I and II of the Administrative Complaint; dismissing Counts III through VI of the Administrative Complaint; and suspending his licenses and appointments as a bails bond agent for a period of three months. DONE AND ENTERED this 14th day of November, 2007, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 2007. COPIES FURNISHED: Robert Alan Fox, Senior Attorney Division of Legal Services Department of Financial Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Wayne Calvin Summerlin 520 Southeast 16th Avenue Pompano Beach, Florida 33060 Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Sumner, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307
Findings Of Fact Respondent Leroy Ellsworth Hardman has been licensed by petitioner as a limited surety agent since 1974. In January of 1976, he opened an office in Sanford, Florida, under the name of Action Bail Bonds. By December of 1978, he had qualified with the clerks of court in Orange, Seminole and Volusia Counties, and had written bonds in all three counties. Respondent decided to open an office in Deland, in addition to his office in Sanford. He leased office space on December 1, 1978, and began renovation. He had arranged for an advertisement to appear in the yellow pages of the Deland telephone directory, effective December 18, 1978, but did not succeed in opening the Deland office until December 19, 1978. Respondent hired Barbara Linkel to be in the office weekdays until four o'clock in the afternoon. He himself visited the office daily. Respondent, who had a 24 hour answering service and wore an electronic pager, instructed Ms. Linkel to notify him if anybody wanted a bond written. Respondent had charge of his Deland office while continuing to have charge of his office in Sanford. On January 29, 1979, John Wolmac, a limited surety agent, registered at the courthouse and began working for respondent, taking charge of the Deland office. On January 31, 1979, respondent executed the first bond written at the Deland office. Respondent's exhibit No. 8. Records of all bonds written at the Deland office were kept on file there until that office closed on May 31, 1979, when the records were transferred to respondent's office in Sanford. At all pertinent times, respondent's records were complete and open to the public for inspection. At the time of the hearing, respondent still had records of every bond executed or countersigned by him.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss the administrative complaint against respondent. DONE and ENTERED this 8th day of October, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Thomas A. T. Taylor, Esquire Office of the Insurance Commissioner The Capitol Tallahassee, Florida 32301 James C. Weart, Esquire 201 West Firth Street Suite 206, Paulucci Building Sanford, Florida 32771
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made. At all times pertinent hereto, Respondent has been licensed in the State of Florida as a limited surety agent (bail bondsman), a life and health agent and a general lines agent. Respondent has been licensed as an insurance agent for more than eleven years. He has been a licensed limited surety agent for more than ten years. Pursuant to Section 648.442(3), Florida Statutes, all collateral received by Respondent or others acting under his supervision or control in transactions under his surety agent license constituted trust funds received in a fiduciary capacity. At all times pertinent to this proceeding, Respondent has been doing business as Protective Insurance Center, Jenkins Bail Bonds. Until early February of 1991, Respondent's general agent was Banker's Insurance Company. However, in early February, Respondent's relationship with that company was terminated. Respondent's current general agent is American Bankers Insurance Company of Florida. Russell Faibish, Respondent's general agent with American Bankers since February of 1991, has expressed via affidavit that Respondent is in good standing with that company and the company has been satisfied with his performance to date. On January 25, 1991, Respondent, while acting in his capacity as a limited surety agent for Banker's Insurance Company, posted a surety bond, No. 339658, (the "Bond") in the amount of $752.00 to obtain the release of Kim Reinhold Whitford from custody in Clay County, Florida. In connection with the posting of the Bond, Respondent received from Earnest R. Justice (the "Indemnitor") a $75.00 premium payment and a $350.00 cash collateral payment. At the time the Indemnitor arranged with Respondent for the issuance of the bond, the Indemnitor was advised that his collateral would be returned within twenty one days of the receipt of written notice of the discharge of the bond. Respondent was provided with a notice from the Clerk of Court that Ms. Whitford was scheduled for a court appearance on April 3, 1991 for a "plea." Respondent never made any inquiry as to the results of that April 3, 1991 hearing. On April 3, 1991, the Bond was discharged and the obligation of the surety, Banker's Insurance Company, was released in writing by the County Court of Clay County, Florida. Respondent contends that he never received notification of the discharge of the Bond. While the Court document indicates that a notice of the discharge of the Bond was sent to Respondent at the time the requirements for the discharge were satisfied on or about April 3, 1991, no conclusive evidence was presented to establish that the notice of discharge was actually sent to or received by Respondent. Respondent denies ever receiving that document. After Ms. Whitford was released from jail, the Indemnitor contacted Respondent's office several times in April and May of 1991 trying to arrange the return of his collateral. Respondent denies receiving any messages from the Indemnitor. The failure to receive the messages may have been due to office staff turnover. In any event, the evidence was sufficient to establish that the Indemnitor attempted to arrange for the return of his collateral on numerous occasions without success. On August 9, 1991, the Petitioner filed the Administrative Complaint which is the basis for this proceeding against Respondent alleging that he failed to return the Indemnitor's collateral. Upon receipt of the Administrative Complaint, Respondent contacted the Clerk of Court, in Clay County, Florida to determine the status of the bond. On August 30, 1991, the Clerk of Court, Clay County, Florida, sent Respondent a certified copy of the bond discharge. Respondent claims that he first became aware of the discharge of the Bond and the Indemnitor's right to the return of the collateral when he received the August 30 certification from Clay County. Because an Administrative Complaint had already been filed, Respondent did not immediately refund the collateral for fear that such action could be construed as an attempt to influence a witness in the case. In order to avoid the appearance of attempting to influence a witness, Respondent waited until the day of the hearing to arrange to make a refund of the collateral available to the Indemnitor. On January 14, 1992, Respondent sent a Western Union Money Transfer, control no. 7395574746, payable to the Indemnitor in the amount of $350.00 as return of the collateral. Although the Indemnitor did not receive the return of his collateral until approximately eight to nine months after it was due, the collateral was ultimately returned and there is no other evidence in this case of any other financial loss to any member of the public. On average, Respondent has between 100 to 150 active bond cases per month. Most of those bonds are written in Palm Beach County, where Respondent's business is located. In this case, Respondent arranged for a "teletype bond" whereby the arrangements for the bond were made in Palm Beach County and notification of the posting of the bond and authorization for the release of the prisoner were transmitted via teletype to Clay County. Respondent contends that he reviews his active cases on a quarterly basis to confirm the status of the bonds. Nevertheless, it took almost six months for Respondent to determine that the requirements of the Bond in this case had been fully satisfied. No justifiable excuse was given for this delay. However, in mitigation, it does appear that the long distance nature of the transaction, the change in Respondent's general agent and office staff turnover all contributed to the delay in refunding the Indemnitor's collateral. Respondent has had three Administrative Complaints filed against him since 1985. The first Administrative Complaint was filed on June 26, 1985 and alleged that Respondent failed to provide required documentation of his assets to the Department. Pursuant to a Consent Order entered on August 6, 1985, Respondent was fined $200 and placed on probation for one year as a result of this charge. The most serious and pertinent prior administrative proceeding against Respondent was commenced by an Administrative Complaint dated November 17, 1987. That complaint alleged, among other things, that Respondent failed to return collateral to at least two clients. In April of 1989, the parties entered into a settlement stipulation regarding these charges pursuant to which Respondent was suspended for one year and fined $1,000.00. He was also required to make resitution to several individuals who had not been identified in the Administrative Complaint in that case. No explanation has been provided regarding the "restitution" required to be made to those individuals. The third case involved an Emergency Suspension Order entered on March 16, 1988. That Order was dissolved on September 20, 1988 when the underlying criminal charges were nolle prosequi. Respondent has had several IRS liens filed against him and there is currently a foreclosure action pending against his house. However, no specific information was provided regarding the status of those cases. Respondent contends that he is vigorously contesting all of those matters and he believes they will be favorably resolved. The evidence in this case suggests that Respondent is currently involved in disputes with some other customers regarding the return of collateral. The evidence did not establish the exact number or the facts surrounding those disputes. Respondent contends that all of those disputes are related to problems with or caused by his prior General Agent. No conclusions as to the merits of those complaints can be drawn from the evidence presented in this case. Gerald Michael Sandy, a licensed bondsman in the State of Florida and the current president of the Florida Surety Agents Association, testified on behalf of the Respondent in this matter. He indicated that on approximately 40% of the bonds that are executed, the Courts do not provide written notice of the discharge. However, Mr. Sandy conceded that even if written notification from a court is not received, the bail bondsman is primarily responsible for determining whether a bond has been discharged and a bail bondsman must immediately respond to the inquiries of an indemnitor regarding the return of collateral.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered suspending Respondent's licenses for three months, placing him on probation for two years and assessing an administrative fine in the amount of $500. RECOMMENDED this 9th day of March, 1992, at Tallahassee, Florida. J. STEPHEN MENTON 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 9th day of March, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-6302 Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. 1. Adopted in substance in Findings of Fact 1. 2. Adopted in substance in Findings of Fact 1. 3. Adopted in substance in Findings of Fact 2. 4. Adopted in substance in Findings of Fact 3. Findings of Fact 5. 7. Adopted in substance in Findings of Fact 5. 8. Adopted in substance in Findings of Fact 7. Rejected as unnecessary. Adopted in substance in Subordinate to Findings of Fact 13 and 14 and addressed in the Preliminary Statement. Subordinate to Findings of Fact 6 and 10. Adopted in substance in Findings of Fact 8. Subordinate to Findings of Fact 18. Subordinate to Findings of Fact 19. Subordinate to Findings of Fact 20. The Respondents's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. 1. Adopted in substance in Findings of Fact 5. 2. Adopted in substance in Findings of Fact 5. 3. Adopted in substance in Findings of Fact 7. 4. Adopted in substance in Findings of Fact 10. 5. Adopted in substance in Findings of Fact 11. 6. Adopted in substance in Findings of Fact 11. 7. Adopted in substance in Findings of Fact 12. 8. Adopted in substance in Findings of Fact 14. 9. Addressed in the Preliminary Statement. 10a. Adopted in substance in Findings of Fact 10. 10b. Adopted in substance in Findings of Fact 9. 10c. Adopted in substance in Findings of Fact 10. 10d. Adopted in substance in Findings of Fact 10. 10e. Adopted in substance in Findings of Fact 13. 10f. Adopted in substance in Findings of Fact 13. 10e.[sic] Adopted in substance in Findings of Fact 17. 10f.[sic] Adopted in substance in Findings of Fact 16. 10g. Rejected as unnecesdsary. 11a. Adopted in substance in Findings of Fact 21. 11b. Adopted in substance in Findings of Fact 21. 11c. Adopted in substance in Findings of Fact 21. 12. Adopted in substance in Findings of Fact 4. COPIES FURNISHED: David D. Hershel, Esquire Department of Insurance and Treasury Larson Building, Room 412 Tallahassee, Florida 32399-0300 Franklin Prince, Esquire Northbridge Centre, Suite 300-P 515 N. Flagler Drive West Palm Beach, Florida 33401 Tom Gallagher State Treasurer and Insurance Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil Deputy General Counsel Department of Legal Affairs The Capitol, Plaza Level Tallahassee, Florida 32399-0300
The Issue Whether the Respondent, a licensed limited surety (bail bond) agent, should be disciplined on charges stated in an Amended Administrative Complaint, DFS case 214761-17-AG; and, if so, the appropriate discipline.
Findings Of Fact The Respondent holds Florida limited surety (bail bond) agent license P166880. She has held the license since 2009 and has not been disciplined for any violations before this case. The Respondent entered into a contract with Braswell Surety Services, Inc. (Braswell Surety), the Florida managing general agent for Lexington on March 9, 2011, and wrote bail bonds for Lexington through mid-November 2016. The Respondent was the owner and primary bail bond agent for 1st Premier Bail Bonds (1st Premier), and conducted her business with Braswell Surety and Lexington through 1st Premier. Under the Respondent’s contract with Braswell Surety and Lexington, premiums for the Lexington bail bonds written by the Respondent were to be turned over to Lexington promptly. The Respondent also was obligated to submit a monthly execution report to Braswell Surety. The execution reports were supposed to detail all bonds executed by the Respondent’s company since the last report and include a remittance equal to 20 percent of the total amount of premium written since the last report. The Respondent also was obligated to submit a monthly discharge report to Braswell Surety. The discharge reports were supposed to list all bonds executed by the Respondent’s company that had been discharged by the court since the previous discharge report, along with appropriate documentation evidencing the discharges. The Respondent also was obligated to remit to Braswell Surety, monthly, 10 percent of the total amount of premiums written since the last execution report. This amount was to be held or invested and maintained by Braswell Surety as the Respondent’s “build-up funds” (BUF) account. The purpose of the BUF account was to hold Lexington and Braswell Surety harmless from any loss, cost or expenses or for the payment of losses resulting from bail bonds written by the Respondent’s company. Braswell Surety and Lexington could use money from the BUF account for those purposes at their discretion and could require money used for that purpose to be replaced by the Respondent’s company if Braswell Surety and Lexington deemed the account to be inadequate to provide full protection to them. In November 2016, it came to Braswell Surety’s attention that the Respondent’s company cashed a $9,690 check made out to 1st Premier by the court clerk in reimbursement for a forfeiture that had been remitted. The Respondent testified that the check was cashed before it was noticed that it should not have been made out to the Respondent’s company. Braswell Surety demanded that the Respondent’s company give Braswell Surety or Lexington a check in that amount, which was done. In November 2016, it also came to Braswell Surety’s attention that the Respondent’s company had several other forfeitures paid by Lexington. Braswell Surety sent the Respondent a list of them. The Respondent investigated and determined that many had been set aside and others were expected to be set aside. One still outstanding was in the amount of $35,000. In a letter dated November 9, 2016, the Respondent promised to resolve all issues involving forfeitures by the end of 2017. In her letter, the Respondent complained: “Cutting me off isn’t helping anyone. I’m trying to have you and Lexington all caught up by the end of 2017. I’m working hard to make this right. It’s all about money. I can’t pay if I can’t make money. Please reply and let me know how we can resolve our differences without taking this to a level that can’t resolve anything for anybody.” In November 2016, it also came to Braswell Surety’s attention that the Respondent was not reporting on its inventory of Lexington powers of attorney (powers) sent to the Respondent’s company at the end of 2014 for use in 2015 and at the end of 2015 for use in 2016. (Powers are essentially blank bond forms that can be used for one year.) Only one 2015 power was reported by the Respondent’s company as having been used. None of the other powers for 2015 and 2016 were reported by the Respondent’s company. Braswell Surety and Lexington had information from other sources about a few powers that were used in 2015 and 2016, but it was unknown in late 2016 whether any of the numerous other unreported powers were used or not, or if premiums were owed. By the end of November, Braswell Surety and Lexington decided not to provide the Respondent with powers for 2017. Braswell Surety also reported to the Petitioner that the Respondent owed premiums and forfeitures, and the Petitioner initiated an investigation. On January 9, 2017, Braswell Surety sent the Respondent a letter with an inventory report on the information Braswell Surety and Lexington had about the Respondent’s 2015 and 2016 powers. The letter acknowledged that the Respondent had no 2017 Lexington powers and was not authorized to write any more Lexington bonds. However, the letter stated, the Respondent’s appointment was not terminated, and the Respondent was expected to report all bonds in her inventory and pay all premiums owed to Lexington. During January 2017, the Respondent and Braswell Surety determined that the Respondent owed $14,906 in premiums. There was no evidence as to when any of the premiums owed became due and payable. The evidence was clear and convincing that all or almost all of the $14,906 was due and payable between June and November 2016, even if they might have first become due and payable before June 2016. However, the Petitioner declined to argue that this evidence proved the charges in Count I of the Amended Administrative Complaint. To the contrary, the Petitioner conceded in its PRO that those charges were not proven. An attorney for Lexington wrote the Respondent a letter on January 18, 2017, claiming that the Respondent still owed Lexington for forfeitures. The evidence did not prove whether forfeitures were still owed at that time. At some point in time, the Respondent agreed to work for Shamrock Bail Bonds (Shamrock). Shamrock was owned by a bail bondsman named Brendan O’Neal, who was its main agent. The Respondent agreed to act as a sub-agent for Shamrock. Under this arrangement, between the Respondent and Mr. O’Neal, Mr. O’Neal was primarily responsible for any bail bonds written by the Respondent for Shamrock. In order to write bail bonds for Shamrock as a sub- agent, the Respondent had to be appointed as a limited surety agent. On January 20, 2017, the Respondent filled out Form DFS- H2-1544 to be appointed by Palmetto Surety Corporation. The form is mandated and controlled by the Petitioner and is adopted by rule. See § 648.382(1), (2), Fla. Stat. (2016)1/; Fla. Admin. Code R. 69B-221.155(3) (2016).2/ In signing the form, the Respondent swore under oath that she owed no premiums to any insurer. This was untrue, as she did not pay Lexington the $14,906 she owed in premiums until February 20, 2017. The signed form was filed with the Petitioner, as required by statute. See § 648.382(1), (2), Fla. Stat. The Respondent claims not to have known that she was swearing falsely when she signed the Form DFS-H2-1544 because she did not read the form carefully and did not think a sub-agent would be required to swear to owing no premium to any insurer. She claims she would have waited to sign the form until after paying the premium she owed to Lexington if she knew what the form said. However, the evidence was clear that Braswell Surety attempted to motivate the Respondent to pay the premiums owed to Lexington by warning that she could not write bonds for any other insurer until the debt to Lexington was paid. The Respondent also admitted that she knew this from the time she learned it in “bond school” prior to licensure as a bail bondsman and knew it from experience ever since. Her testimony that her status as a sub-agent of Mr. O’Neal confused her is not credible. The evidence, taken as a whole, was clear and convincing that the Respondent intended to misrepresent when she signed the form. Her misrepresentation was relied on by Palmetto Surety and Shamrock.
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 dismissing Count I of the Amended Administrative Complaint, finding the Respondent guilty under Count II, and suspending her licenses and appointments for one year. DONE AND ENTERED this 3rd day of August, 2018, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 3rd day of August, 2018.
