03-002359
Sara Kaczmerek Schubert vs.
Department Of Financial Services
Status: Closed
Recommended Order on Monday, January 26, 2004.
Recommended Order on Monday, January 26, 2004.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8SARA KACZMEREK SCHUBERT, )
12)
13Petitioner, )
15)
16vs. ) Case No. 03 - 2359
23)
24DEPARTMENT OF FINANCIAL )
28SERVICES, )
30)
31Respondent. )
33_________________________________)
34RECOMMENDED ORDER
36Pursuant to notice, a formal hearing was held in this case
47before Larry J. Sartin, an Administrative Law Judge of the
57Division of Administrative Hearings, on November 17, 2003, in
66Fort Lauderdale, Florida.
69APPEARANCES
70For Petitioner: Ramon de la Cabada, Esquire
77Law Offices of Ramon de la Cabada, P.A.
853191 Coral Way, Suite 115
90Miami, Florida 33145
93For Respondent: Dickson E. Kesler, Esquire
99Division of Legal Services
103Department of Financial Services
107401 Northwest 2nd Avenue, Suite N - 321
115Miami, Florida 3312 8
119Dana M. Wiehle, Esquire
123Division of Legal Services
127Department of Financial Services
131200 East Gaines Street
135Tallahassee, Florida 32399 - 0333
140STATEMENT OF THE ISSUE
144The issue in this case is whether Petitioner, Sara
153Kaczmerek Schubert, should be li censed as a limited surety (bail
164bond) agent pursuant to Chapter 648, Florida Statutes.
172PRELIMINARY STATEMENT
174In October 2002 Petitioner filed an application with
182Respondent, the Department of Financial Services, seeking
189licensure as a limited surety (bail bond) agent. 1 By letter
200dated April 18, 2003, Respondent informed Petitioner that her
209application was denied.
212On or about April 23, 2003, Petitioner executed an Election
222of Proceeding Form disputing the facts alleged by Respondent in
232support of its preli minary decision to deny her application and
243requesting a formal administrative hearing. By letter dated
251June 24, 2003, Respondent filed Petitioner's request for hearing
260with the Division of Administrative Hearings. The request for
269hearing was designated case number 03 - 2359 and was assigned to
281the undersigned.
283On July 14, 2003, Respondent filed a Motion for Leave to
294Amend Denial Letter. Respondent sought leave to amend its
303April 18, 2003, denial letter by adding two statutory references
313in support of its decision. It was represented in the Motion
324that Petitioner did not object to the Motion. By Order entered
335July 17, 2003, the Motion was granted.
342At the final hearing of this matter, Petitioner testified
351on her own behalf and presented the testimony of Ja mes A. Moore.
364Three exhibits, Petitioner's Exhibits numbered 1 through 3, were
373offered and admitted. Respondent presented the testimony of
381Hazel Muhammad, Glenda Ostreich, Patricia Anthony, Ronald S.
389Blum, and Petitioner. Twenty - four exhibits, Responden t's
398Exhibits number 1 through 24, were offered and admitted.
407Portions of the deposition testimony of Petitioner, offered by
416Respondent, were also accepted.
420At the commencement of the final hearing, the parties filed
430a Pre - Hearing Fact Stipulation, contain ing facts which the
441parties had agreed upon. Those stipulated facts have been
450incorporated into this Recommended Order.
455On December 5, 2003, the Transcript of the final hearing,
465consisting of two volumes, was filed with the Division of
475Administrative Hear ings. Proposed recommended orders were,
482therefore, to be filed on or before December 15, 2003. An
493extension of time until December 22, 2003, was requested by
503Respondent on behalf of the parties. The extension was granted.
513Both parties filed proposed re commended orders on December 22,
5232003. Those post - hearing submittals have been fully considered.
533FINDINGS OF FACT
536A. The Parties .
5401. Respondent, the Department of Financial Services
547(hereinafter referred to as the "Department"), is the state
557agency res ponsible for, among other things, licensing of
566temporary bail bond agents and bail bond agents in the State of
578Florida. Chap. 648, Fla. Stat. In particular, the Department's
587Division of Agent and Agency Services, Bureau of Licensing, has
597been designated within the Department to review applications and
606make decisions thereon.
6092. Petitioner, Sara Kaczmerek Schubert, is an individual
617residing in Florida who is seeking licensure as a bail bond
628agent.
629B. Ms. Schubert's Temporary Bail Bond Agent License and
638H er Application for Licensure .
6443. Section 648.355, Florida Statutes, authorizes the
651Department to issue a temporary license to an individual as a
662bail bond agent under certain conditions. Those conditions
670include the requirements, among others, that the applicant
678complete basic certification courses within four years prior to
687the date an application is filed and that the applicant "be
698employed full time at the time of licensure, and at all times
710throughout the existence of the temporary license, by only o ne
721licensed and appointed supervising bail bond agent, who
729supervises the work of the applicant and is responsible for the
740licensee's conduct in the bail bond business. . . ."
750§ 648.355(1)(d) and (e), Fla. Stat.
7564. On August 24, 2001, Ms. Schubert was is sued a
767certificate by Florida Bail Bond School, Inc., for successfully
776completing courses in criminal justice for bail bond agents
785required as a prerequisite to applying for a temporary bail bond
796agent license. 2 (Stipulated fact).
8015. On October 30, 2001, Ms. Schubert was issued a
811certificate by the University of Florida, Division of Continuing
820Education, certifying her completion of the requirements of
"828INS 3 - Bail Bond Agent Qual Crse - Self Study." 3 (Stipulated
841fact).
8426. On or about December 12, 2001 , the Department received
852an application from Ms. Schubert seeking licensure as a
861temporary bail bond agent (hereinafter referred to as a
"870temporary license") pursuant to Section 648.355, Florida
878Statutes. Ms. Schubert designated Jenny Garcia, Florida Lic ense
887number A03131, Manager of Estrella Bail Bonds, on the
896application as her supervising bail bond agent. (Stipulated
904fact).
9057. After review of Ms. Schubert's application, the
913Department concluded that she met the requirements of Section
922648.355, Florid a Statutes, and on or about April 22, 2002,
933issued her a temporary license, license number E023179.
941(Stipulated fact).
9438. Ms. Schubert was employed by Estrella Bail Bonds and
953was under the supervision of Ms. Garcia upon the issuance of her
965temporary lice nse. Between July 2002 and December 2002,
974Ms. Schubert completed her temporary license internship hours of
983employment with Estrella Bail Bonds. (Stipulated fact).
9909. In October 2002, in anticipation of completing her
999internship, Ms. Schubert filed an ap plication for the bail bond
1010agent license at issue in this proceeding.
101710. By letter dated April 18, 2003, the Department denied
1027Ms. Schubert's license application based upon the following
1035alleged facts:
1037You, Sara K. Schubert, have acted in the
1045capacity o f, and held yourself out as bail
1054bond agent without being properly licensed
1060and appointed, in violation of the Florida
1067Insurance Code. You have established a
1073place of business, designated by you as "A
1081Bunny Bail Bonds Agency," which is not under
1089the activ e full - time charge of a licensed
1099and appointed bail bond agent; you have
1106provided, or had provided on your behalf,
1113internet advertising and business cards
1118which identify you as the agent/owner of "A
1126Bunny Bail Bonds Agency" and advertise the
1133services of th at agency; you have entered
1141into a lease agreement for office space for
"1149A Bunny Bail Bonds Agency," representing
1155yourself as the President of that agency;
1162you have provided for the advertising of the
1170services of "A Bunny Bail Bonds Agency" at
1178the leased l ocation; you have acquired and
1186maintained telephone services for "A Bunny
1192Bail Bonds Agency," and have advertised the
1199availability of the bond agency's services
1205through the availability of that telephone
1211service. You are operating a bail bond
1218agency separ ate from your supervising
1224agent's business address.
1227C. Ms. Schubert's Business Planning and General
1234Activities .
123611. As early as the beginning of 2001, Ms. Schubert
1246decided that she wanted to become licensed as a bail bond agent
1258and began planning accor dingly.
126312. In addition to taking the steps required by the
1273Department to obtain licensure as a bail bond agency, including
1283obtaining a temporary license, Ms. Schubert began taking certain
1292actions to ensure that she could begin to operate her bail bond
1304ag ency immediately upon being licensed as a bail bond agent.
131513. The steps which Ms. Schubert took to prepare her
1325business included the naming of her business, the creation of a
1336corporate entity, logo, and business slogan, obtaining local and
1345toll - free tele phone numbers for the business, having a business
1357plan prepared, having an internet web - page readied, executing a
1368lease for office space, arranging for a yellow - pages
1378advertisement, and obtaining advertising materials, including
1384business cards, key chains, pens, and stickers. In addition to
1394planning for her future business, Ms. Schubert also actually
1403advertised her future business.
140714. The evidence failed to prove that Ms. Schubert or
1417anyone on her behalf was actually "appointed by an insurer by
1428power of attorney to execute or countersign bail bonds in
1438connection with judicial proceedings who receives or is promised
1447money or other things of value therefor" or that that she
"1458pledge[d] United States currency, United States postal money
1466orders, or cashier's c hecks as security for a bail bond in
1478connection with a judicial proceeding and receive[d] or [was]
1487promised therefor money or other things of value."
149515. The evidence also failed to prove that Ms. Schubert,
1505based upon the facts alleged by the Department i n support of its
1518denial of her license application, is incompetent,
1525untrustworthy, unfit as to character and background or lacking
1534in one or more of the required qualifications for license or
1545appointment, or has demonstrated a course of conduct or practice
1555which indicate that she is incompetent, negligent, or dishonest.
156416. The following is a summary of the timing of the events
1576pertinent to this matter, each of which is discussed in further
1587detail, infra .:
15902001
1591a. April: Future business is named.
1597A Bunn y Bail Bonds, Inc. formed.
1604b. Aug. to Oct.: Courses required for temporary license
1613taken.
1614c. December: Application for temporary license filed.
16212002
1622a. March: 1 year lease for office space executed.
1631b. April: Temporary bail bond agent license iss ued.
1640c. Spring: Business cards, stickers, pens, and other
1648advertisements purchased.
1650Internet web page created.
1654Sign placed on door of office, mail box,
1662and office - building information board.
1668d. July to Dec.: Internship for Estrella Bail Bonds.
1677e. October: Ms. Schubert filed application for
1684licensure.
1685f. November: Telephone service contract entered into.
1692Department investigation begun.
16952003
1696a. February: Telephone approval to arrange for yellow -
1705pages advertisement obtained from
1709D epartment.
1711b. April: Business plan prepared.
1716Department denied license application.
1720c. May: Department's investigation closed with
1726letter of guidance.
1729D. Naming and Incorporating the Future Business .
173717. In April 2001, at least eight months prio r to filing
1749her application for temporary license with the Department,
1757Ms. Schubert decided that she would call her bail bond agency "A
1769Bunny Bail Bonds."
177218. Toward that end, on April 16, 2001, Ms. Schubert filed
1783documents with the Department of State cr eating a corporate
1793entity named "A Bunny Bail Bonds Agency, Inc."
180119. The Articles of Incorporation for the corporation,
1809which were signed by Ms. Schubert on or about April 10, 2001,
1821designated Ms. Schubert as the president of, and the registered
1831agent fo r, the corporation. The Articles of Incorporation do
1841not describe the nature of the business to be conducted by the
1853corporation.
1854E. Telephone Services for A Bunny Bail Bonds .
186320. At roughly the same time that Ms. Schubert decided on
1874the name of her busi ness in April 2001, Ms. Schubert contacted
1886AT&T to inquire about obtaining a toll - free number for A Bunny
1899Bail Bonds. Ms. Schubert selected and reserved "866 The - Buny"
1910(843 - 2869) as the toll - free number for A Bunny Bail Bonds. The
1925evidence failed to prov e, however, that any calls were actually
1936made to this number. The evidence also failed to prove whose
1947name the toll - free service was contracted under.
195621. Effective November 1, 2002, just over six months after
1966receiving her temporary license and two mont hs before she
1976completed her required internship with Estrella Bail Bonds,
1984Ms. Schubert opened an account for telephone services for A
1994Bunny Bail Bonds. The account was opened with BellSouth
2003Telecommunications, the local telephone provider for Fort
2010Lauderd ale.
201222. Ms. Schubert contracted for basic service for three
2021separate phone lines at a monthly charge of $27.75: telephone
2031numbers (954) 462 - 1600; 462 - 5800; and 469 - 1300. Ms. Schubert
2045also selected three optional services for A Bunny Bail Bonds:
2055the "C omplete Choice for Business Messaging Package," the
"2064Complete Choice for Business Maintenance 3 Line Package," and
2073the "Complete Choice for Business 3 Line Package." 4
208223. Ms. Schubert committed to pay $164.00 a month for the
2093optional services she agreed t o. 5
2100F. Office Space Rental .
210524. On or bout March 13, 2002, almost a month before
2116Ms. Schubert was issued her temporary license, Ms. Schubert
2125entered into a one - year lease agreement for a 350 square - foot
2139office (hereinafter referred to as the "Office"), i dentified as
"2150suite 3" and located at 521 South Andrews Avenue, Fort
2160Lauderdale, Broward County, Florida. (Stipulated fact).
216625. The Office is conveniently located across the street
2175from the Broward County courthouse.
218026. The lease agreement identifies "A Bunny Bail Bonds
2189Agency, Inc., Sara Schubert, President" as the Lessee of the
2199Office and was entered into by Ms. Schubert as "President" of A
2211Bunny Bail Bonds Agency, Inc. (Stipulated fact).
221827. The one - year lease period commenced April 1, 2002, the
2230m onth Ms. Schubert received her temporary license. She made a
2241security deposit in the amount of $873.50 and has paid a monthly
2253rental fee of $463.75 for the Office. (Stipulated fact).
226228. The evidence failed to prove that the Office was
2272actually used to carry out any bail bond business. 6
228229. The mailbox for the Office was located with other
2292mailboxes for the building at a central location. To ensure
2302that she received mail addressed to the Office, Ms. Schubert
2312placed a small yellow - sticky on the box whic h had "#3,
2325S. Schubert, A Bunny Bail Bonds" hand - written on it.
2336G. Web - Page for A Bunny Bail Bonds .
234630. Ms. Schubert arranged to have an internet web page
2356created for A Bunny Bond Bonds. The web page identifies
2366Ms. Schubert as "Agent/Owner" of A Bunny B ail Bonds, identifies
2377the business address as 521 South Andrew Street, Suite 3, Fort
2388Lauderdale, Florida 33001 (the address for the Office), and
2397lists three telephone numbers: the toll - free telephone number
2407she had reserved with AT&T; (305) 606 - 9662 a Dad e County
2420telephone number; and (954) 439 - 2211, a Broward County telephone
2431number. The Broward County telephone number is listed as
2440Ms. Schubert's home telephone number on Respondent's Exhibits 13
2449through 15.
245131. The web page represents that A Bunny Bail Bonds
2461accepts all major credit cards.
246632. The A Bunny Bail Bonds web page was accessible in
2477December 2002 and it is inferred, because of the telephone
2487numbers listed on the web page, that the web page was developed
2499after March 2002 (when the lease was ent ered into) and before
2511November 2002 (when local telephone services were contracted
2519for).
252033. The web page was not registered with any internet
2530search engine and, therefore, could only be accessed if the web
2541address was known. The web - address was, however , included on
2552the business cards Ms. Schubert purchased. The evidence failed
2561to prove whether anyone other than someone at the Department
2571ever accessed the web page.
2576H. Yellow - Page Advertisement .
258234. Ms. Schubert had applied for licensure in October 200 2
2593and, therefore, she began planning to place an advertisement in
2603the newest addition of the telephone book yellow pages for 2003,
2614when she anticipated that she would be able to open her
2625business.
262635. Because of concern over whether she would receive her
2636license before the deadline for taking out a yellow - pages
2647advertisement expired, she arranged for James Moore, a friend
2656and licensed bail bond agent, to contact the Department about
2666going forward with the advertisement in anticipation of the
2675approval of he r license. (Stipulated fact). Despite the fact
2685that Ms. Schubert had not received her license and had in fact
2697been the subject of an investigation by the Department, the
2707Department, through its agents, approved the placement of the
2716yellow pages advertise ment by Ms. Schubert.
272336. In reliance upon the Department's approval,
2730Ms. Schubert paid $28,000.00 for a half - page yellow - pages
2743advertisement for A Bunny Bail Bonds. The advertisement
2751included the corporate name, a picture of Ms. Schubert with her
2762name a nd "C.E.O." under it, the web page address, the toll - free
2776telephone number, telephone number (954) 462 - 1600, the address
2786of the Office, and the logos for several credit cards.
2796J. Business Cards, Stickers, Pens, and Key Chains .
280537. In anticipation of beco ming licensed as a bail bond
2816agent, Ms. Schubert purchased business cards, stickers, ink
2824pens, and key chains to be used in advertising A Bunny Bail
2836Bond.
283738. The business cards, which were purple, included the
2846name of the corporation, a logo which consis ts of a rabbit with
2859a key in its paw standing behind a rabbit dressed in striped -
2872prison garb (hereinafter referred to as the "Logo"),
2881Ms. Schubert's name as "Agent/Owner," a business slogan, "We'll
2890get your tail out of jail" (hereinafter referred to as the
"2901Slogan"), the address of the Office, the toll - free telephone
2913number listed as the "Office" number, telephone number (954)
2922439 - 2211, Ms. Shubert's home telephone number, as a "Mobile"
2933number, and the internet web page address. 7
294139. The stickers included the name of the corporation, the
2951Logo, and two telephone numbers: the toll - free number and (954)
2963439 - 2211, Ms. Schubert's home telephone number. 8
297240. The pens purchased by Ms. Schubert include the name of
2983the corporation, the Logo, and two telephone numb ers: the toll -
2995free number and (954) 439 - 2211, Ms. Schubert's home telephone
3006number. 9
300841. The business cards described in Finding of Fact 38,
3018the stickers, and the pens were purchased sometime after
3027Ms. Schubert leased the Office in March 2002 and before she
3038contracted for local telephone services for the office in
3047November 2002.
304942. A later version of business cards was purchased by
3059Ms. Schubert in late 2002 or early 2003. 10 The later version of
3072the business card changed the telephone numbers listed on t he
3083card to (954) 462 - 1600 as the "Office" number, 1 - 866 - The - Buny as
3101a "Toll Free" number, and (305) 366 - 5532 as a "Pager" number.
3114These cards were purchased after November 2002 when Ms. Schubert
3124contracted for local telephone services.
312943. Ms. Schubert a lso purchased key chains which include
3139the name of the name of the corporation, the logo, the toll - free
3153number, and telephone number (954) 462 - 1600. 11 The key chains
3165were, therefore, purchased after November 2002 when Ms. Schubert
3174contracted for local tele phone services.
3180K. Good Business Planning vs. Public Harm .
318844. Most of Ms. Schubert's actions described in this
3197Recommended Order constituted good business planning. Those
3204activities, to the extent there was no public disclosure, also
3214were of little if any potential harm to the public: creating a
3226corporation, selecting the name of a future business,
3234contracting for the office and telephone services, creating a
3243web page not generally accessible to the public, obtaining a
3253business plan, and purchasing adv ertising materials (business
3261cards, key chains, pens, and stickers). The number of
3270individuals involved with those transactions and who, therefore,
3278were aware of Ms. Schubert's activities, were too insignificant
3287to constitute any potential harm to the pub lic.
329645. Ms. Schubert, however, went beyond good business
3304planning when she began to disclose the existence of her company
3315to the public before she obtained her license:
3323a. In November 2002, if not earlier, a piece of wood
3334shaped like a rabbit and one of the stickers purchased by
3345Ms. Schubert were placed on the door of the Office, which was
3357located in a building where person seeking the services of bail
3368bond agencies often visited 12 ;
3373b. Ms. Schubert replaced the rabbit on her door with a
3384crow. She placed several of her business cards on top of the
3396crow. The cards were, therefore, available to anyone who passed
3406by the Office 13 ;
3410c. Ms. Schubert had a sign on the door of her automobile
3422with A Bunny Bail Bonds written on it;
3430d. Ms. Schubert placed a number of her cards, pens, and
3441key chains on the door of a bail bond agency located in the same
3455building the Office was located in. The bail bond agency was
3466Dolphin Bail Bonds, which was owned by Ronald Blum 14 ; and
3477e. Ms. Schubert sent a Christmas present to her former
3487employer in an envelope with "Bunny Bail" and the address of the
3499Office as the return address.
3504L. The Department's Investigation of Ms. Schubert .
351246. During the fall of 2002, the Department received a
3522complaint from Mr. Blum of Dolphin Bail Bonds , suggesting that
3532Ms. Schubert was operating A Bunny Bail Bonds.
354047. On or about November 25, 2002, as a result of Mr.
3552Blum's complaint, Patricia Anthony, an investigator for the
3560Department, sent a letter to Ms. Schubert informing her of the
3571investigation . (Stipulated fact).
357548. On December 5, 2002, Ms. Schubert met with Ms. Anthony
3586to discuss the matter. (Stipulated fact). Ms. Schubert
3594executed an affidavit at Ms. Anthony's request, concerning her
3603use of the Office. (Stipulated fact).
360949. At no time after the investigation was commenced until
3619the investigation was completed, sometime in 2003, was the
3628office found to be open despite the fact that Ms. Anthony
3639visited the office several times. (Stipulated fact).
364650. The Department's investigation of M s. Schubert was
3655concluded with the issuance of a letter of guidance on or about
3667May 29, 2003. (Stipulated Fact).
3672CONCLUSIONS OF LAW
3675A. Jurisdiction .
367851. The Division of Administrative Hearings has
3685jurisdiction over the subject matter of this proceeding and of
3695the parties thereto pursuant to Sections 120.569 and 120.57(1),
3704Florida Statutes (2003).
3707B. The Burden and Standard of Proof .
371552. The burden of proof, absent a statutory directive to
3725the contrary, is on the party asserting the affirmative of the
3736i ssue of the proceeding. Antel v. Department of Professional
3746Regulation , 522 So. 2d 1056 (Fla. 5th DCA 1988); Department of
3757Transportation v. J.W.C. Company, Inc. , 396 So. 2d 778 (Fla. 1st
3768DCA 1981); and Balino v. Department of Health and Rehabilitative
3778Services , 348 So. 2d 249 (Fla. 1st DCA 1977).
378753. In this matter, Ms. Schubert has sought licensure as a
3798bail bonds agent and, therefore, has the ultimate burden of
3808persuasion to prove her entitlement thereto. Department of
3816Banking and Finance v. Osburne Stern and Co., et. al. , 670 So.
38282d 932 (Fla. 1996). See also Pershing Industries, Inc. v.
3838Department of Banking and Finance , 591. So. 2d 991 (Fla. 1st DCA
38501991). The Department's denial of Ms. Schubert's license,
3858however, is based upon alleged statutory violations which the
3867Department has asserted cause Ms. Schubert to be ineligible for
3877licensure. The Department, therefore, has the burden of
3885establishing by competent, substantial evidence that the
3892violations occurred. Osburne Stern at 934.
389854. Once th e Department establishes that the violations
3907occurred, Ms. Schubert must overcome the Department's proof and
3916establish entitlement to licensure: "[W]hile the burden of
3924producing evidence may shift between the parties in an
3933application dispute proceeding, the burden of persuasion remains
3941upon the applicant to prove her entitlement to the license."
3951Id.
395255. The standard of proof, on both Ms. Schubert and the
3963Department, is by the preponderance of the evidence. Id. at
3973934.
397456. The grounds proven in support of the Department's
3983denial of Ms. Schubert's license application are limited to
3992those specifically alleged in the Department's denial letter. 15
4001See , e.g. , Cottrill v. Department of Insurance , 685 So. 2d 1371
4012(Fla. 1st DCA 1996); Kinney v. Department of St ate , 501 So. 2d
4025129 (Fla. 5th DCA 1987); and Hunter v. Department of
4035Professional Regulation , 458 So. 2d 842 (Fla. 2nd DCA 1984).
4045C. General Requirements for Licensure .
405157. Section 648.27, Florida Statutes, generally governs
4058the licensure of bail bond ag ents in the State of Florida:
4070(1) A license may not be issued except in
4079compliance with this chapter, and may not be
4087issued except to an individual. A firm,
4094partnership, association, or corporation, as
4099such, may not be licensed.
410458. Section 648.34, F lorida Statutes, establishes the more
4113specific requirements for licensure as a bail bond agent.
4122Generally, there is no dispute that Ms. Schubert is entitled to
4133licensure as a bail bond agent pursuant to Section 648.34,
4143Florida Statutes, except as otherwis e described in the
4152Department's denial letter.
4155D. The Department's Grounds for Denial .
416259. Factually, the Department has suggested that the
4170following acts constitute individual violations of Chapter 648,
4178Florida Statutes, and that cumulatively, they conc lusively show
4187that Ms. Schubert held herself out as a bail bond agent:
4198a. The establishment of a place of business, designated by
4208Ms. Schubert as "A Bunny Bail Bonds Agency," which was not under
4220the active full - time charge of a licensed and appointed bail
4232bond agent;
4234b. The provision of internet advertising which identify
4242Ms. Schubert as the agent/owner of "A Bunny Bail Bonds Agency"
4253and advertise the services of that agency;
4260c. The provision of business cards which identify
4268Ms. Schubert as the agent/own er of "A Bunny Bail Bonds Agency"
4280and advertise the services of that agency;
4287d. Entering into a lease agreement for office space for "A
4298Bunny Bail Bonds Agency," with Ms. Schubert representing herself
4307as the President of that agency;
4313e. Providing for the advertising of the services of "A
4323Bunny Bail Bonds Agency" at the leased location;
4331f. Having acquired and maintained telephone services for
"4339A Bunny Bail Bonds Agency"; and
4345g. Having advertised the availability of the bond agency's
4354services through the availability of that telephone service.
436260. Statutorily, the Department has cited a string of
4371statutory provisions, quoting parts thereof, in support of its
4380denial. The provisions cited by the Department include the
4389following:
4390(a) Section 648.27(2) an d (4), Florida Statutes, which
4399provides general guidelines for the issuance of bail bond
4408licenses;
4409(b) Section 648.34(2)(e), Florida Statutes, which
4415establishes qualifications for licensure;
4419(c) Section 648.45(2)(a), (e), (g), (j) and (p), and
4428(3)(c), Fl orida Statutes, which establishes the specific grounds
4437for denial of a license; and
4443(d) Sections 648.285, 648.30, 648.421, and 648.44(4),
4450(6)(b), and (7), Florida Statutes, which describe certain
4458prohibited acts.
4460General Guidelines for the Issuance of Lic enses; Section
4469648.27(2) and (4), Florida Statutes .
447561. Section 648.27(2) and (4), Florida Statutes, provides
4483the following:
4485(2) For the protection of the people of
4493this state, the department may not
4499issue . . . any license or appointment
4507except in compliance with this chapter. The
4514department may not issue . . . a license or
4524appointment for any individual found to be
4531untrustworthy or incompetent who has had his
4538or her eligibility to hold a license or
4546appointment revoked, or who has not
4552establishe d to the satisfaction of the
4559department that he or she is qualified
4566therefor in accordance with this chapter.
4572. . . .
4576(4) If upon the basis of the completed
4584application for a license or appointment and
4591such further inquiry or investigation the
4597depar tment deems the applicant to be unfit
4605as to character and background or lacking in
4613one or more of the required qualifications
4620for the license or appointment, the
4626department shall disapprove the application.
4631. . . .
463562. Given the evidence presented by the Department in this
4645case and the specific facts alleged by the Department in support
4656of its decision, it has not been shown that Ms. Schubert is
"4668untrustworthy or incompetent" or that she is "unfit as to
4678character and background or lacking in one or mor e of the
4690required qualifications." What the evidence proved is that
4698Ms. Schubert was too exuberant in her planning and that she
4709prematurely advertised her future business of a few, isolated,
4718occasions, not that she was unfit or untrustworthy.
4726Qualificatio ns for Licensure; Section 648.34(2)(e), Florida
4733Statutes .
473563. Section 648.34(2)(e), Florida Statutes, provides the
4742following pertinent qualifications for bail bond agents:
4749(2) To qualify as a bail bond agent, it
4758must affirmatively appear at the time o f
4766application and throughout the period of
4772licensure that the applicant has complied
4778with the provisions of s. 648.355 and has
4786obtained a temporary license pursuant to
4792such section and:
4795. . . .
4799(e) The applicant is a person of high
4807character and app roved integrity and has not
4815been convicted or pleaded guilty or no
4822contest to a felony, a crime involving moral
4830turpitude, or a crime punishable by
4836imprisonment of 1 year or more under the
4844laws of any state, territory, or country,
4851whether or not a judgment or conviction has
4859been entered.
486164. Again, the evidence in this case failed to prove that
4872Ms. Schubert's actions constitute the failure to comply with
4881Section 648.355, Florida Statutes, which sets out the
4889requirements for a temporary license, or that sh e is not a
4901person of high character and approved integrity. Ms. Schubert's
4910actions constituted activities consistent with preparing to
4917operate a bail bond business and were taken in open and plain
4929view.
4930Specific Grounds for License Denial; Section 648.45( 2)(a),
4938(e), (g), (j), and (p), and (3)(c), Florida Statutes .
494865. The actual authority for denial of an application for
4958a bail bond agent license comes from Section 648.45, Florida
4968Statutes. It is through this provision that the Department may
4978exercise i ts discretion.
498266. In this case, the Department has alleged that
4991Ms. Schubert's actions come within the following grounds of
5000Section 648.45, Florida Statutes, for denial of a license:
5009(2) The department shall deny . . . any
5018license or appointment issue d under this
5025chapter or the insurance code . . . for any
5035violation of the laws of this state relating
5043to bail or any violation of the insurance
5051code or if the person:
5056(a) Lacks one or more of the
5063qualifications specified in this chapter for
5069a license or appointment.
5073. . . .
5077(e) Has demonstrated lack of fitness or
5084trustworthiness to engage in the bail bond
5091business.
5092. . . .
5096(j) Has willfully failed to comply with
5103or willfully violated any proper order or
5110rule of the department or willfull y violated
5118any provision of this chapter or the
5125insurance code.
5127. . . .
5131(p) Has demonstrated a course of conduct
5138or practices which indicate that the
5144licensee is incompetent, negligent, or
5149dishonest or that property or rights of
5156clients cannot safel y be entrusted to him or
5165her.
5166(3) The department may deny . . . any
5175license or appointment issued under this
5181chapter or the insurance code . . . for any
5191violation of the laws of this state relating
5199to bail or any violation of the insurance
5207code or for any of the following causes:
5215. . . .
5219(c) Violation of any law relating to the
5227business of bail bond insurance or violation
5234of any provision of the insurance code.
5241. . . .
524567. In its Proposed Recommended Order, the Department has
5254simply conclude d that all of the provisions quoted in paragraph
526566 apply to Ms. Schubert. When these provisions, however, are
5275applied to Ms. Schubert's activities, as alleged in the amended
5285denial letter, it is clear that most do not apply. In
5296particular, the evidence failed to prove that Ms. Schubert
5305violated any of the alleged provisions of Section 648.45(2),
5314Florida Statutes, because the Department failed to prove that
5323she: "Lacks one or more of the qualifications specified in this
5334chapter for a license or appointmen t"; "Has demonstrated lack of
5345fitness or trustworthiness to engage in the bail bond business";
"5355Has willfully failed to comply with or willfully violated any
5365proper order or rule of the department or willfully violated any
5376provision of this chapter or the insurance code" 16 ; or "Has
5387demonstrated a course of conduct or practices which indicates
5396that the licensee is incompetent, negligent, or dishonest or
5405that property or rights of clients cannot safely be entrusted to
5416him or her."
541968. The evidence did prove, however, that Ms. Schubert's
5428conduct violated Section 648.45(3)(c), Florida Statutes, by
5435violating several of the cited provisions of Chapter 648,
5444Florida Statutes, discussed, infra .
5449Prohibited Acts: Sections 648.285, 648.30, 648.387(1),
5455648.421, and 648. 44(4), (6)(b), and (7), Florida Statutes .
546569. The specific "law[s] relating to the business of bail
5475bond insurance" which the Department has alleged Ms. Schubert
5484violated contrary to Section 648.45(3)(c), Florida Statutes, are
5492Sections 648.285, 648.30, 6 48.387, 648.421, and 648.44(4),
5500(6)(b), and (7), Florida Statutes.
550570. Section 648.285(1), Florida Statutes, prohibits any
5512person from owning, controlling, or otherwise having a pecuniary
5521interest in a bail bond agency unless the person is licensed and
5533ap pointed. The evidence failed to prove that Ms. Schubert
5543violated this provision.
554671. A "bail bond agency" is defined in Section 648.25(1),
5556Florida Statutes, as follows:
5560(1) "Bail bond agency" means:
5565(a) The building where a licensee
5571maintains an of fice and where all records
5579required by ss. 648.34 and 648.36 are
5586maintained; or
5588(b) Any entity that:
55921. Charges a fee or premium to release an
5601accused defendant or detainee from jail, or
56082. Engages in or employs others to engage
5616in any activit y that may be performed only
5625by a licensed and appointed bail bond agent.
563372. Because the evidence failed to prove that Ms. Schubert
5643was actually carrying on the activities that bail bond agents
5653carry on, it cannot be concluded that she owned or controll ed a
"5666bail bond agency." All that she owned or controlled was an
5677office that she intended at some date in the future to operate
5689as a bail bond agency, but that is not specifically prohibited
5700by Chapter 648, Florida Statutes. Without actually conducting
5708b ail bond business at the office, which the Department failed to
5720prove Ms. Schubert did, the office was nothing more than office
5731space.
573273. Section 648.30(1), Florida Statutes, provides the
5739following prohibition:
5741(1) A person may not act in the capacity
5750of a bail bond agent . . . or perform any of
5762the functions, duties, or powers prescribed
5768for bail bond agents . . . under this
5777chapter unless that person is qualified,
5783licensed, and appointed as provided in this
5790chapter.
579174. For the reasons discussed in paragraph 81, infra , it
5801is concluded that Ms. Schubert violated Section 648.30(1),
5809Florida Statutes, by advertising A Bunny Bail Bonds, an act she
5820was not qualified to do.
582575. Section 648.387(1), Florida Statutes, prohibits the
5832following:
5833(1) The owne r or operator of a bail bond
5843agency shall designate a primary bail bond
5850agent for each location, and shall file with
5858the department the name and license number
5865of the person and the address of the
5873location on a form approved by the
5880department. The designa tion of the primary
5887bail bond agent may be changed if the
5895department is notified immediately. Failure
5900to notify the department within 10 working
5907days after such change is grounds for
5914disciplinary action pursuant to s. 648.45.
592076. Section 648.421, Florid a Statutes, requires the
5928following:
5929Each licensee under this chapter shall
5935notify in writing the department, insurer,
5941managing general agent, and the clerk of
5948each court in which the licensee is
5955registered within 10 working days after a
5962change in the licen see's principal business
5969address or telephone number. The licensee
5975shall also notify the department within 10
5982working days after a change of the name,
5990address, or telephone number of each agency
5997or firm for which he or she writes bonds and
6007any change in t he licensee's name, home
6015address, or telephone number.
601977. The evidence failed to prove that the provisions
6028quoted in paragraphs 75 and 76 apply to Ms. Schubert. She was
6040not operating a "bail bond agency" and, therefore, she could not
6051violate Section 64 8.387(1), Florida Statutes. Nor did she have
6061any change in address or telephone number to notify the
6071Department of as required by Section 648.421, Florida Statutes.
608078. Finally, Section 648.44, Florida Statutes, defines the
6088following prohibited acts:
6091( 4) A place of business, including a
6099branch office, may not be established,
6105opened, or maintained unless it is under the
6113active full - time charge of a licensed and
6122appointed bail bond agent.
6126(6)(a) . . . .
6131(b) Any misleading or false advertisement
6137o r deceptive trade practice is prohibited as
6145provided in part IX of chapter 626.
6152(7) Any permissible advertising by a bail
6159bond agent or agency must include the
6166address of record filed with the department.
617379. The evidence in this case failed to prov e that
6184Ms. Schubert established and maintained a place of business and,
6194therefore, she did not violate Section 648.44(4), Florida
6202Statutes. All that she did was maintain office space.
621180. As to Section 648.44(6)(b), Florida Statutes, the
6219particular prohi bited misleading or false advertisement or
6227deceptive trade practice prohibited by Chapter 626, Florida
6235Statutes, the Department has alleged Ms. Schubert violated is
6244Section 626.954(1)(b), Florida Statutes, which describes the
6251following prohibited practice:
6254Knowingly making, publishing, disseminating,
6258circulating, or placing before the public,
6264or causing, directly or indirectly, to be
6271made, published, disseminated, circulated,
6275or placed before the public:
62801. In a newspaper, magazine, or other
6287publication,
62882. In the form of a notice, circular,
6296pamphlet, letter, or poster,
63003. Over any radio or television station, or
63084. In any other way,
6313an advertisement, announcement, or statement
6318containing any assertion, representation, or
6323statement with respect to the business of
6330insurance, which is untrue, deceptive, or
6336misleading.
633781. The evidence in this case proved that Ms. Schubert did
6348in fact place advertisements which were untrue, deceptive, or
6357misleading in that they suggested that A Bunny Bail Bonds was an
6369ap proved and operating bail bond agency. She advertised A Bunny
6380Bail Bonds when she placed a sticker and business cards on the
6392Office door and Mr. Blum's office door, she included the name of
6404her future business as a return address on a letter sent to her
6417f ormer employer, and she advertised A Bunny Bail Bonds on the
6429side of her automobile. All of these advertisements were
6438untrue, deceptive, and misleading, because they all suggested A
6447Bunny Bail Bonds was an operating bail bond business, which it
6458was not.
64608 2. Finally, the advertisements Ms. Schubert used did not
6470include any address of record filed with the Department because
6480she did not yet have a "bail bond agency" for which an address
6493was required to be filed. She did not, therefore, violate
6503Section 648. 44(7), Florida Statutes.
6508E. Exercise of the Department's Discretion .
651583. Having proved that Ms. Schubert committed a few of the
6526statutory violations alleged by the Department in support of its
6536decision to deny her license application, the Department may
6545exercise its discretion in this case. It should not do so,
6556however, unreasonably.
655884. Most of the actions taken by Ms. Schubert had little,
6569if any, impact on the public. Creating a corporation, leasing
6579office space, arranging for telephone service, crea ting an
6588virtually inaccessible internet web site, purchasing advertising
6595materials, and having a business plan drafted created no harm to
6606the public as long as the public was not informed that these
6618things had taken place.
662285. The only prohibited actions taken by Ms. Schubert
6631involved a few, isolated instances where she actually advertised
6640what appeared to be an existing bail bond agency: when she
6651placed a single sticker on the office door, when she placed her
6663business cards on the office door and Ms. Blu m's office door,
6675when she included the address on one envelope, and when she
6686placed a sign advertising A Bunny Bail Bonds on the side of her
6699car.
670086. Given the lack of evidence that Ms. Schubert actually
6710carried on any bail bond agency business and the mi nimal public
6722harm she may have caused, the Department should exercise its
6732discretion to grant Ms. Schubert's license, with appropriate
6740conditions, including requiring that she take additional courses
6748and/or placing her on probation.
6753RECOMMENDATION
6754Based on the foregoing Findings of Fact and Conclusions of
6764Law, it is RECOMMENDED that a final order be entered by the
6776granting Ms. Schubert's application for licensure as a limited
6785surety (bail bond) agent pursuant to Chapter 648, Florida
6794Statutes, conditioned on her taking additional bail bond agent
6803training and/or placing Ms. Schubert on probation for an
6812appropriate period of time.
6816DONE AND ENTERED this 26th day of January, 2004, in
6826Tallahassee, Leon County, Florida.
6830S
6831___________________________________
6832LA RRY J. SARTIN
6836Administrative Law Judge
6839Division of Administrative Hearings
6843The DeSoto Building
68461230 Apalachee Parkway
6849Tallahassee, Florida 32399 - 3060
6854(850) 488 - 9675 SUNCOM 278 - 9675
6862Fax Filing (850) 921 - 6847
6868www.do ah.state.fl.us
6870Filed with the Clerk of the
6876Division of Administrative Hearings
6880this 26th day of January, 2004.
6886ENDNOTES
68871 / Section 648.25(2), Florida Statutes, defines a "bail bond
6897agent" as a "limited surety agent" or a "professional bail bond
6908agent."
69092 / It is inferred that these courses were part of the courses
6922required to obtain a temporary license.
69283 / Id.
69314 / The Department has described in greater detail the nature of
6943the services contracted for by Ms. Schubert in paragraph 17 of
6954the Departmen t's Proposed Recommended Order. The scope of
6963services is, however, not relevant to this proceeding.
69715 / In paragraph 18 of the Department's Proposed Recommended
6981Order, the Department speculates as to why Ms. Schubert
6990contracted for the extra options. Th is paragraph is speculative
7000and not relevant to this matter.
70066 / According to Ms. Schubert, the Office was either empty or
7018contained only a couch and television set. According to James
7028Moore, a friend of Ms. Schubert, there was also a computer in
7040the Off ice, and, therefore, it is inferred that there was a desk
7053or table upon which the computer sat. Ms. Moore's testimony in
7064this regard is credited.
7068Although Ms. Schubert was not truthful concerning the contents
7077of the Office, her lack of truthfulness at he aring cannot form
7089any basis for denying her license because the Department's
7098Amended Denial Letter did not include these facts as grounds for
7109the Department's decision. See Cottrill v. Department of
7117Insurance , 685 So. 2d 1371 (Fla. 1st DCA 1996).
71267 / Res pondent's Exhibit 8.
71328 / Respondent's Exhibit 10.
71379 / Respondent's Exhibit 23.
714210 / Respondent's Exhibits 8 and 22.
714911 / Respondent's Exhibit 23.
715412 / Ms. Schubert testified at hearing that she had placed the
7166sticker on the door because the mail delivery person and an
7177express mail carrier has suggested that she identify the office
7187to facilitate deliveries. While such advice is reasonable,
7195because she could not operate under the name A Bunny Bail Bond,
7207she should have conducted all of her business prior t o be
7219licensed solely in her own name. In that way she would not have
7232violated Chapter 648, Florida Statutes, by holding herself out
7241as a bail bond agency.
724613 / Although placing the business cards on the Office door
7257constituted advertising, it was limited at to the likely number
7267of individuals who may have seen the cards.
727514 / Again, although these actions constitute advertising, they
7284were very limited in their distribution.
729015 / In its Proposed Recommended Order, the Department has
7300raised a number of what the Department perceives to be
7310inconsistencies in Ms. Schubert's testimony. At no time has the
7320Department proposed to deny Ms. Schubert's license application
7328because of any alleged lack of candor on Ms. Schubert's part.
7339The matters raised in the Departme nt's Proposed Recommended
7348Order have, therefore, only been considered in determining what
7357weight should be given to Ms. Schubert's testimony.
736516 / Although Ms. Schubert did indeed violate certain provisions
7375of Chapter 648, Florida Statutes, as discussed, i nfra , the
7385evidence failed to prove that she did so "willfully."
7394COPIES FURNISHED:
7396Ramon de la Cabada, Esquire
7401Law Offices of Ramon de la Cabada, P.A.
74093191 Coral Way, Suite 115
7414Miami, Florida 33145
7417Dickson E. Kesler, Esquire
7421Division of Legal Services
7425Department of Financial Services
7429Suite N - 321
7433401 Northwest Second Avenue
7437Miami, Florida 33128
7440Dana M. Wiehle, Esquire
7444Division of Legal Services
7448Department of Financial Ser vices
7453200 East Gaines Street
7457Tallahassee, Florida 32399
7460Honorable Tom Gallagher
7463Chief Financial Officer
7466Department of Financial Services
7470The Capitol, Plaza Level 11
7475Tallahassee, Florida 32399 - 0300
7480Mark Casteel, General Counsel
7484Department of Financia l Services
7489The Capitol, Plaza Level 11
7494Tallahassee, Florida 32399 - 0300
7499NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
7505All parties have the right to submit written exceptions within
751515 days from the date of this Recommended Order. Any exceptions
7526to this Recomme nded Order should be filed with the agency that
7538will issue the Final Order in this case.
![](/images/view_pdf.png)
- Date
- Proceedings
-
PDF:
- Date: 01/26/2004
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
-
PDF:
- Date: 12/12/2003
- Proceedings: Motion for Extension of Time to File Post-hearing Submissions filed by Respondent.
- Date: 12/05/2003
- Proceedings: Transcript (Volumes I and II) filed.
- Date: 11/17/2003
- Proceedings: CASE STATUS: Hearing Held.
-
PDF:
- Date: 09/18/2003
- Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for November 17 and 18, 2003; 9:30 a.m.; Fort Lauderdale, FL).
-
PDF:
- Date: 09/16/2003
- Proceedings: Notice of Taking Deposition, S. Schubert, J. Garcia (filed via facsimile).
-
PDF:
- Date: 08/25/2003
- Proceedings: Notice of Taking Deposition (2), (S. Schubert and J. Garcia) filed via facsimile.
-
PDF:
- Date: 08/25/2003
- Proceedings: Respondent`s Response to Petitioner`s Initial Request to Produce (filed via facsimile).
-
PDF:
- Date: 08/21/2003
- Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for October 14 and 15, 2003; 9:30 a.m.; Fort Lauderdale, FL).
-
PDF:
- Date: 07/07/2003
- Proceedings: Notice of Hearing (hearing set for September 9 and 10, 2003; 9:30 a.m.; Fort Lauderdale, FL).
-
PDF:
- Date: 07/01/2003
- Proceedings: Joint Response to Initial Order (filed by D. Kesler via facsimile).
-
PDF:
- Date: 06/24/2003
- Proceedings: Joint Notice of Appearance (filed by D. Wiehle, D. Kesler, Esquire, via facsimile).
Case Information
- Judge:
- LARRY J. SARTIN
- Date Filed:
- 06/24/2003
- Date Assignment:
- 06/25/2003
- Last Docket Entry:
- 12/08/2004
- Location:
- Fort Lauderdale, Florida
- District:
- Southern
- Agency:
- ADOPTED IN PART OR MODIFIED
Counsels
-
Ramon de la Cabada, Esquire
Address of Record -
Dickson E Kesler, Esquire
Address of Record -
Dana M Wiehle, Esquire
Address of Record