03-003804PL Department Of Financial Services vs. Larry Lorenzo Jones Status: Closed Recommended Order on Friday, June 4, 2004.

Summary: Petitioner did not prove by clear and convincing evidence that Respondent failed to return collateral in accordance with statutory requirements and failed to formally file a designation of primary agent form.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF FINANCIAL )

SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 03 - 3804PL

)

LARRY LORENZO JONES, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on

February 10, 2004, and March 22, 2004, by video teleconference

at sites in Fort Lauderdale and Tallahassee, Florida, before

Stuart M. Lerne r, a duly - designated Administrative Law Judge of

the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Greg S. Marr, Esquire

Department of Financial Services

612 Larson Building

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

For Respondent: Michael A. Levin, Esquire

444 Brickell Avenue

Suite 51, PMB 217

Miami, Florida 33131 - 2403

STATEMENT OF THE ISSUE

W hether 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.

PRELIMINARY STATEMENT

On September 17, 2003, Petitioner issued a two - count

A dministrative Complaint against Respondent. In Count I of the

Administrative Complaint, Petitioner alleged that Respondent

violated Sections 648.442(1), 648.45(2)(e), (f), (g), (h), (j),

(n), and (p), and 648.571(1), Florida Statutes, by failing to

return collateral to an indemnitor, Hugh Clarke. In Count II of

the Administrative Complaint, Petitioner alleged that Respondent

violated Sections 648.387(1) and 648.45(2)(j), Florida Statutes,

by failing to comply with a directive in a November 13, 2002,

Conse nt Order that Petitioner's predecessor, the Department of

Insurance, 1 had issued requiring Respondent to file with the

Department of Insurance, within 30 days of the Consent Order,

the designated primary agent for each of Respondent's bail bond

agency loca tions. Respondent disputed "one or more of

[Petitioner's] factual allegations" and requested "a hearing

pursuant to Section 120.57(1), Florida Statutes, to be held

before [DOAH]." The matter was referred to DOAH on October 14,

2003, for the assignment of an administrative law judge to

conduct the hearing Respondent had requested.

The hearing was originally scheduled for December 17, 2003,

but was continued at the request of both parties and rescheduled

for February 10, 2004.

At the outset of the heari ng on February 10, 2004,

Respondent, who was representing himself, asked for additional

time to retain counsel. The request, which was unopposed by

Petitioner, was granted and the hearing adjourned without any

evidence having been taken. On February 12, 2004, the parties

were given notice, by regular United States Mail, that the

hearing would reconvene on March 22, 2004.

Respondent appeared on March 22, 2004, with counsel.

Respondent's counsel, stating Respondent had just recently

retained him, requested a further delay of the commencement of

the evidentiary portion of the hearing in order to have more

time to prepare. The request, which Petitioner opposed, was

denied. Cf. The Florida Bar v. Hughes , 824 So. 2d 154, 158

(Fla. 2002) (" In the instant case, the Bar filed the petition

against the unlicensed practice of law on March 19, 2001. On

April 12, 2001, this Court ordered Hughes to appear before the

referee at the hearing scheduled for June 15, 2001. On June 13,

2001, two days before the hearing, Hugh es filed his motion for

continuance, which the referee denied because he concluded that

Hughes had waited until the last minute to retain counsel. The

referee stated that Hughes knew about the hearing since April

2001, and had sufficient time to secure an attorney and discuss

the ramifications involved. Also, Hughes filed his motion for

continuance a mere two days before the hearing . . . . [W]e

find that the referee in the instant case did not abuse his

discretion and we uphold his denial of the motion for

continuance."); and Coleus v. Florida Commission on Human

Relations , 842 So. 2d 1021, 1022 (Fla. 5th DCA 2003)( " The

standard of review of an order denying a continuance is abuse of

discretion. Here, Coleus who had been represented by counsel in

a rela ted worker's compensation case, had ample notice of the

hearing date and ample opportunity to obtain counsel before the

date of the hearing. There is no abuse of discretion in denying

a motion for a continuance to obtain counsel when the motion is

made at the hearing.")(citation omitted.).

Six witnesses testified at the hearing: Dickson Kessler,

Esquire; Hugh Clarke; Pat Anthony; Respondent; James Jones; and

Ronnie Striggles. In addition to the testimony of these six

witnesses, 12 exhibits (Petitioner 's Exhibits 1 through 11, and

Respondent's Exhibit 1) were offered and received into evidence.

At the close of the taking of evidence, the undersigned

established a deadline (20 days from the date of the filing of

the hearing transcript with DOAH) for the filing of proposed

recommended orders.

The hearing transcript (consisting of one volume) was filed

with DOAH on April 30, 2004.

On May 20, 2004, Respondent filed a Motion for Extension of

Time to File Proposed Recommended Order, requesting a 20 - day

exten sion of the deadline for filing proposed recommended

orders. Two days earlier, Petitioner had filed an Objection to

Respondent's Motion for Extension of Time to File Proposed

Recommended Order. On the same day the motion was filed, the

undersigned issued an Order giving the parties until May 26,

2004, to file their proposed recommended orders and denying

Respondent's motion to the extent that it requested that the

filing deadline be extended beyond May 26, 2004.

Petitioner and Respondent both filed their Proposed

Recommended Orders on May 26, 2004. These post - hearing

submittals have been carefully considered by the undersigned.

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as

a whole, the following findings of fact are made:

R espondent

1. 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

tw o other Florida - licensed bail bond agents, James Jones (who is

Respondent's brother) and Ron Striggles, are affiliated.

Count I

2. On April 23, 2002, Hugh Clarke went to the Agency,

where he obtained from Respondent a $4,500.00 bail bond for a

friend, Ri chard Dyke, who had been arrested in Palm Beach

County, Florida, on a theft charge.

3. 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 che ck (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

COMP ANY 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 e ndorser 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 defenda nt

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.

4. 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 bo nd premium

fee.

5. 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.

6. The Collateral Receipt contained the following "note,"

"inform ational 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 t o 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 undersigne d

hereby acknowledges receipt of a copy of all

collateral documents indicated above, and

the Informational Notice printed below.

* * *

INFORMATIONAL NOTICE

CONDITIONS OF BOND:

1. The SURETY, as bail, shall have control

and juri sdiction 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.

2. In the event surrender of principal is

made p rior 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.

3. It is understood and agreed that the

happening of any one of the followin g 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:

(a) If principal shall depart the

jurisdiction of the court without the

written consent of the court and the SURETY

or its Agent.

(b) If principal shall move from one

address to anoth er without notifying SURETY

or his agent in writing prior to said move.

(c) If principal shall commit any act which

shall constitute reasonable evidence of

principal's intention to cause a forfeiture

of said bond.

(d) If principal is arrested and

incar cerated for any other offense other

than a minor traffic violation.

(e) If principal shall make any material

false statement in the application.

* * *

INDEMNITOR INFORMATION

In addition to the terms and conditions of

any Inde mnity Agreement or other collateral

documents which you have executed, this is

to notify you that:

1. 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.

2. 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 c onditions

of the bond and appears at all required

court hearings.

3. 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 bon d(s) from the court. It

may take several weeks after the case(s) is

disposed of before the court discharges the

surety bonds.

7. Respondent read to Mr. Clarke that portion of the

Collateral Receipt that explained that the collateral would be

returned " w ithin 21 days after the surety ha[d] received written

notice of discharge of the bond(s) from the court."

8. 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.

9. 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.

10. 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

11. Mr. Clarke telephoned the Agency approximately twice a

month until November 20 02, 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.

12. 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. Cla rke 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.

13. 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.

14. Ms. Anthony met with Mr. Clarke on December 6, 2002,

and took his stateme nt. 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' off ice 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 whe n the case was

completed.[ 8 ] I have called several times.

The man who answered the phone tells me

Larry is not there.

15. In January 2003, Ms. Anthony telephoned the Office of

the Clerk of the Circuit Court of Palm Beach County (Clerk's

Office) to inqu ire 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 t his information inasmuch as the Clerk's Office did

not "always notify the out of town bondsman."

16. 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 i nformation she had been

provided.

17. 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).

18. 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.

19. 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).

20. Mr. Clarke picked up the check on January 27, 2003, as

scheduled.

21. 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

22. 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."

23. On November 13, 2002, the Department of Insurance

issued a Consent Order in Case No. 4374 2 - 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:

1. The Treasurer and Insurance

Commissioner, as head of the Department of

Insurance, has jurisdiction over the subject

matter of this case and parties hereto.

2. The entry of this Consent Order and

compliance he rewith 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:

a. The Settlement Stipulation for Consent

Order dated October 25, 2002, is hereby

approved and fully incorporated herein by

reference;

b. 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.

c. Licensee shall be placed on probation

fo r 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 c ause 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.

d. 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 eli gibility 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 ]

24. So metime 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.

25. 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 Resp ondent 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 mak e 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 an d Ms. Anthony were still

there.

26. 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 Peti tioner 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," w hich

Respondent did (on or around September 19, 2003). Petitioner

received this completed designation form on September 26, 2003.

CONCLUSIONS OF LAW

27. DOAH has jurisdiction over the subject matter of this

proceeding and of the parties hereto pursua nt to Chapter 120,

Florida Statutes.

28. In Florida, the activities of bail bond agents are

regulated by the provisions of Chapter 648, Florida Statutes,

which are part of the Florida Insurance Code. § 624.01, Fla.

Stat.

29. Petitioner has been statutor ily delegated the

authority "to administer the provisions of this chapter."

§ 624.26, Fla. Stat.

30. Among the provisions in Chapter 648, Florida Statutes,

are the following relating to "[c]ollateral security" and the

"[f]ailure to return collateral":

6 48.442 Collateral security. --

(1) Collateral security or other indemnity

accepted by a bail bond agent, except a

promissory note or an indemnity agreement,

shall be returned upon final termination of

liability on the bond. Such collateral

security or other indemnity required by the

bail bond agent must be reasonable in

relation to the amount of the bond.

Collateral security may not be used by the

bail bond agent for personal benefit or gain

and must be returned in the same condition

as received. . . .

(2) When a bail bond agent accepts

collateral, a written, numbered receipt

shall be given, and this receipt shall give

in detail a full account of the collateral

received. . . .

(3) Collateral security shall be received

and held in the insurer's name by the bail

bond agent in a fiduciary capacity and,

prior to any forfeiture of bail, shall be

kept separate and apart from any other funds

or assets of such bail bond agent. . . .

(4) When the obligation of the surety on

the bond or bonds has been releas ed in

writing by the court, the collateral shall

be returned to the rightful owner named in

the collateral receipt unless another

disposition is provided for by legal

assignment of the right to receive the

collateral to another person.

* * *

.

(7) No bail bond agent or insurer shall

solicit or accept a waiver of any of the

provisions of this section or enter into any

agreement as to the value of the collateral.

* * *

(11) Any person who violates th is section

is guilty of a felony of the third degree,

punishable as provided in s. 775.082, s.

775.083, or s. 775.084.

* * *

648.571 Failure to return collateral;

penalty. --

(1) A bail bond agent who has taken

collateral or an insurer or managing general

agent who holds collateral as security for a

bail bond shall, upon demand, make a written

request for a discharge of the bond to be

delivered to the surety or the surety's

agent. A copy of the written request for

discharge must be given to the indemnitor or

the person making the request for the

collateral, and a copy must be maintained in

the agent's file. If a discharge is

provided to the surety or the surety's agent

pursuant to chapter 903, the collateral

shall be returne d to the indemnitor within

21 days after the discharge is provided.

(2) Upon demand, following the written

request for discharge and upon diligent

inquiry by the surety or surety's agent to

determine whether the bond has been

discharged, the failure of the court to

provide a written discharge to the surety or

surety's agent pursuant to chapter 903

within 7 days automatically cancels the

bond, and the collateral shall be returned

to the indemnitor within 21 days after the

written request for discharge.

* * *

(4) In addition to the criminal penalties

and any other penalties provided in this

chapter, the department shall impose against

any person violating this section an

administrative fine of five times the dollar

amount of th e collateral.

31. Chapter 648, Florida Statutes, also contains the

following provisions, found in Section 648.387, Florida

Statutes, dealing with "primary bail bond agents":

(1) The owner or operator of a bail bond

agency shall designate a primary bail bond

agent for each location, and shall file with

the department the name and license number

of the person and the address of the

location on a form approved by the

department. The designation of the primary

bail bond agent may be changed if the

departme nt is notified immediately. Failure

to notify the department within 10 working

days after such change is grounds for

disciplinary action pursuant to s. 648.45.

(2) The primary bail bond agent is

responsible for the overall operation and

management of a b ail bond agency location,

whose responsibilities may include, without

limitations, hiring and supervising of all

individuals within the location, whether

they deal with the public in the

solicitation or negotiation of bail bond

contracts or in the collecti on or accounting

of moneys. A person may be designated as

primary bail bond agent for only one

location.

* * *

(5) A bail bond agency location may not

conduct surety business unless a primary

bail bond agent is designated at all times.

The failure to designate a primary agent on

a form prescribed by the department, within

10 working days after an agency's inception

or a change of primary agent, is a violation

of this chapter, punishable as provided in

s. 648.45.

A " bail bon d agency," as that term is used in Chapter 648,

Florida Statutes, is defined in Section 648.25(1), Florida

Statutes, as follows:

(a) The building where a licensee maintains

an office and where all records required by

ss. 648.34 and 648.36 are maintained; or

(b) An entity that:

1. Charges a fee or premium to release an

accused defendant or detainee from jail; or

2. Engages in or employs others to engage

in any activity that may be performed only

by a licensed and appointed bail bond agent.

32. P ursuant to Section 648.30, Florida Statutes, persons

acting as bail bond agents in Florida must be licensed by

Petitioner.

33. Petitioner may suspend or revoke a bail bond agent

license it has issued on any of the grounds enumerated in

648.45(2), Florida Statutes. Pursuant to Section 648.52,

Florida Statutes, Petitioner "may, in its discretion, in lieu of

or in addition to such suspension [or] revocation . . ., and

except on a second offense, impose upon the licensee an

administrative penalty in an amount up to $5,000 or, if [it] has

found willful misconduct or willful violation on the part of the

licensee, $20,000. The administrative penalty may, in the

discretion of [Petitioner], be increased by an amount equal to

any commissions or other pecuniary bene fits received by or

accruing to the credit of the licensee in connection with any

transaction related to the grounds for suspension [or]

revocation . . . ." Pursuant to Section 648.53, Florida

Statutes, Petitioner "may, in lieu of or in addition to such

s uspension [or] revocation . . . or in connection with any

administrative monetary penalty imposed under s. 648.52, place

the offending licensee on probation for a period, not to exceed

2 years, as specified by ]Petitioner] in its order."

34. Petitioner m ay take such punitive action only after

the licensee has been given reasonable written notice of the

charges and an adequate opportunity to request a proceeding

pursuant to Sections 120.569 and 120.57, Florida Statutes.

35. An evidentiary hearing must be held if requested by

the licensee when there are disputed issues of material fact.

§§ 120.569(1) and 120.57(1), Fla. Stat.

36. At the hearing, Petitioner bears the burden of proving

that the licensee engaged in the conduct, and thereby committed

the vio lations, alleged in the charging instrument.

37. Proof greater than a mere preponderance of the

evidence must be presented by Petitioner to meet its burden of

proof. Clear and convincing evidence of the licensee's guilt is

required. See Department of Banking and Finance, Division of

Securities and Investor Protection v. Osborne Stern and Company ,

670 So. 2d 932, 935 (Fla. 1996); Ferris v. Turlington , 510 So.

2d 292, 294 (Fla. 1987); Pou v. Department of Insurance and

Treasurer , 707 So. 2d 941 (Fla. 3d DCA 1998); and §

120.57(1)(j), Fla. Stat. ("Findings of fact shall be based upon

a preponderance of the evidence, except in penal or licensure

disciplinary proceedings or except as otherwise provided by

statute . . . .").

38. Clear and convincing evidenc e "requires more proof

than a 'preponderance of the evidence' but less than 'beyond and

to the exclusion of a reasonable doubt.'" In re Graziano , 696

So. 2d 744, 753 (Fla. 1997). It is an "intermediate standard."

Id. For proof to be considered "'clear and convincing' . . .

the evidence must be found to be credible; the facts to which

the witnesses testify must be distinctly remembered; the

testimony must be precise and explicit and the witnesses must be

lacking in confusion as to the facts in issue. Th e evidence

must be of such weight that it produces in the mind of the trier

of fact a firm belief or conviction, without hesitancy, as to

the truth of the allegations sought to be established." In re

Davey , 645 So. 2d 398, 404 (Fla. 1994), quoting, with a pproval,

from Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA

1983). "Although this standard of proof may be met where the

evidence is in conflict, . . . it seems to preclude evidence

that is ambiguous." Westinghouse Electric Corporation, Inc. v.

Shuler Bros., Inc. , 590 So. 2d 986, 989 (Fla. 1st DCA 1991).

39. In determining whether Petitioner has met its burden

of proof, it is necessary to evaluate its evidentiary

presentation in light of the specific allegations of wrongdoing

made in the chargin g instrument. Due process prohibits an

agency from taking penal action against a licensee based on

matters not specifically alleged in the charging instrument,

unless those matters have been tried by consent. See Shore

Village Property Owners' Associatio n, Inc. v. Department of

Environmental Protection , 824 So. 2d 208, 210 (Fla. 4th DCA

2002); Hamilton v. Department of Business and Professional

Regulation , 764 So. 2d 778 (Fla. 1st DCA 2000); Lusskin v.

Agency for Health Care Administration , 731 So. 2d 67, 69 (Fla.

4th DCA 1999); Cottrill v. Department of Insurance , 685 So. 2d

1371, 1372 (Fla. 1st DCA 1996); and Delk v. Department of

Professional Regulation , 595 So. 2d 966, 967 (Fla. 5th DCA

1992).

40. The charging instrument Petitioner issued in the

ins tant case alleges that Respondent violated Sections

648.442(1), 648.45(2)(e), (f), (g), (h), (j), (n), and (p), and

648.571(1), Florida Statutes, by failing to return Mr. Clarke's

collateral (Count I); and that Respondent violated Sections

648.387(1) and 6 48.45(2)(j), Florida Statutes, by failing to

comply with a directive in a November 13, 2002, Consent Order

that the Department of Insurance had issued requiring that he

file with the Department of Insurance, within 30 days of the

date of issuance of the Co nsent Order, the designated primary

agent for each of his bail bond agency locations (Count II).

The charging instrument then advises Respondent that Petitioner

intends to suspend or revoke his license or impose other

authorized penalties for his having c ommitted these alleged

violations.

41. As noted above, Petitioner's authority to suspend and

revoke a bail bond agent's license is derived from Section

648.45, Florida Statutes. Subsections (2)(e), (f), (g), (h),

(j), (n), and (p) of the statute (the p rovisions Respondent is

alleged to have violated) read as follows:

(2) The department shall deny, suspend,

revoke, or refuse to renew any license or

appointment issued under this chapter or the

insurance code, and it shall suspend or

revoke the eligibilit y of any person to hold

a license or appointment under this chapter

or the insurance code, for any violation of

the laws of this state relating to bail or

any violation of the insurance code or if

the person:

* * *

( e) Has demo nstrated lack of fitness or

trustworthiness to engage in the bail bond

business.

(f) Has demonstrated lack of reasonably

adequate knowledge and technical competence

to engage in the transactions authorized by

the license or appointment.

(g) Has engaged in fraudulent or dishonest

practices in the conduct of business under

the license or appointment.

(h) Is guilty of misappropriation,

conversion, or unlawful withholding of

moneys belonging to a surety, a principal,

or others and received in the conduct of

business under a license.

* * *

(j) Has willfully failed to comply with or

willfully violated any proper order or rule

of the department or willfully violated any

provision of this chapter or the insurance

code.

* * *

(n) Has failed to return collateral.

* * *

(p) Has demonstrated a course of conduct or

practices which indicate that the licensee

is incompetent, negligent, or dishonest or

that property or rights of clie nts cannot

safely be entrusted to him or her.

42. The statutory provisions that Petitioner claims

Respondent has violated are "in effect, . . . penal

statute[s] . . . This being true the[y] must be strictly

construed and no conduct is to be regarded as included within

[them] that is not reasonably proscribed by [them].

Furthermore, if there are any ambiguities included such must be

construed in favor of the . . . licensee." Lester v. Department

of Professional and Occupational Regulations , 348 So. 2d 923,

925 (Fla. 1st DCA 1977); see also Whitaker v. Department of

Insurance and Treasurer , 680 So. 2d 528, 531 (Fla. 1st DCA

1996)("Because the statute [Section 626.954(1)(x)4, Florida

Statutes] is penal in nature, it must be strictly construed with

any dou bt resolved in favor of the licensee."); and Elmariah v.

Department of Professional Regulation, Board of Medicine , 574

So. 2d 164, 165 (Fla. 1st DCA 1990)(" Although it is generally

held that an agency has wide discretion in interpreting a

statute which it administers, this discretion is somewhat more

limited where the statute being interpreted authorizes sanctions

or penalties against a person's professional license. Statutes

providing for the revocation or suspension of a license to

practice are deemed pe nal in nature and must be strictly

construed, with any ambiguity interpreted in favor of the

licensee.").

43. None of these provisions, so construed, authorize the

Petitioner to discipline a Florida - licensed bail bond agent for

the misconduct of the empl oyees of the licensee's bail bond

agency where there is no showing of personal wrongdoing on the

part of the licensee. Cf. Ganter v. Department of Insurance ,

620 So. 2d 202 (Fla. 1st DCA 1993)("In Pic N' Save Central

Florida v. Department of Business Regu lation, Div. of Alcoholic

Beverages and Tobacco , 601 So. 2d 245 (Fla. 1st DCA 1992), this

court recognized the distinction between imposing liability

under the theory of respondeat superior and revoking a party's

right to conduct business. In Pic N' Save , supra , the court

held that while the governing statute itself did not require

proof of licensee's knowledge that in order to suspend a party's

liquor license, the department must establish that the licensee

knew or should have known of the misconduct of i ts employee.

The court went on to acknowledge that this construction of the

statute is consistent with the idea 'that one's license to

engage in an occupation is not to be taken away except for

misconduct personal to the licensee.' Pic N' Save , supra at

250. There is no rational basis for not imposing the same

standard for revocation of an insurance license."); Pic N' Save

v. Department of Business Regulation , 601 So. 2d 245, 250, 256

(Fla. 1st DCA 1992)("Although the statutory language in section

561.29 (1) has since 1957 spoken in terms of the Division's power

to revoke or suspend a beverage license for violations of the

beverage law committed by a licensee, or 'its agents, officers,

servants, or employees,'[ 13 ] the courts of this state have

consistently construed and applied this disciplinary authority

only on the basis of personal misconduct by the licensee. Thus,

while an employee may violate the beverage law in making illegal

sales of alcoholic beverages to minors, the licensee's culpable

responsibili ty therefor is measured in terms of its own

intentional wrongdoing or its negligence and lack of diligence

in training and supervising its employees regarding illegal

sales. This limitation on the licensee's liability is

consistent with the notion, also l ong recognized by the courts

of this state, that one's license to engage in an occupation is

not to be taken away except for misconduct personal to the

licensee. . . . While the statute Pic N' Save allegedly

violated in this case, section 562.11, Florida Statutes, is the

same statute that was involved in Davis [v. Shiappacossee , 155

So. 2d 365 (Fla. 1963], this case is not a civil negligence

action for personal injury damages resulting from harm caused by

the alleged illegal sales; the principles of respon deat superior

applied in Davis have no application in determining whether Pic

N' Save's license should be revoked or suspended; and the burden

of proof to establish the licensee's personal misconduct is

significantly stricter than that applicable to civil cases such

as Davis."); McDonald v. Department of Professional Regulation,

Board of Pilot Commissioners , 582 So. 2d 660, 669 (Fla. 1st DCA

1991)("There is no language to clearly evidence a legislative

intent to impose on a state licensed pilot vicarious

re sponsibility for the neglect or misconduct or others, i.e., to

hold the pilot strictly responsible for the conduct of all other

personnel involved in operating and maneuvering the vessel at

the time the allision occurred. The statute does not purport to

i mpose any nondelegable duties on a state licensed harbor pilot

that would give rise to personal responsibility for the

negligent acts of others. Under Florida law, disciplinary

statutes such as section 310.101 are penal in nature and must be

strictly cons trued against the enforcing agency; thus, without a

clear, unambiguous provision in the statute indicating

legislative intent to hold the licensee responsible for the

negligent or wrongful acts committed by another,[ 14 ] the

administrative agency is not auth orized to so extend the effect

of the statute."); and Federgo Discount Center v. Department of

Professional Regulation, Board of Pharmacy , 452 So. 2d 1063,

1066 (Fla. 3d DCA 1984)("We conclude that if the Legislature

desired to make community pharmacy perm ittees strictly liable

for the acts of pharmacists who are separately licensed by the

State, then it could have done so in no uncertain terms. In the

absence of a clear expression from the Legislature making these

permittees subject to discipline for the misdeeds of their

chosen licensed pharmacist, we are obliged to reverse the

Board's order of revocation.").

44. The gravamen of Count I of the charging instrument

Petitioner issued in the instant case is the allegation that, in

connection with his handlin g of the collateral Mr. Clarke had

given him to secure Mr. Dyke's bond, Respondent failed to act in

accordance with provisions of Chapter 648, Florida Statutes,

dealing with the return of collateral (specifically, Sections

648.442(1) and 648.571(1), Florid a Statutes) and that he

therefore is subject to discipline pursuant to Section

648.45(2)(n), Florida Statutes. While Petitioner has also

alleged in this count of the charging instrument violations of

Section 648.45(2)(e), (f), (g), (h), and (p), Florida S tatutes,

it is apparent, particularly in light of the facts alleged in

charging instrument, that these other alleged violations are

derivative claims dependent upon a finding that Respondent

violated Sections 648.442(1) and 648.571(1), Florida Statutes.

45 . Section 648.442(1), Florida Statutes, requires that

collateral security "be returned upon final termination of

liability on the bond." " In a statute which provides for one

event 'upon' some other contingency, the word 'upon' is a word

of variable meani ng. It may mean 'at the time of' or 'with

little or no interval thereafter.' On the other hand, it may

mean 'in consequence of' or 'on condition of,' without implying

contemporaneity." Walsh v. Board of Administration , 6 Cal.

Rptr. 2d 118, 133 (Cal. App . 1992); see also Ashmus v. Calderon ,

31 F. Supp. 2d 1175, 1186 (N.D. Cal. 1998)("'[U]pon' can mean

either 'on condition of' or 'at the time of . . . with little or

no interval thereafter.' In the first instance, upon implies no

temporal limit; in the sec ond, however, upon means immediately

following." )(citation omitted.). Reading Section 648.442(1),

Florida Statutes, together with the remaining provisions of the

statute, as well as with the provisions of Section 648.571,

Florida Statutes, and, further, t aking into consideration that a

violation of Section 648.442(1), Florida Statutes, subjects a

bail bond agent not only to administrative penalties, but to

felony criminal penalties as well, the undersigned is confident

that the Legislature did not intend S ection 648.442(1), Florida

Statutes, to impose upon a bail bond agent, unaware of the

" final termination of liability on [a collateral - secured] bond,"

the obligation to return such collateral immediately following

the "final termination of liability." 15 Se e State v. Fuchs , 769

So. 2d 1006, 1009 (Fla. 2000)("[S]tatutes which relate to the

same or closely related subjects should be read in pari

materia."); McLaughlin v. State , 721 So. 2d 1170, 1172 (Fla.

1998)("Where criminal statutes are concerned, the rules are even

stricter: '[I]t is a well - established canon of construction

that words in a penal statute must be strictly construed. Where

words are susceptible of more than one meaning, they must be

construed most favorably to the accused.'"); and § 775.021( 1),

Fla. Stat. ("The provisions of this code and offenses defined by

other statutes shall be strictly construed; when the language is

susceptible of differing constructions, it shall be construed

most favorably to the accused. "). To construe Section

648.4 42(1), Florida Statutes, otherwise would place an

unreasonable burden on bail bond agents that the Legislature

could not have intended them to shoulder. Cf. Burnsed v.

Seaboard Coastline Railroad Co. , 290 So. 2d 13, 19 (Fla.

1974) (" A reasonable interpreta tion of Section 357.08, Florida

Statutes, would include a reasonable time within which to set

the lighted fuses or other visual warning devices. The statute

implies the allowance of a reasonable time after the blocking of

a crossing to provide the requisi te lighting and the question as

to such reasonable time is a question of fact to be determined

under the circumstances of each case. Neither the courts nor

the Legislature expect the impossible and this Court recognizes

that the warning device cannot be p ut out instantaneously, but

rather a reasonable time is permitted to train personnel to

comply with this statute."); and Newport v. MFA Insurance Co. ,

448 N.E.2d 1223, 1228 - 29 (Ind. App. 1983) (" Although there is no

Indiana law directly on point, we discern some guidance in an

analogous circumstance where a policy condition requires the

insured to give timely notice of an accident to the insurer.

This court has said that such timeliness must be measured from

the time the insured actually knew of the acciden t. Such policy

condition cannot be construed to require an insured to do an

impossible thing -- to give notice of an accident before it knew

about it.").

46. Unlike Section 648.442(1), Florida Statutes, Section

648.571(1), Florida Statutes, contains a spec ific time frame

within which a bail bond agent must return collateral given to

secure a bond that has since been discharged. That specific

time frame is 21 days from the date the bail bond agent is

provided with the discharge order the court has issued. It is

the responsibility of the bail bond agent, pursuant to Section

648.571(1), Florida Statutes, " upon demand ," to "make a written

request" that (s)he "be delivered" the discharge order.

47. In the instant case, Respondent was first made aware

of the discharge of the bond Mr. Clarke had obtained for

Mr.Dyke, not by Mr. Clarke, but by Petitioner (through

Ms.Anthony), whom Mr. Clarke had contacted after having been

unsuccessful in his efforts to telephonically communicate with

Respondent. 16 Within a week of being so advised, Respondent went

to the Palm Beach County Courthouse and obtained from the

Clerk's Office a certified copy of a summary or disposition

sheet reflecting that Mr. Dyke's bond had been discharged. 17

That same day, he made arrangements to have Mr. Clarke come by

the Agency to get his $1,050.00 collateral back. In accordance

with these arrangements, on January 27, 2003, Mr. Clarke went to

the Agency and was given a check in the amount of $1,050.00.

Inasmuch as it establishes that Responden t returned Mr. Clarke's

collateral less than 21 days from the date Respondent had been

told by Ms. Anthony about the discharge of Mr. Dyke's bond (and

well before he was provided a copy of the court's discharge

order), the evidentiary record in the instant case does not

support a finding that, in connection with Respondent's handling

of this collateral, he violated Section 648.442(1), Florida

Statutes, Section 648.571(1), Florida Statutes, or any of the

other statutory provisions cited in Count I of the cha rging

instrument. Petitioner having failed to prove these violations

by clear and convincing evidence, Count I of the charging

instrument must be dismissed.

48. In Count II of the Administrative Complaint,

Petitioner alleges that it is authorized, pursua nt to Section

648.45(2)(j), Florida Statutes, to take disciplinary action

against Respondent because Respondent had not (as of

September 17, 2003, the date the charging instrument was issued)

"filed with [Petitioner] the designated primary agent for each

l ocation of all bail bond agencies [he] own[ed]," as required by

Section 648.387(1), Florida Statutes, and by a Consent Order

that the Department of Insurance had issued November 13, 2002.

Disciplinary action is warranted under Section 648.45(2)(j),

Florid a Statutes, only if the violation alleged is shown to have

been willfully committed. The record evidence in the instant

case, however, does not clearly and convincingly establish that

Petitioner even violated Section 648.387(1), Florida Statutes,

or the D epartment of Insurance's November 13, 2002, Consent

Order, much less that he did so willfully.

49. To prove that Respondent acted in derogation of

Section 648.387(1), Florida Statutes, and the Department of

Insurance's November 13, 2002, Consent Order, Petitioner had to

show that Respondent failed to file the requisite paperwork with

the Department of Insurance within the prescribed time period.

Petitioner could have met its burden by offering, if available,

evidence of the type described in Section 90. 803(10), Florida

Statutes, which provides as follows:

The provision of s. 90.802 to the contrary

notwithstanding, the following are not

inadmissible as evidence, even though the

declarant is available as a witness:

* * *

(10) A BSENCE OF PUBLIC RECORD OR ENTRY. --

Evidence, in the form of a certification in

accord with s. 90.802, or in the form of

testimony, that diligent search failed to

disclose a record, report, statement, or

data compilation or entry, when offered to

prove the absence of the record, report,

statement, or data compilation or the

nonoccurrence or nonexistence of a matter of

which a record, report, statement, or data

compilation would regularly have been made

and preserved by a public office and agency.

Petitione r presented no such evidence, nor did it offer any

other evidence establishing the non - filing (within the

prescribed time period) of the completed designation form

Respondent was required to file. Respondent, for his part, gave

credible testimony that, so metime in December 2002, upon being

given the proper designation form to fill out, he immediately

did so, hand - delivered a copy of the completed form to a

Department of Insurance employee, and mailed the original to the

Department of Insurance. 18 In view o f Petitioner's failure to

effectively rebut this testimony and present clear and

convincing evidence establishing that the Department of

Insurance's office of the agency clerk did not receive this

mailing on or before December 13, 2002 (that is, within the 30 -

day time frame Respondent was given, in the November 13, 2002,

Consent Order, to file a completed designation form), Count II

of the charging instrument, like Count I, must be dismissed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Con clusions

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.

ENDNOTES

1 / The Department of Insurance's r egulatory authority over bail

bond agents was transferred to the newly - created Department of

Financial Services effective January 7, 2003, by operation of

Chapter 2002 - 404, Laws of Florida.

2 / There is no indication in the evidentiary record that

Respond ent actually received these messages.

3 / The evidentiary record does not reveal that Mr. Clarke

attempted to contact Respondent by means other than telephoning

him.

4 / Ms. Anthony is still employed as a Special Investigator, but

by Petitioner.

5 / I n fact, Mr. Clarke gave Respondent one check for $1,500.00.

6 / Mr. Clarke did not take any steps to confirm the accuracy of

the information Mr. Dyke had provided him about the status of

Mr. Dyke's criminal case.

7 / At hearing, however, Mr. Clarke tes tified that he first

called the Agency in late May 2002.

8 / Mr. Clarke gave testimony at hearing inconsistent with this

assertion that he had been told by Respondent that he would "get

the $1,050 when the case was completed" (as opposed to within 30

days of his giving that amount to Respondent).

9 / Florida Administrative Code Rule 28 - 106.104(1) provides, in

pertinent part, that, " [i]n construing . . . any order of a

presiding officer, filing shall mean received by the office of

the agency clerk during normal business hours . . . ."

10 / This Consent Order contains no findings of guilt, nor does

it make reference to any admissions of guilt made by Petitioner,

although it does impose disciplinary action against Petitioner

in the form of a fine and probat ion. Absent a finding that

Respondent has violated the terms of the Consent Order,

Petitioner may not take any further disciplinary action against

Respondent based on the allegations made against him in

Department of Insurance Case No. 43742 - 02 - AG. See D epartment of

Transportation v. Career Service Commission , 366 So. 2d 473, 474

(Fla. 1st DCA 1979) (" Although the Commission may have inartfully

used the term 'double jeopardy,' its reversal was based on sound

reasoning. D.O.T. not only lacked authority to discipline

Woodard twice for the same offense but its action was

fundamentally unfair. The same offense may be a proper ground

for either a suspension or a dismissal but the statute and rules

contemplate that these are mutually exclusive disciplinary

alte rnatives. Otherwise, an agency could repeatedly punish an

employee and the employee would never be secure in his

employment. . . . [H]aving concluded its investigation and

reached its decision as to the disciplinary action it will

administer to an employ ee, the disciplinary action administered

may not be increased at a later date nor may an agency

discipline an employee twice for the same offense.") .

11 / Neither Mr. Marr, nor any one else with personal knowledge

of the contents of the Department of Insur ance's and

Petitioner's records, testified at hearing regarding whether or

not these records contained this completed designation form.

12 / " [P]roof of mailing of a document to the correct address

creates a presumption that the item mailed was, in fact,

received. This presumption, however, is a rebuttable one."

W.T. Holding, Inc. v. State Agency for Health Care

Administration , 682 So.2d 1224, 1225 (Fla. 4th DCA

1996)(citations omitted.). The evidentiary record in the

instant case does not contain rebut tal evidence sufficient to

establish that the Department of Insurance did not receive the

completed designation form that Respondent had mailed to it in

December 2002. (Petitioner's Exhibit 1, the first page of which

is a signed certification (under seal) of the state's Chief

Financial Officer that "the attached three pages represent the

Designation of Primary Bail Bond Agent for Bail Bond Agency for

Big Larry's Bail Bonds . . . [which] was received by this

Department on September 26, 2003," does not const itute such

evidence since this certification does not address what other

completed designation forms, if any, the Department of Insurance

or Petitioner may have received from Respondent prior to

September 26, 2003; neither does Mr. Marr's "out - of - court"

st atement to Respondent regarding the contents of Petitioner's

records constitute such evidence since this "out - of - court"

statement is hearsay evidence that, standing alone, is

insufficient, under Florida law applicable to administrative

proceedings (specifi cally, Section 120.57(1)(c), Florida

Statutes), to support a finding of fact.)

13 / Section 648.45(2), Florida Statutes, unlike Section

561.29(1), Florida Statutes, does not contain any language

suggesting that a licensee may be disciplined for violations

committed by the licensee's "agents, officers, servants, or

employees."

14 / There is no such "clear, unambiguous provision" in Section

648.45(2), Florida Statutes.

15 / The undersigned therefore respectfully disagrees with the

view expressed in the testi mony given at hearing by Dickson

Kessler, an attorney employed by Petitioner, that, "[i]f a

principal satisfies the requirement of the court and the bond is

discharged, . . . [t]he collateral has to be returned

immediately to the person that put that up."

16 / There has been no showing that Respondent was in any way

personally responsible for the lack of success of these efforts

made by Mr. Clarke.

17 / It was not until more than a year later that he received a

copy of the actual discharge order.

18 / Whet her this occurred within or outside the 30 - day filing

period prescribed in the Consent Order, the evidentiary record

does not make clear.

COPIES FURNISHED :

Greg S. Marr, Esquire

Department of Financial Services

612 La rson Building

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

Michael A. Levin, Esquire

444 Brickell Avenue

Suite 51, PMB 217

Miami, Florida 33131 - 2403

Mark Casteel, General Counsel

Department of Financial Services

The Capitol, Plaza Level 11

Ta llahassee, Florida 32399 - 0300

Honorable Tom Gallagher

Chief Financial Officer

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399 - 0300

N OTICE OF RIGHT TO SU BMIT EXCEPTIONS

All parties have the right to submit writ ten exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.