04-000004PL
Department Of Financial Services vs.
Jean-Rene Joseph
Status: Closed
Recommended Order on Friday, May 7, 2004.
Recommended Order on Friday, May 7, 2004.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8DEPARTMENT OF FINANCIAL )
12SERVICES, )
14)
15Petitioner, )
17)
18vs. ) Case No. 04 - 0004PL
25)
26JEAN - RENE JOSEPH, )
31)
32Respondent. )
34)
35RECOMMENDED ORDER
37Pursuant t o notice, a final hearing was held in this case
49on March 3, 2004, in Miami, Florida, before Administrative Law
59Judge Michael M. Parrish of the Division of Administrative
68Hearings.
69APPEARANCES
70For Petitioner: Dickson E. Kesler, Esquire
76Department of Financial Services
80401 Northwest Second Avenue, Suite N - 321
88Miami, Florida 33128
91For Respondent: Hernan Hernandez, Esquire
961431 Ponce de Leon Boulevard
101Coral Gables, Florida 33134
105STATEMENT OF THE ISSUES
109Thi s is a license discipline case in which Petitioner seeks
120to take disciplinary action against Respondent on the basis of
130allegations of misconduct set forth in an Administrative
138Complaint dated August 13, 2003.
143PRELIMINARY STATEMENT
145At the final hearing o n March 3, 2004, Petitioner presented
156the testimony of two witnesses; Ms. Gina Michelle Santacroce
165("Santacroce"), a customer who obtained a bail bond on behalf of
178a friend; and Mr. William Darryl May ("May"), an investigator in
191Petitioner's Bureau of Inve stigation. Petitioner also offered
199two exhibits, both of which were received in evidence.
208Respondent testified in his own behalf and also presented
217the testimony of another witness: Mr. Benjamin Elisio Hernandez,
226Jr. ("Hernandez"), a bail bond agent who worked on resolving a
239forfeiture of the subject bail bond. Respondent also offered
248one exhibit, which was received in evidence.
255At the conclusion of the hearing the parties were allowed
265ten days from the filing of the transcript within which to file
277thei r respective proposed recommended orders. The transcript of
286the final hearing was filed with the Division of Administrative
296Hearings on April 5, 2004. On April 15, 2004, Petitioner filed
307its Proposed Recommended Order containing proposed findings of
315fact and conclusions of law.
320On May 6, 2004, a full twenty - one days past the deadline,
333and without benefit of either a motion seeking an extension of
344time or an explanation or excuse showing good cause for his
355tardiness , Respondent's counsel filed a document entitled
362Respondent's Proposed Order. This unexplained tardiness in
369document submission reflects an indifference to or disregard for
378clear instructions designed to implement the fair and orderly
387disposition of administrative litigation. The undersigned i s
395not disposed to excuse, disregard, or reward such unexplained
404conduct. Accordingly, Respondent's late - filed document entitled
412Respondent's Proposed Order, is being treated as an unauthorized
421document and is included in the record as an unauthorized
431docu ment, the substance of which has not been considered by the
443undersigned.
444FINDINGS OF FACT
4471. At all times material to this case, Respondent Jean -
458Rene Joseph has been licensed in the State of Florida as a bail
471bond agent. At all times material to this c ase, Respondent
482worked as a bail bond agent with a bail bond company named
494America's Best Bail Bonds, Inc.
4992. At approximately 2:30 or 3:00 a.m. on the morning of
510January 29, 2002, Santacroce contacted Respondent for the
518purpose of arranging bail for a f riend of hers named John
530Raymond Moyer ("Moyer"). Moyer needed a bond in the amount of
543$1,500.00. Respondent agreed to provide, and did provide, the
553requested bail bond for a fee of $150.00. On the morning of
565January 29, 2002, Santacroce paid $150.00 ca sh for the bail bond
577fee. Santacroce also agreed to furnish collateral for the bail
587bond issued on behalf of Moyer. In this regard, Santacroce
597agreed that she would either deliver the title to a specified
608automobile as collateral, or she would make payme nts of $250.00
619per week until the bail bond on behalf of Moyer was fully
631collateralized.
6323. In the early morning hours of January 29, 2002,
642Santacroce did not have an original certificate of title to an
653automobile with her. Instead, she gave Respondent a color
662photocopy of title number 50460657, which was a certificate of
672title to an automobile. The certificate showed title to a 1986
683Chevrolet in the name of a registered owner named Oliver C. Todd
695("Todd"). Handwritten information on the certificate in dicated
705that the registered owner had sold the automobile to AAA
715National Auto Sales, who in turn had sold the automobile to
726Santacroce. Santacroce also had with her at that time an
736affidavit signed by Todd that authorized Santacroce to retrieve
745the subje ct automobile from a towing company, as well as a
757document from Festa Towing Service, Inc, itemizing towing and
766storage charges.
7684. During the early morning hours of January 29, 2002,
778Respondent and Santacroce both signed a receipt document
786numbered 1112 2. Section 4 of that document describes the
796collateral or collateral documents as consisting of a promissory
805note and "Fl car title #50460657 or weekly payment of $250.00."
8165. Santacroce never made any payments towards
823collateralization of the subject b ail bond. Moreover,
831Santacroce never delivered to Respondent the original of the
840certificate of title described above.
8456. Less than two weeks later, Moyer was arrested and
855jailed on other criminal charges. Through another bail bond
864company, Moyer poste d bail on the second arrest. Santacroce no
875longer wished to have any liability on the bail bond issued on
887January 29, 2002. Accordingly, she asked Respondent to
"895surrender" the bond and have Moyer returned to jail.
9047. Moyer failed to appear for his c ourt appearance that
915was guaranteed by the bail bond obtained by Santacroce. A bond
926forfeiture order was issued on February 12, 2002. Eventually,
935Moyer appeared, the forfeiture order was set aside, and the
945surety was discharged. Respondent's employer in curred expenses
953in the amount of $50.00 to have the forfeiture order set aside.
9658. At some point after the surety was discharged,
974Santacroce asked Respondent to return what Santacroce described
982as the certificate of title she had given to Respondent.
992Re spondent could not return a certificate of title to
1002Santacroce, because Respondent never received a certificate of
1010title from Santacroce. Respondent never returned the photocopy
1018of the certificate of title to Santacroce. That photocopy was
1028still in Respo ndent's possession as of the day of the final
1040hearing.
1041CONCLUSIONS OF LAW
10449. The Division of Administrative Hearings has
1051jurisdiction over the parties to and the subject matter of this
1062case. §§ 120.569 and 120.57(1), Fla. Stat.
106910. In a case of this n ature, Petitioner bears the burden
1081of proving that the licensee engaged in the conduct, and thereby
1092committed the violations, alleged in the charging instrument.
1100Proof greater than a mere preponderance of the evidence must be
1111presented by Petitioner to me et its burden of proof. Clear and
1123convincing evidence of the licensee's guilt is required. See
1132Department of Banking and Finance, Division of Securities and
1141Investor Protection v. Osborne Stern and Company , 670 So. 2d
1151932, 935 (Fla. 1996); Ferris v. Turl ington , 510 So. 2d 292, 294
1164(Fla. 1987); Pou v. Department of Insurance and Treasurer , 707
1174So. 2d 941 (Fla. 3d DCA 1998); and Section 120.57(1)(j),
1184Florida Statutes ("Findings of fact shall be based upon a
1195preponderance of the evidence, except in penal or licensure
1204disciplinary proceedings or except as otherwise provided by
1212statute. . . .").
121711. Clear and convincing evidence "requires more proof
1225than a 'preponderance of the evidence' but less than 'beyond and
1236to the exclusion of a reasonable doubt.'" In re Graziano , 696
1247So. 2d 744, 753 (Fla. 1997). It is an "intermediate standard."
1258Id. For proof to be considered "'clear and convincing' . . .
1270the evidence must be found to be credible; the facts to which
1282the witnesses testify must be distinctly remembere d; the
1291testimony must be precise and explicit and the witnesses must be
1302lacking in confusion as to the facts in issue. The evidence
1313must be of such weight that it produces in the mind of the trier
1327of fact a firm belief or conviction, without hesitancy, as to
1338the truth of the allegations sought to be established." In re
1349Davey , 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval,
1360from Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA
13721983). "Although this standard of proof may be met where the
1383evi dence is in conflict, . . . it seems to preclude evidence
1396that is ambiguous." Westinghouse Electric Corporation, Inc. v.
1404Shuler Bros., Inc. , 590 So. 2d 986, 989 (Fla. 1st DCA 1991).
141612. In determining whether Petitioner has met its burden
1425of proof, it is necessary to evaluate Petitioner's evidentiary
1434presentation in light of the specific factual allegations made
1443in the charging instrument. Due process prohibits an agency
1452from taking disciplinary action against a licensee based upon
1461conduct not specifical ly alleged in the charging instrument.
1470See Hamilton v. Department of Business and Professional
1478Regulation , 764 So. 2d 778 (Fla. 1st DCA 2000); Lusskin v.
1489Agency for Health Care Administration , 731 So. 2d 67, 69 (Fla.
15004th DCA 1999); and Cottrill v. Departm ent of Insurance , 685 So.
15122d 1371, 1372 (Fla. 1st DCA 1996).
151913. Furthermore, "the conduct proved must legally fall
1527within the statute or rule claimed [in the charging instrument]
1537to have been violated." Delk v. Department of Professional
1546Regulation , 59 5 So. 2d 966, 967 (Fla. 5th DCA 1992). In
1558deciding whether "the statute or rule claimed [in the charging
1568instrument] to have been violated" was in fact violated, as
1578alleged by Petitioner, if there is any reasonable doubt, that
1588doubt must be resolved in fa vor of the licensee. See Whitaker
1600v. Department of Insurance and Treasurer , 680 So. 2d 528, 531
1611(Fla. 1st DCA 1996); Elmariah v. Department of Professional
1620Regulation, Board of Medicine , 574 So. 2d 164, 165 (Fla. 1st DCA
16321990); and Lester v. Department of Professional and Occupational
1641Regulations , 348 So. 2d 923, 925 (Fla. 1st DCA 1977).
165114. The Administrative Complaint in this case seeks to
1660take disciplinary action against Respondent on the basis of
1669allegations that Respondent has violated eight or more statutory
1678provisions by failing to return to Santacroce "the collateral
1687car title #50460657" which he allegedly received from Santacroce
1696as collateral security for a bail bond Respondent wrote for
1706Moyer. The sine qua non of a duty to return "car title
1718#5 0460657" is proof that Respondent received "car title
1727#50460657." There is no clear and convincing evidence that
1736Respondent ever received "car title #50460657." Rather, the
1744evidence establishes that Santacroce gave Respondent a photocopy
1752of car title #50 460657 and an unfulfilled promise to give him
1764either the original title certificate or weekly cash payments of
1774$250.00. The photocopy of the subject certificate of title is a
1785piece of paper with no value, much like a photocopy of a hundred
1798dollar bill. B ecause the photocopy had no value, it did not
1810constitute collateral security. And because there was nothing
1818of value given to Respondent as collateral security, there was
1828nothing Respondent was required to return when the bail bond was
1839discharged.
1840RECOMME NDATION
1842On the basis of all of the foregoing, it is RECOMMENDED
1853that the Administrative Complaint in this case be dismissed
1862because there is no clear and convincing evidence that
1871Respondent received "car title #50460657" or anything else of
1880value as coll ateral security for the subject bail bond.
1890DONE AND ENTERED this 7th day of May, 2004, in Tallahassee,
1901Leon County, Florida.
1904S
1905MICHAEL M. PARRISH
1908Administrative Law Judge
1911Division of Administrative Hearings
1915The DeSoto Building
19181230 Apalachee Parkway
1921Tall ahassee, Florida 32399 - 3060
1927(850) 488 - 9675 SUNCOM 278 - 9675
1935Fax Filing (850) 921 - 6847
1941www.doah.state.fl.us
1942Filed with the Clerk of the
1948Division of Administrative Hearings
1952this 7th day of May, 2004.
1958COPIES FURNISHED :
1961Dickson E. Kesler, Esquire
1965Departm ent of Financial Services
1970Suite N - 321
1974401 Northwest Second Avenue
1978Miami, Florida 33128
1981Hernan Hernandez, Esquire
19841431 Ponce de Leon Boulevard
1989Coral Gables, Florida 33134
1993Honorable Tom Gallagher
1996Chief Financial Officer
1999Department of Financial Services
2003The Capitol, Plaza Level 11
2008Tallahassee, Florida 32399 - 0300
2013Mark Casteel, General Counsel
2017Department of Financial Services
2021The Capitol, Plaza Level 11
2026Tallahassee, Florida 32399 - 0300
2031NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
2037All parties have the right to submit written exceptions within
204715 days from the date of this Recommended Order. Any exceptions
2058to this Recommended Order should be filed with the agency that
2069will issue the Final Order in this case.
![](/images/view_pdf.png)
- Date
- Proceedings
-
PDF:
- Date: 05/07/2004
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
-
PDF:
- Date: 05/06/2004
- Proceedings: Motion to Strike filing of Respondent`s Proposed Order as Untimely filed (filed by Petitioner via facsimile).
- Date: 04/05/2004
- Proceedings: Transcript of Proceedings filed.
- Date: 03/03/2004
- Proceedings: CASE STATUS: Hearing Held.
-
PDF:
- Date: 03/02/2004
- Proceedings: Letter to Judge Parrish from H. Hernandez regarding the rescheduled starting time of hearing (filed via facsimile).
-
PDF:
- Date: 02/26/2004
- Proceedings: Letter to D. Kesler from H. Hernandez regarding attached Notice of Appearance (filed via facsimile).
-
PDF:
- Date: 02/26/2004
- Proceedings: Notice of Appearance (filed by H. Hernandez, Esquire, via facsimile).
-
PDF:
- Date: 02/17/2004
- Proceedings: Order Concerning Respondent`s Letter (it is Respondent`s responsibility to secure the attendance of any witness he wishes to call at the final hearing, and all his evidence should be retained by him until the final hearing).
-
PDF:
- Date: 02/13/2004
- Proceedings: Letter to Judge Sartin from J. Joseph regarding enclosed documents as exhibits (filed via facsimile).
-
PDF:
- Date: 01/21/2004
- Proceedings: Notice of Hearing (hearing set for March 3, 2004; 9:30 a.m.; Miami, FL).
-
PDF:
- Date: 01/12/2004
- Proceedings: Letter to Judge Sartin from D. Kesler (response to Initial Order) filed.
Case Information
- Judge:
- MICHAEL M. PARRISH
- Date Filed:
- 01/02/2004
- Date Assignment:
- 02/27/2004
- Last Docket Entry:
- 06/07/2004
- Location:
- Miami, Florida
- District:
- Southern
- Agency:
- ADOPTED IN TOTO
- Suffix:
- PL
Counsels
-
Hernan Hernandez, Esquire
Address of Record -
Dickson E Kesler, Esquire
Address of Record