04-000004PL Department Of Financial Services vs. Jean-Rene Joseph Status: Closed Recommended Order on Friday, May 7, 2004.

Summary: The Administrative Complaint was based on the illegal failure to return collteral. However, there was no proof of the delivery of the collateral. Proof of delivery is sine qua non to proof of the failure of return.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF FINANCIAL )

SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 04 - 0004PL

)

JEAN - RENE JOSEPH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant t o notice, a final hearing was held in this case

on March 3, 2004, in Miami, Florida, before Administrative Law

Judge Michael M. Parrish of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Dickson E. Kesler, Esquire

Department of Financial Services

401 Northwest Second Avenue, Suite N - 321

Miami, Florida 33128

For Respondent: Hernan Hernandez, Esquire

1431 Ponce de Leon Boulevard

Coral Gables, Florida 33134

STATEMENT OF THE ISSUES

Thi s is a license discipline case in which Petitioner seeks

to take disciplinary action against Respondent on the basis of

allegations of misconduct set forth in an Administrative

Complaint dated August 13, 2003.

PRELIMINARY STATEMENT

At the final hearing o n March 3, 2004, Petitioner presented

the testimony of two witnesses; Ms. Gina Michelle Santacroce

("Santacroce"), a customer who obtained a bail bond on behalf of

a friend; and Mr. William Darryl May ("May"), an investigator in

Petitioner's Bureau of Inve stigation. Petitioner also offered

two exhibits, both of which were received in evidence.

Respondent testified in his own behalf and also presented

the testimony of another witness: Mr. Benjamin Elisio Hernandez,

Jr. ("Hernandez"), a bail bond agent who worked on resolving a

forfeiture of the subject bail bond. Respondent also offered

one exhibit, which was received in evidence.

At the conclusion of the hearing the parties were allowed

ten days from the filing of the transcript within which to file

thei r respective proposed recommended orders. The transcript of

the final hearing was filed with the Division of Administrative

Hearings on April 5, 2004. On April 15, 2004, Petitioner filed

its Proposed Recommended Order containing proposed findings of

fact and conclusions of law.

On May 6, 2004, a full twenty - one days past the deadline,

and without benefit of either a motion seeking an extension of

time or an explanation or excuse showing good cause for his

tardiness , Respondent's counsel filed a document entitled

Respondent's Proposed Order. This unexplained tardiness in

document submission reflects an indifference to or disregard for

clear instructions designed to implement the fair and orderly

disposition of administrative litigation. The undersigned i s

not disposed to excuse, disregard, or reward such unexplained

conduct. Accordingly, Respondent's late - filed document entitled

Respondent's Proposed Order, is being treated as an unauthorized

document and is included in the record as an unauthorized

docu ment, the substance of which has not been considered by the

undersigned.

FINDINGS OF FACT

1. At all times material to this case, Respondent Jean -

Rene Joseph has been licensed in the State of Florida as a bail

bond agent. At all times material to this c ase, Respondent

worked as a bail bond agent with a bail bond company named

America's Best Bail Bonds, Inc.

2. At approximately 2:30 or 3:00 a.m. on the morning of

January 29, 2002, Santacroce contacted Respondent for the

purpose of arranging bail for a f riend of hers named John

Raymond Moyer ("Moyer"). Moyer needed a bond in the amount of

$1,500.00. Respondent agreed to provide, and did provide, the

requested bail bond for a fee of $150.00. On the morning of

January 29, 2002, Santacroce paid $150.00 ca sh for the bail bond

fee. Santacroce also agreed to furnish collateral for the bail

bond issued on behalf of Moyer. In this regard, Santacroce

agreed that she would either deliver the title to a specified

automobile as collateral, or she would make payme nts of $250.00

per week until the bail bond on behalf of Moyer was fully

collateralized.

3. In the early morning hours of January 29, 2002,

Santacroce did not have an original certificate of title to an

automobile with her. Instead, she gave Respondent a color

photocopy of title number 50460657, which was a certificate of

title to an automobile. The certificate showed title to a 1986

Chevrolet in the name of a registered owner named Oliver C. Todd

("Todd"). Handwritten information on the certificate in dicated

that the registered owner had sold the automobile to AAA

National Auto Sales, who in turn had sold the automobile to

Santacroce. Santacroce also had with her at that time an

affidavit signed by Todd that authorized Santacroce to retrieve

the subje ct automobile from a towing company, as well as a

document from Festa Towing Service, Inc, itemizing towing and

storage charges.

4. During the early morning hours of January 29, 2002,

Respondent and Santacroce both signed a receipt document

numbered 1112 2. Section 4 of that document describes the

collateral or collateral documents as consisting of a promissory

note and "Fl car title #50460657 or weekly payment of $250.00."

5. Santacroce never made any payments towards

collateralization of the subject b ail bond. Moreover,

Santacroce never delivered to Respondent the original of the

certificate of title described above.

6. Less than two weeks later, Moyer was arrested and

jailed on other criminal charges. Through another bail bond

company, Moyer poste d bail on the second arrest. Santacroce no

longer wished to have any liability on the bail bond issued on

January 29, 2002. Accordingly, she asked Respondent to

"surrender" the bond and have Moyer returned to jail.

7. Moyer failed to appear for his c ourt appearance that

was guaranteed by the bail bond obtained by Santacroce. A bond

forfeiture order was issued on February 12, 2002. Eventually,

Moyer appeared, the forfeiture order was set aside, and the

surety was discharged. Respondent's employer in curred expenses

in the amount of $50.00 to have the forfeiture order set aside.

8. At some point after the surety was discharged,

Santacroce asked Respondent to return what Santacroce described

as the certificate of title she had given to Respondent.

Re spondent could not return a certificate of title to

Santacroce, because Respondent never received a certificate of

title from Santacroce. Respondent never returned the photocopy

of the certificate of title to Santacroce. That photocopy was

still in Respo ndent's possession as of the day of the final

hearing.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

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

10. In a case of this n ature, Petitioner bears the burden

of proving that the licensee engaged in the conduct, and thereby

committed the violations, alleged in the charging instrument.

Proof greater than a mere preponderance of the evidence must be

presented by Petitioner to me et 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. Turl ington , 510 So. 2d 292, 294

(Fla. 1987); Pou v. Department of Insurance and Treasurer , 707

So. 2d 941 (Fla. 3d DCA 1998); and Section 120.57(1)(j),

Florida Statutes ("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. . . .").

11. Clear and convincing evidence "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 remembere d; the

testimony must be precise and explicit and the witnesses must be

lacking in confusion as to the facts in issue. The 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 approval,

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

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

evi dence 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).

12. In determining whether Petitioner has met its burden

of proof, it is necessary to evaluate Petitioner's evidentiary

presentation in light of the specific factual allegations made

in the charging instrument. Due process prohibits an agency

from taking disciplinary action against a licensee based upon

conduct not specifical ly alleged in the charging instrument.

See 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); and Cottrill v. Departm ent of Insurance , 685 So.

2d 1371, 1372 (Fla. 1st DCA 1996).

13. Furthermore, "the conduct proved must legally fall

within the statute or rule claimed [in the charging instrument]

to have been violated." Delk v. Department of Professional

Regulation , 59 5 So. 2d 966, 967 (Fla. 5th DCA 1992). In

deciding whether "the statute or rule claimed [in the charging

instrument] to have been violated" was in fact violated, as

alleged by Petitioner, if there is any reasonable doubt, that

doubt must be resolved in fa vor of the licensee. See Whitaker

v. Department of Insurance and Treasurer , 680 So. 2d 528, 531

(Fla. 1st DCA 1996); Elmariah v. Department of Professional

Regulation, Board of Medicine , 574 So. 2d 164, 165 (Fla. 1st DCA

1990); and Lester v. Department of Professional and Occupational

Regulations , 348 So. 2d 923, 925 (Fla. 1st DCA 1977).

14. The Administrative Complaint in this case seeks to

take disciplinary action against Respondent on the basis of

allegations that Respondent has violated eight or more statutory

provisions by failing to return to Santacroce "the collateral

car title #50460657" which he allegedly received from Santacroce

as collateral security for a bail bond Respondent wrote for

Moyer. The sine qua non of a duty to return "car title

#5 0460657" is proof that Respondent received "car title

#50460657." There is no clear and convincing evidence that

Respondent ever received "car title #50460657." Rather, the

evidence establishes that Santacroce gave Respondent a photocopy

of car title #50 460657 and an unfulfilled promise to give him

either the original title certificate or weekly cash payments of

$250.00. The photocopy of the subject certificate of title is a

piece of paper with no value, much like a photocopy of a hundred

dollar bill. B ecause the photocopy had no value, it did not

constitute collateral security. And because there was nothing

of value given to Respondent as collateral security, there was

nothing Respondent was required to return when the bail bond was

discharged.

RECOMME NDATION

On the basis of all of the foregoing, it is RECOMMENDED

that the Administrative Complaint in this case be dismissed

because there is no clear and convincing evidence that

Respondent received "car title #50460657" or anything else of

value as coll ateral security for the subject bail bond.

DONE AND ENTERED this 7th day of May, 2004, in Tallahassee,

Leon County, Florida.

S

MICHAEL M. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tall ahassee, 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 7th day of May, 2004.

COPIES FURNISHED :

Dickson E. Kesler, Esquire

Departm ent of Financial Services

Suite N - 321

401 Northwest Second Avenue

Miami, Florida 33128

Hernan Hernandez, Esquire

1431 Ponce de Leon Boulevard

Coral Gables, Florida 33134

Honorable Tom Gallagher

Chief Financial Officer

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399 - 0300

Mark Casteel, General Counsel

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399 - 0300

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written 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.