STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE AND ) TREASURER, )

)

Petitioner, )

)

vs. ) Case No. 98-3776

)

STEPHEN PETER ALICINO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this case on December 7, 1998, in Tallahassee, Florida, before Michael

M. Parrish, an Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Patrick Creehan, Esquire

Department of Insurance and Treasurer Division of Legal Services

200 East Gaines Street Tallahassee, Florida 32399-0333

For Respondent: No appearance for Respondent.

STATEMENT OF THE ISSUES

This is a license discipline case in which the Petitioner seeks to take disciplinary action against a licensee on the basis of alleged violations set forth in a one-count Administrative Complaint. It is alleged that the Respondent has violated numerous specified provisions of Chapters 626 and 631, Florida Statutes, by failing to satisfy a judgment entered against him in

favor of the Department in its capacity as receiver for an insurance company.

PRELIMINARY STATEMENT

At the duly noticed time and place, the final hearing in this case was conducted on December 7, 1998. There was no appearance by or on behalf of the Respondent. The Petitioner appeared by counsel and offered evidence and argument in support of its position. The Petitioner's evidence consisted of a composite exhibit comprised of several documents. The Petitioner did not call any witnesses.

At the conclusion of the hearing, all parties were allowed

10 days within which to file proposed recommended orders. The Petitioner filed a timely Proposed Recommended Order. The Respondent has not filed any post-hearing documents. A transcript of the hearing has not been filed.

FINDINGS OF FACT

1. At all times material to this case, the Respondent, Steven Peter Alicino, has been licensed to engage in the insurance business in the State of Florida.

2. On or about December 21, 1993, a Consent Order was entered by the Circuit Court of the Second Judicial Circuit, in and for Leon County, Florida, appointing the Florida Department of Insurance as Receiver for General Insurance Company.

3. On or about August 12, 1996, a Final Judgment was entered by the Circuit Court of the Second Judicial Circuit, in

   and for Leon County, Florida, in the amount of $2,377.40 in favor of the Department of Insurance as Receiver for General Insurance Company, and against Stephen Peter Alicino and Budget Insurance, jointly and severally. The judgment was for unearned insurance commissions retained by the Respondent and owed to General Insurance Company.

4. On or about May 12, 1997, the Department of Insurance sent a certified letter to the Respondent demanding payment of the judgment described above. The Respondent received the letter on or about May 15, 1997. The judgment remains outstanding and unpaid.

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding.

6. The Respondent's failure to pay unearned commissions and his failure to pay the outstanding judgment constitute violations of the following statutory provisions: Sections 626.561(1), 626.611(4), 626.611(7), 626.611(10), 626.611(13), 626.621.(2), 626.621(4), 626.621(6), and 631.115, Florida Statutes. Attention is specifically directed to Section 631.115, Florida Statutes, which reads as follows:

   Premiums and unearned commissions which have been collected on behalf of an insurer by an agent, solicitor, agency, or other entity or person constitute an asset of the insurer for which the agent, solicitor, agency, or other entity or person has a duty to account to the receiver and to pay over amounts as may be due. The duty to account

   to the receiver shall encompass all persons or entities involved in the handling and transmittal of premium funds. An accounting shall be provided to the receiver within 20 days after receipt of a written demand for an accounting. If there is a dispute regarding the accounting, the court shall hear and decide the matter upon petition of the receiver. Compliance with this section and payment of sums determined to be owed by the court within 30 days of judgment, or within other payment terms approved by the court, shall constitute requirements for continued licensure of a person holding a license under the Florida Insurance Code, and failure to comply with this section shall be sufficient grounds for the license revocation. (Emphasis added.)

7. In view of the underscored language of Section 631.115, Florida Statutes, the appropriate penalty is revocation of the Respondent's license.

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued revoking the Respondent's license.

DONE AND ENTERED this 22nd day of December, 1998, in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

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 22nd day of December, 1998.

COPIES FURNISHED:

Patrick Creehan, Esquire Department of Insurance Division of Legal Services

200 East Gaines Street Tallahassee, Florida 32399-0333

Stephen Peter Alicino 634 Castilla Lane

Boynton Beach, Florida 33435

Honorable Bill Nelson State Treasurer and

Insurance Commissioner The Capitol, Plaza Level 11

Tallahassee, Florida 32399-0300

Daniel Y. Sumner, General Counsel Department of Insurance and Treasurer The Capitol, Lower Level 26 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.

Docket for Case No: 98-003776

Orders for Case No: 98-003776