vs. ) Case No. 02-1232PL
Respondent. )
Pursuant to notice, a formal hearing was held in this case on June 5, 2002, by video teleconference at sites located in Miami and Tallahassee, Florida, before Errol H. Powell, a designated Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: David J. Busch, Esquire
Whether Respondent committed the offense set forth in the Amended Administrative Complaint and, if so, what action should be taken.
On March 8, 2002, the Department of Insurance (Department) filed a five-count Amended Administrative Complaint against Dayami Quetgles (Quetgles). The Department charged Quetgles with the following violations in Counts I and II: violating Subsection 627.848(1)(e), Florida Statutes, by failing, within 15 days of receipt of notification from the premium finance company, to return unearned premium including any unearned commission to the insured or with the approval of the insured to apply such amount to the purchase of other insurance products regulated by the Department; violating Subsection 626.561(1), Florida Statutes, by failing, in the applicable regular course of business, to account for and pay trust funds to the insurer, insured, or other person entitled thereto: wherein, all premiums, return premiums, or other funds belonging to insurers or others received by an agent, solicitor, or adjuster in transactions under her license shall be trust funds so received by the licensee in a fiduciary capacity; violating Subsection 626.561(3), Florida Statutes, by either temporarily or permanently diverting or appropriating trust funds or any portion thereof to her own use or depriving the other person of a benefit therefrom when she was not lawfully entitled thereto; violating Subsection 626.611(7), Florida Statutes, by a demonstrated lack of fitness or trustworthiness to engage in the business of insurance1; violating Subsection 626.611(8),
Florida Statutes, by a demonstrated lack of reasonably adequate knowledge and technical competence to engage in the transactions authorized by the license or permit2; violating Subsection 626.611(9), Florida Statutes, by fraudulent or dishonest practices in the conduct of business under the license or permit; violating Subsection 626.611(10), Florida Statutes, through the misappropriation, conversion, or unlawful withholding of moneys belonging to insurers or insureds or beneficiaries or to others and received in conduct of business under the license; violating Subsection 626.621(2), Florida Statutes, through the violation of any provision of the Florida Insurance Code (Code) or of any other law applicable to the business or insurance in the course of dealing under the license or appointment; and violating Subsection 626.621(4), Florida Statutes, through the failure or refusal, upon demand, to pay over to any insurer that she represents or has represented any money coming into her hands belonging to the insurer. Additionally in Count II, Quetgles was charged with violating Subsections 626.0428(2) and (3), Florida Statutes, through an employee of hers or the agency binding insurance coverage when the employee is not licensed and appointed as a general lines agent or customer representative, and through an employee of hers or the agency initiating contact with a person for the purpose of soliciting insurance when the
employee is not licensed and appointed as a general lines agent, customer representative, or solicitor.
The Department charged Quetgles with the following violations in Count III: violating Subsection 626.9541(o)2, Florida Statutes, by knowingly collecting as a premium or charge for insurance any sum in excess of or less than the premium or charge applicable to such insurance, in accordance with the applicable classifications and rates as filed with and approved by the Department, and as specified in the policy, or, in cases when classifications, premium, or rates are not required by the Code to be so filed and approved, premiums and charges in excess of or less than those specified in the policy and as fixed by the insurer; violating Subsection 626.932(6), Florida Statutes, although, no violation is indicated in what is stated in the Amended Administrative Complaint; violating Subsection 626.611(5), Florida Statutes, through the willful misrepresentation of any insurance policy or annuity contract or willful deception with regard to any such policy or contract, done either in person or by any form of dissemination of information or advertising; violating Subsection 626.611(7), Florida Statutes, by a demonstrated lack of fitness or trustworthiness to engage in the business of insurance; violating Subsection 626.611(9), Florida Statutes, by fraudulent or dishonest practices in the conduct of business under the license
or permit; violating Subsection 626.611(13), Florida Statutes, through the willful failure to comply with, or willful violation of any proper order or rule of the Department or willful violation of any provision of the Code; violating Subsection 626.621(2), Florida Statutes, through the violation of any provision of the Code or of any other law applicable to the business of insurance in the course of dealing under the license or permit; violating Subsection 626.621(6), Florida Statutes, by engaging, in the conduct of business under the license or permit, in unfair methods of competition or in unfair or deceptive acts or practices, as prohibited under Part X of Chapter 626, or having otherwise shown herself to be a source of injury or loss to the public; and violating Subsection 626.9521, Florida Statutes, by engaging in this state in any trade practice which is defined in Part X as, or determined pursuant to Section 626.951, Florida Statutes, or Section 626.9561, Florida Statutes, to be, an unfair method of competition or an unfair or deceptive act or practice involving the business of insurance.
In Count IV, the Department charged Quetgles with the same violations as in Count II.
In Count V, the Department charged Quetgles with the same violations as in Count I.3
Quetgles disputed the allegations of fact in the Amended Administrative Complaint and requested a hearing.
This matter was referred to the Division of Administrative Hearings on March 8, 2002.
At the hearing, the Department presented the testimony of seven witnesses and entered 56 exhibits (Petitioner's Exhibits numbered 1-5, 11-16, 18-21, 23-28, 31, 33, 35, 37-43, 48, 50,
52-61, 63, 65-74, 76, and 79) into evidence. Quetgles testified in her own behalf and entered no exhibits into evidence.
A transcript of the hearing was ordered. At the parties' request, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. The Transcript, consisting of one volume, was filed on July 2, 2002. Only the Department filed a post-hearing submission, which was considered in the preparation of this Recommended Order.
At all times material hereto, Quetgles was licensed by the Department as a general lines property and casualty insurance agent and Florida Residential Property and Casualty Joint Underwriters Association (JUA) agent, being appointed by several insurance companies.
The JUA appoints insurance agents and gives the agents the authority to "bind" insurance coverage. To "bind" indicates that the agent has obligated the JUA to provide the particular insurance coverage applied for and the insured leaves the agent's
office under the impression that he or she has the insurance for which application has been made.
An agent who is not appointed by the JUA cannot bind coverage.
At all times material hereto, Quetgles was the president and sole director of AAAAA Sun Tropic Insurance Service, Inc. and Sun Tropic Insurance Service, Inc. (jointly referred to as Sun Tropic). Quetgles' agency is, therefore, considered to be Sun Tropic.
At all times material hereto, Quetgles was shown as the sole signatory on Sun Tropic bank accounts at Washington Mutual Bank and Great Western Bank.
Unearned premium is that part of the premium paid during days when no insurance is in force on the risk covered.
Unearned commission is the commission paid to an agent that is due to be returned to the insured following a cancellation of coverage.
Count I
Vivian and Ernesto Rodriguez contacted Quetgles' agency, Sun Tropic, for homeowner's insurance through the JUA. Sun Tropic's employee, Yamilet Beltran, assisted them. Ms. Beltran was a licensed property and casualty agent, but was not an appointed JUA agent.
An insurance application was signed by Mr. Rodriguez and Ms. Beltran on September 5, 1997. Ms. Beltran signed the application at Quetgles' direction.
The Rodriguez's application was forwarded to Apex Managers, Inc. (Apex), a servicing carrier for the JUA, and received by Apex on October 10, 1997. The application was missing a binder effective date and the signature of an authorized JUA agent and, therefore, could not be processed. However, the application indicated that coverage was bound and that a total financed payment of $1,722.00 was received for the annual premium.
A premium finance agreement was executed. The premium financing company was Grand Park Premium Finance, Inc. (Grand Park). The premium finance agreement indicated, among other things, a total premium of $1,722.00, a down payment of $521.00, and eight scheduled payments of $165.25 to Grand Park, with an included finance charge.
A second application, signed by Quetgles, was submitted to Apex. Since this application was signed by Quetgles, an appointed JUA agent, it bound coverage. However, this application was missing pertinent and necessary information and was, therefore, rejected by Apex. Furthermore, since coverage was bound, Apex was required to cancel the policy, which was effective December 18, 1997, at 12:01 a.m.
Apex returned unearned premium to Grand Park in the amount of $1,169.00.
When a premium or part thereof is returned to the premium financing company, the standard operating procedure is for the premium financing company to return the premium amount to the insured via the JUA agent. Consequently, Grand Park would return the $1,169.00 to Sun Tropics for Sun Tropics to return the monies to the Rodriguezes.
Grand Park credited the unearned premium to the account of Sun Tropics' agent, Quetgles. However, Quetgles never forwarded the monies to the insured, the Rodriguezes. Quetgles willfully kept the unearned premium.
Typically, a premium financing company does not refund monies to the insured. However, at the behest of the Department, Grand Park returned the premium to Mr. Rodriguez in the amount of
$1,155.06. Before Mr. Rodriguez cashed the check, Grand Park went out of business and closed its bank accounts. The former owner of the defunct Grand Park wrote a personal check to
Mr. Rodriguez in the amount of $1,155.06.
As a result of the situation involving the Rodriguezes, the JUA terminated Quetgles' appointment.
Count II
Mr. and Mrs. Sergio Bellow contacted Sun Tropic for homeowner's insurance through the JUA. They completed a
homeowner's insurance application on November 9, 1998. The producing agent was Ms. Beltran. Mrs. Bellow wrote a check to Sun Tropic for the entire annual premium in the amount of
$365.00.
One month later, the JUA advised the Bellows that the insurance coverage that they had obtained from Sun Tropic was "null and void" because the producing agent, Ms. Beltran, for Sun Tropic was not licensed by the JUA. Ms. Beltran was not authorized by the JUA to write insurance coverage for it.
The Bellows completed another application for homeowner's insurance with Sun Tropic on or about January 28, 1999. The premium was $963.00. According to Sun Tropic,
Mr. Bellow owed an additional $767.00.
Mr. Bellow refused to pay the additional monies.
Furthermore, Mr. Bellow demanded a refund of the earlier premium that he had paid since no insurance coverage was provided. Only
$169.00 was refunded to the Bellows.4
The Bellows eventually purchased insurance through another agency.
Count III
In February 1998, Fanny Hurtado and her husband, Fabio Hurtado, purchased a home, using a mortgage. Property insurance was required by the mortgage.
On February 26, 1998, the Hurtados contacted Sun Tropic for property insurance and met with a woman named Christina in Quetgles' presence. The woman named Christina is deemed to be an employee of Quetgles. The premium for the property insurance was
$1,083.00, of which $260.00 was for flood insurance and $823.00 was for the dwelling. The premium was added to the Hurtados' closing costs.
Quetgles presented Mr. Hurtado with a copy of a purported policy issued by Fortune Insurance Company.5
The Hurtados believed that they had insurance coverage on their home.
One year later, the Hurtados returned to Sun Tropic to renew their purported policy. The premium for the renewal was
$1,248.00.
Quetgles failed to place the risk with an insurance company. The Hurtados contacted Fortune Insurance Company and were informed that they did not have coverage with it.
The Hurtados demanded the return of all of their premium payments. Quetgles did not comply with their demand. However, eventually, the Hurtados received a check in the amount of $1,083.00 from the title company but only after they complained to the Department.
Quetgles blamed the insurance and mortgage companies for the lack of insurance coverage on the Hurtados' home.
Count IV
In June 1999, Eddy Sang purchased a seafood restaurant, Joe's Seafood, which was incorporated under the name of E.& S. of Miami, Inc. (E&S). Mr. Sang decided to maintain the existing coverage for the restaurant with the same insurance agency, Sun Tropics, used by the previous owner, with the premium financed through the same premium finance company, Amgro, Inc. (Amgro).
In March 2000, Quetgles notified Mr. Sang that the time had come to renew the restaurant's property and casualty insurance. Quetgles presented a proposal. Mr. Sang decided to accept the proposal, completed an application for coverage, and decided to finance the premium. Mr. Sang paid the down payment in two checks. The declaration page of the insurance coverage indicated that the restaurant was insured by Lloyd's of London from March 2000 through March 30, 2001.
Mr. Sang commenced making periodic finance payments to Amgro.
In or around August 2000, Quetgles notified Mr. Sang that the cost of the insurance policy was increasing and requested an additional payment of $4,551.00. Mr. Sang made the additional payment.
In or around August 2000, Sun Tropic received a cancellation notice from Firestone Agency of Florida (Firestone), notifying Ms. Beltran that the coverage on Mr. Sang's restaurant
was being cancelled because the policy was obtained by "material misstatement." According to the notice, the material misstatement was that the premium basis was submitted at
$130,000.00, when the actual basis was $720,000.00, due to the facility being a restaurant and a market, which was not revealed at the outset. The notice also called for a reinstatement of the policy for an additional premium of $5,129.00, plus $271.84 in taxes.
Mr. Sang never received a copy of the cancellation notice or notification from Sun Tropic regarding the notice. Moreover, he never dealt with Ms. Beltran regarding coverage even though her name appears on the insurance application as the producer's agent.
In October 2000, Mr. Sang's business suffered a loss, totaling $175,000.00, as a result of storm damage and a loss of business. Quetgles assured him that he was covered.
However, Mr. Sang later discovered that he had no coverage. He did not receive any money from an insurance company and had to cover the entire loss out-of-pocket.
Quetgles blamed the insurance and finance companies for the failure to pay Mr. Sang's claim. Additionally, she filed a complaint with the Department regarding Mr. Sang's loss.
By letter dated September 28, 2000, Firestone notified the Department that it had received neither payment nor
confirmation as to the operations of Mr. Sang's restaurant and that, therefore, the policy was cancelled on September 19, 2000.
By letter dated March 9, 2001, Amgro advised the Department that Sun Tropic admitted that the insured had paid a down payment of $4,051.00, but that Amgro did not receive the down payment. Moreover, Amgro advised the Department that, if Sun Tropic had timely forwarded the down payment to Firestone, it (Amgro) strongly believes that the policy would not have been cancelled.
A finance premium agreement with Amgro, dated March 30, 2000, contained the signature of Mr. Sang and Ms. Beltran, as the producer. Mr. Sang had no dealings with Ms. Beltran.
On another finance premium agreement with Amgro for the additional premium, dated September 1, 2000, Ms. Beltran's signature also appears as the producer. Mr. Sang had no dealings with Ms. Beltran. Also, he had never seen the second finance agreement and was unable to verify that the signature on the second finance agreement was his.
Ms. Beltran has not worked for Sun Tropic since 1997.
She has not signed any documents at or for Sun Tropic since leaving its employ. Ms. Beltran has not authorized anyone at Sun Tropic to sign her name to any documents.
Count V
In March 2001, Reginald Rivera sought homeowner's insurance coverage on his home from Sun Tropic. A premium of
$1,729.00 was quoted. No discussion of financing the premium occurred. Mr. Rivera paid the premium in full by check, which was deposited into the account of Sun Tropic.
In October 2001, while searching for his insurance policy, Mr. Rivera discovered that he had never received a policy, only a binder.
Mr. Rivera contacted Sun Tropic. He was given a policy number over the telephone by Sun Tropic. Mr. Rivera became suspicious and decided to personally visit Sun Tropic and obtain the policy. Quetgles gave him a policy which contained a policy number that was not the same number on his binder.
When Mr. Rivera returned home, he contacted the company, Safeco, with which he purportedly had coverage. Safeco informed Mr. Safeco that had no coverage with it.
Mr. Rivera confronted Quetgles and was informed that Sun Tropic's personnel had attempted to contact him, regarding his coverage, but were unsuccessful.
Having no coverage, Mr. Rivera attempted to obtain coverage but was unable to do so because a hurricane was on the horizon. He suffered no loss from the hurricane.
Mr. Rivera obtained a refund from Sun Tropic for the premium payment of $1,729.00.
A document, entitled Evidence of Property Insurance, and dated March 29, 2000, indicated the insured as Mr. Rivera, the producer as Sun Tropic, and the insurer as American Equity Insurance Company. The document was also signed by Ms. Beltran. Again, Ms. Beltran has not worked for Sun Tropic since 1997; has not signed any documents at or for Sun Tropic since leaving its employ; and has not authorized anyone at Sun Tropic to sign her name to any document.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes.
License revocation proceedings are penal in nature.
The burden of proof is on the Department to establish by clear and convincing evidence the truthfulness of the allegations in the Amended Administrative Complaint. Department of Banking and Finance, Division of Securities and Investor Protection v.
Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
Section 626.0428, Florida Statutes, provides in pertinent part:
No employee of an agent or agency may bind insurance coverage unless licensed and appointed as a general lines agent or customer representative.
No employee of an agent or agency may initiate contact with any person for the purpose of soliciting insurance unless licensed and appointed as a general lines agent, customer representative, or solicitor.
Section 626.561, Florida Statutes, provides in pertinent part:
(1) All premiums, return premiums, or other funds belonging to insurers or others received by an agent, customer representative, solicitor, or adjuster in transactions under his or her license are trust funds received by the licensee in a fiduciary capacity. An agent shall keep the funds belonging to each insurer for which he or she is not appointed, other than a surplus lines insurer, in a separate account so as to allow the department to properly audit such funds. The licensee in the applicable regular course of business shall account for and pay the same to the insurer, insured, or other person entitled thereto.
* * *
Any agent, customer representative, solicitor, or adjuster who, not being lawfully entitled thereto, either temporarily or permanently diverts or misappropriates such funds or any portion thereof or deprives the other person of a benefit therefrom commits the offense specified below:
If the funds diverted or misappropriated are $300 or less, a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
If the funds diverted or misappropriated are more than $300, but less than $20,000, a felony of the third degree, punishable as
provided in s. 775.082, s. 775.083, or s. 775.084.
If the funds diverted or misappropriated are $20,000 or more, but less than $100,000, a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
If the funds diverted or misappropriated are $100,000 or more, a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
Section 626.611, Florida Statutes, provides in pertinent part:
The department shall deny an application for, suspend, revoke, or refuse to renew or continue the license or appointment of any applicant, agent, title agency, solicitor, adjuster, customer representative, service representative, or managing general agent, and it shall suspend or revoke the eligibility to hold a license or appointment of any such person, if it finds that as to the applicant, licensee, or appointee any one or more of the following applicable grounds exist:
* * *
(5) Willful misrepresentation of any insurance policy or annuity contract or willful deception with regard to any such policy or contract, done either in person or by any form of dissemination of information or advertising.
* * *
Demonstrated lack of fitness or trustworthiness to engage in the business of insurance.
Demonstrated lack of reasonably adequate knowledge and technical competence to engage
in the transactions authorized by the license or appointment.
Fraudulent or dishonest practices in the conduct of business under the license or appointment.
Misappropriation, conversion, or unlawful withholding of moneys belonging to insurers or insureds or beneficiaries or to others and received in conduct of business under the license or appointment.
* * *
(13) Willful failure to comply with, or willful violation of, any proper order or rule of the department or willful violation of any provision of this code.
Section 626.621, Florida Statutes, provides in pertinent part:
The department may, in its discretion, deny an application for, suspend, revoke, or refuse to renew or continue the license or appointment of any applicant, agent, solicitor, adjuster, customer representative, service representative, or managing general agent, and it may suspend or revoke the eligibility to hold a license or appointment of any such person, if it finds that as to the applicant, licensee, or appointee any one or more of the following applicable grounds exist under circumstances for which such denial, suspension, revocation, or refusal is not mandatory under s. 626.611:
* * *
(2) Violation of any provision of this code or of any other law applicable to the business of insurance in the course of dealing under the license or appointment.
* * *
(4) Failure or refusal, upon demand, to pay over to any insurer he or she represents or has represented any money coming into his or her hands belonging to the insurer.
* * *
(6) In the conduct of business under the license or appointment, engaging in unfair methods of competition or in unfair or deceptive acts or practices, as prohibited under part IX of this chapter, or having otherwise shown himself or herself to be a source of injury or loss to the public or detrimental to the public interest.
Section 626.932, Florida Statutes, provides in pertinent part:
(6) For the purposes of this section, the term "premium" means the consideration for insurance by whatever name called and includes any assessment, or any membership, policy, survey, inspection, service, or similar fee or charge in consideration for an insurance contract, which items are deemed to be a part of the premium. The per-policy fee authorized by s. 626.916(4) is specifically included within the meaning of the term "premium." However, the service fee imposed pursuant to s. 626.9325 is excluded from the meaning of the term "premium."
Section 626.9521, Florida Statutes, provides in pertinent part:
No person shall engage in this state in any trade practice which is defined in this part as, or determined pursuant to s. 626.951 or s. 626.9561 to be, an unfair method of competition or an unfair or deceptive act or practice involving the business of insurance.
Any person who violates any provision of this part shall be subject to a fine in an amount not greater than $2,500 for each nonwillful violation and not greater than
$20,000 for each willful violation. Fines under this subsection may not exceed an aggregate amount of $10,000 for all nonwillful violations arising out of the same action or an aggregate amount of $100,000 for all willful violations arising out of the same action. The fines authorized by this subsection may be imposed in addition to any other applicable penalty.
Section 626.9541, Florida Statutes, provides in pertinent part:
(1) UNFAIR METHODS OF COMPETITION AND UNFAIR OR DECEPTIVE ACTS.–The following are defined as unfair methods of competition and unfair or deceptive acts or practices:
* * *
(o) Illegal dealings in premiums; excess or reduced charges for insurance.–
* * *
2. Knowingly collecting as a premium or charge for insurance any sum in excess of or less than the premium or charge applicable to such insurance, in accordance with the applicable classifications and rates as filed with and approved by the department, and as specified in the policy; or, in cases when classifications, premiums, or rates are not required by this code to be so filed and approved, premiums and charges in excess of or less than those specified in the policy and as fixed by the insurer. This provision shall not be deemed to prohibit the charging and collection, by surplus lines agents licensed under part VIII of this chapter, of the amount of applicable state and federal taxes, or fees as authorized by s.
626.916(4), in addition to the premium required by the insurer or the charging and collection, by licensed agents, of the exact amount of any discount or other such fee charged by a credit card facility in connection with the use of a credit card, as authorized by subparagraph (q)3., in addition to the premium required by the insurer. This subparagraph shall not be construed to prohibit collection of a premium for a universal life or a variable or indeterminate value insurance policy made in accordance with the terms of the contract.
Section 627.848, Florida Statutes, provides in pertinent part:
(1) When a premium finance agreement contains a power of attorney or other authority enabling the premium finance company to cancel any insurance contract listed in the agreement, the insurance contract shall not be canceled unless cancellation is in accordance with the following provisions:
* * *
(e) Whenever an insurance contract is canceled in accordance with this section, the insurer shall promptly return the unpaid balance due under the finance contract, up to the gross amount available upon the cancellation of the policy, to the premium finance company and any remaining unearned premium to the agent or the insured, or both, for the benefit of the insured or insureds. The insurer shall notify the insured and the agent of the amount of unearned premium returned to the premium finance company and the amount of unearned commission held by the agent. The premium finance company within 15 days shall notify the insured and the agent of the amount of unearned premium. Within 15 days of receipt of notification from the premium finance company, the agent shall
return such amount including any unearned commission to the insured or with the written approval of the insured apply such amount to the purchase of other insurance products regulated by the department. The department may adopt rules necessary to implement the provisions of this subsection.
"Insurance is a business greatly affected by the public trust, and the holder of an agent's license stands in a fiduciary relationship to both the client and insurance company." Natelson v. Department of Insurance, 454 So. 2d 31, 32 (Fla. 1st DCA 1984).
As to Count I, the Department demonstrated by clear and convincing evidence that Quetgles violated Subsection 627.848(1)(e), Florida Statutes6; Subsections 626.561(1) and (3), Florida Statutes; Subsections 626.611(7), (9), and (10), Florida Statutes; and Subsection 626.621(2), Florida Statutes.
However, the Department failed to demonstrate by clear and convincing evidence that Quetgles violated Subsection 626.611(8), Florida Statutes. The evidence demonstrated that Quetgles had adequate knowledge and technical competence but chose to use her knowledge and technical competence for her personal gain. Further, the evidence failed to demonstrate that Quetgles violated Subsection 626.621(4), Florida Statutes.
As to Count II, the Department demonstrated by clear and convincing evidence that Quetgles violated Subsections 626.0428(2) and (3), Florida Statutes.
As to Count III, the Department demonstrated by clear and convincing evidence that Quetgles violated Subsections 626.611(5), (7), (9), and (13), Florida Statutes; and Subsections 626.621(2) and (6), Florida Statutes.
But, the Department failed to demonstrate by clear and convincing evidence that Quetgles violated Subsection 626.9541(o)2, Florida Statutes; and Subsection 626.932(6), Florida Statutes. Additionally, the Department failed to demonstrate a violation of Subsection 626.9521, Florida Statutes, which is based on a violation of Subsection 626.9541(o)2, Florida Statutes, which was not proven.
As to Count IV, the Department demonstrated by clear and convincing evidence that Quetgles violated Subsections 626.0428(2) and (3), Florida Statutes.
As to Count V, the Department demonstrated by clear and convincing evidence that Quetgles violated Subsections 626.561(1) and (3), Florida Statutes; Subsections 626.611(7), (9), and (10), Florida Statutes; and Subsection 626.621(2), Florida Statutes.
However, the Department failed to demonstrate by clear and convincing evidence that Quetgles violated Subsection 627.848(1)(e), Florida Statutes, in that the evidence failed to show an untimely return of any premium; Subsection 626.621(4), Florida Statutes, in that the evidence failed to show a demand and a failure or refusal to pay monies to an insurer; and
Subsection 626.611(8), Florida Statutes, in that the evidence demonstrated that Quetgles had adequate knowledge and technical competence but chose to use her knowledge and technical competence for her personal gain.
As to penalty, the following guidelines are applicable:
Per Rule 4-231.120, Florida Administrative Code, for a violation of Subsections 626.0428(2) or (3), Florida Statutes, six-month suspension.
Per Rule 4-231.110(9), Florida Administrative Code, for a violation of Subsections 626.561(1), Florida Statutes, nine-month suspension.
Per Rule 4-231.120, Florida Administrative Code, for a violation of Subsection 626.561(3), Florida Statutes, six-month suspension.
d. Per Rule 4-231.080(5), (7), and (13),
Florida Administrative Code, for a violation of Subsections 626.611(5), (7), or (13), Florida Statutes, six-month suspension.
Per Rule 4-231.080(9) and (10), Florida Administrative Code, for a violation of Subsections 626.611(9) or (10), Florida Statutes, nine-month suspension.
Per Rule 4-231.090(2), Florida Administrative Code, for a violation of Subsection 626.621(2), Florida Statutes, three-month suspension.
Per Rule 4-231.120, Florida Administrative Code, for a violation of Subsection 627.848(1)(e), Florida Statutes, six-month suspension.
Per Rule 4-231.090(6), Florida Administrative Code, for a violation of
Subsection 626.621(6), Florida Statutes, six- month suspension.
The highest penalty per count, according to Rule 4- 231.040(1)(a), Florida Administrative Code, is a nine-month suspension.
The total penalty, according to Rule 4-231.040(2), Florida Administrative Code, is found by adding together each penalty per count. Accordingly, the total penalty would be more than a two-year suspension; however, Subsection 626.641(1), Florida Statutes, restricts to two years the maximum period for which the Department may suspend a license.
The Department may consider aggravating or mitigating factors, set forth in Rule 4-231.160, Florida Administrative Code, when imposing a penalty. The Department suggests aggravating factors. The undersigned is persuaded that the Department's aggravating factors are appropriate: Quetgles' conduct was willful; a substantial degree of actual and potential injury to the victims existed; Quetgles was motivated by financial gain; and Quetgles was personally responsible for exhibited business practices which can be categorized as fraudulent.
As a result of the aggravating factors, the Department suggests that Quetgles' license be revoked. Revocation of Quetgles' license is appropriate and warranted.
DONE AND ENTERED this 13th day of November, 2002, in Tallahassee, Leon County, Florida.
ERROL H. POWELL
Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 2002.
1/ A violation of Subsection 626.611(7), Florida Statutes, is listed twice in Counts I and II.
2/ A violation of Subsection 626.611(8), Florida Statutes, is listed twice in Counts I and II.
3/ A violation of Subsections 626.611(7) and (8), Florida Statutes, is listed twice in Count V, as in Count I.
4/ Contrary to the Department's proposed findings, no evidence was presented regarding how much of the $365.00 premium was received by the JUA. Further, Petitioner's Exhibits numbered 29 and 32 were neither offered nor entered into evidence.
5/ However, later, Quetgles denied providing Mr. Hurtado with a copy of the policy. Her denial is not credible.
6/ Petitioner indicates that it charged Respondent with such violation only in Count V of the Amended Administrative Complaint. However, Respondent was also charged with the same violation in Count I.
David J. Busch, Esquire Department of Insurance
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.
