STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF FINANCIAL SERVICES,
Petitioner,
vs.
WILLIAM FRANKLIN OUTLAND, III,
Respondent.
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) Case No. 03-2758PL
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RECOMMENDED ORDER
Notice was provided and on October 14, 2003, a formal hearing was held in this case. Authority for conducting the hearing is set forth in Sections 120.569 and 120.57(1), Florida Statutes. The hearing location was the Marion County Extension Service, Conference Room, 2232 Northeast Jacksonville Road, Ocala, Florida. The hearing was held before Charles C. Adams, Administrative Law Judge.
APPEARANCES
For Petitioner: James A. Bossart, Esquire
Department of Financial Services Division of Legal Services
200 East Gaines Street 612 Larson Building
Tallahassee, Florida 32399-0333
For Respondent: William Franklin Outland, III, pro se
10840 Northwest 100th Street Reddick, Florida 32686
STATEMENT OF THE ISSUE
Should Petitioner impose discipline against the licenses held by Respondent as a Life (2-16), Life and Health (2-18), General Lines, Property and Casualty Insurance (2-20), Health (2-40) and Legal Expense (2-56) agent pursuant to provisions within Chapter 626, Florida Statutes?
PRELIMINARY STATEMENT
On May 29, 2003, Petitioner charged Respondent by an Administrative Complaint in Case No. 65895-03-AG, with numerous violations of Chapter 626, Florida Statutes, pertaining to his insurance agent licenses. On June 18, 2003, Respondent elected his rights in response to the Administrative Complaint by disputing one or more factual allegations, thereby requesting a hearing pursuant to Section 120.57(1), Florida Statutes.
On July 30, 2003, the case was received by the Division of Administrative Hearings to conduct the formal hearing.
Without opposition Petitioner moved to amend the Administrative Complaint by enclosing the text to the Amended Administrative Complaint. That motion was granted by an order entered October 8, 2003. The Amended Administrative Complaint was considered at hearing.
In pertinent part, the Amended Administrative Complaint refers to insurance transactions between Respondent, his customers and business entities with whom Respondent had a business relationship. Counts I through V to the Amended Administrative Complaint are more specifically addressed in the findings of fact and conclusions of law.
Petitioner presented the witnesses Sheila Hess and Gary Marker. Petitioner's Exhibits numbered 1 through 9 were admitted. Petitioner's Exhibit numbered 9 is the deposition transcript of Sheri Klein presented in lieu of her appearance at hearing. Respondent testified in his own behalf.
Respondent's Exhibits numbered 1 through 3 were admitted.
A hearing transcript was filed on October 28, 2003. On November 6, 2003, Petitioner filed a proposed recommended order which has been considered in preparing the Recommended Order. Respondent did not avail himself of the opportunity to present a proposed recommended order or similar written submission.
References are to Chapter 120, Florida Statutes (2003) in all places in the initial part of the Recommended Order, in the Preliminary Statement and in the Conclusions of Law.
References to Chapter 626, Florida Statutes, will be made in accordance with the law in effect, as supported by the fact finding.
FINDINGS OF FACT
BACKGROUND
Respondent, William Franklin Outland, III, has been at times contemplated by the Amended Administrative Complaint licensed by Petitioner, Department of Financial Services (formerly the Department of Insurance), as an insurance agent for General Lines, Property and Casualty (Type Class 02-20), Health (Type Class 02-40), Legal Expense (Type Class 02-56), Life (Type Class 02-16), and Life and Health (Type Class 02- 18).
Pursuant to Chapter 626, Florida Statutes, Petitioner has regulatory jurisdiction over Respondent pertaining to the agent licenses described and any appointments issued by insurers to Respondent to act in their behalf.
Respondent formed Marion Underwriting Group, Inc. (Marion Underwriting), which was incorporated in Florida effective June 3, 1997. That corporation was administratively dissolved by the State of Florida, Department of State on September 24, 1999. During its pendency Marion Underwriting did business as Ameriway Insurance Ocala West (Ameriway). Beyond the dissolution of Marion Underwriting, Respondent continued to do business in the name of Ameriway.
Under the Articles of Incorporation for Marion Underwriting, the purpose of the corporation was to engage in
the insurance business, among other purposes. As of April 30, 1998, Respondent became the registered agent for Marion Underwriting as its president, in substitution for Gwendolyn McConnell, the former registered agent and president.
Respondent established a bank account for his business Marion Underwriting d/b/a Ameriway at the Florida Citizens Bank in Ocala, Florida. Transactions involving that small business checking account are at issue in this case. Respondent was a signatory to the account able to write checks from its proceeds, to make deposits and withdrawals pertaining to account no. 100200001954.
During the period of time contemplated by this case, Respondent through Ameriway was affiliated with the Florida Automobile Joint Underwriting Association (the FAJUA).
In the time contemplated by the Amended Administrative Complaint, Apex Managers (Apex) of Rockledge, Florida, was a processing company for several insurance companies, in particular the FAJUA. As a processing manager for the FAJUA, Apex was the administrator on FAJUA insurance policies written on automobiles.
Duval Premium Budget, Inc. (Duval Premium), is a finance company for consumers who purchase automobile insurance policies. This company finances the balance of premiums paid by customers for automobile insurance for a fee,
following a downpayment by the customer. In the period under consideration, Respondent through Ameriway had a business arrangement with Duval Premium in which Respondent's customers who bought automobile insurance through Ameriway would make the downpayment for the coverage and Duval Premium would finance the balance of the premium cost on a routine payment plan. The process began when the customer would pay Respondent the downpayment as Ameriway. In turn, Respondent would write a check for the downpayment on the premium to Duval Premium from money on deposit by Ameriway Insurance in the previously described small business checking account at Florida Citizens Bank of Ocala, the balance of the premium to be financed by Duval Premium.
In connection with its premium finance business in affiliation with Respondent as Ameriway, Duval Premium also made bank drafts available on its account at First Union Bank of Jacksonville, Florida. These bank drafts were to be used by Ameriway as payment for automobile insurance customers on insurance policies whose premiums would be financed by Duval Premium.
Finally, by way of background information related to the case, Respondent through Ameriway was affiliated with First Insurance Network (First Insurance) of Smyrna, Georgia, as an agent for First Insurance. First Insurance was the
managing general agent for Peachtree Casualty Insurance Companies. There was a Producer Agreement by Ameriway through Respondent as Producer and First Insurance as General Agent.
COUNTS I THROUGH III
On June 6, 2002, Respondent through Ameriway prepared Duval Premium bank draft No. 284038 in the amount of
$1080.00 on First Union Bank to be paid to the FAJUA. This payment was made for automobile insurance coverage to be provided Juan Manuel Hernandez. The payment was received by Apex as processing company for the FAJUA and deposited into the Apex business account. The payment was attached to an insurance application executed by Mr. Hernandez.
On June 6, 2002, Respondent through Ameriway prepared Duval Premium bank draft No. 261212 in the amount of
$978.00 on First Union Bank to be paid to the FAJUA. This payment was made for automobile insurance coverage to be provided Oscar Rodriquez. The payment was received by Apex as processing company for the FAJUA and deposited into the Apex business bank account. The payment was attached to an insurance application executed by Mr. Rodriquez.
On June 7, 2002, Respondent through Ameriway prepared Duval Premium bank draft No. 284041 in the amount of
$550.00 on First Union Bank to be paid to the FAJUA. This payment was made for automobile insurance coverage to be
provided Angela Rodriguez. The payment was received by Apex as processing company for the FAJUA and deposited into the Apex business bank account. The payment was attached to an insurance application executed by Ms. Rodriguez.
In these several transactions described above, Respondent through Ameriway was acting under the terms of his producer contract with the FAJUA, in the interest of writing business for the FAJUA pertaining to automobile insurance.
When Apex deposited the several bank drafts described above, related to insurance coverage for Juan Hernandez, Oscar Rodriquez, and Angela Rodriguez, the bank drafts were returned by stop payments. Notwithstanding the failure to honor the bank drafts, the customers were extended coverage by the FAJUA.
Inquiry was made by Apex to Duval Premium concerning the failure to honor the bank drafts. Apex was advised by Duval Premium that drafts submitted by Respondent were no longer honored by Duval Premium. In this connection, Sheila Hess, a supervisor with Duval Premium, explained at hearing the reason for this decision. It was premised upon Duval Premium's experience with Respondent, in the interest of Ameriway, in which checks were written on the business account for Ameriway at the Florida Citizens Bank as downpayments for automobile insurance customers who were having the balance of
their premiums financed by Duval Premium. The result was that the checks were returned for insufficient funds not once but twice. When this happened Duval Premium decided not to accept contracts written through Respondent in the future.
Additionally, any bank drafts from Duval Premium on its bank account at First Union in Jacksonville used by Respondent would not be honored either. Respondent had been advised by Duval Premium before he executed the Duval Premium bank drafts in the interest of Juan Hernandez, Oscar Rodriquez, and Angelina Rodriguez that Duval Premium bank drafts in his possession would not be honored. Consistent with this representation Duval Premium stopped payment on the bank drafts executed for the benefit of those customers. Ms. Hess also established that Duval Premium was having difficulty getting premium finance contracts in a timely manner associated with the their business with Respondent. This problem influenced the Duval Premium decision to discontinue business with Respondent.
On June 25, 2002, the FAJUA informed Respondent in relation to his Ameriway business, that the contract between the FAJUA and Respondent as Ameriway was terminated. The termination was premised upon the events in association with the Duval Premium bank drafts pertaining to Juan Hernandez, Oscar Rodriquez, and Angelina Rodriguez.
Demand was made of Respondent to rectify the situation involving the three customers referred to in the prior paragraph. On July 3, 2002, Respondent provided the FAJUA a cashier's check for $949.00, representing reimbursement for the downpayments the three customers had provided Respondent.
COUNT IV
On April 15, 2002, Respondent wrote check No. 8426 on the Ameriway bank account with Florida Citizens Bank previously described. The check was written to Duval Premium. The amount was $218.00. The amount was intended as the downpayment for automobile insurance to be provided Garfield Thompson. The balance of the premium was to be financed by Duval Premium. Duval Premium received this check.
On April 19, 2002, Respondent wrote check No. 8442 to Duval Premium on the Ameriway bank account with Florida Citizens Bank previously described. The amount of the check was $242.00 for the downpayment for automobile insurance to be provided Sidney Hudson. The balance of the premium was to be financed by Duval Premium. Duval Premium received the check.
On April 23, 2002, Respondent wrote check No. 8448 on the Ameriway bank account with Florida Citizens Bank previously described. The check was written to Duval Premium. The amount was $231.00. The check was written for the
downpayment for automobile insurance to be provided Jose Pina. The balance of the premium was to be financed by Duval Premium. Duval Premium received the check.
The checks written to Duval Premium for the downpayments on automobile insurance premiums for Garfield Thompson, Sidney Hudson, and Joe Pina were presented by Duval Premium for payment. The checks were not honored for reason of insufficient funds. A second attempt was made to obtain proceeds from the checks. Again, the checks were not honored for reason of insufficient funds. As already indicated, the problems experienced with the checks for these customers, among other reasons, led Duval Premium to discontinue its business arrangement with Respondent operating as Ameriway.
The three customers who had sought premium financing through Duval Premium cancelled the arrangements for insurance policies that were to be provided based upon the premium financing by Duval Premium, but not before the customers had been debited the amount of money for the downpayments on their accounts owed for the overall premium.
Respondent never made good the checks that were written to Duval Premium for the downpayments on insurance for Garfield Thompson, Sidney Hudson, and Jose Pina. On this record it is inferred that the customers had paid Respondent as Ameriway for the downpayments.
COUNT V
Respondent through Ameriway as producer under agreement with First Insurance as general agent, was obligated to pay First Insurance monies collected for premium payments from customers who were obtaining insurance through First Insurance as general agent.
As producer for First Insurance Respondent wrote checks on the aforementioned bank account of Ameriway established with the Florida Citizens Bank. The checks were made to First Insurance as premium payments for Respondent's customers to be provided insurance through First Insurance acting as general agent. These checks and the customers names were as follows: customer Efelga Caballero, Check No. 8546 in the amount of $101.00; customer Katieska Arenas, Check No. 8514 in the amount of $129.00; customer Sally Brownell, Check No. 8529 in the amount of $173.00; customer Eren Dilley, Check No. 8523 in the amount of $213.00; customer Rose Jones, Check No. 8527 in the amount of $253.00; customer Beatriz Avala, Check No. 8530 in the amount of $201.00; customer Santos Mendoza, Check No. 8543 in the amount of $375.00; customer Amalia Granados, Check No. 8400 in the amount of $194.00; customer Roman Ramirez, Check No. 8425 in the amount of
$346.00; customer Rubin Mendez, Check No. 8443 in the amount
of $242.00; customer Alfred Epps, Check No. 8085 in the amount
of $398.00; customer Eugene McBride, Check No. 8068 in the amount of $412.00; customer Shadrach Evans, Check No. 7926 in the amount of $146.00; customer Mayre Nietche, Check No. 7959 in the amount of $189.00; customer Anthony Cabrera, Check No. 8610 in the amount of $193.00; customer Karen Cade, Check No. 8604 in the amount of $174.00; customer Lourdes Marquez, Check No. 8595 in the amount of $104.00; and customer Ben Swarez, Check No. 8601 in the amount of $107.00. All checks were written between January 2002 and June 2002. When First Insurance tried to cash the checks, they were returned for insufficient funds. Notwithstanding the problem with the payments for insurance premiums, all customers were issued insurance policies.
First Insurance pursued its choice to issue the policies to the customers that have been identified and to collect the funds for the payments from Respondent at a later time. A demand was made on Respondent for payment by correspondence directed to Respondent. Several months later, on November 25, 2002, Respondent provided a cashier's check in the amount of $3,672.00 to Peachtree Casualty Insurance, the company for whom First Insurance acts as general agent. This reimbursement followed a second letter from First Insurance to Respondent requesting reimbursement on the dishonored checks. The check that was written by Respondent for reimbursement
took into account commissions Respondent had earned which were applied toward the shortage created by the checks submitted for customer premiums that did not have sufficient funds to cover the checks.
RESPONDENT'S EXPLANATION
In his testimony Respondent tried to explain his choices in failing to meet his obligations to his customers and business associates, by suggesting that other customers than those that have been described gave him "bad down payments," thus his attempt to explain the numerous instances found in these facts where Respondent had issued checks for insufficient funds. Respondent also attempted to defend himself by commenting that some circumstances existed at Florida Citizens Bank where he did his checking that created a problem concerning the whereabouts of deposits with the bank. The exact nature of that difficulty was not explained by competent proof sufficient to justify the writing of checks with insufficient funds that have been revealed in this discussion. Nor does the fact that other persons than the victims in this case have written Respondent checks upon insufficient funds justify the mistreatment of the customers that have been described in this case who acted appropriately and the business associates who did likewise.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter consistent with Sections 120.569 and 120.57(1), Florida Statutes.
In this administrative prosecution, Petitioner must prove the allegations against Respondent by clear and convincing evidence. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
Counts I, II, and III to the Amended Administrative Complaint respectively refer to the purchase of insurance by Juan Hernandez, Oscar Rodriguez and Angela Rodriguez from the FAJUA and the bank drafts which Respondent drew on the Duval Premium bank account with First Union Bank as premium payments for those customers. Apex as the processing company for the FAJUA presented the checks for payment. They were dishonored because Duval Premium had stopped payment on the checks.
Counts I through III similarly complain that Respondent did not have the authority to write the bank drafts drawn on Duval Premium's bank account with First Union and submit them to Apex. It is alleged that Respondent breached
fiduciary responsibility by failing to remit downpayments received from the three customers to Duval Premium and that Respondent failed to deposit into Duval Premium's account the downpayments received from those customers. The complaint alleges that Apex tried to deposit the bank drafts drawn on Duval Premium's account at First Union and those were refused payment based upon the stop payments by Duval Premium, resulting in the customers being placed in jeopardy for non- payment as a result of Respondent's actions. Respondent it has been alleged converted, misappropriated or wrongfully withheld fiduciary funds belonging both to the insurer and the insured. Finally, it is alleged that demand was made by insurer for payment of the funds, referring to Apex, and that Respondent refused to timely remit the funds resulting in a financial loss to the FUJUA.
The allegations within Counts I through III as well
as Counts IV and V are considered in view of Section 626.561(1), Florida Statutes (2001) and (2002), both of which in pertinent part state:
All premiums, return premiums, or other funds belonging to insurers or others received by an agent, . . . in transactions under his or her license are trust funds received by the licensee in a fiduciary capacity. . .
In this case the payments by customers for premiums belonged to the insurers and were trust funds received by Respondent
under his license as an insurance agent, intended to be held in a fiduciary capacity.
Juan Hernandez, Oscar Rodriguez, and Angela Rodriguez paid Respondent as Ameriway downpayments that should have been submitted to Duval Premium in furtherance of premium financing for policies to be issued by the FAJUA. Respondent breached his fiduciary duty to remit the downpayments received by Juan Hernandez, Oscar Rodriguez and Angela Rodriguez to Duval Premium and by this action wrongfully withheld fiduciary funds intended as payment for insurance coverage to be provided by the FAJUA.
Respondent acted without proper authority when he wrote the bank drafts on bank accounts of Duval Premium in the interest of the three customers paid to the FAJUA, having been told by Duval Premium that the drafts would not be honored.
Contrary to the allegations of the Administrative Complaint, the opportunity for insurance by Juan Hernandez, Oscar Rodriguez, and Angela Rodriguez was not placed in jeopardy as a result of Respondent's actions.
There was no showing that Respondent's refusal to timely remit the premium downpayments for Juan Hernandez, Oscar Rodriguez and Angela Rodriguez to the FAJUA resulted in a financial loss to that entity. Demand was made by APEX in
the interest of the FAJUA. Shortly thereafter a reimbursement was provided.
The circumstances that have been described in the Findings of Fact, in view of the allegations in Counts I through III establish a violation of Section 626.611(7), Florida Statutes (2002), in that Respondent has demonstrated a lack of fitness or trustworthiness to engage in the business of insurance. Likewise in relation to those counts, Respondent has violated Section 626.611(9), Florida Statutes (2002), in that Respondent has been fraudulent or dishonest in his practices in the conduct of business in accordance with his insurance license. Finally, Respondent has violated Section 626.611(10), Florida Statutes (2002), by unlawfully withholding monies belonging to an insurer received in the conduct of business under his insurance license.
As alleged in Count IV to the Amended Administrative Complaint, Respondent did in fact between April 15, 2002, and April 23, 2002, remit checks drawn on the Ameriway bank account with Florida Citizens Bank for payment to Duval Premium as downpayments for three customers. As alleged, payment was refused on the checks because there was insufficient funds to support the checks. As alleged, Respondent had received the downpayments from the customers to pay the premiums, and those funds were to be held in trust for
the benefit of Duval Premium who would be responsible for financing the balance of the premiums in the interest of obtaining insurance coverage for the customers.
Consistent with the allegation of the Amended Administrative Complaint related to Count IV, Respondent misappropriated and wrongfully withheld the fiduciary funds intended for Duval Premium, demand for which was made by Duval Premium of the funds that Respondent should have remitted but were never provided by Respondent after the three checks for the customers had been turned down for insufficient funds on two occasions.
Contrary to the allegations of Count IV of the Amended Administrative Complaint, Duval Premium did not suffer an ultimate financial loss in relation to the downpayments for the three customers, in that the insureds were debited the amount of the downpayments on their accounts increasing the amount owed for the overall premium.
In relation to Count IV, the downpayments received by the three customers were trust funds received by the Respondent in a fiduciary capacity intended for Duval Premium in obtaining insurance coverage for those customers through a premium financing arrangement. By failing to remit the premium downpayments and writing insufficient fund checks on the Ameriway account with Florida Citizens Bank to pay the
downpayments to Duval Premium, Respondent has violated Section 626.611(7), Florida Statutes (2001), by demonstrating a lack of fitness or trustworthiness to engage in the business of insurance. Respondent has violated Section 626.611(9), Florida Statutes (2001), in that he has engaged in fraudulent or dishonest practices in the conduct of business under his insurance license. Finally, Respondent has violated Section 626.611(10), Florida Statutes (2001), by unlawfully misappropriating and wrongfully withholding the premium downpayments from Duval Premium received in the conduct of his insurance business.
Count V to the Amended Administrative Complaint describes Respondent's activities between January 2002 and June 2002 in a number of checks that Respondent remitted to First Insurance for premium downpayments, checks written by Respondent on the Ameriway bank account with First Citizens Bank. As alleged, the checks were not honored when presented by First Insurance because they were insufficient funds. As alleged, customers had paid insurance premiums to be held by Respondent in his fiduciary capacity for the benefit of First Insurance. First Insurance was the general managing agent for Peachtree Casualty Insurance. As alleged, Respondent wrongfully withheld the fiduciary funds belonging to First Insurance in the interest of Peachtree Casualty Insurance. It
is alleged that demand was made on Respondent for the payment of the funds received by First Insurance related to the numerous checks written by Respondent and that Respondent refused to remit the funds necessary to establish the premium payment and that this resulted in First Insurance suffering a financial loss. In fact, after two letters Respondent did on November 25, 2002, make First Insurance whole in its financial position. Nonetheless, Respondent has not acted in an appropriate manner when describing his fiduciary responsibility contemplated by Count V. Respondent in relation to Count V has violated Section 626.611(7), Florida Statutes (2002), by demonstrating a lack of fitness or trustworthiness to engage in the business of insurance.
Respondent has violated Section 626.611(9), Florida Statutes (2002), in his fraudulent or dishonest practices in the conduct the business under his insurance license. Finally, the Respondent has violated Section 626.611(10), Florida Statutes (2002), in that he unlawfully withheld monies belonging to First Insurance in the interest of Peachtree Casualty Insurance received in the conduct of his insurance business.
In connection with the overall Amended Administrative Complaint, and for reasons that have been discussed, Respondent has also violated Section 626.621(4),
Florida Statutes (2001) and (2002), by the failure and refusal upon demand to pay over to an insurer that he represents money coming into his hands belonging to the insurer.
Florida Administrative Code Rule 4-231.080 sets forth the range of suggested penalties pertaining to the violation of Section 626.611, Florida Statutes. Florida Administrative Code Rule 4-231.090 sets out guidelines for establishing penalties for violation of Section 626.621, Florida Statutes. Florida Administrative Code Rule 4-231.160 sets forth aggravating and mitigating factors in deciding punishment.
Based on the facts found and the conclusions of law reached, it is
RECOMMENDED:
That a Final Order be entered finding Respondent in violation of Counts I through V pertaining to his obligations as a fiduciary set forth in Section 626.561(1), Florida Statutes, his violation of Section 626.611(7), (9) and (10),
Florida Statutes, and his violation of Section 626.621(4), Florida Statutes, in effect when the violations transpired and that the various licenses held by Respondent be suspended for six months as suggested by counsel for Petitioner.
DONE AND ENTERED this 2nd day of December, 2003, in Tallahassee, Leon County, Florida.
S
CHARLES C. ADAMS
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 2nd day of December, 2003.
COPIES FURNISHED:
James A. Bossart, Esquire Department of Financial Services 612 Larson Building
200 East Gaines Street Tallahassee, Florida 32399-0333
William Franklin Outland, III 10840 Northwest 100th Street Reddick, Florida 32686
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, Lower 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.
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 26, 2004 | Agency Final Order | |
| Dec. 02, 2003 | Recommended Order | Respondent defrauded his customers and business associates in writing checks for premiums with insufficient funds. |
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