i . an Wea, . a ye Tom GALLAGHER Fi LE D agi, ‘ DEPARTMENT OF FINANCIAL SERVICES CHIEF FINANCIAL OFFICER MAY 19 -39005 IN THE MATTER OF: _ Docketed by: CHARLES P. DAVIS, JR. / CASE NO.: 61514-02-AG TO: 02> 954 7PC ADMINISTRATIVE COMPLAINT "Charles P. Davis, Jr. P.O. Box 1467 Oldsmar, Florida 34677 Charles P. Davis, Jr. P.O. Box 1967 Oldsmar, Florida 34677 Charles P. Davis, Jr. 284 Katherine Boulevard, Apt 8204 Palm Harbor, Florida 34684 Charles P. Davis, Jr. 2705 East Jefferson Street Orlando, Florida 32803 You, CHARLES P. DAVIS, JR., are hereby notified that the Chief Financial Officer, f/k/a the Insurance Commissioner, of the State of Florida has caused to be made an investigation of your activities while licensed as an insurance agent in this state, as a result of which it is alleged: eee Sa ENN ENON pe = GENERAL ALLEGATIONS 1. Pursuant to Chapter 626, Florida Statues, you, CHARLES P. DAVIS, JR., are currently licensed in this state as a general lines insurance agent (2-20). Your license identification number is A062267. 2. At all times pertinent to the dates and occurrences referred to herein, you, CHARLES P. DAVIS, JR., were licensed in this state as a general lines agent. 3. Pursuant to Chapter 626, Florida Statutes, and the Florida Insurance Code, the Florida Department Financial Services, f/k/a the Florida Department of Insurance, has jurisdiction over your insurance licenses and appointments. “4, You, CHARLES P. DAVIS, JR., were the sole signatory on AmSouth bank account number 3283516794 for Sunkey Insurance Store, Inc. 5. At all times relevant to the dates and occurrences referred to herein, all funds received by you, CHARLES P. DAVIS, JR., from consumers or on behalf of consumers representing premiums for insurance policies, were trust funds pursuant to Section 626.561(1), Florida Statutes, and were received ina fiduciary capacity and were to be accounted for and paid over to the insurer, insured or other persons entitled thereto in the regular course of business. COUNT I 6: All statements, claims, and allegations of Paragraph 1 through 5, inclusive, are incorporated herein by reference. 7. On or about September 26, 2001, T.L. issued Nations Bank Check # 690 in the amount of $700 to Sunkey Insurance as down payment for an automobile insurance policy with A.L.G. Specialty Auto. 8. You, CHARLES P. DAVIS, JR., deposited the above check into your Sunkey Insurance AMSOUTH bank account # 3283516794. 9. You, CHARLES P. DAVIS, JR., only forwarded $449.82 to AIG Specialty Auto. 10. You, CHARLED P. DAVIS, JR., misappropriated $250.18 by failing to forward the entire down payment to AIG Specialty Auto. IT IS THEREFORE CHARGED that you, CHARLES P. DAVIS, JR., have violated or are accountable under the following provisions of the Florida Insurance Code and Rules of the Department of Insurance, n/k/a the Department of Financial Services, which constitute grounds for the suspension or revocation of your licenses and appointments as a general lines insurance agent: (a) 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. [Section 626.561(1), Florida Statutes]; (b) The Department shall deny an application for, suspend, revoke, or refuse to renew or continue the license or appointment of any ... 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 exists: {Section 626.611, Florida Statutes]; w eae me ene INE im era (c) If the license or appointment is willfully used, or to be used, to circumvent any of the requirements or prohibitions of this code. [Section 626.611(4), Florida Statutes]; (d) 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. [Section 626.611(5), Florida Statutes); (e) Demonstrated lack of fitness or trustworthiness to engage in the business of insurance. [Section 626.61 1(7), Florida Statutes]; (f, _ Fraudulent or dishonest practices in the conduct of business under the license or appointment. [Section 626.611(9), Florida Statutes]; (g) 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. [Section 626.61 1(10), Florida Statutes. ]; (h) 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 626.611(13). Florida Statutes]; Q) The Department may, in its discretion, deny an application for, suspend, revoke, or refuse to renew or continue the license or appointment of any ... 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: [Section 626.621, Florida Statutes]; (j) 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. [Section 626.621(2), Florida Statutes]; (k) In the conduct of business under the license or permit, engaging in unfair methods of competition or in unfair or deceptive acts or practices, as prohibited under part X of Chapter 626, Florida Statutes, 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 626.621(6), Florida Statutes]. COUNT I -11, All statements, claims, and allegations of Paragraph | through 5, inclusive, are incorporated herein by reference. 12. On or about September 2, 2001, L.L. paid $300 in cash to Sunkey Insurance as down payment for an automobile insurance policy with AIG Specialty Auto. 13. A binder was issued by you, CHARLES P. DAVIS, JR., from Sunkey Insurance with AIG Specialty Auto which showed receipt of the $300 down payment. 14. You, CHARLES P. DAVIS, JR., misappropriated the above mentioned $300 in cash by failing to forward the down payment to AIG Specialty Auto. IT IS THEREFORE CHARGED that you, CHARLES P. DAVIS, JR., have violated or are accountable under the following provisions of the Florida Insurance Code and Rules of the Department of Insurance, n/k/a the Department of Financial Services, which constitute grounds for the suspension or revocation of your licenses and appointments as a general lines insurance agent: (a) 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. [Section 626.561(1), Florida Statutes]; (b)_ The Department shall deny an application for, suspend, revoke, or refuse to renew or continue the license or appointment of any ... 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 exists: [Section 626.611, Florida Statutes]; (c) If the license or appointment is willfully used, or to be used, to circumvent any of the requirements or prohibitions of this code. [Section 626.61 1(4), Florida Statutes]; (d) 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. [Section 626.611(5), Florida Statutes); (e) Demonstrated lack of fitness or trustworthiness to engage in the business of insurance. [Section 626.611(7), Florida Statutes]; (f) Fraudulent or dishonest practices in the conduct of business under the license or appointment. [Section 626.611(9), Florida Statutes}; (g) Misappropriation, conversion, or untawful withholding of moneys belonging to insurers or insureds or beneficiaries or to others and received in conduct of business under the license or appointment. [Section 626.611(10), Florida Statutes. ]; (h) 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 626.611(13), Florida Statutes]; (i) The Department may, in its discretion, deny an application for, suspend, revoke, or refuse.to renew or continue the license or appointment of any ... 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: [Section 626.621, Florida Statutes]; q) 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. [Section 626.621(2), Florida Statutes); (k) In the conduct of business under the license or permit, engaging in unfair methods of competition or in unfair or deceptive acts or practices, as prohibited under part X of Chapter 626, Florida Statutes, 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 626.621(6), Florida Statutes]. COUNT III 15. All statements, claims, and allegations of Paragraph 1 through 5, inclusive, are incorporated herein by reference. 16. On or about August 31, 2001, E.S. paid $283 in cash to Sunkey Insurance as down payment for an automobile insurance policy with AIG Specialty Auto. 17. A binder was issued by you, CHARLES P. DAVIS, JR., from Sunkey Insurance with AIG Specialty Auto which showed receipt of the $283 down payment. 18. | You, CHARLED P. DAVIS, JR., misappropriated the above mentioned $283 in cash by failing to forward the down payment to AIG Specialty Auto. 19. You. CHARLES P. DAVIS, JR., never forwarded E.S.’s policy application to AIG Specialty Auto which resulted in E.S. driving for three months without coverage. IT IS THEREFORE CHARGED that you, CHARLES P. DAVIS, JR., have violated or are accountable under the following provisions of the Florida Insurance Code and Rules of the Department of Insurance, n/k/a the Department of Financial Services, which constitute grounds for the suspension or revocation of your licenses and appointments as a general lines insurance agent: (a) 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. [Section 626.561(1), Florida Statutes}; (b) The Department shall deny an application for, suspend, revoke, or refuse to renew or continue the license or appointment of any ... 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 exists: [Section 626.611, Florida Statutes]; (c) If the license or appointment is willfully used, or to be used, to circumvent any of the requirements or prohibitions of this code. [Section 626.611(4), Florida Statutes]; (d) 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. [Section 626.611(5), Florida Statutes); (ec) Demonstrated lack of fitness or trustworthiness to engage in the business of insurance. [Section 626.611(7), Florida Statutes]; (f) Fraudulent or dishonest practices in the conduct of business under the license or appointment. [Section 626.611(9), Florida Statutes]; (g) 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. [Section 626.611(10), Florida Statutes. ]: (h) Willful failure to comply with, or willful violation of, any proper order or tule of the Department or willful violation of any provision of this code, [Section 626.611(13), Florida Statutes]; (i) The Department may, in its discretion, deny an application for, suspend, revoke, or refuse to renew or continue the license or appointment of any ... 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: [Section 626.621, Florida Statutes]; q@ 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. [Section 626.621(2), Florida Statutes]; (k) In the conduct of business under the license or permit, engaging in unfair methods of competition or in unfair or deceptive acts or practices, as prohibited under part X of Chapter 626, Florida Statutes, 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 626.621(6), Florida Statutes]. . COUNT IV 20. All statements, claims, and allegations of Paragraph 1 through 5, inclusive, are incorporated herein by reference. 21. On or about September 1, 2001, E.A. issued AmSouth check #1605 in the amount of $781 to Sunkey Insurance as payment in full for a six month automobile insurance policy with Progressive Insurance. 22. You, CHARLES P. DAVIS, JR., deposited the above mentioned check into Sunkey Insurance AmSouth bank account #3283516794. 23. You, CHARLES P. DAVIS, JR., forwarded only $50 to Progressive Insurance. 24, By failing to forward the down payment to Progressive Insurance, you, CHARLES P. DAVIS, JR., misappropriated $731. IT IS THEREFORE CHARGED that you, CHARLES P. DAVIS, JR., have violated or are accountable under the following provisions of the Florida Insurance Code and Rules of the Department of Insurance, n/k/a the Department of Financial Services, which constitute grounds 10 for the suspension or revocation of your licenses and appointments as a general lines insurance agent: (a) 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. [Section 626.561(1), Florida Statutes]; (b) The Department shall deny an application for, suspend, revoke, or refuse to renew or continue the license or appointment of any ... 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 exists: [Section 626.611, Florida Statutes]; (c) If the license or appointment is willfully used, or to be used, to circumvent any of the requirements or prohibitions of this code. [Section 626.61 1(4), Florida Statutes]; (d) 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. [Section 626.611(5), Florida Statutes); (e) Demonstrated lack of fitness or trustworthiness to engage in the business of insurance. [Section 626.611(7), Florida Statutes]; (f) Fraudulent or dishonest practices in the conduct of business under the license or appointment. [Section 626.61 1(9), Florida Statutes]; (g) 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. [Section 626.611(10), Florida Statutes.]; (h) Willful failure to comply with, or willful violation of, any proper order or tule of the Department or willful violation of any provision of this code. [Section 626.611(13), Florida Statutes]; (i) The Department may, in its discretion, deny an application for, suspend, revoke, or refuse to renew or continue the license or appointment of any ... 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: [Section 626.621, Florida Statutes]; Gj) 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. [Section 626.621(2), Florida Statutes]; (k) In the conduct of business under the license or permit, engaging in unfair methods of competition or in unfair or deceptive acts or practices, as prohibited under part X of Chapter 626, Florida Statutes, 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 626.621(6), Florida Statutes]. COUNT V 25. All statements, claims, and allegations of Paragraph 1 through 5, inclusive, are incorporated herein by reference. 26. On or about October 26, 2001, M.H. issued GTE Federal Credit Union check number 386 in the amount of $357.00 to Sunkey Insurance as down payment for an automobile insurance policy with Progressive Insurance. 27. You, CHARLES P. DAVIS, JR., deposited the above mentioned check into Sunkey Insurance AmSouth bank account #3283516794. 28. You, CHARLES P. DAVIS, JR., forwarded only $122.47 to Progressive Insurance. 29. By failing to forward the down payment to Progressive Insurance, you, CHARLES P. DAVIS, JR., misappropriated $234.53. IT IS THEREFORE CHARGED that you, CHARLES P. DAVIS, JR., have violated or are accountable under the following provisions of the Florida Insurance Code and Rules of the Department of Insurance, n/k/a the Department of Financial Services, which constitute grounds for the suspension or revocation of your licenses and appointments as a general lines insurance agent: (a) 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. [Section 626.561(1), Florida Statutes]; (b) The Department shall deny an application for, suspend, revoke, or refuse to renew or continue the license or appointment of any ... 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 exists: [Section 626.611, Florida Statutes]; (c) If the license or appointment is willfully used, or to be used, to circumvent any of the requirements or prohibitions of this code. [Section 626.611(4), Florida Statutes]; (d) 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. [Section 626.611(5), Florida Statutes); (e) Demonstrated lack of fitness or trustworthiness to engage in the business of insurance. [Section 626.611(7), Florida Statutes]: (ff Fraudulent or dishonest practices in the conduct of business under the license or appointment. [Section 626.61 1(9), Florida Statutes]; (g) 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. [Section 626.611(10), Florida Statutes.]; (h) 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 626.611(13), Florida Statutes]; (i) The Department may, in its discretion, deny an application for, suspend, revoke, or refuse to renew or continue the license or appointment of any ... 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: [Section 626.621, Florida Statutes]; Gg) 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. [Section 626.621(2), Florida Statutes]; (k) In the conduct of business under the license or permit, engaging in unfair methods of competition or in unfair or deceptive acts or practices, as prohibited under part X of Chapter 626, Florida Statutes, 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 626.621(6), Florida Statutes]. COUNT VI 30. All statements, claims, and allegations of Paragraph 1 through 5, inclusive, are incorporated herein by reference. 31. On or about August 25, 2001, M.R. issued AmSouth check number 1304 in the amount of $310 to Sunkey Insurance as down payment for an automobile insurance policy with Progressive Insurance. 32. You, CHARLES P. DAVIS, JR., deposited the above mentioned check into Sunkey Insurance AmSouth bank account #32835 16794. 33. | You, CHARLES P. DAVIS, JR., forwarded only $182 to Progressive Insurance. 34. By failing to forward the ‘entire down payment to Progressive Insurance, you, CHARLES P. DAVIS, JR., misappropriated $128. IT IS THEREFORE CHARGED that you, CHARLES P. DAVIS, JR., have violated or are accountable under the following provisions of the Florida Insurance Code and Rules of the Department of Insurance, n/k/a the Department of Financial Services, which constitute grounds for the suspension or revocation of your licenses and appointments as a general lines insurance agent: (a) 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. [Section 626.561(1), Florida Statutes]; (b) The Department shall deny an application for, suspend, revoke, or refuse to renew or continue the license or appointment of any ... 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 exists: [Section 626.611, Florida Statutes]; (c) If the license or appointment is willfully used, or to be used, to circumvent any of the requirements or prohibitions of this code. [Section 626.611(4), Florida Statutes]; (d) 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. [Section 626.61 1(5), Florida Statutes); (e) Demonstrated lack of fitness or trustworthiness to engage in the business of insurance. [Section 626.611(7), Florida Statutes]; (f) Fraudulent or dishonest practices in the conduct of business under the license or appointment. [Section 626.611(9), Florida Statutes]; (g) | 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. [Section 626.611(10), Florida Statutes.]; (h) 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 626.611(13), Florida Statutes]; . (i) The Department may, in its discretion, deny an application for, suspend, revoke, or refuse to renew or continue the license or appointment of any ... 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: [Section 626.621, Florida Statutes]; (j) 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. [Section 626.621(2), Florida Statutes]; (k) In the conduct of business under the license or permit, engaging in unfair methods of competition or in unfair or deceptive acts or practices, as prohibited under part X of Chapter 626, Florida Statutes, 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 626.621(6), Florida Statutes]. COUNT VII 35. All statements, claims, and allegations of Paragraph 1 through 5, inclusive, are incorporated herein by reference. 36. | You, CHARLES P. DAVIS, JR., were employed by Stephen Lang to sell automobile insurance for Sunkey Insurance . 37. You, CHARLES P. DAVIS, JR., were required by Stephen Lang to establish AmSouth Sunkey bank account number 3283516794. 38. The above mentioned bank account was to be used exclusively for the deposit of premium policy money. Premium money deposited in this account would be forwarded either to Mr. Lang or to the insurer directly. 39. | You, CHARLES P. DAVIS, JR., issued seven checks made payable to yourself from the above mentioned account in the amount of $3,800. 40. You, CHARLES P. DAVIS, JR., misappropriated the above mentioned funds which were intended to be used solely as premium payments. IT IS THEREFORE CHARGED that you, CHARLES P. DAVIS, JR., have violated or are accountable under the following provisions of the Florida Insurance Code and Rules of the Department of Insurance, n/k/a the Department of Financial Services, which constitute grounds for the suspension or revocation of your licenses and appointments as a general lines insurance agent: (a) 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. {Section 626.561(1), Florida Statutes]; (b) The Department shall deny an application for, suspend, revoke, or refuse to renew or continue the license or appointment of any ... 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 exists: [Section 626.611, Florida Statutes]; (c) If the license or appointment is willfully used, or to be used, to circumvent any of the requirements or prohibitions of this code. [Section 626.61 1(4), Florida Statutes]; (d) 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. [Section 626.611(5), Florida Statutes); (e) Demonstrated lack of fitness or trustworthiness to engage in the business of insurance. [Section 626.611(7), Florida Statutes]; (ff) Fraudulent or dishonest practices in the conduct of business under the license or appointment. [Section 626.611(9), Florida Statutes]; (g) 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. [Section 626.611(10), Florida Statutes.]; (h) 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 626.611(13), Florida Statutes]; 19 @ The Department may, in its discretion, deny an application for, suspend, revoke, or refuse to renew or continue the license or appointment of any ... 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: [Section 626.621, Florida Statutes]; Gg) 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. [Section 626.621(2), Florida Statutes]; (k) In the conduct of business under the license or permit, engaging in unfair methods of competition or in unfair or deceptive acts or practices, as prohibited under part X of Chapter 626, Florida Statutes, 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 626.621(6), Florida Statutes]. COUNT VIII 41. — All statements, claims, and allegations of Paragraph | through 5, inclusive, are incorporated herein by reference. 42. On or about October 31, 2001, you, CHARLES P. DAVIS, JR., met with Stephen Lang. who is the President of Sunkey Insurance. 43. In the above mentioned meeting, you, CHARLES P. DAVIS, JR., admitted to withholding policy applications and to only submitting portions of the down payments given to you. 20 44, In total, you, CHARLES P. DAVIS, JR., misappropriated $36, 831.39 which was intended to be used as premium payment for policies from AIG Specialty Auto and Progressive Insurance. 45. | The amount mentioned in the preceding paragraph may include some, or all, of the amounts mentioned in counts 1 through 7. IT IS THEREFORE CHARGED that you, CHARLES P. DAVIS, JR., have violated or are accountable under the following provisions of the Florida Insurance Code and Rules of the Department of Insurance, n/k/a the Department of Financial Services, which constitute grounds for the suspension or revocation of your licenses and appointments as a general lines insurance agent: (a) 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. [Section 626.561(1), Florida Statutes]; (b) The Department shall deny an application for, suspend, revoke, or refuse to renew or continue the license or appointment of any ... 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 exists: [Section 626.611, Florida Statutes]; 21 (c) If the license or appointment is willfully used, or to be used, to circumvent any of the requirements or prohibitions of this code. [Section 626.611(4), Florida Statutes]; (d) 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. [Section 626.611(5), Florida Statutes); (e) Demonstrated lack of fitness or trustworthiness to engage in the business of insurance. [Section 626.611(7), Florida Statutes]; (f) _ Fraudulent or dishonest practices in the conduct of business under the license or appointment. [Section 626.611(9), Florida Statutes]; (g) 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. [Section 626.611(10), Florida Statutes.]: (h) 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 626.611(13), Florida Statutes]; (i) The Department may, in its discretion, deny an application for, suspend, revoke, or refuse to renew or continue the license or appointment of any ... 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: [Section 626.621, Florida Statutes]; 22 g) 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. [Section 626.621(2), Florida Statutes}; (k) In the conduct of business under the license or permit, engaging in unfair methods of competition or in unfair or deceptive acts or practices, as prohibited under part X of Chapter 626, Florida Statutes, 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 626.621(6), Florida Statutes]. . WHEREFORE, you, CHARLES P. DAVIS, JR., are hereby notified that the Chief Financial Officer, f/k/a the Treasurer and Insurance Commissioner, intends to enter an Order suspending or revoking your licenses and appointments as a general lines insurance agent or to impose such penalties as may provided under the provisions of Sections 626.611, 626.621, 626.681, 626.691, and 626.901, Florida Statutes, under the other referenced sections of the Florida Statutes as set out in this Administrative Complaint, and under the provisions of Rule Chapter 4-231, Florida Administrative Code. You are further notified that any order entered in this case revoking or suspending any license or eligibility for licensure held by you shall also apply to all other licenses and eligibility held by you under the Florida Insurance Code. 23 NOTICE OF RIGHTS You have the right to request a proceeding to contest this action by the Department pursuant to sections 120.569 and 120.57, Florida Statutes, and Rule 28-107, Florida Administrative Code. The proceeding request must be in writing, signed by you, and must be filed with the Department within twenty-one (21) days of your receipt of this notice. Completion of the attached Election of Proceeding form and/or a petition for administrative hearing will suffice as a written request. The request must be filed with the General Counsel as acting Agency Clerk, at the Florida Department of Financial Services, 612 Larson Building, 200 East Gaines Street, Tallahassee, Florida 32399-0333. The Department must receive your written response no later than 5:00 p.m. on the twenty-first day after your receipt of this notice. Mailing the response on the twenty-first day will not preserve your right to a hearing. YOUR FAILURE TO RESPOND IN WRITING WITHIN TWENTY-ONE (21) DAYS OF YOUR RECEIPT OF THIS NOTICE WILL CONSTITUTE A WAIVER OF YOUR RIGHT TO REQUEST A PROCEEDING ON THE MATTERS ALLEGED HEREIN AND AN ORDER OF REVOCATION WILL BE ENTERED AGAINST YOU. If you request a proceeding, you must provide information that complies with the requirements of Rule 28-107.004, Florida Administrative Code. As noted above, completion of the attached Election of Proceeding form conforms to these requirements. Specifically, your response must contain: (a) The name and address of the party making the request, for purpose of service; (b) A statement that the party is requesting a hearing involving disputed issues of material fact, or a hearing not involving disputed issues of material fact; and (c) A reference to the notice, order to show cause, administrative complaint, or other communication that the party has received from the agency. 24 If a hearing of any type is requested, you have the right to be represented by counsel or other qualified representative at your expense, to present evidence and argument, to call and cross-examine witnesses, and to compel the attendance of witnesses and the production of documents by subpoena. If a proceeding is requested and there is no dispute of material fact, the provisions of section 120.57(2), Florida Statutes, apply. In this regard, you may submit oral or written evidence in opposition to the action taken by the Department or a written statement challenging the grounds upon which the Department has relied. While a hearing is normally not required in the absence of a dispute of fact, if you feel that a hearing is necessary, one will be conducted in Tallahassee, Florida, or by telephonic conference call upon your request. However, if you dispute material facts, which are the basis for the Department’s action, you must request an adversarial proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes. These proceedings are held before a State administrative law judge of the Division of Administrative Hearings. Unless the majority of witnesses are located elsewhere, the Department will request that the hearing be conducted in Tallahassee, Florida. Failure to follow the procedure outlined with regard to your response to this notice may result in the request being denied. All prior oral communication or correspondence in this matter shall be considered freeform agency action, and no such oral communication or correspondence shall operate as a valid request for an administrative proceeding. Any request for an administrative proceeding received prior to the date of this notice shall be deemed abandoned unless timely renewed in compliance with the guidelines as set out above. 25 Mediation of this matter pursuant to section 120.573, Florida Statutes, is not available. No Department attorney will discuss this matter with you until the response has been received by the Department of Financial Services, f/k/a the Department of Insurance. DATED this YEA day of Mat » 2003. Adu l Ladle N CHANDLER Deputy Chief Financial Officer CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that a copy of the foregoing has been furnished to CHARLES P. DAVIS, JR., by restricted U.S. Certified Mail this /9@ day of Mihi) _, 2003. BP Fla. Bar. 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Docket for Case No: 03-002549PL