Petitioner: DEPARTMENT OF FINANCIAL SERVICES, DIVISION OF INSURANCE AGENT AND AGENCY SERVICES
Respondent: DARELY CARIDAD GUTIERREZ
Judges: ROBERT L. KILBRIDE
Agency: Department of Financial Services
Locations: Lauderdale Lakes, Florida
Filed: Jul. 27, 2015
Status: Closed
Settled and/or Dismissed prior to entry of RO/FO on Thursday, October 15, 2015.
Latest Update: Dec. 24, 2024
: j JUN TE 7 2015
CHIEF FINANCIAL OFFICER Docketed by EL
JEFF ATWATER
STATE OF FLORIDA
IN THE MATTER OF:
CASE NO: 160776-14-AG
DARELY CARIDAD GUTIERREZ
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ADMINISTRATIVE COMPLAINT
TO: — Darely Caridad Gutierrez
12530 SW 8" Street
Miami, Florida 33184
Darely Caridad Gutierrez
16542 SW 64" Terrace
Miami, Florida 33193
DARELY CARIDAD GUTIERREZ is hereby notified that pursuant to chapter 626,
Florida Statutes, the Chief Financial Officer of the State of Florida, has made an investigation of
his activities while licensed as an insurance agent in this state, as a result of which it is alleged:
GENERAL ALLEGATIONS
1. Darely Caridad Gutierrez is currently licensed in this state as a general lines
insurance agent.
2, At all times pertinent herein, Darely Caridad Gutierrez was eligible for licensure
and licensed as an insurance agent in this state.
3. At all times pertinent herein, Darely Caridad Gutierrez was the agent of record of
Insurance Consultants of Dade, Inc., a Florida incorporated insurance agency doing business in
Miami-Dade County, Florida.
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4. At all times pertinent herein, and pursuant to section 626.561(1), Florida Statutes,
all funds received by Darely Caridad Gutierrez from insureds were trust funds received in a
fiduciary capacity and were to be paid over to an insurer, insured, or other person entitled thereto
in the regular course of business.
COUNT I
5. Paragraphs one through four are realleged and incorporated herein by reference.
6. In early February 2011, Darely Caridad Gutierrez was solicited by Key
International, Inc., a Florida corporation doing business in Miami, Florida, to provide a premium
quote for a property insurance policy, a general liability insurance policy and an excess liability
(umbrella) insurance policy for the corporation. To this end, Darely Caridad Gutierrez obtained a
quote from USG Insurance Services, Inc. to insure Key International, Inc. for the premium
amount of $43,801.83, However, Darely Caridad Gutierrez falsely misrepresented this quoted
premium to Key International, Inc. as being $46,980.17 rather than $43,801.83. This quote was
false and a material misstatement of fact. Darely Caridad Gutierrez was aware of this fact.
7. On or about February 25, 2011, Darely Caridad Gutierrez received a check in the
amount of $18,500.00 drawn on the account of Key International Inc. On March 24, 2011, Darely
Caridad Gutierrez received a second check in the amount of $14,240.09 drawn on the account of
Key International, Inc. On April 24, 2011, Darely Caridad Gutierrez did receive a third and final
check in the amount of $14,240.08 drawn on the account of Key International, Inc. These three
checks in the total amount of $46,980.17 were intended to be in payment of Key International,
Inc’s policy insurance premiums as had been represented. Darely Caridad Gutierrez received the
funds and deposited the funds into the agency business bank account.
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8. Darely Caridad Gutierrez failed to remit the entire funds on behalf of Key
International, Inc. to any insurer or to anyone else so entitled; but only remitted $6,517.00 in
payment of one policy premium to the insurer and retained the remaining amount of $40,363.00
for her own use and benefit.
9. On April 26, 2011, Darely Caridad Gutierrez entered into a fraudulent premium
finance agreement with Standard Premium Finance to finance the premiums of two of the above
mentioned insurance policies (the property insurance policy and the general liability insurance
policy) over a one year period, with the false signature of a Key International, Inc.’s corporate
officer fraudulently affixed thereto, At no time did Key International, Inc. have any knowledge
of this premium finance agreement nor did it authorize the financing of the insurance policy
premiums. This premium finance agreement was a false and material misstatement of fact and
was entered into solely to allow Darely Caridad Gutierrez to utilize the premium funds over the
policy period for other than its intended purpose. Darely Caridad Gutierrez was aware at all times
of this false and material misstatement of facts.
10. Darely Caridad Gutierrez failed to return the funds to Key International, Inc. or
otherwise account for such funds despite demand being made for same.
11. Darely Caridad Gutierrez has misappropriated, converted, or wrongfully withheld
moneys belonging to Key International, Inc. As a result, Key International Inc. has suffered a
significant financial loss.
. IT IS THEREFORE CHARGED that Darely Caridad Gutierrez has violated or is
accountable under the following provisions of the Florida Insurance Code which constitutes
grounds for the suspension or revocation of his insurance licenses and eligibility for licensure:
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(a) Section 626.561, Florida Statutes, which provides that all premiums, return
premiums, or other funds belonging to insurers, insureds, or others received by an agent under his
license are trust funds received by the licensee in a fiduciary capacity. The licensee in the regular
course of business shall account for and pay the same to the insurer, insured, or other person
entitled thereto.
(b) Section 626.611(7), Florida Statutes, which provides that it is a violation for any
applicant, agent, title agency, adjuster, customer representative, service representative, or
managing general agent to demonstrate a lack of fitness or trustworthiness to engage in the
business of insurance.
(c) Section 626.611(10), Florida Statutes, which provides that it is a violation for any
applicant, agent, title agency, adjuster, customer representative, service representative, or
managing general agent to misappropriate, convert, or unlawfully withhold moneys belonging to
insurers or insureds or beneficiaries or to others and received in conduct of business under the
license or appointment.
(d) Section 626.611(13), Florida Statutes, which provides that it is a violation for any
applicant, agent, title agency, adjuster, customer representative, service representative, or
managing general agent to willfully fail to comply with, or willfully violate any proper order or
tule of the department or willfully violate any provision of this code.
(e) Section 626.621(6), Florida Statutes, which provides that it is a violation, in the
conduct of business under the license or appointment, to engage in unfair methods of competition
or in unfair or deceptive acts or practices, as prohibited under part IX of this chapter.
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(f) Section 626.9541(1)(a)1, Florida Statutes, which provides that it is a violation to
knowingly make, issue, circulate, or cause to be made, issued, or circulated, any estimate,
illustration, circular, statement, sales presentation, omission, or comparison which misrepresents
the benefits, advantages, conditions, or terms of any insurance policy.
(g) Section 626.9541(1)(e) 1, Florida Statutes, which provides that it is a violation to
knowingly: a. File with any supervisory or other public official, b. Make, publish, disseminate,
’ circulate, c. Deliver to any person, d. Place before the public, e. Cause, directly or indirectly, to be
made, published, disseminated, circulated, delivered to any person, or placed before the public, any
false material statement.
COUNT II
12. Paragraphs one through four are realleged and incorporated herein by reference.
13. In early February 2012, Darely Caridad Gutierrez was solicited by Key
International, Inc., a Florida corporation doing business in Miami, Florida, to provide a renewal
premium quote for the three business property and liability policies for the corporation,
previously mentioned in Count I above. To this end, Darely Caridad Gutierrez obtained a quote
from USG Insurance Services, Inc. to insure Key International, Inc. for the premium amount of
$41,870.19. However, Darely Caridad Gutierrez falsely misrepresented this quoted premium to
Key International, Inc. as being $53,228.00 rather than $41,870.19. This quote was false and a
material misstatement of fact.
14, On or about February 1, 2012, Darely Caridad Gutierrez received a check in the
amount of $53,228.00 drawn on Key International Inc.’s escrow account with Wells Fargo Bank.
This check in the total amount of $53,228.00 was intended to be in payment of Key International,
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Inc.’s policy insurance premiums. Darely Caridad Gutierrez received the funds and deposited the
funds into the agency business bank account.
15. Darely Caridad Gutierrez failed to remit the entire funds on behalf of Key
International, Inc. to any insurer or to anyone else so entitled; but retained the total amount of
$53,228.00 for her own use and benefit.
16. On April 26, 2011, Darely Caridad Gutierrez entered into a fraudulent premium
finance agreement with Standard Premium Finance to finance the premiums of the three
insurance policies mentioned in Count I above in the total amount of $41,870.00 over a one year
period with the false signature of a Key International, Inc.’s corporate officer fraudulently affixed
thereto. At no time did Key International, Inc. have any knowledge of this premium finance
agreement nor did it authorize the financing of the insurance policy premiums. This premium
finance agreement was a false and material misstatement of fact and was entered into solely to
allow Darely Caridad Gutierrez to utilize the premium funds over the policy period for other
than its intended purpose. Darely Caridad Gutierrez was: aware at all times of this false and
material misstatement of facts,
17. Darely Caridad Gutierrez has misappropriated, converted, or wrongfully withheld
moneys belonging to Key International, Inc. As a result, Key International Inc. suffered a
significant financial loss.
IT IS THEREFORE CHARGED that Darely Caridad Gutierrez has violated or is
accountable under the following provisions of the Florida Insurance Code which constitutes
grounds for the suspension or revocation of his insurance licenses and eligibility for licensure:
sections 626.561; 626.611(7)(10)(13); 626.621(6); 626.9541(1)(a)l and (1)(e)(1), Florida
Statutes as more particularly alleged in Count I above.
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COUNT Il
18. Paragraphs one through four are realleged and incorporated herein by reference.
19. In early February 2013, Darely Caridad Gutierrez was solicited by Key
International, Inc., a Florida corporation doing business in Miami, Florida to provide a renewal
premium quote for the three business property and liability policies mentioned in Count I above
for the corporation. To this end, Darely Caridad Gutierrez obtained a quote from USG Insurance
Services, Inc. to insure Key International, Inc. for the premium amount of $46,021.99. However,
Darely Caridad Gutierrez falsely misrepresented this quoted premium to Key International, Inc.
as being $66,936.14 rather than $46,021.99. This quote was false and a material misstatement of
fact.
20. On or about February 1, 2013, Darely Caridad Gutierrez received a check in the
amount of $66,936.14 drawn on Key International Inc.’s escrow account with Wells Fargo Bank.
This check in the total amount of $66,936.14 was intended to be in payment of Key International,
Inc.’s policy insurance premiums. Darely Caridad Gutierrez received the funds and deposited the
funds into the agency business bank account.
21. Darely Caridad Gutierrez failed to remit the entire funds on behalf of Key
International, Inc, to any insurer or to anyone else so entitled, but retained the total amount of
$66,936.00 for her own use and benefit
22. On April 30, 2013, Darely Caridad Gutierrez entered into a fraudulent premium
finance agreement with Standard Premium Finance to finance the premiums of the three of above
mentioned insurance policies in the total amount of $41,870.00 over a one year period with the
false signature of a Key International, Inc.’s corporate officer fraudulently affixed thereto. At no
time did Key International, Inc have any knowledge of this premium finance agreement nor did it
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authorize the financing of the insurance policy premiums. This premium finance agreement was
a false and material misstatement of fact and was entered into solely to allow Darely Caridad
Gutierrez to utilize the premium funds over the policy period for other than its intended purpose.
Darely Caridad Gutierrez was aware at all times of this false and material misstatement of facts.
23. Darely Caridad Gutierrez has misappropriated, converted, or wrongfully withheld
moneys belonging to Key International, Inc. As a result, Key International Inc. suffered a
significant financial loss.
IT IS THEREFORE CHARGED that Darely Caridad Gutierrez has violated or is
accountable under the following provisions of the Florida Insurance Code which constitutes
grounds for the suspension or revocation of his insurance licenses and eligibility for licensure:
sections 626.561; 626.611(7)(10)(13); 626.621(6); 626.9541(1)(a)l and (1)(e)(1), Florida
Statutes as more particularly alleged in Count I above.
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WHEREFORE, DARELY CARIDAD GUTIERREZ is hereby notified that the Chief
Financial Officer intends to enter an Order suspending or revoking your licenses and
appointments as an insurance agent or to impose such penalties as may be provided under the
provisions of sections 626.611, 626.621, 626.681, 626.691, 626.692, and 626.9521, Florida
Statutes, and under the other referenced sections of the Florida Statutes as set out in this
Administrative Complaint. 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.
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DATED and SIGNED this _1T* day of I UAe , 2015.
a SS
Gregory Thomas, Director
Agent and Agency Services
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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 chapter 28-106, 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 a petition for administrative hearing are
required. The request must be filed with Julie Jones, DFS Agency Clerk, at the Florida
Department of Financial Services, 612 Larson Building, 200 East Gaines Street, Tallahassee,
Florida 32399-0390. Your written response must be received by the Department 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.
FAILURE TO ENSURE THAT YOUR WRITTEN RESPONSE IS RECEIVED BY
THE DEPARTMENT 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 A
FINAL ORDER OF SUSPENSION OR REVOCATION WILL BE ENTERED
AGAINST YOU,
If you request a proceeding, you must provide information that complies with the
requirements of Rule 28-106.2015, Florida Administrative Code, Specifically, your response
must contain:
(a) The name, address, telephone number, and facsimile number (if any) of the
respondent (for the purpose of requesting a hearing in this matter, you are the "respondent").
(b) The name, address, telephone number, and facsimile number of the attorney or
qualified representative of the respondent (if any) upon whom service of pleadings and other
papers shall be made.
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(c) A statement requesting an administrative hearing identifying those material facts
that are in dispute. If there are none, the petition must so indicate.
(d) A statement of when the respondent received notice of the administrative
complaint.
(c) A statement including the file number of the administrative complaint.
Ifa 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 an administrative law judge of the State of Florida
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 free form agency action, and no such oral communication or correspondence
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shall operate as a valid request for an administrative. proceeding. Any request for an
administrative proceeding received before the date of this notice shall be deemed abandoned
unless timely renewed in compliance with the guidelines as set out above.
Mediation of this matter pursuant to section 120.573, Florida Statutes, is not available.
No Department attorney will discuss this matter with you during the time frame in which you
have to request a hearing.
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Administrative
Complaint and ELECTION OF PROCEEDING has been furnished by Electronic Mail and/or
Certified Mail to Darely Caridad Gutierrez, 12530 SW 8" Street, Miami, Florida 33184
and 16542 SW 64" Terrace, Miami, Florida 33193 on this | 1*" day of “Svne-
2015.
ames A. Bossart, Esquire
ivision of Legal Services
Y Larson Building
Tallahassee, Florida 32399-0333
(850) 413-4124
ay 2199 441 7042 Pib? W586
&5
ay 799 FIL 7032 2ub? Th
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Docket for Case No: 15-004259PL
Issue Date |
Proceedings |
Oct. 15, 2015 |
Order Closing Files and Relinquishing Jurisdiction. CASE CLOSED.
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Oct. 14, 2015 |
(Petitioner's) Motion to Relinquish Jurisdiction filed.
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Sep. 16, 2015 |
Notice of Transfer.
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Aug. 20, 2015 |
Order Granting Continuance and Re-scheduling Hearing by Video Teleconference (hearing set for October 22, 2015; 9:00 a.m.; Lauderdale Lakes, FL).
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Aug. 17, 2015 |
(Respondent's) Request for Production filed.
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Aug. 17, 2015 |
(Respondent's) Motion to Re-set Video Teleconference filed.
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Aug. 12, 2015 |
Order of Pre-hearing Instructions.
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Aug. 12, 2015 |
Notice of Hearing by Video Teleconference (hearing set for September 16, 2015; 9:00 a.m.; Lauderdale Lakes and Tallahassee, FL).
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Aug. 12, 2015 |
Order of Consolidation (DOAH Case Nos. 15-4259PL, 15-4260).
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Aug. 10, 2015 |
(Petitioner's) Response to Initial Order filed.
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Aug. 04, 2015 |
Order Granting Extension of Time.
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Aug. 03, 2015 |
Joint Letter Response to Initial Order filed.
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Jul. 27, 2015 |
Initial Order.
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Jul. 27, 2015 |
Administrative Complaint filed.
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Jul. 27, 2015 |
Election of Proceeding filed.
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Jul. 27, 2015 |
Answer and Affirmative Defenses filed.
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Jul. 27, 2015 |
Agency referral filed.
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