STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE )

)

Petitioner, )

)

vs. ) CASE NO. 78-2531

)

DAVID ALLEN JOSEPH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this case on April 3, 1979, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Patrick F. Maroney, Esquire

Office of Treasurer The Capitol

Tallahassee, Florida 32301

For Respondent: Brian T. Hayes, Esquire

245 East Washington Street Monticello, Florida 32344

On or about December 27, 1978, Petitioner, the Department of Insurance, filed an Administrative Complaint in two counts charging Respondent, David Allen Joseph, a disability insurance agent licensed by the State of Florida, with violations of numerous provisions of Chapter 626, Florida Statutes, arising from alleged activities participated in by Respondent at a time when he was not licensed as an insurance agent. Respondent denied the material allegations of the Administrative Complaint, and requested a formal hearing pursuant to the provisions of Section 120.57(1), Florida Statutes.

At the final hearing in this cause, Petitioner voluntarily dismissed allegations of Count II of the Administrative Complaint. Petitioner called Florence V. Kebalak and Morris Janovitz as its witnesses. In addition, Petitioner offered Petitioner's Exhibits Nos. l and 2, each of which was received into evidence. Respondent testified in his own behalf, but offered no documentary evidence or the testimony of any other persons.

At the conclusion of the hearing, both Petitioner and Respondent waived the requirements of Chapter 120, Florida Statutes, requiring the entry of a recommended order by the Hearing Officer in this cause within thirty days from the filing of the transcript with the Division of Administrative Hearings.

FINDINGS OF FACT

1. Respondent is a duly licensed disability insurance agent in the State of Florida. Respondent's first license to operate as a disability agent in Florida was issued on July 1, 1978.

   
   

2. In June, 1978, after Respondent had taken his licensing exam, but before his initial license issued, Respondent conducted a "cold canvass" of an area in Hollywood, Florida, in which Florence v. Kebalak resided. It appears from the record that a "cold canvass," as that term is used in the insurance industry, is a procedure by which homes in various areas in a community are visited without prior contact by representatives of an insurance agency in hopes of making contacts which might ultimately lead to the sale of insurance policies. It is not disputed that at the time of the "cold canvass" in question in this proceeding, Respondent was not licensed as an insurance agent in the State of Florida. Respondent contends that the purpose of his visit to Mrs. Kebalak was not to solicit the sale of insurance, but to set up "future appointments" in order to obtain "future business for our company."

   
   

3. At the time of Respondent's visit to the home of Mrs. Kebalak, he inquired concerning her insurance program. When told that Mrs. Kebalak had existing policies, Respondent asked to examine the policies. Mrs. Kebalak advised Respondent that she had existing policies with Orange State Life Insurance Company purchased through United Insurance Agency in Broward County, Florida. Respondent then told Mrs. Kebalak that Orange State Life Insurance Company was no longer in business in the State of Florida because it "had paid out an average of $4,000,000 in claims", that Morris Janovitz, the owner of United Insurance Agency, was no longer in business because he was a "thief" and had left the agency, and that Respondent was taking over the Hollywood, Florida area for United Insurance Agency. In addition, Respondent told Mrs. Kebalak that he would sell her a combination policy from Prudential Insurance Company covering hospitalization, cancer and intensive care to replace the policies which she held with Orange State Life Insurance Company.

   
   

4. It is not disputed that Respondent left with Mrs. Kebalak a business card from American General Health Agency Associates, Inc., an agency with which Respondent's father was employed. The business card left with Mrs. Kebalak originally had Respondent's father's name printed an it, but Respondent had scratched out his father's first name and had written his own above it so that the card left with Mr. Kebalak read "David Joseph, District Manager."

   
   

5. Respondent denies that he advised Mrs. Kebalak that her policies were no longer any good, and also denies making any statements concerning Orange State Life Insurance Company, Morris Janovitz, or United Insurance Agency. Respondent also denies having told Mrs. Kebalak that he could sell her a Prudential Insurance Company policy because, according to Respondent's testimony, "...I was not licensed with Prudential, and neither was the agency with which I was employed." However, the aforementioned card left by Respondent with Mrs. Kebalak reflects on its face that American General Life Agency Associates, Inc., the agency which Respondent purported to represent, featured insurance from Prudential Insurance Company.

   
   

6. While Respondent was still in Mrs. Kebalak's home, Mrs. Kebalak placed a telephone call to Morris Janovitz, the owner of the agency through which she had purchased her insurance with Orange State Life Insurance Company. She indicated to Mr. Janovitz that a salesman was in her home attempting to sell her insurance, and inquired whether the salesman was employed by United Insurance

   Agency. A heated discussion ensued between Respondent and Mr. Janovitz, and Respondent shortly thereafter left Mrs. Kebalak's home. He did, however, return almost immediately to attempt to retrieve the card he had left with Mrs.

   Kebalak. Mrs. Kebalak, however, did not return the card.

   
   

7. It is not disputed that, while Respondent was in Mrs. Kebalak's home, he took no written application for insurance from her, nor did he receive any financial remuneration from Mrs. Kebalak as a result of the visit. It is also not disputed that Orange State Life Insurance Company has not ceased doing business in the State of Florida and that Morris Janovitz is still actively in the insurance business as owner of United Insurance Agency.

   
   

8. There were numerous direct conflicts in the testimony of the witnesses in this proceeding. In attempting to resolve these conflicts, the Hearing Officer took into account the appearance and demeanor of the witnesses while testifying, and their interest, if any, in the outcome of this proceeding.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Sections 120.57(1), 120.60, Florida Statutes.

   
   

10. In light of the findings of fact hereinabove set forth, Respondent

    has:

    
    

    1. demonstrated a lack of fitness or trustworthiness to engage in

       the business of insurance in violation of Section 626.611(7), Florida Statutes;

       
       

    2. allowed a cause to exist for which the issuance of a license or a permit could have been refused had it then existed and been known to the Department of Insurance in violation of Section 626.621(1), Florida Statutes:

       
       

    3. violated the provision against "twisting", as defined in Section 626.955, Florida Statutes, in violation of Section 626.621(5), Florida Statutes;

       
       

    4. solicited insurance while not licensed as a disability agent in violation of Sections 626.062(2)(a), Florida Statutes;

       
       

    5. held himself out to be an insurance agent while not then licensed as such agent under a currently effective license issued by the Department of Insurance in violation of Section 626.112(1), Florida Statutes.

       
       

    6. made a statement which is misleading, or is a misrepresentation, as to the financial condition of any person or as to the legal reserve system upon which any life insurer operates in violation of Section 626.954(1)(d) Florida Statutes;

       
       

    7. made a statement which is a misrepresentation on for the purpose of inducing, or tending to induce, the lapse, forfeiture, exchange, conversion, or surrender of any insurance policy in violation of Section 626.9541(1)(f), Florida Statutes;

       
       

    8. made a statement containing any assertion, representation, or statement with respect to the business of insurance, which is untrue, deceptive, or misleading in violation of Section 626.9541(2), Florida Statutes.

    9. made an oral statement which is false or maliciously critical of, or derogatory to, any person and in which is calculated to injure such person in violation of Section 626.9541(3), Florida Statutes;

       
       

    10. knowingly made, published or delivered to any person or placed before the public any false material statement in violation of Section 626.9541(5)(a), Florida Statutes; and

(m) made misleading representations on incomplete or fraudulent comparisons of any insurance policies or insurers for the purpose of inducing, or attempting to induce, any person to lapse, forfeit, surrender, terminate, retain, pledge, assign, borrow on, or convert any insurance policy or to take out a policy of insurance in another insurer in violation of Section 626.9541(12), Florida Statutes.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED:

That a Final Order be entered by the State of Florida, Department of Insurance, suspending Respondent's license as a disability insurance agent for a period of one year, and further suspending Respondent's right to the issuance of any additional licenses as an insurance agent for a period of one year as to the facts alleged in Count I of the Administrative Complaint, and dismissing Count II of the Administrative Complaint.

RECOMMENDED this 13th day of July, 1979, in Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 1979.

COPIES FURNISHED:

Patrick F. Maroney, Esquire Office of Treasurer

The Capitol

Tallahassee, Florida 32301

Brian T. Hayes, Esquire

245 East Washington Street Monticello, Florida 32344

Docket for Case No: 78-002531

Orders for Case No: 78-002531