STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE, )

)

Petitioner, )

vs. ) CASE NO. 88-5830

) CHARLES STEPHEN BONGIORNO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Don W. Davis, on January 18, 1989 in Tampa, Florida. The following appearances were entered:

APPEARANCES

FOR PETITIONER: James A. Bossart, Esq.

S. Marc Herskovitz, Esq. Department Of Insurance

412 Larson Building Tallahassee, FL 32399-0300

FOR RESPONDENT: No Appearance

BACKGROUND

By administrative complaint, Petitioner charged Respondent, an insurance agent licensed by Petitioner, with violation of various provisions of Chapter 626, Florida Statutes, and sought to impose disciplinary sanctions against Respondent's licenses and eligibility for licensure. The gravamen of the charges were that Respondent submitted two applications for life insurance to an insurance company with the purported signatures of the applicants fraudulently affixed to such applications; and that two checks in payment of initial life insurance policy premiums submitted with the applications similarly had the purported signatures of the applicants fraudulently affixed without their knowledge.

Respondent requested a formal administrative hearing pursuant to Section 120.57, Florida Statutes. This administrative proceeding ensued.

At final hearing, Petitioner presented testimony of five witnesses and 17 evidentiary exhibits. Respondent did not appear and no evidence was presented on his behalf. Proposed findings of fact submitted by Petitioner are addressed in the appendix to this recommended order. Respondent did not timely file any proposed findings of fact, and none were available at the time of the preparation of this recommended order.

Based upon all of the evidence, including the demeanor of the witnesses who testified, the following findings of fact are determined:

FINDINGS OF FACT

1. Respondent is Charles Stephen Bongiorno, licensed by Petitioner at all times relevant to these proceedings to engage in the business of insurance in the areas of life, health and legal expense insurance.

   
   

2. Respondent was a representative for Life Insurance Company of Georgia from July 17, 1986 through June 26, 1987. He was a representative for Investors Life Insurance Company of North America (CIGNA) from June 5, 1987 through September 16, 1987.

   
   

3. In early April of 1987, Respondent met with Harvey and Patricia Noury regarding the purchase of life insurance by them. As a result of that meeting, Respondent prepared two life insurance applications for submittal to Life Insurance Company of Georgia; one on behalf of Harvey Noury and the other on behalf of Patricia Noury. Harvey and Patricia signed their respective applications in blank and gave Respondent two checks in payment of the initial premiums on each policy. Those checks were subsequently endorsed and deposited by Life Insurance Company of Georgia.

   
   

4. Mr. and Ms. Noury executed the blank applications based on Respondent's assurances that he would complete the applications from information in his office files. The office file information had been gleaned from the couple by Respondent in the course of selling them disability insurance coverage on a previous occasion. After the sale of that disability insurance coverage, a social relationship had developed between the Nourys, Respondent and an individual introduced to the Nourys by Respondent named Alice Baker.

   
   

5. Information contained in part 2 of the Life of Georgia insurance policy application submitted by Respondent to that company on behalf of Harvey Noury was inconsistent with the information obtained by Respondent from Mr. Noury at the time of the previous sale of the disability insurance coverage. Information on the Life of Georgia insurance policy application also misrepresented Harvey Noury's previous five year medical history.

   
   

6. After signing the insurance policy applications and giving Respondent their checks, the Nourys cancelled their life insurance coverage which they had held until that time with another insurance company. Five or six weeks after the April 1987 meeting, Patricia Noury called Respondent as a result of her concern that the new insurance policies had not arrived. Respondent vaguely promised to look into the matter. Subsequently, Respondent told Ms. Noury that he would submit applications to other insurance companies on the couple's behalf while awaiting approval by Life of Georgia Insurance Company of those policies. Through Respondent, the Nourys obtained and signed applications for insurance with Commercial Union Insurance Company and John Hancock Insurance Company; they also provided checks to cover initial premium charges to accompany these applications. No checks or applications were signed or provided to Respondent by the Nourys for any other insurance companies.

   
   

7. Around this point in time, the sister company of CAGNA, known as Insurance Company of North America (INA), received two applications for life insurance; each bearing agency code numbers assigned to Respondent by CIGNA for such submittals as well as his signature as the submitting agent. One application was on behalf of Harvey Noury; the other on behalf of Patricia Noury. One application bore a signature purporting to be that of Harvey Noury; the other application was purported to be signed by Patricia Noury. Both

   applications were dated June 17, 1987. Two checks for the applications were also received by INA. Both checks were purportedly signed by Harvey L. Noury. One check was dated June 17, 1987, and was drawn in the amount of $100.85; the other in the amount of $120.85 was dated June 25, 1987. Both checks were drawn on a checking account at the Holiday Bank of Holiday, Florida. The account was closed at the time of the dates reflected on the checks and was no longer a valid account. The only authorized signatory on the account had been an individual named Alice Baker.

   
   

8. Once received by INA, the applications and checks were handled administratively by CIGNA since Respondent was not licensed to represent INA. By letters dated July 9, 1987, the Nourys were informed by CIGNA that checks purported to be signed by Harvey Noury in payment of initial premiums on recently purchased life insurance policies had been dishonored upon presentment for payment and returned to the company. The Nourys were informed that payment of the premiums would be necessary to prevent cancellation of insurance

   coverage. The Nourys had not applied for insurance with the company or executed any checks payable to the company. Further, they had not authorized anyone to submit applications on their behalf to either INA or CIGNA.

   
   

9. Upon receipt of the communications from CIGNA, the Nourys contacted Respondent. He told them not to worry and that he would look into the matter. Two days after receipt of the letters from CIGNA, Harvey Noury received a telephone call from CIGNA's representative inquiring as to the reason Mr. Noury did not want the policy. Noury explained to the representative that he never signed applications or checks for the policy and had not received the policy. Pursuant to the representative's request, Noury wrote to CIGNA explaining what he knew concerning the matter.

   
   

10. CIGNA paid Respondent $2,958.05 in commissions on sale of the two policies for life insurance reflected by the applications received on behalf of the Nourys. After learning that the Nourys would not pay for the policies, a demand was made by CIGNA that Respondent return the commissions. Respondent did not return the commissions. As a result of his failure to return the commissions, CIGNA terminated the contract with Respondent to act as its agent.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes.

    
    

12. The administrative complaint sets forth allegations of three violations of Section 626.611, Florida Statutes, which, if substantiated, mandate imposition of disciplinary sanctions of suspension or revocation of Respondent's licenses and eligibility for licensure. The pertinent portions of Section 626.611, Florida Statutes, read as follows:

    
    

    626.611 Grounds for compulsory refusal, suspension, or revocation of agent's, solicitor's, or adjuster's license or service representative's, supervising or managing general agent's, or claims investigator's permit.--The Department shall deny, suspend, revoke, or refuse to renew or continue the license of any agent, solicitor, or adjuster or the permit of any service representative,

    supervising or managing general agent, or claims investigator, and it shall suspend or revoke the eligibility to hold a license or permit of any such person if it finds that as to the applicant, licensee, or permittee any one or more of the following applicable grounds exist:

    * * *

    (7) Demonstrated lack of fitness or trustworthiness to engage in the business of insurance.

    * * *

    (9) Fraudulent or dishonest practices in the conduct of business under the license or permit.

    * * *

    (13) Willful failure to comply with, or willful violation of any proper order or rule of the department or willful violation of any provision of this code.

    
    

13. Respondent clearly and convincingly violated the foregoing statutory provisions by providing false information in regard to Harvey Noury's medical history on the application to Life of Georgia Insurance; by his submittal of forged checks and applications to INA; and by his collection of unearned commissions from CIGNA and his failure to return them.

    
    

14. As a result of those same actions, Respondent is also guilty of violating Section 626.621(6), Section 626.9521, and Section 626.9541(1)(e) and (k), Florida Statutes, prohibiting unfair and deceptive acts of this nature in the business of insurance.

    
    

15. Further, these actions of Respondent also constitute violation, as alleged in the administrative complaint, of Section 626.621(2), Florida Statutes, prohibiting violation of any provision of the insurance code in the course of dealing under a license or permit.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the

allegations set forth in the administrative complaint and that his licenses and eligibility for licensure be revoked.

DONE AND ENTERED this 3rd day of March, 1989, in Tallahassee, Leon County, Florida.

DON W. DAVIS

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 3rd day of March, 1989.

APPENDIX

The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties.

PETITIONER'S PROPOSED FINDINGS

1.-3. Adopted in substance. 4.-35. Addressed.

RESPONDENT'S PROPOSED FINDINGS

No proposed findings were presented.

COPIES FURNISHED:

Honorable Tom Gallagher

State Treasurer and Insurance Commissioner

The Capitol, Plaza Level Tallahassee, Florida 32399-0300

Don Dowdell, Esquire

The Capitol, Plaza Level Tallahassee, Florida 32399-0300

James A. Bossart, Esq.

S. Marc Herskovitz, Esq.

Department of Insurance and Treasurer

412 Larson Building Tallahassee, Florida 32399-0300

Charles Stephen Bongiorno 1320 Oak Valley Dr.

Seffner, FL 33584 and

17721 Sunrise Dr.

Lutz, FL 33549

Docket for Case No: 88-005830

Orders for Case No: 88-005830