STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE AND ) TREASURER, )

)

Petitioner, )

)

vs. ) CASE NO. 92-1902

)

ALAN JAY GOTTLIEB, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Michael M. Parrish, conducted a formal hearing in this case at Miami, Florida, on December 18, 1992. Appearances for the parties at the hearing were as follows:

APPEARANCES

For Petitioner: Joseph D. Mandt, Esquire

Department of Insurance and Treasurer Division of Legal Services

612 Larson Building

Tallahassee, Florida 32399-0330

For Respondent: Mr. Alan Jay Gottlieb, pro se

20527 Northeast 9th Place

North Miami Beach, Florida 33179 STATEMENT OF THE ISSUES

This is a license discipline proceeding in which the Respondent has been charged in a one-count administrative complaint with violation of the following statutory provisions: Sections 624.11(1), 626.062(2)(a),626.112(1), 626.331(2),

626.611(4), 626.611(5), 626.611(7), 626.611(9), 626.611(13), 626.621(2),

626.621(6), 626.9521, and 626.9541(1)(k)1., Florida Statutes.

PRELIMINARY STATEMENT

At the formal hearing on December 18, 1992, the Petitioner presented the testimony of one witness, Mr. George Alboum. The Petitioner also offered four exhibits, all of which were received in evidence. The Respondent testified on his own behalf, but did not call any other witnesses. The Respondent did not offer any additional exhibits.

At the conclusion of the hearing, both parties decided not to order a transcript of the proceedings at hearing. The parties were granted an opportunity to file proposed recommended orders. On January 4, 1993, the Petitioner filed a proposed recommended order containing proposed findings of

fact and conclusions of law. All proposed findings of fact submitted by the Petitioner are specifically addressed in the Appendix to this Recommended Order. As of the date of the issuance of this Recommended Order, the Respondent has not filed any post-hearing documents.

FINDINGS OF FACT

1. At all times relevant and material to the allegations in the Administrative Complaint, the Respondent, Alan Jay Gottlieb, was licensed in the State of Florida as a life insurance agent, as a life and health insurance agent, and as a health insurance agent.

   
   

2. In March of 1991, Mr. George Alboum was interested in purchasing a health insurance policy for his wife, Mildred Alboum. To that end he contacted Mr. Jordan S. Cain, who was one of the principals in an insurance firm named San Souci Insurance. Mr. Alboum contacted Mr. Cain because he had previously done business

   with Mr. Cain and with San Souci Insurance.

   
   

3. In response to the contact from Mr. Alboum, Mr. Cain sent the Respondent to meet with Mr. Alboum on or about March 18, 1991, to discuss procuring a health insurance policy for Mrs. Mildred Alboum. At that time the Respondent was an employee of Mr. Cain and of San Souci Insurance working in the area of insurance sales. At the time of his meeting with Mr. Alboum, the Respondent was not appointed as an agent with Boston Mutual Life Insurance Company.

   
   

4. The procurement of health insurance for Mrs. Mildred Alboum was complicated by the fact that an application could not be submitted to one of the potential insurers, Acceleration Life, because Acceleration Life would not accept an application for coverage for Mrs. Alboum. The reason for Acceleration Life's refusal to accept such an application was that during 1990 Acceleration Life had issued a health insurance policy covering Mrs. Mildred Alboum that was rescinded later that same year on the grounds of either material misrepresentation in the application or material omission in the application. The rescinded policy had been procured by Mr. Jordan S. Cain.

   
   

5. During the meeting on March 18, 1991, the Respondent and Mr. George Alboum discussed possible ways of obtaining health insurance coverage for Mrs. Alboum. Because of the problems with the prior policy that had been recently rescinded, the Respondent wanted to be especially careful in handling any further efforts to obtain health insurance coverage for Mrs. Alboum.

   
   

6. Because of the underwriting consequences that flow from

   having had a prior policy rescinded for material misrepresentation or material omission or from previous denials of coverage, under circumstances like those presented by Mrs. Mildred Alboum an insurance agent will often make informal telephone inquiries to potential insurers as to the acceptability of a described risk, rather than submit an application without some advance indication that it would meet the underwriting standards of the insurance company to whom the application was submitted. Accordingly, although the matter is not entirely free from doubt, it is unlikely that the Respondent solicited or procured an application for a health insurance policy from Mrs. Mildred Alboum when he met with Mr. Alboum on March 18, 1991. Rather, it is more likely that he recommended informal inquiries to several insurance companies prior to the submission of an application to any specific insurance company. Similarly,

   although again the matter is not entirely free from doubt, it is unlikely that the Respondent received a check from Mr. Alboum when he met with him on March 18, 1993.

   
   

7. Shortly after the March 18, 1991, meeting with Mr. Alboum, the Respondent transferred out of insurance sales and began to do bookkeeping for San Souci Insurance.

   
   

   CONCLUSIONS OF LAW

   
   

8. The following are a few basic legal conclusions relevant to this proceeding which seem so clear as not to require the citation of authority. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. In a disciplinary proceeding in which the agency seeks the penalty of suspension or revocation of a professional license, the agency bears the burden of proving its charges by clear and convincing evidence. Statutes providing for revocation of licenses must be strictly construed and any ambiguities in such statutes must be resolved in favor of the licensee. Agencies cannot take disciplinary action against a licensee on the basis of facts not alleged in the Administrative Complaint on or the basis of legal theories not asserted in the Administrative Complaint. As explained in greater detail below, application of the basic legal conclusions summarized above to the facts in this case leads to the conclusion that the charges against the Respondent should be dismissed.

   
   

9. This is basically a simple failure of proof case. The evidence submitted at hearing was insufficient to prove most of the essential allegations of the Administrative Complaint by the required standard of clear and convincing evidence. The testimony of the complaining witness notwithstanding, the Hearing Officer was left with serious and substantial doubts as to what took place during the meeting of March 18, 1991, between Mr. Alboum and the Respondent. Because the essential facts alleged in the Administrative Complaint have not been proved by the required quality of evidence, it would serve no purpose to discuss the requirements and implications of the various statutory provisions the Respondent was alleged to have violated.

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that

a Final Order be issued in this case dismissing all charges against the Respondent on the grounds that the evidence submitted at hearing was insufficient to establish the allegations of the Administrative Complaint by clear and convincing evidence.

DONE AND ENTERED this 26th day of July, 1993, at Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH, 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 26th day of July, 1993.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-1902

The following are the Hearing Officer's specific rulings on all proposed findings of fact submitted by all parties.

Proposed findings of fact submitted by the Petitioner: Paragraph 1: Accepted.

Paragraph 2: It is accepted that on or about March 18, 1991, the

Respondent met with Mr. George Alboum and discussed the possibilities for obtaining health insurance coverage for Mr. Alboum's wife. The other facts proposed in this paragraph are rejected as not supported by clear and convincing evidence. Although there is some evidence that touches upon the facts proposed in this paragraph, that evidence falls somewhat short of the clear and convincing standard described in such cases as Smith v. Department of Health and Rehabilitative Services, 522 So.2d 956 (Fla. 1st DCA 1988), and Slomowitz v.

Walker, 429 So.2d 797 (Fla. 4th DCA 1983).

Paragraph 3: Rejected as not supported by clear and convincing evidence. Although there is some evidence that such a check was written and delivered to the Respondent, that evidence is by no means clear and convincing because, in view of the circumstances when the Respondent met with Mr. Alboum, it is unlikely that the Respondent would have asked for a check.

Paragraph 4: Rejected as not supported by clear and convincing evidence and as, in any event, being contrary to the greater weight of the evidence. In view of the recision of Mrs. Alboum's previous policy, it is most unlikely that the Respondent would be expressing assurances about the issuance of the next policy.

Paragraphs 5 and 6: Rejected as not supported by clear and convincing evidence inasmuch as there is no clear and convincing evidence that the Respondent ever received the application and the check. Although Mr. Alboum testified that the Respondent received the application and the check, that testimony has not been found to be clear and convincing.

Paragraph 7: Rejected as irrelevant because there is no clear and convincing evidence that the Respondent ever received the check.

Paragraph 8: Accepted that at the time the Respondent met with Mr. Alboum, the Respondent was not appointed as an agent with Boston Mutual Life Insurance Company. The implication in this paragraph that the Respondent solicited Mrs.

Alboum is rejected as not supported by clear and convincing evidence.

Proposed findings of fact submitted by the Respondent: (None submitted)

COPIES FURNISHED:

Joseph D. Mandt, Esquire

Department of Insurance and Treasurer Division of Legal Services

612 Larson Building

Tallahassee, Florida 32399-0330

Mr. Alan Jay Gottlieb, pro se 20527 Northeast 9th Place

North Miami Beach, Florida 33179

Honorable Tom Gallagher

State Treasurer and Insurance Commissioner

The Capitol, Plaza Level Tallahassee, Florida 32399-0300

Bill O'Neil, General Counsel Department of Insurance

The Capitol, Plaza Level II Tallahassee, Florida 32399-0300

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 92-001902

Orders for Case No: 92-001902