STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE AND )

TREASURER, )

)

Petitioner, )

)

vs. ) CASE NO. 95-0317

)

RAFAEL ALMENDRAL, )

)

Respondent, )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on November 16 and 17, 1995, in Miami, Florida.

APPEARANCES

For Petitioner: John R. Dunphy, Esquire

Department of Insurance and Treasurer Division of Legal Services

612 Larson Building

Tallahassee, Florida 32399-0333

For Respondent: Charles J. Grimsley, Esquire

Charles J. Grimsley and Associates, P.A. 1880 Brickell Avenue

Miami, Florida 33129 STATEMENT OF THE ISSUES

Whether the Respondent, a licensed insurance agent, committed the offenses alleged in the Second Amended Administrative Complaint.

PRELIMINARY STATEMENT

The initial administrative complaint was filed by Petitioner against Respondent on November 4, 1994. The Respondent timely denied the material allegations of that administrative complaint, the matter was referred to the Division of Administrative Hearings, and this proceeding followed. Petitioner was twice given leave to amend the administrative complaint. The Second Administrative Complaint contained the allegations that were at issue at the formal hearing.

Count One pertained to a transaction involving consumer Susan Arcamonte.

Count Two pertained to a transaction involving consumers Linda E. Johnson and her husband, Miguel Morel.

Count Three pertained to a transaction involving consumer Show Ming Hwang.

Count Four pertained to certain business dealings of Maria del Carmen Comas (who was subsequently known as Maria del Carmen Diaz), an insurance agent whose insurance license had been revoked by Petitioner in a separate proceeding.

Count Five pertained to a transaction involving consumers Mr. and Mrs.

Santiago Martinez.

Count Six pertained to a transaction involving consumers Issac and Ramon Zafrani.

Count Seven pertained to alleged debts owed by Respondent and his insurance agency to World Premium Finance Company.

Count Eight pertained to a transaction involving consumer Madalina Gutierrez.

Count Nine pertained to a transaction involving consumer Rafael Rico. Count Ten, involving consumer Gussie Stokes, was voluntarily dismissed by

Petitioner after Mr. Stokes did not appear at the formal hearing.

Count Eleven pertained to a transaction involving consumer Dieuseul Cheri.

Count Twelve pertained to business dealings of Alvaro Alcivar, who was not licensed by Petitioner.

Count Thirteen pertained to business dealings of Carlos Gonzalez, who was not licensed by Petitioner.

The Second Amended Administrative Complaint charged that Respondent violated or was accountable under the following provisions of the Florida Insurance Code (Chapter 626, Florida Statutes): Section 626.112(1); Section 626.561(1); Section 626.611(1); Section 626.611(4); Section 626.611(5); Section

626.611(7); Section 626.611(8); Section 626.611(9); Section 626.611(10), and

Section 626.611(13); Section 626.621(2); Section 626.621(3) Section 626.621(6);

Section 626.621(12); Section 626.641(4); Section 626.734; Section 9521; Section 626.9541(1)(e)1.; Section 626.9541(1)(k)1.; and Section 626.9541(1)(o)1.,

Florida Statutes.

The Second Amended Administrative Complaint advised that Petitioner was seeking to revoke Respondent's licensure or to otherwise impose penalties as provided under the provisions of the Florida Insurance Code, including Sections 626.611, 626.621, 626.681, 626.691, and 626.9521, Florida Statues.

Petitioner presented the testimony of 23 witnesses and presented the depositions of six additional witnesses. Petitioner presented 25 exhibits, including the post-hearing depositions that the undersigned authorized pursuant to the stipulation of the parties. Each of these exhibits was admitted into evidence with the exception of Petitioner's exhibit 5, pages 3.1-3.24 of Petitioner's exhibit 8, Petitioner's exhibit 9 and Petitioner's exhibit 14.

Ruling was reserved on Petitioner's exhibit 5 pending a post-hearing deposition of Susan Arcamonte. That deposition has been taken and filed, as authorized by the undersigned, and Petitioner's exhibit 5 is admitted into evidence.

Petitioner's exhibit 9 was incomplete and has not been supplemented.

Consequently, Petitioner's exhibit 9 is rejected. There was no Petitioner exhibit numbered 14.

Respondent testified on his own behalf and presented the additional testimony of two other witnesses. Respondent offered five exhibits, four of which were admitted into evidence.

The parties have stipulated to the admissibility of the exhibits attached to the depositions filed in this proceeding. The parties have also stipulated to Joint Exhibit 1, being the reverse side of the Arcamonte application and Joint Exhibit 2, being the Arcamonte power of attorney. Those stipulations are accepted and those additional exhibits are admitted into evidence.

Petitioner moved to file a proposed recommended order that exceeds 40 pages. Respondent has filed no response in opposition to that motion.

Petitioner's motion is hereby granted.

A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 60Q-2.031, Florida Administrative Code. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to this proceeding, Respondent was licensed in this state by the Petitioner as an insurance agent. Respondent was licensed, pursuant to the Florida Insurance Code (Chapter 626, Florida Statutes) as a general lines agent, a health insurance agent, and a residential property and casualty joint underwriting association representative.

   
   

2. In February 1990, Maria del Carmen Comas, who was subsequently known as Maria del Carmen Diaz (hereinafter referred to as Maria Diaz), was licensed by Petitioner as an insurance agent. By Final Order entered September 20, 1994, the licensure of Ms. Diaz was revoked by the Petitioner. At all times pertinent to this proceeding, Respondent and Ms. Diaz maintained a close personal and professional relationship.

   
   

3. On October 12, 1990, an entity known as The First Assurance, Inc., (hereinafter referred to as FIRST) was incorporated under the laws of the State of Florida. At all times pertinent to this proceeding, Respondent was the president and sole officer of FIRST, which is a Florida incorporated general lines insurance agency. FIRST operated out of offices located at 10680 Coral Way, Miami, Florida (hereinafter referred to as the Coral Way location) until June 1994, when Respondent moved the office of FIRST to 8780 Sunset Drive, Miami, Florida.

   
   

4. On September 21, 1993, an entity known as The First Assurance of Miami, Inc., (hereinafter referred to as FIRST OF MIAMI) was incorporated under the laws of the State of Florida by Respondent and Maria Diaz. At all times pertinent to this proceeding, Respondent was the president and sole officer of FIRST OF MIAMI, a Florida incorporated general lines insurance agency doing business at 8780 Sunset Drive, Miami, Florida (hereinafter referred to as the Sunset Drive location). Respondent and Ms. Diaz were equal owners of FIRST OF MIAMI until that corporation ceased its operation in February 1995.

5. On August 26, 1994, an entity known as Marlin Insurance Agency, Inc., (hereinafter referred to as MARLIN) was incorporated under the laws of the State of Florida. Respondent was the sole incorporator of MARLIN. At all times pertinent to this proceeding, Respondent was the president and sole officer of MARLIN, a Florida incorporated general lines insurance agency doing business at the Sunset Drive location where Respondent operated FIRST and FIRST OF MIAMI.

   
   

6. MARLIN was originally incorporated for the purpose of purchasing the business of Rodal Insurance Agency in Hialeah, Florida. After the purchase of Rodal was rescinded by court order, MARLIN remained dormant until February 1995, when MARLIN began operating as a general lines insurance agency at the Sunset Drive location. At all times pertinent to this proceeding, Respondent was the supervising agent of MARLIN.

   
   

7. As long as FIRST and FIRST OF MIAMI maintained separate offices, Respondent managed the day to day affairs of FIRST and Ms. Diaz managed the day to day affairs of FIRST OF MIAMI. After FIRST moved its offices into those of FIRST OF MIAMI, the separation of management became less distinct.

   
   

8. At all times pertinent to this proceeding, Carlos Gonzalez was an employee of FIRST or of FIRST OF MIAMI. Mr. Gonzalez was hired and trained by Respondent and worked under his direct supervision. At no time pertinent to this proceeding did Mr. Gonzalez hold any license or appointment under the Florida Insurance Code.

   
   

9. At all times pertinent to this proceeding, Alvaro Alcivar was an employee of FIRST OF MIAMI or of MARLIN. Mr. Alcivar acted under the supervision of either Maria Diaz or of Respondent. At no time pertinent to this proceeding did Mr. Alcivar hold any license or appointment under the Florida Insurance Code.

   
   

10. At all times pertinent to this proceeding, Respondent had sole signatory authority of the FIRST's account number Number33080870-10 (the FIRST expense account) and of FIRST's account Number0303043975-10, both maintained at Ready State Bank in Hialeah, Florida.

    
    

11. At all times pertinent to this proceeding, Respondent had joint signatory authority with Maria Diaz of the FIRST's account number Number33095150-10 maintained at Ready State Bank in Hialeah, Florida.

    
    

12. At all times pertinent to this proceeding, Respondent had joint signatory authority with Maria Diaz of the FIRST OF MIAMI's account number Number33095630-10 maintained at Ready State Bank in Hialeah, Florida.

    
    

13. At all times pertinent to this proceeding, Respondent had sole signatory authority of the FIRST OF MIAMI's account number Number0303116492-10 maintained at Ready State Bank in Hialeah, Florida.

    
    

14. All premiums, return premiums and other funds belonging to insureds, insurers, and others received in transactions under his license were and remain trust funds held by Respondent in a fiduciary capacity.

    
    

15. Respondent obtained a power of attorney from his customers as a routine business practice.

16. Respondent has repeatedly issued checks in payment of fiduciary funds that have subsequently been dishonored by the bank because the account on which the checks were drawn had insufficient funds.

    
    

    ARCAMONTE TRANSACTION (COUNT ONE)

    
    

17. On or about July 14, 1993, Susan Arcamonte of Miami, Florida, purchased a new car. Susan Arcamonte needed insurance for this automobile and discussed that need with Carlos Gonzalez, who was employed by FIRST. As a result of her discussions with Mr. Gonzalez, Ms. Arcamonte agreed to purchase a policy of insurance that would be issued by Eagle Insurance Company. The annual premium quoted by Mr. Gonzalez for this policy totaled $1,618.00. Mr. Gonzalez advised her that there would be additional charges if the premium was paid by a premium finance company. Because she did not have the funds to pay the lump sum annual premium and did not want to finance the premium, she had her parents, Edmond and Nancy Arcamonte, pay the annual premium. As instructed by Carlos Gonzalez, this check was in the amount of $1,618.00 and was made payable to "The First Assurance, Inc." This check was in full payment of the annual premium for the automobile insurance policy that was to be issued by Eagle Insurance Company. After receiving the check from Mr. and Mrs. Arcamonte, Mr. Gonzalez issued to Susan Arcamonte an insurance card containing the name "The First Assurance, Inc." and binder numbers 12873 and 931374 written across the top.

    Mr. Gonzalez represented to Ms. Arcamonte that this was a binder of the coverage they had discussed.

    
    

18. Mr. Gonzalez thereafter delivered the check and the completed application for insurance to FIRST. Respondent reviewed the application for insurance and signed the application. The Arcamontes' check was thereafter deposited by Respondent into the FIRST expense account at Ready State Bank, Hialeah, Florida.

    
    

19. In July 1993, Respondent or some person in his employ at FIRST and acting with his knowledge under his direct supervision and control, affixed the signature of Susan Arcamonte to a Century Premium Insurance Finance Co., Inc. (Century PFC) premium finance agreement and, in the space provided for her address, filled in the office address of FIRST. Ms. Arcamonte's signature was affixed to this agreement without her knowledge or consent. Respondent personally signed the premium fiance agreement that was sent to Century PFC.

    
    

20. Because the address of FIRST was inserted on the premium finance agreement, Ms. Arcamonte did not receive payment coupons, cancellation notices, and other correspondence from Century PFC. Consequently, the existence of the premium finance agreement was concealed from Ms. Arcamonte.

    
    

21. The original application for insurance signed by Susan Arcamonte contained a power of attorney purporting to grant Respondent the authority to sign Ms. Arcamonte's name to "applications or similar papers including premium finance contracts". There was no disclosure that the signature on the premium finance agreement was not that of Ms. Arcamonte or that FIRST was executing her signature pursuant to a power of attorney.

    
    

22. Respondent contends that the premium finance agreement was executed pursuant to the power of attorney because the check from Mr. and Mrs. Arcamonte was inadvertently separated from her application for payment and erroneously deposited into the FIRST expense account. This contention lacks credibility and is rejected. The fact that Respondent deposited the check in his expense account, that the paperwork for the premium finance agreement contained the

    FIRST address, that Respondent took no action to rectify this alleged error even after receiving correspondence from the finance company, and that Ms.

    Arcamonte's signature was forged on the application belie Respondent's contention that this was an innocent mistake.

    
    

23. On or about September 20, 1993, the Eagle Insurance policy that Ms. Arcamonte purchased was cancelled for nonpayment of premiums because Respondent, or persons acting under his direct supervision and control, failed to make a regular installment payment on the premium finance agreement. Ms. Arcamonte never received the 10 Day Notice of Cancellation Notices that Century PFC mailed to FIRST's address. It was not until October 1993 when she received a Notice of Cancellation from Eagle mailed September 27, 1993, that she learned that her policy had been cancelled effective September 20, 1993.

    
    

24. As a result of Respondent's actions and those of Carlos Gonzalez, Susan Arcamonte failed to timely receive automobile insurance, suffered a finance charge for automobile insurance without her knowledge or consent, had her automobile insurance cancelled, and incurred higher premium charges for subsequent coverage because of a gap in her coverage. Following a criminal complaint filed against him by Ms. Arcamonte, Respondent was arrested and placed in a pretrial intervention program. It was only after this action was taken that Respondent made restitution to the Arcamontes for the $1,618.00 premium they paid.

    
    

25. At no time during the transaction, did the Arcamontes deal with anyone from the FIRST other than Carlos Gonzalez. Mr. Gonzalez held himself out to be and acted as an insurance agent during this transaction. Specifically, Carlos Gonzalez did the following:

    
    

    1. Was introduced to the Arcamontes as an insurance agent and did not correct that misidentification.

    2. Interviewed Susan Arcamonte to gather the information necessary to determine level of coverage and to quote a premium for that coverage.

    3. Discussed coverage options and requirements including whether Ms. Arcamonte needed personal injury protection.

    4. Discussed deductible options and answered general questions about insurance.

    5. Selected an insurer for Ms. Arcamonte, quoted a premium for that coverage, and made representations as to the quality of the insurer.

    6. Offered to bind insurance coverage for the automobile Ms. Arcamonte was in the process of purchasing and sent a binder to her at the automobile dealership via fax.

    7. Personally completed the insurance application and related paperwork.

    8. Personally completed an insurance identification card, including binder numbers, as proof of insurance, and presented the identification

       card to Ms. Arcamonte.

    9. Presented Ms. Arcamonte with a business card that identified himself as a representative of FIRST.

       
       

26. Respondent knew or should have known of the acts of Carlos Gonzalez. Respondent received from Mr. Gonzalez the application for insurance he had completed for Ms. Arcamonte so that all Respondent had to do was sign it.

    
    

    JOHNSON - MOREL TRANSACTION (COUNT TWO)

    
    

27. On May 31, 1993, Linda E. Johnson and her husband, Miguel Morel, visited the residence of Wilfreido Cordeiro, an employee of FIRST who was acting on behalf of FIRST. As a result of their conversation with Mr. Cordeiro about their insurance needs, Mr. Morel and Ms. Johnson completed an application for automobile insurance from Armor Insurance Company (Armor) to be issued through FIRST.

    
    

28. Mr. Cordeiro, who was not licensed by Petitioner for any purpose, held himself out to be an agent. He represented to these consumers that coverage with Armor was bound and gave them an identification card with the FIRST name on it that purported to be a binder of coverage. The FIRST insurance identification card was issued without authorization from Armor and in violation of the established policies and practices of Armor.

    
    

29. Because Mr. Cordeiro was unlicensed, Respondent acted as the agent of record for this transaction.

    
    

30. On or about May 31, 1993, Mrs. Linda E. Johnson tendered to Respondent, or persons acting with his knowledge and under his direct supervision and control, a check in the amount of $500.00 payable to FIRST as a premium down payment for the automobile insurance from Armor.

    
    

31. On or about June 4, 1993, Respondent, or persons acting with his knowledge and under his direct supervision and control, deposited Mrs. Johnson's check in the FIRST expense account at the Ready State Bank.

    
    

32. On or about June 29, 1993, Mrs. Johnson was contacted by her bank and informed that she had no automobile insurance. She immediately contacted Respondent who provided the bank with a certificate of insurance indicating coverage was placed with American Skyhawk Insurance (American Skyhawk) effective June 1, 1993.

    
    

33. No authority to bind coverage had been extended by American Skyhawk prior to the submission of the application two and one-half months after the coverage effective date indicated on the certificate of insurance.

    
    

34. On or about August 18, 1993, Respondent, or persons acting with his knowledge and under his direct supervision and control, completed a Century PFC and affixed thereto the signature of Mr. Morel without his knowledge or consent. This agreement reflected that Mr. Morel had paid the sum of $400.00 as a downpayment, despite the fact that Mrs. Johnson's check, in the amount of

    $500.00, had been received and deposited in the Respondent expense account.

    
    

35. As a result of Respondent's action, Mrs. Johnson and Mr. Morel failed to timely receive automobile coverage; suffered a finance charge for automobile insurance without their knowledge or consent; and suffered the loss in at least the amount of $100.00.

36. At no time during the transaction with FIRST did Mr. Morel or Mrs. Johnson knowingly execute a power of attorney.

    
    

    HWANG TRANSACTION (COUNT THREE)

    
    

37. On August 29, 1992, Mr. Show Ming Hwang of Miami, Florida, purchased via telephone a policy of insurance for a car he was purchasing. Mr. Hwang called from a car dealership and spoke to an employee of FIRST who was acting under Respondent's direct supervision. Mr. Hwang tendered to FIRST a check in the amount of $869.00 as the full premium for this insurance, which was to be issued by an insurer named Security National.

    
    

38. Respondent was the agen t of record for this transaction.

    
    

39. Security National issued policy NumberSN00127048 providing insurance coverage for Mr. Hwang effective August 29, 1992.

    
    

40. On December 22, 1992, Mr. Hwang asked FIRST to cancel his policy with Security National because he had moved and had secured other coverage.

    
    

41. On January 15, 1993, Security National cancelled insurance policy NumberSN00127048 in response to Mr. Hwang's request.

    
    

42. On January 26, 1993, Security National sent to Respondent its check Number216878 in the sum of $366.35 payable to Mr. Hwang. This check was a refund of the unearned premium for the cancelled policy. In addition to the unearned premium, Mr. Hwang was also entitled to a refund of the unearned commission from FIRST. The amount of the unearned commission was $64.55 and should have been paid by FIRST directly to Mr. Hwang.

    
    

43. On February 8, 1993, Respondent, or an employee of FIRST acting under his direct supervision, endorsed the check from Security National in the name of Mr. Hwang and deposited that check in the FIRST expense account at Ready State Bank.

    
    

44. Mr. Hwang was unaware that his name had been endorsed on the check and had not authorized such endorsement. This endorsement was not pursuant to a validly executed power of attorney.

    
    

45. Mr. Hwang made repeated attempts to obtain the refunds to which he was entitled. Finally, he secured the intervention of the Petitioner. After that intervention, Respondent issued a FIRST check on December 17, 1993, payable to Mr. Hwang in the amount of $431.00 as payment of the refunds. Less than a month later, this check was dishonored because there were insufficient funds in the account on which it was drawn.

    
    

46. After further intervention by the Petitioner, Respondent issued a cashier's check in the amount of $431.00 payable to Mr. Hwang. This check, dated March 22, 1994, was thereafter received and deposited by Mr. Hwang.

    
    

47. Respondent failed to return the refunds to Mr. Hwang in the applicable regular course of business and converted the refund from Security National to his own use until the intervention of the Petitioner. As a result of Respondent's actions, Mr. Hwang failed to timely receive these refunds.

    MARIA DIAZ (COUNT FOUR)

    
    

48. On September 20, 1994, the Petitioner entered a Final Order that revoked all licenses that it had previously issued to Maria Diaz (who was at that time known as Maria del Carmen Comas).

    
    

49. In September 1994, Ms. Diaz, accompanied by Respondent, visited the Petitioner's office in Miami where she was told that the revocation of her license was forthcoming. After that information was given to them, Respondent and Ms. Diaz knew or should have known that the revocation of her licensure was imminent.

    
    

50. There was insufficient evidence to establish when Ms. Diaz received a written copy of the order revoking her licensure. Ms. Diaz and Respondent assert that they did not know about the revocation until the end of January, 1995.

    
    

51. The order entered in September 1994 prohibited Ms. Diaz from engaging in or attempting to engage in any transaction or business for which a license or appointment is required under the Insurance Code or directly owning, controlling, or being employed in any manner by any insurance agent or agency.

    
    

52. After Respondent and Ms. Diaz had been told that the revocation of her licensure was imminent, Ms. Diaz engaged in transactions requiring licensure and acting in violation of the order revoking her licensure. This activity included applying to Seminole Insurance Company (Seminole) in December 1994 seeking appointment as a general lines insurance agent by Seminole, the submission of a large number of applications to Seminole, and the mishandling of an insurance transaction with Johannah Rexach in July and August 1995. Ms. Diaz began a business as a travel agent at the MARLIN office and continued to be present in the MARLIN office long after she had received written notice of the revocation of her licensure by Petitioner. At least on one occasion in May 1995, Ms. Diaz answered the MARLIN telephone by saying "insurance". Ms. Diaz continued to greet her former insurance customers and mailed out renewal notices after both she and Respondent had actual knowledge of the revocation of her licensure.

    
    

53. Respondent knew or should have known of Ms. Diaz's activities. While there was insufficient evidence to establish that Ms. Diaz was formally on MARLIN's payroll, the evidence is clear and convincing that Respondent permitted Ms. Diaz to share office space while she attempted to develop her travel agency and that, in return, Ms. Diaz helped out at the MARLIN office. Respondent employed the services of Ms. Diaz and he placed her in a position to engage in transactions that required licensure after he knew or should have known that her licensure had been revoked.

    
    

    MARTINEZ TRANSACTION (COUNT FIVE)

    
    

54. On April 23, 1994, Mr. and Mrs. Santiago Martinez of Miami, Florida, completed applications for automobile insurance from Fortune Insurance Company (Fortune) and Aries Insurance Company (Aries). The record is unclear as to whether the insurance was to be issued through FIRST or FIRST OF MIAMI.

    
    

55. The individual with whom Mr. and Mrs. Martinez dealt was Alvaro Alcivar. This was during the time that FIRST and FIRST OF MIAMI maintained separate offices and it was before Respondent and Ms. Diaz had been told that her licensure was about to be revoked. The greater weight of the evidence

    established that Mr. Alcivar was, at that time, an employee of FIRST OF MIAMI and that he was working under the supervision of Maria Diaz.

    
    

56. Succinctly stated, premiums paid by Mr. and Mrs. Martinez were deposited into a FIRST OF MIAMI bank account that showed First Assurance of Miami, Inc., d/b/a Complete Insurance as the owner of the account. The premium payment was not forwarded to the insurer. Because of this failure, Mr. and Mrs. Martinez did not receive insurance coverage for which they had paid. While Petitioner established that Mr. Alcivar and whoever was his supervising agent mishandled this transaction, there was insufficient evidence to establish that Respondent was aware of this transaction until Mr. and Mrs. Martinez demanded a refund of the premium they had paid. At that juncture, he attempted to resolve the problem. Consequently, it is found that the evidence failed to establish that Respondent was responsible for these violations of the Florida Insurance Code.

    
    

    ZAFRANI TRANSACTION (COUNT SIX)

    
    

57. In July 1992, Mr. Issac Zafrani and his son, Ramon, of Miami, Florida, purchased automobile insurance with Oak Casualty Insurance Company (Oak) after dealing with Carlos Gonzalez. The various documents associated with this transaction refer to the agency issuing this policy as FIRST, FIRST OF MIAMI, or Rodal Insurance Agency. Mr. Gonzalez was an employee of FIRST and operated under the direct supervision of Respondent.

    
    

58. The entire transaction was completed by Mr. Gonzalez at the automobile dealership where Mr. Zafrani was purchasing an automobile. All subsequent dealings by Mr. Zafrani was through Mr. Gonzalez by telephone or at locations other than the offices of FIRST.

    
    

59. Mr. Gonzalez held himself out to be and acted as an insurance agent during this transaction. Specifically, Carlos Gonzalez did the following:

    
    

    1. Was introduced to the Zafranis as an insurance agent and did not correct that misidentification.

    2. Personally completed the insurance application and related paperwork.

    3. Discussed coverage and deductible options.

       1. Selected an insurer for the Zafranis, deter- mined the premium for the coverage, and accepted the payment for the premium.

       2. Personally completed an insurance identifi- cation card, including what purported to be proof of insurance, and presented the identification card to the Zafranis.

       3. Presented the Zafranis with a business card that identified himself as a representative of FIRST.

       
       

60. The Zafranis paid for the renewal of their policy through FIRST each year on an annual basis.

    
    

61. On September 1, 1994, the Zafranis tendered to Mr. Gonzalez their check in the amount of $1,748.00 as payment in full of the annual premium for the policy year 1994-95. This check was made payable to FIRST OF MIAMI and was

    deposited in the FIRST Expense Account at Ready State Bank ( Number0303080870- 10). Respondent was the only person with authority to sign on this account.

    
    

62. On September 30, 1994, an employee of FIRST completed a premium finance agreement that purported to finance the Zafranis' premium for the Oak Casualty insurance and forged Issac Zafrani's signature to that agreement. This false document reflected that the total premium was $1,748.00 and that the Zafranis had made a downpayment of $524.00 and had an unpaid balance of

    $1,224.00. This action was taken without Issac Zafrani's knowledge or consent. Mr. Zafrani had not executed a power of attorney to authorize these acts.

    Respondent knew or should have known of this act.

    
    

63. On September 30, 1994, Respondent, or an employee of FIRST working under his direct supervision, issued a premium finance draft from Artic to Oak in the amount of $1,485.80 based upon this false application.

    
    

64. A few weeks after they paid the renewal premium, the Zafranis complained to Mr. Gonzalez that they had not received their renewal policy from Oak. Mr. Gonzalez advised them that the company had cancelled their policy in error. He promised that he would investigate the matter and take corrective action.

    
    

65. On December 23, 1994, Respondent, or an employee of FIRST acting under his direct supervision, submitted an automobile insurance application to Seminole Insurance Company indicating that coverage had been bound for Issac Zafrani. On December 23, 1994, Respondent issued FIRST check Number1196 payable to Seminole in the amount of $1,681.65 in payment of the policy he was attempting to secure on behalf of the Zafranis. On or about December 27 1994, Mr. Gonzalez issued to the Zafranis a FIRST card with what purported to be a binder number from Seminole Insurance Company. No authorization to bind that coverage had been issued by Seminole.

    
    

66. On January 3, 1995, Artic issued a cancellation notice on the Oak Casualty policy because of missed payments on the premium finance agreement. The Zafranis did not know about this premium finance agreement and Respondent failed to make the payments.

    
    

67. In January 1995, FIRST check Number1196 that had been tendered to Seminole was dishonored by Respondent's bank because the account on which the check was drawn had insufficient funds to pay the check.

    
    

68. As a result of these actions, the Zafranis failed to timely receive automobile insurance for which they had fully paid and suffered the loss of the sum of $1,748.00. Respondent knew or should have known of these actions.

    
    

    DEBT TO WORLD PREMIUM FINANCE COMPANY (COUNT SEVEN)

    
    

69. On August 29, 1995, a final judgment was entered in a Dade County Court action brought by World Premium Finance Co., Inc. (World PFC) against FIRST OF MIAMI and the Respondent, individually, as defendants. This final judgment awarded damages against FIRST OF MIAMI in the sum of $7,203.03 and awarded damages against both defendants in the sum of $15,000 plus attorney's fees of $1,000.

    
    

70. The World PFC complaint was based on worthless checks FIRST OF MIAMI and Respondent had issued in connection with premium finance contracts and included debts for unpaid downpayments and unearned commissions on premium

    finance contracts that had been cancelled. Respondent's assertion that these debts were the responsibility of Maria Diaz is rejected. While Ms. Diaz initially made the arrangements for FIRST OF MIAMI to finance through World PFC and was the agent responsible for some of these transactions, it is clear that Respondent was the agent for many of these underlying transactions. Further, some, if not all, of these worthless checks were drawn on accounts for which Respondent was the only person with signatory authority.

    
    

71. The downpayments and unearned commissions constitute fiduciary funds for which Respondent is responsible. Respondent has failed to pay these fiduciary funds to World PFC after repeated demands for payments.

    
    

    GUTIERREZ TRANSACTION (COUNT EIGHT)

    
    

72. On October 11, 1993, Ms. Madalina N. Gutierrez of Miami, Florida, completed an application for automobile insurance. Aries Insurance Company was the insurer for this policy and FIRST was the insurance agency. The premium for this policy was to have been $574.00.

    
    

73. The person with whom Ms. Gutierrez dealt with was Carmen "Mela" Babacarris, an employee of FIRST OF MIAMI. Ms. Babacarris has never held any license or appointment under the Florida Insurance Code.

    
    

74. Ms. Gutierrez paid to FIRST the sum of $287.00 on October 11, 1993, when she applied for this insurance. On that date, Ms. Babacarris gave to Ms. Gutierrez an insurance card that purported to bind coverage with Aries. She returned on November 1, 1993, and paid to FIRST the balance owed of $287.00. Both of these payments were tendered to and received by Ms. Babacarris on behalf of FIRST.

    
    

75. The sums paid by Ms. Gutierrez for this insurance coverage were not remitted by the FIRST to Aries or to any other insurer. As a consequence, Ms. Gutierrez did not receive the insurance coverage for which she had paid.

    
    

76. Ms. Gutierrez was unable to obtain a refund of the sums that she had paid to FIRST.

    
    

77. Respondent knew or should have known of the acts pertaining to this transaction by Ms. Babacarris since the transaction was processed through the FIRST, the agency for which Respondent was the sole supervising agent.

    
    

    RICO TRANSACTION (COUNT NINE)

    
    

78. On June 27, 1994, Mr. Rafael Rico of Miami, Florida, completed an application for automobile insurance from Aries Insurance. It is unclear from the documents whether this insurance was to be issued through FIRST or through FIRST OF MIAMI. This confusion in the record is attributable to the fact that the persons involved in this transaction and associated with these two agencies made little distinction between the two agencies.

    
    

79. This application was completed at the automobile dealership from which Mr. Rico was purchasing the vehicle to be insured.

    
    

80. The individual with whom Mr. Rico dealt was Alvaro Alcivar. At all times during the transaction with Mr. Rico, Mr. Alcivar held himself out to be and acted as an insurance agent. Specifically, Mr. Alcivar did the following:

    1. Personally completed the insurance application and related paperwork.

    2. Discussed coverage and deductible options and answered Mr. Rico's general insurance questions.

    3. Selected the insurer for Mr. Rico's coverage.

    4. Personally completed an insurance identification card, including a policy number, as proof of insurance and provided it to Mr. Rico.

    5. Indicated that coverage was bound immediately and gave to him a card that purported to be a Florida Automobile Insurance Identification Card indicating that Mr. Rico had insurance coverage through Aries.

    6. Developed the premium and downpayment.

    7. Accepted payment from Mr. Rico.

    8. Presented Mr. Rico with a business card identifying himself as a representative of FIRST OF MIAMI.

    9. Mr. Alcivar was the only representative of the FIRST or of the FIRST OF MIAMI with whom Mr. Rico dealt.

       
       

81. On June 27, 1994, Mr. Rico tendered to Mr. Alcivar the sum of $947.00 as payment for this insurance with the sum of $500.00 being paid in cash and the balance being charged to Mr. Rico's Mastercard. This Mastercard entry was processed through the account of the FIRST, not that of the FIRST OF MIAMI.

    
    

82. Despite the payments by Mr. Rico, the premium to which Aries was entitled for this coverage was not remitted by FIRST or by FIRST OF MIAMI. As a result of this failure, Aries cancelled the binder that had been issued to Mr. Rico. Mr. Rico was damaged as a result of this failure. He lost the premium he had paid and the lending institution that financed his vehicle placed insurance on the vehicle at a higher premium than that charged by Aries.

    
    

83. Based on the relationship between FIRST and FIRST OF MIAMI, the relationship between Respondent and Ms. Diaz, the repeated references to FIRST in the documentation of this transaction, and the deposit of at least $447.00 in the Mastercard account of FIRST, it is concluded that Respondent knew or should have known about this transaction.

    
    

    CHERI TRANSACTION (COUNT ELEVEN)

    
    

84. On November 19, 1994, Mr. Dieuseul Cheri of Miami, Florida, completed an application for automobile insurance that was to be issued by Seminole Insurance Company as the insurer. The application for insurance reflects that Maria Diaz was the agent for this transaction, but the name of the agency is FIRST, not FIRST OF MIAMI. Likewise, the premium finance agreement pertaining to this transaction reflects that FIRST is the producing agency.

    
    

85. The entire transaction was handled by Alvaro Alcivar at an automobile dealership where Mr. Cheri was purchasing a vehicle and occurred after Ms. Diaz had been told in September that the revocation of her licensure was imminent.

    
    

86. Mr. Cheri gave to Mr. Alcivar the sum of $205.00 in cash as the downpayment for the premium for this Seminole policy.

87. At all times Mr. Alcivar held himself out to be and acted as an insurance agent. Specifically, Mr. Alcivar:

    
    

    1. Was introduced to Mr. Cheri as an insurance

       agent and did not correct that misidentification.

    2. Personally completed the insurance application and related paperwork.

    3. Discussed coverage and deductible options and answered Mr. Cheri's general insurance questions.

    4. Selected the insurer for Mr. Cheri's coverage.

    5. Personally completed an insurance identification card, including a policy number, as proof of insurance and provided it to Mr. Cheri.

    6. Completed a named driver exclusion agreement for Mr. Cheri's policy, which had a significant

       effect on the coverage provided under the policy, and completed a vehicle inspection.

    7. Developed the premium and downpayment.

    8. Accepted payment from Mr. Cheri on behalf of FIRST OF MIAMI.

    9. Presented Mr. Cheri with a business card identifying himself as a representative of FIRST OF MIAMI.

    10. Mr. Alcivar was the only representative of the FIRST or of the FIRST OF MIAMI with whom Mr. Cheri dealt.

        
        

88. FIRST OF MIAMI failed to bind coverage with Seminole on Mr. Cheri's behalf until November 22, 1994. As a result, there was a lapse in Mr. Cheri's coverage from November 17 until November 22, 1994.

    
    

89. On November 19, 1994, FIRST OF MIAMI submitted a premium finance agreement on Mr. Cheri's insurance policy to World Premium Finance Co., Inc. (World PFC). The World PFC contract as well as the application were signed by Maria Diaz. Ms. Diaz never met Mr. Cheri.

    
    

90. The premium finance agreement submitted to World PFC by FIRST OF MIAMI indicated that he had made a premium downpayment of only $105.00 despite the fact that Mr. Cheri had made a downpayment of $205.00.

    
    

91. The evidence is not clear that Respondent knew or should have known of this transaction because of the involvement of Ms. Diaz. Instead, this is an example of the Respondent permitting Ms. Diaz to continue to participate in insurance transactions that require licensure after Respondent and Ms. Diaz had been told in September 1994 that revocation was imminent.

    
    

    ALVARO ALCIVAR (COUNT TWELVE)

    
    

92. Petitioner established by clear and convincing evidence that Alvaro Alcivar performed acts and made representations to consumers that require licensure pursuant to the Florida Insurance Code. Petitioner also established that Respondent knew or should have known of these acts and that he aided and abetted these violations by Mr. Alcivar.

    CARLOS GONZALEZ (COUNT THIRTEEN)

    
    

93. Petitioner established by clear and convincing evidence that Carlos Gonzalez performed acts and made representations to consumers that require licensure pursuant to the Florida Insurance Code. Petitioner also established that Respondent knew or should have known of these acts and that he aided and abetted these violations by Mr. Gonzalez.

    
    

    CONCLUSIONS OF LAW

    
    

94. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

    
    

95. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So.2d 112 (Fla. 1st DCA 1989). Evans Packing, supra, 550 So. 2d 112, 116, fn. 5, provides the following pertinent to the clear and convincing evidence standard:

    
    

    That standard has been described as follows:

    [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the

    firm belief of (sic) conviction, without hesitancy, as to the truth of the allegations sought to be established. Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

    
    

96. Based on the facts alleged in the thirteen counts of the Second Amended Administrative Complaint, Petitioner charged that Respondent violated or was accountable under the following provisions of the Florida Insurance Code (Chapter 626, Florida Statutes): Section 626.112(1); Section 626.561(1); Section 626.611(1); Section 626.611(4); Section 626.611(5); Section 626.611(7); Section 626.611(8); Section 626.611(9); Section 626.611(10), and Section 626.611(13); Section 626.621(2); Section 626.621(3) Section 626.621(6); Section 626.621(12); Section 626.641(4); Section 626.734; Section 9521; Section 626.9541(1)(e)1.; Section 626.9541(1)(k)1.; and Section 626.9541(1)(o)1., Florida Statutes.

    
    

97. Section 626.611, Florida Statutes, provides certain grounds for compulsory refusal, suspension, or revocation of licensure, in pertinent part, as follows:

    
    

    The department shall deny an application for, suspend, revoke, or refuse to renew or continue the license or appointment of any applicant, agent, title agency, solicitor, adjuster, customer representative, service representative, managing general agent, or claims investigator, 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 exist:

    1. Lack of one or more of the qualifications for the license or appointment as specified in this code.

    * * *

    1. If the license or appointment is willfully used, or to be used, to circumvent any of the requirements or prohibitions of this code.

    2. 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.

    * * *

    1. Demonstrated lack of fitness or trustworth- iness to engage in the business of insurance.

    2. Demonstrated lack of reasonably adequate knowledge and technical competence to engage in the transactions authorized by the license or appointment.

    3. Fraudulent or dishonest practices in the conduct of business under the license or appointment.

    4. 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.

    * * *

    (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.

    
    

98. Section 626.621, Florida Statutes, provides certain grounds for discretionary refusal, suspension, or revocation of licensure, in pertinent part, as follows:

    
    

    The department may, in its discretion, deny

    an application for, suspend, revoke, or refuse to renew or continue the license or appointment of any applicant, agent, solicitor, adjuster, customer representative, service representative, managing general agent, or claims investigator, 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:

    * * *

    1. 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.

    2. Violation of any lawful order or rule of the department.

    3. Failure or refusal, upon demand, to pay over to any insurer he represents or has represented any money coming into his hands belonging to the insurer.

    * * *

    (6) In the conduct of business under the license or appointment, engaging in unfair methods of competition or in unfair or deceptive acts or practices, as prohibited under part X of this chapter, or having otherwise shown himself to be a source of injury or loss to the public or detrimental to the public interest.

    * * *

    (12) Knowingly aiding, assisting, procuring, advising, or abetting any person in the violation of or to violate a provision of the insurance code or any order or rule of the department.

    
    

99. Section 626.112(1), provides as follows:

    
    

    (1) No person shall be, act as, or advertise or hold himself out to be an insurance agent, customer representative, solicitor, or adjuster unless he is currently licensed and appointed.

    
    

100. Section 626.561, Florida Statutes, provides, in pertinent part, as follows:

     
     

     (1) All premiums, return premiums, or other funds belonging to insurers or others received by an agent, solicitor, or adjuster in transactions under his license shall be trust funds so received by the licensee in a fiduciary

     capacity. An agent shall keep the funds belonging to each insurer for which he 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.

     
     

101. Section 626.641(4), Florida Statutes, provides as follows:

     
     

     (4) During the period of suspension or revocation of the license or appointment, the former licensee or appointee shall not engage in or attempt or profess to engage in

     any transaction or business for which a license or appointment is required under this code or directly or indirectly own, control, or be employed in any manner by any insurance agent or agency.

102. Section 626.734, Florida Statutes, provides, in pertinent part, as follows:

     
     

     Any general lines insurance agent who is an officer, director, or stockholder of an incorporated general lines insurance agency shall remain personally and fully liable and accountable for any wrongful acts, misconduct, or violations of any provisions of this code

     committed by such licensee or by any person under his direct supervision and control while acting on behalf of the corporation. Nothing in this section shall be construed to render any person criminally liable or subject to any disciplinary proceedings for any act unless such person personally committed or knew or should have

     known of such act and of the facts constituting p a violation of this chapter.

     
     

103. Section 626.9521, Florida Statutes, prohibits certain unfair methods of competition and unfair or deceptive acts and provides penalties, in pertinent part, as follows:

     
     

     1. No person shall engage in this state in any trade practice which is defined in this part as, or determined pursuant to s. 626.951 or s. 626.9561 to be, an unfair method of competition

        or an unfair or deceptive act or practice involving the business of insurance.

        
        

     2. Any person who violates any provision of this part shall be subject to a fine in an amount not greater than $2,500 for each nonwillful violation and not greater than $20,000 for each willful violation. Fines under this subsection may not exceed an aggregate amount of $10,000

     for all nonwillful violations arising out of the same action or an aggregate amount of $100,000 for all willful violations arising out of the same action. The fines authorized by this subsection may be imposed in addition to any other applicable penalty.

     
     

104. Section 626.9541, Florida Statutes, provides the following definitions pertinent to this proceeding:

     
     

     (1) UNFAIR METHODS OF COMPETITION AND UNFAIR OR DECEPTIVE ACTS. The following are defined as unfair methods of competition and unfair or deceptive acts or practices:

     * * *

     (e) False statements and entries. --

     1. Knowingly:

        1. Filing with any supervisory or other public official,

        2. Making, publishing, disseminating, circulating,

        3. Delivering to any person,

        4. Placing before the public,

        5. Causing, directly or indirectly, to be made, published, disseminated, circulated, delivered to any person, or placed before the public, any false material statement.

     * * *

     (k) Misrepresentations in insurance applications. --

     1. Knowingly making a false or fraudulent written or oral statement or representation on, or relative to, an application or negotiation for an insurance policy for the purpose of obtaining a fee, commis- sion, money, or other benefit from any insurer, agent, broker, or individual.

     * * *

     (o) Illegal dealings in premiums; excess or reduced charges from insurance. --

     1. Knowingly collecting any sum as a premium

     or charge for insurance, which is not then provided, or is not in due course to be provided, subject to acceptance of the risk by the insurer, by an insurance policy issued by an insurer as permitted by this code.

     
     

105. Petitioner established by clear and convincing evidence the violations of the Florida Insurance Code pertaining to the Arcamonte transaction (Count One), the Johnson-Morel transaction (Count Two) and the Hang transaction (Count Three). In each of these transactions, Respondent admitted that he was the agent of record.

     
     

106. Petitioner established by clear and convincing evidence that Respondent enabled Mr. Gonzalez and Mr. Alcivar, who have never been licensed, and Maria Diaz, whose licensure was revoked, to engage in insurance transactions as unlicensed persons. Consequently, it is concluded that Petitioner established the violations alleged in Counts Four, Twelve, and Thirteen. As to Ms. Diaz, the Respondent was verbally advised in September 1994, that the revocation of her licensure was imminent. Respondent acted on his own peril when he elected not to inquire further as to her licensure. Instead of making reasonable inquiry, he continued to transact insurance business with her on a business as usual basis.

     
     

107. Petitioner failed to establish by clear and convincing evidence that Respondent is responsible for the violations alleged in the Second Amended Administrative Complaint pertaining to the Martinez transaction (Count Five) and the Cheri transaction (Count Eleven.)

     
     

108. Petitioner established by clear and convincing evidence that Respondent is responsible for the violations alleged in the Second Amended Administrative Complaint pertaining to the Zafrani transaction (Count Six), the Gutierrez transaction (Count Eight), and the Rico transaction (Count Nine).

     
     

109. Petitioner established by clear and convincing evidence that Respondent is responsible for the violations alleged in the Second Amended Administrative Complaint pertaining to the World Premium Finance Company debt (Count Seven).

     
     

110. Count Ten was dismissed by the Petitioner.

111. In recommending the discipline that should be imposed against the Respondent, the undersigned has considered the penalty guidelines contained in Rule 4-231.030(6), Florida Administrative Code. The undersigned considers these to be serious violations of the Florida Insurance Code as they involve the misappropriation of fiduciary funds, the execution of false documents, the failure to timely submit applications and obtain coverage, and the inappropriate use of unlicensed personnel. By the worthless bank checks he routinely issued and by his dealings with the Arcamonte transaction, the Johnson-Morel transaction, and the Hwang transaction, Petitioner established by clear and convincing evidence that Respondent mishandled fiduciary funds and converted premium payments to his own use, thereby demonstrating a lack of fitness or trustworthiness to engage in the business of insurance. Revocation of licensure is the appropriate penalty for these violations. It is further recommended that an administrative fine of $1,000 be imposed for each count that was established.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the findings of

fact and conclusions of law contained herein. It is further recommended that Petitioner revoke all licensure and appointment held by Respondent pursuant to the Florida Insurance Code and that it impose against Respondent an administrative fine in the amount of $10,000.00.

DONE AND ENTERED this 15th day of April 1996 in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON, 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 15th day of April 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0317

The following rulings are made as to the proposed findings of fact submitted by Petitioner.

1. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5,6, 7, 8, 9, 11, 12, 13, 14, 15, 16, 18, 19, 20, 21, 22, 23, 27, 25, 27, 28, 29, 30, 31, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 73, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 123, 125, 126, 127, 139, 140, 141, and 142 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraph 2 are adopted in part by the Recommended Order. The testimony at the formal hearing that the office was moved in June 1994.

3. The proposed findings of fact in paragraphs 10, 17, and 81 are adopted in part by the Recommended Order, but are rejected to the extent they are contrary to the findings made.

4. The proposed findings of fact in paragraphs 26, 32, 72, 74, 75, 76, 83, 129, 130, 131, 136, 137, 143, and 144 are subordinate to the findings made.

5. The proposed findings of fact in paragraphs 46, 61, 82, and 124 are rejected as being unnecessary to the conclusions reached.

6. The proposed findings of fact in paragraphs 77, 78, 79, 80, 128, 132, 133, 134, 135, and 136 are rejected as being contrary to the findings made.

The following rulings are made as to the proposed findings of fact submitted by Respondent.

1. The proposed findings of fact in paragraphs 1, 3, 4, 5, 7, 8, 9, 13, 15, 17, 18, 19, 20, 23, 26, 32, 33, 34, 35, 36, 37, 40, 41, 49, 50, 53, 54, 55, 64, 72, and 73 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraph 3 are adopted in part by the Recommended Order, but are rejected in part since Respondent moved the offices of the FIRST from Coral Way to Sunset Drive at a time pertinent to this proceeding.

3. The proposed findings of fact in paragraphs 6 and 52 are adopted in part by the Recommended Order, but are rejected to the extent they are contrary to the findings made.

4. The proposed findings of fact in paragraphs 10, 11, 21 and 27 are rejected as being unsubstantiated by credible evidence. The evidence that supports these proposed findings lacks credibility.

5. The proposed findings of fact in paragraphs 12 and 31 are adopted in part by the Recommended Order, but are rejected to the extent the proposed findings mischaracterize the evidence.

6. The proposed findings of fact in paragraphs 16 are adopted in part by the Recommended Order, but are rejected to the extent they are unnecessary to the conclusions reached.

7. The proposed findings of fact in paragraph 24 are adopted in part by the Recommended Order, but are rejected to the extent they are contrary to the finding that they knew that the revocation of Ms. Diaz's licensure was imminent.

8. The proposed findings of fact in paragraphs 25, 28, 30, 38, 39, 40, 45, 46, 47, 51, 56, 58, 59, 60, 61, 62, 65, 66, 67, 69, 71, 74, 75, 76, 77, and 78 are rejected as being contrary to the findings made.

9. The proposed findings of fact in paragraphs 29 and 57 are subordinate to the findings made.

10. The proposed findings of fact in paragraph 31 are rejected since they contain an inference that Respondent told Ms. Diaz to move as soon as he knew of her interaction with insurance customers.

11. The proposed findings of fact in paragraph 42 are rejected as being a mischaracterization of the evidence.

12. The proposed findings of fact in paragraphs 48, 63, 68, and 70 are rejected as being unnecessary to the conclusions reached.

COPIES FURNISHED:

John R. Dunphy, Esquire

Department of Insurance and Treasurer Division of Legal Services

612 Larson Building

Tallahassee, Florida 32399-0333

Charles J. Grimsley, Esquire

Charles J. Grimsley and Associates, P.A. 1880 Brickell Avenue

Miami, Florida 33129

Honorable Bill Nelson

State Treasurer and Insurance Commissioner The Capitol, Plaza Level

Tallahassee, Florida 32399-0300

Dan Sumner, Acting General Counsel Department of Insurance

The Capitol, Plaza Level 11 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 ten 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: 95-000317

Orders for Case No: 95-000317