STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE )

AND TREASURER, )

)

Petitioner, )

)

vs. ) CASE NO. 95-2128

)

MICHAEL EDWARD RICHARDS, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this proceeding before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on August 31, 1995, in Orlando, Florida. Respondent attended the formal hearing in Orlando. The undersigned, counsel for Petitioner, witnesses other than Respondent, and the court reporter participated by video conference from Tallahassee, Florida.

APPEARANCES

For Petitioner: John R. Dunphy, Esquire

Division of Legal Services

Department of Insurance and Treasurer 612 Larson Building

Tallahassee, Florida 32399-0300

For Respondent: Michael Edward Richards, pro se

607 Blue Lake Drive

Longwood, Florida 32779-3511 STATEMENT OF THE ISSUES

The issues for determination in this proceeding are whether Respondent committed the acts alleged in the Administrative Complaint and, if so, what, if any, penalty should be imposed.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint on April 13, 1995. Respondent timely requested a formal hearing.

At the formal hearing, Petitioner presented the testimony of: Mr. Sam Wimberly and Mr. Artis Gilmore, President and Chief Executive Officer, respectively, of Gilmore-Wimberly Associates, Inc.; and Mr. Evo Riguzzi, Assistant Vice President of Security, Home Insurance Company. Petitioner submitted six exhibits for admission in evidence. Respondent did not call any witnesses, did not testify in his own behalf, and submitted one exhibit for admission in evidence.

Rulings on the parties' objections to exhibits were reserved for disposition in this Recommended Order because the parties had not exchanged exhibits prior to the video hearing. A transcript of the formal hearing was not requested by either party.

Petitioner timely filed its proposed recommended order ("PRO") on September 7, 1995. Respondent timely filed his PRO on September 11, 1995. Petitioner's proposed findings of fact in its PRO are accepted in this Recommended Order.

Respondent's proposed findings of fact are not addressed in the Appendix to this Recommended Order because Respondent failed to comply with the order entered by the undersigned on the record at the formal hearing.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for regulating insurance and insurance related activities in Florida. Petitioner is the agency responsible for regulating any licensed or unlicensed person engaged in activities prohibited under Chapter 626, Florida Statutes. 1/

   
   

2. Respondent is licensed as an independent adjuster. Respondent's license number is 289505173.

   
   

3. Gilmore Wimberly & Associates, Inc. (GWA) is a Florida corporation engaged in the business of insurance adjusting. GWA's principal place of business is 1033 Oak Street, Jacksonville, Florida 32204.

   
   

4. All billing for independent adjusting services is processed in the Jacksonville office. However, GWA maintains branch offices to adjust claims throughout the state. One of the branch offices is located at 251 Maitland Avenue, Suite 110, Altamonte Springs, Florida 32701 (the "Altamonte office").

   
   

5. In March and April, 1994, Respondent was employed by GWA as an independent adjuster in charge of operating the Altamonte office. Respondent supervised one secretary and an appraiser.

   
   

6. Respondent issued five unauthorized invoices to GWA clients in the aggregate amount of $2,329.92. Respondent altered the address on the face of the invoices so that payment would be made to the Altamonte office rather than the home office in Jacksonville (the "altered invoices"). 2/

   
   

7. Respondent received payment for the altered invoices on drafts or checks ("checks") from insurance companies that employed GWA to provide adjusting services. Each check was made payable to GWA.

   
   

8. Respondent endorsed the checks on behalf of GWA. Respondent had no authority to endorse the checks. Respondent endorsed the checks to himself. Respondent then deposited the checks to his personal bank account. 3/

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto. The parties were duly noticed for the formal hearing.

   
   

10. At the formal hearing, Petitioner submitted six exhibits for admission in evidence comprised of the invoices and checks at issue in this proceeding and

    Respondent's licensure file with the State of Florida. Respondent submitted a letter from one of Petitioner's agents.

    
    

11. Both parties objected to the exhibits submitted by the other. Neither had been provided a copy of the exhibits prior to the formal hearing. Neither party was able to review or inspect the exhibits being submitted by the other party because the hearing was a video hearing and the parties were in different cities.

    
    

12. Rulings on the parties' objections were reserved. The parties were instructed to exchange exhibits and make their objections, if any, in their PROs.

    
    

13. Neither party objected in their PRO to the exhibits submitted by the other party. The exhibits submitted by the parties are admitted in evidence without objection.

    
    

14. The burden of proof is on Petitioner. Petitioner must show by clear and convincing evidence that Respondent is guilty of the acts alleged in the Administrative Complaint and the appropriateness of any disciplinary action to be taken against Respondent's license. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

15. Petitioner satisfied its burden of proof. Petitioner showed by clear and convincing evidence that Respondent violated Sections 626.611(4), (7), (9), (10), and (13).

    
    

16. Respondent knowingly and wilfully altered invoices, executed fraudulent endorsements on the backs of checks, and converted money for his personal use. Respondent violated Sections 626.611(4), (7), (9), (10), and (13) by: wilfully using his license to circumvent applicable law; demonstrating lack of fitness or trustworthiness to engage in the business of insurance; committing dishonest practices in the conduct of business; misappropriating and converting moneys belonging to insurers; and wilfully failing to comply with applicable rules promulgated by Petitioner.

    
    

17. Respondent violated Sections 626.621(2) and (6) by engaging in deceptive acts or practices. Respondent knowingly made, published, disseminated, circulated, and delivered false material statements, in the form of altered invoices and fraudulent endorsements on the backs of checks, within the meaning of Section 626.9541(1)(e)1.

    
    

18. No evidence of mitigating factors was presented by Respondent. Respondent attempted, through cross examination, to show that GWA owed Respondent money for commissions, and that Respondent converted the money to satisfy a debt owed to him by GWA. Even if Respondent were successful in establishing a debt owed to him by GWA, it does not mitigate or explain the acts committed by Respondent.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty

of the charges in the Administrative Complaint and revoking Respondent's

license.

RECOMMENDED this 29th day of September, 1995, in Tallahassee, Florida.

DANIEL MANRY

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 29th day of September, 1995.

ENDNOTES

1/ All chapter and section references are to Florida Statutes (1993) unless otherwise stated.

2/ On March 11, 1994, Respondent issued altered invoices 10350 and 10351 for

$294.46 and $459.55, respectively, and received payment for each invoice by check numbers 075047 and 075112 dated March 17, 1994. On March 11, 1994, Respondent issued altered invoice 10553 for $541.35 and received payment by check number 37-0104667-1 dated April 4, 1994. On March 22, 1994, Respondent issued altered invoice 10354 for $585 and received payment by check number 076574 dated April 5, 1994. On March 30, 1994, Respondent issued altered invoice 10356 for $449.56 and received payment by check number 077003 dated April 8, 1994.

3/ Respondent's bank account number was 761761134921 at the Sun Bank located at the N.W. Sweetwater Office, 761, Longwood, Florida 27611.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2128

Petitioner's Proposed Findings Of Fact. Accepted in this Recommended Order Respondent's Proposed Findings Of Fact.

Not addressed for the reasons stated herein

COPIES FURNISHED:

John R. Dunphy, Esquire Division of Legal Services

Department of Insurance and Treasurer 612 Larson Building

Tallahassee, Florida 32399-0300

Michael Edward Richards, pro se 607 Blue Lake Drive

Longwood, Florida 32779-3511

The Honorable Bill Nelson State Treasurer and Insurance

Commissioner

The Capitol, Plaza Level Tallahassee, Florida 32399-0300

Dan Sumner, Esquire Acting General Counsel

Department of Insurance and Treasurer

The Capitol, PL-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 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.

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DISTRICT COURT OPINION

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IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

MICHAEL EDWARD RICHARDS, NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

Appellant, DISPOSITION THEREOF IF FILED.

vs. CASE NO. 95-4442

DOAH CASE NO. 95-2128

DEPARTMENT OF INSURANCE AND TREASURER,

Appellee.

/ Opinion filed December 4, 1996.

An appeal from an order of the Department of Revenue.

Harvey M. Alper and Carolyn N. Crichton, of Massey, Alper and Walden, Altamonte Springs, for Appellant.

John R. Dunphy, Lisa S. Santucci, Division of Legal Services, Department of Insurance, Tallahassee, for Appellee.

PER CURIAM.

AFFIRMED.

BARFIELD, C.J., ERVIN and BENTON, JJ., CONCUR.

Docket for Case No: 95-002128

Orders for Case No: 95-002128