STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE, )

)

Petitioner, )

)

vs. ) Case No. 99-1293

)

CARLOS MANUEL RODRIQUEZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on November 16, 1999, at Miami, Florida, before Claude B. Arrington, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Robert F. Langford, Jr., Esquire

Department of Insurance Division of Legal Services 612 Larson Building

200 East Gaines Street Tallahassee, Florida 32399-0333

For Respondent: Ross B. Toyne, Esquire

Concord Building, Suite 1000

66 West Flagler Street Miami, Florida 33130-1884

STATEMENT OF THE ISSUES

Whether Respondent, a licensed insurance salesperson, committed the offenses alleged in the Administrative Complaint and, if so, the penalty that should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint filed February 25, 1999, Petitioner alleged certain facts pertaining to Respondent's dealings with Margarita Ors, Russell Ladd, Lola Brown, and Vinetta Davis. Count I charged Respondent with making false and misleading material statements to Ms. Ors about her existing health maintenance organization (HMO) for the purpose of enrolling her in another HMO he was selling. Based on that alleged conduct, Petitioner charged Respondent in Count I with multiple violations of the Florida Insurance Code. 1/ Count II charged Respondent with enrolling Mr. Ladd in an HMO that Respondent was selling without Mr. Ladd's knowledge or informed consent. 2/ Count III charged Respondent with making false and misleading material statements to Ms. Brown about her existing health maintenance organization (HMO) for the purpose of enrolling her in another HMO he was selling. 3/ Count IV charged Respondent with enrolling Ms. Davis in health insurance plans without her knowledge or informed consent. Additionally, Count V charged Respondent with failing to notify Petitioner of his change of business address after he changed employers. 4/

Respondent timely challenged the allegations of the Administrative Complaint, the matter was referred to the Division of Administrative Hearings, and this proceeding followed.

At the formal hearing, Petitioner presented the testimony of Tracy Schmidt (the compliance officer for Foundation Health Plan); the Respondent; Lola Brown; and Vinetta Davis.

Petitioner presented 7 exhibits, 6 of which were admitted into evidence. Official recognition was taken of all relevant statutes and rules.

Respondent testified on his own behalf and presented the additional testimony of Gilberto Grana, his former supervisor. Respondent presented 6 exhibits, each of which was accepted into evidence.

A Transcript of the proceedings was filed January 3, 2000. The Petitioner and Respondent filed Proposed Recommended Orders, which have been duly-considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to this proceeding, Respondent has been licensed by Petitioner as a health insurance salesperson.

2. On February 18, 1997, Respondent 5/ visited with Margarita Ors at her home in Miami, Florida, for the purpose of soliciting her enrollment in a Medicare health insurance policy with Foundation Health Plan (FHP), a health plan provider he represented. Ms. Ors testified that the person who visited with her on February 18, 1997, told her that she should enroll in FHP

   because her existing health plan, Neighborhood Health Partnership (NHP), was going out of business. NHP was not going out of business, and any statement that NHP was going out of business would have been a false statement. Respondent denied under oath that he told Ms. Ors that NHP was going out of business.

3. Ms. Ors testified that she completed the paperwork necessary to enroll in FHP because she believed that NHP was going out of business. Her coverage under FHP was to begin in April 1997.

4. After Respondent left her residence, Ms. Ors called a friend who told her that NHP was not going out of business.

   Ms. Ors immediately called another friend who helped her cancel her enrollment in FHP and keep her enrollment in NHP.

5. Mr. Ladd died prior to the time of the formal hearing.

   
   

   Petitioner was unable to establish the factual allegations of Count II without Mr. Ladd's testimony.

6. FHP terminated its licensure appointment with Respondent effective June 6, 1997.

7. Following that termination, Respondent became employed by the Acosta Insurance Agency selling certain products, including a product from Blue Cross, Blue Shield that was referred to as Medicaid and More Health Plan Health Options

   (BCBS). The exact date Respondent started employment with the Acosta Insurance Agency was not established.

8. Lola Brown and Vinetta Davis are neighbors. Respondent enrolled both of these elderly ladies in FHP while he represented FHP. Consequently, he knew that they were enrolled in FHP at the times pertinent to this proceeding.

9. In October 1997 Respondent visited with Ms. Brown for the purpose of enrolling her in BCBS. 6/ Ms. Brown testified repeatedly and without equivocation that Respondent told her that he used to work for FHP, that FHP was no good, and that FHP was going out of business. Respondent denied making those disparaging statements to Ms. Brown.

10. Gilberto Grana trained Respondent on behalf of Acosta Insurance Agency. Mr. Grana testified that he was present during the entire time Respondent made his presentation to Ms. Brown. Mr. Grana testified that Respondent did not represent to Ms. Brown that FHP was no good or that it was going out of business.

11. Respondent visited Ms. Davis in October 1997 for the purpose of enrolling her in BCBS. Ms. Davis testified that she signed the application to enroll in BCBS based on Respondent's presentation. It was after she read one of the pamphlets and learned of the co-payments that would be required by BCBS that she decided she had made a mistake.

12. On July 14, 1997, Respondent executed a form styled "Request for Agent's License and Acknowledgement and Acceptance of Conditions Agreement." This form requested Blue Cross and Blue Shield of Florida, Inc., to make application to Petitioner for the issuance of a life and/or health insurance agent's license authorizing Respondent to solicit applications on behalf of Blue Cross and Blue Shield of Florida, Inc., and reflected that Respondent would be a general agent with the Acosta Insurance Group. There was no evidence as to what happened to this form after Respondent signed it.

13. Petitioner was not timely notified that Respondent had changed his business address from FHP to the Acosta Insurance

    Agency.

    
    

    CONCLUSIONS OF LAW

    
    

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

15. Petitioner has the burden of proving the allegations against Respondent by clear and convincing evidence. See Ferris

    v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

16. Petitioner failed to establish by clear and convincing evidence the violations alleged in Counts I, II, III, and IV of the Administrative Complaint. As to Count I, Ms. Ors, who was

    80 years old and very nervous when she testified, did not

    clearly or convincingly establish that Respondent made false and misleading material statements to her about NHP. She testified as to her interpretation of what was said, as opposed to what Respondent actually told her. Because of Mr. Ladd's death, Petitioner was unable to establish the facts alleged in Count

    1. As to Count III, Mr. Grana's testimony that Respondent did not make disparaging statements to Ms. Brown about FHP is entitled to as much credence as Ms. Brown's testimony that he did make such disparaging statements. In the absence of other evidence supporting its allegations, it must be concluded that Petitioner failed to establish the alleged violations of Count

    2. As to Count IV, Ms. Davis' testimony that she signed her enrollment application contradicts the allegation that Respondent fraudulently affixed her signature to the application or that he enrolled her in a health plan (certainly not Humana Health Options Health Plan as alleged in the Administrative Complaint) without her knowledge or informed consent.

17. Section 626.551, Florida Statutes, provides, in pertinent part, as follows:

    Every licensee shall notify the department in writing within 30 days after a change of name, residence address, principal business street address, or mailing

    address. . . .

    
    

18. Petitioner established by clear and convincing evidence that Respondent failed to notify it within 30 days of

    his change of business address as alleged in Count V of the Administrative Complaint, in violation of Section 626.621(2), Florida Statutes, which authorizes Petitioner to discipline any licensee who violates any provision of the Florida Insurance Code.

19. Petitioner did not establish that Respondent violated the provisions of Section 626.611(13), Florida Statutes, which requires a finding of a willful failure or a willful violation.

20. The form described in paragraph 12 does not satisfy the requirement set forth in Section 626.551, Florida Statutes.

21. Rule 4-231.090, Florida Administrative Code, provides discipline guidelines pertinent to this proceeding. Those guidelines provide for a suspension of 3 months for a violation of Section 626.621(2), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that dismisses Counts I, II, III, and IV of the Administrative Complaint. It is further recommended that the final order find Respondent guilty of violating the provisions of Section 626.551, Florida Statutes, and, consequently, a violation of Section 626.621(2), Florida Statutes, as alleged in Count V of the Administrative Complaint. It is further recommended that

Petitioner suspend Respondent's licensure for a period of three months for that violation.

DONE AND ENTERED this 16th day of March, 2000, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 2000.

ENDNOTES

1/ Petitioner alleged in Count I that the following provisions constitute grounds for the discipline of Respondent's license: Sections 626.611(5), (7), (8), (9), and (13); 626.621(3), (5),

and (6); 626.9521; and 626.9541(1)(e), (k) and (l), Florida Statutes.

2/ Petitioner alleged in Count II and Count IV that the following provisions constitute grounds for the discipline of Respondent's license: Sections 626.611(5), (7), (9), and (13);

626.621(2) and (6); and 626.9521; 626.9541(1)(e) and (k),

Florida Statutes.

3/ Petitioner alleged in Count III that the following provisions constitute grounds for the discipline of Respondent's license: Sections 626.611(5), (7), (9), and (13); 626.621(2) and (6); and 626.9521; 626.9541(1)(e) and (k), Florida Statutes.

4/ Petitioner alleged in Count V that the following provisions constitute grounds for the discipline of Respondent's license: Sections 626.551; 626.611(13); and 626.621(2), Florida Statutes.

5/ Ms. Ors could not identify Respondent as being the person who visited her home on February 18, 1997. Respondent admitted that he met with Ms. Ors and that he took her application to enroll in FHP.

6/ The Administrative Complaint charged Respondent with visiting Ms. Brown and Ms. Davis to sell them a health plan from the Humana Company. The evidence established that Respondent never sold insurance plans from that company. Respondent visited Ms. Brown and Ms. Davis to sell them the BCBS plan.

COPIES FURNISHED:

Robert F. Langford, Jr., Esquire Department of Insurance Division of Legal Services

612 Larson Building

200 East Gaines Street Tallahassee, Florida 32399-0333

Ross B. Toyne, Esquire Concord Building, Suite 1000

66 West Flagler Street Miami, Florida 33130-1884

Honorable Bill Nelson

State Treasurer and Insurance Commissioner The Capitol, Plaza Level 11

Tallahassee, Florida 32399-0300

Daniel Y. Sumner, General Counsel Department of Insurance

The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of 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: 99-001293

Orders for Case No: 99-001293