on FILED r_ED 99 yer 25 PNM THE TREASURER OF THE ene MAR 13 2000 TREASURER AND INSURANCE commeone Docketed by: DEPARTMENT OF; S BILL NELSON WEARIR IN THE MATTER OF: } 60- +74 1 \ CASE NO. 2881 1-00-AG } DAVID ANDREW KNIERIM } / ADMINISTRATIVE COMPLAINT TO: DAVID ANDREW KNIERIM 1450 Sabal T: Weston, atoda 33327-1638 DAVID ANDREW KNIERIM PESCO PLUS 2929 SW 3° Ave., Ste. 501 Miami, Florida 33129-2770 You, DAVID ANDREW KNIERIM, are hereby notified that the Insurance Commissioner of the State of Florida has caused to be made an investigation of your activities . while licensed as an insurance agent jn this state, as a result of which it is alleged: _ GENERAL ALLEGATIONS Gea eee 1. Pursuant to Chapter 626, Florida Statutes, you, DAVID ANDREW KNIERIM, : _ are currently licensed in this state as a life and variable annuity contracts agent (2-14), life, health and a variable annuity contracts agent (2-15), life insurance agent (2-16), life and health 4 j insurance agent - 18), 2 and a legal expense insurance agent (2-56). 2 “At all times , pertinent to the dates and occurrence referred to herein, you, DAVID ANDREW KNIERIM, were licensed in this state as a life and variable annuity contracts agent, a Wo Ww health and a variable annuity contracts agent, life insurance agent, a life and health insurance agent and a legal expense insurance agent. 3. Pursuant to Chapter 626, Florida Statutes, the Florida Department of Insurance has jurisdiction over your insurance licenses and appointments. COUNT! 4. The above General Allegations numbered one through three are hereby realleged and fully incorporated herein by reference. 5. On or about, February 18, 1998, you, DAVID ANDREW KNIERIM, approached Jacqueline W. Esco, a teacher in Dade County, and tricked Ms. Esco into signing documents that had the effect of changing her Great American Insurance Company annuity to a Met Life annuity. At the time, Ms. Esco specifically stated that she did not want to change from her old policy because she did not currently have a copy of her Great American Insurance Company policy for comparison. She also stated that her copy of the policy may be lost and she was too busy to look at the information at that time. With fraudulent intent and in a deceptive manner, you, DAVID ANDREW KNIERIM, persuaded Ms. Esco to sign documents under your representation that the documents were only to obtain a copy of Ms. Esco’s lost Great American Insurance Company annuity policy for comparison purposes at a later date. - 6. On or about said date, you, DAVID ANDREW KNIERIM, actually provided “forms to surrender Ms. Jacqueline Esco’s Great American Insurance Company annuity and ~ Péplace it with a Met Life annuity to further your scheme. In reliance on your false 8H representations as to the content and effect of these documents, Ms. Esco, signed the papers. re Vo. ow 7. You, DAVID ANDREW KNIERIM, through fraud and misrepresentation, caused Ms. Jacqueline Esco to surrender her Great American Insurance Company annuity no. 05374864 and incur a loss in account value of $6,088.06 in surrender charges. iT IS THEREFORE CHARGED that you, DAVID ANDREW KNIERIM, have violated or are accountable under the following provisions of the Florida Insurance Code and Rules of the Department of Insurance which constitute grounds for the suspension or revocation of your licenses and appointments as a life and health insurance agent: (a) 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. [Section 626.61 1(5), Florida Statutes]; (b) Demonstrated lack of fitness or trustworthiness to engage in the business of insurance. [Section 626.611(7). Florida Statutes]; (c) Fraudulent or dishonest practices in the conduct of business under the license or permit. [Section 626.611(9), Florida Statutes]; (d) 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. [Section 626.611(13), Florida Statutes]; (e) 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 permit. [Section 626.621(2), Florida Statutes]; (f) Violation of any lawful order or rule of the department. {Section 626.621(3), Florida Statutes]; eer LOCO (g) Violation of the provision against twisting, as defined in s. 626.9541(1)(). [Section 626.621(5), Florida Statutes)]; (h) In the conduct of business under the license or permit, engaging in unfair methods of competition or in unfair or deceptive acts or practices, as prohibited under part IX of this chapter, or having otherwise shown himself to be a source of injury or loss to the public. [Section 626.621(6), Florida Statutes]; (i) Ifa life agent, violation of the code of ethics found in Rule 4-215, Florida Administrative Code. [Section 626.621(9), Florida Statutes]. The pertinent sections of the Code of Ethics are as follows: 1.) Twisting is declared to be unethical. No person shall make any misleading representations Or incomplete or fraudulent comparison of any insurance policies or insurers for the purpose of inducing, or tending to induce, any person to lapse, forfeit, surrender, terminate, retain, or convert any insurance policy, a policy of insurance in another insurer. {Florida Administrative Code § 4- 215.215]; 2.) Misrepresentations are declared to be unethical. No person shall make, issue, circulate, or cause to be made, issued, or circulated, any estimate, circular, or statement misrepresenting the terms of any policy issued or to be issued or the benefits or advantages promised thereby or the dividends or share of the surplus to be received thereon, or make any false or misleading statement as to the dividends or share of surplus previously paid on similar policies, al condition of misleading representation or any misrepresentation as to the financi: any insurer, or as to the legal reserve system upon which any life insurer operates, or use any name or title of any policy or class of policies misrepresenting the true nature thereof. [Florida Administrative Code § 4-215.230 (1)}; and 3.) No person shall make, publish, disseminate, circulate, or place before the public, or cause, directly or indirectly, to be made, published, disseminated, circulated, or placed before the public, ina newspaper, magazine, or other publication, or in the form of a notice, circular, pamphlet, letter or poster, or over any radio or television station, or in any other way, any advertisement, announcement or statement containing any assertion, representation or statement with respect to the business of insurance or with respect to any person in the conduct of his insurance business, which is untrue, deceptive or misleading. Florida Administrative Code §§ 4-215.230 (2). 4 err EC WwW. Ww (j) 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. 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 non-willful 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 non-willful violations arising 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. (Section 626.9521, Florida Statutes]; (k) Knowingly making, issuing, circulating, or causing to be made, issued, or circulated, any estimate, illustration, circular, statement, sales presentation, omission, Or comparison which ” misrepresents the benefits, advantages, conditions, or terms of any insurance policy. {Section 626.9541(1)(a)L., Florida Statutes]; dd) Knowingly making, issuing, circulating, or causing to be made, issued, or circulated, any estimate, illustration, circular, statement, sales presentation, omission, Or comparison which isa misrepresentation for the purpose of inducing, or tending to induce, the lapse, forfeiture, : exchange, conversion, or surrender of any insurance policy. [Section 626.9541(1)(a)6., Florida ___ Statutes]; — (m) Knowingly making, issuing, circulating, or causing to be made, issued, or circulated, any estimate, jllustration, circular, statement, sales presentation, omission, or comparison which is a misrepresentation for the purpose of effecting a pledge or assignment of, or effecting a loan “against, any insurance policy. [Section 626.9541(1)(a)7., Florida Statutes]; Wo wd (n) Knowingly making, publishing, disseminating, circulating, or placing before the public, or causing, directly or indirectly, to be made, published, disseminated, circulated, or placed before the public: 7 In a newspaper, magazine, or other publication, 2. In the form of a notice, circular, pamphlet, letter, or poster, 3. Over any radio or television station, or 4. In any other way, an advertisement, announcement, or statement containing any assertion, representation, or statement with respect to the business of insurance, which is untrue, deceptive, or misleading. [Section 626.9541(1)(b), Florida Statutes]; (0) False statements and entries. - 1. Knowingly: a. Filing with any supervisory or other public official, b. Making, publishing, disseminating, circulating, c. Delivering to any person, d. Placing before the public, e. Causing, directly or indirectly, to be made, published, disseminated, circulated, delivered to any person, or placed before the public, any false material statement. [Section 626.9541(1)(e)1., Florida Statutes]; ®) Knowingly making any misleading representations or incomplete or fraudulent comparisons or fraudulent material omissions of or with respect to any insurance policies or insurers for the purpose of inducing, or tending to induce, any person to lapse, forfeit, surrender, eens SSA Ww. Md terminate, retain, pledge, assign, borrow on, or convert any insurance policy or to take out a policy of insurance of another insurer. [Section 626.9541(1)(1), Florida Statutes]; COUNT If 5, The above General Allegations numbered one through three are hereby realleged and fully incorporated herein by reference. 6. Sometime after February 18, 1998 but before March 17, 1998, you, DAVID ANDREW KNIERIM, acting as a principal, solicited one, Margarita R Mena, a notary with a commission number of CC621402 in the State of Florida, to commit a felony of the third degree by False or Fraudulent Acknowledgment of the signature of one, Jacquelyn W. Esco, in violation of Fora Statutes §§ 777.011, 117.105, and 117.107. 7. You, DAVID ANDREW KNIERIM, directed Margarita R. Mena to notarize documents without the presence or knowledge of the signor, Jacquelyn W. Esco, in violation of the law by a felony of the third degree, to further your scheme to transfer Mrs. Jacquelyn W. Esco’s policy against her will, for your own pecuniary gain. IT IS THEREFORE CHARGED that you, DAVID ANDREW KNIERIM, have violated or are accountable under the following provisions of the Florida Insurance Code and Rules of the Department of Insurance which constitute grounds for the suspension or revocation of your licenses and appointments as a life and health insurance agent: Sections 626.61 1(7); 626.61 1(9); 626.611(13); 626.621(2); 626.621(3); and 626.621(6), Florida Statutes, as more particularly alleged above. NOTICE OF RIGHTS Pursuant to Sections 120.569 and 120.57, Florida Statutes and Rule Chapter 28-106, Florida Administrative Code (F.A.C.), you have the right to request a proceeding to contest this action by 7 arena Ww : 7] the Department. You may elect a proceeding by completing the attached Election of Rights form or filing a Petition. Your Petition or Election of a proceeding must be in writing and must be filed with the General Counsel acting as the Agency Clerk, Department of Insurance. If served by U.S. Mail the Petition or Election should be addressed to the Florida Department of Insurance at 612 Larson Building, Tallahassee, Florida 32399-0333. If Express Mail or hand delivery is utilized, the Petition or Election should be delivered to 612 Larson Building, 200 East Gaines Street, Tallahassee, Florida 32399-0333. The Petition or Election must be received by, and filed in the Department within twenty-one (21) days of the date of your receipt of this notice. YOUR FAILURE TO RESPOND TO THIS ADMINISTRATIVE COMPLAINT WITHIN TWENTY-ONE (21) DAYS WILL CONSTITUTE A WAIVER OF YOUR RIGHT TO REQUEST A PROCEEDING ON THE MATTERS ALLEGED HEREIN AND AN ORDER OF REVOCATION WILL BE ENTERED AGAINST YOU. If a proceeding is requested and there is no dispute of fact the provisions of Section 120.57(2), Florida Statutes would apply. In this regard you may submit oral or written evidence in opposition to the action taken by this agency or a written statement challenging the grounds upon which the agency has relied. While a hearing is normally not required in the absence of a dispute of fact, if you feel that a hearing is necessary one will be conducted in Tallahassee, Florida or by telephonic conference call upon your request. If you dispute material facts which are the basis for this agency's action you may request a proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes. If you request this type of proceeding, the request must comply with all of the requirements of Rule Chapter 28-106, F.A.C. and contain J , 2 a) A statement identifying with particularity the allegations of the Department which you dispute and the nature of the dispute; b) An explanation of what relief you are seeking and believe you are entitled to; c) Any other information which you contend is material. These proceedings are held before a State administrative law judge of the Division of Administrative Hearings. Unless the majority of witnesses are located elsewhere the Department will request that the hearing be conducted in Tallahassee. If you request a hearing, you have the right to be represented by counsel, or other qualified representative, to take testimony, to call and cross-examine witnesses, and to have subpoena and subpoena duces tecum issued on your behalf. You are hereby notified that mediation under Section 120.573, Florida Statutes, is not available. Failure to follow the procedure outlined with regard to your response to this notice may . result in the request being denied. All prior correspondence in this matter shall be considered freeform agency action, and no such correspondence shall operate as a valid request for an administrative proceeding. Any request for administrative proceeding received prior to the date of this notice shall be deemed abandoned unless timely renewed in compliance with the guidelines as set out above. DATED and SIGNED this_» 3 day of 4 JU dred , 2000. NELSON Treasurer and Insurance Commissioner

Docket for Case No: 00-001747