STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE, )

)

Petitioner, )

)

vs. ) Case No. 00-2127

)

JEAN WALLACE, )

)

Respondent, )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on September 15, 2000, by video teleconference between Miami and Tallahassee, Florida, before Claude B. Arrington, a duly- designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: David W. Nam, Esquire

Department of Insurance Division of Legal Services 612 Larson Building

200 East Gaines Street Tallahassee, Florida 32399-0333

For Respondent: No appearance

STATEMENT OF THE ISSUE

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

PRELIMINARY STATEMENT

On June 18, 2000, Petitioner filed an Administrative Complaint against Respondent alleging that Petitioner had, as the receiver for First Miami Insurance Company, received a judgement against Respondent for unearned commissions, interest, and attorney's fees. The Administrative Complaint alleged that Respondent has failed to satisfy that judgment, thereby violating multiple provisions of the Florida Insurance Code.

Respondent timely requested a formal administrative hearing before the Division of Administrative Hearings to challenge the allegations of the Administrative Complaint, the matter was referred to the Division of Administrative Hearings, and this proceeding followed.

At the final hearing, Petitioner presented the testimony of Agueda Bouza, an employee of Petitioner's Division of Rehabilitation and Liquidation, and offered four exhibits, each of which was accepted into evidence. Respondent made no appearance at the final hearing.

A Transcript of the proceedings was filed on September 26, 2000. Petitioner filed a Proposed Recommended Order, which has been duly considered by the undersigned in the preparation of this Recommended Order. Respondent did not file a post-hearing submittal.

FINDINGS OF FACT

1. Petitioner is a licensing and regulatory agency of the State of Florida charged with the responsibility and duty to prosecute administrative complaints pursuant to the Florida Insurance Code.

2. At all times pertinent to this proceeding, Respondent was licensed by Petitioner as a general lines insurance agent.

3. On August 10, 1998, Petitioner obtained a Final Judgment against Respondent and Exotic Realty Corporation, d/b/a Exotic Insurance Agency, jointly and severally, in the principal sum of $235.81, accrued interest through August 7, 1998, in the amount of $145.56, and attorney's fees in the amount of $300.00, for a total sum of $681.37. The principal sum of $235.81 represented unearned commissions. This Final Judgment was entered in the Circuit Court of the Second Judicial Circuit, in and for Leon County, Florida, in Civil Action No. 92-1766. The style of the proceeding was In Re: The Receivership of First Miami Insurance Company. In that proceeding, Petitioner was acting as the receiver for First Miami Insurance Company.

4. A copy of the Final Judgment was served on Respondent on September 22, 1998. Petitioner advised Respondent in its transmittal letter that failure to timely pay the judgment would result in further action against Respondent's licensure.

5. The Final Judgement has not been satisfied by Respondent or by Exotic Realty Corporation, d/b/a Exotic Insurance Agency.

   CONCLUSIONS OF LAW

   
   

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

7. 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); and Inquiry Concerning a Judge,

   
   

   645 So. 2d 398 (Fla. 1994).

   
   

8. Although the Administrative Complaint alleges multiple violations of the Florida Insurance Code, the gravamen of the Administrative Complaint is that Respondent violated the provisions of Section 631.155, Florida Statutes, which provides as follows:

   Premiums and unearned commissions which have been collected on behalf of an insurer by an agent, solicitor, agency, or other entity or person constitute an asset of the insurer for which the agent, solicitor, agency, or other entity or person has a duty to account to the receiver and to pay over amounts as may be due. The duty to account to the receiver shall encompass all persons or entities involved in the handling and transmittal of premium funds. An accounting

   shall be provided to the receiver within 20 days after receipt of a written demand for an accounting. If there is a dispute regarding the accounting, the court shall hear and decide the matter upon petition of the receiver. Compliance with this section and payment of sums determined to be owed by the court within 30 days of judgment, or within other payment terms approved by the court, shall constitute requirements for continued licensure of a person holding a license under the Florida Insurance Code, and failure to comply with this section shall be sufficient grounds for the license revocation.

   
   

9. Petitioner proved by clear and convincing evidence that Respondent violated the provisions of Section 631.155, Florida Statutes, as alleged in the Administrative Complaint.

10. The recommendation that follows is taken from the Proposed Recommended Order submitted by Petitioner. Under the circumstances of this proceeding, that recommended disposition is found to be reasonable. In addition, because the Final Judgment provided for joint and several liability, the undersigned has included the recommendation that the suspension may be lifted if the judgment is satisfied either by Respondent or by Exotic Realty Corporation, d/b/a Exotic Insurance Agency.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of violating Section 631.155, Florida Statutes. It is further recommended that the final order

suspend Respondent's licensure until the outstanding Final Judgment entered in Civil Action No. 92-1766 is satisfied by Respondent or by Exotic Realty Corporation, d/b/a Exotic Insurance Agency.

DONE AND ENTERED this 27th day of October, 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 27th day of October, 2000.

COPIES FURNISHED:

David W. Nam, Esquire Department of Insurance Division of Legal Services 612 Larson Building

200 East Gaines Street Tallahassee, Florida 32399-0333

Jean Wallace

246 Northwest 58th Street Miami, Florida 33127-1622

Bill Nelson, State Treasurer and Insurance Commissioner

Department of Insurance

The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300

Daniel Y. Sumner, General Counsel Department of Insurance

The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307

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: 00-002127

Orders for Case No: 00-002127